NPRM: Special measure regarding CVC mixing as a class of transactions of primary money laundering concern (88 FR 72701) (Part 2 of 2)

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

Fincen

2

2023-10-23

Document text

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

special                   applicability of the proposed definition
                                                illustrate how the recommended                          measure one reporting and                             of ‘‘covered transactions’’?
                                                revisions would improve upon the                        recordkeeping requirements, as                        Alternatively, are there other
                                                definition as proposed.                                 proposed, impose expected costs to                    clarifications to the definitions in this
                                                C. Alternatives                                         covered financial institutions; state,                NPRM, or other modifications to the
                                                                                                        local, or tribal governments; or the                  proposed regulatory text that would
                                                  1. Is FinCEN’s proposal of enhanced                   private sector in excess of $177 million              meaningfully clarify when a covered
                                                recordkeeping under section 311’s                       annually? $200 million annually?                      transaction occurs that would warrant
                                                special measure one most appropriate to                 Where possible, please provide data or                reporting? If so, please describe.
                                                the objectives of this proposed rule?                   studies from an identifiable source that                 12. Is FinCEN correct in its
                                                Where possible, please provide                          would support the response or describe                assessment that covered financial
                                                suggestions for alternative means of                    why a source cannot be identified.                    institutions would have access to
                                                achieving the objectives and illustrate                    4. To what extent should FinCEN                    reasonable and appropriate services or
                                                how such means would work in                            consider the potential costs to currently             tools, whether free or paid, to be able to
                                                practice.                                               unregistered or otherwise non-reporting               effectively identify covered
                                                  2. Would section 311’s special                        entities that, if compliant, would incur              transactions? If not, what are
                                                measures two through five be more                       costs if special measure one is adopted               impediments to accessing such tools,
                                                appropriate to apply? If so, please                     as proposed? If possible, please                      and what costs would be associated
                                                explain why.                                            illustrate either quantitatively or                   with gaining access?
                                                D. Recordkeeping and Reporting                          qualitatively (by way of example or                      13. To what extent could public
                                                                                                        anecdote) how the recommended level                   guidance or other informational
                                                   1. Is the scope of the recordkeeping                 of consideration would improve                        materials regarding compliance with the
                                                requirement appropriate?                                FinCEN’s estimate of regulatory impact.               requirements of proposed special
                                                   2. Is the list of information to be                     5. Are there any material facts, data,             measure one (such as FAQs, pre-
                                                collected and reported appropriate to                   circumstances, or other considerations                recorded instructional audio-visual
                                                address the stated primary money                        that, had they been included in                       resources, or in-person presentations
                                                laundering concern?                                     FinCEN’s regulatory impact analysis,                  with industry groups) meaningfully
                                                   3. Is the proposed mechanism for                     would have both improved the                          reduce costs to covered financial
                                                submission appropriate for the purpose                  precision and accuracy of the analysis                institutions? Please describe any
                                                of this proposed rule?                                  and substantially altered the assessment              preferred method(s), as well as any
                                                   4. Are there any alternative methods                 of the proposed rule’s impact? If so,                 qualitative or quantitive estimates of the
                                                of submitting reports in an efficient and               please provide, including attribution to              extent to which costs are expected to be
                                                effective manner that FinCEN should                     the sources of such information, where                reduced.
                                                consider utilizing?                                     possible.
                                                   5. Are the proposed reporting and                       6. Would the adoption of special                   VIII. Regulatory Impact Analysis
                                                recordkeeping requirements discussed                    measure one reporting and                               FinCEN has analyzed this proposed
                                                in Section VI.B.1 and 3 appropriately                   recordkeeping requirements, as                        rule under Executive Orders 12866,
                                                scoped? Are there additional types of                   proposed, impose significant costs on                 13563, and 14094, the Regulatory
                                                information regarding reportable                        covered financial institutions that are

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                                                                                                                                                              Flexibility Act,81 the Unfunded
                                                transactions or customers that should be                small entities? On other small entities               Mandates Reform Act,82 and the
                                                collected?                                              that are not covered financial                        Paperwork Reduction Act.83
                                                   6. Should the proposed reporting and                 institutions? Where possible, please
                                                recordkeeping requirements apply to                     provide data or studies from an                         81 5 U.S.C. 603.
                                                covered financial institutions that are                 identifiable source that would support                  82 12 U.S.C. 1532, Public Law 104–4 (Mar. 22,
                                                the originator institution, the                         the response or describe why a source                 1995).
                                                beneficiary institution, or both?                       cannot be identified.                                   83 44 U.S.C. 3507(a)(1)(D).

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                                                                        Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                                   72713

                                                   As discussed above,84 the intended                     primary money laundering concern.                     externality insofar as the reporting
                                                effects of the imposition of special                      Therefore, under this proposal, the                   entity incurs expenses in connection
                                                measure one to CVC mixing are twofold.                    implied burden would shift from                       with such reporting that are not directly,
                                                The rule is expected to: (1) facilitate the               determining when a CVC transaction is                 fully compensated. As such, the
                                                investigation and prosecution of illicit                  reportable to determining when it is not              marginal social benefit of reporting
                                                activities by parties using CVC mixing                    reportable.                                           exceeds the private costs. Consequently,
                                                in furtherance of their unlawful                             FinCEN has considered the regulatory               in the absence of imposing a social
                                                objectives 85 and, in many cases,86                       impact of the proposed rule and the                   (compliance-related) cost to non-
                                                consequent private enrichment; and (2)                    economic consequences these changes                   reporting, the entity-specific
                                                disincentivize the use of CVC mixing in                   would entail. The subsequent analysis                 equilibrium level of reporting will
                                                connection with money laundering and                      details FinCEN’s finding that, in                     always be less than the social optimum.
                                                other financial crimes by reducing the                    proportion to the thousands of covered
                                                                                                                                                                Furthermore, from a microeconomic- or
                                                likelihood that such CVC mixing will                      financial institutions subject to
                                                                                                                                                                a more industrial-organization-level of
                                                adequately insulate the underlying                        FinCEN’s general reporting and
                                                                                                                                                                analysis, there are competitive reasons
                                                transactions from identification and                      recordkeeping requirements, relatively
                                                                                                                                                                why, absent a uniform reporting
                                                traceability.87 In the analysis below,                    few are exposed to CVC mixing and,
                                                                                                          additionally, proportionally few                      requirement, no single covered financial
                                                FinCEN discusses the economic effects
                                                                                                          transactions per exposed financial                    institution that knows, suspects, or has
                                                that are expected to accompany
                                                adoption of the rule as proposed and                      institution covered under the proposed                reason to suspect CVC mixing would
                                                assess such expectations in more                          rule are likely to trigger the new                    benefit from competing lower on the
                                                granular detail. This discussion                          recordkeeping and reporting                           perceived level of quality in privacy. In
                                                includes a detailed explanation of                        requirements, of which fewer still may                such a setting, achieving the socially
                                                certain ways FinCEN’s conclusions may                     provide actionable information.                       optimal level of reporting would again
                                                be sensitive to methodological choices                    However, any one reportable                           be unobtainable in the absence of a
                                                and underlying assumptions made in                        transaction, by nature of the underlying              policy intervention (such as the
                                                drawing inferences from available data.                   illicit and potentially dangerous activity            proposed reporting and recordkeeping
                                                Throughout, these have been outlined                      it facilitates, could provide large                   requirements).
                                                so that the public may review and                         benefits to FinCEN and law enforcement                   In this proposal, FinCEN is mindful
                                                provide comment.88                                        if identified, or, alternatively framed,              that certain unintended, responsive
                                                                                                          could impose substantial costs and                    changes in behavior may reduce the
                                                A. Assessment of Impact                                   serious national security risks if                    efficacy of this rule or otherwise
                                                  By requiring covered financial                          unreported.90                                         attenuate the intended net benefits by
                                                institutions to implement special
                                                                                                          1. Broad Economic Considerations                      limiting the scope of benefits or by
                                                measure one, the proposed rule would
                                                                                                                                                                increasing the costs of compliance.
                                                impose additional obligations on these                       At present, in the absence of an
                                                                                                                                                                Additionally, the attendant costs and
                                                institutions to report transactions that                  obligation to comply with special
                                                they know, suspect, or have reason to                     measure one requirements, a covered                   benefits per reported transaction may
                                                suspect involve CVC mixing because                        financial institution may determine that              not be uniformly distributed across the
                                                FinCEN has determined that CVC                            a financial transaction exposed,                      affected covered financial institutions.
                                                mixing, as a class of transactions, is of                 directly 91 or indirectly,92 to CVC                   There may also be broader
                                                primary money laundering concern.                         mixing bears indicia of illicit activity.             programmatic costs or repercussions to:
                                                  The imposition of this special                          Given the potential link to illicit                   (1) the specific framing of CVC mixing
                                                measure may require a shift in reporting                  activity, this financial institution might            and CVC mixers as proposed; 94 (2) the
                                                practices, particularly with regard to the                file a SAR in compliance with existing                framing of CVC mixing activity as
                                                determination a covered financial                         BSA requirements. However, there are a                categorically foreign-state-operated,
                                                institution would otherwise first need to                 number of potential reasons why any                   -located, or otherwise -adjacent; (3) the
                                                make: that a transaction involving CVC                    one individual institution may not file               reporting and recordkeeping
                                                mixing is suspicious and therefore                        such a report, including that in terms of             requirements being applicable to
                                                reportable under the applicable SAR                       economic fundamentals, such reporting                 domestic financial institutions only; and
                                                Rule.89 The reporting and recordkeeping                   may not be privately optimal.                         (4) allowing an in-the-course-of-
                                                requirements under special measure one                    Consequently, the absence of the                      business exemption to covered financial
                                                would instead guide a covered financial                   proposed special measure one reporting                institutions, that each remain
                                                institution to presume transactions that                  requirement might naturally result in                 unquantified in the following impact
                                                involve CVC mixing are inherently of                      systematic underreporting of CVC                      analysis. Nevertheless, FinCEN has
                                                                                                          mixing-related suspicious activity,                   made a studied 95 and advised 96
                                                  84 See, specifically discussion supra Section IV. C.
                                                                                                          particularly when the exposure to CVC                 determination that these considerations
                                                See generally discussion supra Section II.                mixing does not involve a CVC mixer.
                                                  85 See, e.g., discussion of Axie Infinity heist supra
                                                                                                                                                                are outweighed by the primary money
                                                Section III.B.
                                                                                                          As discussed above, preliminary                       laundering concern that animates this
                                                  86 See, e.g., discussion of use in connection with      evidence suggests that this                           proposal and are therefore not further
                                                darknet market transactions and laundering the            underreporting occurs.93                              incorporated in the subsequent
                                                proceeds of ransomware attacks supra Sections III.B          In terms of economic fundamentals,                 discussion.

