Final rule: BSA regulations; definitions and other regulations relating to MSBs ('other value that substitutes for currency') (76 FR 43585) (Part 1 of 2)

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

Fincen

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2011-07-21

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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. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                                      43585

                                                  PART 870—CARDIOVASCULAR                                   operations, evolving technologies, and                  person who engages as a business in the
                                                  DEVICES                                                   merging lines of business; and                          transmission of funds; and any business
                                                                                                            separating the provisions dealing with                  or agency which engages in any activity
                                                  ■ 1. The authority citation for 21 CFR                    stored value from those dealing with                    determined by regulation to be an
                                                  part 870 continues to read as follows:                    issuers, sellers, and redeemers of                      activity similar to, related to, or a
                                                    Authority: 21 U.S.C. 351, 360, 360c, 360e,              traveler’s checks and money orders.                     substitute for these activities.5
                                                  360j, 371.                                                DATES: Effective Date: This rule is                        FinCEN has issued regulations under
                                                                                                            effective September 19, 2011.                           the BSA implementing the
                                                  ■ 2. Revise paragraph (b) in § 870.2360
                                                                                                            Compliance Date: The compliance date                    recordkeeping, reporting, and other
                                                  to read as follows:                                                                                               requirements of the BSA with respect to
                                                                                                            for the amendments to 31 CFR 1022.380
                                                  § 870.2360       Electrocardiograph electrode.            is January 23, 2012.                                    these types of financial institutions.
                                                  *      *    *      *     *                                                                                        These regulations refer to these types of
                                                                                                            FOR FURTHER INFORMATION CONTACT: The
                                                     (b) Classification. Class II (special                                                                          financial institutions as ‘‘money
                                                                                                            FinCEN regulatory helpline at (800)
                                                  controls). The device is exempt from the                                                                          services businesses’’ (‘‘MSBs’’).6 Like
                                                                                                            949–2732 and select Option 1.
                                                  premarket notification procedures in                                                                              other financial institutions under the
                                                                                                            SUPPLEMENTARY INFORMATION:                              BSA, MSBs must implement AML
                                                  subpart E of part 807 of this chapter
                                                  subject to the limitations in § 870.9. The                I. Background                                           programs, make certain reports to
                                                  special control for this device is the                                                                            FinCEN, and maintain certain records to
                                                                                                            A. Statutory and Regulatory Background                  facilitate financial transparency. MSBs
                                                  FDA guidance document entitled ‘‘Class
                                                  II Special Controls Guidance Document:                       The BSA, Titles I and II of Public Law               are generally required to: (1) Establish
                                                  Electrocardiograph Electrodes.’’ See                      91–508, as amended, codified at 12                      written AML programs that are
                                                  § 870.1(e) for availability information of                U.S.C. 1829b, 12 U.S.C. 1951–1959, and                  reasonably designed to prevent the MSB
                                                  guidance documents.                                       31 U.S.C. 5311–5314 and 5316–5332,                      from being used to facilitate money
                                                                                                            authorizes the Secretary of the Treasury                laundering and the financing of terrorist
                                                    Dated: July 18, 2011.                                   (the ‘‘Secretary’’) to issue regulations                activities; 7 (2) file Currency Transaction
                                                  Nancy K. Stade,                                           requiring financial institutions to keep                Reports (‘‘CTRs’’) 8 and Suspicious
                                                  Deputy Director for Policy, Center for Devices            records and file reports that the                       Activity Reports (‘‘SARs’’); 9 and (3)
                                                  and Radiological Health.                                  Secretary determines ‘‘have a high                      maintain certain records, including
                                                  [FR Doc. 2011–18391 Filed 7–20–11; 8:45 am]               degree of usefulness in criminal, tax, or               those relating to the purchase of certain
                                                  BILLING CODE 4160–01–P                                    regulatory investigations or proceedings,               monetary instruments with currency,10
                                                                                                            or in the conduct of intelligence or                    transactions by currency dealers or
                                                                                                            counterintelligence matters, including                  exchangers (to be called ‘‘dealers in
                                                  DEPARTMENT OF THE TREASURY                                analysis, to protect against international              foreign exchange’’ under this
                                                                                                            terrorism.’’ 1 In addition, the Secretary is            rulemaking),11 and certain transmittals
                                                  Financial Crimes Enforcement Network                      authorized to impose anti-money                         of funds.12 Most types of MSBs are
                                                                                                            laundering (‘‘AML’’) program                            required to register with FinCEN 13 and
                                                  31 CFR Parts 1010, 1021 and 1022                          requirements on financial institutions.2                all are subject to examination for BSA
                                                                                                            The Secretary’s authority to administer                 compliance by the Internal Revenue
                                                  RIN 1506–AA97
                                                                                                            the BSA has been delegated to the                       Service (‘‘IRS’’).14
                                                  Bank Secrecy Act Regulations;                             Director of FinCEN.3 FinCEN has                         B. Past Public MSB Meetings
                                                  Definitions and Other Regulations                         implemented the BSA through
                                                                                                            regulations (‘‘BSA regulations,’’                         In 1997, FinCEN held public meetings
                                                  Relating to Money Services
                                                                                                                                                                    to give members of the financial services
                                                  Businesses                                                ‘‘implementing regulations’’ or ‘‘BSA
                                                                                                                                                                    industry an opportunity to discuss the
                                                                                                            rules’’) that appear at 31 CFR Chapter
                                                  AGENCY: Treasury Department, Financial                                                                            proposed MSB regulations and any
                                                                                                            X.4
                                                  Crimes Enforcement Network (FinCEN).                         The BSA defines the term ‘‘financial                 impact they might have on operations.15
                                                  ACTION: Final rule.                                       institution’’ to include, in part: a                      5 31 U.S.C. 5312(a)(2)(J), (K), (R), (V), and (Y).
                                                                                                            currency exchange; an issuer, redeemer,
                                                  SUMMARY: The Financial Crimes                                                                                        6 See 31 CFR 1010.100(ff) (formerly 31 CFR
                                                                                                            or cashier of travelers’ checks, checks,                103.11(uu)).
                                                  Enforcement Network (‘‘FinCEN’’), a
                                                                                                            money orders, or similar instruments;                      7 See 31 CFR 1022.210 (formerly 31 CFR 103.125).
                                                  bureau of the Department of the
                                                                                                            the United States Postal Service; a                        8 See 31 CFR 1010.311 (formerly 31 CFR 103.22).
                                                  Treasury (‘‘Treasury’’), is revising the                                                                             9 See 31 CFR 1022.320 (formerly 31 CFR 103.20).
                                                  regulations implementing the Bank                              1 31 U.S.C. 5311.                                  Check cashers and transactions solely involving the
                                                  Secrecy Act (‘‘BSA’’) regarding money                          2 31 U.S.C. 5318(h).                               issuance, sale, or redemption of stored value are not
                                                  services businesses (‘‘MSBs’’) to clarify                      3 See Treasury Order 180–01 (Sept. 26, 2002).
                                                                                                                                                                    covered by the SAR requirement. See 31 CFR
                                                                                                                                                                    1022.320(a)(1), (5) (formerly 31 CFR 103.20(a)(1),
                                                  which entities are covered by the                            4 On October 26, 2010, FinCEN issued a final rule
                                                                                                                                                                    (5). FinCEN recently proposed imposing a SAR
                                                  definitions.                                              creating a new Chapter X in title 31 of the Code of     requirement with respect to transactions involving
                                                     The changes more clearly delineate                     Federal Regulations for the BSA regulations. See 75     stored value. See Notice of Proposed Rulemaking,
                                                                                                            FR 65806 (October 26, 2010) (Transfer and               Amendment to the Bank Secrecy Act Regulations—
                                                  the scope of entities regulated as MSBs,                  Reorganization of Bank Secrecy Act Regulations          Definitions and Other Regulations Relating to
                                                  so that determining which entities are                    Final Rule) (referred to herein as the ‘‘Chapter X      Prepaid Access, 75 FR 36589 (June 28, 2010).
                                                  obligated to comply is more                               Final Rule’’). The Chapter X Final Rule became             10 See 31 CFR 1010.415 (formerly 31 CFR 103.29).
                                                  straightforward and predictable. This                     effective on March 1, 2011. Because the Notice of

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                                                                                                                                                                       11 See 31 CFR 1022.410 (formerly 31 CFR 103.37).
                                                                                                            Proposed Rulemaking, Definitions and Other
                                                  rulemaking amends the current MSB                         Regulations Relating to Money Services Businesses,
                                                                                                                                                                       12 See 31 CFR 1010.410(e)–(f) (formerly 31 CFR

                                                  regulations by: ensuring that certain                     74 FR 22129 (May 12, 2009), was issued before the       103.33(f)–(g)).
                                                                                                                                                                       13 See 31 CFR 1022.380 (formerly 31 CFR 103.41).
                                                  foreign-located persons engaging in                       Chapter X Final Rule became effective, it was
                                                                                                                                                                       14 See 31 CFR 1010.810(b) (formerly 31 CFR
                                                  MSB activities within the United States                   proposed in the 31 CFR Part 103 format. In this
                                                                                                            Final Rule, for ease of reference and where             103.56(b)(8)).
                                                  are subject to the BSA rules; updating                    appropriate, we have included the former 31 CFR            15 These public meetings were held in Vienna,
                                                  the MSB definitions to reflect past                       Part 103 citation after the 31 CFR Chapter X            Virginia, on July 22, 1997; New York, New York,
                                                  guidance and rulings, current business                    regulatory citation.                                                                                   Continued

