Notice2024-12728
Agency Information Collection Activities; Proposed Renewal; Comment Request; Renewal Without Change of Due Diligence Programs for Correspondent Accounts for Foreign Financial Institutions and for Private Banking Accounts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 11, 2024
Issuing agencies
Treasury DepartmentFinancial Crimes Enforcement Network
Abstract
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comments on the proposed renewal, without change, of existing information collection requirements related to Bank Secrecy Act regulations that require certain banks, brokers or dealers in securities, futures commission merchants, introducing brokers in commodities, and mutual funds (each a "covered financial institution") to establish and maintain due diligence programs for foreign financial institutions and for private banking accounts. The required due diligence programs include: appropriate, specific, risk- based, and, where necessary, enhanced policies, procedures, and controls reasonably designed to enable the covered financial institution to detect and report, on an on-going basis, money laundering conducted through or involving any correspondent accounts established, maintained, administered or managed by such covered financial institution in the United States for a foreign financial institution; and policies, procedures, and controls that are reasonably designed to detect and report any known or suspected money laundering or suspicious activity conducted through or involving any private banking account that is established, maintained, administered, or managed in the United States by such covered financial institution. The due diligence programs are required to be part of covered financial institutions' anti-money laundering programs. This request for comments is made pursuant to the Paperwork Reduction Act of 1995 (PRA).
Full Text
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<title>Federal Register, Volume 89 Issue 113 (Tuesday, June 11, 2024)</title>
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[Federal Register Volume 89, Number 113 (Tuesday, June 11, 2024)]
[Notices]
[Pages 49273-49277]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12728]
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DEPARTMENT OF THE TREASURY
Financial Crimes Enforcement Network
Agency Information Collection Activities; Proposed Renewal;
Comment Request; Renewal Without Change of Due Diligence Programs for
Correspondent Accounts for Foreign Financial Institutions and for
Private Banking Accounts
AGENCY: Financial Crimes Enforcement Network (FinCEN), Treasury.
ACTION: Notice and request for comments.
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SUMMARY: As part of its continuing effort to reduce paperwork and
respondent burden, FinCEN invites comments on the proposed renewal,
without change, of existing information collection requirements related
to Bank Secrecy Act regulations that require certain banks, brokers or
dealers in securities, futures commission merchants, introducing
brokers in commodities, and mutual funds (each a ``covered financial
institution'') to establish and maintain due diligence programs for
foreign financial institutions and for private banking accounts. The
required due diligence programs include: appropriate, specific, risk-
based, and, where necessary, enhanced policies, procedures, and
controls reasonably designed to enable the covered financial
institution to detect and report, on an on-going basis, money
laundering conducted through or involving any correspondent accounts
established, maintained, administered or managed by such covered
financial institution in the United States for a foreign financial
institution; and policies, procedures, and controls that are reasonably
designed to detect and report any known or suspected money laundering
or suspicious activity conducted through or involving any private
banking account that is established, maintained, administered, or
managed in the United States by such covered financial institution. The
due diligence programs are required to be part of covered financial
institutions' anti-money laundering programs. This request for comments
is made pursuant to the Paperwork Reduction Act of 1995 (PRA).
DATES: Written comments are welcome and must be received on or before
August 12, 2024.
ADDRESSES: Comments may be submitted by any of the following methods:
<bullet> Federal E-rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments. Refer to Docket Number
FINCEN-2023-0011 and Office of Management and Budget (OMB) control
number 1506-0046.
<bullet> Mail: Policy Division, Financial Crimes Enforcement
Network, P.O. Box 39, Vienna, VA 22183. Refer to Docket Number FINCEN-
2023-0011 and OMB control number 1506-0046.
