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21362 Federal Register / Vol. 70, No.

79 / Tuesday, April 26, 2005 / Proposed Rules

An agency may not conduct or submitted timely to the IRS. All § 48.4082–1T(d) published elsewhere in
sponsor, and a person is not required to comments will be available for public this issue of the Federal Register].
respond to, a collection of information inspection and copying. (e) * * *
unless it displays a valid control A public hearing has been scheduled (e)(2) [The text of this proposed
number assigned by the Office of for July 19, 2005, at 10 a.m. in the IRS paragraph (e)(2) is the same as the text
Management and Budget. Auditorium, Internal Revenue Building, of § 48.4082–1T(e)(2) published
Books or records relating to a 1111 Constitution Ave., NW., elsewhere in this issue of the Federal
collection of information must be Washington, DC. All visitors must Register].
retained as long as their contents may present photo identification to enter the Par. 3. Section 48.4101–1 is amended
become material in the administration building. Because of access restrictions, by revising paragraph (h)(3)(iv) to read
of any internal revenue law. Generally, visitors will not be admitted beyond the as follows:
tax returns and tax return information immediate entrance area at the
are confidential, as required by 26 § 48.4101–1 Taxable Fuel; registration.
Constitution Avenue entrance more
U.S.C. 6103. than 30 minutes before the hearing * * * * *
starts. For information about having (h) * * *
Background
your name placed on the building (3) * * *
Temporary regulations in the Rules (iv) [The text of this proposed
access list to attend the hearing, see the
and Regulations section of this issue of paragraph (h)(3)(iv) is the same as the
FOR FURTHER INFORMATION CONTACT
the Federal Register amend text of § 48.4101–1T(h)(3)(iv) published
section of this preamble.
Manufacturers and Retailers Excise elsewhere in this issue of the Federal
Taxes Regulations (26 CFR part 48) The rules of 26 CFR 601.601(a)(3)
apply to the hearing. Persons who wish Register].
under sections 4082 and 4101. The
temporary regulations set forth to present oral comments at the hearing Cono R. Namorato,
requirements regarding the mechanical must submit written comments and an Acting Deputy Commissioner for Services and
dye injection systems for diesel fuel and outline of the topics to be discussed and Enforcement.
kerosene and are required by the the time to be devoted to each topic [FR Doc. 05–8235 Filed 4–25–05; 8:45 am]
American Jobs Creation Act of 2004. (signed original and eight copies (8) BILLING CODE 4830–01–P
The text of those temporary regulations copies) by June 27, 2005. A period of 10
also serves as the text of these proposed minutes will be allotted to each person
regulations. The preamble to the for making comments. An agenda DEPARTMENT OF THE TREASURY
temporary regulations explains the showing the scheduling of speakers will
be prepared after the deadline for 31 CFR Part 103
temporary regulations.
receiving outlines has passed. Copies of RIN 1506–AA81
Special Analyses the agenda will be available free of
It has been determined that this notice charge at the hearing. Financial Crimes Enforcement
of proposed rulemaking is not a Drafting Information Network; Amendment to the Bank
significant regulatory action as defined Secrecy Act Regulations—Imposition
in Executive Order 12866. Therefore, a The principal author of these of Special Measure Against Multibanka
regulatory flexibility assessment is not regulations is William Blodgett, Office
of Associate Chief Counsel AGENCY: Financial Crimes Enforcement
required. It also has been determined
(Passthroughs and Special Industries), Network (FinCEN), Treasury.
that section 553(b) of the Administrative
Procedure Act (5 U.S.C. chapter 5) does IRS. However, other personnel from the ACTION: Notice of proposed rulemaking.
not apply to these regulations. It is IRS and Treasury Department
participated in their development. SUMMARY: FinCEN is issuing this notice
hereby certified that the collection of of proposed rulemaking to impose a
information in these regulations will not List of Subjects in 26 CFR Part 48 special measure against joint stock
have a significant economic impact on company Multibanka (Multibanka) as a
a substantial number of small entities. Excise taxes, Reporting and
recordkeeping requirements. financial institution of primary money
This certification is based on the fact laundering concern, pursuant to the
that the time required to maintain the Proposed Amendments to the authority contained in 31 U.S.C. 5318A.
required records and report to the IRS Regulations DATES: Written comments on the notice
is minimal and will not have a
significant impact on those small Accordingly, 26 CFR part 48 is of proposed rulemaking must be
entities. Therefore, a Regulatory proposed to be amended as follows: submitted on or before May 26, 2005.
Flexibility Analysis under the ADDRESSES: You may submit comments,
Regulatory Flexibility Act (5 U.S.C. PART 48—MANUFACTURERS AND identified by RIN 1506–AA81, by any of
chapter 6) is not required. Pursuant to RETAILERS EXCISE TAXES the following methods:
section 7805(f) of the Internal Revenue Paragraph 1. The authority citation • Federal e-rulemaking Portal: http://
Code, this notice of proposed for part 48 continues to read, in part, as www.regulations.gov. Follow the
rulemaking will be submitted to the follows: instructions for submitting comments.
Chief Counsel for Advocacy of the Small • E-mail:
Authority: 26 U.S.C. 7805 * * * regcomments@fincen.treas.gov. Include
Business Administration for comment
on its impact on small business. Par. 2. In § 48.4082–1, paragraphs (d) RIN 1506–AA81 in the subject line of
and (e)(2) are revised to read as follows: the message.
Comments and Public Hearing • Mail: FinCEN, P.O. Box 39, Vienna,
Before these proposed regulations are § 48.4082–1 Diesel fuel and kerosene; VA 22183. Include RIN 1506–AA81 in
adopted as final regulations, exemption for dyed fuel. the body of the text.
consideration will be given to any * * * * * Instructions: It is preferable for
written (a signed original and eight (8) (d) [The text of this proposed comments to be submitted by electronic
copies) or electronic comments that are paragraph (d) is the same as the text of mail because paper mail in the

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Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules 21363

