Joint NPRM (Fed + FinCEN): $250 cross-border threshold for Recordkeeping/Travel Rules; CVC is 'money' (85 FR 68005) (Part 1 of 2)

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

Fincen

1

2020-10-27

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.

68005

                                              Proposed Rules                                                                                                Federal Register
                                                                                                                                                            Vol. 85, No. 208

                                                                                                                                                            Tuesday, October 27, 2020

                                              This section of the FEDERAL REGISTER                    (863) 324–3375, Fax: (863) 291–8614, or                 Abigail Campos, Dolores Lowenstine,
                                              contains notices to the public of the proposed          Email: [email protected] or                     and Christian D. Nissen of the Southeast
                                              issuance of rules and regulations. The                  [email protected].                            Marketing Field Office, Specialty Crops
                                              purpose of these notices is to give interested                                                                Program, AMS, USDA, are hereby
                                              persons an opportunity to participate in the            SUPPLEMENTARY INFORMATION: Pursuant
                                                                                                                                                            designated as the referendum agents of
                                              rule making prior to the adoption of the final          to Marketing Agreement and Order No.
                                                                                                                                                            the Secretary of Agriculture to conduct
                                              rules.                                                  915, as amended (7 CFR part 915),
                                                                                                                                                            this referendum. The procedure
                                                                                                      hereinafter referred to as the ‘‘Order,’’
                                                                                                                                                            applicable to the referendum shall be
                                                                                                      and the applicable provisions of the
                                              DEPARTMENT OF AGRICULTURE                                                                                     the ‘‘Procedure for the Conduct of
                                                                                                      Agricultural Marketing Agreement Act
                                                                                                                                                            Referenda in Connection with
                                                                                                      of 1937, as amended (7 U.S.C. 601–674),
                                              Agricultural Marketing Service                                                                                Marketing Orders for Fruits, Vegetables,
                                                                                                      hereinafter referred to as the ‘‘Act,’’ it is
                                                                                                                                                            and Nuts Pursuant to the Agricultural
                                                                                                      hereby directed that a referendum be
                                              7 CFR Part 915                                                                                                Marketing Agreement Act of 1937, as
                                                                                                      conducted to ascertain whether
                                                                                                                                                            Amended’’ (7 CFR 900.400 et seq.).
                                              [Doc. No. AMS–SC–20–0064; SC20–915–1                    continuance of the Order is favored by                  Ballots will be mailed to all growers
                                              CR]                                                     growers. The referendum shall be                      of record and may also be obtained from
                                                                                                      conducted from November 30 through                    the referendum agents or their
                                              Avocados Grown in South Florida;                        December 21, 2020, among Florida
                                              Continuance Referendum                                                                                        appointees.
                                                                                                      avocado growers in the production area.
                                              AGENCY: Agricultural Marketing Service,                 Only current Florida avocado growers                  List of Subjects in 7 CFR Part 915
                                              USDA.                                                   who were engaged in the production of                   Avocados, Marketing agreements,
                                              ACTION: Proposed rule; referendum                       Florida avocados grown in the                         Reporting and recordkeeping
                                              order.                                                  production area, during the period of                 requirements.
                                                                                                      period April 1, 2019, through March 31,
                                                                                                                                                              Authority: 7 U.S.C. 601–674.
                                              SUMMARY: This document directs that a                   2020, may participate in the
                                              referendum be conducted among                           continuance referendum.                               Bruce Summers,
                                              eligible growers of avocados grown in                     USDA has determined that                            Administrator, Agricultural Marketing
                                              South Florida to determine whether                      continuance referenda are an effective                Service.
                                              they favor continuance of the marketing                 means for determining whether growers                 [FR Doc. 2020–23348 Filed 10–26–20; 8:45 am]
                                              order regulating the handling of                        favor the continuation of marketing                   BILLING CODE 3410–02–P
                                              avocados produced in the production                     order programs. The Order will
                                              area.                                                   continue in effect if two-thirds of the
                                              DATES: The referendum will be                           growers that cast votes, or growers                   DEPARTMENT OF THE TREASURY
                                              conducted from November 30 through                      representing two-thirds of the volume of
                                              December 21, 2020. Only current                         Florida avocados voted in the                         Financial Crimes Enforcement Network
                                              growers of Florida avocados within the                  referendum, cast ballots in favor of
                                              production area that produced avocados                  continuance. In evaluating the merits of              31 CFR Parts 1010 and 1020
                                              during the period April 1, 2019, through                continuance versus termination, USDA                  [Docket No. FINCEN–2020–0002 ; RIN 1506–
                                              March 31, 2020, are eligible to vote in                 will not exclusively consider the results             AB41]
                                              this referendum.                                        of the continuance referendum. USDA
                                              ADDRESSES: Copies of the marketing                      will also consider all other relevant                 Threshold for the Requirement To
                                              order may be obtained from the                          information regarding the operation of                Collect, Retain, and Transmit
                                              Southeast Marketing Field Office,                       the Order and relative benefits and                   Information on Funds Transfers and
                                              Marketing Order and Agreement                           disadvantages to growers, handlers, and               Transmittals of Funds That Begin or
                                              Division, Specialty Crops Program,                      consumers in determining whether                      End Outside the United States, and
                                              AMS, USDA, 1124 First Street South,                     continued operation of the Order would                Clarification of the Requirement To
                                              Winter Haven, FL 33880; Telephone:                      tend to effectuate the declared policy of             Collect, Retain, and Transmit
                                              (863) 324–3375; or from the Marketing                   the Act.                                              Information on Transactions Involving
                                              Order and Agreement Division,                             In accordance with the Paperwork                    Convertible Virtual Currencies and
                                              Specialty Crops Program, AMS, USDA,                     Reduction Act of 1995 (44 U.S.C.                      Digital Assets With Legal Tender
                                              1400 Independence Avenue SW, STOP                       Chapter 35), the ballots used in the                  Status
                                              0237, Washington, DC 20250–0237;                        referendum have been approved by the                  AGENCY: Board of Governors of the
                                              Telephone: (202) 720–2491; or on the                    Office of Management and Budget                       Federal Reserve System (‘‘Board’’);
                                              internet: https://www.regulations.gov.                  (OMB) and have been assigned OMB                      Financial Crimes Enforcement Network
                                              FOR FURTHER INFORMATION CONTACT:                        No. 0581–0189, Fruit Crops. It has been               (‘‘FinCEN’’), Treasury.

