Order: Imposition of special measure prohibiting transmittals of funds involving Bitzlato (88 FR 3919)

Bitcoin Research — Law, Regulation, Markets & Origins (2026)

Fincen

2023-01-23

Document text

Research, not advice. Part of the Bitcoin research archive (October 2026). Claims labelled unverified, contested or fringe are reported, not endorsed; statuses of bills and rules are as of the date checked. Government, court and patent records are public domain; the research notes are CC BY 4.0.

Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations                                                    3919

                                             the RECA Trust Fund shall terminate on                  Accordingly, the Department will not                   DEPARTMENT OF THE TREASURY
                                             the date that is 2 years after the law’s                accept electronically submitted claims.
                                             date of enactment. In addition, a claim                                                                        Financial Crimes Enforcement Network
                                                                                                        Claims bearing a date on and after
                                             to which RECA applies shall be barred                   June 11, 2024, as indicated by the
                                             unless the claim is filed not later than                                                                       31 CFR Part 1010
                                                                                                     postmark or stamp by another
                                             2 years after the date of enactment of the
                                                                                                     commercial carrier, shall be returned to               RIN 1506–AB42
                                             Extension Act. Accordingly, the RECA
                                                                                                     the submitting party due to untimely
                                             Trust Fund terminates on June 8, 2024.
                                                                                                     filing. Claims returned due to untimely                Imposition of Special Measure
                                             The statute of limitations for new RECA
                                                                                                     filing will include a letter from the                  Prohibiting the Transmittal of Funds
                                             claims tolls on that date. The Extension
                                                                                                     Radiation Exposure Compensation                        Involving Bitzlato
                                             Act is silent regarding whether the
                                             RECA Trust Fund will be available for                   Program indicating the Department is                   AGENCY: Financial Crimes Enforcement
                                             meritorious claims submitted at the                     barred by statute from reviewing the                   Network (FinCEN), Treasury.
                                             statutory filing deadline.                              claim or awarding compensation.
                                                                                                                                                            ACTION: Order.
                                             Statement of Policy                                        This policy applies to all claims
                                                                                                     received at the filing deadline,                       SUMMARY: FinCEN is issuing an order,
                                                The Department is publishing this                    including the resubmission of a                        pursuant to the Combating Russian
                                             document to articulate its policy that all              previously denied claim under Sec. 8(b)                Money Laundering Act, as amended by
                                             timely filed, meritorious RECA claims                   of RECA. Resubmissions of previously                   the National Defense Authorization Act
                                             against the RECA Trust Fund will be                     denied claims bearing a postmark or                    for Fiscal Year 2022, to prohibit certain
                                             paid, consistent with the requirements                  stamp by another commercial carrier                    transmittals of funds (as defined in this
                                             under RECA. Several stakeholders have                   dated June 11, 2024, or later shall be                 order) by any covered financial
                                             expressed concern that the termination                  returned due to untimely filing.                       institution involving Bitzlato Limited
                                             of the RECA Trust Fund on the deadline                                                                         (Bitzlato), a financial institution
                                             for claims may render it unavailable to                    For timely filed claims in which a                  operating outside of the United States
                                             pay meritorious claims. Once a claim is                 share of the compensation award is held                determined to be of a primary money
                                             filed with the Department, RECA                         in trust pending documentation to                      laundering concern in connection with
                                             imposes statutory obligations for the                   establish the eligibility of a potential               Russian illicit finance.
                                             Department to adjudicate the claim                      beneficiary, such shares of                            DATES: This action is effective February
                                             within 12 months, and issue payment                     compensation shall be deemed rejected                  1, 2023.
                                             on any approved claims within 6 weeks                   consistent with 28 CFR 79.75(b) if                     FOR FURTHER INFORMATION CONTACT: The
                                             of approval. RECA Sec. 6(d). These                      sufficient documentation to establish                  FinCEN Resource Center, 1–800–767–
                                             statutory obligations will require the                  the eligibility of the potential                       2825 or electronically at [email protected].
                                             RECA Trust Fund to remain available                     beneficiary is not received by June 10,
                                                                                                                                                            SUPPLEMENTARY INFORMATION:
                                             until the Department has determined                     2024, or within the 12-month
                                             entitlement for all timely filed claims,                determination period provided by the                   I. Summary of Order
                                             including claims filed on the statutory                 Act, whichever falls later.                               This order: (1) sets forth FinCEN’s
                                             filing deadline.
                                                                                                        This document is intended to inform                 determination that Bitzlato Limited
                                                In addition, several stakeholders have                                                                      (Bitzlato), a virtual asset service
                                                                                                     the public of the Department’s policy
                                             noted that the revised statutory filing                                                                        provider (VASP) incorporated in the
                                                                                                     regarding procedures for filing claims at
                                             deadline, June 8, 2024, is a Saturday.                                                                         Hong Kong Special Administrative
                                                                                                     the statutory deadline. The Department
                                             The Department shall deem claims that                                                                          Region of the People’s Republic of
                                             bear a date of June 10, 2024, on the                    will post this document to its RECA
                                                                                                     website at www.justice.gov/civil/                      China (Hong Kong), is a financial
                                             postmark or stamp by another                                                                                   institution operating outside of the
                                             commercial carrier, timely filed upon                   common/reca, and continue to
                                                                                                     announce this policy at outreach events                United States that is of primary money
                                             their receipt by the Radiation Exposure                                                                        laundering concern 1 in connection with
                                             Compensation Program. This policy is                    and in communications with claimants,
                                                                                                     counsel, and support groups.                           Russian illicit finance; and (2) prohibits
                                             consistent with methods for computing                                                                          certain transmittals of funds by any
                                             time set forth at Federal Rule of Civil                    This document supersedes the                        domestic financial institution or
                                             Procedure 6(a), and with standard                       Department’s notification of Procedures                involving Bitzlato by any covered
                                             agency practice where a deadline falls                  for Claims Submitted at the Statutory                  financial institution. Bitzlato, a
                                             on a weekend or holiday establishing                    Filing Deadline, 85 FR 79118 (Dec. 9,                  convertible virtual currency (CVC)
                                             the next business day as the deadline for               2020).                                                 exchanger (a type of VASP) with
                                             submissions. The postmark requirement                                                                          significant operations in Russia that
                                             is consistent with the Department’s                       Dated: January 12, 2023.
                                                                                                     C. Salvatore D’Alessio, Jr.,
                                                                                                                                                            offers exchange and Peer-to-Peer (P2P)
                                             existing procedures for submitting                                                                             services, is a financial institution of
                                             claims at 28 CFR 79.71(a) and (b),                      Director, Torts Branch, Civil Division.                primary money laundering concern in
                                             requiring a claim to be submitted in                    [FR Doc. 2023–00865 Filed 1–20–23; 8:45 am]            connection with Russian illicit finance,
                                             writing on a standard claim form and                    BILLING CODE 4410–12–P                                 namely, through: (1) its facilitation of
                                             mailed to the address of the Radiation                                                                         deposits and funds transfers by Russian
                                             Exposure Compensation Program. In

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                                             addition, this policy allows claimants to                                                                        1 The application of FinCEN’s authorities in this
                                             affirmatively establish the timely filing                                                                      order is specific only to section 9714 of the
                                             of their claim by obtaining a postmark                                                                         Combating Russian Money Laundering Act. It is not
                                             or other mailing date stamp consistent                                                                         intended to reflect the applicability of, or
                                             with the filing deadline.                                                                                      obligations under, any provision of the Bank
                                                                                                                                                            Secrecy Act (BSA) or its implementing regulations,
                                                The regulation at § 79.71(a) requires                                                                       and FinCEN has not considered the extent to which
                                             that claims be mailed to the Department.                                                                       Bitzlato does business in the United States.

