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FIL-15-95 Attachment B

[Federal Register: January 3, 1995 (Volume 60, Number 1)]

[Rules and Regulations ]

[Page 234-238]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]



 

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DEPARTMENT OF THE TREASURY


 

31 CFR Part 103


 

RIN 1505-AA46


 

 

Amendment to the Bank Secrecy Act Regulations Relating to Orders

for Transmittals of Funds by Financial Institutions


 

AGENCY: Financial Crimes Enforcement Network, Treasury.


 

ACTION: Final rule.


 

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SUMMARY: This final rule requires banks and nonbank financial

institutions that act as transmittors' financial institutions and

intermediary financial institutions in transmittals of funds to include

certain information in transmittal orders sent to receiving financial

institutions. A companion final rule (the final recordkeeping rule),

published elsewhere in today's Federal Register, requires financial

institutions to collect and retain the information that, under this

final rule, must be included with transmittal orders.

The final recordkeeping rule sets forth collection of information

and recordkeeping requirements with respect to certain transmittals of

funds by financial institutions. The amount and type of information

required to be collected and retained depends upon the type of

financial institution, its role in a particular transaction, the amount

of the transaction and whether the parties to the transaction are

established customers of the financial institution. To ensure a full

understanding of this final rule, the reader is encouraged to review

its provisions together with those of the final recordkeeping rule.

This final rule is promulgated by Treasury under the Annunzio-Wylie

Anti-Money Laundering Act of 1992 (Annunzio-Wylie), which is part of

the statute generally referred to as the Bank Secrecy Act. Annunzio-

Wylie authorizes the Secretary of the Treasury to require financial

institutions to maintain appropriate procedures to comply with the Bank

Secrecy Act and guard against money laundering, and to carry out anti-

money laundering programs. The final recordkeeping rule is promulgated

jointly by the Board of Governors of the Federal Reserve System

(Federal Reserve Board) and by Treasury pursuant to a special statutory

requirement under Annunzio-Wylie. The authority of the Secretary to

administer the Bank Secrecy Act has been delegated to the Director of

the Financial Crimes Enforcement Network (FinCEN).


 

EFFECTIVE DATE: January 1, 1996.


 

FOR FURTHER INFORMATION CONTACT: FinCEN, Office of Financial

Enforcement ((202) 622-0400): A. Carlos Correa, Assistant Director for

Rules and Regulations; Roger Weiner, Deputy Director; Peter Djinis,

Director; FinCEN, Office of Legal Counsel: Stephen R. Kroll, Legal

Counsel (703) 905-3534; Nina A. Nichols, Attorney-Advisor, (703) 905-

3598.


 

SUPPLEMENTARY INFORMATION:


 

Background


 

This final rule is promulgated by Treasury under 31 U.S.C. 5318

(a)(2) and (h), which are part of the statute generally referred to as

the Bank Secrecy Act (Pub. L. 91-508, codified at 12 U.S.C. 1829b and

1951-1959, and 31 U.S.C. 5311-5329), and which were added to the Bank

Secrecy Act by Annunzio-Wylie. 31 U.S.C. 5318 (a)(2) and (h) authorize

the Secretary of the Treasury to require financial institutions to

maintain appropriate procedures to comply with the Bank Secrecy Act and

guard against money laundering, and to carry out anti-money laundering

programs. The final recordkeeping rule is promulgated jointly by the

Federal Reserve Board and by Treasury pursuant to a special statutory

requirement for such joint issuance contained in 12 U.S.C. 1829b(b),

added to the Bank Secrecy Act by section 1515 of Annunzio-Wylie. The

authority of the Secretary to administer the Bank Secrecy Act has been

delegated to the Director of FinCEN.