Please submit comments by one method only. Comments will be
reviewed consistent with the PRA and applicable OMB regulations and
guidance. All comments submitted in response to this notice will become
a matter of public record. Therefore, you should submit only
information that you wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: FinCEN's Regulatory Support Section at
1-800-767-2825 or electronically at <a href="/cdn-cgi/l/email-protection#294f5b4a694f40474a4c47074e465f"><span class="__cf_email__" data-cfemail="1d7b6f7e5d7b74737e7873337a726b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Provisions
The legislative framework generally referred to as the Bank Secrecy
Act (BSA) consists of the Currency and Foreign Transactions Reporting
Act of 1970, as amended by the Uniting and
[[Page 49274]]
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) \1\ and
other legislation, including the Anti-Money Laundering Act of 2020 (AML
Act).\2\ The BSA is codified at 12 U.S.C. 1829b and 1951-1960 and 31
U.S.C. 5311-5314 and 5316-5336, and notes thereto, with implementing
regulations at 31 CFR chapter X.
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\1\ USA PATRIOT Act, Public Law 107-56.
\2\ The AML Act was enacted as Division F, sections 6001-6511,
of the William M. (Mac) Thornberry National Defense Authorization
Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 3388 (NDAA).
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The BSA authorizes the Secretary of the Treasury (Secretary) to,
inter alia, require financial institutions to keep records and file
reports that are determined to have a high degree of usefulness in
criminal, tax, or regulatory matters, risk assessments or proceedings,
or in the conduct of intelligence or counter-intelligence activities to
protect against terrorism, and to implement anti-money laundering/
countering the financing of terrorism (AML/CFT) programs and compliance
procedures.\3\ The authority of the Secretary to administer the BSA has
been delegated to the Director of FinCEN.\4\
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\3\ Section 358 of the USA PATRIOT Act expanded the purpose of
the BSA by including a reference to reports and records ``that have
a high degree of usefulness in intelligence or counterintelligence
activities to protect against international terrorism.'' See 12
U.S.C. 1829b(a). Section 6101 of the AML Act further expanded the
purpose of the BSA to cover such matters as preventing money
laundering, tracking illicit funds, assessing risk, and establishing
appropriate frameworks for information sharing. See 31 U.S.C. 5311.
\4\ Treasury Order 180-01 (Jan. 14, 2020).
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Section 312 of the USA PATRIOT Act added subsection (i) to 31
U.S.C. 5318 of the BSA. Section 312 mandates that each financial
institution that establishes, maintains, administers, or manages a
private banking account or a correspondent account in the United States
for non-U.S. persons establish appropriate, specific, and, where
necessary, enhanced, due diligence policies, procedures, and controls
that are reasonably designed to detect and report instances of money
laundering through those accounts. The regulations implementing the due
diligence requirements for maintaining foreign correspondent accounts
and private banking accounts are found at 31 CFR 1010.610 and 31 CFR
1010.620, respectively, and apply to covered financial institutions
defined as certain banks, brokers or dealers in securities, futures
commission merchants, introducing brokers in commodities, and mutual
funds.\5\
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\5\ 31 CFR 1010.605(e).
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A. 31 CFR 1010.610--Due Diligence Programs for Correspondent Accounts
for Foreign Financial Institutions
Under 31 CFR 1010.610(a), covered financial institutions are
required to establish due diligence policies, procedures, and controls
that include each of the following for any correspondent account
established, maintained, administered, or managed in the United States
for a foreign financial institution: (i) determining whether any such
correspondent account is subject to enhanced due diligence (EDD)
requirements specified in 31 CFR 1010.610(b); (ii) assessing the money
laundering risks presented by each such correspondent account based on
a consideration of all relevant factors; \6\ and (iii) applying risk-
based procedures and controls to each such correspondent account
reasonably designed to detect and report known or suspected money
laundering activity, including a periodic review of the correspondent
account activity sufficient to determine consistency with information
obtained about the type, purpose, and anticipated activity of the
account.
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\6\ Relevant factors include, as appropriate: (i) the nature of
the foreign financial institution's business and the markets it
serves; (ii) the type, purpose, and anticipated activity of such
correspondent account; (iii) the nature and duration of the covered
financial institution's relationship with the foreign financial
institution (and any of its affiliates); (iv) the AML and
supervisory regime of the jurisdiction that issued the charter or
license to the foreign financial institution, and, to the extent
that information regarding such jurisdiction is reasonably
available, of the jurisdiction in which any company that is an owner
of the foreign financial institution is incorporated or chartered;
and (v) information known or reasonably available to the covered
financial institution about the foreign financial institution's AML
record. 31 CFR 1010.610(a)(2).