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                                             3920                Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations

                                             ransomware groups 2 or affiliates, such                        Special measures one through four of                  associated with P2P exchanges.9
                                             as Conti; 3 and (2) its facilitation of                     section 5318A(b), commonly known as                      Bitzlato further notes that its P2P
                                             transactions with Russian darknet                           section 311 of the USA PATRIOT Act,                      services include arranging ‘‘storage of
                                             markets on behalf of both darknet                           describe additional recordkeeping,                       digital assets . . . to ensure and
                                             customers and darknet vendors.                              information collection, and reporting                    guarantee the execution of transactions
                                                                                                         requirements that the Secretary may                      between registered users’’ and that it
                                             II. Background
                                                                                                         impose on covered U.S. financial                         retains the ability to ‘‘freeze [a user’s]
                                             A. Statutory Provisions                                     institutions. The fifth special measure,                 digital asset wallet,’’ indicating that
                                                Section 9714(a) of the Combating                         codified at 31 U.S.C. 5318A(b)(5),                       Bitzlato has custody of its users’ digital
                                             Russian Money Laundering Act, as                            allows the Secretary, in consultation                    wallets and the CVC held in those
                                             amended by section 6106(b) of the                           with the Secretary of State, the Attorney                accounts.10
                                             National Defense Authorization Act for                      General, and the Chairman of the Board
                                                                                                         of Governors of the Federal Reserve                         In light of those activities, Bitzlato is
                                             Fiscal Year 2022 (hereafter section
                                             9714(a)),4 provides, in relevant part, that                 System, to prohibit, or impose                           a financial institution within the
                                             should the Secretary of the Treasury                        conditions upon, the opening or                          meaning of section 9714(a). Section
                                             determine reasonable grounds exist for                      maintaining in the United States of                      9714(a) does not expressly define the
                                             concluding one or more financial                            correspondent or payable-through                         term ‘‘financial institution.’’ However,
                                             institutions operating outside of the                       accounts by any domestic financial                       FinCEN has long defined that term to
                                             United States is of primary money                           institution or domestic financial agency                 apply to foreign and domestic ‘‘money
                                             laundering concern in connection with                       for, or on behalf of, a foreign banking                  transmitters’’, including persons that
                                             Russian illicit finance, the Secretary, by                  institution, if such correspondent                       accept and transmit value that
                                             order, regulation, or otherwise as                          account or payable-through account                       substitutes for currency, such as CVC.11
                                             permitted by law may require domestic                       involves one or more financial                           CVC exchangers, such as Bitzlato, are
                                             financial institutions and domestic                         institutions operating outside of the                    ‘‘money transmitters,’’ and therefore,
                                             financial agencies to take 1 or more of                     United States that the Secretary has                     financial institutions within the
                                             the special measures described in 31                        found to be of primary money                             meaning of section 9714(a).
                                             U.S.C. 5318A(b) 5 or prohibit, or impose                    laundering concern.
                                             conditions upon, certain transmittals of                                                                                Based on public and non-public
                                                                                                         B. Bitzlato                                              information available to FinCEN,
                                             funds (to be defined by the Secretary) by
                                             any domestic financial institution or                          According to its website, Bitzlato is a               Bitzlato operates outside the United
                                             domestic financial agency, if such                          ‘‘modern company working in the field                    States and, although identified as
                                             transmittal of funds involves any such                      of blockchain technologies and                           ‘‘registered under the laws of Hong
                                             institution, The authority of the                           [CVC].’’ 7 It was previously known as                    Kong,’’ Bitzlato has significant ties to
                                             Secretary of the Treasury (the Secretary)                   ChangeBot. Bitzlato is a Russian-                        and connections with Russia. Under
                                             to administer both section 9714(a) and                      affiliated CVC exchanger—a category of                   ‘‘Section 1. Terms and Definitions’’ in
                                             the Bank Secrecy Act (BSA) has been                         VASP—that offers exchange and P2P                        Bitzlato’s ‘‘Terms of Service’’ page on its
                                             delegated to FinCEN.6                                       services, allowing users to exchange                     website, Bitzlato is identified as
                                                                                                         Bitcoin (BTC), Ether (ETH), Bitcoin Cash                 ‘‘registered under the laws of Hong
                                                2 A ransomware ‘‘strain’’ is the specific kind of        (BCH), Litecoin (LTC), Dash (DASH),                      Kong’’ and ‘‘located at Unit 617, 6/F,
                                             malware that encrypts or exfiltrates data from a            Tether (USDT), Monolith Ruble (MCR)                      131–132 Connaught Road West, Solo
                                             victim in order to perpetrate cyber extortion. The          and Dogecoin (DOGE) without
                                             developers and owners of a strain are referred to as                                                                 workshops, Hong Kong.’’ 12 A review of
                                             a ransomware ‘‘gang’’ or ‘‘group,’’ and may use a           intermediaries and hidden                                publicly available material, however,
                                             strain for their own extortion activities or lease          commissions.                                             shows that Bitzlato’s actual location of
                                             access to the strain to other illicit actors (affiliates)      As set out on its website, Bitzlato is                operation, its employees, and a job
                                             for use in a ‘‘Ransomware as a Service’’ (RaaS)             an online platform that provides
                                             model. As a specific strain becomes less effective                                                                   opening are in Russia, with job
                                             or more detectable, the group may develop a new             exchange and P2P services. Through its                   descriptions written in Russian. Indeed,
                                             strain to continue its business. For example, ‘‘Conti       exchange services, Bitzlato organizes
                                                                                                                                                                  a study performed by a blockchain
                                             v2’’ is the second strain developed by the Conti            ‘‘trading for digital assets, their
                                             ransomware group, the first of which is ‘‘Conti.’’ A                                                                 analysis company expressly identifies
                                                                                                         derivatives and other market
                                             ransomware actor who has used both the Conti                                                                         Bitzlato as having a presence in Moscow
                                             strain and the Phobos strain in their attacks is both       instruments’’ with ‘‘[t]rading conducted
                                                                                                                                                                  City (the financial district of Moscow,
                                             a Conti and a Phobos affiliate.                             via standard contracts or orders.’’ 8 In
                                                3 As noted above, in fn. 3, Conti refers to both a       parallel, through its P2P services,                      Russia) during the period between 2019
                                             criminal group, the eponymous ransomware strains            Bitzlato operates as ‘‘an advertising                    and 2021,13 and FinCEN has found no
                                             it spawned, and other affiliated actors.
                                                                                                         board for digital assets traders’’ offering              information on current or former
                                                4 Section 9714 (as amended) can be found in a
                                                                                                         wallet, escrow and other related services                employees or positions in Hong Kong.
                                             note to 31 U.S.C. 5318A.
                                                5 31 U.S.C. 5318A of the United States Code                                                                         9 Id.
                                             grants the Secretary the authority, upon finding that       for Terrorism & Financial Intelligence re-delegated        10 Id.
                                             reasonable grounds exist for concluding that one or         to the Director of FinCEN the authority of the
                                                                                                                                                                     11 See 31 U.S.C. 5312; 31 CFR 1010.100(t)(3),
                                             more financial institutions operating outside of the        Secretary under section 9714.
                                             United States is of primary money laundering                  7 Unless noted otherwise, all references to            1010.100(ff), 1010.605(f)(iv); see also FIN–2019–
                                             concern, to require domestic financial institutions         Bitzlato’s official website, web page, or policies are   G001, ‘‘Application of FinCEN’s Regulations to
                                                                                                                                                                  Certain Business Models Involving Convertible

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                                             and domestic financial agencies to take certain             sourced from pages and links accessed via https://
                                             ‘‘special measures.’’                                       bitzlato.com, including https://bitzlato.com/terms-      Virtual Currencies’’ (May 9, 2019); FIN–2013–G001,
                                                6 Pursuant to Treasury Order 180–01 (January 14,         of-service-bitzlato/, https://bitzlato.com/anti-         ‘‘Application of FinCEN’s Regulations to Persons
                                             2020), the authority of the Secretary of the Treasury       money-laundering-policy-and-know-your-client-            Administering, Exchanging, or Using Virtual
                                             to administer the BSA, including but not limited to         policy, and https://bitzlato.com/knowledgebase/          Currencies’’ (March 18, 2013).
                                                                                                                                                                     12 Bitzlato, https://bitzlato.com/terms-of-service-
                                             31 U.S.C. 5318A, has been delegated to the Director         how_to_buy_cryptocurrency/ (last accessed January
                                             of FinCEN. On August 11, 2022, and in accordance            2023).                                                   bitzlato/ (last accessed January 2022).
                                             with Treasury Order 101–05 (September 20, 2022)               8 Bitzlato, https://bitzlato.com/terms-of-service-        13 Chainalysis, ‘‘The 2022 Crypto Crime Report,’’

                                             and 31 U.S.C. 321(b), Treasury’s Under Secretary            bitzlato/ (last accessed January 2023).                  at 128 (February 2022).

