NPRM: Imposition of special measure against Liberty Reserve S.A. (78 FR 34008)

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

Fincen

2013-06-06

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.

34008                    Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules

                                                policy that the United States would not                 responsibilities between Federal                       assessing proliferation risks, and will
                                                engage in nuclear fuel reprocessing                     agencies, and the NRC’s extensive                      continue to address proliferation risks
                                                because of concerns about nuclear                       experience dealing with domestic and                   in the NRC’s comprehensive regulations
                                                proliferation.                                          international nuclear safety security                  for physical security, information
                                                   The NRC agrees that the petition                     matters through established                            security, material control and
                                                mixes technical and licensing issues                    communications channels. Based on                      accounting, cyber security, and export
                                                that are within the scope of the NRC’s                  this review, the NRC has determined                    control.
                                                domestic licensing process with broader                 that its existing licensing framework is                 Dated at Rockville, Maryland, this 31st day
                                                aspects of the U.S. Government’s                        adequate to address proliferation                      of May 2013.
                                                nuclear nonproliferation policy. While                  concerns. Requiring a separate license-
                                                                                                                                                                 For the Nuclear Regulatory Commission.
                                                the NRC’s comprehensive licensing                       by-license nuclear proliferation
                                                framework is adequate to address                        assessment would not enhance the                       Annette L. Vietti-Cook,
                                                proliferation concerns in domestic                      NRC’s ability to carry out its statutory               Secretary of the Commission.
                                                licensing, other Executive Branch                       responsibility to protect the public                   [FR Doc. 2013–13444 Filed 6–5–13; 8:45 am]
                                                agencies have the primary responsibility                health and safety and promote the                      BILLING CODE 7590–01–P
                                                to address broader U.S. Government                      common defense and security.
                                                foreign policy initiatives and                             Comment Category 19: The Nuclear
                                                proliferation impacts outside of the                    Threat Initiative (NTI).                               DEPARTMENT OF THE TREASURY
                                                NRC’s domestic licensing activities.                       Two comment letters included
                                                   As discussed in response to petition                 comments in this category. Both                        Financial Crimes Enforcement Network
                                                Assertion 1, the NRC agrees that the                    commenters stated their support for the
                                                NPAS required under Section 123 of the                  efforts of the NTI (also supported by                  31 CFR Part 1010
                                                AEA is required in the context of a                     former Senators Richard Lugar and Sam
                                                                                                                                                               RIN 1506–AB23
                                                bilateral agreement negotiated between                  Nunn), which supports the worldwide
                                                the United States and another nation                    safeguarding of all fissile materials that             Imposition of Special Measure Against
                                                governing the peaceful use of nuclear                   could be used to do harm to our Nation.                Liberty Reserve S.A. as a Financial
                                                energy. The NPAS does not address the                                                                          Institution of Primary Money
                                                                                                        NRC Response to Comment Category 19
                                                domestic licensing actions of the NRC.                                                                         Laundering Concern
                                                   Comment Category 18: Requiring a                        Comments advocating support for the
                                                proliferation assessment would be                       NTI are outside the scope of this                      AGENCY: Financial Crimes Enforcement
                                                feasible and would not be overly                        petition because they are unrelated to                 Network (FinCEN), Treasury.
                                                burdensome nor significantly impact                     the petitioner’s request that the NRC                  ACTION: Notice of proposed rulemaking.
                                                licensing timelines.                                    require its ENR facility license
                                                   Two comment letters supporting the                   applicants to perform a nuclear                        SUMMARY: In a finding, notice of which
                                                petition included comments in this                      proliferation assessment. Nonetheless,                 was published elsewhere in this issue of
                                                category. One commenter stated that a                   the NRC notes that its comprehensive                   the Federal Register (Notice of Finding),
                                                nuclear proliferation assessment is                     licensing framework requires the                       the Director of FinCEN found that
                                                feasible and should not be perceived as                 safeguarding of fissile material in                    Liberty Reserve S.A. (Liberty Reserve) is
                                                overly burdensome to the licensing                      domestic licensing activities.                         a financial institution operating outside
                                                process. A commenter stated that GLE                                                                           of the United States that is of primary
                                                                                                        V. Determination of Petition                           money laundering concern. FinCEN is
                                                carried out its own proliferation
                                                assessment of the proposed SILEX laser                     The NRC has reviewed the petition                   issuing this notice of proposed
                                                enrichment facility without creating                    and the public comments. For the                       rulemaking (NPRM) to propose the
                                                delays or jeopardizing classified or                    reasons set forth in this document, the                imposition of a special measure against
                                                proprietary information. Another                        NRC is denying the petition under 10                   Liberty Reserve.
                                                commenter stated that it is highly                      CFR 2.803. The NRC disagrees that an                   DATES: Written comments on this NPRM
                                                doubtful that the addition of a                         applicant seeking an ENR facility                      must be submitted on or before August
                                                proliferation assessment requirement                    license should be required to conduct a                5, 2013.
                                                would significantly alter licensees’                    nuclear proliferation assessment. The                  ADDRESSES: You may submit comments,
                                                timelines.                                              petitioner has not shown that the NRC’s                identified by RIN 1506–AB23, by any of
                                                                                                        comprehensive licensing framework                      the following methods:
                                                NRC Response to Comment Category 18                     fails to adequately address proliferation                 • Federal E-rulemaking Portal: http://
                                                   The NRC has determined that                          risks associated with the licensing of an              www.regulations.gov. Follow the
                                                preparation of a nuclear proliferation                  ENR facility. Additionally, the                        instructions for submitting comments.
                                                assessment is not necessary because it                  petitioner has not shown that ENR                      Include RIN 1506–AB23 in the
                                                would not provide meaningful                            applicants have a particular insight on                submission.
                                                information beyond that which is                        proliferation issues or have access to the                • Mail: The Financial Crimes
                                                already available to the NRC when                       intelligence resources, capabilities and               Enforcement Network, P.O. Box 39,
                                                conducting a domestic licensing                         information that would enable them to                  Vienna, VA 22183. Include RIN 1506–
                                                proceeding. This determination was                      prepare a meaningful proliferation                     AB23 in the body of the text. Please
                                                made independent of the time and                        assessment that would assist the NRC in                submit comments by one method only.