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                                                  43586              Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  In drafting the final rules defining the                 industry on how to interpret and apply                  CFR 1010.100(ff)(4) (formerly 31 CFR
                                                  MSB categories,16 FinCEN relied in part                  the regulations.                                        103.11(uu)(4)) into one paragraph
                                                  on the comments made in these public                        With respect to check cashers and                    dealing with both issuers and sellers of
                                                  forums.                                                  money transmitters in particular,                       traveler’s checks and money orders
                                                     On March 8, 2005, FinCEN held a                       FinCEN has developed a large body of                    excluding stored value. The Notice also
                                                  fact-finding meeting in Washington, DC                   guidance in the years since the issuance                specifically requested comment on a
                                                  on the provision of banking services to                  of the final MSB regulations in 1999.22                 number of aspects of the proposed
                                                  MSBs.17 MSBs recounted their                             Similarly, over the years, FinCEN has                   changes, particularly with respect to a
                                                  challenges in obtaining and maintaining                  issued guidance and administrative                      definition of the term ‘‘funds,’’
                                                  banking services due to the perception                   rulings that provide examples of                        aggregating multiple MSB services for
                                                  that their businesses posed a high risk                  activities that do not meet the regulatory              threshold purposes, foreign-located
                                                  of money laundering and terrorist                        definition of a money transmitter, even                 MSBs, thresholds, and stored value. The
                                                  financing. In 2006, FinCEN issued an                     though entities engaged in such                         Notice also proposed a number of minor
                                                  advance notice of proposed rulemaking                    activities may be involved in accepting                 edits to make the regulations more
                                                  seeking input on how to address these                    and transmitting funds.23 Given the                     readable.
                                                  challenges,18 and received 142                           nature and scope of these important
                                                                                                                                                                   III. Comments on the Notice—Overview
                                                  comments in response, which have                         interpretative rulings, FinCEN has
                                                                                                                                                                   and General Issues
                                                  informed this rulemaking.19                              updated, streamlined, and clarified the
                                                                                                           MSB regulations in this rulemaking by                      The comment period for the Notice
                                                  C. Need for Review and Updates                                                                                   ended on September 9, 2009. FinCEN
                                                                                                           incorporating and extending these
                                                    More than ten years have passed since                  interpretations in the regulatory                       received a total of 25 comment letters.25
                                                  FinCEN issued the BSA regulations                        revisions.                                              Of these, two were submitted by
                                                  defining the categories of MSBs.20 Since                                                                         depository institutions, eight by
                                                  that time, FinCEN has received                           II. Notice of Proposed Rulemaking                       industry associations, seven by various
                                                  numerous requests to apply the MSB                          The final rule contained in this                     industry participants, two by
                                                  regulations to fact patterns specific to                 document is based on the Notice of                      government agencies, and six by
                                                  particular businesses. Over one-third of                 Proposed Rulemaking ‘‘Definitions and                   individuals. Generally, commenters
                                                  these requests came from persons                         Other Regulations Relating to Money                     were supportive of the proposals to
                                                  inquiring whether or not they were an                    Services Businesses’’ published in the                  clarify the MSB definitions. FinCEN
                                                  MSB.21 Some of these requests for                        Federal Register on May 12, 2009 (the                   requested comment on a number of
                                                  guidance were prompted by significant                    ‘‘Notice’’).24 With the intent of more                  issues for informational purposes that
                                                  technological advances such as stored                    clearly delineating the scope of entities               are not addressed by this final rule, such
                                                  value products and the online provision                  regulated as MSBs, the Notice proposed                  as stored value-related issues, whether
                                                  of financial services. These and other                   a number of changes to the MSB                          check cashers should have SAR filing
                                                  developments have changed the nature                     definitions, in particular: (1)                         requirements and whether additional
                                                  of the MSB industry. Where possible,                     Emphasizing that the MSB definition is                  recordkeeping requirements for MSBs
                                                  FinCEN has provided guidance to the                      based on a person’s activities; (2)                     should be implemented. Although these
                                                                                                           ensuring that certain foreign-located                   requests for comment were not tied to
                                                  on July 28, 1997; San Jose, California, on August 1,     persons engaged in MSB activities                       any specific regulatory changes FinCEN
                                                  1997; Chicago, Illinois, on August 15, 1997; and         within the United States, such as having                was proposing in the Notice, the
                                                  Vienna, Virginia, on September 3, 1997. The
                                                  discussions focused on how businesses operate and        customers located in the United States,                 information provided by commenters
                                                  how best to regulate them.                               are subject to the BSA rules; (3)                       can be useful to FinCEN in formulating
                                                     16 Definitions Relating to, and Registration of,      separating the provisions dealing with                  policy decisions in the future. FinCEN
                                                  Money Services Businesses, 64 FR 45438 (Aug. 20,         stored value from those dealing with                    values and appreciates the comments
                                                  1999) (‘‘1999 Rulemaking’’).
                                                     17 FinCEN conducted the meeting in conjunction
                                                                                                           issuers, sellers, and redeemers of                      received on these questions.
                                                  with the Non-bank Financial Institutions and             traveler’s checks and money orders; (4)
                                                                                                                                                                   Stored Value-Related Issues 26
                                                  Examination Subcommittees of the Bank Secrecy            deferring the proposal of a new
                                                  Act Advisory Group (‘‘BSAAG’’). BSAAG is an              definition of stored value to a separate                   Approximately half of the comments
                                                  advisory group created by the Annunzio-Wylie             rulemaking; and (5) combining the                       received in response to the Notice
                                                  Anti-Money Laundering Act, consisting of industry,
                                                  regulatory, and law enforcement participants for the     definitions in 31 CFR 1010.100(ff)(3)                   addressed stored value-related issues
                                                  purpose of engaging in open dialogue related to the      (formerly 31 CFR 103.11(uu)(3)) and 31                  that responded to questions and
                                                  protection of the U.S. financial system from money                                                               requests for comment posed in the
                                                  laundering, terrorist financing, and other abuses.         22 See FinCEN Ruling 2002–2 (Definition of            Notice. The questions were intended to
                                                  BSAAG uses a variety of permanent and ad hoc             Check Casher (Payday Lenders)) (Feb. 5, 2002) and
                                                  subcommittees to identify and analyze relevant
                                                                                                                                                                   elicit responses that would assist
                                                                                                           FinCEN Guidance 2006–G005 (Frequently Asked
                                                  issues. Public Law 102–550, Title XV, sec. 1564          Questions—Businesses Cashing Their Own Checks)
                                                                                                                                                                   FinCEN’s effort to regulate stored value.
                                                  (Oct. 28, 1992), 106 Stat. 4073.                         (March 31, 2006). For a discussion of this guidance,
                                                     18 Provision of Banking Services to Money
                                                                                                           see Notice, 74 FR at 22131.                               25 All comments to the Notice are available for
                                                  Services Businesses, 71 FR 12308 (March 10, 2006).         23 See FinCEN Rulings: 2003–8 (Definition of          public viewing at http://www.regulations.gov.
                                                     19 These comments are available in files dated
                                                                                                           Money Transmitter (Merchant Payment Processor))           26 In June 2010 FinCEN proposed replacing the
                                                  March 10 and May 15, 2006 at http://                     (Nov. 19, 2003); 2004–4 (Definition of Money            term ‘‘stored value’’ with ‘‘prepaid access’’ without
                                                  www.fincen.gov/statutes_regs/bsa/regs_proposal           Services Businesses (Debt Management Company))          intending to broaden or narrow the scope of the
                                                  _comment.html.                                           (Nov. 24, 2004); 2008–R005 (Whether Certain             term, but instead to use terminology commonly

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                                                     20 See 1999 Rulemaking, 64 FR 45438 (Aug. 20,         Reloadable Card Operations are Money Services           used by the industry. See Notice of Proposed Rule
                                                  1999). For a discussion of this history, see also the    Businesses) (March 10, 2008) (Merchants and ATMs        Making, Amendment to the Bank Secrecy Act
                                                  Notice of Proposed Rulemaking FinCEN;                    associated with a network of banks were not             Regulations—Definitions and Other Regulations
                                                  Amendment to the Bank Secrecy Act Regulations—           deemed money transmitters); and 2008–R006               Relating to Prepaid Access, 75 FR 36589 (June 28,
                                                  Definitions and Other Regulations Relating to            (Whether an Authorized Agent for the Receipt of         2010). At the time the Notice was issued, FinCEN
                                                  Money Services Businesses, 74 FR 22129, 22131            Utility Payments is a Money Transmitter) (May 21,       had not yet proposed changing the terminology.
                                                  (May 12, 2009).                                          2008). For a discussion of these rulings, see Notice,   This final rule uses the term ‘‘stored value.’’ Any
                                                     21 This statistic comes from a review of requests     74 FR at 22131–2.                                       changes in defined terms will be addressed in a
                                                  for guidance from FinCEN’s Regulatory Helpline.            24 See 74 FR 22129 (May 12, 2009).                    subsequent rulemaking regarding prepaid access.

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                                                                      Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                                    43587

                                                     On May 22, 2009, shortly after the                    transmitter’’ for intermediaries and            to the status that an entity has taken on
                                                  Notice was published, the Credit Card                    certain bill payment services. The              itself or been assigned, such as a
                                                  Accountability, Responsibility and                       suggestions regarding intermediaries            business licensed by a state. Based on
                                                  Disclosure Act of 2009 (‘‘Credit CARD                    and certain bill payment services are           such a misunderstanding, some have
                                                  Act’’) 27 was signed into law. Section                   discussed further in the Section-by-            wrongly concluded that an unlicensed
                                                  503 of the Credit CARD Act requires the                  Section Analysis.                               business is not subject to regulation as
                                                  Secretary to ‘‘issue regulations in final                                                                an MSB, even if it is engaged in one or
                                                  form implementing the Bank Secrecy                       Definition of ‘‘Currency Dealer or              more of the activities listed in 31 CFR
                                                  Act, regarding the sale, issuance,                       Exchanger’’                                     1010.100(ff)(1)–(5). Most of the
                                                  redemption, or international transport of                    In the Notice, FinCEN proposed to           comments received regarding the
                                                  stored value, including stored value                     make several changes to the definition          proposed change were supportive.
                                                  cards.’’ The congressional mandate of                    of ‘‘currency dealer or exchanger’’ (to be However, although FinCEN emphasized
                                                  Section 503 of the Credit CARD Act is                    called ‘‘dealers in foreign exchange’’          in the Notice that the proposed change
                                                  broader in scope than the stored value-                  under this rulemaking) to more                  would not expand the definition of MSB
                                                  related questions posed in the Notice.                   accurately reflect the actual underlying        beyond its present scope, two
                                                     In furtherance of that mandate,                       activity of the industry. Eight                 commenters expressed concerns about
                                                  FinCEN has separately published a                        commenters addressed various issues             this proposed change.
                                                  notice of proposed rulemaking specific                   related to this definition. Most                   One commenter argued that removing
                                                  to stored value, which FinCEN has                        commenters supported the proposed               the phrase ‘‘doing business’’ from the
                                                  proposed to rename ‘‘prepaid access’’                    changes. As a result, the proposal was          regulations would cause the definition
                                                  (the ‘‘Prepaid Access NPRM’’).28                         adopted without change. These                   of MSB to include persons who were
                                                  FinCEN believes that to address stored                   comments are further discussed in the           not in fact doing business as MSBs, and
                                                  value-related issues in this MSB rule                    Section-by-Section Analysis below.              asserted that expanding the category to
                                                  could cause confusion among the                              FinCEN received a comment letter            this extent would be beyond FinCEN’s
                                                  public. Accordingly, FinCEN has                          from the Commodity Futures Trading              powers under the BSA, which
                                                  decided to comprehensively address                       Commission (‘‘CFTC’’) regarding certain specifically refers to several types of
                                                  stored value-related issues in the                       amendments recently made to the                 financial institutions as ‘‘businesses’’ in
                                                  pending Prepaid Access rulemaking,                       Commodity Exchange Act (‘‘CEA’’),               several places.32
                                                  generally including those stored value-                  which, among other things, adds a new              FinCEN will not remove the phrase
                                                  related issues raised in the Notice. The                 registration category for dealers in off-       ‘‘doing business’’ from the definition of
                                                  comments received in response to the                     exchange retail foreign exchange known MSB in this final rule. Instead, the
                                                  Notice provided valuable insights and                    as ‘‘retail foreign exchange dealers’’          definition will be rephrased to state that
                                                  were considered in drafting the Prepaid                  (‘‘RFEDs’’).30 MSBs, including dealers          an MSB is ‘‘[a] person wherever located
                                                  Access NPRM.                                             in foreign exchange, do not include             doing business, whether or not on a
                                                                                                           persons registered with, and regulated          regular basis or as an organized or
                                                  Definition of ‘‘Money Transmitter’’
                                                                                                           or examined by, the CFTC. FinCEN is             licensed business concern, wholly or in
                                                     In the Notice, FinCEN proposed to                     considering the CFTC’s comments and             substantial part within the United
                                                  revise several portions of the current                   has decided that it would not be                States, in one or more of the capacities
                                                  definition of ‘‘money transmitter’’ to                   appropriate to address the issue of             listed in paragraphs (ff)(1) through (ff)(6)
                                                  clarify which activities are covered by                  RFEDs in this rulemaking.                       of this section.’’ We moved the
                                                  or excluded from the definition. Most                                                                    qualifying phrase ‘‘whether or not on a
                                                  commenters generally supported the                       IV. Section-by-Section Analysis                 regular basis or as an organized business
                                                  proposed changes. All commenters                                                                         concern’’ from the end of the sentence
                                                                                                           A. Refining the General Definition of
                                                  supported excluding from the definition                                                                  to immediately follow ‘‘doing business’’
                                                                                                           ‘‘Money Services Business’’ Doing
                                                  of ‘‘money transmitter’’ persons that                                                                    in an effort to emphasize our concern
                                                                                                           Business
                                                  have only a ‘‘custodial interest’’ in                                                                    that ‘‘doing business’’ can be
                                                  currency they are transporting.29 One                        Prior to this rulemaking, the
                                                                                                                                                           misinterpreted to refer to status, not
                                                  commenter construed the definition of                    regulatory definition of MSB covered
                                                                                                                                                           activity. To that end, the words ‘‘or
                                                  ‘‘money transmitter’’ to exclude the                     ‘‘[e]ach agent, agency, branch or office
                                                                                                                                                           licensed’’ have been added before
                                                  agents of a principal money transmitter.                 within the United States of any person
                                                                                                                                                           ‘‘business concern’’ to further clarify the
                                                  FinCEN wishes to clarify that any                        doing business, whether or not on a
                                                                                                                                                           issue.
                                                  person that satisfies the definition of a                regular basis or as an organized business          FinCEN wishes to emphasize that
                                                  ‘‘money services business,’’ including                   concern, in one or more of the capacities whether a person is subject to regulation
                                                  an agent, is an MSB. Whether it is the                   listed in paragraphs (ff)(1) through (ff)(6) as an MSB does not depend on factors
                                                  agent of another MSB is relevant only                    of this section.’’ 31 In the Notice, FinCEN such as whether the person is licensed
                                                  for registration purposes. Two                           proposed to amend 31 CFR 1010.100(ff) as a business by any state; whether the
                                                  commenters suggested additional                          (formerly 31 CFR 103.11(uu)) by                 person has employees; or whether the
                                                  exclusions to the definition of ‘‘money                  removing the phrase ‘‘doing business,’’         person is engaged in a for-profit venture.
                                                                                                           and replacing it with the phrase                Although the final rule continues to use
                                                    27 The Credit CARD Act, Public Law 111–24,             ‘‘engaged in activities.’’ FinCEN               the phrase ‘‘doing business,’’ it is a
                                                  codified at 5 U.S.C. 57, Chapter 57; 11 U.S.C. 111;      proposed this amendment because the
                                                  15 U.S.C. 1601, 1602, 1632, 1637, 1640, 1650, 1661,                                                      person’s activities, rather than formal
                                                                                                           phrase ‘‘doing business’’ has been