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                                              Abigail Campos, Marketing Specialist,                   estimated it will take an average of 20               ACTION: Joint notice of proposed
                                              or Christian D. Nissen, Regional                        minutes for each of the approximately                 rulemaking.
                                              Director, Southeast Marketing Field                     325 growers of Florida avocados to cast
                                              Office, Marketing Order and Agreement                   a ballot. Participation is voluntary.                 SUMMARY: The Board and FinCEN
                                              Division, Specialty Crops Program,                      Ballots postmarked after December 21,                 (collectively, the ‘‘Agencies’’) are
                                              AMS, USDA, 1124 First Street South,                     2020, will not be included in the vote                issuing this proposed rule to modify the
                                              Winter Haven, FL 33880; Telephone:                      tabulation.                                           threshold in the rule implementing the

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                                              68006                 Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              Bank Secrecy Act (‘‘BSA’’) requiring                    electronically or in paper in Room 146,               authorizes the Secretary and the Board
                                              financial institutions to collect and                   1709 New York Avenue NW,                              to jointly issue regulations requiring
                                              retain information on certain funds                     Washington, DC 20006, between 9:00                    insured depository institutions to
                                              transfers and transmittals of funds. The                a.m. and 5:00 p.m. on weekdays. For                   maintain records of domestic funds
                                              proposed modification would reduce                      security reasons, the Board requires that             transfers.3 The Secretary, but not the
                                              this threshold from $3,000 to $250 for                  visitors make an appointment to inspect               Board, is authorized to promulgate
                                              funds transfers and transmittals of funds               comments. You may do so by calling                    recordkeeping requirements for
                                              that begin or end outside the United                    (202) 452–3684.                                       domestic wire transfers by nonbank
                                              States. FinCEN is likewise proposing to                   FinCEN:                                             financial institutions.4 In addition,
                                              reduce from $3,000 to $250 the                            • Federal E-rulemaking Portal: http://              Annunzio-Wylie authorizes the
                                              threshold in the rule requiring financial               www.regulations.gov. Follow the                       Secretary and the Board, after
                                              institutions to transmit to other                       instructions for submitting comments.                 consultation with state banking
                                              financial institutions in the payment                   Refer to Docket Number FINCEN–2020–                   supervisors, to jointly issue regulations
                                              chain information on funds transfers                    0002 and the specific RIN number                      requiring insured depository
                                              and transmittals of funds that begin or                 1506–AB41 the comment applies to.                     institutions and certain nonbank
                                              end outside the United States. The                        • Mail: Policy Division, Financial                  financial institutions to maintain
                                              Agencies are also proposing to clarify                  Crimes Enforcement Network, P.O. Box                  records of international funds transfers
                                              the meaning of ‘‘money’’ as used in                     39, Vienna, VA 22183. Refer to Docket                 and transmittals of funds.5 Annunzio-
                                              these same rules to ensure that the rules               Number FINCEN–2020–0002 and the                       Wylie requires the Secretary and the
                                              apply to domestic and cross-border                      specific RIN number.                                  Board, in issuing regulations for
                                              transactions involving convertible                      FOR FURTHER INFORMATION CONTACT:                      international funds transfers and
                                              virtual currency (‘‘CVC’’), which is a                    Board: Jason Gonzalez, Assistant                    transmittals of funds, to consider the
                                              medium of exchange (such as                             General Counsel (202) 452–3275 or Evan                usefulness of the records in criminal,
                                              cryptocurrency) that either has an                      Winerman, Senior Counsel (202) 872–                   tax, or regulatory investigations or
                                              equivalent value as currency, or acts as                7578, Legal Division, Board of                        proceedings, and the effect of the
                                              a substitute for currency, but lacks legal              Governors of the Federal Reserve                      regulations on the cost and efficiency of
                                              tender status. The Agencies further                     System, 20th Street and Constitution                  the payments system.6 FinCEN can
                                              propose to clarify that these rules apply               Avenue NW, Washington, DC 20551.                      continually monitor the benefits of such
                                              to domestic and cross-border                            Users of Telecommunication Device for                 regulations through its extensive liaison
                                              transactions involving digital assets that              Deaf (TDD) only, call (202) 263–4869.                 activity with federal and state law
                                              have legal tender status.                                 FinCEN: The FinCEN Regulatory                       enforcement and financial regulatory
                                                                                                      Support Section at 1–800–767–2825 or                  entities, and the Board can assess costs
                                              DATES: Written comments on this
                                                                                                      electronically at [email protected].                     through its regulatory oversight of
                                              proposed rule may be submitted on or
                                                                                                      SUPPLEMENTARY INFORMATION:
                                                                                                                                                            financial institutions under its
                                              before November 27, 2020.
                                                                                                                                                            jurisdiction.
                                              ADDRESSES: Comments may be                              I. Background                                            On January 3, 1995, the Agencies
                                              submitted by any of the following                                                                             jointly issued a recordkeeping rule (the
                                              methods:                                                A. Statutory and Regulatory Background
                                                                                                                                                            ‘‘Recordkeeping Rule’’) that requires
                                                 Board: You may submit comments,                         The Currency and Foreign                           banks and nonbank financial
                                              identified by Docket No. R–1726; RIN                    Transactions Reporting Act of 1970, as                institutions to collect and retain
                                              7100–AF97, by any of the following                      amended by the Uniting and                            information related to funds transfers
                                              methods:                                                Strengthening America by Providing                    and transmittals of funds in amounts of
                                                 • Agency website: http://                            Appropriate Tools Required to Intercept               $3,000 or more.7 The Recordkeeping
                                              www.federalreserve.gov. Follow the                      and Obstruct Terrorism Act of 2001                    Rule is intended to help law
                                              instructions for submitting comments at                 (‘‘USA PATRIOT Act’’) (Pub. L. 107–56)                enforcement and regulatory authorities
                                              http://www.federalreserve.gov/                          and other legislation, is the legislative
                                              generalinfo/foia/ProposedRegs.cfm.                      framework commonly referred to as the                   3 12 U.S.C. 1829b(b)(2).