On August 31, 1993, Treasury and the Federal Reserve Board jointly

issued a proposed recordkeeping rule (58 FR 46014) requiring financial

institutions to obtain and retain information relating to certain

transmittals of funds. Treasury also issued a companion proposed travel

rule (58 FR 46021, August 31, 1993), which was subsequently modified

(58 FR 51269, October 1, 1993), proposing to require any transmittor's

financial institution involved in a transmittal of funds to include in

its corresponding transmittal order:

(1) The name and address of the transmittor and the transmittor's

deposit account number, if the payment were ordered from a deposit

account;

[[Page 235]]


 

(2) The amount of the transmittal of funds;

(3) The execution date of the transmittal order;

(4) The identity of the recipient's financial institution; and,

(5) Either the name and address or the account number of the

recipient, if received with the transmittal order.

The proposed travel rule would have required any receiving

financial institution acting as an intermediary financial institution

to include in its corresponding transmittal order the following

information, if received from the sender:

(1) The name and address of the transmittor and the deposit account

number of the transmittor;

(2) The amount of the transmittal of funds;

(3) The execution date of the transmittal order;

(4) The identity of the recipient's financial institution;

(5) Either the name and address or the account number of the

recipient, if received with the transmittal order; and,

(6) Either the name and address or the numerical identifier of the

transmittor's financial institution.


 

Overview


 

This final rule will assist law enforcement investigations of money

laundering involving transmittals of funds by requiring users of

transmittals of funds to provide additional identifying information.

Together with the final recordkeeping rule, this final rule will help

remedy the difficulties presently encountered by law enforcement in

cases involving transmittals of funds in which the transmittal orders

do not include the transmittors' and recipients' names or other

identifying information, and cases involving transmittals of funds in

which such identifying information is not conveyed to intermediary

financial institutions. The requirement that transmittal orders include

complete transmittor information, as well as recipient information

received by the financial institution with the transmittal order, may

discourage money launderers from attempting to abuse the payment and

message systems and should complicate their ability to do so.

Treasury will monitor experience under this final rule to assess

its usefulness to law enforcement and its effect on the cost and

efficiency of the payments system. Within 36 months of the effective

date, Treasury will review the effectiveness of this final rule and

will consider making any appropriate modifications.


 

Comments


 

One hundred thirteen (113) comments were received in response to

the proposed recordkeeping rule and the proposed travel rule. Treasury

has carefully considered each comment in drafting this final rule.


 

Effect of Proposed Changes to Fedwire System


 

The proposed travel rule provided for a thirty (30) day comment

period concluding on October 4, 1993. Many of the commenters noted that

they could neither comment nor initiate changes to their internal wire

transfer systems until the Federal Reserve Board announced its proposed

changes in the Fedwire format. Treasury believes that the comments it

received relating to Fedwire were helpful, and these comments have been

taken into account in framing this final rule.

Commenters on the proposed travel rule were particularly concerned

with the difficulty of including the required information on Fedwire,

which, unlike the Clearing House Interbank Payments System (CHIPS)

(operated by the New York Clearing House) and the Society for Worldwide

Interbank Financial Telecommunications (S.W.I.F.T.) system, does not

have sufficient space in the fields in which to include complete

originator and beneficiary information. Commenters also noted that it

would be difficult to map information to Fedwire from S.W.I.F.T., CHIPS

and other proprietary systems, and to comply with the proposed travel

rule's requirements by the proposed effective date.

One commenter suggested that the proposed travel rule be withdrawn.

This commenter characterized the proposed travel rule as unworkable and

premature because the Fedwire format had to be expanded, and

conventions and protocols coordinated before the proposed travel rule

could issue. Other commenters raised similar concerns.

As more fully discussed below, this final rule recognizes the

difficulty that financial institutions will have in including all of

the required information within the Fedwire format, and makes

appropriate allowances. In light of these allowances, and because the

Federal Reserve Board has adopted an expanded Fedwire format (published

elsewhere in today's Federal Register), this final rule is promulgated

at the appropriate time.