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                                                               Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations                                                  3921

                                             III. Finding That Bitzlato Is a Financial               as in the 2021 JBS meatpacking plant                    exchanges and darknet markets,
                                             Institution Operating Outside of the                    attack.17 The U.S. government has long                  representing the laundering of victim
                                             United States of Primary Money                          engaged on efforts to counter the threat                payments by Russian and Russia-
                                             Laundering Concern in Connection                        of ransomware, and on April 1, 2015,                    affiliated actors through Russian and
                                             With Russian Illicit Finance                            the President issued Executive Order                    Russia-affiliated services. As such,
                                                Based on public and non-public                       (E.O.) 13694 (‘‘Blocking the Property of                ransomware is a conduit for Russian
                                             information available to FinCEN,                        Certain Persons Engaging in Significant                 illicit finance.
                                             FinCEN finds that reasonable grounds                    Malicious Cyber-Enabled Activities’’), in
                                                                                                                                                             2. Bitzlato’s Ransomware Connections
                                             exist for concluding that Bitzlato, a P2P               which he declared a national emergency
                                             CVC exchanger with significant                          to deal with the threat of the ‘‘increasing                Bitzlato plays a critical role in
                                             operations in Russia, is a financial                    prevalence and severity of malicious                    facilitating transactions for the Conti
                                             institution of primary money laundering                 cyber-enabled activities originating                    ransomware group and other global
                                             concern in connection with Russian                      from, or directed by persons located, in                ransomware actors, including actors that
                                             illicit finance, namely, through: (1) its               whole or in substantial part, outside the               operate out of Russia. As a result,
                                             facilitation of deposits and funds                      United States [that] constitute an                      FinCEN assesses that Bitzlato serves as
                                             transfers by Russian ransomware groups                  unusual and extraordinary threat to the                 a VASP that ultimately enables the
                                             or affiliates, such as Conti; and (2) its               national security, foreign policy, and                  profitability of ransomware attacks and,
                                             facilitation of transactions with Russian               economy of the United States.’’ 18                      at least in the case of Conti, advances
                                             darknet markets on behalf of both                          In 2021, roughly 74 percent of                       the political and economic
                                             darknet customers and darknet vendors.                  ransomware revenue, or over $400                        destabilization interests of the
                                                                                                     million worth of CVC, went to strains                   Government of Russia.
                                             A. Bitzlato Is Used To Facilitate                       highly likely to be affiliated with
                                             Processing and Laundering Proceeds                                                                              a. Conti Ransomware Group
                                                                                                     Russian organizations. Blockchain
                                             From Ransomware Attacks                                 analysis combined with web traffic data                    Conti, a notorious Ransomware-as-a-
                                             1. Background on Ransomware                             further revealed that most of the                       Service (RaaS) group and the
                                                                                                     extorted funds from the ransomware                      eponymous strains of ransomware it
                                                Ransomware is a form of malicious                                                                            offers as a service to affiliated criminals
                                             software (malware) used by an attacker                  attacks were laundered through services
                                                                                                     primarily catering to Russian users.19                  for their use, emerged in December
                                             to block access to a computer system or                                                                         2019.21 Although most such groups take
                                                                                                        The media have reported on banks
                                             data, often by encrypting data or                                                                               steps to obfuscate their connections to
                                                                                                     and stock exchanges being targets for
                                             programs on information technology                                                                              Russia and Russian illicit finance, Conti
                                                                                                     ransomware attacks.20 Further, the U.S.
                                             (IT) systems. Its purpose is to extort                                                                          did not. To the contrary, on February
                                                                                                     financial system is being used to send
                                             ransom payments from victims in                                                                                 25, 2022, Conti pledged allegiance to the
                                                                                                     significant amounts of U.S. funds as
                                             exchange for decrypting the                                                                                     Government of Russia and vowed to
                                                                                                     ransom payments to foreign actors—
                                             information, restoring victims’ access to                                                                       retaliate against international state
                                                                                                     both cybercriminals and nation-state
                                             their systems or data, and/or not                                                                               actors for their support of the
                                                                                                     actors. Consequently, ransomware
                                             disclosing or destroying data or                                                                                Government of Ukraine amidst the
                                                                                                     attacks are a direct threat to the U.S.
                                             programs on IT systems. Ransomware                                                                              Russian invasion.22 Further, a cache of
                                                                                                     economy, to its citizens, and to its
                                             payments are made most often via CVC,                                                                           60,000 leaked chat messages and files
                                                                                                     national security. Moreover, the threat
                                             which are preferred by ransomware                                                                               from Conti appears to link Conti to the
                                                                                                     of ransomware is not limited to the
                                             attackers for their ability to obscure the                                                                      Russian state, including the Russian
                                                                                                     United States, as ransomware attacks are
                                             attackers’ identities, thus aiding in the                                                                       Federal Security Service.23
                                                                                                     on the rise across the globe, posing a
                                             attackers’ ability to launder their                                                                                FinCEN has documented numerous
                                                                                                     significant threat to governments,
                                             criminal proceeds and continue                                                                                  transactions between Conti-associated
                                                                                                     businesses, and institutions on several
                                             attacking victims.14                                                                                            CVC addresses and Bitzlato.
                                                According to open source reporting,                  continents.
                                                                                                        Although ransomware actors and
                                             ransomware attacks have increased                                                                               b. Other Ransomware Groups
                                                                                                     darknet markets are not always state-
                                             exponentially over the last several years,                                                                        Separately, based on blockchain
                                                                                                     affiliated, the notorious ransomware
                                             with an estimated 300 million                                                                                   analysis, other ransomware groups have
                                                                                                     group Conti has significant connections
                                             attempted attacks in the first half of                                                                          used Bitzlato to facilitate transactions
                                                                                                     to Russia and pledged allegiance to
                                             2021 alone, 15 including attacks against                                                                        involving ransomware, including
                                                                                                     Russia on February 25, 2022. Further,
                                             U.S. entities and institutions. These                                                                           ransomware groups based in or linked
                                                                                                     the Hydra darknet market almost
                                             attacks have destabilized private                                                                               to Russia. For example, blockchain
                                                                                                     entirely catered to Russian customers
                                             businesses, healthcare facilities, school                                                                       analysis has identified transactions
                                                                                                     and illicit goods and service providers
                                             districts, and critical infrastructure—                                                                         involving Bitzlato and: (1) Chatex, a
                                                                                                     before it was shut down by law
                                             including domestic energy distribution,                                                                         VASP designated by Treasury’s Office of
                                                                                                     enforcement in April 2022. The illicit
                                             such as in the 2021 Colonial Pipeline                                                                           Foreign Assets Control (OFAC) for
                                                                                                     gains from ransomware attacks can often
                                             attack, 16 and food supply chains, such                                                                         facilitating financial transactions for
                                                                                                     be traced back to Russian-affiliated
                                               14 See, e.g., FIN–2021–A004, ‘‘Advisory on
                                                                                                                                                             ransomware actors; and (2) the RaaS
                                             Ransomware and the Use of the Financial System          do for the country,’’ Washington Post (May 19,          group DarkSide, a Russian-speaking
                                             to Facilitate Ransom Payments’’ (November 8,            2021).