                                                 • Email: regs.comments@                              BSA. The Secretary of the Treasury                      4 12 U.S.C. 1953.

                                              federalreserve.gov. Include docket and                  (‘‘Secretary’’) has delegated to the                     5 12 U.S.C. 1829b(b)(3). The terms ‘‘funds

                                              RIN numbers in the subject line of the                                                                        transfer,’’ ‘‘originator,’’ ‘‘beneficiary,’’ and
                                                                                                      Director of FinCEN (‘‘Director’’) the                 ‘‘payment order’’ apply only in the context of
                                              message.                                                authority to implement, administer, and               banks. The term ‘‘transmittal of funds’’ includes a
                                                 • Fax: (202) 452–3819 or (202) 452–                  enforce compliance with the BSA and                   funds transfer and its counterpart in the context of
                                              3102.                                                   associated regulations.1 Pursuant to this             nonbank financial institutions. See 31 CFR
                                                 • Mail: Ann E. Misback, Secretary,                   authority, FinCEN may require financial               1010.100(ddd). Transmittors, recipients, and
                                                                                                                                                            transmittal orders in the context of nonbank
                                              Board of Governors of the Federal                       institutions to keep records and file                 financial institutions play the same role as
                                              Reserve System, 20th Street and                         reports that the Director determines                  originators, beneficiaries, and payment orders in the
                                              Constitution Avenue NW, Washington,                     have a high degree of usefulness in                   context of banks.
                                                                                                                                                               6 12 U.S.C. 1829b(b)(3).
                                              DC 20551.                                               criminal, tax, or regulatory                             7 60 FR 220 (Jan. 3, 1995). Through a separate
                                                 All public comments will be made                     investigations or proceedings, or in                  rulemaking, the Board added on January 3, 1995 a
                                              available on the Board’s website at                     intelligence or counterintelligence                   new subpart B to 12 CFR part 219 (Regulation S),
                                              http://www.federalreserve.gov/                          matters to protect against international              which cross-references the substantive
                                              generalinfo/foia/ProposedRegs.cfm as                    terrorism.2                                           requirements in the Recordkeeping Rule. See 60 FR