 

Effective Date


 

The proposed travel rule provided for an effective date twelve

months following publication of a final rule. Many commenters believed

that the proposed effective date twelve months after publication of a

final rule was too soon; they suggested that no effective date be

announced until the Federal Reserve Board had published proposed

changes to Fedwire, and that any proposed effective date take into

account those proposed changes. Alternatively, commenters suggested

that the effective date be delayed until twelve months following

implementation of Fedwire format changes. Finally, one bank suggested

that the effective date of the proposed rule coincide with the

effective date of changes to the Fedwire format.

The effective date of this final rule and of the recordkeeping rule

is January 1, 1996. As noted, this final rule allows for the fact that

a financial institution will not be able to include all otherwise

required information in Fedwire transfers until the format changes have

been implemented by that institution.


 

Mapping Issues


 

The proposed travel rule would have required that certain

information be included, at the time of transmittal, in a transmittal

order transmitted to a financial institution by any means, including

any funds transfer system (e.g., Fedwire, S.W.I.F.T. and CHIPS) or

other system for transmittals of funds. This would have meant, for

example, that a bank receiving a S.W.I.F.T. message would have been

obligated to include all required information, if received, in its

corresponding Fedwire transmittal order, and that any originator's bank

issuing a Fedwire transmittal order would have had to include all of

the required information in that order.

Currently, the Fedwire fields designated for originator and

beneficiary information do not contain sufficient space to include all

of the information required by this final rule. However, the Federal

Reserve Board, the Federal Deposit Insurance Corporation, the National

Credit Union Administration, the Office of the Comptroller of the

Currency, and the Office of Thrift Supervision have issued a policy

encouraging banks to use optional fields where possible to include

complete originator and beneficiary information in Fedwire payment

orders. A similar statement was issued by the Federal Financial

Institutions Examination Council (FFIEC). (See, FFIEC Statement dated

March 11, 1993, 58 FR 14400, March 17, 1993.)

While many commenters acknowledged that complete originator and

beneficiary information could be included in S.W.I.F.T. and CHIPS

payment orders, they objected to the use [[Page 236]] of optional

Fedwire fields to include such information. The commenters observed

that the proposed travel rule failed to designate which optional fields

should contain which items of information and failed to assign priority

to such items in the event that available optional fields could not

accommodate all required information. Commenters believed that the lack

of industry standards prescribing placement of originator and

beneficiary data in optional fields would result in confusion and

inefficiency, producing erroneous entries, advices and misapplication

of funds. Commenters also noted that the use of optional fields would

require excessive manual intervention in what is largely an automated

system, causing costly inefficiencies by delaying pass-through

payments, which, according to one commenter, make up 85% of all

transfers.

Many commenters suggested the formation of a joint task force

including representatives of the financial community, Treasury and the

Federal Reserve Board to establish industry standards for the use of

optional fields in Fedwire and a timetable for implementation.

The Federal Reserve Board published its Proposed Expansion of the

Fedwire Funds Transfer Format on December 1, 1993 (58 FR 63366), and a

finalized expanded Fedwire format is published elsewhere in today's

Federal Register. Implementation is to be completed by year-end 1997.

Once implemented by financial institutions, the modified Fedwire format

will permit inclusion of complete originator and beneficiary

information. Under this final rule a financial institution will not be

required to include all available information identifying transmittors

and recipients in Fedwire payment orders until the financial

institution has implemented the new Fedwire format. However, Treasury

joins the FFIEC in encouraging financial institutions to include

complete transmittor and recipient information in Fedwire payment

orders using optional fields.


 

Threshold


 

Many nonbank financial institutions commented that the proposed

recordkeeping rule's lack of a threshold exempting smaller value

transfers would make implementation inordinately costly. One commenter

noted that 95% of the two million transmittals it conducted annually

involved less than $1,000; 98% fell below $3,000; and, 99.96% fell

below $10,000. Commenters complained that the enormous expense they

would incur in obtaining, maintaining and transmitting data for smaller

value transmittals could not be justified by any benefit to law

enforcement. Other commenters argued that the absence of any threshold

would make it impossible to conduct transmittals in emergencies and in

situations in which a transmittor phones, faxes or writes in funds

transmittal instructions (for example, in the case of a transmittal of

funds to someone whose identification documents have been stolen).