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                                                                                                        17 ‘‘Meatpacker JBS says it paid equivalent of $11     21 Abrams, Lawrence. ‘‘Conti ransomware shows
                                             2021), available at https://www.fincen.gov/sites/
                                             default/files/advisory/2021-11-08/                      mln in ransomware attack,’’ Reuters (June 10, 2021).    signs of being Ryuk’s successor,’’ Bleeping
                                             FinCEN%20Ransomware%20Advisory_FINAL_                      18 This E.O. was amended on December 28, 2016,       Computer (July 9, 2020).
                                             508_.pdf.                                               pursuant to E.O. 13757.                                   22 Bing, Christopher. ‘‘Russia-based ransomware
                                               15 ‘‘Mid-year Update 2021 Cyber Threat Report:           19 Chainalysis, ‘‘The 2022 Crypto Crime Report,’’    group Conti issues warning to Kremlin foes,’’
                                             Cyber threat intelligence for navigating today’s        at 123 (February 2022).                                 Reuters (February 25, 2022).
                                             business reality,’’ Sonicwall.                             20 Egan, Matt. ‘‘Banks and stock exchanges are         23 Burgess, Matt. ‘‘After Declaring Support for
                                               16 Bogage, Jacob. ‘‘Colonial Pipeline CEO says        even bigger targets for ransomware attacks,’’ CNN       Russian Invasion, Conti Ransomware Gang Hit With
                                             paying $4.4 million ransom was the right thing to       (May 12, 2021).                                         Data Leak,’’ Wired (March 18, 2022).

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                                             3922              Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations

                                             group responsible for the Colonial                      B. Bitzlato Is Used To Facilitate Darknet              were attributed to the Hydra darknet
                                             Pipeline Company ransomware incident                    Markets and Scams                                      market alone. That comparison
                                             in May 2021.24 25 Based on blockchain                      In addition to receiving ransomware                 illustrates that Bitzlato either had a
                                             analysis, 76 Bitzlato deposit addresses                 proceeds, Bitzlato’s receiving and                     substantially higher appetite for
                                             received bitcoin (BTC) worth over                       sending transactional activity shows a                 engaging with this illicit darknet market
                                             $300,000 attributed to Chatex. On                       significant connection to counterparties               than a U.S.-registered VASP and/or that
                                             November 8, 2021, OFAC designated                       associated with other suspected illicit                Bitzlato did not have the appropriate
                                             Chatex, pursuant to E.O. 13694, as                      activities, such as darknet markets and                controls to identify and prevent Hydra’s
                                             amended, for its part in facilitating                   scams with ties to and operations in                   illicit activity from flowing through it.
                                             funds transfers for ransomware actors                                                                             Although Hydra has been shut down,
                                                                                                     Russia.
                                             and for providing material support to                      Approximately two-thirds of                         Bitzlato continues to facilitate
                                             SUEX OTC, S.R.O. (SUEX). SUEX, a                        Bitzlato’s top receiving and sending                   transactions for growing Russia-
                                             CVC exchanger located in Moscow City,                                                                          connected darknet markets. As of June
                                                                                                     counterparties are associated with
                                             Russia, was itself designated by OFAC                                                                          2022, Bitzlato’s top counterparties by
                                                                                                     darknet markets or scams. For example,
                                             on September 21, 2021, pursuant to E.O.                                                                        total number of transactions included
                                                                                                     Bitzlato’s top three receiving
                                             13694, as amended, for providing                                                                               three other Russian darknet markets:
                                                                                                     counterparties, by total amount of BTC
                                             material support to the threat posed by                                                                        BlackSprut, OMG!OMG!, and Mega.30
                                                                                                     received between May 2018 and
                                             criminal ransomware actors.26                                                                                  Since Hydra’s closure in April 2022,
                                                                                                     September 2022 were: (1) Binance, a
                                             According to media reporting in 2021,                                                                          these three darknet markets show
                                                                                                     VASP; (2) the Russia-connected darknet
                                             the RaaS group DarkSide, a Russian-                                                                            notably increased transaction volumes
                                                                                                     market Hydra; and (3) the alleged
                                             speaking group responsible for the                                                                             with Bitzlato as one of their top
                                                                                                     Russia-based Ponzi scheme
                                             Colonial Pipeline Company ransomware                                                                           counterparties by total sending and
                                                                                                     ‘‘TheFiniko.’’ Similarly, Bitzlato’s top
                                             incident in May 2021, along with its                                                                           receiving volumes. Bitzlato’s continued
                                                                                                     three sending counterparties, by total
                                             clientele, also used Bitzlato.27 In                                                                            facilitation of Russian darknet markets
                                                                                                     amount of BTC sent between May 2018
                                             addition, the Phobos ransomware group                                                                          further illustrates its ongoing
                                                                                                     and September 2022 were (1) Hydra; (2)
                                             and its affiliates have made at least                                                                          engagement with actors connected with
                                                                                                     Local Bitcoins, a VASP based/
                                             1,063 direct transfers of funds in the                                                                         Russian illicit finance and raises
                                                                                                     incorporated in Finland; and (3)
                                             form of BTC to at least 76 Bitzlato                                                                            primary money laundering concerns.
                                                                                                     ‘‘TheFiniko.’’ The majority of these
                                             deposit addresses identified as having                  receiving and sending counterparties                   C. Bitzlato Has Engaged in a Significant
                                             received funds from Chatex,                             have evident ties to and/or significant                Volume of Russian Illicit Finance
                                             representing 414.84 BTC worth                           operations in Russia. Moreover, FinCEN                 Transactions
                                             approximately $3 million.                               notes that Bitzlato engaged in significant                According to a study performed by a
                                                According to public reporting, a                     transactions with each of these                        blockchain analysis company of seven
                                             spokesperson for Bitzlato denied that it                counterparties—all of whom are                         VASPs associated with Moscow City,
                                             worked with any ransomware criminals                    associated with illicit activities—after               Russia, between 2019 and 2021, Bitzlato
                                             and claimed it was not acquainted with                  publishing its AML/KYC policy (further                 received CVC worth $206 million from
                                             an organization called DarkSide.28                      described below), demonstrating the                    darknet markets, $224 million from
                                             However, even if Bitzlato is not                        permissive or ineffective nature of its                scams, and $9 million from ransomware
                                             knowingly affiliated with DarkSide or                   internal controls.                                     attackers, with the value of transactions
                                             other ransomware groups, FinCEN                            As noted above, dealings with the                   involving Russian illicit finance or
                                             assesses that it provides an enabling                   Russia-connected darknet market Hydra                  otherwise risky sources quantified as 48
                                             environment for such ransomware                         represented a notable percentage of                    percent of all known Bitzlato
                                             criminals to utilize its services to cash               Bitzlato’s business. Bitzlato operated as              transactions.31 This is the largest
                                             out ransomware proceeds due to its                      a facilitator of sales and purchases of
                                             minimal Anti-Money Laundering/                                                                                 proportion of illicit funds received by
                                                                                                     illicit goods and services on behalf of                all seven businesses analyzed during
                                             Countering the Financing of Terrorism                   customers and vendors operating on
                                             (AML/CFT) protocols, solidifying its                                                                           that time, with the second largest being
                                                                                                     Hydra and supported a larger proportion                SUEX, at 37 percent. SUEX, a CVC
                                             reputation as a go-to CVC exchanger for                 of business involving Hydra than
                                             such groups.29                                                                                                 exchanger located in Moscow-City,
                                                                                                     comparable U.S. CVC exchangers. Prior                  Russia, was itself designated by OFAC
                                                                                                     to its designation by OFAC in April                    on September 21, 2021, pursuant to E.O.
                                               24 Kramer, Andrew; Schwirtz, Michael; and
                                                                                                     2022 and its closure in a law                          13694, as amended, for providing
                                             Troianovski, Anton. ‘‘Secret Chats Show How
                                             Cybergang Became a Ransomware Powerhouse,’’             enforcement operation, Russia-                         material support to the threat posed by
                                             N.Y. Times (June 3, 2021).                              connected Hydra was the largest darknet                criminal ransomware actors.
                                               25 Department of State, ‘‘Reward Offers for           market in the world, representing nearly
                                             Information to Bring DarkSide Ransomware Variant        80 percent of all traceable darknet                    D. Bitzlato Does Not Adequately Combat
                                             Co-Conspirators to Justice,’’ (November 4, 2021),                                                              Money Laundering and Illicit Financing
                                             https://www.state.gov/reward-offers-for-
                                                                                                     market transactions in 2021. Bitzlato
                                             information-to-bring-darkside-ransomware-variant-       processed over 1.46 million direct                     on its Platform
                                             co-conspirators-to-justice.                             transfers with the Hydra darknet                         Although Bitzlato’s homepage states
                                               26 Department of the Treasury, ‘‘Treasury
                                                                                                     marketplace between May 2018 and                       that it has a ‘‘Know Your Client [(KYC)]
                                             Continues to Counter Ransomware as Part of              early April 2022, representing
                                             Whole-of-Government Effort; Sanctions                                                                          policy,’’ public reporting shows that
                                                                                                     transactional flows of nearly 20,000 BTC               Bitzlato does not effectively implement