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                                                and IV.A.                                                 reporting on transactions exposed to
                                                  87 See discussion supra Section IV.C.
                                                  88 See Section VII.E.
                                                                                                          CVC mixing produces a positive                          94 See invitation for public comment on potential

                                                  89 See, e.g., FinCEN 2019 CVC Guidance supra                                                                  costs and repercussions supra Section VII.B.
                                                                                                            90 See, e.g., discussion supra Sections III.B and     95 31 U.S.C. 5318A(a)(4)(B). See discussion supra
                                                note 16 and FinCEN, Reporting Suspicious Activity
                                                A Quick Reference Guide for Money Services                IV.A.                                                 Section I.
                                                                                                            91 See infra note 121.                                96 See discussion of 31 U.S.C. 5318A(c)(1)
                                                Businesses, September, 2007, available at https://
                                                                                                            92 See infra note 122.
                                                www.fincen.gov/sites/default/files/shared/report_                                                               requirements supra Section I. See also discussion
                                                reference.pdf.                                              93 See discussion supra Section IV.A.3.             of 31 U.S.C. 5318A(a)(4)(A) supra Sections I and V.

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                                                72714                           Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules

                                                2. Institutional Baseline and Affected                                       of special measure one would,                                                 1010.100(t).99 Table 1 (below) reports an
                                                Parties                                                                      independently, alter the registration and                                     annual maximum of potentially affected
                                                                                                                             compliance choices already made by                                            entities based on FinCEN’s most recent
                                                   In proposing this rule, FinCEN                                            such affected parties, quantitative                                           estimates of the total number of entities
                                                considered the incremental impacts of                                        portions of the subsequent analysis have                                      that meet the respective regulatory
                                                imposing special measure one relative                                        not attempted to estimate the number of,                                      definitions.100 Estimates of potentially
                                                to the current state of the affected                                         or magnitude of effects on, unregistered                                      affected money services businesses by
                                                markets and their participants. This                                         or otherwise non-compliant entities that                                      subcategories as defined in 31 CFR
                                                baseline analysis of the parties that                                        FinCEN qualitatively might expect to be                                       1010.100(ff) are intended to aid in
                                                would be affected by the proposed rule,                                      affected by the rule. Because both these
                                                                                                                                                                                                           subsequent discussion, which details
                                                their current obligations, and common                                        considerations may have first-order
                                                                                                                                                                                                           our assumptions about differences in
                                                activities satisfies certain analytical best                                 effects on the expected magnitude of
                                                practices 97 by detailing the implied                                        certain outcomes, the public is invited                                       expected compliance burdens by group.
                                                alternative of not pursuing the                                              to provide further insights or                                                Estimates in parentheses reflect the total
                                                proposed, or any other, regulatory                                           information—particularly, data or                                             number of registered money services
                                                action. This baseline also forms the                                         quantitative studies—that could                                               businesses that self-identified their
                                                counterfactual against which the                                             contribute to a more precise or more                                          business by the given service
                                                quantifiable effects of the rule are                                         accurate estimation of impact.98                                              subcategory as defined in 31 CFR
                                                measured; therefore, substantive errors                                                                                                                    1010.100(ff), among others.101 Money
                                                                                                                             (i) Baseline of Affected Parties                                              services business subcategory estimates
                                                in or omissions of relevant data, facts,
                                                or other information may affect the                                          (A) Covered Financial Institutions                                            outside parentheses represent the
                                                conclusions formed regarding the                                               The parties expected to comply with                                         number of entities that self-identified as
                                                general and/or economically significant                                      the special measure one include any                                           registering (and reporting) singularly
                                                impacts of the rule. Additionally,                                           and all domestic covered financial                                            due to the requirements for that
                                                because it is unclear that the imposition                                    institutions as defined in 31 CFR                                             subcategory.

                                                                                                TABLE 1—ESTIMATES OF AFFECTED FINANCIAL INSTITUTIONS BY TYPE
                                                                                                                                                                                                                                                          Number of
                                                                                                                              Financial institution type a                                                                                                 entities

                                                Bank b ...............................................................................................................................................................................................            c 9,850

                                                Broker/Dealer in Securities d ............................................................................................................................................................                        e 3,540

                                                Money Services Business f ..............................................................................................................................................................                        g 25,710

                                                Dealer in Foreign Exchange h ..........................................................................................................................................................                     i 190 (3,000)

                                                Check Casher j .................................................................................................................................................................................         k 5,960 (21,970)

                                                Issuer/Seller of Traveler’s Checks/Money Orders l .........................................................................................................................                                        m 380

                                                Provider of Prepaid Access n ...........................................................................................................................................................                       o 20 (130)

                                                Seller of Prepaid Access p ...............................................................................................................................................................                   q 40 (2,220)

                                                U.S. Postal Service r ........................................................................................................................................................................                         s0

                                                Money Transmitter t .........................................................................................................................................................................             u 450 (16,460)

                                                Telegraph Company v ......................................................................................................................................................................                            w0

                                                Casino x ............................................................................................................................................................................................               y 990

                                                Card Club z .......................................................................................................................................................................................               aa 270

                                                Person subject to supervision by any State or Federal Bank Supervisory Authority bb .................................................................                                                              cc N/A

                                                Futures Commission Merchant dd ....................................................................................................................................................                                 ee 60

                                                Introducing Broker in Commodities ff ...............................................................................................................................................                              gg 970

                                                Mutual Fund hh .................................................................................................................................................................................                  ii 1,380

                                                   a As typographically grouped in 31 CFR X 1010.100(t) and (ff), respectively.
                                                   b See 31 CFR 1010.100(t)(1); see also 31 CFR 1010.100(d).
                                                   c Counts of certain types of banks, savings associations, thrifts, and trust companies are from Q1 2023 Federal Financial Institutions Examina-
                                                tion Council (FFIEC) Call Report data, available at https://cdr.ffiec.gov/public/pws/downloadbulkdata.aspx. Data for institutions that are not in-
                                                sured, are insured under non-FDIC deposit insurance regimes, or do not have a Federal functional regulator are from the FDIC’s Research Infor-
                                                mation System, available at https://www.fdic.gov/foia/ris/index.html. Credit union data are from the NCUA for Q1 2023, available at https://
                                                www.ncua.gov/analysis/credit-union-corporate-call-report-data.
                                                   d 31 CFR 1010.100(t)(2).
                                                   e According to the SEC, the number of brokers or dealers in securities for the fiscal year 2022 is 3,538. See Securities and Exchange Commis-
                                                sion, Fiscal Year 2024 Congressional Budget Justification, p. 32, available at https://www.sec.gov/files/fy-2024-congressional-budget-justification_
                                                final-3-10.pdf.
                                                   f 31 CFR 1010.100(t)(3).
                                                   g From FinCEN’s publicly available MSB data (https://www.fincen.gov/msb-registrant-search) as of September 1, 2023.
                                                   h 31 CFR 1010.100(ff)(1).
                                                   i Value in parentheses reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search on August 1, 2023, including
                                                MSB Activities key 415. Alternative value reflects entries with exclusively key 415.
                                                   j 31 CFR 1010.100(ff)(2).
                                                   k Value in parentheses reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search on August 1, 2023, including

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                                                MSB Activities key 408. Alternative value reflects entries with exclusively key 408.

                                                  97 See specifically E.O. 12866 Section 1(a) (‘‘In                             99 See discussion supra Section VI.A.4; see also                           Such differences are not expected to be
                                                deciding whether and how to regulate, agencies                               proposed amendment 31 CFR 1010.662(a)(4) infra                                economically meaningful.
                                                should assess all costs and benefits of available                            Section IX.                                                                     101 For the full list of non-exclusive subcategories
                                                                                                                                100 Numbers presented here may differ slightly
                                                regulatory alternatives, including the alternative of                                                                                                      a money services business may use to self-identify
                                                not regulating.’’).                                                          from those presented in other, concurrent agency
                                                                                                                                                                                                           when submitting a registration see msb.fincen.gov/
                                                                                                                             rulemaking because estimates in this analysis are
                                                  98 See, e.g., supra Section VII.E.
                                                                                                                             rounded to the nearest ten for ease of aggregation.                           definitions/msbKey.php.

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                                                                       Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                                   72715
                                                   l 31 CFR 10101.100(ff)(3).
                                                   m Value reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search on August 1, 2023 with, exclusively, one of
                                                the MSB Activities keys 401 (Issuer of traveler’s checks), 402 (Seller of traveler’s checks), 404 (Issuer of money orders), or 405(Seller of money
                                                orders). Because of the numerous (134) alternative combinations of at least one of the 4 keys with at least one of the other three keys and, in
                                                some cases, other keys as self-reported by registrants, no suitable alternative combination of key values could be determined as most appro-
                                                priately and uniquely representative in light of concerns about multiplicative counting of affected parties. FinCEN estimates therefore default to
                                                the upper bound of all MSB registrants for this category of parties collectively incurring a regulatory compliance burden.
                                                   n 31 CFR 1010.100(ff)(7)(i)–(ii).
                                                   o Value in parentheses reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search on August 1, 2023 including
                                                MSB Activities key 414(Provider of prepaid access). Alternative value reflects entries with exclusively key 414.
                                                   p 31 CFR 1010.100(ff)(4)(i)–(iii).
                                                   q Value in parentheses reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search including MSB Activities key
                                                413. Alternative value reflects entries with exclusively key 413.
                                                   r 31 CFR 1010.100(ff)(6).
                                                   s FinCEN does not expect the U.S. Postal Service, as defined in 31 CFR 1010.100(ff)(6) to incur any recordkeeping or reporting obligations in
                                                connection with this rule.
                                                   t 31 CFR 1010.100(ff)(5).
                                                   u Value in parentheses reflects all entries in data downloaded from https://www.fincen.gov/msb-registrant-search including MSB Activities key
                                                409. Alternative value reflects entries with exclusively key 409.
                                                   v 31 CFR 1010.100(t)(4).
                                                   w As an estimate of uniquely registered, potentially affected entities, FinCEN expects this category to contain no additional persons or organi-
                                                zations not already included in other counts, particularly as money transmitters.
                                                   x 31 CFR 1010.100(t)(5)(i)–(iii).
                                                   y According to the American Gaming Association (AGA), there are 468 commercial casinos and 523 tribal casinos as of Dec. 31, 2022. See
                                                American Gaming Association, State of the States: annual report, May 2023, available at https://www.americangaming.org/wp-content/uploads/
                                                2023/05/AGA-State-of-the-States-2023.pdf p. 16.
                                                   z 31 CFR 1010.100(t)(6)(i)–(ii).
                                                   aa According to the American Gaming Association (AGA), there are 266 card rooms as of Dec. 31, 2022.
                                                   bb 31 CFR 1010.100(t)(7).
                                                   cc It is unclear to FinCEN at this time whether any entities exist in this category that for purposes of being counted towards unique affected
                                                parties incurring burdens associated with the rule, if adopted as proposed, are not already captured by concurrent status in another category of
                                                financial institution under the 31 CFR 1010.100(t) definition. To the extent that additional data can better inform this estimate, public comment is
                                                invited.
                                                   dd 31 CFR 1010.100(t)(8).
                                                   ee There are 60 futures commission merchants as of June 30, 2023, according to the CFTC website. See Commodity Futures Trading Com-
                                                mission, Financial Data for FCMs, available at https://www.cftc.gov/MarketReports/financialfcmdata/index.htm.
                                                   ff 31 CFR 1010.100(t)(9).
                                                   gg According to CFTC, there are 969 introducing brokers in commodities as of April 30, 2023.
                                                   hh 31 CFR 1010.100(t)(10).
                                                   ii According to the SEC, as of December 2022 (including filings made through Jan 20, 2023) there are 1,378 open-end registered investment
                                                companies that report on Form N–CEN.