Washington, DC, area may be delayed. factors and consultation requirements, Secretary’s imposition of special
Please submit comments by one method for selecting the specific special measures requires additional
only. All submissions received must measures to be imposed against the consultations to be made and factors to
include the agency name and the primary money laundering concern. be considered. The statute requires the
Regulatory Information Number (RIN) Taken as a whole, section 311 Secretary to consult with appropriate
for this rulemaking. All comments provides the Secretary with a range of Federal agencies and other interested
received will be posted without change options that can be adapted to target parties 3 and to consider the following
to http://www.fincen.gov, including any specific money laundering concerns specific factors:
personal information provided. most effectively. These options give the • Whether similar action has been or
Comments may be inspected at FinCEN Secretary the authority to bring is being taken by other nations or
between 10 a.m. and 4 p.m. in the additional pressure on those multilateral groups;
FinCEN reading room in Washington, jurisdictions and institutions that pose • Whether the imposition of any
DC. Persons wishing to inspect the money laundering threats. Through the particular special measure would create
comments submitted must request an imposition of various special measures, a significant competitive disadvantage,
appointment by telephone at (202) 354– the Secretary can gain more information including any undue cost or burden
6400 (not a toll-free number). about the concerned jurisdictions, associated with compliance, for
FOR FURTHER INFORMATION CONTACT: institutions, transactions, and accounts; financial institutions organized or
Regulatory Policy and Programs can more effectively monitor the licensed in the United States;
Division, FinCEN, (800) 949–2732. respective jurisdictions, institutions, • The extent to which the action or
transactions, and accounts; and/or can the timing of the action would have a
SUPPLEMENTARY INFORMATION:
protect U.S. financial institutions from significant adverse systemic impact on
I. Background involvement with jurisdictions, the international payment, clearance,
institutions, transactions, or accounts and settlement system, or on legitimate
A. Statutory Provisions
that pose a money laundering concern. business activities involving the
On October 26, 2001, the President Before making a finding that particular institution; and
signed into law the Uniting and reasonable grounds exist for concluding • The effect of the action on United
Strengthening America by Providing that a foreign financial institution is of States national security and foreign
Appropriate Tools Required to Intercept primary money laundering concern, the policy.4
and Obstruct Terrorism Act of 2001 (the Secretary is required by the Bank
USA PATRIOT Act), Public Law 107– B. Multibanka
Secrecy Act to consult with both the
56. Title III of the USA PATRIOT Act Secretary of State and the Attorney In this rulemaking, FinCEN proposes
amends the anti-money laundering General. The Secretary also is required the imposition of the fifth special
provisions of the Bank Secrecy Act by section 311 to consider ‘‘such measure (31 U.S.C. 5318A(b)(5)) against
(BSA), codified at 12 U.S.C. 1829b, 12 information as the Secretary determines Multibanka, a commercial bank in
U.S.C. 1951–1959, and 31 U.S.C. 5311– to be relevant, including the following Latvia. The fifth special measure
5314, 5316–5332, to promote the potentially relevant factors:’’ prohibits or conditions the opening or
prevention, detection, and prosecution • The extent to which such financial maintaining of correspondent or
of international money laundering and institution is used to facilitate or payable-through accounts for the
the financing of terrorism. Regulations promote money laundering in or designated institution by U.S. financial
implementing the BSA appear at 31 CFR through the jurisdiction; institutions. This special measure may
part 103. The authority of the Secretary • The extent to which such financial be imposed only through the issuance of
of the Treasury (‘‘the Secretary’’) to institution is used for legitimate a regulation.
administer the BSA and its business purposes in the jurisdiction; Multibanka is headquartered in Riga,
implementing regulations has been and the capital of the Republic of Latvia.
delegated to the Director of FinCEN.1 • The extent to which the finding that
Section 311 of the USA PATRIOT Act the institution is of primary money correspondent accounts; and (5) prohibition or
(‘‘section 311’’) added section 5318A to conditions on the opening or maintaining of
laundering concern is sufficient to correspondent or payable-through accounts. 31
the BSA, granting the Secretary the ensure, with respect to transactions U.S.C. 5318A (b)(1)–(5). For a complete discussion
authority, upon finding that reasonable involving the institution operating in of the range of possible countermeasures, see the
grounds exist for concluding that a the jurisdiction, that the purposes of the notice at 68 FR 18917 (April 17, 2003), which
foreign jurisdiction, institution, class of proposed the imposition of special measures against
BSA continue to be fulfilled, and to Nauru.
transactions, or type of account is of guard against international money 3 Section 5318A(a)(4)(A) requires the Secretary to
‘‘primary money laundering concern,’’ laundering and other financial crimes. consult with the Chairman of the Board of
to require domestic financial If the Secretary determines that a Governors of the Federal Reserve System, any other
institutions and financial agencies to appropriate Federal banking agency, the Secretary
foreign financial institution is of of State, the Securities and Exchange Commission,
take certain ‘‘special measures’’ against primary money laundering concern, the the Commodity Futures Trading Commission, the
the primary money laundering concern. Secretary must determine the National Credit Union Administration, and, in the
Section 311 identifies factors for the appropriate special measure(s) to sole discretion of the Secretary, ‘‘such other
Secretary to consider and Federal agencies and interested parties as the Secretary may
address the specific money laundering find to be appropriate.’’ The consultation process
agencies to consult before the Secretary risks. Section 311 provides a range of must also include the Attorney General if the
may conclude that a jurisdiction, special measures that can be imposed Secretary is considering prohibiting or imposing
institution, class of transactions, or type individually, jointly, in any conditions on domestic financial institutions
of account is of primary money maintaining correspondent account relationships
combination, and in any sequence.2 The with the designated entity.
laundering concern. The statute also 4 Classified information used in support of a
provides similar procedures, including 2 Available special measures include requiring: section 311 finding and measure(s) may be
(1) Recordkeeping and reporting of certain financial submitted by the Treasury to a reviewing court ex
1 Therefore, references to the authority of the transactions; (2) collection of information relating to parte and in camera. See section 376 of the
Secretary of the Treasury under section 311 of the beneficial ownership; (3) collection of information Intelligence Authorization Act for Fiscal Year 2004,
USA PATRIOT Act apply equally to the Director of relating to certain payable-through accounts; (4) Pub. L. 108–177 (amending 31 U.S.C. 5318A by
FinCEN. collection of information relating to certain adding new paragraph (f)).