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                                             Ransomware Operators and Virtual Currency
                                             Exchange’’ (November 8, 2021), https://                 sent and received during that timeframe.
                                             home.treasury.gov/news/press-releases/jy0471.           Comparative analysis of Bitzlato to a                     30 Blockchain analysis identifies BlackSprut,
                                               27 Brewster, Thomas. ‘‘As Ransomware Hackers
                                                                                                     large U.S.-registered CVC exchanger                    OMG!OMG! and Mega as Russian darknet markets
                                             Sit On Millions In Extorted Money, America’s                                                                   that offer narcotics and potentially other illicit
                                             Military Is Urged To Hack Back,’’ Forbes (June 5,
                                                                                                     indicates that less than .01 percent of
                                                                                                                                                            goods. Open source reporting has likewise flagged
                                             2021).                                                  the U.S. exchanger’s transactions were                 that these darknet markets are Russian.
                                               28 Id.                                                attributed to darknet markets, whereas 6                  31 Chainalysis, ‘‘The 2022 Crypto Crime Report,’’
                                               29 See Section III.C–D.                               to 8 percent of Bitzlato’s transactions                at 128 (February 2022).

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                                                                Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations                                                    3923

                                             policies and procedures designed to                     activity on the part of its Users [sic].’’ 36          A. The Extent to Which Bitzlato Is Used
                                             combat money laundering and illicit                     Bitzlato further states that it implements             To Facilitate or Promote Money
                                             finance, and in fact, has advertised that               a verification procedure, and employs                  Laundering in Connection With Russian
                                             it lacks such policies, procedures, or                  an official responsible for compliance                 Illicit Finance, Including Through
                                             internal controls.                                      with AML standards, transaction                        Connections to Money Laundering
                                                Notwithstanding its stated AML/KYC                   monitoring and risk assessment.                        Activity by Organized Criminal Groups
                                             policy, Bitzlato advertises the utility of                                                                        The record amply establishes that
                                             ‘‘simple registration’’ and does not                       In light of its advertised ‘‘simple
                                                                                                     registration without KYC’’ and exchange                Bitzlato has significant ties to Russia
                                             collect the types of information                                                                               and facilitates a significant number of
                                             typically used to conduct effective                     processes, Bitzlato’s previously stated
                                                                                                     AML/KYC policy and controls appear to                  money laundering transactions
                                             (AML/CFT).32 As of March 2022,                                                                                 involving Russia-related ransomware
                                             Bitzlato’s website advertised ‘‘simple                  have little impact on its actual
                                                                                                                                                            and Russia-related darknet market
                                             registration without KYC’’ with ‘‘. . .                 operations. In practice, Bitzlato does not
                                                                                                                                                            proceeds.
                                             neither selfies nor passports required.                 appear to be collecting the identifying                   Bitzlato’s significant connections to
                                             Only your email [is] needed . . .’’ for                 information that would be necessary to                 Russia are evidenced by the following:
                                             account creation and transactions on                    facilitate meaningful KYC analysis. The                (1) Moscow, Russia is the listed location
                                             Bitzlato’s platform.33 As of September                  significant quantity of Bitzlato                       for Bitzlato found on public websites,
                                             2022, Bitzlato’s advertisement had                      transactions involving ransomware and                  with a recent study performed by a
                                             become more circumspect, offering                       darknet market actors provides further                 blockchain analysis company expressly
                                             ‘‘simple registration’’ with ‘‘[o]nly your              evidence that Bitzlato is not following                identifying Bitzlato as having a presence
                                             email needed.’’ 34 Nevertheless, neither                its stated AML/KYC policy or                           in Moscow City, Russia (during the
                                             advertisement indicates that Bitzlato                   identifying suspicious transactions in a               period between 2019 and 2021); 37 (2)
                                             requires or collects the types of                       way that would allow it to identify and                the vast majority of its customer base is
                                             information that would be expected or                   halt the use of its platform by illicit                located in Russia; (3) historical Bitzlato
                                             needed as a part of a set of policies and                                                                      website information claimed it was
                                                                                                     actors.
                                             procedures designed to combat money                                                                            created by persons in Russia; (4) a
                                             laundering and illicit finance.                         IV. Analysis Regarding Finding That                    registered address in Hong Kong that is
                                                Additionally, Bitzlato advertises user-              Bitzlato Is a Financial Institution                    a Solo Workshops address—a shared
                                             privacy and anonymity, allowing one to                  Operating Outside of the United States                 workspace that other Russian
                                             buy and sell CVC with ‘‘a P2P fiat-to-                  That Is of Primary Money Laundering                    companies use as their address of
                                             crypto exchange,’’ further stating, ‘‘you               Concern in Connection With Russian                     record; (5) as of May 2022, an internet
                                             exchange fiat money and                                 Illicit Finance                                        job posting for Bitzlato advertised for a
                                             cryptocurrency directly with another                                                                           management position in Russia; and (6)
                                             person.’’ 35 This exchange process                         FinCEN was guided in its analysis by                in providing an example of a means to
                                             allows for transfers to or from a                       the following considerations: (1) the                  purchase or cash out CVC with/to fiat
                                             traditional financial institution, as well              extent to which the institution is used                currency, Bitzlato cites transfers in
                                             as other traditional methods, and                       to facilitate or promote money                         rubles to or from bank accounts with
                                             emphasizes that it does not require                     laundering in connection with Russian                  Sberbank, a prominent Russian financial
                                             users to go through the sort of extensive               illicit finance, including through                     institution that is the subject of Russia-
                                             KYC procedures that are required on                     connections to money laundering                        related sanctions administered and
                                             other exchanges. Furthermore, publicly                  activity by Russian organized criminal                 enforced by OFAC.
                                             available information published by third                groups; (2) the extent to which the                       Furthermore, Bitzlato has significant
                                             parties indicates that, notwithstanding                 institution is used for legitimate                     links to Russian illicit finance and
                                             Bitzlato’s public statements regarding its                                                                     Russian criminal actors. A review of
                                                                                                     business purposes; and (3) the extent to
                                             AML/KYC policy, verification may not                                                                           illicit actors’ direct exposure to Bitzlato
                                                                                                     which action by FinCEN would guard
                                             be required.                                                                                                   shows that a majority of those illicit
                                                On its website as of March 2022,                     against international money laundering
                                                                                                                                                            actors were based in, or had ties to,
                                             Bitzlato purported to maintain an AML/                  and other financial crimes. While these
                                                                                                                                                            Russia and Russia-based cybercriminal
                                             KYC policy designed to prevent and                      considerations were drawn from factors                 forums. Russian ransomware groups or
                                             reduce the potential risks of Bitzlato                  identified in 31 U.S.C. 5318A(c)(2)(B),                affiliates, such as Russia-affiliated Conti,
                                             being involved in any illegal activity,                 taking into account the specific                       have been observed using Bitzlato. In
                                             stating that ‘‘in accordance with                       circumstances of money laundering                      particular, CVC wallet addresses
                                             international and local regulations,                    activities in connection with Russian                  associated with the Conti ransomware
                                             Bitzlato implements effective internal                  illicit finance and the protection of U.S.             strain and its affiliates, including
                                             procedures and mechanisms to prevent                    national security and the U.S. financial               Trickbot, have engaged in significant
                                             money laundering, terrorist financing,                  system, FinCEN is under no obligation                  BTC transactions involving Bitzlato.
                                             drug and human trafficking, the                         pursuant to section 9714(a) to consider                Additionally, Bitzlato had a significant
                                             proliferation of weapons of mass                        any particular factor or set of factors                transaction history with the Russia-
                                             destruction, corruption and bribery and                 when making a finding that a financial                 connected Hydra darknet marketplace
                                             to respond to any form of suspicious                    institution operating outside of the                   and continues to facilitate transactions
                                                                                                     United States is of primary money                      for Russia-connected darknet
                                                                                                                                                            marketplaces BlackSprut, OMG!OMG!,