                                                   Based on these estimates, it is                      following subcategories are not expected              reporting requirements would be those
                                                possible that up to approximately                       to experience any substantial change to               with both higher likelihoods of being
                                                42,800 covered financial institutions                   compliance burdens: dealer in foreign                 exposed to CVC mixing and lower
                                                could incur new recordkeeping and                       exchange, check casher, issuer/seller of              tailoring of existing compliance
                                                reporting costs in complying with                       traveler’s checks or money orders,                    programs because, for instance, virtual
                                                special measure one. However, the                       provider of prepaid access, and seller of             asset service provision has not
                                                extent to which any of these institutions               prepaid access. Thus, FinCEN expects                  historically been integral to the entity’s
                                                is expected to be economically impacted                 approximately 9,300 fewer than the total              core business function or model.
                                                is limited insofar as they would need to                estimate of potentially affected entities             FinCEN expects that this may
                                                engage in transactions 102 that involve                 to reasonably anticipate any noticeable               characterize certain banks, or persons
                                                CVC, and thereby the possibility of CVC                 effect.                                               subject to supervision by a state or
                                                mixing. This prerequisite 103 (that a                      On the other hand, the categories of               federal bank supervisory authority,
                                                transaction be in CVC) is expected to                   affected parties that include the largest             broker/dealers, and introducing brokers
                                                preclude many entities from                             proportion of VASPs are expected to                   in commodities. However, as these
                                                experiencing any significant economic                   face the highest levels of potential                  types of financial institutions are
                                                effects from the rule.104 For example,                  exposure to CVC mixing. These entities                already heavily regulated and typically
                                                FinCEN does not anticipate any direct                   are most concentrated in the money                    already feature robust monitoring and
                                                effects to the U.S. Postal Service or to                transmitter subcategory of money                      compliance programs, even as they may
                                                any registered telegraph company.                       services businesses and futures                       face the largest incremental burden, this
                                                Further, FinCEN analysis of public and                  commission merchants. In each case,                   economic impact might still be low.105
                                                non-public sources of information                       these VASPs are a proper subset of their
                                                suggests that, categorically, domestic                  respective groups, and while they are                 (B) CVC Mixing Service Providers 106
                                                mutual funds, casinos, and card clubs                   expected to be the most directly affected
                                                have low exposure to CVC transactions.                  by the rule because they have the                       While the proposed application of
                                                For the same reasons, money services                    highest exposure, the incremental                     special measure one does not expressly
                                                businesses that provide services                        burden of the rule is expected to be                    105 FinCEN is requesting comment on the

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                                                exclusively in one or more of the                       lowest for these entities because it                  reasonable bases for this expectation. See requests
                                                                                                        imposes the least adaptation from                     for comment supra Section VII.A and Section VII.E.
                                                  102 31 CFR 1010.100(bbb)(1).                          current compliance practices and                        106 In this section, FinCEN uses the term ‘CVC
                                                  103 See discussion supra Section VI.A.5; see also
                                                                                                        processes.                                            mixer’ as used in common parlance, noting this
                                                proposed amendment 31 CFR 1010.662(a)(5) infra             The covered financial institutions that            may commonly be understood to refer to only a
                                                Section IX.                                                                                                   proper subset of the entities/parties that would
                                                  104 See discussion of expected economic effects
                                                                                                        are expected to face the greatest                     meet the definition of ‘CVC mixer’ as defined in this
                                                on covered financial institutions infra Section         incremental burden as a consequence of                proposed rule. See discussion supra Section
                                                VIII.A.4.                                               the proposed recordkeeping and                                                                   Continued

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                                                72716                  Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules

                                                impose requirements on CVC mixers                       300 million users of unhosted CVC                      services by third party blockchain
                                                that are not covered financial                          wallets insofar as a user’s personal                   analytics companies.116 Such
                                                institutions or those able to rely on the               information may be reported if their                   companies provide transaction
                                                proposed exemption,107 it is reasonable                 wallet is deemed by a covered financial                screening and risk rating services to
                                                to expect that the relative attractiveness              institution to be involved in a covered                financial institutions that may hire them
                                                of engaging with CVC mixers or the                      transaction. Because there is no                       in lieu of, or to complement, similar
                                                number of those who avail themselves                    restriction on the number of wallets an                functions performed in-house. Because
                                                of CVC mixing services might be                         individual may have, this number may                   of the specialized experience and
                                                affected. As a baseline matter of market                overestimate the number of unique                      expertise required to build a program,
                                                structure, the centralized mixing                       individuals whose personal information                 reporting in near real time, that not only
                                                services industry is expected to be                     may be required. To the extent that                    monitors multiple blockchains, but also
                                                characterized by large network                          previously reported estimates 112                      incorporates a multitude of additional
                                                externalities: the value of a CVC mixer                 regarding the distribution of CVC mixer                data sources to enrich a given
                                                should increase as the number of users                  users by type—privacy-oriented versus                  blockchain’s transaction- and
                                                increases, because the greater the                      abusers of anonymity—are usable for                    transaction party-related information,
                                                number of parties that use a particular                 inference, special measure one could                   few such companies exist and the
                                                CVC mixer, the easier it becomes for the                require the reporting of personal                      market is consequently concentrated to
                                                mixer to anonymize each participant in                  information in connection with up to                   fewer than ten main entities.
                                                a mixing transaction. This                              approximately 66 (87) percent of CVC                      Separately, because the proposed rule
                                                characterization is consistent with                     mixer deposits in the absence of any                   is limited in scope to only the mixing
                                                observable market behavior. Because                     other identifiable connection to high                  of CVC, to the extent that digital token
                                                network externalities generally reinforce               risk (illicit) activity.                               mixing and its service providers are
                                                high levels of market concentration, it                    FinCEN has weighed these                            considered viable substitutes for CVC
                                                may be reasonable to expect that the                    considerations against the broader                     mixing or could otherwise be employed
                                                number of CVC mixers that can                           economic concern of systematic                         to obfuscate CVC mixing, the demand
                                                concurrently achieve and maintain a                     underreporting in the absence of special               for token mixing and its service
                                                sustainable scale to continue operations                measure one requirements,113 and                       providers may increase as a
                                                is unlikely to grow. It may also imply                  concluded that the associated costs to                 consequence of adopting the rule as
                                                that, to the extent that the demand for                 privacy-oriented clients of covered                    proposed.
                                                                                                        financial institutions and CVC mixers
                                                CVC mixing services remains relatively                                                                         (ii) Regulatory and Market Baseline
                                                                                                        are small in both relative 114 and
                                                constant over time, in the event that any                                                                      (A) Current Requirements
                                                                                                        absolute 115 terms. Further, there is no
                                                one CVC mixing service provider ceases
                                                                                                        reason to believe the required records                    The ten categories of financial
                                                to remain active, another active or new
                                                                                                        and personal information contained                     institutions covered by the proposed
                                                CVC mixer could greatly benefit from
                                                                                                        therein would be subject to any greater                rule, as defined in 31 CFR 1010.100(t)
                                                the subsequent increase in demand for
                                                                                                        risk of improper access, use, or exposure              are expected to already be compliant
                                                its services.
                                                                                                        than any other record or report filed                  with the required activities as outlined
                                                (C) Clients of Primary Affected Parties                 with a federal agency or maintained by                 in 31 CFR 1020 (Banks), 1021 (Casinos
                                                                                                        a covered financial institution.                       and Card Clubs), 1022 (Money Service
                                                   In the course of compliance with
                                                                                                        (D) Other Affected Parties                             Businesses), 1023 (Brokers or Dealers in
                                                special measure one, covered financial
                                                                                                                                                               Securities), 1024 (Mutual Funds), and
                                                institutions may be required to submit                     FinCEN further anticipates second
                                                                                                                                                               1026 (Futures Commission Merchants
                                                reports and retain records containing                   order economic effects of the proposed
                                                                                                                                                               and Introducing Brokers in
                                                certain unique identifiers 108 and other                rule on parties ancillary to transactions
                                                                                                                                                               Commodities), as applicable. These
                                                personal information 109 of a party, or                 between covered financial institutions,
                                                                                                                                                               rules include requirements for financial
                                                parties, to a CVC mixing-exposed                        CVC mixing service providers, and
                                                                                                                                                               institutions to: (1) create and maintain
                                                transaction.110 Based on a recent                       clients of either or both, such as
                                                                                                        counsel, advisors, external forensic                   compliance policies, procedures, and
                                                report,111 this could affect more than                                                                         internal controls; (2) engage in customer
                                                                                                        firms, independent auditors, IT services,
                                                VII.A.3; see also proposed amendment 31 CFR             and other compliance facilitators or                   identification verification; (3) file
                                                1010.662(a)(2) infra Section IX.                        third-party service providers. In                      reports with FinCEN; (4) create and
                                                  107 At the time of this proposal, FinCEN observes
                                                                                                        particular, FinCEN expects the proposed                retain records; and (5) respond to law
                                                no CVC mixers that meet either or both of these
                                                                                                        requirements may affect the demand for                 enforcement requests, and have guided
                                                criteria.                                                                                                      financial institutions’ understanding of
                                                  108 Including name (see proposed amendment 31

                                                CFR 1010.662(b)(1)(ii)(A) infra Section IX) and         crypto-exchanges-on-chain-user-segmentation-           FinCEN’s expectations of compliant
                                                government issued (alpha)numeric identifier (see        guide/.                                                reporting and recordkeeping activity
                                                proposed amendment 31 CFR 1010.662(b)(1)(ii)(F)            112 See discussion supra Section IV.A.3; see also   since before the advent of virtual
                                                infra Section IX); see also discussion supra Section    supra note 58.                                         currency. Where the original rules are
                                                VI.                                                        113 See discussion supra Section IV.A.3; see also
                                                  109 Including a customer’s CVC wallet address
                                                                                                                                                               silent on the application of, or
                                                                                                        Section VIII.A.1.
                                                (see proposed amendment 31 CFR                             114 FinCEN considered costs here proportionally
                                                                                                                                                               compliance with, these requirements
                                                1010.662(b)(1)(i)(E) infra Section IX), date of birth   to the value of the information collected and          with respect to CVC, FinCEN and OFAC
                                                (see proposed amendment 31 CFR                          reported in connection with illicit finance-related

lotter on DSK11XQN23PROD with PROPOSALS1
                                                1010.662(b)(1)(ii)(B) infra Section IX), address (see   transactions. See discussion supra Section VIII.A;        116 At present, it is unclear to FinCEN whether,
                                                proposed amendment 31 CFR 1010.662(b)(1)(ii)(C)         see also supra note 90.                                in light of the proposed requirements, a covered
                                                infra Section IX), and email address (see proposed         115 FinCEN considered here the aggregate            financial institution would be more likely to treat
                                                amendment 31 CFR 1010.662(b)(1)(ii)(D) infra            potential informational exposure, which depends        these third party services as a substitute or a
                                                Section IX); see also discussion supra Section VI.      jointly on (1) the quanta of personal information      complement to in-house screening and risk-
                                                  110 See Section VI.B.1.
                                                                                                        collected and reported and (2) the expected number     management activities. Therefore while there is an
                                                  111 Chainalysis Report, On-Chain User                 of instances in which access to that personal          expected change to demand for these third party
                                                Segmentation for Crypto Exchanges, June 22, 2023,       information is granted in the course of a legitimate   services, the direction of this change remains
                                                available at https://www.chainalysis.com/blog/          investigative or prosecutorial activity.               unsigned.