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21364 Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules

Multibanka is the oldest commercial ring used an account at Multibanka to establish offshore accounts with Latvian
bank in Latvia and is among the smaller launder proceeds of his criminal banks in general, and Multibanka, in
of Latvia’s 23 banks, reported to have activities. particular. The sites claim that Latvian
approximately $269 million in assets banks offer secure and confidential
C. Latvia
and 150 employees. Its predecessor banking, especially through online
entity, created in 1988, was the Latvian Latvia’s role as a regional financial banking services. FinCEN also has
branch of a Soviet bank that was center, the number of commercial banks reason to believe that certain Latvian
nationalized in 1991. The resulting with respect to its size, and those banks’ financial institutions are used by online
entity became the Foreign Operations sizeable non-resident deposit base criminal groups, frequently referred to
Department of the Bank of Latvia. Three continue to pose significant money as ‘‘carding’’ groups, to launder the
years later, in April 1994, the laundering risks. Latvian authorities proceeds of their illegal activities. Such
Department of Foreign Operations was recently have sought tighter legislative groups consist of computer hackers and
privatized and became Multibanka. In controls, regulations, and ‘‘best other criminals that use the Internet as
1995, Multibanka merged with joint practices’’ designed to fight financial a means of perpetrating credit card
stock company LNT Skonto Banka, crime. Despite Latvia’s recent efforts fraud, identity theft, and related
increasing its assets and resources. and amended laws, however, money financial crimes. One of the primary
Multibanka has four foreign offices in laundering in Latvia remains a concern. concerns of carding group members is
Russia, Ukraine, and Belarus; five Latvia’s geographical position, situated their ability to convert the funds
domestic branches; and one leasing by the Baltic Sea and bordering Russia, obtained through fraud into cash.
subsidiary, Multilizings. Estonia, Belarus, and Lithuania, make it Anonymity is another major
Multibanka offers confidential an attractive transit country for both consideration for online criminals.
banking services and numbered legitimate and illegitimate trade. Reports substantiate that in order to
accounts for non-Latvian customers. Sources of laundered money in these support these two needs, a significant
Reports substantiate that a significant countries include counterfeiting, number of carders have turned to
portion of its business involves wiring corruption, arms trafficking, contraband Latvian financial institutions for the safe
money out of the country on behalf of smuggling, and other crimes. It is and quasi-anonymous cashing out of
its accountholders. believed that most of Latvia’s narcotics their illegal proceeds. FinCEN has
The bank has been suspected of being trafficking is conducted by organized additional reason to believe that certain
used by Russian and other shell crime groups that began with cigarette Latvian financial institutions allow non-
companies to facilitate financial crime. and alcohol smuggling and then citizens to open accounts over the
A common way for criminals to disguise progressed to narcotics. Internet, and offer anonymous ATM
illegal proceeds is to establish shell Of particular concern is that many of cards with high or no withdrawal limits.
companies in countries known for lax Latvia’s institutions do not appear to Latvia has taken steps to address
enforcement of anti-money laundering serve the Latvian community, but money laundering risks and corruption.
laws. The criminals use the shell instead serve suspect foreign private In February 2004, a new anti-money
companies to conceal the true shell companies. As previously laundering law removed some barriers
ownership of the accounts and assets, discussed, criminals frequently launder that impeded the prosecution of money
which is ideal for the laundering of money through the use of shell laundering. The law expanded the
funds. One reported scheme works in companies. Similarly, a large number of categories of financial institutions
the following way: Suspect shell foreign depositors or a large percentage covered by reporting requirements to
companies move money into their of assets in foreign funds may indicate include auditors, lawyers, and high-
accounts at Multibanka. The money is that a bank is being used to launder value dealers, as well as credit
designated as payment for goods and money or evade taxes. Latvia’s 23 banks institutions. The law also recognizes
services to other shell companies or held approximately $5 billion in terrorism as a predicate offense for
individuals, but is deposited into the nonresident deposits at the end of 2004, money laundering.
originating company’s account with mainly from Russia and other parts of Recognizing the existence of
Multibanka. Multibanka later transfers the former Soviet Union. These deposits widespread official corruption, the
the funds to destinations outside Latvia accounted for more than half of all the Latvian government, in January 2002,
upon the instructions of the originating money held in Latvian banks. established the Anti-Corruption Bureau
shell companies. These transactions are Despite growing efforts by the Latvian (ACB), an independent agency to
suspected of being used to facilitate government for reform, material combat public corruption by
illegal transfers of money out of other weaknesses in the implementation and investigating and prosecuting Latvian
countries and tax evasion. Due to enforcement of its anti-money officials involved in unlawful activities.
concerns about transactions flowing laundering laws exist. To date there In 2004, the ACB reviewed over 700
through Multibanka involving suspected have been no forfeitures of illicit cases of suspected public corruption.
shell corporations, some U.S. financial proceeds based on money laundering. In Although this initiative is encouraging,
institutions have already terminated addition, suspicious activity reporting FinCEN considers the high levels of
correspondent relationships with thresholds remain high, at nearly 40,000 corruption in Latvia’s Government and
Multibanka. LATS (about $80,000 dollars) for most security forces an impediment both to
FinCEN also has reason to believe that transactions, which fails to capture its international information-sharing
certain criminals use accounts at significant activity below this threshold. efforts and to the fair enforcement of
Multibanka to facilitate financial fraud Furthermore, since 2004, only two Latvia’s anti-money laundering laws.
schemes. Specifically, one individual money laundering cases have been tried According to the International
involved in financial fraud reported in Latvian courts, with both cases Narcotics Strategy Control Report
having success in carrying out large-sum ending in acquittals. (INSCR) published in March 2005 by the
transactions through his account at Latvia has a general reputation for U.S. Department of State, Latvia’s
Multibanka. FinCEN is also aware that permissive bank secrecy laws and lax banking system is vulnerable to the
an individual arrested in 2004 for his enforcement, as evidenced by multiple laundering of narcotics proceeds. The
involvement in an access device fraud non-Latvian Web sites that offer to report designates Latvia a jurisdiction of