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                                                resources involved in preparing such an                 making an informed licensing decision.                    • Comments submitted in response to
                                                assessment. This determination was also                 Furthermore, proliferation risks have                  this NPRM will become a matter of
                                                made by reviewing the petition, the                     and will continue to be assessed and                   public record. Therefore, you should
                                                public comments, the information                        addressed by the responsible agencies                  submit only information that you wish
                                                sources available to the NRC related to                 within the Executive Branch. The NRC                   to make publicly available.
                                                the current threat environment, the                     will continue to engage with and                          Inspection of comments: Public
                                                existing comprehensive licensing                        support the Executive Branch agencies                  comments received electronically or
                                                framework, the division of                              with primary responsibility for                        through the U.S. Postal Service sent in

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                                                                         Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules                                           34009

                                                response to a notice and request for                    factors relevant to the Finding and to                 to detect potential suspicious activity.
                                                comment will be made available for                      selecting the special measure proposed                 As explained in more detail in the
                                                public review as soon as possible on                    in this NPRM, the Director of FinCEN                   section-by-section analysis below,
                                                http://www.regulations.gov. Comments                    proposes to impose the special measure                 financial institutions should be able to
                                                received may be physically inspected in                 authorized by section 5318A(b)(5) (the                 leverage these current screening and
                                                the FinCEN reading room located in                      fifth special measure). In connection                  reporting procedures to detect
                                                Vienna, Virginia. Reading room                          with this action, FinCEN consulted with                transactions involving Liberty Reserve.
                                                appointments are available weekdays                     representatives of the Federal functional              As a corollary to this measure, covered
                                                (excluding holidays) between 10 a.m.                    regulators, the Department of Justice,                 financial institutions also would be
                                                and 3 p.m., by calling the Disclosure                   and the Department of State, among                     required to take reasonable steps to
                                                Officer at (703) 905–5034 (not a toll-free              others.                                                apply special due diligence, as set forth
                                                call).                                                  B. Discussion of Section 311 Factors                   below, to all of their correspondent
                                                FOR FURTHER INFORMATION CONTACT: The                                                                           accounts to help ensure that no such
                                                FinCEN regulatory helpline at (800)                       In determining which special                         account is being used to provide
                                                949–2732 and select Option 6.                           measures to implement to address the                   services to Liberty Reserve. This would
                                                                                                        primary money laundering concern,                      involve a minimal burden in
                                                SUPPLEMENTARY INFORMATION:
                                                                                                        FinCEN considered the following                        transmitting a one-time notice to certain
                                                I. Statutory Provisions                                 factors.                                               foreign correspondent account holders
                                                   On October 26, 2001, the President                   1. Whether Similar Action Has Been or                  concerning the prohibition on
                                                signed into law the Uniting and                         Will Be Taken by Other Nations or                      processing transactions involving
                                                Strengthening America by Providing                      Multilateral Groups Against Liberty                    Liberty Reserve through the U.S.
                                                Appropriate Tools Required to Intercept                 Reserve                                                correspondent account, but otherwise is
                                                and Obstruct Terrorism Act of 2001 (the                    Other countries or multilateral groups              not expected to impose a significant
                                                USA PATRIOT Act), Public Law 107–                       have not yet taken action similar to                   additional burden upon U.S. financial
                                                56. Title III of the USA PATRIOT Act                    those proposed in this rulemaking that                 institutions.
                                                amends the anti-money laundering                        would: (1) Prohibit domestic financial                 3. The Extent to Which the Proposed
                                                provisions of the Bank Secrecy Act                      institutions and agencies from opening                 Action or Timing of the Action Would
                                                (BSA), codified at 12 U.S.C. 1829b, 12                  or maintaining a correspondent account                 Have a Significant Adverse Systemic
                                                U.S.C. 1951–1959, and 31 U.S.C. 5311–                   for or on behalf of a foreign bank if such             Impact on the International Payment,
                                                5314, 5316–5332, to promote the                         correspondent account is being used to                 Clearance, and Settlement System, or on
                                                prevention, detection, and prosecution                  process transactions involving Liberty                 Legitimate Business Activities of Liberty
                                                of international money laundering and                   Reserve; and (2) require those domestic                Reserve
                                                the financing of terrorism. Regulations                 financial institutions and agencies to
                                                implementing the BSA appear at 31 CFR                   screen their correspondents in a manner                  The requirements proposed in this
                                                Chapter X. The authority of the                         that is reasonably designed to guard                   NPRM would target Liberty Reserve
                                                Secretary of the Treasury (the Secretary)               against processing transactions                        specifically; they would not target a
                                                to administer the BSA and its                           involving Liberty Reserve. FinCEN                      class of financial transactions (such as
                                                implementing regulations has been                       encourages other countries to take                     wire transfers) or a particular
                                                delegated to the Director of FinCEN.                    similar action based on the information                jurisdiction. Liberty Reserve is not a
                                                   Section 311 of the USA PATRIOT Act                                                                          major participant in the international
                                                                                                        contained in this notice and the
                                                (Section 311), codified at 31 U.S.C.                                                                           payment system and is not relied upon
                                                                                                        Finding.
                                                5318A, grants the Director of FinCEN                                                                           by the international banking community
                                                the authority, upon finding that                        2. Whether the Imposition of the Fifth                 for clearance or settlement services.
                                                reasonable grounds exist for concluding                 Special Measure Would Create a                         Thus, the imposition of the fifth special
                                                that a foreign jurisdiction, institution,               Significant Competitive Disadvantage,                  measure against Liberty Reserve would
                                                class of transaction, or type of account                Including Any Undue Cost or Burden                     not have a significant adverse systemic
                                                is of ‘‘primary money laundering                        Associated With Compliance, for                        impact on the international payment,
                                                concern,’’ to require domestic financial                Financial Institutions Organized or                    clearance, and settlement system. As
                                                institutions and financial agencies to                  Licensed in the United States                          discussed further in the Notice of
                                                take certain ‘‘special measures’’ to                       The fifth special measure proposed by               Finding, there appears to be little or no
                                                address the primary money laundering                    this rulemaking would prohibit covered                 incentive for legitimate use of Liberty
                                                concern.                                                financial institutions from opening or                 Reserve, due to its structure, associated
                                                II. Imposition of Special Measure                       maintaining correspondent accounts for                 fees, and lack of basic protections for
                                                Against Liberty Reserve as a Financial                  or on behalf of a foreign bank if such                 users.
                                                Institution of Primary Money                            correspondent account is being used to                 4. The Effect of the Proposed Action on
                                                Laundering Concern                                      process transactions involving Liberty                 United States National Security and
                                                                                                        Reserve after the effective date of the                Foreign Policy
                                                A. Special Measure                                      final rule implementing the fifth special
                                                   As noticed elsewhere in this issue of                measure. U.S. financial institutions                      The exclusion of Liberty Reserve from
                                                the Federal Register, on May 28, 2013,                  generally apply some level of screening                the U.S. financial system as required by