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Under 31 CFR 1010.610(b), covered financial institutions are
required to establish EDD policies, procedures, and controls when
establishing, maintaining, administering, or managing a correspondent
account in the United States for certain foreign banks, as described in
31 CFR 1010.610(c).\7\ The EDD shall include procedures designed to
ensure that the covered financial institution, at a minimum, takes
reasonable steps to:
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\7\ The EDD procedures are required for any correspondent
account maintained for a foreign bank that operates pursuant to: (i)
an offshore banking license; (ii) a banking license issued by a
foreign country that has been designated as non-cooperative with
international AML principles or procedures by an intergovernmental
group or organization of which the United States is a member and
with which designation the U.S. representative to the group or
organization concurs; or (iii) a banking license issued by a foreign
country that has been designated by the Secretary as warranting
special measures due to money laundering concerns. 31 CFR
1010.610(c).
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(1) Conduct enhanced scrutiny of such correspondent account to
guard against money laundering and to identify and report any
suspicious transactions in accordance with applicable law and
regulation. This enhanced scrutiny shall reflect the risk assessment of
the account and shall include, as appropriate: (i) obtaining and
considering information relating to the foreign bank's AML program to
assess the risk of money laundering presented by the foreign bank's
correspondent account; (ii) monitoring transactions to, from, or
through the correspondent account in a manner reasonably designed to
detect money laundering and suspicious activity; (iii) if it is a
payable-through account, obtaining information from the foreign bank
about the identity of persons with authority to direct transactions
through the correspondent account, as well as information about the
sources and beneficial owners of funds or other assets in the payable-
through account; \8\
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\8\ See 31 CFR 1010.610(b)(1)(iii)(B).
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(2) Determine whether the foreign bank for which the correspondent
account is established or maintained in turn maintains correspondent
accounts for other foreign banks that use the foreign correspondent
account established or maintained by the covered financial institution
and, if so, take reasonable steps to obtain information relevant to
assess and mitigate money laundering risks associated with the foreign
bank's correspondent accounts for other foreign banks, including, as
appropriate, the identity of those foreign banks; and
(3) Determine, for any correspondent account established or
maintained for a foreign bank whose shares are not publicly traded,\9\
the identity of each owner \10\ of the foreign bank and the nature and
extent of each owner's ownership interest.
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\9\ The term ``publicly traded'' is defined at 31 CFR
1010.610(b)(3)(ii)(B).
\10\ The term ``owner'' is defined at 31 CFR
1010.610(b)(3)(ii)(A).
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Under 31 CFR 1010.610(d), covered financial institutions are
required to establish special procedures when due diligence or EDD
cannot be performed, including when the covered financial institution
should refuse to open the account, suspend transaction activity, file a
suspicious activity report, or close the account.
[[Page 49275]]
B. 31 CFR 1010.620--Due Diligence Programs for Private Banking Accounts
Under 31 CFR 1010.620, covered financial institutions are required
to establish due diligence policies, procedures, and controls that, at
a minimum, are designed to ensure that the covered financial
institutions take reasonable steps to: (i) ascertain the identity of
all nominal and beneficial owners of a private banking account; \11\
(ii) ascertain whether any nominal or beneficial owner is a senior
foreign political figure; (iii) ascertain the source(s) of funds
deposited into a private banking account and the purpose and expected
use of the account; and (iv) review the activity of the account to
ensure that it is consistent with the information obtained about the
client's source of funds and with the stated purpose and expected use
of the account, as needed to guard against money laundering, and to
report in accordance with applicable law and regulation, any known or
suspected money laundering or suspicious activity conducted to, from,
or through a private banking account.