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                                                                                                                                                            231–01 (Jan. 3, 1995). As noted above, the Board
                                              submitted, unless modified for technical                   The Annunzio-Wylie Anti-Money                      (unlike FinCEN) is not authorized to promulgate
                                              reasons or to remove personally                         Laundering Act of 1992 (Pub. L. 102–                  recordkeeping requirements for domestic wire
                                              identifiable information at the                         550) (‘‘Annunzio-Wylie’’) amended the                 transfers by nonbank financial institutions.
                                              commenter’s request. Accordingly,                       BSA framework. Annunzio-Wylie                         Accordingly, for purposes of Regulation S, the
                                                                                                                                                            provisions of the Recordkeeping Rule with respect
                                              comments will not be edited to remove                                                                         to nonbank financial institutions apply only to
                                              any identifying or contact information.                   1 Treasury Order 180–01 (Jan. 14, 2020).
                                                                                                                                                            international transmittals of funds. 12 CFR
                                              Public comments may also be viewed                        2 31 U.S.C. 5311.                                   219.23(b).

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                                                                      Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules                                                    68007

                                              detect, investigate, and prosecute money                 unnecessary to propose conforming                      bank or nonbank financial institution in
                                              laundering, and other financial crimes                   amendments to Regulation S.                            the payment chain. An intermediary
                                              by preserving an information trail about                                                                        bank or financial institution is also
                                                                                                       B. Information Required To Be
                                              persons sending and receiving funds                                                                             required to transmit this information to
                                                                                                       Collected, Retained, and Transmitted
                                              through the funds transfer system.                                                                              other banks or nonbank financial
                                                                                                       Under the Recordkeeping and Travel
                                                 At the same time, FinCEN issued a                                                                            institutions in the payment chain, to the
                                                                                                       Rules
                                              separate rule—the ‘‘Travel Rule’’—that                                                                          extent the information is received by the
                                                                                                          The Recordkeeping Rule and Travel                   intermediary bank or financial
                                              requires banks and nonbank financial                     Rule collectively require banks and                    institution.
                                              institutions to transmit information on                  nonbank financial institutions to collect,
                                              certain funds transfers and transmittals                 retain, and transmit information on                    II. Lowering of Threshold From $3,000
                                              of funds to other banks or nonbank                       funds transfers and transmittals of funds              to $250 for Funds Transfers and
                                              financial institutions participating in                  in amounts of $3,000 or more.                          Transmittals of Funds by Financial
                                              the transfer or transmittal.8 The Travel                    Under the Recordkeeping Rule, the                   Institutions That Begin or End Outside
                                              Rule and the Recordkeeping Rule                          originator’s bank or transmittor’s                     the United States
                                              complement each other: Generally, as                     financial institution must collect and                    The existing requirements in 31 CFR
                                              noted below, the Recordkeeping Rule                      retain the following information: (a)                  1020.410(a) and 31 CFR 1010.410(e) and
                                              requires financial institutions to collect               Name and address of the originator or                  (f) to collect, retain, and transmit
                                              and retain the information that, under                   transmittor; (b) the amount of the                     information on funds transfers and
                                              the Travel Rule, must be included with                   payment or transmittal order; (c) the                  transmittals of funds currently apply
                                              transmittal orders, although the                         execution date of the payment or                       only to funds transfers and transmittals
                                              Recordkeeping Rule also has other                        transmittal order; (d) any payment                     of funds in amounts of $3,000 or more.
                                              applications apart from ensuring that                    instructions received from the originator              The Agencies are proposing to lower the
                                              information is available to include with                 or transmittor with the payment or                     threshold under the Recordkeeping
                                              funds transfers. FinCEN issued the                       transmittal order; and (e) the identity of             Rule, and FinCEN is proposing to lower
                                              Travel Rule pursuant to statutory                        the beneficiary’s bank or recipient’s                  the threshold under the Travel Rule, to
                                              authority that permits the Treasury to                   financial institution. In addition, the                $250 for funds transfers and transmittals
                                              require domestic financial institutions                  originator’s bank or transmittor’s                     of funds that begin or end outside the
                                              or nonfinancial trades or businesses to                  financial institution must retain the                  United States.13 In proposing these
                                              maintain appropriate procedures to                       following information if it receives that              modifications, the Agencies considered
                                              ensure compliance with the BSA or to                     information from the originator or                     the usefulness of transaction
                                              guard against money laundering, and to                   transmittor: (a) Name and address of the               information associated with smaller-
                                              establish anti-money laundering                          beneficiary or recipient; (b) account                  value cross-border transfers and
                                              programs.9                                               number of the beneficiary or recipient;                transmittals of funds in criminal, tax, or
                                                                                                       and (c) any other specific identifier of               regulatory investigations or proceedings,
                                                 This proposed rule would amend both
                                                                                                       the beneficiary or recipient. The                      and in intelligence or
                                              the Recordkeeping Rule and the Travel
                                                                                                       originator’s bank or transmittor’s                     counterintelligence activities to protect
                                              Rule. The Recordkeeping Rule is
                                                                                                       financial institution is required to verify            against international terrorism, as well
                                              codified at 31 CFR 1020.410(a) and
                                                                                                       the identity of the person placing a                   as the effect on the payments system of
                                              1010.410(e) 10 and the Travel Rule is
                                                                                                       payment or transmittal order if the order              requiring information collection and
                                              codified at 31 CFR 1010.410(f).11
                                                                                                       is made in person and the person                       retention for these transactions. The
                                              Consistent with its rulemaking authority                                                                        following two sections lay out,
                                                                                                       placing the order is not an established
                                              in the BSA, as amended by Annunzio-                                                                             respectively, (A) the potential benefits
                                                                                                       customer.12 Similarly, should the
                                              Wylie, the Board is proposing the                                                                               to national security and law
                                                                                                       beneficiary’s bank or recipient’s
                                              amendments to § 1010.100(ll) and                                                                                enforcement from reducing the
                                                                                                       financial institution deliver the
                                              § 1020.410(a) only to the extent the                                                                            Recordkeeping Rule and Travel Rule
                                                                                                       proceeds to the beneficiary or recipient
                                              amendments apply to funds transfers by                                                                          thresholds for funds transfers and
                                                                                                       in person, the bank or nonbank financial
                                              insured depository institutions, and is                                                                         transmittals of funds that begin or end
                                                                                                       institution must verify the identity of
                                              proposing the amendments to                                                                                     outside the United States, and (B) the
                                                                                                       the beneficiary or recipient—and collect
                                              § 1010.100(eee) and § 1010.410(e) only                                                                          potential effect these new requirements
                                                                                                       and retain various items of information
                                              to the extent the amendments would                                                                              would have on the cost and efficiency
                                                                                                       identifying the beneficiary or
                                              apply to international transmittals of                                                                          of the payments system.
                                                                                                       recipient—if the beneficiary or recipient
                                              funds by financial institutions other
                                                                                                       is not an established customer. Finally,               A. Benefit to National Security and Law
                                              than insured depository institutions.
                                                                                                       an intermediary bank or financial                      Enforcement
                                              Because the Board’s Regulation S
                                                                                                       institution—and the beneficiary’s bank
                                              generally cross-references those portions                                                                          Information available to the Agencies
                                                                                                       or recipient’s financial institution—
                                              of the Recordkeeping Rule promulgated                                                                           indicates that malign actors are using
                                                                                                       must retain originals or copies of
                                              jointly by the Board and FinCEN, it is                                                                          smaller-value cross-border wire
                                                                                                       payment or transmittal orders.
                                                                                                          Under the Travel Rule, the                          transfers to facilitate or commit terrorist
                                                8 60 FR 234 (Jan. 3, 1995).
                                                                                                       originator’s bank or transmittor’s                     financing, narcotics trafficking, and
                                                9 Id.; see also 31 U.S.C. 5218(a)(2) and (h).
                                                                                                       financial institution is required to                   other illicit activity, and that increased
                                                10 As explained in n. 6, supra, the Board
                                                                                                       include information, including all                     recordkeeping and reporting concerning