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                                               32 Bitzlato, https://bitzlato.com (last accessed
                                                                                                     laundering concern in connection with
                                             January 2023).                                                                                                 and Mega. That Bitzlato is registered in
                                               33 Bitzlato, https://bitzlato.com (accessed March     Russian illicit finance.
                                             2022).
                                                                                                                                                            Hong Kong (or that it maintains a
                                               34 Bitzlato, https://bitzlato.com (accessed                                                                  registered office in Hong Kong) does not
                                             September 2022 and last accessed January 2023).                                                                alter FinCEN’s assessment that Bitzlato
                                               35 ‘‘Bitzlato Review,’’ CryptoNews, (accessed           36 Bitzlato, https://bitzlato.com/anti-

                                             March 22, 2022), available at https://                  moneylaundering-policy-and-know-your-client-              37 Chainalysis, ‘‘The 2022 Crypto Crime Report,’’

                                             cryptonews.com/reviews/bitzlato/.                       policy (last accessed January 2023).                   at 128 (February 2022).

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                                             3924              Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations

                                             is of money laundering concern in                       C. The Extent to Which Action by                       A. Whether Similar Action Has Been or
                                             connection with Russian illicit finance.                FinCEN Would Guard Against                             Is Being Taken by Other Nations or
                                             Section 9714(a) does not require that a                 International Money Laundering and                     Multilateral Groups
                                             foreign financial institution be                        Other Financial Crimes                                    FinCEN is unaware of any action that
                                             registered or incorporated in Russia to                    Finding Bitzlato to be a financial                  has been taken or is being taken by other
                                             fall within its scope. The statute only                 institution operating outside of the                   nations or multilateral groups with
                                             requires that FinCEN determine that the                 United States of primary money                         regard to Bitzlato. FinCEN, however,
                                             institution is a primary money                          laundering concern in connection with                  believes that the action will provide a
                                             laundering concern in connection with                   Russian illicit finance, and prohibiting               strong signal to the international
                                             Russian illicit finance. That may occur,                transmittals of funds, will help insulate              community of the risks posed by
                                             as it does in the case of Bitzlato, where               the U.S. financial system from                         Bitzlato and urges counterpart
                                             the financial institution facilitates                   international money laundering and                     jurisdictions to consider such risks in its
                                             money laundering transactions for funds                 other financial crimes. It will further                supervision of VASPs.
                                             derived from illegal activity or the                    reinforce the importance of AML/CFT                    B. Whether the Imposition of Any
                                             proceeds of illegal activity and that                   compliance in the virtual asset space,                 Particular Special Measure Would
                                             those activities have a nexus to Russia.                help protect the national security of the              Create a Significant Competitive
                                             Given Bitzlato’s significant connections                United States, notify financial                        Disadvantage, Including Any Undue
                                             to Russia and links to Russian illicit                  institutions around the world of                       Cost or Burden Associated With
                                             finance and Russian criminal actors, the                Bitzlato’s illicit activity, and set an                Compliance, for Financial Institutions
                                             record demonstrates that, in this case,                 example for other international partners               Organized or Licensed in the United
                                             the statutory threshold under section                   to follow in the fight against illicit                 States
                                             9714(a) is met.                                         finance and criminal actors.
                                                                                                                                                               FinCEN assesses that imposing a
                                                                                                     V. Considerations in Selecting the                     prohibition on certain transmittals of
                                             B. The Extent to Which Such
                                                                                                     Special Measure Prohibiting                            funds involving Bitzlato will not present
                                             Institutions, Transactions, or Types of
                                                                                                     Transmittals of Funds                                  a significant competitive disadvantage
                                             Accounts Are Used for Legitimate
                                             Business Purposes                                          Section 9714(a) does not require                    for financial institutions organized or
                                                                                                     consideration of particular factors in                 licensed in the United States given
                                                The record further amply                             determining which one or more special                  Bitzlato’s relatively small size, and the
                                             demonstrates that Bitzlato’s services are               measures to apply to address an                        relatively limited burden that
                                             used, to an unusually large extent, to                  identified primary money laundering                    compliance with this order would
                                             facilitate illicit finance, particularly                concern. Nevertheless, although not                    impose.
                                             when compared to other CVC                              bound by the factors, FinCEN                              By U.S. and international standards,
                                             exchanges, and by illicit actors who                    considered, in this instance, the factors              Bitzlato represents a limited percentage
                                             seek to circumvent AML/CFT                              identified in 31 U.S.C. 5318A(a)(4)(B) to              of daily CVC transfers. As of April 2022,
                                             obligations and obfuscate the source of                 help guide its analysis in this matter                 Bitzlato maintained a daily BTC balance
                                             funds or their intended use. Bitzlato                   and FinCEN elected to perform                          that was 0.0185 percent as large as the
                                             lacks an adequate AML/CFT program or                    interagency consultations 38 prior to                  largest U.S.-domiciled CVC exchange,
                                                                                                     issuing this order.                                    and it has 0.55 percent as many BTC
                                             safeguards, it has a high ratio of illicit
                                                                                                        Guided by the following factors,                    transfers. Bitzlato’s transaction history
                                             transaction exposure relative to total
                                                                                                     FinCEN finds reasonable grounds exist                  with this same U.S.-domiciled CVC
                                             transaction volume when compared to
                                                                                                     for concluding that Bitzlato is a                      exchange totals fewer than $26 million
                                             other exchanges, and it has served as the                                                                      in CVC over four years. By contrast, a
                                                                                                     financial institution operating outside of
                                             second largest attributable counterparty                                                                       CVC price and volume aggregator
                                                                                                     the United States that is of primary
                                             for the largest darknet market in the                   money laundering concern in                            estimates that a large U.S.-domiciled
                                             world and continues to support Russia-                  connection with Russian illicit finance                exchanger processed more than $2.7
                                             connected darknet markets.                              and that, pursuant to section 9714(a)(2),              billion in transfers daily. Further,
                                                Although Bitzlato offers services that               the imposition of a special measure                    compliance with the prohibition on
                                             could potentially be used by licit actors,              prohibiting certain transmittals of funds              certain transmittals of funds set out in
                                             those services may be found other                       involving Bitzlato is warranted.                       this order requires no tools or
                                             VASPs, including VASPs located in                                                                              competencies other than those already
                                             jurisdictions with robust AML/CFT                          38 In connection with this action, FinCEN           employed by domestic financial
                                                                                                     consulted with staff at the following Departments      institutions to maintain their current
                                             frameworks and regulatory oversight.                    and agencies with regard to the proposed order and
                                             Legitimate actors have access to a broad                prohibition: Department of Justice; the Department
                                                                                                                                                            AML/CFT compliance programs. In
                                             range of comparable services that                       of State; the Board of Governors of the Federal        order to ensure that is the case, FinCEN
                                             provide for appropriate transparency                    Reserve System; the Federal Deposit Insurance          has elected to provide within this order
                                                                                                     Corporation the Securities and Exchange                for the rejection of certain transmittals
                                             and can support international efforts to                Commission; the Commodity Futures Trading
                                                                                                                                                            of CVC that are received from or
                                             protect the integrity of the international              Commission; the Office of the Comptroller of the
                                                                                                     Currency; and the National Credit Union                originate at Bitzlato and outline the
                                             financial system, including transactions
                                                                                                     Administration Board. These consultations              steps a covered financial institution
                                             involving CVC. Accordingly, given the                   involved sharing drafts and information for the        should take in such circumstances.