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                                                                       Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                                   72717

                                                have historically provided successive,                  regulatory requirements—also                            measure one as proposed is extremely
                                                iterative guidance 117 and other                        considered certain factors of current                   low in relative terms.
                                                information 118 that clarifies                          practices including: (1) the extent to                     FinCEN also reviewed the availability
                                                expectations with respect to required                   which covered financial institutions are                of tools, other than the use of third party
                                                practices. Furthermore, FinCEN has                      identifiably exposed to CVC mixing; and                 blockchain analytics companies, that a
                                                historically issued advisories and press                (2) the availability of reliable tools and              financial institution currently has the
                                                releases based on FATF guidance to                      methods with which to detect the kinds                  option to employ to detect exposure to
                                                financial institutions,119 including                    of CVC mixing exposure that would                       CVC mixing transactions in the course
                                                VASPs, concerning processes and legal                   trigger the proposed reporting and                      of complying with existing SAR and/or
                                                obligations that apply to transactions                  recordkeeping requirements.                             CTR related requirements. CVC mixing
                                                involving high risk and sanctioned                                                                              exposure can occur (directly 123 or
                                                                                                           As a component of this analysis,                     indirectly 124) in the process of sending
                                                juridictions.
                                                   Preliminarily, evidence suggests that                FinCEN conducted an independent                         CVC to, or receiving CVC from, a
                                                at least some covered financial                         historical review of CVC mixing                         covered financial institution (such as a
                                                institutions have long anticipated and                  exposure occurring in the ordinary                      CVC exchange) and can be detected via
                                                appreciated the applicability of SAR                    course of business at the largest                       a range of free and paid commercial
                                                and currency transaction reporting                      registered CVC exchanges from their                     software programs.125 Free programs,
                                                requirements to transactions involving                  respective first trade dates until                      such as common block explorers, can
                                                CVC: the first SAR including language                   present.120 As these are some of the                    easily reveal direct 126 exposure to a
                                                specific to a CVC was filed thirteen                    affected covered financial institutions                 CVC mixer if the CVC mixer
                                                years ago in 2010, predating FinCEN’s                   with highest expected exposure to CVC                   infrastructure is relatively stable and
                                                2013 Guidance, and the first SAR filed                  mixing, their relative volumes of CVC                   well known, such as in the case of many
                                                by a VASP, approximately two months                     mixing-exposed transactions is likely to                Ethereum-based CVC mixers.
                                                after the 2013 Guidance was issued, is                  present a reasonable upper-bound on                     Indirect 127 exposure may be also
                                                already a decade old. Since the issuance                the proportion of currently identifiable                discoverable using these programs but
                                                of that guidance, FinCEN has received                   transactions that could incur additional                might require supplementary manual
                                                CVC-related SARs from approximately                     record-keeping and reporting                            investigative work to uncover. Paid
                                                4,500 distinct filers. As such, the                     requirements in connection with the                     commercial programs employ suites of
                                                reporting and recordkeeping                             imposition of the first special measure.                heuristics to more comprehensively
                                                requirements that would be introduced                   This study found that during the period                 identify CVC mixers, and market
                                                by the proposed rule may build                          reviewed, mean (median) daily                           themselves on their ability to
                                                incrementally onto an existing                          transaction volume with observable                      automatically detect bi-directional
                                                regulatory compliance framework,                        direct exposure 121 was approximately                   indirect 128 and direct 129 exposure to
                                                inclusive of CVC, that is well                          0.010 percent (0.009 percent), while                    CVC mixing activity for any blockchain
                                                understood, and where a nontrivial                      mean (median) observable indirect                       address supported by the service. On
                                                proportion of covered financial                         exposure 122 was approximately 0.234                    blockchains supporting native smart
                                                institutions demonstrate willingness                    percent (0.168 percent) of daily                        contract capability, these automated
                                                and ability to meet existing reporting                  transaction volume. The analysis                        attribution capabilities can be easily
                                                and recordkeeping obligations.                          yielded comparable results when                         defeated if a user routes funds through
                                                                                                        proportions were based on share of total                token contracts or other digital asset
                                                (B) Current Market Practices
                                                                                                        transactions instead of U.S. Dollar value               entities providing on-chain exchange
                                                  When assessing relevant baseline                      equivalent. It would therefore appear                   services. In such cases, analysts can still
                                                elements of current market practice                     that, to the extent that future CVC                     perform manual blockchain forensic
                                                against which to forecast the regulatory                mixing exposure is consistent with past                 tracing to identify the origin of funds.
                                                and economic impacts of special                         and current trends, the number of
                                                measure one requirements as proposed,                                                                           3. Description of the Proposed Reporting
                                                                                                        transactions that would require
                                                FinCEN—in addition to the current                                                                               and Recordkeeping Requirements of the
                                                                                                        reporting and recordkeeping as a unique
                                                                                                                                                                First Special Measure
                                                                                                        consequence of adopting special
                                                   117 See FIN–2013–G001, Application of FinCEN’s                                                                  Imposing special measure one as
                                                Regulations to Persons Administering, Exchanging,                                                               proposed would introduce novel but, in
                                                                                                           120 This study incorporated both public and non-
                                                or Using Virtual Currencies, Mar. 18, 2013,
                                                available at https://www.fincen.gov/sites/default/      public data as well as certain proprietary and non-     many cases, incrementally modest
                                                files/guidance/FIN-2013-G001.pdf (2013 Guidance);       proprietary computer programs to analyze                additional recordkeeping and reporting
                                                see also FinCEN 2019 CVC Guidance.                      transactions occurring between calendar year 2010       obligations, requiring the collection and
                                                   118 See generally OFAC, Questions on Virtual         at the earliest (given that each exchange has a
                                                                                                        unique start date) and the date the study was
                                                                                                                                                                transmission of certain information in
                                                Currency, available at https://ofac.treasury.gov/                                                               its possession when a covered financial
                                                faqs/topic/1626; see, specifically OFAC, Sanctions      concluded (August 3, 2023).
                                                Compliance Guidance for the Virtual Currency               121 Direct exposure refers to transactions where     institution knows, suspects, or has
                                                Industry, Oct. 2021, available at https://              CVC is sent from one CVC wallet address to another      reason to suspect a transaction occurred
                                                ofac.treasury.gov/media/913571/download?inline.         CVC wallet address, without the use of an
                                                   119 See, e.g., FinCEN, Financial Action Task Force   intermediary. For example, if a VASP received             123 See definition supra note 121.
                                                Identifies Jurisdictions with Anti-Money Laundering     funds from—or sent funds to—a CVC mixer without           124 See definition supra note 122.
                                                and Combating the Financing of Terrorism and            first going through an intermediary, that VASP has
                                                                                                                                                                   125 FinCEN notes that the extent to which
                                                Counter-Proliferation Deficiencies, June 29, 2023,      direct exposure to CVC mixing.
                                                                                                           122 Indirect exposure refers to transactions where   exclusive use of any of these tools (free or

lotter on DSK11XQN23PROD with PROPOSALS1
                                                available at https://www.fincen.gov/news/news-
                                                                                                        CVC is sent from a CVC wallet address through at        commercial software programs) would fully satisfy
                                                releases/financial-action-task-force-identifies-
                                                                                                        least one other wallet address to arrive at the         either existing reporting and recordkeeping
                                                jurisdictions-anti-money-laundering-and-4; FIN–
                                                                                                        intended recipient. For example, if CVC was sent        requirements, or those imposed by the proposed
                                                2021–A003 ‘‘Advisory on the Financial Action Task
                                                                                                        from a CVC mixer to a CVC wallet address and then       special measure one, is a matter of facts and
                                                Force-Identified Jursdictions with Anti-Money
                                                                                                                                                                circumstances.
                                                Laundering and Combating the Financing of               to a VASP, that VASP has indirect exposure to CVC          126 Id. at note 121.
                                                Terrorism and Counter-Proliferations Deficiencies’’     mixing. Similarly, if CVC sent from a VASP to a
                                                                                                                                                                   127 Id. at note 122.
                                                available at https://www.fincen.gov/sites/default/      CVC wallet address was subsequently send to a
                                                                                                                                                                   128 Id. at 122.
                                                files/advisory/2021-03-11/FATF%20February               CVC mixer, it would be indirectly exposed to CVC
                                                %202021%20Advisory%20FINAL%20508.pdf.                   mixing.                                                    129 Id. ar 121.