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Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules 21365

‘‘primary concern.’’ ‘‘Jurisdictions of 2. The Extent to Which Multibanka Is them to take reasonable steps to prevent
Primary Concern’’ in INSCR are Used for Legitimate Business Purposes indirect use of correspondent services
jurisdictions that are identified as in the Jurisdiction by Multibanka through intermediary
‘‘major money laundering countries,’’ It is difficult to determine the extent financial institutions. The finding of
that is, countries ‘‘whose financial to which Multibanka is used for primary money laundering concern and
institutions engage in currency legitimate purposes. As already stated, the imposition of the special measure
transactions involving significant inordinately high percentages of foreign also will bring criminal conduct
amounts of proceeds from international assets or depositors and the use of a occurring at or through Multibanka to
narcotics trafficking.’’ bank by shell companies are both the attention of the international
indicators of possible money laundering financial community and, it is hoped,
II. Imposition of Special Measure further limit the bank’s ability to be
Against Multibanka as a Financial activities. A significant portion of
Multibanka’s business is with shell used for money laundering or for other
Institution of Primary Money criminal purposes.
companies, many from the former
Laundering Concern
Soviet Bloc countries. FinCEN has B. Imposition of Special Measure
A. Finding reason to believe that the bank has a
reputation for operating as an offshore As a result of the finding that
Based on a review and analysis of bank that primarily services foreign Multibanka is a financial institution of
relevant information, consultations with shell companies. Multibanka is an primary money laundering concern, and
relevant Federal agencies and important banking resource for such based upon the additional consultations
departments, and after consideration of offshore companies, allegedly allowing and the consideration of relevant
the factors enumerated in section 311, them to access the international factors, the Secretary, through his
the Secretary, through his delegate, the financial system to pursue illicit delegate, the Director of FinCEN, has
Director of FinCEN, has determined that financial activities. FinCEN believes determined that reasonable grounds
reasonable grounds exist for concluding that any legitimate use of Multibanka is exist for the imposition of the special
that Multibanka is a financial institution significantly outweighed by its use to measure authorized by 31 U.S.C.
of primary money laundering concern promote or facilitate money laundering 5318A(b)(5).5 That special measure
based on a number of factors, including: and other financial crimes. authorizes the prohibition of opening or
Nevertheless, FinCEN specifically maintaining correspondent accounts 6
1. The Extent to Which Multibanka Has
solicits comments on the impact of the by any domestic financial institution or
Been Used to Facilitate or Promote
proposed special measure upon any agency for or on behalf of a targeted
Money Laundering in or Through the
legitimate transactions conducted with financial institution. A discussion of the
Jurisdiction
Multibanka involving, in particular, additional section 311 factors relevant
FinCEN has determined, based upon U.S. persons or entities, foreign persons, to imposing this particular special
a variety of sources, that Multibanka is entities, and governments, and measure follows.
being used to facilitate or promote multilateral organizations doing
legitimate business with persons, 1. Whether Similar Actions Have Been
money laundering and other financial
entities, or the government of the or Will Be Taken by Other Nations or
crimes. The proceeds of illicit activity
jurisdiction or operating in the Multilateral Groups Against Multibanka
have been transferred by shell
companies with no apparent legitimate jurisdiction.
Other countries and multilateral
business purpose to or through 3. The Extent to Which Such Action Is groups have not, as yet, taken action
correspondent accounts held by Sufficient To Ensure, With Respect to similar to that proposed in this
Multibanka at U.S. financial Transactions Involving Multibanka, rulemaking to prohibit domestic
institutions. As already described above, That the Purposes of the BSA Continue financial institutions and agencies from
many shell companies are suspected of To Be Fulfilled, and To Guard Against opening or maintaining a correspondent
moving money illegally or laundering International Money Laundering and account for or on behalf of Multibanka,
illegal proceeds through their accounts Other Financial Crimes and to require those domestic financial
at Multibanka, followed immediately by institutions and agencies to screen their
As detailed above, FinCEN has
orders that Multibanka transfer the correspondents for nested
reasonable grounds to conclude that
funds out of the country. These shell correspondent accounts held by
Multibanka is being used to promote or
companies repeatedly used accounts at Multibanka. FinCEN encourages other
facilitate international money
Multibanka to engage in a pattern of countries to take similar action based on
laundering. Currently, there are no
behavior indicative of money the findings contained in this
protective measures that specifically
laundering. For example, in a one- target Multibanka. Thus, finding rulemaking. In the absence of similar
month period during 2004, one U.S. Multibanka to be a financial institution action by other countries, it is even
bank received over 2,000 payment of primary money laundering concern more imperative that the fifth special
instructions involving $68 million and prohibiting the maintenance of measure be imposed in order to prevent
associated with eight suspected shell correspondent accounts for that access by Multibanka to the U.S.
companies with accounts at Multibanka. institution are necessary steps to financial system.
As stated above, FinCEN has prevent suspect accountholders at
5 In connection with this section, FinCEN
determined that certain individuals Multibanka from accessing the U.S.
consulted with staff of the Federal functional
view Multibanka as an excellent bank financial system to facilitate money regulators, the Department of Justice, and the State
for conducting financial fraud schemes laundering or to engage in any other Department.
and to launder the proceeds of their criminal purpose. The proposed special 6 For purposes of the proposed rule, a

criminal activity. In fact, one individual measure would not only prohibit U.S. correspondent account is defined as an account
established to receive deposits from, or make
involved in such schemes reported that financial institutions from maintaining payments or other disbursements on behalf of, a
he successfully moved large sums direct correspondent relationships with foreign bank, or handle other financial transactions
through his Multibanka account. Multibanka, but also would require related to the foreign bank.