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                                                  1666, 1666b, 1666c, 1681b, 1681j, 1693, 41 and 632;                                                      business status, that would cause the
                                                  20 U.S.C. 1001 and 1002; 31 U.S.C. 5316 (May 22,         misunderstood as an implied reference           person to be categorized as an MSB.
                                                  2009).                                                                                                      Another commenter suggested that
                                                    28 See 75 FR 36589 (June 28, 2010).                       30 See Food, Conservation, and Energy Act of
                                                    29 The ‘‘custodial’’ exclusion relates to a person     2008, Public Law No. 110–246, Sec. 13101, 122
                                                                                                                                                           the  change proposed by the Notice
                                                  engaged in physical transportation, such as an           Stat. 1651, 2189–94 (2008) (amending section    might expand the definition of MSB to
                                                  armored car. For a more comprehensive discussion,        2(c)(2) of the CEA, 7 U.S.C. 2(c)(2)).
                                                  see Section IV.F. of this rule. See also Notice at 74      31 31 CFR 1010.100(ff) (formerly 31 CFR               32 31 U.S.C. 5312(a)(2)(R), (T), (W), (Y), (Z); 31

                                                  FR 22138.                                                103.11(uu)) (emphasis added).                         U.S.C 5330(d).

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                                                  43588              Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  include, for example, an individual who                  supported the proposition that the                    and would also undermine FinCEN’s
                                                  cashed a check as an accommodation for                   threshold should be reviewed, but                     efforts to protect the U.S. financial
                                                  a family member. Despite not moving                      expressed no opinion as to whether it                 system from abuse.
                                                  forward with the change proposed in                      should be increased, decreased,                          Of the seven comments received on
                                                  the Notice, FinCEN remains concerned                     eliminated, or maintained at current                  the issue of extending the BSA
                                                  that the definition might be                             levels. One commenter supported the                   regulations to cover foreign-located
                                                  misunderstood to include such an                         elimination of all thresholds to create               MSBs conducting activities in the
                                                  individual. In response to this concern,                 uniformity among different types of                   United States, five commenters
                                                  the final rule includes a provision that                 MSBs, and argued that the thresholds                  supported it, including two government
                                                  excludes ‘‘a natural person who engages                  are ineffective insofar as one can operate            and three industry commenters. The
                                                  in an activity identified in paragraphs                  under those levels without decreasing                 two commenters opposed were from
                                                  (ff)(1) through (ff)(5) of this section on               the risk of money laundering. Another                 industry.
                                                  an infrequent basis and not for gain or                  commenter supported raising the                          Two commenters argued that a
                                                  profit’’ from the MSB definition. By                     thresholds, and argued that the current               foreign-located person’s mere
                                                  using the phrase ‘‘a natural person’’ in                 levels place an undue burden on small                 maintenance of a bank account in the
                                                  the limitation, FinCEN excludes only                     businesses. Several commenters                        United States should not cause that
                                                  individuals; not business entities, non-                 supported adjusting the thresholds to                 person to be defined as an MSB. FinCEN
                                                  profits, or other legal persons from the                 take into account disparate thresholds                agrees with that position.35 Under the
                                                  MSB definition. By ‘‘infrequent’’                        imposed by various state authorities,                 final rule, a foreign-located person will
                                                  activities, FinCEN intends to limit the                  inflation, or the transaction volume of               be subject to the BSA as an MSB to the
                                                  exclusion to activity that is rare.33 By                 each individual MSB. Finally, several                 extent that it does business in one or
                                                  ‘‘gain or profit,’’ FinCEN intends this                  commenters supported maintaining the                  more of the capacities listed in
                                                  exclusion not to be available to persons                 current thresholds.                                   1010.100(ff)(1) through 1010.100(ff)(5)
                                                  engaging in these activities for the                        FinCEN also sought specific                        wholly or in substantial part within the
                                                  purpose of monetary gain or other                        comments from the public regarding                    United States.36 Whether or not a
                                                  economic benefit, such as an exchange                    whether transactions involving multiple               foreign-located person’s MSB activities
                                                  of valuable favors. This exclusion                       MSB services should be aggregated                     occur within the United States depends
                                                  forestalls any interpretation of the                     together for purposes of determining                  on all of the facts and circumstances of
                                                  definition of MSB to include persons                     whether the activity threshold has been               each case, including whether persons in
                                                  solely providing accommodation                           met. The comments received on this                    the United States are obtaining MSB
                                                  services to family members, as in the                    proposal stressed the logistical                      services from the foreign-located person,
                                                  commenter’s hypothetical. Nevertheless,                  complications of compliance with an                   such as sending money to or receiving
                                                  whether a person engages in MSB                          aggregation requirement on the part of                money from third parties through the
                                                  activities depends on all of the facts and               retailers that sell multiple MSB                      foreign-located person.
                                                  circumstances of each case.                              products and act as agents for multiple                  A commenter also noted that foreign
                                                                                                           MSBs. All comments received regarding                 banks, broker dealers, and possibly
                                                  Activity Threshold                                       this proposal were opposed to it.                     other financial institutions might be
                                                     Currently, the MSB regulations apply                     FinCEN will continue to study these
                                                                                                                                                                 subject to the MSB regulations. FinCEN
                                                  to persons engaged in specified                          issues and consider the need for a
                                                  activities that exceed $1,000 for any                                                                          does not intend to include these
                                                                                                           separate rulemaking to adjust the MSB
                                                  person in any day (‘‘activity threshold’’).                                                                    institutions in the MSB definition.
                                                                                                           activity thresholds.
                                                  The activity threshold applies to all                                                                          FinCEN, therefore, has expanded the
                                                                                                           Foreign-Located MSBs                                  limitations to the MSB definition to
                                                  MSB categories 34 except money
                                                  transmitters, which do not have an                         FinCEN proposed to amend 31 CFR                     cover foreign banks, as well as other
                                                  activity threshold. FinCEN proposed no                   1010.100(ff) to provide that foreign-                 foreign financial agencies that engage in
                                                  changes to the activity thresholds in this               located persons engaging in MSB                       financial activities that, if conducted in
                                                  rulemaking. However, FinCEN sought                       activities in the United States are                   the United States, would require the
                                                  comments from the public regarding                       subject to the BSA rules. Specifically,               foreign financial agency to be registered
                                                  whether possible adjustments to the                      FinCEN proposed to revise 31 CFR                      with the Securities and Exchange
                                                  activity threshold should be made in a                   1010.100(ff) so that an entity qualifies as           Commission (‘‘SEC’’) or CFTC. These
                                                  future rulemaking. More than one-third                   an MSB based on its activity within the               provisions parallel the existing
                                                  of all comment letters received in                       United States, not the physical presence              limitations covering domestic banks and
                                                  response to the Notice expressed an                      of one or more of its agents, agencies,               entities registered with the SEC or
                                                  opinion regarding the current activity                   branches, or offices in the United States.            CFTC.
                                                  thresholds. Several commenters                           This proposal arose out of the                           Two commenters expressed general
                                                                                                           recognition that the Internet and other               concerns regarding the practicality of
                                                     33 This limitation should be interpreted to mean      technological advances make it
                                                                                                                                                                   35 See FinCEN Ruling 2004–1 (Definition of
                                                  activities that are not frequent as that term is used    increasingly possible for persons to offer
                                                  in FinCEN’s Guidance On Interpreting ‘‘Frequently’’                                                            Money Services Business) (Foreign-Located
                                                  Found In The Criteria For Exempting A ‘‘Non-
                                                                                                           MSB services in the United States from                Currency Exchanger With U.S. Bank Account) (A
                                                  Listed Business’’ Under 31 CFR 103.22(d)(2)(vi)(B),      foreign locations. FinCEN seeks to                    foreign-located currency exchanger whose only
                                                  (November 2002), http://www.fincen.gov/statutes          ensure that the BSA rules apply to all                presence in the United States was a bank account
                                                  _regs/guidance/html/                                     persons engaging in covered activities                was not deemed an MSB when the currency

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                                                  final_definition_of_frequent.html.                                                                             exchange transactions occurred solely in a foreign
                                                     34 FinCEN has proposed a modified application of
                                                                                                           within the United States, regardless of               country for foreign-located customers and the use
                                                  the $1,000 activity threshold with respect to            each person’s physical location. To                   of the U.S. bank account was limited to issuing and
                                                  prepaid access, such that providers of prepaid           permit foreign-located persons to engage              clearing dollar-denominated monetary
                                                  access clearly marked with a value not exceeding         in MSB activities within the United                   instruments.) (March 29, 2004).
                                                  $1,000 would not be subject to regulation as an                                                                  36 For an expanded discussion of the nature of

                                                  MSB. See Definitions and Other Regulations
                                                                                                           States and not subject such persons to                activities that will subject a foreign-located person
                                                  Relating to Prepaid Access, 75 FR 36589 (June 28,        the BSA would be unfair to MSBs                       to the BSA as an MSB, please refer to the Notice,
                                                  2010).                                                   physically located in the United States               74 FR at 22133.