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\11\ Private banking account means an account (or any
combination of accounts) maintained at a covered financial
institution that: (i) requires a minimum aggregate deposit of funds
or other assets of not less than $1,000,000; (ii) is established on
behalf of or for the benefit of one or more non-U.S. persons who are
direct or beneficial owners of the account; and (iii) is assigned
to, or is administered or managed by, in whole or in part, an
officer, employee, or agent of a covered financial institution
acting as a liaison between the covered financial institution and
the direct or beneficial owner of the account. 31 CFR 1010.605(m).
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Under 31 CFR 1010.620(c), in the case of a private banking account
for which a senior foreign political figure is a nominal or beneficial
owner, covered financial institutions are required to conduct enhanced
scrutiny of the account that is reasonably designed to detect and
report transactions that may involve the proceeds of foreign
corruption.\12\
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\12\ See 31 CFR 1010.620(c)(2) for the definition of the term
``proceeds of foreign corruption.''
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Under 31 CFR 1010.620(d), covered financial institutions are
required to establish special procedures when appropriate due diligence
cannot be performed, including when the covered financial institution
should refuse to open the account, suspend transaction activity, file a
suspicious activity report, or close the account.
II. Paperwork Reduction Act of 1995 <SUP>13</SUP>
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\13\ Public Law 104-13, 44 U.S.C. 3506(c)(2)(A).
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Title: Due diligence programs for correspondent accounts for
foreign financial institutions and private banking accounts (31 CFR
1010.610 and 31 CFR 1010.620).
OMB Control Number: 1506-0046.
Form Number: Not applicable.
Abstract: FinCEN is issuing this notice to renew the OMB control
number for the regulations that require covered financial institutions
to establish and maintain due diligence programs for correspondent
accounts for foreign financial institutions and for private banking
accounts.
Affected Public: Businesses or other for-profit institutions, and
non-profit institutions.
Type of Review: Renewal without change of a currently approved
information collection.
Frequency: As required.
Estimated Number of Respondents: 16,232 financial institutions.\14\
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\14\ Table 1 below breaks down the types of financial
institutions covered by this notice.
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Estimated Recordkeeping Burden:
In Part 1 of this notice, FinCEN describes the distribution of the
estimated number of covered financial institutions, by type. In Part 2,
FinCEN proposes for review and comment a renewal of the calculation of
the annual PRA burden that includes a scope and methodology similar to
that used in the 2020 notice to renew this information collection.\15\
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\15\ See FinCEN, Agency Information Collection Activities;
Proposed Renewal; Comment Request; Renewal Without Change of Anti-
Money Laundering Programs; Due Diligence Programs for Correspondent
Accounts for Foreign Financial Institutions and for Private Banking
Accounts, 85 FR 61104 (Sept. 29, 2020).
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Part 1. Distribution of the Financial Institutions Covered by This
Notice
The distribution of financial institutions, by type, covered by
this notice is reflected in table 1 below:
Table 1--Financial Institutions Covered by This Notice, by Type
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Type of institution Count
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Banks with a Federal functional regulator (FFR) \a\............ 9,800
Banks lacking an FFR \b\....................................... 600
Brokers or dealers in securities \c\........................... 3,478
Mutual funds \d\............................................... 1,400
Futures commission merchants and introducing brokers in 954
commodities \e\...............................................
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Total...................................................... 16,232
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\a\ This estimate is based on call report data, as publicly available
for download at the end of June 2023, from the Federal Financial
Institutions Examination Council (FFIEC) for certain types of banks,
savings associations, thrifts, trust companies (<a href="https://cdr.ffiec.gov/public/pws/downloadbulkdata.aspx">https://cdr.ffiec.gov/public/pws/downloadbulkdata.aspx</a>) and from the NCUA for credit unions
(<a href="https://www.ncua.gov/analysis/credit-union-corporate-call-report-data">https://www.ncua.gov/analysis/credit-union-corporate-call-report-data</a> data).