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21366 Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules

2. Whether the Imposition of the Fifth clearance, and settlement system. In any indirect use of its correspondent
Special Measure Would Create a light of the reasons for imposing this accounts by Multibanka, to the extent
Significant Competitive Disadvantage, special measure, FinCEN does not that such indirect use can be
Including Any Undue Cost or Burden believe that it will impose an undue determined from transactional records
Associated With Compliance, for burden on legitimate business activities, maintained by the covered financial
Financial Institutions Organized or and notes that the presence of institution in the normal course of
Licensed in the United States approximately 15 larger banks in Latvia business. A covered financial institution
The fifth special measure sought to be will alleviate the burden on legitimate must take a risk-based approach when
imposed by this rulemaking would business activities within that deciding what, if any, other due
prohibit covered financial institutions jurisdiction. diligence measures it should adopt to
guard against the indirect use of its
from opening and maintaining 4. The Effect of the Proposed Action on
correspondent accounts by Multibanka,
correspondent accounts for, or on behalf U.S. National Security and Foreign
based on risk factors such as the type of
of, Multibanka. As a corollary to this Policy
services it offers and geographic
measure, covered financial institutions The exclusion from the U.S. financial locations of its correspondents.
also would be required to take system of banks that serve as conduits
reasonable steps to apply special due for significant money laundering A. 103.191(a)—Definitions
diligence, as set forth below, to all of activity and other financial crimes 1. Correspondent Account
their correspondent accounts to help enhances national security by making it
ensure that no such account is being Section 103.191(a)(1) defines the term
more difficult for money launderers and
used indirectly to provide services to ‘‘correspondent account’’ by reference to
other criminals to access the substantial
Multibanka. FinCEN does not expect the the definition contained in 31 CFR
resources of the U.S. financial system.
burden associated with these 103.175(d)(1)(ii). Section
In addition, the imposition of the fifth
requirements to be significant, given its 103.175(d)(1)(ii) defines a
special measure against Multibanka
understanding that few U.S. banks correspondent account to mean an
would complement the U.S.
currently maintain correspondent account established to receive deposits
Government’s overall foreign policy
accounts for Multibanka. There is a from, or make payments or other
strategy of making entry into the U.S.
minimal burden involved in disbursements on behalf of, a foreign
financial system more difficult for high-
transmitting a one-time notice to all bank, or to handle other financial
risk financial institutions located in
correspondent accountholders transactions related to the foreign bank.
jurisdictions that have lax anti-money In the case of a U.S. depository
concerning the prohibition on indirectly laundering controls. More generally, the
providing services to Multibanka. In institution, this broad definition would
imposition of the fifth special measure include most types of banking
addition, all U.S. financial institutions would complement diplomatic actions
currently apply some degree of due relationships between a U.S. depository
undertaken by both the Latvian and institution and a foreign bank, including
diligence to the transactions or accounts United States Governments to expose
subject to sanctions administered by the payable-through accounts.
and disrupt international money In the case of securities broker-
Office of Foreign Assets Control (OFAC) laundering and other financial crimes. dealers, futures commission merchants,
of the Department of the Treasury. As Therefore, after conducting the introducing brokers, and investment
explained in more detail in the section- required consultations and weighing the companies that are open-end companies
by-section analysis below, financial relevant factors, FinCEN has determined (mutual funds), a correspondent account
institutions should be able to easily that reasonable grounds exist for would include any account that permits
adapt their current screening procedures concluding that Multibanka is a the foreign bank to engage in (1) trading
for OFAC sanctions to comply with this financial institution of primary money in securities and commodity futures or
special measure. Thus, the special due laundering concern and for imposing options, (2) funds transfers, or (3) other
diligence that would be required by this the special measure authorized by 31 types of financial transactions.
rulemaking is not expected to impose a U.S.C. 5318A(b)(5). FinCEN is using the same definition
significant additional burden upon U.S. for purposes of the proposed rule as that
III. Section-by-Section Analysis
financial institutions. established in the final rule
The proposed rule would prohibit implementing sections 313 and 319(b)
3. The Extent to Which the Proposed covered financial institutions from
Action or Timing of the Action Will of the USA PATRIOT Act,7 except that
establishing, maintaining,
Have a Significant Adverse Systemic the term is being expanded to cover
administering, or managing in the
Impact on the International Payment, such accounts maintained by mutual
United States any correspondent
Clearance, and Settlement System, or on funds, futures commission merchants,
account for, or on behalf of, Multibanka.
Legitimate Business Activities of and introducing brokers.
As a corollary to this prohibition,
Multibanka covered financial institutions would be 2. Covered Financial Institution
This proposed rulemaking targets required to apply special due diligence Section 103.191(a)(2) of the proposed
Multibanka specifically; it does not to their correspondent accounts to guard rule defines covered financial
target a class of financial transactions against their indirect use by Multibanka. institution to mean all of the following:
(such as wire transfers) or a particular At a minimum, that special due Any insured bank (as defined in section
jurisdiction. Multibanka is not a major diligence must include two elements. 3(h) of the Federal Deposit Insurance
participant in the international payment First, a covered financial institution Act (12 U.S.C. 1813(h)); a commercial
system and is not relied upon by the must notify its correspondent bank or trust company; a private banker;
international banking community for accountholders that they may not an agency or branch of a foreign bank
clearance or settlement services. Thus, provide Multibanka with access to the in the United States; a credit union; a
the imposition of the fifth special correspondent account maintained at thrift institution; a corporation acting
measure against Multibanka will not the covered financial institution.
have a significant adverse systemic Second, a covered financial institution 7 See 67 FR 60562 (Sept. 26, 2002), codified at 31

impact on the international payment, must take reasonable steps to identify CFR 103.175(d)(1).