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                                                72718                  Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules

                                                that involved the use of CVC mixing                     narrative description 142), while the                   proportion of expected novel
                                                within or involving a jurisdiction                      required informational components                       compliance costs would itself be large
                                                outside the United States.130 The                       concerning the associated customer                      because it would be difficult to uniquely
                                                affected institution at which a covered                 include name 143, date of birth 144,                    identify expenses incurred distinctly as
                                                transaction is conducted or attempted                   addresses (physical,145 CVC wallet,146                  a function of special measure one
                                                would need to collect required                          and associated email 147), phone                        compliance from expenses incurred in
                                                information about the covered                           number,148 and an entity-specific                       the course of pre-existing BSA
                                                transaction and, within 30 days of                      government-issued (alpha)numeric                        requirements,153 as both would largely
                                                initial detection of a covered                          identifier.149                                          rely on use of the same activities,
                                                transaction, provide a report to FinCEN                 4. Expected Economic Effects on                         technology, and services.
                                                containing as much of the reportable                    Covered Financial Institutions                             It is also unclear whether future
                                                required information as available to the                                                                        relative distributions of direct 154 versus
                                                affected institution—via electronic filing                 As discussed above, the parties
                                                                                                                                                                indirect 155 exposure would continue in
                                                or other agency-prescribed manner.131                   expected to incur an economic burden
                                                                                                        as they comply with the first special                   the same pattern as historically
                                                   Additionally, for a specified period of              measure include all financial                           observed, but at present do not have
                                                time (five years 132) after filing its report,          institutions as defined in 31 CFR                       empirical evidence that would suggest
                                                each covered financial institution would                1010.100(t) insofar as they engage in                   substantial changes are imminent.
                                                engage in new recordkeeping activities                  CVC transactions that could be exposed                  Detecting indirect 156 exposure may
                                                because it would need to document its                   to CVC mixing within or involving a                     require certain financial institutions to
                                                compliance with the filing procedures                   jurisdiction outside the United                         newly obtain commercial programs and/
                                                and the reporting requirements by: (1)                  States.150 In light of FinCEN’s review of               or services to facilitate compliance with
                                                maintaining a copy of any records                       the anticipated differential effects on                 the rule as proposed as CVC mixing
                                                related to CVC mixing transactions they                 covered financial institutions due to                   practices continue to evolve. The cost of
                                                have filed; and (2) obtaining and                       variations in both expected exposure                    these services, based on current market
                                                recording copies of documentation                       and preexisting monitoring and                          prices, could run in excess of tens of
                                                relating to compliance with the                         detection infrastructure, as well as                    thousands of dollars per license and
                                                regulation.133                                          FinCEN’s assessment of current market                   would require analysts to remain
                                                                                                        practices,151 FinCEN expects that the                   continually engaged in blockchain
                                                   The required information would                                                                               tracing to stay up to date with emerging
                                                identify and describe certain unique                    largest portion of the novel costs
                                                                                                        incurred in complying with the first                    trends in the rapidly developing digital
                                                features and characteristics of both the                                                                        asset industry. It is unclear at this time
                                                reportable covered transaction and the                  special measure will be associated with
                                                                                                        indirect 152 exposure to CVC mixing at                  whether financial institutions or third
                                                customer associated with the covered                                                                            party service providers would incur the
                                                transaction. The required informational                 financial institutions not currently
                                                                                                        operating primarily in the provision of                 majority of costs associated with
                                                components concerning the covered                                                                               analytical updating as CVC mixing
                                                transaction pertain to the CVC when                     virtual asset services and cases where
                                                                                                        the jurisdictions involved or under                     practices evolve, or the extent to which
                                                transferred (currency type,134                                                                                  these cost increases may be passed
                                                amount,135 and U.S.-dollar                              which CVC mixing occurs are
                                                                                                        particularly difficult to ascertain.                    through to a financial institution’s
                                                equivalent 136), the CVC mixer                                                                                  customers. It is also unclear how these
                                                (identity 137 and/or wallet address 138),               However, it is unclear whether this
                                                                                                                                                                compliance-related costs might scale
                                                and the transaction (hash,139 date,140 IP                                                                       with the proposed increased reporting
                                                                                                           142 See discussion supra Section VI.B.1(i); see
                                                addresses and timestamps,141 and                                                                                and recordkeeping requirements
                                                                                                        also proposed amendment 31 CFR
                                                                                                        1010.662(b)(1)(i)(I) infra Section IX.                  because it requires speculation about
                                                  130 See Section VI. See also Section IX.                 143 See discussion supra Section VI.B.1(ii); see
                                                  131 See discussion supra Section VI.B.2; see also
                                                                                                                                                                how the potential for new entrants to
                                                                                                        also proposed amendment 31 CFR
                                                proposed amendment 31 CFR 1010.662(b)(2) infra          1010.662(b)(1)(ii)(A) infra Section IX.
                                                                                                                                                                the third party mixing detection service
                                                Section IX.                                                144 See discussion supra Section VI.B.1(ii); see     market and/or technological
                                                  132 31 CFR 1010.430
                                                                                                        also proposed amendment 31 CFR                          advancements (that would not occur but
                                                  133 See discussion supra Section VI.B.3; see also     1010.662(b)(1)(ii)(B) infra Section IX.                 for the proposed compliance obligations
                                                proposed amendment 31 CFR 1010.662(b)(3) infra             145 See discussion supra Section VI.B.1(ii); see
                                                                                                                                                                making them economically attractive
                                                Section IX.                                             also proposed amendment 31 CFR
                                                  134 See discussion supra Section VI.B.1(i); see       1010.662(b)(1)(ii)(C) infra Section IX.
                                                                                                                                                                investments) would affect costs.157
                                                also proposed amendment 31 CFR                             146 See discussion supra Section VI.B.1(i); see         FinCEN acknowledges to that to the
                                                1010.662(b)(1)(i)(B) infra Section IX.                  also proposed amendment 31 CFR                          extent that a covered transaction might
                                                  135 See discussion supra Section VI.B.1(i); see       1010.662(b)(1)(i)(E) infra Section IX.                  require the filing of both a SAR and
                                                also proposed amendment 31 CFR                             147 See discussion supra Section VI.B.1(ii); see
                                                1010.662(b)(1)(i)(A) infra Section IX.                  also proposed amendment 31 CFR
                                                                                                                                                                special measure one related report,
                                                  136 Id.                                               1010.662(b)(1)(ii)(D) infra Section IX.                 concurrent satisfaction of both sets of
                                                  137 See discussion supra Section VI.B.1(i); see          148 See discussion supra Section VI.B.1(ii); see     reporting and recordkeeping
                                                also proposed amendment 31 CFR                          also proposed amendment 31 CFR                          requirements might result in some
                                                1010.662(b)(1)(i)(C) infra Section IX.                  1010.662(b)(1)(ii)(E) infra Section IX.                 duplicative costs related to any overlap.
                                                  138 See discussion supra Section VI.B.1(i); see          149 See discussion supra Section VI.B.1(ii); see

                                                also proposed amendment 31 CFR                          also proposed amendment 31 CFR
                                                                                                                                                                   153 See discussion of existing BSA requirements
                                                1010.662(b)(1)(i)(D) infra Section IX.                  1010.662(b)(1)(ii)(F) infra Section IX.

lotter on DSK11XQN23PROD with PROPOSALS1
                                                  139 See discussion supra Section VI.B.1(i); see          150 See discussion of covered financial              regarding identification and monitoring of financial
                                                also proposed amendment 31 CFR                          transactions (clarifying the definitional requirement   transaction associations with foreign jurisdictions
                                                1010.662(b)(1)(i)(F) infra Section IX.                  that a reportable transaction must occur in CVC)        and geographic locations supra Section VI.A.5. See
                                                  140 See discussion supra Section VI.B.1(i); see       supra Section VI.A.4,                                   also discussion of FinCEN requirements under
                                                also proposed amendment 31 CFR                             151 See discussion of anticipated differential       FATF guidance supra Section VIII.A.2(ii)(A).
                                                                                                                                                                   154 Id. at note 121.
                                                1010.662(b)(1)(i)(G) infra Section IX.                  effects supra Section VIII.A.2(i)(A); see also
                                                                                                                                                                   155 Id. at note 122.
                                                  141 See discussion supra Section VI.B.1(i); see       discussion of current market practices supra
                                                                                                        Section VIII.A.2(ii)(B).                                   156 Id.
                                                also proposed amendment 31 CFR
                                                1010.662(b)(1)(i)(H) infra Section IX.                     152 Id. at note 122.                                    157 See discussion supra Section VIII.A.2(i)(D).

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                                                                       Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                                    72719

                                                  To the extent that the forgoing                        regarding the customer or their                        discarding similar reports and records
                                                analysis has failed to take into                         representative as a condition to open or               that may be of equal or greater value to
                                                consideration any material facts, data,                  maintain a payable-through 160 or                      investigating, prosecuting, or
                                                circumstances, or other considerations                   correspondent 161 account, respectively,               disincentivizing CVC mixing supported
                                                that, had they been considered, would                    if the financial institution or agency                 illicit activities but lack an identifiable
                                                have substantially altered the balance of                knows, suspects, or has reason to                      connection to Hamas, ISIS, or the DPRK.
                                                costs and benefits attendant to the                      suspect the account and transactions                   Because of these dual inefficiencies,
                                                proposed special measure(s), FinCEN                      conducted through it involve CVC                       special measure one as proposed is
                                                has invited public comment.158                           mixing. More severely, special measure                 considered to strike a more appriopriate
                                                                                                         five could have imposed prohibitions or                balance.
                                                5. Economic Consideration of Available
                                                                                                         conditions 162 on the opening or
                                                Regulatory Alternatives                                                                                         B. Executive Orders
                                                                                                         maintenance of a correspondent or
                                                   FinCEN has considered a number of                     payable-through account if the domestic                   Executive Orders 12866, 13563, and
                                                alternative policies that could have been                covered financial institution or agency                14094 direct agencies to assess costs and
                                                proposed to accomplish the same                          knows, suspects, or has reason to                      benefits of available regulatory
                                                objectives.159 These policies included                   suspect that transactions conducted                    alternatives and, if regulation is
                                                the selection of one, or a combination                   through the account involve CVC                        necessary, to select regulatory
                                                of, other special measure(s) or,                         mixing.                                                approaches that maximize net benefits
                                                alternatively the selection of the same                     Because the expected results of                     (including potential economic,
                                                special measure with a narrower scope.                   imposing special measures three, four,                 environmental, public health and safety
                                                                                                         or both, absent special measure five                   effects, distributive impacts, and
                                                (i) Special Measure Two: Beneficial
                                                                                                         would likely be similar to expectations                equity). Executive Order 13563
                                                Ownership Information Requirements
                                                                                                         with respect to special measure two,                   emphasizes the importance of
                                                   Instead of recordkeeping and                          that analysis is not repeated here.                    quantifying both costs and benefits, of
                                                reporting requirements, FinCEN could                     Instead, an approach that would impose                 reducing costs, of harmonizing rules,
                                                have pursued the application of special                  special measures three or four, or both,               and of promoting flexibility.
                                                measure two, which would have                            in conjunction with special measure                       It has been determined that this
                                                required domestic financial institutions                 five is considered. As discussed                       proposed rule is not a significant
                                                and agencies to obtain and retain the                    above,163 FinCEN determined that these                 regulatory action under section 3(f) of
                                                beneficial ownership information of any                  special measures are less relevant in the              Executive Order 12866, as amended.
                                                account at a depository institution                      context of CVC transactions, including                 However, in light of the nature of this
                                                opened or maintained by a foreign                        those that involve CVC mixing, as CVC                  proposed rule, FinCEN has prepared an
                                                person or their representative that the                  transactions are conducted outside of                  economic analysis to help inform its
                                                institution or agency knows, suspects,                   the traditional banking system.                        consideration of the impacts of the
                                                or has reason to suspect is involved in                  Therefore, expected benefits would also                proposed rule.
                                                a CVC mixing transaction. While this                     be lower than under proposed special
                                                information about beneficial ownership                                                                          C. Regulatory Flexibility Act
                                                                                                         measure one requirements due to the
                                                related to CVC mixing transaction                        limited intersection between                             When an agency issues a rulemaking
                                                participants could be similar to certain                 transactions in CVC and the foreign use                proposal, the Regulatory Flexibility Act
                                                elements required under the current                      of domestic traditional bank accounts.                 (RFA) requires the agency to ‘‘prepare
                                                proposal and hence of comparable                         Given these considerations, this                       and make available for public comment
                                                value, the alternative focus of special                  alternative approach was rejected.                     an initial regulatory flexibility
                                                measure two on the ownership of                                                                                 analysis’’(IRFA) that will ‘‘describe the
                                                accounts instead of the nature of                        (iii) Alternate Specification of Special               impact of the proposed rule on small
                                                transactions is expected to impose                       Measure One: Specified Terror Finance-                 entities.’’ 164 However, Section 605 of
                                                similar compliance costs with lower                      Related Actors and Transactions Only                   the RFA allows an agency to certify a
                                                attendant benefits both in quantity of                      Finally, FinCEN considered an                       rule, in lieu of preparing an analysis, if
                                                useful information obtained and in                       alternative that would employ the same                 the proposed rulemaking is not
                                                scope of financial institutions to whom                  special measure but with greater                       expected to have a significant economic
                                                the information-gathering requirements                   specificity of covered transactions that               impact on a substantial number of small
                                                would apply. As such, the imposition of                  would limit the scope of interest in CVC               entities.
                                                special measure two instead of special                   mixing-exposed transactions to only
                                                                                                                                                                1. Estimate of the Number of Small
                                                measure one would be strictly less                       those identifiably sponsored by or
                                                                                                                                                                Entities to Whom the Proposed Rule
                                                efficient in addressing the class of                     affiliated with terror finance by Hamas,
                                                                                                                                                                Will Apply
                                                transactions of primary money                            ISIS, or the DPRK. This alternative is
                                                laundering concern.                                      expected to incur higher costs related to,                The reporting and recordkeeping
                                                                                                         among other things, the additional                     requirements proposed under the first
                                                (ii) Special Measures Three Through                                                                             special measure requires certain covered
                                                                                                         burden a financial institution would
                                                Five                                                                                                            financial institutions to report to
                                                                                                         have in making a determination about a
                                                   Alternatively, FinCEN could have                      transaction’s connection to an                         FinCEN information associated with
                                                proposed to impose special measure                       identifiable source or affiliate of the                transactions or attempted transactions