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                                                                     Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                               43589

                                                  regulating foreign-located MSBs. Both                    but merely clarify the scope of 31 CFR                   By inserting the phrase ‘‘currency, or
                                                  commenters also argued that the                          1010.100(ff).                                         other monetary instruments, funds or
                                                  proposed change could create a                                                                                 other instruments’’ the final rule
                                                                                                           B. Changes to the Definition of
                                                  misperception that foreign-located                                                                             clarifies that dealing in foreign exchange
                                                                                                           ‘‘Currency Dealer or Exchanger’’
                                                  MSBs are too risky for financial                                                                               is not limited to the physical exchange
                                                  institutions to provide them with                           FinCEN proposed several changes to                 of the currency of one country for the
                                                  financial services. Consequently,                        31 CFR 1010.100(ff)(1) (formerly 31 CFR               currency of another country. This
                                                  foreign-located MSBs would find it                       103.11(uu)(1)), which defines ‘‘currency              language sets forth the media of
                                                  increasingly difficult to open accounts                  dealer or exchanger’’ as a category of                exchange that trigger the definition
                                                  with banks unwilling to assume such                      MSB. Comments regarding proposed                      more clearly than in the previous
                                                  potential risks. Although FinCEN                         changes, while noting a few concerns                  version of the rule. FinCEN’s current
                                                  acknowledges that regulating foreign-                    (discussed below), were largely                       rules and existing body of
                                                  located MSBs may present challenges,                     supportive, and the final rule adopts all             administrative rulings establish that a
                                                  FinCEN believes that there are                           of the proposed changes.                              person who converts funds
                                                  meaningful benefits to be derived from                      The final rule replaces the phrase                 denominated in the currency of one
                                                  such regulation.                                         ‘‘currency dealer or exchanger’’ with                 country into funds denominated in the
                                                                                                           ‘‘dealer in foreign exchange.’’ Removal               currency of another country is an MSB
                                                     Under the final rule, foreign-located                                                                       by virtue of that activity.38 Additionally,
                                                  MSBs will have the same reporting and                    of the term ‘‘currency’’ from the
                                                                                                           category’s name is designed to clarify                the phrase ‘‘other instruments’’ is
                                                  recordkeeping and other requirements                                                                           intended to capture those types of
                                                  as MSBs with a physical presence in the                  that persons meet the definition by not
                                                                                                           only exchanging currency, but also by                 payment instruments that do not fall
                                                  United States, with respect to their                                                                           precisely into one of the other
                                                  activities in the United States. Foreign-                exchanging other monetary instruments,
                                                                                                           funds, or other instruments                           categories, but nevertheless are readily
                                                  located MSBs will be subject to the                                                                            recognizable as payment instruments.
                                                  same civil and criminal penalties as                     denominated in currency. Although the
                                                                                                           BSA uses the term ‘‘currency                             One commenter expressed concern
                                                  MSBs with a physical presence in the                                                                           that the inclusion of ‘‘other instruments
                                                  United States, with respect to their                     exchange,’’ FinCEN interprets this
                                                                                                           language as having been intended to                   denominated in currency’’ in addition
                                                  failure to comply with regulatory                                                                              to ‘‘currency’’ would cover persons
                                                  requirements.37 Foreign-located MSBs                     capture the underlying activity involved
                                                                                                           in foreign exchange services, which                   offering foreign exchange transactions
                                                  will also be required to designate a                                                                           that involve stored value or other
                                                  person who resides in the United States                  includes the exchange of instruments
                                                                                                           other than currency. The proposed                     products in a manner that would
                                                  to function as an agent to accept service                                                                      implicate a wide range of retailers and
                                                  of legal process, including with respect                 change is consistent with current
                                                                                                           industry practice, which commonly                     other entities not generally understood
                                                  to BSA compliance.                                                                                             to be dealers in foreign exchange.
                                                                                                           involves exchanging instruments other
                                                  Limitations                                              than currency.                                        FinCEN does not consider this to be the
                                                                                                                                                                 case however, because payment devices
                                                                                                              The final rule inserts the term
                                                     For clarity, FinCEN proposed to add                                                                         such as debit cards, credit cards, and
                                                                                                           ‘‘foreign’’ into the category’s name to
                                                  31 CFR 1010.100(ff)(8) to create a new                                                                         stored value do not involve currency
                                                                                                           clarify FinCEN’s longstanding policy
                                                  section providing limitations to the                                                                           exchanges at a point of sale. The point
                                                                                                           that any exchange that occurs in the
                                                  definition of MSB. FinCEN proposed to                                                                          of sale transaction, from the perspective
                                                                                                           United States is covered by the
                                                  move the first two limitations,                                                                                of the buyer and the seller (including
                                                                                                           definition, even if the exchange consists
                                                  excluding (1) Banks and (2) persons                                                                            the U.S.-located merchant hypothesized
                                                                                                           of currency, other monetary
                                                  registered or required to register with,                                                                       by the commenter), is only denominated
                                                                                                           instruments, funds, or other instruments
                                                  and functionally regulated or examined                                                                         in U.S. dollars. Any exchange of
                                                                                                           denominated exclusively in non-U.S.
                                                  by, the SEC or the CFTC, from the                                                                              currency involved in such a transaction
                                                                                                           currencies. Therefore, if all other
                                                  definition of MSB at 31 CFR                                                                                    occurs in the back office processing of
                                                                                                           requirements are fulfilled, and a person
                                                  1010.100(ff) for clarity. Also, as noted                                                                       the financial institution issuing the
                                                                                                           exchanges currency, other monetary
                                                  above, foreign banks and certain foreign                                                                       device. A merchant’s acceptance of
                                                                                                           instruments, funds, or other instruments
                                                  financial agencies have been included                                                                          foreign issued stored value to purchase
                                                                                                           denominated in one non-U.S. currency
                                                  in the limitations in the final rule to                                                                        U.S. issued stored value or U.S.
                                                                                                           for those in another non-U.S. currency,
                                                  address issues raised by commenters                                                                            currency, other monetary instruments,
                                                                                                           the person is a dealer in foreign
                                                  with regard to foreign-located MSBs.                                                                           funds, or other instruments does not
                                                                                                           exchange for BSA purposes. Though
                                                  The third limitation, as discussed above,                                                                      make that merchant a dealer in foreign
                                                                                                           such transactions may not involve U.S.
                                                  clarifies the scope of the definition of                                                                       exchange. On the other hand, there are
                                                                                                           dollars, the potential use of a dealer in
                                                  MSB, excluding individuals engaging in                                                                         transactions involving stored value that
                                                                                                           foreign exchange in this manner to
                                                  infrequent activity as an                                                                                      FinCEN would deem foreign exchange,
                                                                                                           launder money, finance terrorism, or
                                                  accommodation. There were no                                                                                   including scenarios where a merchant
                                                                                                           carry out other illicit activity
                                                  comments on moving the first two                                                                               either accepts or pays out foreign
                                                                                                           nevertheless would impact the U.S.
                                                  limitations to a separate section. The                                                                         currency in exchange for stored value.
                                                                                                           financial system and should be subject
                                                  addition of the third limitation                                                                               For example, a person is a dealer in
                                                                                                           to regulation. Failure to capture
                                                  regarding natural persons and the                                                                              foreign exchange if the person:
                                                                                                           exchanges within the United States of

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                                                  extension of the first two limitations to
                                                                                                           two foreign currencies (or of payment
                                                  include foreign institutions, while not                                                                          38 See FinCEN Ruling 2008–R003 (Whether a
                                                                                                           instruments denominated in two foreign                Person That is Engaged in the Business of Foreign
                                                  proposed, do not alter any obligations
                                                                                                           currencies) would leave a significant                 Exchange Risk Management is a Currency Dealer or
                                                                                                           and unnecessary gap in the BSA rules.                 Exchanger or Money Transmitter) (May 9, 2008);
                                                     37 See 31 CFR 1022.380(e) (formerly 31                                                                      FinCEN Ruling 2008–R002 (Whether a Foreign
                                                  CFR103.41(e)), 31 CFR 1010.810–1010.820
                                                                                                           This change also underscores the                      Exchange Dealer is a Currency Dealer or Exchanger
                                                  (formerly 31 CFR 103.56–103.57), and 31 CFR              international nature of money                         or Money Transmitter) (May 9, 2008); and 31 CFR
                                                  1010.840 (formerly 31 CFR 103.59).                       laundering and terrorist financing.                   1022.410(b)(6) (formerly 31 CFR 103.37(b)(6)).