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Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules 21367

under section 25A of the Federal 2. Special Due Diligence of form, scope, and timing of the notice
Reserve Act (12 U.S.C. 611 et seq.); a Correspondent Accounts To Prohibit that would be required under the rule.
broker or dealer registered or required to Indirect Use A covered financial institution also
register with the SEC under the would be required under this
Securities Exchange Act of 1934 (15 As a corollary to the prohibition on rulemaking to take reasonable steps to
maintaining correspondent accounts identify any indirect use of its
U.S.C. 78a et seq.); a futures commission
directly for Multibanka, section correspondent accounts by Multibanka,
merchant or an introducing broker
103.191(b)(2) requires a covered to the extent that such indirect use can
registered, or required to register, with financial institution to apply special be determined from transactional
the CFTC under the Commodity due diligence to its correspondent records maintained by the covered
Exchange Act (7 U.S.C. 1 et seq.); and accounts that is reasonably designed to financial institution in the normal
an investment company (as defined in guard against their indirect use by course of business. For example, a
section 3 of the Investment Company Multibanka. At a minimum, that special covered financial institution would be
Act of 1940 (15 U.S.C. 80a–3)) that is an due diligence must include notifying expected to apply an appropriate
open-end company (as defined in correspondent accountholders that they screening mechanism to be able to
section 5 of the Investment Company may not provide Multibanka with access identify a funds transfer order that on its
Act of 1940 (15 U.S.C. 80a–5)) that is to the correspondent account face listed Multibanka as the originator’s
registered, or required to register, with maintained at the covered financial or beneficiary’s financial institution, or
the SEC under section 8 of the institution. For example, a covered otherwise referenced Multibanka. An
Investment Company Act of 1940 (15 financial institution may satisfy this appropriate screening mechanism could
U.S.C. 80a–8). requirement by transmitting the be the mechanism used by a covered
following notice to all of its financial institution to comply with
3. Multibanka correspondent accountholders: sanctions programs administered by
Section 103.191(a)(3) of the proposed Notice: Pursuant to U.S. regulations issued OFAC. FinCEN specifically solicits
rule defines Multibanka to include all under section 311 of the USA PATRIOT Act, comments on the requirement under the
31 CFR 103.191, we are prohibited from proposed rule that a covered financial
branches, offices, and subsidiaries of
establishing, maintaining, administering or institution take reasonable steps to
Multibanka operating in Latvia or in any
managing a correspondent account for, or on screen its correspondent accounts in
other jurisdiction. Multilizings, and any behalf of, joint stock company Multibanka order to identify any indirect use of
of its branches, is included in the (Multibanka) or any of its subsidiaries, such accounts by Multibanka.
definition. FinCEN will provide including Multilizings. The regulations also Notifying its correspondent
information regarding the existence or require us to notify you that you may not accountholders and taking reasonable
establishment of any other subsidiaries provide Multibanka or any of its subsidiaries steps to identify any indirect use of its
as it becomes available. Nevertheless, with access to the correspondent account you correspondent accounts by Multibanka
hold at our financial institution. If we
covered financial institutions should in the manner discussed above are the
become aware that Multibanka or any of its
take commercially reasonable measures subsidiaries is indirectly using the minimum due diligence requirements
to determine whether a customer is a correspondent account you hold at our under the proposed rule. Beyond these
subsidiary of Multibanka. financial institution, we will be required to minimum steps, a covered financial
take appropriate steps to block such access, institution should adopt a risk-based
B. 103.192(b)—Requirements for including terminating your account. approach for determining what, if any,
Covered Financial Institutions other due diligence measures it should
The purpose of the notice requirement implement to guard against the indirect
For purposes of complying with the is to help ensure cooperation from use of its correspondents accounts by
proposed rule’s prohibition on the correspondent accountholders in Multibanka, based on risk factors such
opening or maintaining of denying Multibanka access to the U.S. as the type of services it offers and the
correspondent accounts for, or on behalf financial system, as well as to increase geographic locations of its
of, Multibanka, FinCEN expects that a awareness within the international correspondent accountholders.
covered financial institution will take financial community of the risks and A covered financial institution that
such steps that a reasonable and deficiencies of Multibanka. However, obtains knowledge that a correspondent
prudent financial institution would take FinCEN does not require or expect a account is being used by a foreign bank
to protect itself from loan fraud or other covered financial institution to obtain a to provide indirect access to Multibanka
fraud or loss based on misidentification certification from its correspondent must take all appropriate steps to block
of a person’s status. accountholders that indirect access will such indirect access, including, where
not be provided in order to comply with necessary, terminating the
1. Prohibition on Direct Use of this notice requirement. Instead, correspondent account. A covered
Correspondent Accounts methods of compliance with the notice financial institution may afford the
requirement could include, for example, foreign bank a reasonable opportunity to
Section 103.191(b)(1) of the proposed
transmitting a one-time notice by mail, take corrective action prior to
rule prohibits all covered financial
fax, or e-mail to a covered financial terminating the correspondent account.
institutions from establishing,
institution’s correspondent account Should the foreign bank refuse to
maintaining, administering, or customers informing them that they may comply, or if the covered financial
managing a correspondent account in not provide Multibanka with access to institution cannot obtain adequate
the United States for, or on behalf of, the covered financial institution’s assurances that the account will not be
Multibanka. The prohibition would correspondent account, or including available to Multibanka, the covered
require all covered financial institutions such information in the next regularly financial institution must terminate the
to review their account records to occurring transmittal from the covered account within a commercially
ensure that they maintain no accounts financial institution to its correspondent reasonable time. This means that the
directly for, or on behalf of, Multibanka. accountholders. FinCEN specifically covered financial institution should not
solicits comments on the appropriate permit the foreign bank to establish any