Treasury and the Federal Reserve Board have considered these

comments and have established a threshold of $3,000 for the final

recordkeeping rule. Treasury has determined that the same threshold

should apply to this final rule. Therefore, financial institutions will

not be required to include the specified information in transmittal

orders involving less than $3,000 or the foreign equivalent. (Financial

institutions should determine the U.S. dollar equivalents of transfers

in foreign funds based on the spot exchange rate at the time of a

transfer to determine whether a foreign-denominated transfer exceeds

the $3,000 threshold.)

Treasury presently encourages financial institutions to report to

the appropriate federal law enforcement agency or agencies transmittals

of funds that are structured in amounts of less than $3,000 to evade

the requirements of this final rule and the final recordkeeping rule.

Treasury intends to issue for comment proposed regulations that would

require financial institutions to report suspicious transactions and to

establish anti-money laundering measures, including ``know your

customer'' policies and programs. Treasury will monitor the

effectiveness of such policies and programs, as applied to transmittals

of funds, and will consider future modification of the $3,000 threshold

or other provisions of this final rule, if appropriate and necessary to

counter the evasion of requirements through structuring.


 

Contents of Payment Orders


 

If a transmittal order is funded from an account, the proposed

travel rule would have required the transmittor's financial institution

to include in the transmittal order the following: the name and address

of the transmittor; the transmittor's account number; the amount and

execution date of the transmittal; the identity of the recipient's

financial institution; and either the name and address or the account

number of the recipient (if received with the transmittal order). The

proposed travel rule also would have required any receiving financial

institution acting either as an intermediary bank or an intermediary

financial institution to include in its transmittal order the same

information, if received from the sender.

Several commenters objected to the proposed requirement that the

transmittor's account number be included in the transmittal order.

Commenters noted that such information is relevant only to the

transmittor's financial institution, is regarded by many as

confidential, and increases the risk of fraud if included in a

transmittal order. Commenters questioned law enforcement's need to have

account information on transmittal orders because such information is

easily retrievable through records using the account holder's name. The

inclusion of this information, commenters argued, would clutter

transmittal orders.

Treasury has concluded that the transmittor's account number must

be included in transmittal orders, but only where an account is debited

to fund all or part of the transmittal. This information will be

particularly useful to law enforcement in cases in which delay

occasioned by a search for account information would hinder the success

of an investigation. Inclusion of the information is feasible in both

S.W.I.F.T. and CHIPS messages, and (until proposed Fedwire format

changes are implemented) information can be included in optional

Fedwire fields if there is not sufficient space in the originator

field.

Treasury has determined that the inclusion of account numbers in

transmittal orders will present only a minor increase in the risk of

fraudulent transfers. Banks generally have security procedures that

include passwords, codewords and, in the case of electronic

transmissions, confirmation to ensure that only authorized parties

issue payment orders. These and other protective measures greatly

reduce the potential for fraud, to a level at which that risk does not

outweigh the immediate and tangible benefit to law enforcement derived

from the inclusion of account information in transmittal orders.

With regard to arguments based on the confidentiality of account

numbers, Treasury notes that account numbers are routinely included

(and are certainly not treated as confidential) in cases in which an

account is the recipient of a transmittal of funds. Furthermore,

account numbers are routinely carried on the face of checks and other

payment documents that are widely circulated through and outside of

banks. Finally, Treasury believes that the fact that a

[[Page 237]] transmittor's account number is available through customer

account records does not render the inclusion of information in a

transmittal order superfluous.