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                                                  43590               Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  (1) Accepts foreign currency, or other                   person is not a dealer in foreign                      C. Meaning of the Term ‘‘Check Casher’’
                                                  monetary instruments, funds, or other                    exchange to the extent the person
                                                                                                                                                                     FinCEN proposed to amend 31 CFR
                                                  instruments (other than stored value)                    exchanges their own money on their                     1010.100(ff)(2) (formerly 31 CFR
                                                  denominated in foreign currency, and                     own behalf.40                                          103.11(uu)(2)) to clarify the meaning of
                                                  provides a stored value product in
                                                                                                              The final rule includes the phrase                  the term ‘‘check cashing’’ by splitting
                                                  return; or (2) accepts stored value and
                                                                                                           ‘‘whether or not for same-day delivery’’               the existing regulatory definition into
                                                  provides in return foreign currency, or
                                                                                                           to account for the potential time                      two paragraphs: one paragraph to define
                                                  other monetary instruments, funds, or
                                                  other instruments (other than stored                     difference between the date on which                   check cashing activity; another
                                                  value) denominated in foreign currency.                  the exchange rate is agreed and the date               paragraph to exclude certain activity
                                                     The final rule includes the phrase ‘‘of               of the exchange. Common settlement                     from that definition.
                                                  one or more other countries’’ 39 in the                  terms in foreign exchange markets                         In the Notice, FinCEN proposed
                                                  definition, underscoring FinCEN’s                        include: (1) Same-day or cash—where                    several changes to the definition of
                                                  policy that a person is not a dealer in                  the parties both agree to an exchange of               ‘‘check casher’’ to more accurately
                                                  foreign exchange based on exchanges                      currency and conclude the exchange on                  describe which activities are covered by
                                                  that involve currency or instruments                     the same working day; (2) spot—where                   or excluded from the definition. Nine
                                                  denominated exclusively in the                           the parties agree to an exchange of                    commenters addressed various issues
                                                  currency of one country. Assuming all                    currency on one date, with the exchange                related to the definition of ‘‘check
                                                  other conditions under the BSA rules                     taking place two working days                          casher.’’ Most commenters generally
                                                  are met, a dealer in foreign exchange is                 thereafter; (3) cash forward—where the                 supported the proposed changes. As a
                                                  a person that converts the currency,                     parties agree to an exchange of currency               result, the final rule adopts most of
                                                  other monetary instruments, funds, or                    on one date, with the exchange of                      them without change with one
                                                  other instruments denominated in one                     currency deferred until an agreed-upon                 exception, related to stored value,
                                                  currency for the currency, other                         date in the future; and (4) future—where               discussed below regarding activities not
                                                  monetary instruments, funds, or other                    the parties agree to an exchange of                    subject to the ‘‘check casher’’ definition.
                                                  instruments denominated in a different                   currency on one date, with settlement to                  ‘‘In return’’ was added to the
                                                  currency.                                                occur in an agreed upon delivery period                definition to more accurately describe
                                                     FinCEN received one comment in                        in the future, typically by payment of an              the activity that occurs when cashing a
                                                  support of this proposal, and two                                                                               check or redeeming a monetary
                                                                                                           amount reflecting the change in the
                                                  comments in opposition. One                                                                                     instrument. The Uniform Commercial
                                                                                                           foreign currency rate between the time
                                                  commenter argued that when a person                                                                             Code references were added to provide
                                                                                                           of the agreement and delivery. A
                                                  accepts instruments denominated in the                                                                          a clear definition of ‘‘check.’’ A
                                                                                                           contract for future delivery of currency               reference to the definition of ‘‘monetary
                                                  currency of one country in exchange for
                                                                                                           may also be settled with the delivery of               instruments’’ was also provided. ‘‘Other
                                                  currency of the same country, where the
                                                                                                           currency, resulting in the exchange of                 instruments’’ is intended to capture
                                                  currency is not U.S. dollars, the
                                                                                                           the currencies underlying the futures                  those types of payment instruments that
                                                  exchange may technically require an
                                                  intermediate transaction involving U.S.                  contract.                                              do not fall precisely into one of the
                                                  dollars. FinCEN, however, is concerned                      One commenter expressed concern                     other categories. The term ‘‘other
                                                  with the customer transaction and what                   that this change will create confusion                 instruments’’ is meant to capture those
                                                  currency the customer begins with and                    regarding the $1,000 threshold where                   instruments that are readily
                                                  ends with, not any exchanges or                          the dealer in foreign exchange is                      recognizable as payment instruments
                                                  recording that take place in the back                    instructed to make multiple                            without capturing goods or services that
                                                  office of the merchant. The other                        disbursements of exchanged currency                    may be purchased with a check or
                                                  commenter opposing the proposal                          over time. The use of the phrase                       monetary instrument.
                                                  argued that the activity of exchanging                   ‘‘whether or not for same day delivery’’                  The definition incorporates the
                                                  bills within the same currency should                    is intended to capture such activity and               redeeming of monetary instruments into
                                                  be covered under the MSB rules because                   to make clear that the date of the                     the definition of ‘‘check casher.’’ Given
                                                  certain criminals convert denominations                  payment by the customer to the dealer                  its similarity to check cashing, it is
                                                  of cash exclusively within the currency                  in foreign exchange, not the date of any               unnecessary to treat this activity
                                                  of one country. Both of these comments,                  subsequent disbursements, is the date                  separately from check cashing.42
                                                  however, in essence propose to include                   relevant to the calculation of the $1,000              Accordingly, a person engaged in
                                                  activities within the category that are                  threshold.                                             redeeming monetary instruments
                                                  not commonly understood to be                                                                                   (including traveler’s checks and money
                                                                                                              Persons registered with and
                                                  ‘‘foreign exchange.’’ Therefore, FinCEN                                                                         orders) is a check casher if it redeems
                                                                                                           functionally regulated or examined by                  checks for currency or a combination of
                                                  believes the proposed change better
                                                  comports with the common                                 the CFTC including retail foreign                      currency and monetary or other
                                                  understanding of the foreign exchange                    exchange dealers are excluded from the                 instruments. This revision does not
                                                  business.                                                definition of dealer in foreign exchange.              capture activity that is tantamount to
                                                     The final rule includes the phrase ‘‘for              As noted above, FinCEN is consulting                   merely exchanging one monetary
                                                  any other person’’ to explicitly reflect                 with the CFTC regarding retail foreign                 instrument for another monetary or
                                                  FinCEN’s longstanding position that a                    exchange dealers.41                                    other instrument and accordingly

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                                                                                                                                                                  requires currency to be included in the
                                                                                                             40 See, e.g., FinCEN Ruling 2003–9, (Definition of
                                                     39 The addition of ‘‘one or more other countries’’
                                                                                                                                                                  redeeming. All of the commenters that
                                                  is intended to capture the fact that some foreign        Money Services Business (Money Transmitter/
                                                                                                           Currency Dealer or Exchanger)) (October 20, 2003).
                                                                                                                                                                  addressed this proposal were
                                                  currencies are used by multiple countries. For
                                                  instance, the Euro is used by member states of the       See also, FinCEN Ruling 2004–3, (Definition of
                                                  European Union. Accordingly, a dealer in foreign         Money Services Business (Money Transmitter/              42 FinCEN does not interpret ‘‘redeem’’ to include

                                                  exchange may accept funds of one or more other           Currency Dealer or Exchanger)) (Aug. 17, 2004).        taking payment instruments or mechanisms in
                                                  countries in exchange for funds of one or more             41 31 CFR 1010.100(ff) (formerly 31 CFR              exchange for goods or services. See 1999
                                                  other countries.                                         103.11(uu)).                                           Rulemaking, 64 FR at 45441–45443.

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                                                                     Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                                  43591

                                                  supportive. As a result, the final rule                  but two commenters disagreed, noting                   redeemed by their issuers, making a
                                                  adopts this proposal without change.                     that fraud exists in such low risk checks              separate redemption category redundant
                                                     One commenter requested                               as well and that such exemptions                       in such circumstances. Moreover,
                                                  clarification regarding the cashing of                   unnecessarily complicate due diligence.                redeeming a traveler’s check or money
                                                  checks or other instruments in exchange                  FinCEN may address other types of low                  order by a non-issuer has been
                                                  for both goods and services and                          risk check cashing in a future                         incorporated into the definition of a
                                                  currency. Entities that accept payment                   rulemaking after further study.                        check casher.46 All of the commenters
                                                  for goods or services with a check and                      Finally, under the previous                         who addressed this proposal were
                                                  return more than $1,000 in currency or                   regulations, redeemers of traveler’s                   supportive. As a result, the final rule
                                                  a combination of currency and other                      checks and money orders had SAR                        adopts this proposal without change.
                                                  monetary instruments fall under the                      obligations while check cashers did not.                  The rule defines an ‘‘issuer’’ by virtue
                                                  definition of ‘‘check casher’’ regardless                As these two categories of MSB have                    of the amount at which its monetary
                                                  of the value of the goods or services.43                 been combined, we will seek comment                    instruments or traveler’s checks are
                                                     The revision also clarifies what                      in a future rulemaking on whether or                   sold, as opposed to the amounts at
                                                  activities are not subject to the ‘‘check                not to require check cashers to report                 which they are issued. For example, the
                                                  casher’’ definition. The definition, as                  suspicious activity to FinCEN under the                amount of the sale includes the face
                                                  proposed, exempted purchases of closed                   BSA. Commenters to this rulemaking                     value of the monetary instruments plus
                                                  loop stored value with a check,                          were largely in favor of a SAR                         any fees. Because money orders are not
                                                  monetary instrument, or other                            requirement for check cashers, though                  issued in round dollar increments like
                                                  instrument. One commenter objected to                    two commenters disagreed, noting the                   traveler’s checks, but are rather sold
                                                  this limitation, expressing concerns that                high number of reports that would be                   either directly by the issuer or by its
                                                  it was too narrow and that sellers of                    generated and the burden on check                      agent to a customer who specifies the
                                                  open loop stored value in exchange for                   cashing businesses. Issuers of traveler’s              exact amount, a business must look at
                                                  checks would be ‘‘check cashers’’ for                    checks and money orders will continue                  this activity to determine whether its
                                                  purposes of this rule. As a result, this                 to have SAR reporting requirements                     transactions exceed the activity
                                                  final rule exempts the purchase of any                   with respect to the instruments that they              threshold per person per day. Similarly,
                                                  type of stored value with a check,                       issue.                                                 although traveler’s checks are usually
                                                  monetary instrument, or other                            D. Meaning of the Term ‘‘Issuer or Seller              issued in large round amounts (e.g., $20,
                                                  instrument from being an activity                        of Traveler’s Checks or Money Orders’’                 $50, or $100), the definition is linked to
                                                  subject to the check casher definition.                                                                         the aggregate amount at which those
                                                                                                              This rule combines prior sections
                                                  Stored value related issues generally                    1010.100(ff)(3) (formerly 103.11(uu)(3)),              checks are sold, either directly by the
                                                  will be dealt with in a separate                         ‘‘issuer of traveler’s checks, money                   issuer or at the agent level, to a
                                                  rulemaking, as will be discussed                         orders, or stored value,’’ and                         customer in a single day. All of the
                                                  subsequently.44                                          1010.100(ff)(4) (formerly 103.11(uu)(4)),              commenters who addressed this
                                                     The definition also exempts persons                   ‘‘seller or redeemer of traveler’s checks,             proposal were supportive, though one
                                                  who cash checks for the verified maker                   money orders, or stored value,’’ into                  commenter argued that issuers and
                                                  of a check otherwise buying goods and                    new section 1010.100(ff)(3), ‘‘issuer or               sellers should only be responsible for
                                                  services. One commenter was in favor of                  seller of traveler’s checks or money                   aggregation based on the amount for
                                                  this proposal and one opposed. The                       orders.’’ Issuance and sale of traveler’s              which the instrument is sold to the
                                                  commenter opposed to this proposal                       checks and money orders are similar                    extent that they have actual knowledge
                                                  was concerned that retailers would not                   activities in that they can be covered by              that the transactions involve the same
                                                  be able to verify the maker of a check.                  a single definition. A new, separate                   person and exceed the threshold.
                                                  FinCEN does not believe that this will                   category relating to stored value,                     However, changing the requirement
                                                  be a problem, however, because retailers                 renamed ‘‘Issuer, seller, or redeemer of               from the face value of the instrument to
                                                  can verify the identity of the maker of                  stored value,’’ replaces 1010.100(ff)(4)               the amount for which the instrument is
                                                  the check in any manner that comports                    and is discussed subsequently.45                       sold does not change the aggregation
                                                  with their internal policies. Retailers                     In the Notice, FinCEN proposed to                   requirement. Businesses have the same
                                                  can verify the maker of a check by, for                  clarify the definitions regarding                      aggregation requirements as under the
                                                  example, checking a driver’s license or                  activities related to traveler’s checks and            prior rule, only the determination of the
                                                  other form of identification at the time                 money orders by removing redundant                     amount has changed. The final rule
                                                  of purchase against the name of the                      language and specifying how to                         adopts this proposal without change.
                                                  maker of the check, already a common                     calculate the activity threshold for such              E. Meaning of the Term ‘‘Stored Value’’
                                                  practice of some retailers who accept                    activities. Five commenters addressed
                                                  personal checks. The Notice asked for                    various issues related to the definition                 Under the prior rules, FinCEN
                                                  comment on other types of low risk                       of ‘‘issuer or seller of traveler’s checks             addressed traveler’s checks, money
                                                  check cashing that should be exempt,                     or money orders.’’                                     orders, and stored value under two
                                                  such as government or payroll checks.                       The rule eliminates the ‘‘redeemer’’                separate definitions of providers of
                                                  Several commenters agreed that cashing                   language that is contained in the                      those products: (1) Issuers and (2)
                                                  such low risk checks should be exempt,                   previous definitions. Although the                     sellers or redeemers. The Notice
                                                                                                           previous rules included those who                      proposed to group providers of stored
                                                    43 See Guidance—Definition of Check Casher and

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                                                  BSA Requirements (Jan. 2003), http://
                                                                                                           ‘‘redeem’’ traveler’s checks and money                   46 FinCEN has never held that a business that
                                                  www.fincen.gov/statutes_regs/guidance/html/              orders, traveler’s checks typically are                provides goods or services in exchange for payment
                                                  definition_of_check_casher.html.                                                                                in the form of money orders or traveler’s checks is
                                                    44 See the discussion below under ‘‘Meaning of           45 See the discussion below under ‘‘Meaning of       an MSB. See 1999 Rulemaking, 64 FR at 45447.
                                                  the Term ‘Stored Value’’’ for a discussion of the        the Term ‘Stored Value’’’ for a discussion of the      Accordingly, only a business that redeems these
                                                  relationship of this final rule to the recent Notice     relationship of this final rule to the recent Notice   instruments for currency, or exchanges them for a
                                                  of Proposed Rulemaking ‘‘Definitions and Other           of Proposed Rulemaking ‘‘Definitions and Other         combination of currency and monetary or other
                                                  Regulations Relating to Prepaid Access,’’ 75 FR          Regulations Relating to Prepaid Access,’’ 75 FR        instruments, is considered an MSB, specifically a
                                                  36589 (June 28, 2010).                                   36589 (June 28, 2010).                                 check casher, under the rule.