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                                             extensive flow of illegitimate funds                    purpose of obtaining interagency views on the
                                                                                                                                                               In providing for the rejection of CVC
                                             through Bitzlato, FinCEN believes that                  imposition of a prohibition on certain transmittals
                                                                                                     of funds by any domestic financial institution from    under certain limited circumstances,
                                             the need to protect U.S. financial                      or to Bitzlato, or from an account or CVC address      FinCEN acknowledges that, at this time,
                                             institutions from the money laundering                  administered by or on behalf of Bitzlato, and the      there are technological limitations that
                                             risks presented by Bitzlato outweighs                   effect that such a prohibition would have on the
                                                                                                     domestic and international financial system. Each
                                                                                                                                                            may limit or preclude covered financial
                                             any potential legitimate utility its                    of the Departments and agencies concurred in the       institutions from declining CVC
                                             services may provide.                                   issuance of this order.                                transfers originating at addresses

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                                                                Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations                                                       3925

                                             outside of their control, and as such,                   illegitimate business, this action will               imposition of conditions on the
                                             compliant institutions may find                          remove from transaction chains a VASP                 transmittal of funds, as an alternative to
                                             themselves in receipt of CVC from                        that facilitates illicit or otherwise                 a prohibition on the transmittal of
                                             Bitzlato despite a desire and effort to                  unduly risky transactions that pose a                 funds. However, prohibiting the
                                             limit such exposure.39 As such, this                     risk to the international financial                   transmittal of funds involving Bitzlato is
                                             order allows covered financial                           system, without clear adverse impact on               the only means of adequately addressing
                                             institutions the flexibility to act with                 the international payment, clearance,                 the threat Bitzlato poses.
                                             discretion based on the facts and                        and settlement system or on legitimate                   In particular, none of the special
                                             circumstances of a particular transaction                business activities currently involving               measures described in 31 U.S.C. 5318A
                                             and comply with this order, even where                   Bitzlato.                                             would effectively address the threat
                                             the originating address is no longer                        As FinCEN is not aware of timing                   posed by Bitzlato.40 Any additional
                                             accessible, where CVC originated from                    considerations associated with such                   recordkeeping, information collection,
                                             Bitzlato but were held for an extended                   service redundancy or availability, there             or reporting requirement would be
                                             period of time in an unhosted wallet, or                 is also no adverse impact associated                  insufficient to guard against the risks
                                             where the covered financial institution’s                with the timing of this action.                       posed by covered financial institutions
                                             risk mitigation procedures would                                                                               processing transmittals of funds
                                                                                                      D. The Effect of the Action on U.S.
                                             preclude returning funds to Bitzlato.                                                                          involving Bitzlato, as such measures
                                                                                                      National Security and Foreign Policy
                                             Moreover, by providing for the rejection                                                                       may allow such transfers to continue to
                                             of CVC, this order ensures that covered                     Given Bitzlato’s connection with                   benefit of illicit actors connected to
                                             financial institutions will not be subject               Russian illicit finance, FinCEN believes              Russian ransomware activities, darknet
                                             to an undue cost or burden associated                    that this action is necessary to safeguard            markets, and scams. Furthermore,
                                             with compliance.                                         U.S. national security and the U.S.                   placing condition upon or prohibiting
                                                                                                      financial system, as well as serve key                the opening or maintaining in the
                                             C. The Extent to Which the Action or the                 U.S. national security objectives.                    United States of a correspondent
                                             Timing of the Action Would Have a                        Targeting illicit proceeds obtained by                account or payable-through account by
                                             Significant Adverse Systemic Impact on                   ransomware actors, especially those                   any domestic financial institution or
                                             the International Payment, Clearance,                    with a nexus to Russia, is a high priority            domestic financial agency for or on
                                             and Settlement System, or on Legitimate                  for the United States, as evidenced by                behalf of a foreign banking institution,
                                             Business Activities Involving Bitzlato                   recent OFAC actions and recently                      as described in 31 U.S.C 5318A(b)(5), is
                                                FinCEN believes that, for the reasons                 established intergovernmental task                    similarly inadequate to address the risks
                                             described below, this action will not                    forces focused on Russia-related illicit              of a P2P VASP such as Bitzlato. The
                                             have an adverse systemic impact, and                     finance threats. As such, this action will            types of CVC transactions that Bitzlato
                                             indeed, will have a positive systemic                    complement previous actions taken by                  facilitates do not rely on correspondent
                                             impact on the international payment,                     the U.S. Government and will serve the                or payable-through accounts between
                                             clearance, and settlement system, and                    United States’ national security and                  domestic financial institutions and
                                             on legitimate business activities.                       foreign policy interests by protecting                foreign banks, and FinCEN is unaware
                                                Bitzlato is a small exchange and has                  U.S. businesses and interests from                    of such relationships between Bitzlato
                                             a relatively limited presence in the                     known ransomware threat actors, by                    and U.S. or foreign financial
                                             international payment system. As noted                   publicly countering a financing                       institutions. As such, prohibiting or
                                             above, by comparison to U.S.-domiciled                   mechanism used by illicit entities,                   placing conditions upon the opening of
                                             CVC exchanges, Bitzlato represents a                     including entities that seek to further               such accounts would be ineffective at
                                             relatively limited percentage of daily                   the Russian state’s aims of political and             addressing the money laundering
                                             CVC transfers, by volume. There is no                    economic destabilization, and by                      concern.
                                             evidence that Bitzlato is a major                        reinforcing the expectations of AML/                     For these reasons, FinCEN assesses
                                             participant in the international payment                 CFT compliance in the virtual asset                   that the prohibition on the transmittal of
                                             system or relied upon by the                             ecosystem in order to improve the                     funds, including CVC, involving
                                             international banking community.                         identification and reporting of                       Bitzlato is the most appropriate special
                                                Rather, given its size and limited                    suspicious activity by financial                      measure.
                                             international presence, the legitimate                   institutions and agencies around the
                                                                                                                                                            VII. Consideration for Imposing the
                                             business services that it offers would be                world.
                                                                                                                                                            Special Measure Prohibiting Certain
                                             readily available through other                          VI. Consideration of Alternative Special              Transmittals of Funds by Order
                                             regulated institutions.                                  Measures
                                                Given the redundancy and availability                                                                          Section 9714(a) permits the Secretary
                                             of its services as well as its clear use for               FinCEN considered the other special                 to impose certain special measures,
                                                                                                      measures available pursuant to section                including the prohibition of certain
                                                39 FinCEN notes that CVC payment systems are          9714 prior to selecting the prohibition               transmittals of funds, ‘‘by order,
                                             often designed to limit the control of specific          reflected in this order. Pursuant to
                                             financial institutions over transactions and to          section 9714, these measures included:                  40 Likewise, imposing conditions on transmittals
                                             prevent rejections of funds by persons or entities                                                             of funds, pursuant to section 9714(a)(2), would be
                                             other than the sender of funds. As a result, although
                                                                                                      (1) the special measures described in 31
                                                                                                                                                            insufficient to address the threat. While imposing
                                             covered financial institutions may institute an          U.S.C. 5318A, including the imposition                conditions, rather than a full prohibition, may be
                                             internal prohibition on the sending of CVC               of additional recordkeeping,                          appropriate in circumstances where the institution
                                             transactions to another address or entity, FinCEN        information collection, and reporting                 provides services for legitimate business that are

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                                             assesses that there are few, if any, readily available                                                         not easily replicated or where a complete
                                             ways for covered financial institutions to ‘‘reject’’
                                                                                                      requirements on covered U.S. financial                prohibition on transactional activity would
                                             incoming CVC transactions [prior to receipt]. As         institutions and/or the prohibition or                otherwise unduly harm legitimate economic
                                             such, a prohibition on the receipt of CVC from           imposition of conditions upon the                     activity, Bitzlato provides a service that is easily
                                             Bitzlato could not be feasibly implemented even by       opening or maintaining of                             obtainable for legitimate customers through other
                                             the most compliant of financial institutions and                                                               providers, and in this case the value of any
                                             compliant institutions may find themselves in
                                                                                                      correspondent or payable-through                      legitimate activity it may conduct is outweighed by
                                             receipt of CVC from Bitzlato despite a desire and        accounts for or on behalf of a foreign                the significant proportion of illicit financial activity
                                             effort to limit such exposure.                           banking institution; and (2) the                      identified and its lack of mandatory KYC.