Commenters requested clarification whether to record the amounts of

transmittals involving foreign funds in the foreign exchange or its

U.S. dollar equivalent. Treasury does not intend to change industry

practice; therefore, in recording the amount transmitted, a financial

institution may record either the amount of foreign funds or the U.S.

dollar equivalent, in accordance with the financial institution's

standard practice.


 

Bifurcated Transmittal Orders


 

In some instances, to effect payment across multiple time zones, a

bank may have to bifurcate a transmittal order into a cover payment

order and an underlying direct payment order. One commenter noted that

inclusion of a recipient's name and address in both the transmittal

order and the related cover order of the recipient might create a risk

of duplicate payment.

It appears to Treasury that bifurcated transmittal orders are

comprised of two separate transmittals of funds. Generally, the direct

payment order is a transmittal from the originator to the recipient,

and the cover payment order is a bank to bank transmittal, which may be

effected through intermediary banks. In this analysis, the transmittal

order for the cover payment order would not have to identify the

recipient of the direct payment order, only the recipient bank. If

appropriate, Treasury will consider issuing guidance on this question

in the future.


 

Closed Systems


 

The proposed travel rule would have required any receiving

intermediary financial institution accepting a transmittal order to

include in a corresponding transmittal order either the name and

address or the numerical identifier of the transmittor's financial

institution. The proposed travel rule also would have required that any

transmittor's financial institution, as well as any receiving

intermediary financial institution, accepting a transmittal order to

include in a corresponding transmittal order the identity of the

recipient's financial institution.

Many commenters noted the difficulty of identifying the

transmittor's financial institution and the recipient's financial

institution in transmittals through closed systems. A closed system is

a transmittal of funds service that permits a recipient to pick up

transmitted funds at any location within the closed system. Such a

service can be either entirely domestic or international and does not

rely on banks or other outside financial institutions to effect payment

to the intended recipient; transmittals of funds are handled entirely

by the service's own agents. Finally, and most important, complete

records relating to any closed system transmittal of funds are

maintained in one central location.

Commenters also noted that the requirement to identify the

transmittor's financial institution might increase the risk of fraud

and abuse. For example, the closed system agent serving as the

recipient's financial institution could identify and contact the closed

system agent that served as the transmittor's financial institution,

and establish a funds transmittal service that would neither be

conducted by the closed system nor be subject to its control.

Commenters also noted that identification of the recipient's financial

institution is difficult or impossible in most cases, because the

transmittor may not know where the recipient will pick up the

transmitted funds.

Treasury believes that the potential for fraud as described by the

commenters may be best addressed by the closed systems and their agents

themselves. This final rule requires that the transmittor's financial

institution be identified in the transmittal order in all cases.

However, in cases involving closed systems as described above, the

requirement to identify the recipient's financial institution may be

satisfied by including the closed system's name in the transmittal

order. Although such information will not identify the specific closed

system office that served as the recipient's financial institution, law

enforcement's needs will be adequately met by records that are

maintained and made available to law enforcement as required by

regulation.


 

Executive Order 12866


 

Treasury finds that this final rule is not a significant rule for

purposes of Executive Order 12866. This final rule is not anticipated

to have an annual effect on the economy of $100 million or more. It

will not affect adversely in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, public

health or safety, or state, local, or tribal governments or

communities. It creates no inconsistencies with, nor does it interfere

with actions taken or planned by other agencies. Finally, it raises no

novel legal or policy issues. A cost and benefit analysis is therefore

not required.


 

Regulatory Flexibility Act


 

It is hereby certified under section 605(b) of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq., that this final rule will not

have a significant economic impact on a substantial number of small

entities.

The small entities that will be affected by this final rule include

small banks and nonbank money transmitting businesses. This final rule

exempts transmittals of funds in amounts of less than $3,000; this

exemption should particularly benefit nonbank providers of money

transmitting services that handle smaller value transfers. Treasury

does not believe that compliance with this final rule will require

small entities to have specialized professional skills that are not

generally available to them.