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                                                  43592              Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  value together, separately from issuers                  language in the BSA.48 The definition                   money transmission, and the persons
                                                  or sellers of traveler’s checks and money                removes the phrase ‘‘engages as a                       engaged in that activity are money
                                                  orders. All of the commenters who                        business’’ as FinCEN continues to                       transmitters subject to the requirements
                                                  addressed this proposal were                             regulate an MSB by its activity and the                 of the BSA.51 To further emphasize the
                                                  supportive. The final rule adopts this                   context in which the activity occurs and                rule’s applicability to these money
                                                  proposal without change.                                 not by its status. The removal of                       transmitters, FinCEN has modified the
                                                     Several commenters noted that stored                  ‘‘engages as a business’’ does not                      final rule to include a specific reference
                                                  value is empirically similar to activity                 broaden the regulation beyond its                       to informal value transfer systems as a
                                                  engaged in by persons defined as                         present scope.49 The commenters were                    means of money transmission.
                                                                                                           generally supportive regarding this                        The regulatory definition of ‘‘money
                                                  ‘‘money transmitters,’’ but the
                                                                                                           change, though one commenter argued                     transmission services’’ also adds the
                                                  mechanisms for directing that the
                                                                                                           that because the statute used the phrase                phrase ‘‘to another location or person.’’
                                                  money be transmitted are different.
                                                                                                           ‘‘engages as a business’’ the regulation                Although this phrase is not in the
                                                  Most commenters on this issue
                                                                                                           also must use the same phrase. The                      statutory definition of money
                                                  recommended treating stored value as a
                                                                                                           change to the regulation, however, does                 transmitting service, it is implicit in the
                                                  separate category of MSB. FinCEN
                                                                                                           not alter the scope or meaning of the                   statutory definition’s use of the word
                                                  agrees, and is therefore treating stored
                                                                                                           rule; the change only clarifies the rule’s              ‘‘transmitting.’’ Transactions involving
                                                  value as a distinct MSB activity, keeping
                                                                                                           application. As a result, it is                         the acceptance of currency from one
                                                  it separate from the category established
                                                                                                           unnecessary to replicate the phrase and                 person at one location and the return of
                                                  for money transmitters, while at the                                                                             that currency to that same person at the
                                                  same time acknowledging that stored                      the final rule adopts this proposal
                                                                                                           without change.                                         same location would not be considered
                                                  value should have more comprehensive                                                                             a money transmission service. The
                                                  anti-money laundering regulation.                           The definition also removes the
                                                                                                           phrase ‘‘whether or not licensed or                     addition of the phrase ‘‘to another
                                                     In 1999, FinCEN issued a final                        required to be licensed.’’ While this                   location or person,’’ explicitly conveys
                                                  rulemaking deferring certain                             phrase reflects language in 31 U.S.C.                   this interpretation.
                                                  requirements for the stored value                        5312, FinCEN finds the phrase to be                        One commenter suggested that the
                                                  industry based on the complexity of the                  unnecessary because it does not add                     phrase ‘‘the acceptance of currency
                                                  industry and the desire to avoid                         substantive value to the meaning of                     * * * from one person AND the
                                                  unintended consequences with respect                     money transmitter.                                      transmission * * * to another location
                                                  to an industry then in its infancy. In                      The regulatory definition of ‘‘money                 or person,’’ indicated that acceptance by
                                                  2009, Congress passed the Credit CARD                    transmission services’’ includes the                    the money transmitter of funds had to
                                                  Act, which required FinCEN to issue                      phrase ‘‘or other value that substitutes                precede any transmission to satisfy the
                                                  regulations relating to stored value. On                 for currency’’ to state that businesses                 definition. If this were the case,
                                                  June 28, 2010, FinCEN issued Notice of                   that accept stored value or currency                    however, it would be easy—particularly
                                                  Proposed Rule Making, Amendment to                       equivalents as a funding source and                     in an electronic environment—to
                                                  the Bank Secrecy Act Regulations—                        transmit that value are providing money                 circumvent this definition by the simple
                                                  Definitions and Other Regulations                        transmission services. FinCEN has                       expedient of transmitting funds a
                                                  Relating to Prepaid Access.47 The                        modified the final rule so that both                    fraction of a second before accepting
                                                  proposed changes to stored value are                     references to ‘‘value’’ in the regulation               them. The activity of money
                                                  generally not reflected in this                                                                                  transmitting, for the purposes of FinCEN
                                                                                                           are expressed as ‘‘value that substitutes
                                                  rulemaking, but will be addressed in a                                                                           regulations, involves both acceptance
                                                                                                           for currency’’ to maintain consistency in
                                                  separate Prepaid Access rule.                                                                                    and transmission, but not necessarily in
                                                                                                           the rule’s language. The word ‘‘such’’
                                                                                                                                                                   that order. FinCEN is concerned about
                                                  F. Meaning of the Term ‘‘Money                           has also been removed from the final
                                                                                                                                                                   the ability to circumvent regulation if it
                                                  Transmitter’’                                            rule to eliminate the possibility of any
                                                                                                                                                                   were to require that the acceptance of
                                                                                                           misinterpretation that a person must
                                                     This rule revises the regulation                                                                              currency must always precede
                                                                                                           receive and transmit the exact same
                                                  interpreting 31 U.S.C. 5312(a)(2)(R),                                                                            transmission. The final rule adopts the
                                                                                                           currency, funds, or other value to be
                                                  which includes money transmitters                                                                                phrase without change.
                                                                                                           covered under the definition of ‘‘money                    The phrase ‘‘any means’’ is defined in
                                                  within the definition of ‘‘financial                     transmitter.’’                                          the prior rule to include transmission
                                                  institution’’ under the BSA. The prior                      By including the transmission of                     ‘‘through a financial agency or
                                                  regulation contained a facts and                         value, the prior and current regulatory                 institution; a Federal Reserve Bank or
                                                  circumstances limitation that excluded                   definitions of ‘‘money transmitter’’ are                other facility of one or more Federal
                                                  from the ‘‘money transmitter’’ definition                worded to include persons engaged in                    Reserve Banks, the Board of Governors
                                                  persons that are engaged in the business                 informal value transfer systems,                        of the Federal Reserve System, or both;
                                                  of money transmission as an integral                     including hawalas.50 Such activity is                   or an electronic funds transfer
                                                  part of the execution and settlement of                                                                          network.’’ The final rule moves the
                                                  the transaction. The ‘‘integral’’                           48 31 U.S.C. 5330 uses the language ‘‘any business
                                                                                                                                                                   phrase ‘‘any means’’ to a different part
                                                  exception includes entities that could                   that provides * * * money transmitting or
                                                                                                           remittance services.’’                                  of the definition only to increase reader
                                                  not engage in their businesses without                      49 FinCEN notes that ‘‘money services business’’     comprehension, and the change in
                                                  engaging in the transmission of funds.                   is defined as ‘‘[a] person wherever located doing       placement of the phrase has no
                                                  This rule clarifies the language of these                business. * * *’’ (emphasis added). 31 CFR              substantive effect on the meaning of the

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                                                  limitations.                                             1010.100(ff).
                                                                                                                                                                   definition. The definition of ‘‘any
                                                                                                              50 ‘‘An ‘informal value transfer system’ refers to
                                                     This rule’s definition of ‘‘money                     any system, mechanism, or network of people that
                                                  transmitter’’ is ‘‘a person who provides                 receives money for the purpose of making the funds      system that operates outside of, or parallel to,
                                                  money transmission services.’’ This                      or an equivalent value payable to a third party in      ‘‘traditional’’ banking or financial channels. See
                                                                                                           another geographic location, whether or not in the      generally FinCEN Advisory FIN–2010–A011
                                                  language is consistent with existing                                                                             (Informal Value Transfer Systems) (September
                                                                                                           same form.’’ FinCEN Advisory Issue 33 (Informal
                                                                                                           Value Transfer Systems) (March 2003). ‘‘Hawala’’ is     2010).
                                                    47 See 75 FR 36589.                                    one name for a type of informal value transfer             51 Id.

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                                                                     Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                                   43593