\b\ This estimate of active entries as of year-end 2023 incorporates
data from both public and non-public sources, including: Call Reports;
various State banking/financial institution regulators' websites and
directories; the Federal Reserve Board of Governors' Master Account
and Services database (<a href="https://federalreserve.gov/paymentsystems/master-account-and">https://federalreserve.gov/paymentsystems/master-account-and</a> services-database-exisiting-access.htm); and data
from the OCIF (Oficina del Comisionado de Instituciones Financieras);
and was derived in consultation with staff from the Internal Revenue
Service's Small Business/Self-Employed Division.
\c\ Estimate based on December 2023 file downloaded from data maintained
by the U.S. Securities and Exchange Commission's (SEC). SEC, Company
Information About Active Broker-Dealers available at <a href="https://www.sec.gov/help/foiadocsbdfoia">https://www.sec.gov/help/foiadocsbdfoia</a> (accessed on Feb. 28, 2024).
\d\ This estimate of the number of active mutual funds as of year-end
2023 is based on Form N-CEN filings received by the SEC through
January 20, 2023, as represented by data downloaded from SEC Open
Data. SEC, Open Data, available at <a href="https://www.sec.gov/dera/data/form-ncen-data-sets">https://www.sec.gov/dera/data/form-ncen-data-sets</a> (accessed Feb. 29, 2024).
\e\ The number of futures commissions merchants as of December 31, 2023,
was obtained from data available through the Commodity Futures Trading
Commission (CFTC). CFTC, Financial Data for Futures Commission
Merchants, available at <a href="https://www.cftc.gov/MarketReports/financialfcmdata/index.htm">https://www.cftc.gov/MarketReports/financialfcmdata/index.htm</a> (accessed Mar. 1, 2024). To prevent double
counting in burden estimates, 35 covered financial institutions that
are also affected entities as broker-dealers were removed from the
count; the count of introducing brokers in commodities as of year-end
2023 was provided by the CFTC.
In connection with a variety of initiatives FinCEN is undertaking
to implement the AML Act, FinCEN intends to conduct, in the future,
additional assessments of the PRA burden associated with BSA
requirements.
Part 2. Annual PRA Burden and Cost
The scope of the annual PRA burden and cost estimates in this
renewal is limited to maintaining and updating the due diligence
programs as part of current AML program requirements for covered
financial institutions. Due to the practical challenges of obtaining
the total number of correspondent accounts maintained by covered
financial
[[Page 49276]]
institutions for foreign financial institutions subject to general due
diligence requirements, the number of correspondent accounts maintained
for foreign banks subject to EDD requirements, and the number of
private banking accounts, the scope of the annual PRA burden is limited
to the annual burden of (i) maintaining and updating a due diligence
program as part of the AML program for foreign correspondent accounts
and private banking accounts, and (ii) securing approval of the program
by an appropriate level of senior management.
FinCEN continues estimating the annual hourly burden of maintaining
and updating the due diligence program for foreign correspondent
accounts and private banking accounts at two hours per covered
financial institution. This estimate covers the burden of (i)
maintaining and updating the due diligence program to take into
consideration any regulatory changes and any potential modifications
required by changes in the types of foreign correspondent accounts or
private banking accounts maintained, or by changes in the operations or
organizational structure of the foreign financial institutions for
which a covered financial institution maintains accounts, as well as
changes to the organizational structure of private banking accounts
(one hour), and (ii) presenting the updated due diligence program to
the appropriate level of senior management of the financial institution
for approval (one hour).
FinCEN's estimate of the annual PRA burden, therefore, is 32,464
hours, as detailed in table 2 below:
Table 2--Burden Associated With Updating and Maintaining the Due Diligence Program and Obtaining Senior
Management Approval of the Program
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Number of Time per financial Aggregate burden hours per
Type of financial financial institution (hours) step Total
institution institutions ---------------------------------------------------------- burden
(see table 1) Maintenance Approval Maintenance Approval hours
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Banks with an FFR........... 9,800 1 1 9,800 9,800 19,600
Banks without an FFR........ 600 1 1 600 600 1,200
Brokers or dealers in 3,478 1 1 3,478 3,478 6,956
securities.................