 

Paperwork Reduction Act


 

The collection of information requirements contained in this final

rule have been submitted to the Office of Management and Budget for

review in accordance with the Paperwork Reduction Act of 1980 (44

U.S.C. 3504(h)). Comments on the collection of information and the

burden estimate should be directed to FinCEN, Office of Legal Counsel,

2070 Chain Bridge Road, Vienna, VA 22182, or to the Office of

Management and Budget, Paperwork Reduction Project (1505-0063),

Washington, D.C. 20503.


 

Drafting Information


 

The principal author of this document is FinCEN. Technical

assistance was also provided by the Federal Reserve Board and the

Department of Justice.


 

List of Subjects in 31 CFR Part 103


 

Administrative practice and procedure, Banks and banking, Brokers,

Currency, Foreign banking, Foreign currencies, Gambling,

Investigations, Penalties, Reporting and recordkeeping requirements,

Securities.


 

Authority and Issuance


 

For the reasons set forth in the preamble, 31 CFR Part 103 is

amended as set forth below:


 

PART 103--FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND

FOREIGN TRANSACTIONS


 

1. The authority citation for Part 103 continues to read as

follows:


 

Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5329.


 

2. Section 103.33 is amended by adding new paragraph (g) to read as

follows: [[Page 238]]



 

Sec. 103.33 Records to be made and retained by financial institutions.


 

* * * * *

(g) With respect to a transmittal of funds in the amount of $3,000

or more by a financial institution:

(1) The transmittor's financial institution shall include in the

transmittal order, at the time it is sent to the receiving financial

institution, the following information:

(i) The name and, if the payment is ordered from an account, the

account number of the transmittor;

(ii) The address of the transmittor, except for a transmittal order

through Fedwire until such time as the bank that sends the order to the

Federal Reserve Bank completes its conversion to the expanded Fedwire

format;

(iii) The amount of the transmittal order;

(iv) The execution date of the transmittal order;

(v) The identity of the recipient's financial institution;

(vi) As many of the following items as are received with the

transmittal order:3


 

\3\For transmittals of funds effected through the Federal

Reserve's Fedwire funds transfer system by a financial institution,

only one of the items is required to be included in the transmittal

order, if received with the sender's transmittal order, until such

time as the bank that sends the order to the Federal Reserve Bank

completes its conversion to the expanded Fedwire message format.

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(A) The name and address of the recipient;

(B) The account number of the recipient;

(C) Any other specific identifier of the recipient; and

(vii) Either the name and address or numerical identifier of the

transmittor's financial institution.

(2) A receiving financial institution that acts as an intermediary

financial institution, if it accepts a transmittal order, shall include

in a corresponding transmittal order at the time it is sent to the next

receiving financial institution, the following information, if received

from the sender:

(i) The name and the account number of the transmittor;

(ii) The address of the transmittor, except for a transmittal order

through Fedwire until such time as the bank that sends the order to the

Federal Reserve Bank completes its conversion to the expanded Fedwire

format;

(iii) The amount of the transmittal order;

(iv) The execution date of the transmittal order;

(v) The identity of the recipient's financial institution;

(vi) As many of the following items as are received with the

transmittal order:4


 

\4\For transmittals of funds effected through the Federal

Reserve's Fedwire funds transfer system by a financial institution,

only one of the items is required to be included in the transmittal

order, if received with the sender's transmittal order, until such

time as the bank that sends the order to the Federal Reserve Bank

completes its conversion to the expanded Fedwire message format.

---------------------------------------------------------------------------


 

(A) The name and address of the recipient;

(B) The account number of the recipient;

(C) Any other specific identifier of the recipient; and

(vii) Either the name and address or numerical identifier of the

transmittor's financial institution.


 

Dated: December 19, 1994.

Stanley E. Morris,

Director, Financial Crimes Enforcement Network.

[FR Doc. 94-31982 Filed 12-30-94; 8:45 am]

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