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21368 Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules

new positions or execute any the prohibition on maintaining such by 31 CFR 103.191(b)(3)(i) will be used
transactions through the account, other accounts will not have a significant by Federal agencies and certain self-
than those necessary to close the impact on a substantial number of small regulatory organizations to verify
account. A covered financial institution entities. In addition, all U.S. persons, compliance by covered financial
may reestablish an account closed under including U.S. financial institutions, institutions with the provisions of 31
the proposed rule if it determines that should currently exercise some degree CFR 103.191. The class of financial
the account will not be used to provide of due diligence in order to comply with institutions affected by the disclosure
banking services indirectly to U.S. sanctions programs administered requirement is identical to the class of
Multibanka. FinCEN specifically solicits by OFAC, which can easily be modified financial institutions affected by the
comment on the requirement under the to monitor for the direct and indirect recordkeeping requirement. The
proposed rule that a covered financial use of correspondent accounts by collection of information is mandatory.
institution block indirect access to Multibanka. Thus, the special due
diligence that would be required by this Description of Affected Financial
Multibanka once such indirect access is
rulemaking—i.e., the one-time Institutions: Banks, broker-dealers in
identified.
transmittal of notice to correspondent securities, futures commission
3. Reporting Not Required accountholders, and the screening of merchants and introducing brokers, and
Section 103.191(b)(3) of the proposed transactions to identify any indirect use mutual funds maintaining
rule clarifies that the rule does not of correspondent accounts—is not correspondent accounts.
impose any reporting requirement upon expected to impose a significant Estimate Number of Affected
any covered financial institution that is additional economic burden upon small Financial Institutions: 5,000.
not otherwise required by applicable U.S. financial institutions. FinCEN
Estimated Average Annual Burden
law or regulation. A covered financial invites comments from members of the
Hours Per Affected Financial
institution must, however, document its public who believe there will be a
Institution: The estimated average
compliance with the requirement that it significant economic impact on small
entities. burden associated with the collection of
notify its correspondent accountholders
information in this proposed rule is one
that they may not provide Multibanka VI. Paperwork Reduction Act hour per affected financial institution.
with access to the correspondent
account maintained at the covered The collection of information Estimated Total Annual Burden:
financial institution. contained in this proposed rule is being 5,000 hours.
submitted to the Office of Management
IV. Request for Comments FinCEN specifically invites comments
and Budget for review in accordance
on: (a) Whether the proposed collection
FinCEN invites comments on all with the Paperwork Reduction Act of
of information is necessary for the
aspects of the proposal to prohibit the 1995 (44 U.S.C. 3507(d)). Comments on
proper performance of the mission of
opening or maintaining of the collection of information should be
sent (preferably by fax (202–395–6974)) FinCEN, including whether the
correspondent accounts for or on behalf information shall have practical utility;
of Multibanka, and specifically invites to Desk Officer for the Department of the
Treasury, Office of Information and (b) the accuracy of FinCEN’s estimate of
comments on the following matters: the burden of the proposed collection of
1. The appropriate form, scope, and Regulatory Affairs, Office of
Management and Budget, Paperwork information; (c) ways to enhance the
timing of the notice to correspondent
Reduction Project (1506), Washington, quality, utility, and clarity of the
accountholders that would be required
DC 20503 (or by e-mail to information required to be maintained;
under the rule;
2. The appropriate scope of the Alexander_T._Hunt@omb.eop.gov), with (d) ways to minimize the burden of the
proposed requirement for a covered a copy to FinCEN by mail or e-mail at required collection of information,
financial institution to take reasonable the addresses previously specified. including through the use of automated
steps to identify any indirect use of its Comments on the collection of collection techniques or other forms of
correspondent accounts by Multibanka; information should be received by May information technology; and (e)
3. The appropriate steps a covered 26, 2005. In accordance with the estimates of capital or start-up costs and
financial institution should take once it requirements of the Paperwork costs of operation, maintenance, and
identifies an indirect use of one of its Reduction Act of 1995, 44 U.S.C. purchase of services to maintain the
correspondent accounts by Multibanka; 3506(c)(2)(A), and its implementing information.
and regulations, 5 CFR 1320, the following
VII. Executive Order 12866
4. The impact of the proposed special information concerning the collection of
measure upon any legitimate information as required by 31 CFR This proposed rule is not a significant
transactions conducted with Multibanka 103.191 is presented to assist those regulatory action for purposes of
by U.S. persons and entities, foreign persons wishing to comment on the Executive Order 12866, ‘‘Regulatory
persons, entities, and governments, and information collection. Planning and Review.’’
multilateral organizations doing The collection of information in this
legitimate business with persons, proposed rule is in 31 CFR List of Subjects in 31 CFR Part 103
entities, or Latvia, or operating a 103.191(b)(2)(i) and 31 CFR
103.191(b)(3)(i). The disclosure Administrative practice and
legitimate business in Latvia.
requirement in 31 CFR 103.191(b)(2)(i) procedure, Banks and banking, Brokers,
V. Regulatory Flexibility Act is intended to ensure cooperation from Counter-money laundering, Counter-
It is hereby certified that this correspondent accountholders in terrorism, and Foreign banking.
proposed rule will not have a significant denying Multibanka access to the U.S. Authority and Issuance
economic impact on a substantial financial system, as well as to increase
number of small entities. FinCEN awareness within the international For the reasons set forth in the
understands that Multibanka maintains financial community of the risks and preamble, part 103 of title 31 of the
correspondent accounts with few deficiencies of Multibanka. The Code of Federal Regulations is proposed
institutions in the United States. Thus, information required to be maintained to be amended as follows:

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Federal Register / Vol. 70, No. 79 / Tuesday, April 26, 2005 / Proposed Rules 21369