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                                                three, four, five, or some combination                   applicable terrorist organization. It                  involving CVC mixing and maintain
                                                thereof. Special measures three and four                 would also limit the potential                         certain related records for a fixed period
                                                would simply require domestic                            informational benefits of the measure by               of time.165 Table 2 (below) presents
                                                financial institutions and agencies to                                                                          FinCEN estimates of the number of
                                                obtain certain identifying information                     160 31 U.S.C. 5318A(b)(3)                            affected institutions that may be deemed
                                                                                                           161 31 U.S.C. 5318A(b)(4)
                                                  158 See Sections VII.A. and VII.E.                       162 31 U.S.C. 5318(b)(5)                               164 5 U.S.C. 603(a).
                                                  159 See discussion supra Section V.E.                    163 See Section V.E.                                   165 See discussion supra Section VIII.A.2–3.

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                                                72720                           Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules

                                                small entities. To identify whether a                                        industry’s receipts in the 2017 Census                                        brokers/dealers in securities, money
                                                financial institution is small, FinCEN                                       survey data and determines what                                               services businesses, casinos, card clubs,
                                                generally uses the Small Business                                            proportion of a given industry is                                             futures commission merchants,
                                                Administration’s (SBA) latest annual                                         deemed small, on average. FinCEN                                              introducing brokers in commodities,
                                                size standards for small entities in a                                       considers a financial institution to be                                       and mutual funds to determine the
                                                given industry, unless otherwise                                             small if it has total annual receipts less                                    proportion of current small financial
                                                noted.166 FinCEN also uses the U.S.                                          than the annual SBA small entity size                                         institutions in those industries.
                                                Census Bureau’s publicly available 2017                                      standard for the financial institution’s                                      Numbers have been rounded as in
                                                Statistics of U.S. Businesses survey data                                    industry. FinCEN applies these                                                Section VIII.A.2(i)(A) to facilitate
                                                (Census survey data).167 FinCEN applies                                      estimated proportions to FinCEN’s                                             aggregation.
                                                SBA size standards to the corresponding                                      current financial institution counts for

                                                                                          TABLE 2—ESTIMATES OF SMALL AFFECTED FINANCIAL INSTITUTIONS BY TYPE
                                                                                                                                                                                                                                                         Number of
                                                                                                                              Financial institution type a                                                                                                entities

                                                Bank b ...............................................................................................................................................................................................         c 7,970

                                                Broker/Dealer in Securities d ............................................................................................................................................................                     e 3,450

                                                Money Services Businesses f ..........................................................................................................................................................                        g 24,010

                                                Telegraph Company h ......................................................................................................................................................................                           i0

                                                Casino j ............................................................................................................................................................................................            k 930

                                                Card Club l .......................................................................................................................................................................................             m 250

                                                Person subject to supervision by any State or Federal Bank Supervisory Authority n ...................................................................                                                           o N/A

                                                Futures Commission Merchant p .....................................................................................................................................................                               q 56

                                                Introducing Broker in Commodities r ................................................................................................................................................                             s 900

                                                Mutual Fund t ...................................................................................................................................................................................              u 1,380

                                                   a As typographically grouped in 31 CFR 1010.100(t).
                                                   b See 31 CFR 1010.100(t)(1); see also 31 CFR 1010.100(d). The SBA currently defines small entity size standards for banks as follows: less
                                                than $850 million in total assets for commercial banks, savings institutions, and credit unions.
                                                   c Counts of certain types of banks, savings associations, thrifts, trust companies are from Q1 2023 Federal Financial Institutions Examination
                                                Council (FFIEC) Call Report data, available a https://cdr.ffiec.gov/public/pws/downloadbulkdata.aspx. Data for institutions that are not insured, are
                                                insured under non-FDIC deposit insurance regimes, or do not have a Federal functional regulator are from the FDIC’s Research Information Sys-
                                                tem, available at https://www.fdic.gov/foia/ris/index.html. Credit union data are from the NCUA for Q1 2023, available at https://www.ncua.gov/
                                                analysis/credit-union-corporate-call-report-data. Because data accessed through FFIEC and NCUA Call Report data provides information about
                                                asset size for banks, trusts, savings and loans, credit unions, etc., FinCEN is able to directly determine how many banks and credit unions are
                                                small by SBA size standards. Because the Call Report data does not include institutions that are not insured, are insured under non-FDIC de-
                                                posit insurance regimes, or that do not have a Federal financial regulator, FinCEN assumes that all such entities listed in the FDIC’s Research
                                                Information System data are small, unless they are controlled by a holding company that does not meet the SBA’s definition of a small entity,
                                                and includes them in the count of small banks. Consistent with the SBA’s General Principles of Affiliation, 13 CFR 121.103(a), FinCEN aggre-
                                                gates the assets of affiliated financial institutions using FFIEC financial data reported by bank holding companies on forms Y–9C, Y–9LP, and Y–
                                                9SP, available at https://www.ffiec.gov/npw/FinancialReport/FinancialDataDownload, and ownership data, available at https://www.ffiec.gov/npw/
                                                FinancialReport/DataDownload, when determining if an institution should be classified as small. FinCEN uses four quarters of data reported by
                                                holding companies, banks, and credit unions because a ‘‘financial institution’s assets are determined by averaging the assets reported on its four
                                                quarterly financial statements for the preceding year.’’ See U.S. Small Business Administration’s Table of Size Standards, p. 38 n.8, https://
                                                www.sba.gov/sites/sbagov/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf. FinCEN
                                                recognizes that using SBA size standards to identify small credit unions differs from the size standards applied by the NCUA. However, for con-
                                                sistency in this analysis, FinCEN applies the SBA-defined size standards.
                                                   d 31 CFR 1010.100(t)(2).
                                                   e The SBA currently defines small entity size standards for investment banking and securities intermediation as less than $47 million in aver-
                                                age annual receipts. See paragraph preceding table for details of analysis.
                                                   f 31 CFR 1010.100(t)(3).
                                                   g The SBA currently defines small entity size standards for financial transactions processing, reserve, and clearinghouse activities as less than
                                                $47 million in average annual receipts. See paragraph preceding table for details of analysis.
                                                   h 31 CFR 1010.100(t)(4).
                                                   i As an estimate of uniquely registered, potentially affected small entities, FinCEN expect this category to contain no additional persons or orga-
                                                nizations not already included in other counts, particularly as money transmitters.
                                                   j 31 CFR 1010.100(t)(5)(i)–(iii).
                                                   k The SBA currently defines small entity size standards for casinos as less than $34 million in average annual receipts. See paragraph pre-
                                                ceding table for details of analysis.
                                                   l 31 CFR 1010.100(t)(6)(i)–(ii).
                                                   m The SBA currently defines small entity size standards for other gambling industries as less than $40 million in average annual receipts. See
                                                paragraph preceding table for details of analysis.
                                                   n 31 CFR 1010.100(t)(7).
                                                   o It is unclear to FinCEN at this time whether any entities exist in this category that for purposes of being counted towards unique affected par-
                                                ties incurring burdens associated with the rule, if adopted as proposed, are not already captured by concurrent status in another category of fi-
                                                nancial institution under the 31 CFR 1010.100(t) definition. To the extent that additional data can better inform this estimate, public comment is
                                                invited.
                                                   p 31 CFR 1010.100(t)(8).
                                                   q The SBA currently defines small entity size standards for commodity contracts intermediation as less than $47 million in average annual re-
                                                ceipts. See paragraph preceding table for details of analysis.

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                                                   r 31 CFR 1010.100(t)(9).
                                                   s Supra note q.

                                                  166 See U.S. Small Business Administration’s                                 167 See U.S. Census Bureau, U.S. & states, NAICS,                           employment numbers, and annual payroll by State,
                                                Table of Size Standards, available at https://                               detailed employment sizes (U.S., 6-digit and states,                          industry, and enterprise every year. Receipts data,
                                                www.sba.gov/sites/sbagov/files/2023-06/Table%20                              NAICS sectors) (2017), available at https://                                  which FinCEN uses as a proxy for revenues, is
                                                of%20Size%20Standards_                                                       www.census.gov/data/tables/2017/econ/susb/2017-                               available only once every five years, with 2017
                                                Effective%20March%2017%2C%20                                                 susb-annual.html. The Census survey documents
                                                                                                                                                                                                           being the most recent survey year with receipt data.
                                                2023%20%282%29.pdf.                                                          the number of firms and establishments,

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                                                                       Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                           72721
                                                   t 31 CFR 1010.100(t)(10).
                                                  u The SBA currently defines small entity size standards for open-end investment funds as less than $40 million in average annual receipts. See
                                                paragraph preceding table for details of analysis.