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                                                the Director of FinCEN found that                       and (when required) reporting of their                 the fifth special measure would enhance
                                                Liberty Reserve is a financial institution              transactions and accounts, often through               national security by making it more
                                                operating outside the United States that                the use of commercially-available                      difficult for money launderers, other
                                                is of primary money laundering concern                  software such as that used for                         criminals or terrorists to access the U.S.
                                                (Finding). Based upon that Finding, the                 compliance with the economic                           financial system. More generally, the
                                                Director of FinCEN is authorized to                     sanctions programs administered by the                 imposition of the fifth special measure
                                                impose one or more special measures.                    Office of Foreign Assets Control (OFAC)                would complement the U.S.
                                                Following the consideration of all                      of the Department of the Treasury and                  Government’s worldwide efforts to

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                                                34010                    Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules

                                                expose and disrupt international money                  introducing brokers-commodities, and                    2. Special Due Diligence for
                                                laundering and terrorism financing.                     investment companies that are open-end                  Correspondent Accounts to Prohibit Use
                                                  Therefore, pursuant to the Finding                    companies (‘‘mutual funds’’), FinCEN is                    As a corollary to the prohibition on
                                                that Liberty Reserve is a financial                     also using the same definition of                       maintaining correspondent accounts
                                                institution operating outside of the                    ‘‘account’’ for purposes of this rule as                that are being used to process
                                                United States of primary money                          was established for these entities in the               transactions involving Liberty Reserve,
                                                laundering concern, and after                           final rule implementing the provisions                  section 1010.660(b)(2) of the proposed
                                                conducting the required consultations                   of section 312 of the USA PATRIOT Act                   rule would require a covered financial
                                                and weighing the relevant factors, the                  requiring enhanced due diligence for                    institution to apply special due
                                                Director of FinCEN proposes to impose                   correspondent accounts maintained for                   diligence to all of its foreign
                                                the fifth special measure.                              certain foreign banks.2                                 correspondent accounts that is
                                                III. Section-by-Section Analysis for                    3. Covered Financial Institution                        reasonably designed to guard against
                                                Imposition of the Fifth Special Measure                                                                         processing transactions involving
                                                                                                           Section 1010.660(a)(3) of the                        Liberty Reserve. That special due
                                                A. 1010.660(a)—Definitions                              proposed rule would define ‘‘covered                    diligence must include notifying those
                                                1. Liberty Reserve                                      financial institution’’ with the same                   foreign correspondent account holders
                                                                                                        definition used in the final rule                       that the covered financial institution
                                                   Section 1010.660(a)(1) of the                        implementing the provisions of section
                                                proposed rule would define Liberty                                                                              knows or has reason to know provide
                                                                                                        312 of the USA PATRIOT Act,3 which                      services to Liberty Reserve that such
                                                Reserve to include all branches, offices,               in general includes the following:
                                                and subsidiaries of Liberty Reserve S.A.                                                                        correspondents may not provide Liberty
                                                                                                           • An insured bank (as defined in                     Reserve with access to the
                                                operating in Costa Rica or in any other
                                                                                                        section 3(h) of the Federal Deposit                     correspondent account maintained at
                                                jurisdiction.
                                                   Covered financial institutions should                Insurance Act (12 U.S.C. 1813(h));                      the covered financial institution and
                                                take commercially reasonable measures                      • a commercial bank;                                 implementing appropriate risk-based
                                                to determine whether a customer is a                       • an agency or branch of a foreign                   procedures to identify transactions
                                                branch, office, or subsidiary of Liberty                bank in the United States;                              involving Liberty Reserve.
                                                Reserve.                                                   • a Federally insured credit union;                     A covered financial institution may
                                                                                                                                                                satisfy the notification requirement by
                                                2. Correspondent Account                                   • a savings association;
                                                                                                                                                                transmitting the following notice to its
                                                   Section 1010.660(a)(2) of the                           • a corporation acting under section                 foreign correspondent account holders
                                                proposed rule would define the term                     25A of the Federal Reserve Act (12                      that it knows or has reason to know