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                                              separately promulgated subpart B to Regulation S,
                                              which cross-references the requirements of 31 CFR        information required under the                         these transactions would be valuable to
                                              1020.410(a) and 1010.410(e).                             Recordkeeping Rule, in a payment or
                                                11 Recordkeeping requirements for banks are set                                                                 13 The ‘‘United States’’ includes the States of the
                                                                                                       transmittal order sent by the bank or
                                              forth in 31 CFR 1020.410(a). Recordkeeping                                                                      United States, the District of Columbia, the Indian
                                              requirements for nonbank financial institutions are      nonbank financial institution to another               lands (as that term is defined in the Indian Gaming
                                              set forth in 31 CFR 1010.410(e). The Travel Rule—                                                               Regulatory Act), and the Territories and Insular
                                              codified at 31 CFR 1010.410(f)—applies by its terms        12 The term ‘‘established customer’’ is defined at   Possessions of the United States. 31 CFR
                                              to both bank and nonbank financial institutions.         31 CFR 1010.100(p).                                    1010.100(hhh).

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                                              68008                  Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              law enforcement and national security                      FinCEN also reviewed a separate                     support for terrorist activity to a
                                              authorities. In proposing to lower the                  subset of 363 SARs filed by a money                    designated Foreign Terrorist
                                              current threshold under the                             transmitter for the period between 2012                Organization (‘‘FTO’’). In one such case,
                                              Recordkeeping and Travel Rules, the                     and 2018 that FinCEN determined to be                  during 2013, the defendant allegedly
                                              Agencies have specifically considered                   potentially related to fentanyl                        sent $1,500 to a co-defendant’s financial
                                              Suspicious Activity Reports (‘‘SARs’’)                  trafficking.17 These SARs referenced                   account within the United States; the
                                              filed by money transmitters, which                      approximately 78,000 transmittals of                   co-defendant was collecting money from
                                              indicate that a substantial volume of                   funds, over 82% of which began or                      his co-conspirators in support of an FTO
                                              potentially illicit funds transfers and                 ended outside the United States. The                   fighter in Syria, ultimately transmitting
                                              transmittals of funds occur below the                   mean and median dollar-value of                        those funds through money remitting
                                              $3,000 threshold; evidence used in                      transmittals of funds mentioned in these               businesses and intermediaries
                                              recent criminal prosecutions; and the                   SARs were approximately $588 and                       overseas.19 In another case, a man was
                                              views of law enforcement partners and                   $283, respectively. Approximately 67                   prosecuted for meeting with an FTO
                                              the Financial Action Task Force                         percent of those 78,000 transmittals                   recruiter in 2015, wiring funds in the
                                              (‘‘FATF’’) 14 on the utility of mandating               (more than 52,000) were at or below                    amount of $250 to an FTO, and
                                              information collection for smaller-value                $500, totaling more than $10 million.                  attempting to leave the United States
                                              wire transfers.                                         Approximately 52 percent of those                      with the intent of joining the FTO in
                                                 First, FinCEN analyzed data derived                  transmittals (more than 40,000) were at                Libya.20 Another example of small
                                              from approximately 2,000 SARs filed by                  or below $300, totaling more than $5.7                 dollar funds transfers made in support
                                              money transmitters between 2016 and                     million.                                               of terrorism involved an individual in
                                              2019 related to potential terrorist                        In the 1995 rulemaking implementing                 the United States who received several
                                              financing-related transmittals of                       the Travel Rule, the Treasury noted that               cash transfers in 2015 from FTO
                                              funds.15 These SARs referenced                          it would monitor the effectiveness of                  affiliates, totaling about $8,700 and sent
                                              approximately 1.29 million underlying                   financial institutions’ suspicious                     primarily in sums of less than $3,000.21
                                              transmittals of funds, approximately 99                 transaction reporting protocols to                     One such transfer in 2016 was from a
                                              percent of which began or ended                         determine whether potentially illicit                  person located in Egypt, in the amount
                                              outside the United States (only                         transactions below the $3,000 threshold                of $1,000, and sent through a U.S.
                                              approximately 17,000 of the                             were being reported (and thus whether                  money transmitter.22 The subject later
                                              approximately 1.29 million transactions                 it might be unnecessary, from a law                    admitted to law enforcement that the
                                              included within its terrorist-financing                 enforcement perspective, to lower the                  money was to be used to finance a
                                              analysis dataset involved domestic-only                 threshold).18 FinCEN has been able to                  terrorist attack in the United States, and