                                                2. Expectation of Impact                                significant economic impact on small                    annual $100 million threshold, adjusted
                                                   For the reasons discussed above in                   entities from the imposition of the first               for inflation ($177 million).
                                                Section VIII.A, FinCEN does not expect                  special measure regarding CVC                           E. Paperwork Reduction Act
                                                all potentially affected financial                      mixers.170
                                                                                                                                                                   The recordkeeping and reporting
                                                institutions to be equally affected by the              D. Unfunded Mandates Reform Act                         requirements contained in this proposed
                                                proposed rule.168 These expectations of
                                                                                                                                                                rule will be submitted by FinCEN to the
                                                differential effects are of first-order                    Section 202 of the Unfunded                          Office of Management and Budget for
                                                relevance because, for the purposes of                  Mandates Reform Act of 1995 171                         review in accordance with the
                                                the IRFA, a rulemaking must be jointly                  (Unfunded Mandates Reform Act),                         Paperwork Reduction Act of 1995 177
                                                impactful in both its breadth                           requires that an agency prepare a                       (PRA). Under the PRA, an agency may
                                                (substantial number) and depth                          budgetary impact statement before                       not conduct or sponsor, and a person is
                                                (significant economic impact) on small                  promulgating a rule that may result in                  not required to respond to, a collection
                                                entities to require additional, tailored                expenditure by the state, local, and                    of information unless it displays a valid
                                                analysis. FinCEN’s categorical analysis                 tribal governments, in the aggregate, or                control number assigned by OMB.
                                                of the financial institutions defined in                by the private sector, of $100 million or               Written comments and
                                                31 CFR 1010.100(t) does not support the                 more in any one year, adjusted for                      recommendations for the proposed
                                                need for an initial regulatory flexibility              inflation.172 If a budgetary impact                     information collection can be submitted
                                                analysis because it determined that, in                 statement is required, section 202 of the               by visiting www.reginfo.gov/public/do/
                                                cases where a substantial number of                     Unfunded Mandates Reform Act also                       PRAMain. Find this particular
                                                financial institutions are small entities,              requires an agency to identify and                      document by selecting ‘‘Currently under
                                                the economic impact of the rule is not                  consider a reasonable number of                         Review—Open for Public Comments’’ or
                                                expected to be significant. Conversely,                 regulatory alternatives before                          by using the search function. Comments
                                                in cases where the economic impact is                   promulgating a rule.173                                 are welcome and must be received by
                                                expected to be its most significant, it is
                                                                                                           As discussed in the foregoing                        [90 DAYS AFTER DATE OF
                                                not clear that a substantial number of
                                                                                                        analysis,174 it is unclear if either the                PUBLICATION IN THE FEDERAL
                                                affected institutions would meet the
                                                                                                        gross or net cost of compliance to the                  REGISTER]. In accordance with
                                                criteria to qualify as small entities.
                                                   To the extent that other small entities              private sector would exceed $177                        requirements of the PRA and its
                                                that are not financial institutions may be              million annually.175 In the event that                  implementing regulations, 5 CFR part
                                                economically affected by the proposed                   this is so, FinCEN has performed the                    1320, the following information
                                                rulemaking,169 FinCEN did not include                   preliminary analysis above to address                   concerning the collection of information
                                                any estimates of affected parties or                    the potential need to satisfy the                       as required by 31 CFR 1010.662 is
                                                calculations of effects in this IRFA                    requirements of the Unfunded Mandates                   presented to assist those persons
                                                because those effects, for most non-                    Reform Act.176 FinCEN is additionally                   wishing to comment on the information
                                                financial institutions, are primarily                   soliciting comments—preferably                          collections.
                                                                                                        including data, studies, or other forms                    The provisions in this proposed rule
                                                expected to be benefits in the form of
                                                                                                        of quantitative analysis—that would                     pertaining to the collection of
                                                potential increases in demands for
                                                                                                        specifically inform our quantification of               information can be found in section
                                                services. An attempt to quantify
                                                                                                        expected compliance related                             1010.662(b)(1). The information
                                                increased operating costs accompanying
                                                                                                        expenditures by state, local, and tribal                required to be reported in section
                                                these increases in demand generally,
                                                                                                        governments and/or the private sector in                1010.662(b)(1) will be used by the U.S.
                                                and for small entities specifically,
                                                                                                        the event that such costs would, in light               Government to monitor the class of
                                                would be so speculative as to be
                                                                                                        of more complete information, be                        transactions of primary money
                                                uninformative. In the event that a more
                                                                                                        demonstrably expected to exceed the                     laundering concern. The information
                                                precise forecast could be reliably formed
                                                                                                                                                                required to be maintained by section
                                                with available data and would alter the
                                                                                                                                                                1010.662(b)(3) will be used by federal
                                                conclusions of this analysis, FinCEN is                   170 See Section VII.E.
                                                                                                                                                                agencies and certain self-regulatory
                                                requesting information from the public.                   171 Public Law 104–4 (March 22, 1995).
                                                                                                          172 Id.                                               organizations to verify compliance by
                                                3. Certification                                          173 Id.                                               covered financial institutions with the
                                                   When viewed as a whole, FinCEN                         174 See Section VIII.A.4.                             provisions of 31 CFR 1010.662. The
                                                does not anticipate that the proposals
                                                                                                          175 The Unfunded Mandates Reform Act requires         class of financial transactions affected
                                                                                                        an assessment of mandates that will result in an        by the reporting requirement is identical
                                                contained in this rulemaking will have                  annual expenditure of $100 million or more,
                                                a significant impact on a substantial                                                                           to the class of financial transactions
                                                                                                        adjusted for inflation. The U.S. Bureau of Economic
                                                number of small financial institutions or               Analysis reports the annual value of the gross          affected by the recordkeeping
                                                other potentially affected businesses.                  domestic product (GDP) deflator in 1995, the year       requirement. The collection of
                                                Accordingly, FinCEN certifies that this                 of the Unfunded Mandates Reform Act, as 71.823,         information is mandatory.
                                                                                                        and as 127.224 in 2022. See U.S. Bureau of                 Frequency: Covered financial
                                                rule will not have a significant                        Economic Analysis, ‘‘Table 1.1.9. Implicit Price

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                                                economic impact on a substantial                        Deflators for Gross Domestic Product’’ (accessed        institutions would be required to file
                                                number of small entities. FinCEN                        Friday, June 2, 2023) available at https://             within 30 days of detecting a covered
                                                invites comments from members of the                    apps.bea.gov/iTable/?reqid=19&step=3&                   transaction.178 As nothing prevents a
                                                                                                        isuri=1&1921=survey&1903=13t. Thus, the inflation       covered financial institution from
                                                public who believe there will be a                      adjusted estimate for $100 million is 127.224/
                                                                                                        71.823 × 100 = $177 million.                            optimizing with respect to scale by
                                                  168 See discussion supra Section VIII.A.2(i)(A).        176 See generally, discussion supra Section VIII.A;
                                                                                                                                                                 177 44 U.S.C. 3507(d).
                                                  169 See, e.g., discussion supra Section               see specifically, discussion of alternatives
                                                VIII.A.2(i)(D).                                         considered supra Section V.E. and Section VIII.A.5.      178 31 CFR 1010.662(b)(2).

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                                                72722                  Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules

                                                filing later, while still within the 30-day             PART 1010—GENERAL PROVISIONS                          protocols and processes; and provide
                                                limit, it is foreseeable that despite a                                                                       such records to regulators and law
                                                distinct filing obligation per covered                  ■ 1. The authority citation for part 1010             enforcement, where required by law.
                                                transaction, some entities may elect to                 continues to read as follows:                            (4) Covered financial institution. The
                                                file all required reports still within the                 Authority: 12 U.S.C. 1829b and 1951–               term ‘‘covered financial institution’’ has
                                                same 30-day window at a single time,                    1959; 31 U.S.C.5311–5314, 5316–5336; title            the same meaning as ‘‘financial
                                                effectively reducing the frequency of                   III, sec. 314, Pub. L. 107–56, 115 Stat. 307;         institution’’ in 31 CFR 1010.100(t).
                                                filing.                                                 sec. 2006, Pub. L. 114–41, 129 Stat. 458–459;            (5) Covered transaction. The term
                                                                                                        sec. 701 Pub. L. 114–74, 129 Stat. 599; sec.          ‘‘covered transaction’’ means a
                                                   Description of Affected Financial
                                                                                                        6403, Pub. L. 116–283, 134 Stat. 3388.
                                                Institutions: Only those covered                                                                              transaction as defined in 31 CFR
                                                financial institutions defined in section               ■ 2. Add § 1010.662 to read as follows:               1010.100(bbb)(1) in CVC by, through, or
                                                1010.662(a)(4) with engagement in the                                                                         to the covered financial institution that
                                                                                                        § 1010.662 Special measures regarding
                                                covered financial transactions as                       CVC mixing transactions.
                                                                                                                                                              the covered financial institution knows,
                                                defined in section 1010.662(a)(5) would                                                                       suspects, or has reason to suspect
                                                                                                           (a) Definitions. For purposes of this              involves CVC mixing within or
                                                be affected.
                                                                                                        section, the following terms have the                 involving a jurisdiction outside the
                                                   Estimated Number of Affected                         following meanings.
                                                Financial Institutions: Approximately                                                                         United States.181
                                                                                                           (1) Convertible Virtual Currency
                                                15,000.179                                                                                                       (b) Reporting and recordkeeping
                                                                                                        (CVC). The term ‘‘convertible virtual
                                                                                                                                                              requirements. Covered financial
                                                   Estimated Average Annual Burden in                   currency (CVC)’’ means a medium of
                                                                                                                                                              institutions are required to report
                                                Hours per Affected Financial                            exchange that either has an equivalent
                                                                                                                                                              information in accordance with
                                                Institution: 98.180                                     value as currency, or acts as a substitute
                                                                                                                                                              paragraph (b)(1) of ths section and
                                                   Estimated Total Annual Burden:                       for currency, but lacks legal tender
                                                                                                                                                              maintain records demonstrating
                                                1,470,000 hours.                                        status. Although Bitcoin has legal tender
                                                                                                                                                              compliance in accordance with
                                                   FinCEN specifically invites comments                 status in at least two jurisdictions, the
                                                                                                                                                              paragraph (b)(3) of this section.
                                                on: (a) whether the proposed collection                 term CVC includes Bitcoin for the
                                                                                                                                                                 (1) Reporting—(i) Reportable
                                                of information is necessary for the                     purpose of this section.
                                                                                                           (2) CVC Mixer. The term ‘‘CVC mixer’’              information regarding the covered
                                                proper performance of the mission of                                                                          transaction. The covered financial
                                                FinCEN, including whether the                           means any person, group, service, code,
                                                                                                        tool, or function that facilitates CVC                institution shall provide the following
                                                information would have practical                                                                              reportable information in its possession,
                                                utility; (b) the accuracy of FinCEN’s                   mixing.
                                                                                                           (3) CVC mixing. (i) The term ‘‘CVC                 with respect to each covered
                                                estimate of the burden of the proposed                                                                        transaction, within 30 calendar days of
                                                collection of information; (c) ways to                  mixing’’ means the facilitation of CVC
                                                                                                        transactions in a manner that obfuscates              initial detection of a covered
                                                enhance the quality, utility, and clarity                                                                     transaction:
                                                of the information required to be                       the source, destination, or amount
                                                                                                        involved in one or more transactions,                    (A) The amount of any CVC
                                                maintained; (d) ways to minimize the                                                                          transferred, in both CVC and its U.S.
                                                burden of the required collection of                    regardless of the type of protocol or
                                                                                                        service used, such as:                                dollar equivalent when the transaction
                                                information, including through the use                                                                        was initiated;
                                                                                                           (A) Pooling or aggregating CVC from
                                                of automated collection techniques or                                                                            (B) The CVC type;
                                                                                                        multiple persons, wallets, addresses, or
                                                other forms of information technology;                                                                           (C) The CVC mixer used, if known;
                                                                                                        accounts;
                                                (e) estimates of capital or start-up costs                                                                       (D) CVC wallet address associated
                                                                                                           (B) Using programmatic or
                                                and costs of operation, maintenance,                                                                          with the mixer;
                                                                                                        algorithmic code to coordinate, manage,
                                                and purchase of services to report the                                                                           (E) CVC wallet address associated
                                                                                                        or manipulate the structure of a
                                                information.                                                                                                  with the customer;
                                                                                                        transaction;
                                                IX. Regulatory Text                                        (C) Splitting CVC for transmittal and                 (F) Transaction hash;
                                                                                                        transmitting the CVC through a series of                 (G Date of transaction;
                                                List of Subjects in 31 CFR Part 1010                    independent transactions;                                (H) The IP addresses and time stamps
                                                  Administrative practice and                              (D) Creating and using single-use                  associated with the covered transaction;
                                                procedure, Banks, Banking, Brokers,                     wallets, addresses, or accounts, and                  and
                                                Crime, Foreign banking, Terrorism.                      sending CVC through such wallets,                        (I) Narrative
                                                                                                        addresses, or accounts through a series                  (ii) Reportable information regarding
                                                Authority and Issuance                                  of independent transactions;                          the customer associated with the
                                                  For the reasons set forth in the                         (E) Exchanging between types of CVC                covered transaction. The covered
                                                preamble, FinCEN proposes amending                      or other digital assets; or                           financial institution shall provide the
                                                31 CFR part 1010 as follows:                               (F) Facilitating user-initiated delays in          following reportable information in its
                                                                                                        transactional activity.                               possession, regarding the customer
                                                   179 This estimate is informed by public and non-
                                                                                                           (ii) Exception. Notwithstanding                    associated with each covered
                                                public data sources regarding both an expected          paragraph (a)(3)(i) of this section, CVC              transaction:
                                                maximum number of entities that may be affected         mixing does not include the use of                       (A) Customer’s full name;
                                                and the number of active, or currently reporting,       internal protocols or processes to                       (B) Customer’s date of birth;
                                                registered financial institutions and takes into        execute transactions by banks, broker-