                                                ‘‘correspondent account’’ by reference to               U.S.C. 611);                                            provide services to Liberty Reserve:
                                                the definition contained in 31 CFR                         • a trust bank or trust company;
                                                                                                                                                                   Notice: Pursuant to U.S. regulations issued
                                                1010.605(c)(1)(ii). Section                                • a broker or dealer in securities;                  under section 311 of the USA PATRIOT Act,
                                                1010.605(c)(1)(ii) defines a                               • a futures commission merchant or                   see 31 CFR 1010.660, we are prohibited from
                                                correspondent account to mean an                        an introducing broker-commodities; and                  establishing, maintaining, administering, or
                                                account established to receive deposits                    • a mutual fund.                                     managing a correspondent account for or on
                                                from, or make payments or other                                                                                 behalf of a foreign bank if such
                                                disbursements on behalf of, a foreign                   4. Subsidiary                                           correspondent account processes any
                                                                                                                                                                transaction involving Liberty Reserve or any
                                                bank, or to handle other financial                         Section 1010.660(a)(4) of the                        of its subsidiaries. The regulations also
                                                transactions related to the foreign bank.               proposed rule would define                              require us to notify you that you may not
                                                Under this definition, ‘‘payable through                ‘‘subsidiary’’ as a company of which                    provide Liberty Reserve or any of its
                                                accounts’’ are a type of correspondent                  more than 50 percent of the voting stock                subsidiaries with access to the correspondent
                                                account.                                                or analogous equity interest is owned by                account you hold at our financial institution.
                                                   In the case of a U.S. depository                     Liberty Reserve.                                        If we become aware that the correspondent
                                                institution, this broad definition                                                                              account you hold at our financial institution
                                                includes most types of banking                          B. 1010.660(b)—Prohibition on                           has processed any transactions involving
                                                relationships between a U.S. depository                 Accounts and Due Diligence                              Liberty Reserve or any of its subsidiaries, we
                                                institution and a foreign bank that are                 Requirements for Covered Financial                      will be required to take appropriate steps to
                                                                                                        Institutions                                            prevent such access, including terminating
                                                established to provide regular services,
                                                                                                                                                                your account.
                                                dealings, and other financial                           1. Prohibition on Use of Correspondent
                                                transactions, including a demand                                                                                   A covered financial institution may,
                                                                                                        Accounts
                                                deposit, savings deposit, or other                                                                              for example, have knowledge through
                                                transaction or asset account, and a                        Section 1010.660(b)(1) of the                        transaction screening software that the
                                                credit account or other extension of                    proposed rule imposing the fifth special                correspondents process transactions for
                                                credit. FinCEN is using the same                        measure would prohibit covered                          Liberty Reserve. The purpose of the
                                                definition of ‘‘account’’ for purposes of               financial institutions from establishing,               notice requirement is to aid cooperation
                                                this rule as was established for                        maintaining, administering, or                          with correspondent account holders in
                                                depository institutions in the final rule               managing in the United States any                       preventing transactions involving
                                                implementing the provisions of section                  correspondent account for or on behalf                  Liberty Reserve from accessing the U.S.

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                                                312 of the USA PATRIOT Act requiring                    of a foreign bank if such correspondent                 financial system. However, FinCEN
                                                enhanced due diligence for                              account is being used to process                        would not require or expect a covered
                                                correspondent accounts maintained for                   transactions involving Liberty Reserve,                 financial institution to obtain a
                                                certain foreign banks.1                                 including any of its branches, offices or               certification from any of its
                                                   In the case of securities broker-                    subsidiaries.                                           correspondent account holders that
                                                dealers, futures commission merchants,                                                                          access will not be provided to comply
                                                                                                          2 See 31 CFR 1010.605(c)(2)(ii)–(iv).                 with this notice requirement. Methods
                                                  1 See 31 CFR 1010.605(c)(2)(i).                         3 See 31 CFR 1010.605(e)(1).                          of compliance with the notice

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                                                                         Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules                                                    34011