PART 103—FINANCIAL provide Multibanka with access to the • Federal e-rulemaking portal: http://
RECORDKEEPING AND REPORTING correspondent account maintained at www.regulations.gov. Follow the
OF CURRENCY AND FINANCIAL the covered financial institution; and instructions for submitting comments.
TRANSACTIONS (B) Taking reasonable steps to identify • E-mail:
any indirect use of its correspondent regcomments@fincen.treas.gov. Include
1. The authority citation for part 103 accounts by Multibanka to the extent RIN 1506-AA82 in the subject line of the
is revised to read as follows: that such indirect use can be message.
Authority: 12 U.S.C. 1829b and 1951–1959; determined from transactional records • Mail: FinCEN, P.O. Box 39, Vienna,
31 U.S.C. 5311–5314, 5316–5332; title III, maintained in the covered financial VA 22183. Include RIN 1506–AA82 in
secs. 311, 312, 313, 314, 319, 326, 352, Pub. institution’s normal course of business. the body of the text.
L. 107–56, 115 Stat. 307. (ii) A covered financial institution Instructions: It is preferable for
2. Subpart I of part 103 is proposed shall take a risk-based approach when comments to be submitted by electronic
to be amended by adding new § 103.191, deciding what, if any, other due mail because paper mail in the
as follows: diligence measures it should adopt to Washington, DC, area may be delayed.
guard against the indirect use of its Please submit comments by one method
§ 103.191 Special measures against correspondent accounts by Multibanka. only. All submissions received must
Multibanka. (iii) A covered financial institution include the agency name and the
(a) Definitions. For purposes of this that obtains knowledge that a Regulatory Information Number (RIN)
section: correspondent account is being used by for this rulemaking. All comments
(1) Correspondent account has the the foreign bank to provide indirect received will be posted without change
same meaning as provided in access to Multibanka, shall take all to http://www.fincen.gov, including any
§ 103.175(d)(1)(ii). appropriate steps to block such indirect personal information provided.
(2) Covered financial institution has access, including, where necessary, Comments may be inspected at FinCEN
the same meaning as provided in terminating the correspondent account. between 10 a.m. and 4 p.m. in the
§ 103.175(f)(2) and also includes: (3) Recordkeeping and reporting. (i) A FinCEN reading room in Washington,
(i) A futures commission merchant or covered financial institution is required DC. Persons wishing to inspect the
an introducing broker registered, or to document its compliance with the comments submitted must request an
required to register, with the notice requirement set forth in appointment by telephone at (202) 354–
Commodity Futures Trading paragraph (b)(2)(i)(A) of this section. 6400 (not a toll-free number).
Commission under the Commodity (ii) Nothing in this section shall FOR FURTHER INFORMATION CONTACT:
Exchange Act (7 U.S.C. 1 et seq.); and require a covered financial institution to Regulatory Policy and Programs
(ii) An investment company (as report any information not otherwise Division, FinCEN, (800) 949–2732.
defined in section 3 of the Investment required to be reported by law or SUPPLEMENTARY INFORMATION:
Company Act of 1940 (15 U.S.C. 80a–3)) regulation.
that is an open-end company (as defined Dated: April 21, 2005.
I. Background
in section 5 of the Investment Company William J. Fox, A. Statutory Provisions
Act (15 U.S.C. 80a–5)) and that is Director, Financial Crimes Enforcement
registered, or required to register, with On October 26, 2001, the President
Network. signed into law the Uniting and
the Securities and Exchange [FR Doc. 05–8279 Filed 4–21–05; 1:18 pm] Strengthening America by Providing
Commission under section 8 of the BILLING CODE 4810–02–P Appropriate Tools Required to Intercept
Investment Company Act (15 U.S.C.
and Obstruct Terrorism Act of 2001 (the
80a–8).
(3) Multibanka means any branch, USA PATRIOT Act), Public Law 107–
DEPARTMENT OF THE TREASURY 56. Title III of the USA PATRIOT Act
office, or subsidiary of joint stock
amends the anti-money laundering
company Multibanka operating in 31 CFR Part 103
provisions of the Bank Secrecy Act
Latvia or any other jurisdiction.
(4) Subsidiary means a company of RIN 1506–AA82 (BSA), codified at 12 U.S.C. 1829b, 12
which more than 50 percent of the U.S.C. 1951–1959, and 31 U.S.C. 5311–
Financial Crimes Enforcement 5314, 5316–5332, to promote the
voting stock or analogous equity interest Network; Amendment to the Bank
is owned by another company. prevention, detection, and prosecution
Secrecy Act Regulations—Imposition of international money laundering and
(b) Requirements for covered financial of Special Measure Against VEF Banka
institutions—(1) Prohibition on direct the financing of terrorism. Regulations
use of correspondent accounts. A AGENCY: Financial Crimes Enforcement implementing the BSA appear at 31 CFR
covered financial institution shall Network (FinCEN), Treasury. Part 103. The authority of the Secretary
terminate any correspondent account ACTION: Notice of proposed rulemaking.
of the Treasury (‘‘the Secretary’’) to
that is established, maintained, administer the BSA and its
administered, or managed in the United SUMMARY: FinCEN is issuing this notice implementing regulations has been
States for, or on behalf of, Multibanka. of proposed rulemaking to impose a delegated to the Director of FinCEN.1
(2) Special due diligence of special measure against joint stock Section 311 of the USA PATRIOT Act
correspondent accounts to prohibit company VEF Banka (VEF) as a (‘‘section 311’’) added section 5318A to
indirect use. (i) A covered financial financial institution of primary money the BSA, granting the Secretary the
institution shall apply special due laundering concern, pursuant to the authority, upon finding that reasonable
diligence to its correspondent accounts authority contained in 31 U.S.C. 5318A. grounds exist for concluding that a
that is reasonably designed to guard DATES: Written comments on the notice foreign jurisdiction, institution, class of
against their indirect use by Multibanka. of proposed rulemaking must be transactions, or type of account is of
At a minimum, that special due submitted on or before May 26, 2005.
1 Therefore, references to the authority of the
diligence must include: ADDRESSES: You may submit comments,
Secretary of the Treasury under section 311 of the
(A) Notifying correspondent identified by RIN 1506-AA82, by any of USA PATRIOT Act apply equally to the Director of
accountholders that they may not the following methods: FinCEN.

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