Mutual funds................ 1,400 1 1 1,400 1,400 2,800
Futures commission merchants 954 1 1 954 954 1,908
and introducing brokers in
commodities................
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Total Burden Hours...... .............. .............. ........... 16,232 16,232 32,464
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FinCEN is utilizing the same fully-loaded composite hourly wage
rate of $106.30 utilized in the notice of proposed rulemaking (NPRM)
entitled Customer Identification Programs for Registered Investment
Advisers and Exempt Reporting Companies, which was published on May 21,
2024.\16\
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\16\ See FinCEN and SEC, NPRM Customer Identification Programs
for Registered Investment Advisers and Exempt Reporting Advisers, 89
FR 44571 (May 21, 2024). Specifically, as set out on 89 FR 44590,
table 1, footnote 1, the wage rate applied here is a general
composite hourly wage ($74.86), scaled by a private-sector benefits
factor of 1.42 ($106.30 = $74.86 x 1.42), that incorporates the mean
wage data (available for download at <a href="https://www.bls.gov/oes/tables.htm">https://www.bls.gov/oes/tables.htm</a>, ``May 2022--National industry-specific and by
ownership'') associated with the six occupational codes (11-1010:
Chief Executives; 11-3021: Computer and Information Systems
Managers; 11-3031: Financial Managers; 13-1041: Compliance Officers;
23-1010: Lawyers and Judicial Law Clerks; 43-3099: Financial Clerks,
All Other) for each of the nine groupings of NAICS industry codes
that FinCEN determined are most directly comparable to its eleven
categories of covered financial institutions as delineated in 31 CFR
parts 1020 to 1030. The benefit factor is 1 plus the benefit/wages
ratio, where as of Dec. 2023, Total Benefits = 29.6 and Wages and
salaries = 70.4 (29.6/70.4 = 0.42) based on the private industry
workers series data downloaded from <a href="https://www.bls.gov/web/ecec/ecec-private-dataset.xlsx">https://www.bls.gov/web/ecec/ecec-private-dataset.xlsx</a>, accessed Mar. 22, 2024.
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The total estimated cost of the annual PRA burden is $3,450,923.20,
as reflected in table 3 below:
Table 3--Total Cost of the Annual PRA Burden
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Steps Hourly burden Hourly cost Total cost
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Maintaining and updating the program......................... 16,232 $106.30 $1,725,461.60
Board of directors/senior management approval of the program. 16,232 106.30 1,725,461.60
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Total Cost............................................... .............. .............. 3,450,923.20
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Estimated Recordkeeping Burden: The average estimated annual PRA
burden, measured in hours per respondent, is two hours (one burden hour
to annually maintain and update the due diligence program, and one hour
to annually obtain senior management approval of the due diligence
program).
Estimated Number of Respondents: 16,232, as set out in table 1.
Estimated Total Annual Responses: 16,232 revised due diligence
programs for foreign correspondent accounts and private banking
accounts annually; and 16,232 due diligences programs for foreign
correspondent accounts and private banking accounts approved by senior
management each year, as set out in table 2.
Estimated Total Annual Recordkeeping Burden: The estimated total
annual PRA burden is 32,464 hours, as set out in table 2.
Estimated Total Annual Recordkeeping Cost: The estimated total
annual PRA cost is $3,450,923.20, as set out in table 3.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid OMB control number. Records required to be
retained under the BSA must be retained for five years.
[[Page 49277]]
Request for Comments: Comments submitted in response to this notice
will be summarized and/or included in the request for OMB approval. All
comments will become a matter of public record. Comments are invited
on: (i) whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information shall have practical utility; (ii) the accuracy of the
agency's estimate of the burden of the collection of information; (iii)
ways to enhance the quality, utility, and clarity of the information to
be collected; (iv) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology; and (v)
estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of services to provide information.
Andrea M. Gacki,
Director, Financial Crimes Enforcement Network.
[FR Doc. 2024-12728 Filed 6-10-24; 8:45 am]
BILLING CODE 4810-02-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.