                                              transactions). The mean and median                      analyze some records of transmittals of                the subject was subsequently convicted
                                              dollar-value of transmittals of funds                   funds below $3,000, as noted above,                    of providing material support to an
                                              mentioned in those SARs were                            because money transmitters have                        FTO.23
                                                                                                      retained records for those transmittals of                Third, the Money Laundering and
                                              approximately $509 and $255,
                                                                                                      funds after recognizing the underlying                 Asset Recovery Section (‘‘MLARS’’) of
                                              respectively. Approximately 71 percent
                                                                                                      activity as suspicious. However, the                   the Criminal Division of the Department
                                              of those 1.29 million transmittals (more
                                                                                                      Agencies believe that lowering the                     of Justice (‘‘DOJ’’) has advised the
                                              than 916,000) were at or below $500,
                                                                                                      threshold to capture smaller-value                     Agencies that it supports lowering the
                                              totaling more than $179 million.                                                                               dollar threshold for the Recordkeeping
                                              Approximately 57 percent of those                       cross-border funds transfers and
                                                                                                      transmittals of funds would be valuable                and Travel Rules. In 2006, MLARS
                                              transmittals (more than 728,000) were at                                                                       (previously known as the Asset
                                              or below $300, totaling more than $103                  for law enforcement and national
                                                                                                      security authorities, despite financial                Forfeiture and Money Laundering
                                              million. As noted in the 2015 National                                                                         Section) submitted a public comment to
                                              Terrorism Finance Risk Assessment,                      institutions’ suspicious activity
                                                                                                      reporting programs, because some                       the Agencies in response to an Advance
                                              terrorist financiers and facilitators are                                                                      Notice of Proposed Rulemaking (‘‘2006
                                              creative and will seek to exploit                       financial institutions may not recognize
                                                                                                      or retain records for all suspicious                   ANPRM’’) in which the Agencies sought
                                              vulnerabilities in the financial system to                                                                     comments on lowering the thresholds of
                                              further their unlawful aims, including,                 activity below the $3,000 threshold or
                                                                                                      the suspicious pattern may not become                  the Recordkeeping and Travel Rules.24
                                              as the above analysis indicates, through                                                                       MLARS’s public comment included a
                                              the use of low-dollar transactions.16                   clear until the records are aggregated.
                                                                                                      This could inhibit law enforcement                        19 See United States v. Harcevic, 2015 WL
                                                14 The FATF is an international, inter-               from promptly investigating and                        1821509, at *1 (E.D. Mo. Apr. 21, 2015); United
                                              governmental task force whose purpose is the            mapping illicit networks.                              States v. Hodzic, 2016 WL 11578530, at *1 (E.D.
                                              development and promotion of international                 Second, recent prosecutions show                    Mo. Aug. 22, 2016), report and recommendation
                                              standards and the effective implementation of legal,    that individuals are sending and                       adopted, 355 F. Supp. 3d 825 (E.D. Mo. 2019); see
                                              regulatory, and operational measures to combat                                                                 also Press Release, Department of Justice, ‘‘Missouri
                                              money laundering, terrorist financing, the financing    receiving funds to finance terrorist                   Man Pleads Guilty to Providing Material Support to
                                              of proliferation, and other related threats to the      activity in amounts below (and in some                 Terrorists,’’ 2019 WL 1472565 (Apr. 3, 2019).
                                              integrity of the international financial system.        cases, well below) the current $3,000                     20 See Press Release, Department of Justice,
                                                15 FinCEN determined that these SARs were
                                                                                                      recordkeeping threshold. Those cases                   ‘‘Columbus Man Sentenced to 80 Months in Prison
                                              potentially related to terrorist financing based on                                                            for Attempting to Provide Material Support to ISIS’’
                                              the application of certain search terms and analytic
                                                                                                      involved persons providing material                    (July 6, 2019), https://www.justice.gov/usao-sdoh/
                                              methods developed by FinCEN. FinCEN shared its                                                                 pr/columbus-man-sentenced-80-months-prison-
                                                                                                                                                             attempting-provide-material-support-isis; see also