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                                                consideration the possibility of voluntary reporting                                                             (C) Customer’s address;
                                                by certain parties without an express obligation to     dealers, or money services businesses,                   (D) Email address associated with any
                                                file reports. See Section VIII.A.2(i)(A).               including virtual asset service providers             and all accounts from which or to which
                                                   180 Assumes, on average, one full work-day per       that would otherwise constitute CVC                   the CVC was transferred;
                                                30-day period is required to complete reporting and     mixing, provided that these financial
                                                recordkeeping related tasks. Due to the anticipated
                                                skew in expected annual burden hours, this average
                                                                                                        institutions preserve records of the                    181 This requirement would be independent of

                                                is unlikely to represent a meaningful approximation     source and destination of CVC                         any recordkeeping requirement pursuant to 31 CFR
                                                for most covered financial institutions.                transactions when using such internal                 1010.410.

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                                                                       Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules                                                  72723

                                                   (E) Phone number associated with any                 requirements of sections 111(d) of the                ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
                                                and all accounts from which or to which                 CAA do not exist within Arkansas. The                 the EPA.
                                                the CVC was transferred;                                EPA is proposing to approve the state
                                                   (F) Internal Revenue Service or                      plan revision for existing kraft pulp                 I. Background
                                                foreign tax identification number, or if                mills, accept the negative declaration for            A. Clean Air Act Section 111(d)
                                                none are available, a non-expired                       existing sulfuric acid plants and                     Requirements
                                                United States or foreign passport                       withdraw approval of the Arkansas state
                                                number or other government-issued                       plan for existing sulfuric acid plants,                  Section 111 of the CAA, ‘‘Standards of
                                                photo identification number, such as a                  and amend the agency regulations in                   Performance for New Stationary
                                                driver’s license; and                                   accordance with the requirements of the               Sources,’’ directs the EPA to establish
                                                   (2) Filing procedures. The reports                   CAA.                                                  emission standards for stationary
                                                required under paragraph (b)(1) of this                 DATES: Written comments must be                       sources of air pollution that could
                                                section shall be filed with FinCEN 30                   received on or before November 22,                    potentially endanger public health or
                                                calendar days from the date of detection                2023.                                                 welfare. These standards are referred to
                                                in the manner that FinCEN prescribes.                   ADDRESSES: Submit your comments,                      as New Source Performance Standards
                                                   (3) Recordkeeping. A covered                         identified by Docket No. EPA–R06–                     (NSPS). Section 111(d) addresses the
                                                financial institution is required to                    OAR–2022–0984, at https://                            process by which the EPA and states
                                                document its compliance with the                        www.regulations.gov or via email to                   regulate standards of performance for
                                                requirements of this section.                           [email protected]. Follow the                 existing 1 sources. When NSPS are
                                                  Dated: October 19, 2023.                              online instructions for submitting                    promulgated for new sources, section
                                                Andrea M. Gacki,                                        comments. Once submitted, comments                    111(d) and EPA regulations require that
                                                Director, Financial Crimes Enforcement                  cannot be edited or removed from                      the EPA publish an Emission Guideline
                                                Network.                                                Regulations.gov. The EPA may publish                  (EG) to regulate the same pollutants
                                                [FR Doc. 2023–23449 Filed 10–20–23; 8:45 a.m.]          any comment received to its public                    from existing facilities. While NSPS are
                                                BILLING CODE 4810–02–P
                                                                                                        docket. Do not submit electronically any              directly applicable to new sources, EG
                                                                                                        information you consider to be
                                                                                                                                                              for existing sources (designated
                                                                                                        Confidential Business Information (CBI)
                                                                                                                                                              facilities) are intended for states to use
                                                                                                        or other information whose disclosure is
                                                ENVIRONMENTAL PROTECTION                                                                                      to develop a state plan to submit to the
                                                                                                        restricted by statute. Multimedia
                                                AGENCY                                                                                                        EPA.
                                                                                                        submissions (audio, video, etc.) must be
                                                40 CFR Part 62                                          accompanied by a written comment.                        State plan submittals and revisions
                                                                                                        The written comment is considered the                 under CAA section 111(d) must be
                                                [EPA–R06–OAR–2022–0984; FRL–11401–                      official comment and should include                   consistent with the applicable EG and
                                                01–R6]                                                  discussion of all points you wish to                  the requirements of 40 CFR part 60,
                                                                                                        make. The EPA will generally not                      subpart B, and part 62, subpart A. The
                                                Approval and Promulgation of State                      consider comments or comment
                                                Air Quality Plans for Designated                                                                              regulations at 40 CFR part 60, subpart B,
                                                                                                        contents located outside of the primary               contain general provisions applicable to
                                                Facilities and Pollutants; Arkansas;                    submission (i.e., on the web, cloud, or
                                                Negative Declaration for Existing                                                                             the adoption and submittal of state
                                                                                                        other file sharing system). For                       plans and plan revisions under CAA
                                                Sulfuric Acid Plants; Plan Revision for                 additional submission methods, please
                                                Existing Kraft Pulp Mills                                                                                     section 111(d). Additionally, 40 CFR
                                                                                                        contact Karolina Ruan Lei, (214) 665–                 part 62, subpart A, provides the
                                                AGENCY: Environmental Protection                        7346, [email protected]. For the
                                                                                                                                                              procedural framework by which the
                                                Agency (EPA).                                           full EPA public comment policy,
                                                                                                                                                              EPA will approve or disapprove such
                                                ACTION: Proposed rule.
                                                                                                        information about CBI or multimedia
                                                                                                        submissions, and general guidance on                  plans and plan revisions submitted by a
                                                                                                        making effective comments, please visit               state. Once approved by the EPA, the
                                                SUMMARY: Pursuant to the Federal Clean
                                                                                                        https://www.epa.gov/dockets/                          state plan or plan revision becomes
                                                Air Act (CAA or the Act), the
                                                                                                        commenting-epa-dockets.                               federally enforceable. If a state does not
                                                Environmental Protection Agency (EPA)
                                                                                                          Docket: The index to the docket for                 submit an approvable state plan to the
                                                is proposing to approve the CAA section
                                                                                                        this action is available electronically at            EPA, the EPA is responsible for
                                                111(d) state plan revision submitted by
                                                the State of Arkansas for existing kraft                www.regulations.gov. While all                        developing, implementing, and
                                                pulp mills subject to the Kraft Pulp                    documents in the docket are listed in                 enforcing a Federal plan. However, 40
                                                Mills Emission Guidelines (EG). The                     the index, some information may not be                CFR 60.23(b) and 62.06 provide that if
                                                Arkansas section 111(d) plan revision                   publicly available due to docket file size            there are no existing sources of the
                                                for kraft pulp mills contains                           restrictions or content (e.g., CBI).                  designated pollutant in the state, the
                                                administrative changes to the state                     FOR FURTHER INFORMATION CONTACT:                      state may submit a letter of certification
                                                regulations and also aligns compliance                  Karolina Ruan Lei, EPA Region 6 Office,               to that effect (i.e., negative declaration)
                                                testing requirements to be consistent                   Air and Radiation Division—State                      in lieu of a plan. The negative
                                                with EPA’s kraft pulp mills new source                  Planning and Implementation Branch,                   declaration exempts the state from the
                                                performance standards. EPA is also                      (214) 665–7346, ruan-lei.karolina@                    requirements of subpart B that require
                                                notifying the public that we have                       epa.gov. We encourage the public to                   the submittal of a CAA section 111(d)

lotter on DSK11XQN23PROD with PROPOSALS1
                                                received a CAA section 111(d) negative                  submit comments via https://                          plan.
                                                declaration from Arkansas for existing                  www.regulations.gov. Please call or
                                                sulfuric acid plants subject to the                     email the contact listed above if you                   1 In this context and for purposes under CAA

                                                Sulfuric Acid Plants EG. This negative                  need alternative access to material                   section 111(d), the term ‘‘existing’’ source is
                                                                                                        indexed but not provided in the docket.               synonymous with designated facility. These are
                                                declaration certifies that existing                                                                           sources that were constructed, reconstructed, or
                                                sulfuric acid plants subject to the                     SUPPLEMENTARY INFORMATION:                            modified on or before the date specified in the
                                                Sulfuric Acid Plants EG and the                         Throughout this document wherever                     emission guideline the source applies to.

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