                                                requirement could include, for example,                 solicits comments on the requirement                   significant economic impact on a
                                                transmitting a one-time notice by mail,                 under the proposed rule that covered                   substantial number of small entities.
                                                fax, or email. FinCEN specifically                      financial institutions take reasonable
                                                                                                                                                               A. Proposal To Prohibit Covered
                                                solicits comments on the form and                       steps to prevent any processing of
                                                                                                                                                               Financial Institutions From Opening or
                                                scope of the notice that would be                       transactions involving Liberty Reserve.
                                                                                                                                                               Maintaining Correspondent Accounts
                                                required under the rule.
                                                   The special due diligence would also                 3. Recordkeeping and Reporting                         With Certain Foreign Banks Under the
                                                include implementing risk-based                                                                                Fifth Special Measure
                                                                                                           Section 1010.660(b)(3) of the
                                                procedures designed to identify any use                 proposed rule would clarify that                       1. Estimate of the Number of Small
                                                of correspondent accounts to process                    subsection (b) of the rule does not                    Entities To Whom the Proposed Fifth
                                                transactions involving Liberty Reserve.                 impose any reporting requirement upon                  Special Measure Will Apply:
                                                A covered financial institution would be                any covered financial institution that is                 For purposes of the RFA, both banks
                                                expected to apply an appropriate                        not otherwise required by applicable                   and credit unions are considered small
                                                screening mechanism to identify a funds                 law or regulation. A covered financial                 entities if they have less than
                                                transfer order that on its face listed                  institution must, however, document its                $175,000,000 in assets.4 Of the
                                                Liberty Reserve as the financial                        compliance with the requirement that it
                                                institution of the originator or                                                                               estimated 8,000 banks, 80 percent have
                                                                                                        notify those correspondent account                     less than $175,000,000 in assets and are
                                                beneficiary, or otherwise referenced                    holders that the covered financial
                                                Liberty Reserve in a manner detectable                                                                         considered small entities.5 Of the
                                                                                                        institution knows or has reason to know                estimated 7,000 credit unions, 90
                                                under the financial institution’s normal                provide services to Liberty Reserve that
                                                screening mechanisms. Transactions                                                                             percent have less than $175,000,000 in
                                                                                                        such correspondents may not process                    assets.6
                                                involving Liberty Reserve typically                     any transaction involving Liberty                         Broker-dealers are defined in 31 CFR
                                                indicate such involvement by the                        Reserve through the correspondent                      1010.100(h) as those broker-dealers
                                                presence of the ‘‘LR’’ abbreviation and                 account maintained at the covered
                                                Liberty Reserve account number. An                                                                             required to register with the Securities
                                                                                                        financial institution.                                 and Exchange Commission (SEC).
                                                appropriate screening mechanism could
                                                be the mechanism used by a covered                      IV. Request for Comments                               Because FinCEN and the SEC regulate
                                                financial institution to comply with                                                                           substantially the same population, for
                                                                                                           FinCEN invites comments on all                      the purposes of the RFA, FinCEN relies
                                                various legal requirements, such as the                 aspects of the proposal to impose the
                                                commercially available software                                                                                on the SEC’s definition of small
                                                                                                        fifth special measure against Liberty                  business as previously submitted to the
                                                programs used to comply with the                        Reserve and specifically invites
                                                economic sanctions programs                                                                                    Small Business Administration (SBA).
                                                                                                        comments on the following matters:                     The SEC has defined the term ‘‘small
                                                administered by OFAC.                                      1. The impact of the proposed special
                                                   A covered financial institution would                                                                       entity’’ to mean a broker or dealer that:
                                                                                                        measure upon legitimate transactions                   ‘‘(1) had total capital (net worth plus
                                                also be required to implement risk-
                                                                                                        utilizing Liberty Reserve involving, in                subordinated liabilities of less than
                                                based procedures to identify disguised
                                                                                                        particular, U.S. persons and entities;                 $500,000 on the date in the prior fiscal
                                                use of its correspondent accounts,
                                                                                                        foreign persons, entities, and                         year as of which its audited financial
                                                including through methods used to hide
                                                                                                        governments; and multilateral                          statements, were prepared pursuant to
                                                the beneficial owner of a transaction.
                                                                                                        organizations doing legitimate business.               Rule 17a–5(d) or, if not required to file
                                                Specifically, FinCEN is concerned that
                                                Liberty Reserve may attempt to disguise                    2. The form and scope of the notice                 such statements, a broker or dealer that
                                                its transactions by relying on types of                 to certain correspondent account                       had total capital (net worth plus
                                                payments and accounts that would not                    holders that would be required under                   subordinated debt) of less than $500,000
                                                explicitly identify Liberty Reserve as an               the rule;                                              on the last business day of the preceding
                                                involved party. A financial institution                    3. The appropriate scope of the                     fiscal year (or in the time that it has
                                                may develop a suspicion of such misuse                  proposed requirement for a covered                     been in business if shorter); and (2) is
                                                based on other information in its                       financial institution to take reasonable               not affiliated with any person (other
                                                possession, patterns of transactions, or                steps to identify any use of its                       than a natural person) that is not a small
                                                any other method available to it based                  correspondent accounts to process                      business or small organization as
                                                on its existing systems. Under the                      transactions involving Liberty Reserve;                defined in this release.’’ 7 Currently,
                                                proposed rule, a covered financial                      and                                                    based on SEC estimates, 18 percent of
                                                institution that suspects or has reason to                 4. The appropriate steps a covered                  broker-dealers are classified as ‘‘small’’
                                                suspect use of a correspondent account                  financial institution should take once it              entities for purposes of the RFA.8
                                                to process transactions involving Liberty               identifies use of one of its
                                                Reserve must take all appropriate steps                 correspondent accounts to process                        4 Table of Small Business Size Standards

                                                to attempt to verify and prevent such                   transactions involving Liberty Reserve.                Matched to North American Industry Classification
                                                                                                                                                               System Codes, Small Business Administration Size
                                                use, including a notification to its                    V. Regulatory Flexibility Act                          Standards at 27 (SBA Oct. 1, 2012) [hereinafter SBA
                                                correspondent account holder per                                                                               Size Standards].
                                                section 1010.660(b)(2)(i)(A) requesting                    When an agency issues a rulemaking                    5 Federal Deposit Insurance Corporation, Find an