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                                              analysis with law enforcement. FinCEN is aware,         Terrorist%20Financing%20Risk%20
                                              based on feedback from domestic and foreign law         Assessment%20-%2006-12-2015.pdf.                       United States v Daniels, 2:2016–cr–222 (ECF No. 7
                                              enforcement partners, that those partners have used       17 FinCEN determined that these SARs were            at 2) (filed Nov. 10, 2016).
                                                                                                                                                                21 See United States v. Elshinawy, No. CR ELH–
                                              information contained in terrorism-related SARs in      potentially related to fentanyl trafficking based on
                                              their investigations.                                   the application of certain search terms and analytic   16–009, 2018 WL 1521876, at *17–18 (D. Md. Mar.
                                                16 See Dep’t of the Treasury, 2015 National           methods developed by FinCEN, including through         28, 2018), aff’d, 781 F. App’x 168 (4th Cir. 2019).
                                                                                                                                                                22 Id. at *17.
                                              Terrorism Finance Risk Assessment, at 2 (June           FinCEN’s work with law enforcement. FinCEN
                                              2015), https://www.treasury.gov/resource-center/        shared its analysis with law enforcement.                 23 Id. at *8.

                                              terrorist-illicit-finance/Documents/National%20           18 60 FR 234, 236 (Jan. 3, 1995).                       24 71 FR 119 (June 21, 2006).

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                                                                    Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules                                                  68009