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                                             3926              Federal Register / Vol. 88, No. 14 / Monday, January 23, 2023 / Rules and Regulations

                                             regulation or otherwise as permitted by                 acquiring its assets, in whole or in part,             F. Penalties for Noncompliance
                                             law,’’ and FinCEN considered both the                   and/or carrying out the affairs of                       The covered financial institution, and
                                             order and regulation options. In light of               Bitzlato under a new name.                             any of its officers, directors, employees,
                                             the imminence of the threats posed by                                                                          and agents, may be liable for civil or
                                                                                                     8. Transmittal of Funds
                                             the illicit actors facilitated by Bitzlato,                                                                    criminal penalties under 31 U.S.C. 5321
                                             as well as the extent of the illicit                      The order defines transmittal of funds               and 5322 for violating any of the terms
                                             transactional activity identified, an                   as the sending and receiving of funds,                 of this order.41
                                             order prohibiting certain transmittals of               including CVC.
                                             funds is the most appropriate course of                                                                        G. Validity of Order
                                             action.                                                 9. Meaning of Other Terms
                                                                                                                                                              Any judicial determination that any
                                                In order to ensure orderly                             All terms used but not otherwise                     provision of this order is invalid shall
                                             implementation, FinCEN will delay the                   defined herein shall have the meaning                  not affect the validity of any other
                                             effective date of this order until                      set forth in 31 CFR Chapter X and 31                   provision of this order, and each other
                                             February 1, 2023.                                       U.S.C. 5312.                                           provision shall thereafter remain in full
                                                A copy of this order will be published                                                                      force and effect.
                                             in the Federal Register. To the extent                  B. Prohibition of the Transmittal of
                                                                                                     Funds Involving Bitzlato                                 Dated: January 18, 2023.
                                             Bitzlato or other parties have                                                                                 Himamauli Das,
                                             information relevant to this order, they                1. Prohibition                                         Acting Director, Financial Crimes
                                             may submit it to FinCEN at frc@                                                                                Enforcement Network.
                                             fincen.gov.                                                A covered financial institution is
                                                                                                     prohibited from engaging in a                          [FR Doc. 2023–01189 Filed 1–19–23; 11:15 am]
                                             VIII. Order                                             transmittal of funds from or to Bitzlato,              BILLING CODE 4810–02–P

                                             A. Definitions                                          or from or to any account or CVC
                                                                                                     address administered by or on behalf of
                                             1. Bitzlato                                             Bitzlato.                                              DEPARTMENT OF HOMELAND
                                               The order defines Bitzlato, a CVC                                                                            SECURITY
                                                                                                     2. Rejection of Funds and Condition on
                                             exchanger registered in Hong Kong and                   the Transfer of Rejected Funds                         Coast Guard
                                             previously known as ChangeBot, to
                                             mean all subsidiaries, branches, and                      A covered financial institution will be
                                                                                                                                                            33 CFR Part 165
                                             offices of Bitzlato operating in any                    deemed not to have violated this Order
                                             jurisdiction, as well as any successor                  where, upon determining that it                        [Docket Number USCG–2023–0039]
                                             entity.                                                 received CVC that originated from                      RIN 1625–AA00
                                                                                                     Bitzlato or from an account or CVC
                                             2. Convertible Virtual Currency (CVC)
                                                                                                     address administered by or on behalf of                Safety Zone; Charleston Harbor,
                                               The order defines convertible virtual                 Bitzlato, that covered financial                       Charleston, SC
                                             currency (CVC) as a medium of                           institution rejects the transaction,
                                             exchange that either has an equivalent                                                                         AGENCY: Coast Guard, DHS.
                                                                                                     preventing the intended recipient from
                                             value as currency, or acts as a substitute              accessing such CVC and returning the                   ACTION: Temporary final rule.
                                             for currency, but lacks legal tender                    CVC to Bitzlato, or to the account or                  SUMMARY: The Coast Guard is
                                             status. Despite having legal tender status              CVC address from which the CVC                         establishing a temporary safety zone for
                                             in at least one jurisdiction, for the                   originated.                                            navigable waters of the Cooper River,
                                             purpose of this order, Bitcoin is
                                                                                                     C. Order Period                                        Charleston Harbor, and Atlantic Ocean
                                             included as a type of CVC.
                                                                                                                                                            at the Charleston Harbor Entrance and
                                             3. Covered Financial Institution                          The terms of this order are effective                Approach, Charleston Harbor, within a
                                                                                                     February 1, 2023, with no cessation                    100-yard radius of the vessel USNS
                                               The order defines a covered financial                 date.
                                             institution as having the same meaning                                                                         Gordon and all towing vessels
                                             as ‘‘financial institution’’ in 31 CFR                  D. Reservation of Authority                            supporting its operations. The safety
                                                                                                                                                            zone is needed to protect personnel,
                                             1010.100(t).
                                                                                                       FinCEN reserves its authority                        vessels, and the marine environment
                                             4. CVC Exchanger                                        pursuant to Section 9714(a) to impose                  from potential hazards created by the
                                               The order defines a CVC exchanger as                  conditions on certain transmittals of                  dead ship movement of USNS Gordon
                                             any person engaged as a business in the                 funds from or to Bitzlato, or from or to               from the Naval Weapons Station, Joint
                                             exchange of CVC for fiat currency,                      any account or CVC address                             Base Charleston Transportation Core
                                             funds, or other CVC.                                    administered by or on behalf of Bitzlato.              (TC) Dock or Wharf Alpha through the
                                                                                                                                                            Charleston Harbor Entrance Channel.
                                             5. Peer to Peer (P2P) Exchangers                        E. Other Obligations
                                                                                                                                                            Entry of vessels or persons into this
                                               The order defines P2P exchangers to                      Nothing in this order shall be                      zone is prohibited unless specifically
                                             include persons engaged in the business                 construed to modify, impair or                         authorized by the Captain of the Port
                                             of buying and selling CVC.                              otherwise affect any requirements or                   Sector Charleston.
                                                                                                     obligations to which a covered financial
                                             6. Recipient                                            institution is subject pursuant to the                   41 Section 6106(b) of the National Defense

khammond on DSKJM1Z7X2PROD with RULES
                                                                                                                                                            Authorization Act for Fiscal Year 2022 (Public Law
                                               The order defines recipient as the                    BSA, including, but not limited to, the                117–81) amended section 9714 of the Combatting
                                             person to be paid by the recipient’s                    filing of Suspicious Activity Reports                  Russian Money Laundering Act (Pub. L. 116–283)
                                             covered financial institution.                          (SARs), or other applicable laws or                    to, among other things, provide that the penalties
                                                                                                     regulations, such as the sanctions                     set forth in 31 U.S.C. 5321 and 5322 shall apply to
                                             7. Successor Entity                                     administered and enforced by the U.S.                  violations of any order, regulation, special measure,
                                                                                                                                                            or other requirement imposed under section 9714,
                                               The order defines successor entity as                 Department of the Treasury’s Office of                 in the same manner and to the same extent
                                             any person that replaces Bitzlato by                    Foreign Assets Control.                                described in sections 5321 and 5322.

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