                                                further information regarding a                         proposal, the Regulatory Flexibility Act               Institution, http://www2.fdic.gov/idasp/main.asp;
                                                                                                        (RFA) requires the agency to ‘‘prepare                 select Size or Performance: Total Assets, type Equal
                                                transaction, requesting corrective action

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                                                                                                                                                               or less than $: ‘‘175000’’, select Find.
                                                to address the perceived risk and, where                and make available for public comment                    6 National Credit Union Administration, Credit
                                                necessary, terminating the                              an initial regulatory flexibility analysis’’           Union Data, http://webapps.ncua.gov/
                                                correspondent account. A covered                        that will ‘‘describe the impact of the                 customquery/; select Search Fields: Total Assets,
                                                financial institution may re-establish an               proposed rule on small entities.’’ (5                  select Operator: Less than or equal to, type Field
                                                                                                                                                               Values: ‘‘175000000’’, select Go.
                                                account closed under the rule if it                     U.S.C. 603(a)). Section 605 of the RFA                   7 17 CFR 240.0–10(c).
                                                determines that the account will not be                 allows an agency to certify a rule, in lieu              8 76 FR 37572, 37602 (June 27, 2011) (The SEC
                                                used to process transactions involving                  of preparing an analysis, if the proposed              estimates 871 small broker-dealers of the 5,063 total
                                                Liberty Reserve. FinCEN specifically                    rulemaking is not expected to have a                   registered broker-dealers).

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                                                34012                    Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules

                                                   Futures commission merchants                         of broker-dealers, 95 percent of                       rule would not have a significant
                                                (FCMs) are defined in 31 CFR                            introducing brokers-commodities, zero                  economic impact on a substantial
                                                1010.100(x) as those FCMs that are                      FCMs, and 7 percent of mutual funds                    number of small entities.
                                                registered or required to be registered as              are small entities. The limited number                   FinCEN invites comments from
                                                a FCM with the Commodity Futures                        of foreign banking institutions with                   members of the public who believe
                                                Trading Commission (CFTC) under the                     which Liberty Reserve maintains or will                there would be a significant economic
                                                Commodity Exchange Act (CEA), except                    maintain accounts will likely limit the                impact on small entities from the
                                                persons who register pursuant to section                number of affected covered financial                   imposition of the fifth special measure
                                                4f(a)(2) of the CEA, 7 U.S.C. 6f(a)(2).                 institutions to the largest U.S. banks,                regarding Liberty Reserve.
                                                Because FinCEN and the CFTC regulate                    which actively engage in international                 VI. Paperwork Reduction Act
                                                substantially the same population, for                  transactions. Thus, the prohibition on
                                                the purposes of the RFA, FinCEN relies                  maintaining correspondent accounts for                   The collection of information
                                                on the CFTC’s definition of small                       foreign banking institutions that engage               contained in this proposed rule is being
                                                business as previously submitted to the                 in transactions involving Liberty                      submitted to the Office of Management
                                                SBA. In the CFTC’s ‘‘Policy Statement                   Reserve under the fifth special measure                and Budget for review in accordance
                                                and Establishment of Definitions of                     would not impact a substantial number                  with the Paperwork Reduction Act of
                                                ‘Small Entities’ for Purposes of the                    of small entities.                                     1995 (44 U.S.C. 3507(d)). Comments on
                                                Regulatory Flexibility Act,’’ the CFTC                                                                         the collection of information should be
                                                                                                        2. Description of the Projected Reporting              sent to the Desk Officer for the
                                                concluded that registered FCMs should                   and Recordkeeping Requirements of the
                                                not be considered to be small entities for                                                                     Department of Treasury, Office of
                                                                                                        Fifth Special Measure:                                 Information and Regulatory Affairs,
                                                purposes of the RFA.9 The CFTC’s
                                                determination in this regard was based,                    The proposed fifth special measure                  Office of Management and Budget,
                                                in part, upon the obligation of registered              would require covered financial                        Paperwork Reduction Project (1506),
                                                FCMs to meet the capital requirements                   institutions to provide a notification                 Washington, DC 20503 (or by email to
                                                established by the CFTC.                                intended to aid cooperation from foreign               [email protected]) with a
                                                   For purposes of the RFA, an                          correspondent account holders in                       copy to FinCEN by mail or email at the
                                                introducing broker-commodities is                       preventing transactions involving                      addresses previously specified.
                                                considered small if it has less than                    Liberty Reserve from accessing the U.S.                Comments should be submitted by one
                                                $7,000,000 in gross receipts annually.10                financial system. FinCEN estimates that                method only. Comments on the
                                                                                                        the burden on institutions providing                   collection of information should be
                                                Based on information provided by the
                                                                                                        this notice is one hour. Covered                       received by August 5, 2013. In
                                                National Futures Association (NFA),
                                                                                                        financial institutions would also be                   accordance with the requirements of the
                                                there were 1249 introducing brokers-
                                                                                                        required to take reasonable measures to                Paperwork Reduction Act of 1995, 44
                                                commodities that were members of NFA
                                                                                                        detect use of their correspondent                      U.S.C. 3506(c)(2)(A), and its
                                                as of April 30, 2013, 95 percent of
                                                                                                        accounts to directly or indirectly                     implementing regulations, 5 CFR 1320,
                                                which have less than $7 million in
                                                                                                        process transactions involving Liberty                 the following information concerning
                                                Adjusted Net Capital and are considered
                                                                                                        Reserve. All U.S. persons, including                   the collection of information as required
                                                to be small entities.
                                                                                                        U.S. financial institutions, currently                 by 31 CFR 1010.659 is presented to
                                                   Mutual funds are defined in 31 CFR
                                                                                                        must exercise some degree of due                       assist those persons wishing to
                                                1010.100(gg) as those investment                        diligence to comply with OFAC
                                                companies that are open-end investment                                                                         comment on the information collection.
                                                                                                        sanctions and suspicious activity
                                                companies that are registered or are                    reporting requirements. The tools used                 A. Proposed Information Collection
                                                required to register with the SEC.                      for such purposes, including                           Under the Fifth Special Measure
                                                Because FinCEN and the SEC regulate                     commercially available software used to                  The notification requirement in
                                                substantially the same population, for                  comply with the economic sanctions                     section 1010.660(b)(2)(i) is intended to
                                                the purposes of the RFA, FinCEN relies                  programs administered by OFAC, can                     aid cooperation from correspondent
                                                on the SEC’s definition of small                        easily be modified to identify                         account holders in denying Liberty
                                                business as previously submitted to the                 correspondent accounts with foreign                    Reserve access to the U.S. financial
                                                SBA. The SEC has defined the term                       banks that involve Liberty Reserve.                    system. The information required to be
                                                ‘‘small entity’’ under the Investment                   Thus, the special due diligence that                   maintained by section 1010.660(b)(3)(i)
                                                Company Act to mean ‘‘an investment                     would be required by the imposition of                 would be used by federal agencies and
                                                company that, together with other                       the fifth special measure—i.e., the one-               certain self-regulatory organizations to
                                                investment companies in the same                        time transmittal of notice to certain                  verify compliance by covered financial
                                                group of related investment companies,                  correspondent account holders, the                     institutions with the provisions of 31
                                                has net assets of $50 million or less as                screening of transactions to identify any              CFR 1010.660. The collection of
                                                of the end of its most recent fiscal                    use of correspondent accounts, and the                 information would be mandatory.
                                                year.11 Currently, based on SEC                         implementation of risk-based measures                    Description of Affected Financial
                                                estimates, 7 percent of mutual funds are                to detect use of correspondent                         Institutions: Banks, broker-dealers in
                                                classified as ‘‘small entities’’ for                    accounts—would not impose a                            securities, futures commission
                                                purposes of the RFA under their                         significant additional economic burden                 merchants and introducing brokers-
                                                definition.12                                           upon small U.S. financial institutions.                commodities, and mutual funds.