                                                  means’’ in the final rule also includes a                primary business of coordinating                      other commercial papers, or other value
                                                  specific reference to informal value                     payments either from a debtor to a                    at any point during the transportation.’’
                                                  transfer systems. One commenter                          creditor or, if operating at the point of                This limitation encompasses past
                                                  suggested adding the phrase ‘‘but is not                 sale, from a purchaser to a merchant.54               armored car rulings. The final rule
                                                  limited to’’ following ‘‘‘Any means’                     A payment processor could not provide                 slightly modifies the proposed language
                                                  includes.’’ While FinCEN believes that                   the primary service of coordination                   to make this connection explicit, by
                                                  this clarification is not technically                    without providing ancillary money                     including a specific reference to
                                                  necessary, as ‘‘any means,’’ by its own                  transmission services, but because the                armored cars, and by limiting the
                                                  meaning, encompasses more than the                       money transmission services are                       applicability of the limitation to persons
                                                  listed examples in the regulation, we                    ancillary, and because they are generally             that, like the armored car companies
                                                  will adopt the change to avoid possible                  low risk, it is appropriate for entities              that requested rulings from FinCEN,
                                                  confusion.                                               engaged in this activity to be excluded               were primarily engaged in providing
                                                     The prior regulations also include in                 from the definition. Note, however, that              armored car services. FinCEN
                                                  the definition, ‘‘(B) Any other person                   this limitation only applies to                       previously ruled that although armored
                                                  engaged as a business in the transfer of                 transmission services by payment                      car services may fall within the
                                                  funds.’’ 52 This phrase was removed                      processors on behalf of the creditor or               definition of a ‘‘money transmitter,’’ to
                                                  from the definition in the Notice. The                   seller and not the debtor or buyer. A                 the extent that they transport currency
                                                  final rule, however, includes this phrase                contractual agreement for transmission                on behalf of BSA regulated institutions,
                                                  to minimize any possible confusion                       services between the creditor or seller               they should not be treated as money
                                                  regarding whether there has been a                       and the money transmitter is a relatively             transmitters.55 FinCEN additionally
                                                  change to the scope of the definition of                 controlled flow of money that poses                   determined that an armored car is not a
                                                  ‘‘money transmitter.’’ The scope of the                  little money laundering risk, provided                money transmitter when it moves
                                                  definition of ‘‘money transmitter’’ in                   that the funds are transmitted only to                currency on behalf of a private party to
                                                  this final rule is the same as that of the               the creditor or seller with whom the                  an account or another location of the
                                                  prior regulatory definition.                             payment processor has contracted and                  same party without taking a financial
                                                     As mentioned above, the prior                         not to another location or person. The                stake in the transaction.56
                                                  regulation contained limitations                         final rule adopts this proposal with only                To take advantage of this limitation,
                                                  regarding the definition of a ‘‘money                    a change of punctuation needed for                    the person engaged in physical
                                                  transmitter.’’ 53 The Notice also                        clarity.                                              transportation cannot have more than a
                                                  contained additional limitations that                       ‘‘(C) Operates a clearance and                     custodial interest in what is being
                                                  incorporate existing interpretations of                  settlement system or otherwise acts as                moved at any point during the
                                                  the prior limitation by adding explicit                  an intermediary solely between BSA                    transportation.57 The exclusion does not
                                                  language reflecting policy developed                     regulated institutions. This includes but             apply to such a person if it deposits
                                                  through administrative ruling letters                    would not be limited to the Fedwire                   currency or monetary instruments that it
                                                  and guidance. The limitation language                    system, electronic funds transfer                     is transporting into its own operating
                                                  reads, ‘‘whether a person is a money                     networks, certain registered clearing                 account at a bank, regardless of the
                                                  transmitter as described in this section                 agencies regulated by the SEC, and                    identity of the ultimate recipient of the
                                                  is a matter of facts and circumstances.                  derivatives clearing organizations, or                funds represented by the currency or
                                                  The term ‘money transmitter’ shall not                   other clearinghouse arrangements                      monetary instruments.
                                                                                                           established by a financial agency or                     One commenter suggested adding ‘‘a
                                                  include a person that only * * *’’
                                                                                                           institution. * * *’’ Persons who solely               bailment’’ as an example of ‘‘no more
                                                  engages in the following activity:
                                                     ‘‘(A) Provides the delivery,                          provide a clearance and settlement                    than a custodial interest.’’ FinCEN does
                                                  communication, or network access                         system or act as intermediaries between               not believe that it is necessary to add
                                                  services used by a money transmitter to                  BSA regulated institutions and do not                 this example in the text of the
                                                                                                           provide other types of money                          regulation, but does agree that such a
                                                  support money transmission services.
                                                                                                           transmission services are mere                        status may not confer more than a
                                                  * * *’’ Institutions that are used by
                                                                                                           instrumentalities that the financial                  custodial interest. Another commenter
                                                  money transmitters solely for the
                                                                                                           institutions use to process their                     suggested clarifying ‘‘custodial interest’’
                                                  purpose of providing a medium of
                                                                                                           transfers. Therefore, these                           by adding the phrase ‘‘without
                                                  communication or transportation of
                                                                                                           instrumentalities, such as the credit                 beneficial ownership.’’ While the
                                                  information between money services
                                                                                                           card networks, are not included in the                addition of ‘‘without beneficial
                                                  businesses and their agents, financial
                                                                                                           definition of ‘‘money transmitter.’’ The              ownership’’ might clarify some cases,
                                                  institutions, or service providers are not
                                                                                                           final rule adopts this proposal without               FinCEN believes that it could lead to
                                                  deemed ‘‘money transmitters.’’ No
                                                                                                           change.                                               confusion given its meaning and use in
                                                  commenters addressed this issue, and                                                                           other money laundering contexts. Our
                                                  the final rule adopts this proposal                         ‘‘(D) Physically transports currency,
                                                                                                           other monetary instruments, other                     intent with ‘‘custodial interest’’ is to
                                                  without change.                                                                                                convey that such an entity has no
                                                     ‘‘(B) Acts as a payment processor to                  commercial paper, or other value that
                                                                                                           substitutes for currency as a person                  economic stake (beyond payment for its
                                                  facilitate the purchase or payment of a
                                                  bill for a good or service through a                     engaged in such business from one
                                                                                                                                                                    55 FinCEN Ruling 2004–R003 (Definition of
                                                  clearance and settlement system by                       person to the same person at another
                                                                                                                                                                 Money Services Business) (Aug. 17, 2004). See also
                                                  agreement with the creditor or seller.                   location or to an account belonging to                FinCEN 2003–R007 (Definition of Money

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                                                  * * *’’ Although payment processors                      the same person at a financial                        Transmitter) (Oct. 28, 2003).
                                                  may provide a money transmission                         institution, provided that the person                    56 Id. In such instance, the armored car is merely

                                                                                                           engaged in physical transportation has                a conduit or vehicle and has no control over the
                                                  service, the service is ancillary to their                                                                     financial transaction.
                                                                                                           no more than a custodial interest in the                 57 Our rulings referred to the lack of a ‘‘stake in
                                                    52 31 CFR 1010.100(ff)(5)(i)(b) (formerly 31 CFR       currency, other monetary instruments,                 the transaction’’ in establishing the standard for the
                                                  103.11(uu)(5)(i)(b)).                                                                                          armored car exclusion; we have clarified our
                                                    53 31 CFR 1010.100(ff)(5)(ii) (formerly 31 CFR          54 FinCEN Ruling 2003–R008 (Definition of            wording to ‘‘no more than a custodial interest’’ to
                                                  103.11(uu)(5)(ii)).                                      Money Transmitter) (Nov. 19, 2003).                   qualify for the exclusion.

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                                                  43594               Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  transportation services) in any                          In light of the Prepaid Access NPRM,                   be provided without transmitting funds.
                                                  transaction involving currency, value                    which addresses stored value issues as                 No commenters addressed this issue
                                                  that substitutes for currency, or other                  a separate category of MSB, FinCEN is                  and the final rule adopts this proposal
                                                  monetary instruments being                               excluding stored value in any form from                without change.
                                                  transported. Based on that interpretation                being considered a form of money
                                                                                                                                                                  G. Registration and Service of Legal
                                                  of the phrase, FinCEN adopts the                         transmission.
                                                                                                              Many of the commenters to the Notice                Process
                                                  proposed language.
                                                     This exclusion applies to transport                   regarding stored value were in favor of                   There currently is no provision within
                                                  initiated by any person other than                       treating open and closed loop stored                   31 CFR Chapter X that requires foreign-
                                                  certain BSA-regulated institutions.                      value differently under the regulations.               located MSBs to designate an agent to
                                                  Specifically, when transport is initiated                While FinCEN agrees that the two forms                 accept service of legal process in the
                                                  by a bank, a broker-dealer or other SEC-                 of stored value have different risks and               United States. To enhance the ability of
                                                  regulated financial institution, or a                    vulnerabilities, we believe it is                      U.S. law enforcement and regulatory
                                                  futures commission merchant or other                     appropriate to exclude both forms from                 agencies to reach these MSB registrants,
                                                  CFTC-regulated institution, a transport                  the definition of ‘‘money transmission.’’              FinCEN proposed to add the following
                                                  business such as an armored car is not                   These issues are further addressed by                  language to 31 CFR 1022.380 (formerly
                                                  a money transmitter, regardless of                       the Prepaid Access NPRM.                               31 CFR 103.41): ‘‘(a)(2) Foreign-located
                                                  whether the transport is to another                      Additionally, one commenter noted that                 Money Services Business. Each foreign-
                                                  location or person.                                      the distinctions between open and                      located person engaged in activities in
                                                     Except as indicated above, the final                  closed loop stored value are being                     the United States as a money services
                                                  rule adopts this proposal without                        removed as some closed loop systems                    business shall designate the name and
                                                  change.                                                  can now be international, involve                      address of a person who resides in the
                                                     ‘‘(E) Provides stored value.’’ A person               multiple retailers, and be reloadable.                 United States and is authorized, and has
                                                  who provides stored value is also                        The commenter argued that the                          agreed, to be an agent to accept service
                                                  excluded from the definition of ‘‘money                  distinction should be based on whether                 of legal process with respect to
                                                  transmitter,’’ whether the stored value is               the stored value product has cash access               compliance with this part and shall
                                                  open or closed loop. Furthermore, by                     or not. FinCEN agrees that cash access                 identify the address of the location
                                                  ‘‘provides’’ FinCEN intends that both                    is one aspect of a stored value product                within the United States for records
                                                  entities involved in the sale and                        that is significant in assessing the                   pertaining to paragraph (b)(1)(iii) of this
                                                  management of stored value programs                      product’s risk, along with reloadability,              section.’’ FinCEN received three
                                                  be excluded. For example, a department                   the breadth of retailer acceptance of the              supportive comments on this issue.
                                                  store that offers gift cards that only may               product, and whether the product can                   Accordingly, FinCEN adopts the
                                                  be used at that department store, a                      be used internationally. These issues                  proposal without change, except insofar
                                                  convenience store that sells network                     were addressed in the Prepaid Access                   as the language was changed slightly to
                                                  branded cards that may be used                           NPRM.60 The final rule adopts the above                reflect the corresponding language in
                                                  anywhere like a credit card, or a                        described expanded limitation to the                   the definition of MSB, which was
                                                  program manager who organizes a                          definition of ‘‘money transmitter.’’                   changed from the Notice, discussed
                                                  stored value program and facilitates                        ‘‘(F) Accepts and transmits funds only              above.
                                                  loading the stored value device are not                  integral to the sale of goods or the                      Compliance with the designation of
                                                  subject to the MSB rules as money                        provision of services, other than money                an agent for service of process
                                                  transmitters.                                            transmission services, by the person                   provision, however, will require a
                                                     FinCEN previously determined that a                   who is accepting and transmitting the                  change to FinCEN Form 107,
                                                  person solely issuing, selling, or                       funds.’’                                               Registration of Money Services
                                                  redeeming closed loop stored value is                       Similar to circumstance (B), persons                Business. The current form does not
                                                  not an ‘‘issuer, seller or redeemer of                   that sell goods or provide services other              contain a field in which such an agent
                                                  stored value’’ and was therefore not                     than money transmission services, and                  can be designated. FinCEN will soon
                                                  subject to BSA regulation as an MSB                      only transmit funds as an integral part                publish a new proposed form for notice
                                                  under that MSB category.58 This limited                  of that sale of goods or provision of                  and comment which makes a number of
                                                  exclusion, however, did not imply that                   services, are not money transmitters. For              conforming changes to reflect this final
                                                  all persons who provided open loop                       example, brokering the sale of                         rule, including adding a checkbox to
                                                  stored value were money transmitters.                    securities, commodity contracts, or                    indicate whether an MSB is foreign
                                                  In part, this is because a significant                   similar instruments is not money                       located and allowing for designation of
                                                  amount of the open loop stored value                     transmission notwithstanding the fact                  an agent for service of process.
                                                  issued within the United States is                       that the person brokering the sale may                 Accordingly, this rule provides that
                                                  issued by or through a depository                        move funds back and forth between the                  compliance with 31 CFR 1022.380 is not
                                                  institution, a category of financial                     buyer and seller to effect the                         required until six months after the date
                                                  institution that expressly is excluded                   transaction. Similarly, this limitation                of publication of this final rule in the
                                                  from the definition of MSB by statute                    would apply to a debt management                       Federal Register, by which time the
                                                  and regulation.59 The Notice proposed                    company that made payments to                          revised FinCEN Form 107, Registration
                                                  only excluding ‘‘providers of closed                     creditors as the conduit for a negotiated              of Money Services Business, will be
                                                  loop stored value’’ from the definition.                 schedule of payments from the debtor to                final and available.