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                                                   As noted above, 80 percent of banks,                                                                          Estimated Number of Affected
                                                90 percent of credit unions, 18 percent                 B. Certification                                       Financial Institutions: 5,000.
                                                                                                          When viewed as a whole, FinCEN                         Estimated Average Annual Burden in
                                                  9 47 FR 18618, 18619 (Apr. 30, 1982).
                                                  10 SBA Size Standards at 28.
                                                                                                        does not anticipate that the proposals                 Hours Per Affected Financial
                                                  11 17 CFR 270.0–10.
                                                                                                        contained in this rulemaking would                     Institution: The estimated average
                                                  12 78 FR 23637, 23658 (April 19, 2013) (The SEC       have a significant impact on a                         burden associated with the collection of
                                                estimates 119 small mutual funds of the 1692 total      substantial number of small businesses.                information in this proposed rule is one
                                                active registered mutual funds).                        Accordingly, FinCEN certifies that this                hour per affected financial institution.

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                                                                         Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules                                                 34013

                                                  Estimated Total Annual Burden:                        secs. 311, 312, 313, 314, 319, 326, 352, Pub.          process transactions involving Liberty
                                                5,000 hours.                                            L. 107–56, 115 Stat. 307.                              Reserve.
                                                  FinCEN specifically invites comments                  ■ 2. Amend Part 1010 by adding                           (iii) A covered financial institution
                                                on: (a) Whether the proposed collection                 § 1010.660 of Subpart F to read as                     that obtains knowledge that a foreign
                                                of information is necessary for the                     follows:                                               correspondent account may be being
                                                proper performance of the mission of                                                                           used to process transactions involving
                                                FinCEN, including whether the                           § 1010.660 Special measures against
                                                                                                                                                               Liberty Reserve shall take all
                                                                                                        Liberty Reserve
                                                information would have practical                                                                               appropriate steps to further investigate
                                                utility; (b) the accuracy of FinCEN’s                      (a) Definitions. For purposes of this               and prevent such access, including the
                                                estimate of the burden of the proposed                  section:                                               notification of its correspondent account
                                                collection of information; (c) ways to                     (1) Liberty Reserve means all                       holder under paragraph (b)(2)(i)(A) and,
                                                enhance the quality, utility, and clarity               branches, offices, and subsidiaries of                 where necessary, termination of the
                                                of the information required to be                       Liberty Reserve operating in any                       correspondent account.
                                                maintained; (d) ways to minimize the                    jurisdiction.                                            (3) Recordkeeping and reporting.
                                                burden of the required collection of                       (2) Correspondent account has the                     (i) A covered financial institution is
                                                information, including through the use                  same meaning as provided in                            required to document its compliance
                                                of automated collection techniques or                   § 1010.605(c)(1)(ii).                                  with the notice requirement set forth in
                                                other forms of information technology;                     (3) Covered financial institution has
                                                                                                                                                               paragraph (b)(2)(i)(A) of this section.
                                                and (e) estimates of capital or start-up                the same meaning as provided in
                                                                                                                                                                 (ii) Nothing in paragraph (b) shall
                                                costs and costs of operation,                           § 1010.605(e)(1).
                                                                                                                                                               require a covered financial institution to
                                                                                                           (4) Subsidiary means a company of
                                                maintenance, and purchase of services                                                                          report any information not otherwise
                                                                                                        which more than 50 percent of the
                                                to report the information.                                                                                     required to be reported by law or
                                                  An agency may not conduct or                          voting stock or analogous equity interest
                                                                                                                                                               regulation.
                                                sponsor, and a person is not required to                is owned by another company.
                                                                                                           (b) Prohibition on accounts and due                   Dated: May 28, 2013.
                                                respond to, a collection of information
                                                                                                        diligence requirements for covered                     Jennifer Shasky Calvery,
                                                unless it displays a valid OMB control
                                                                                                        financial institutions                                 Director, Financial Crimes Enforcement
                                                number.
                                                                                                           (1) Prohibition on use of                           Network.
                                                VII. Executive Order 12866                              correspondent accounts. A covered                      [FR Doc. 2013–12945 Filed 6–5–13; 8:45 am]
                                                   Executive Orders 12866 and 13563                     financial institution shall terminate any              BILLING CODE 4810–02–P
                                                direct agencies to assess costs and                     correspondent account that is
                                                benefits of available regulatory                        established, maintained, administered,
                                                alternatives and, if regulation is                      or managed in the United States for, or                ENVIRONMENTAL PROTECTION
                                                necessary, to select regulatory                         on behalf of, a foreign bank if such                   AGENCY
                                                approaches that maximize net benefits                   correspondent account is being used to
                                                (including potential economic,                          process transactions that involve Liberty              40 CFR Part 52
                                                environmental, public health and safety                 Reserve.
                                                                                                                                                               [EPA–R03–OAR–2012–0955; FRL–9819–5]
                                                effects, distributive impacts, and                         (2) Special due diligence of
                                                equity). Executive Order 13563                          correspondent accounts to prohibit use.                Approval and Promulgation of Air
                                                emphasizes the importance of                               (i) A covered financial institution                 Quality Implementation Plans;
                                                quantifying both costs and benefits, of                 shall apply special due diligence to its               Delaware, District of Columbia,
                                                reducing costs, of harmonizing rules,                   foreign correspondent accounts that is                 Maryland, Pennsylvania, Virginia, and
                                                and of promoting flexibility. It has been               reasonably designed to guard against                   West Virginia; Removal of Obsolete
                                                determined that the proposed rule is not                their use to process transactions                      Regulations and Updates to Citations
                                                a ‘‘significant regulatory action’’ for                 involving Liberty Reserve. At a                        to State Regulations Due to
                                                purposes of Executive Order 12866.                      minimum, that special due diligence                    Recodification
                                                                                                        must include:
                                                List of Subjects in 31 CFR Chapter X                       (A) Notifying those foreign                         AGENCY: Environmental Protection
                                                  Administrative practice and                           correspondent account holders that the                 Agency (EPA).
                                                procedure, banks and banking, brokers,                  covered financial institution knows or                 ACTION: Proposed rule.
                                                counter-money laundering, counter-                      has reason to know provide services to
                                                                                                        Liberty Reserve that such                              SUMMARY: EPA is proposing to remove
                                                terrorism, foreign banking.
                                                                                                        correspondents may not provide Liberty                 over fifty rules in the Code of Federal
                                                Authority and Issuance                                  Reserve with access to the                             Regulations (CFR) at 40 CFR part 52 for
                                                  For the reasons set forth in the                      correspondent account maintained at                    Delaware, the District of Columbia,
                                                preamble, Chapter X of title 31 of the                  the covered financial institution; and                 Maryland, Pennsylvania, Virginia, and
                                                Code of Federal Regulations is proposed                    (B) Taking reasonable steps to identify             West Virginia because they are
                                                to be amended as follows:                               any use of its foreign correspondent                   unnecessary or obsolete. EPA is also
                                                                                                        accounts by Liberty Reserve, to the                    proposing to clarify regulations in 40
                                                CHAPTER X—FINANCIAL CRIMES                              extent that such use can be determined                 CFR part 52 which reflect updated
                                                ENFORCEMENT NETWORK,                                    from transactional records maintained                  citations of certain Commonwealth of

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                                                DEPARTMENT OF THE TREASURY                              in the covered financial institution’s                 Virginia rules due to the
                                                                                                        normal course of business.                             Commonwealth’s recodification of its
                                                PART 1010—GENERAL PROVISIONS                               (ii) A covered financial institution                regulations at the state level. These
                                                                                                        shall take a risk-based approach when                  proposed actions make no substantive
                                                ■ 1. The authority citation for Part 1010               deciding what, if any, other due                       changes to these State Implementation
                                                continues to read as follows:                           diligence measures it reasonably must                  Plans (SIPs) and impose no new
                                                  Authority: 12 U.S.C. 1829b and 1951–1959;             adopt to guard against the use of its                  requirements. In the Final Rules section
                                                31 U.S.C. 5311–5314, 5316–5332 Title III,               foreign correspondent accounts to                      of this Federal Register, EPA is

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