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                                                                                                           its creditors.61 The person who is                     V. Regulatory Flexibility Act
                                                    58 See FinCEN Ruling 2003–R004 (Definition of
                                                                                                           accepting and transmitting the funds is
                                                  Money Transmitter/Stored Value (Gift Certificates/       offering a service other than money                      Pursuant to the Regulatory Flexibility
                                                  Gift Cards)) (Aug. 15, 2003) (FinCEN does not
                                                                                                           transmission services which could not                  Act (RFA) (5 U.S.C. 601 et seq.), FinCEN
                                                  currently interpret the definition of stored value to                                                           certifies that these regulation revisions
                                                  include closed system products such as a mall-wide
                                                  gift card program).                                           60 See 75 FR 36589, 36599.                        will not have a significant economic
                                                     59 See 31 U.S.C. 5330(d)(1)(C); 31 CFR                 61 See FinCEN Ruling 2004–R004 (Definition of         impact on a substantial number of small
                                                  1010.100(ff) (formerly 31 CFR 103.11(uu)).               Money Services Business) (Nov. 24, 2004).              entities. Because most MSBs are small

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                                                                     Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations                                           43595

                                                  entities, this rule will affect a                        MSB. With the exception of foreign-                   VII. Executive Order 12866 and
                                                  substantial number of small entities.                    located MSBs, this rulemaking does not                Executive Order 13563
                                                  Although a substantial number of small                   impose any new reporting or                              Executive Orders 12866 and 13563
                                                  entities are affected, the economic                      recordkeeping requirements. Instead, it               direct agencies to assess all costs and
                                                  impact of this rulemaking is not                         merely clarifies the current scope of the             benefits of available regulatory
                                                  significant. This rulemaking imposes no                  existing MSB definitions and related                  alternatives and, if regulation is
                                                  new recordkeeping or reporting                           rules. To the extent that we have                     necessary, to select regulatory
                                                  requirements on MSBs, with the                           eliminated any uncertainty or                         approaches that maximize net benefits
                                                  possible exception of foreign-located                    ambiguities with this rule and to the                 (including potential economic,
                                                  MSBs. In fact, some commenters noted                     extent that we have narrowed the scope                environmental, public health and safety
                                                  that this rule will have a modest                        of businesses subject to reporting or                 effects, distributive impacts, and
                                                  reduction in reporting burden.                           recordkeeping requirements, we have                   equity). Executive Order 13563
                                                     In large part, the rule updates the                   not in the aggregate expanded, and may                emphasizes the importance of
                                                  MSB definitions to integrate past                        in fact have in the aggregate reduced,                quantifying both costs and benefits, of
                                                  guidance and rulings into the regulatory                 regulatory obligations.62                             reducing costs, of harmonizing rules,
                                                  text. Incorporating existing                                Description of Affected Financial                  and of promoting flexibility. This rule
                                                  interpretations into the regulatory text                 Institutions: Money Services Businesses               has been designated a ‘‘significant
                                                  would have no impact on small entities                   as defined in 31 CFR 1010.100(ff)                     regulatory action’’ although not
                                                  that have been aware of these                            (formerly 31 CFR 103.11(uu)).                         economically significant, under section
                                                  interpretations for years. Even if an MSB                                                                      3(f) of Executive Order 12866.
                                                  was unfamiliar with the existing                            Estimated Number of Affected
                                                                                                           Financial Institutions: 42,000.                       Accordingly, the rule has been reviewed
                                                  guidance and rulings, these regulatory                                                                         by the Office of Management and
                                                  changes will not impose a significant                       Estimated Average Annual Burden
                                                                                                           Hours per Affected Financial                          Budget.
                                                  economic impact. First, this final rule is
                                                  limited to revising the MSB definitions                  Institution: The estimated average                    VIII. Unfunded Mandates Act of 1995
                                                  to make clearer what activities subject a                decrease in burden associated with the                Statement
                                                  person to the BSA rules pertaining to                    recordkeeping requirements in this final                 Section 202 of the Unfunded
                                                  MSBs. This change provides additional                    rule is one hour per affected financial               Mandates Reform Act of 1995
                                                  certainty without adding additional                      institution.                                          (‘‘Unfunded Mandates Act’’), Public
                                                  burden. Second, as previously stated,                       Estimated Total Annual Burden:                     Law 104–4 (March 22, 1995), requires
                                                  the rule clarifies that certain foreign-                 Minus 42,000 hours from OMB control                   that an agency prepare a budgetary
                                                  located MSBs with a U.S. presence,                       number 1506–0052.                                     impact statement before promulgating a
                                                  such as having U.S. customers or                            In the Notice, FinCEN invited                      rule that may result in expenditure by
                                                  recipients, are subject to the BSA rules.                comment on: Whether the proposed                      state, local, and tribal governments, in
                                                  Finally, the rule makes minimal                          collection of information was necessary               the aggregate, or by the private sector, of
                                                  nomenclature changes with respect to                     for the proper performance of FinCEN’s                $100 million or more in any one year.
                                                  certain MSB categories to help clarify                   mission; the accuracy of the estimated                If a budgetary impact statement is
                                                  distinctions.                                            burden associated with the proposed                   required, section 202 of the Unfunded
                                                     In addition, the rulemaking combines                  collection of information; how the                    Mandates Act also requires an agency to
                                                  all of stored value into one category,                   quality, utility, and clarity of the                  identify and consider a reasonable
                                                  without substantively changing the                       information to be collected may be                    number of regulatory alternatives before
                                                  existing definition. This structural                     enhanced; and how the burden of                       promulgating a rule. FinCEN has
                                                  change will not affect small entities.                   complying with the proposed collection                determined that it is not required to
                                                  Accordingly, a regulatory flexibility                    of information may be minimized,                      prepare a written statement under
                                                  analysis is not required.                                including through the application of                  section 202 and has concluded that on
                                                  VI. Paperwork Reduction Act Notices                      automated collection techniques or                    balance this rulemaking provides the
                                                     The collection of information                         other forms of information technology.63              most cost-effective and least
                                                  contained in this final rule has been                    Commenters did not address these                      burdensome alternative to achieve the
                                                  approved by the Office of Management                     issues specifically. However,                         objectives of the rule.
                                                  and Budget in accordance with the                        commenters stated that clarifying the
                                                                                                           definitions will reduce the reporting                 List of Subjects in 31 CFR Parts 1010,
                                                  Paperwork Reduction Act of 1995 (44                                                                            1021 and 1022
                                                  U.S.C. 3507(d)) under control numbers                    burden on MSBs.
                                                                                                              Under the Paperwork Reduction Act,                   Authority delegations (Government
                                                  1506–0004, 1506–0013, 1506–0015,
                                                                                                           an agency may not conduct or sponsor                  agencies), Banks and banking, Currency,
                                                  1506–0020, 1506–0052. Based on
                                                                                                           a collection of information, and a person             Investigations, Law enforcement,
                                                  comments received, the clarification of
                                                                                                           is not required to respond to a collection            Reporting and recordkeeping
                                                  the definitions in 31 CFR 1010.100(ff)
                                                                                                           of information, unless it displays a valid            requirements.
                                                  (formerly 31 CFR 103.11(uu)) will likely
                                                  reduce the reporting burden for most                     OMB control number.                                   Authority and Issuance
                                                  MSBs. Certain foreign-located MSBs                                                                               For the reasons set forth above,
                                                  conducting business in the United                          62 This amendment to 31 CFR 1010.100 (formerly
                                                                                                                                                                 FinCEN is amending 31 CFR Parts 1010,
                                                  States may see an increase in their                      31 CFR 103.11) and 31 CFR 1022.380 (formerly 31

wreier-aviles on DSKDVH8Z91PROD with RULES
                                                                                                           CFR 103.41) makes explicit that certain foreign-      1021 and 1022 as follows:
                                                  obligation to collect and report                         located persons that conduct MSB operations in the
                                                  information. However, any such                           United States must register with FinCEN as an MSB     PART 1010—GENERAL PROVISIONS
                                                  potential must be weighed against the                    and will be subject to certain BSA recordkeeping
                                                  reduction in burden to be achieved by                    and reporting requirements.                           ■ 1. The authority citation for part 1010
                                                                                                             63 Amendment to Bank Secrecy Act Regulations;
                                                  clarifying the exceptions we have made                                                                         continues to read as follows:
                                                                                                           Definitions and Other Regulations Relating to
                                                  explicit regarding the type of business                  Money Services Businesses, 74 FR 22129 (May 12,         Authority: 12 U.S.C. 1829b and 1951–
                                                  activity that would make a business an                   2009).                                                1959; 31 U.S.C. 5311–5314, 5316–5332; title

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                                                  43596                Federal Register / Vol. 76, No. 140 / Thursday, July 21, 2011 / Rules and Regulations

                                                  III, secs. 311, 312, 313, 314, 319, 326, 352,                 (D) A person that redeems its own                  certain registered clearing agencies
                                                  Pub. L. 107–56, 115 Stat. 307.                             checks; or                                            regulated by the Securities and
                                                  ■ 2. Section 1010.100 is amended by:
                                                                                                                (E) A person that only holds a                     Exchange Commission (‘‘SEC’’), and
                                                  ■ a. Revising paragraph (ff) introductory                  customer’s check as collateral for                    derivatives clearing organizations, or
                                                  text;                                                      repayment by the customer of a loan.                  other clearinghouse arrangements
                                                  ■ b. Revising paragraph (ff)(1);                              (3) Issuer or seller of traveler’s checks          established by a financial agency or
                                                  ■ c. Revising paragraph (ff)(2);                           or money orders. A person that                        institution;
                                                  ■ d. Revising paragraph (ff)(3);                              (i) Issues traveler’s checks or money                 (D) Physically transports currency,
                                                  ■ e. Revising paragraph (ff)(4);                           orders that are sold in an amount greater             other monetary instruments, other
                                                  ■ f. Revising paragraph (ff)(5);                           than $1,000 to any person on any day                  commercial paper, or other value that
                                                  ■ g. Adding and reserving paragraph                        in one or more transactions; or                       substitutes for currency as a person
                                                  (ff)(7); and                                                  (ii) Sells traveler’s checks or money              primarily engaged in such business,
                                                  ■ h. Adding paragraph (ff)(8) as follows.                  orders in an amount greater than $1,000               such as an armored car, from one person
                                                                                                             to any person on any day in one or more               to the same person at another location
                                                  § 1010.100       General definitions.                      transactions.                                         or to an account belonging to the same
                                                  *       *    *     *     *                                    (4) Issuer, seller, or redeemer of stored          person at a financial institution,
                                                     (ff) Money services business. A person                  value. A person that                                  provided that the person engaged in
                                                  wherever located doing business,                              (i) Issues stored value (other than a              physical transportation has no more
                                                  whether or not on a regular basis or as                    person that does not issue such stored                than a custodial interest in the currency,
                                                  an organized or licensed business                          value in an amount greater than $1,000                other monetary instruments, other
                                                  concern, wholly or in substantial part                     to any person on any day in one or more               commercial paper, or other value at any
                                                  within the United States, in one or more                   transactions); or                                     point during the transportation;
                                                  of the capacities listed in paragraphs                        (ii) Sells or redeems stored value                    (E) Provides stored value; or
                                                  (ff)(1) through (ff)(6) of this section. This              (other than a person that does not sell                  (F) Accepts and transmits funds only
                                                  includes but is not limited to                             or redeem stored value for an amount                  integral to the sale of goods or the
                                                  maintenance of any agent, agency,                          greater than $1,000 from any person on                provision of services, other than money
                                                  branch, or office within the United                        any day in one or more transactions).                 transmission services, by the person
                                                  States.                                                       (5) Money transmitter—(i) In general.              who is accepting and transmitting the
                                                     (1) Dealer in foreign exchange. A                          (A) A person that provides money                   funds.
                                                  person that accepts the currency, or                       transmission services. The term ‘‘money
                                                  other monetary instruments, funds, or                      transmission services’’ means the                     *       *    *     *     *
                                                                                                             acceptance of currency, funds, or other                  (7) [Reserved].
                                                  other instruments denominated in the
                                                                                                                                                                      (8) Limitation. For the purposes of
                                                  currency, of one or more countries in                      value that substitutes for currency from