                                              synthesis of comments from agents and                   throughout the payment chain of the                   transactions to FinCEN. FinCEN is also
                                              prosecutors at several federal law                      originator’s name, account number, and                aware that some financial institutions
                                              enforcement agencies who use this                       address, and the name of the beneficiary              already collect information on the
                                              information, including the Federal                      and their account number.27 The FATF                  originator and beneficiary for
                                              Bureau of Investigation (‘‘FBI’’), the                  further states that countries may adopt               transmittals below the $3,000 threshold
                                              United States Drug Enforcement                          a de minimis threshold of no higher                   for reasons separate from reporting
                                              Administration (‘‘DEA’’), the Internal                  than USD/EUR 1,000 for cross-border                   suspicious transactions to FinCEN, for
                                              Revenue Service (‘‘IRS’’), the United                   wire transfers, below which the name                  instance because it is cost-effective to
                                              States Secret Service (‘‘USSS’’), and U.S.              and account numbers of the originator                 maintain a single set of processes for all
                                              Immigration and Customs Enforcement.                    and beneficiary should be collected and               transactions..
                                              While not the official comment of each                  transmitted but need not be verified for                 The Agencies note that in completing
                                              such agency, the agents and prosecutors                 accuracy unless there is a suspicion of               the 1995 rulemakings implementing the
                                              specializing in money laundering cases                  money laundering or terrorist                         Recordkeeping and Travel Rules, and in
                                              and who routinely use wire transfer                     financing.28 The FATF recommends                      obtaining comments from the industry
                                              information supported lowering or                       that countries minimize this and other                in connection with the 2006 ANPRM,
                                              eliminating altogether the reporting                    thresholds to the extent practicable,                 some financial institutions advised that
                                              threshold to disrupt illegal activity and               after taking into account the risk of                 they were already collecting information
                                              increase its cost to the perpetrators. At               ‘‘driving transactions underground’’ and              for smaller-value transmittals and that
                                              the same time, MLARS identified two                     the ‘‘importance of financial                         mandating recordkeeping requirements
                                              potential concerns—first, that some                     inclusion.’’ 29 The 1,000 USD/EUR de                  for such transactions would not have a
                                              criminals would structure transactions                  minimis cross-border threshold                        material impact on the payment system.
                                              to evade the lower threshold, and                       specified in the FATF                                 At the same time, other financial
                                              second, if such structuring occurred,                   Recommendations has been adopted by                   institutions expressed concern that
                                              those smaller dollar transactions would                 the European Union and by the vast                    imposing information collection
                                              be difficult to distinguish from                        majority of jurisdictions around the                  requirements (especially for smaller-
                                              legitimate wire transfers. Ultimately, in               world.                                                value transmittals) could increase
                                              spite of these concerns, MLARS                             Accordingly, the Agencies believe                  regulatory compliance costs by
                                              supported a lower, uniform                              that mandating the collection, retention,             mandating the use of new technologies
                                              recordkeeping threshold.                                and transmission of information for                   and processes to collect the information,
                                                 More recently, MLARS has advised                     funds transfers and transmittals of funds             and that these costs could be passed on
                                              the Agencies that it continues to support               of at least $250 that originate or                    to consumers.
                                              lowering the threshold, particularly if                 terminate outside the United States                      In deciding on a threshold of $3,000
                                              doing so would bring the Recordkeeping                  would likely lead to the preservation of              in 1995, the Agencies balanced the
                                              Rule and Travel Rule in line with                       information that would benefit law                    value of data on funds transfers and
                                              international standards (which are                      enforcement and national security                     transmittals of funds with the burden
                                              further described immediately below).                   investigations. Given the usefulness of               that the Recordkeeping Rule and Travel
                                              MLARS indicated that its views apply                    this information and the potential that               Rule imposed on both bank and
                                              equally to funds transfers by banks and                 financial institutions may not correctly              nonbank financial institutions. The
                                              transmittals of funds by nonbank                        identify a transaction as suspicious, as              Agencies are proposing to lower the
                                              financial institutions. The DEA, the IRS,               noted previously, the Agencies believe                threshold because the current threshold
                                              and the USSS have similarly expressed                   that it is appropriate to propose                     may no longer represent the appropriate
                                              support for lowering the reporting                      lowering the threshold of the                         balance for transmittals originating or
                                              threshold for purposes of the                           Recordkeeping Rule, and FinCEN                        terminating outside the United States.
                                              Recordkeeping Rule and Travel Rule.                     concludes that it is appropriate to                   As noted in the 2006 ANPRM,
                                                 Finally, the FATF has indicated that                 propose lowering the threshold of the                 subsequent to 1995, the responsibilities
                                              records of smaller-value transactions are               Travel Rule, even though financial                    of financial institutions under the BSA
                                              valuable to law enforcement,                            institutions are subject to SAR reporting             have expanded. For example, an MSB
                                              particularly with respect to terrorist                  requirements through which they may                   must now report suspicious
                                              financing investigations.25 The FATF                    report certain of these smaller-value                 transactions 30 and implement anti-
                                              recommends that ‘‘basic information’’                   transactions that fall below the current              money laundering programs for
                                              concerning the originator and                           threshold.                                            ensuring compliance with the BSA.31
                                              beneficiary of wire transfers be                        B. Effect on Financial Institutions and               MSBs may collect and retain
                                              immediately available to appropriate                    the Payments System                                   information on transmittals of funds as
                                              government authorities, including law                                                                         a means of ensuring compliance with
                                              enforcement and financial intelligence                     The Agencies believe that the effect of            the requirement to report suspicious
                                              units, as well as to financial institutions             lowering the $3,000 threshold on                      transactions. The requirement for MSBs
                                              participating in the transaction.26 For                 financial institutions and on the cost                to report suspicious transactions likely
                                              cross-border wire transfers, the FATF                   and efficiency of the payments system is              means that reducing or eliminating the
                                              recommends that countries provide for                   likely to be low. As demonstrated by the              threshold for transmittals would impose
                                              the collection and transmission                         SARs described in the preceding                       less of an incremental cost. Further, the
                                                                                                      section, some financial institutions are
                                                                                                      already collecting information on at

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                                                25 See Recommendation 16 and Interpretive Note                                                                30 See 31 CFR 1022.320(a)–(f). The requirement

                                              to FATF Recommendation 16, International                least a portion of transactions taking                applies to transactions occurring after December 31,
                                              Standards on Combating Money Laundering and the         place under the current threshold for                 2001. The threshold for the requirement to report
                                              Financing of Terrorism & Proliferation—The FATF                                                               suspicious transactions is $2,000.
                                              Recommendations, at 15–16, 73–77 (June 2019),
                                                                                                      purposes of reporting suspicious                        31 See 31 CFR 1022.210(a)–(e). An MSB must
                                              available at www.fatf-gafi.org/                                                                               implement the program on or before the later of July
                                                                                                        27 See id.
                                              recommendations.html).                                                                                        24, 2002 and the end of the 90-day period beginning
                                                26 See id. at 73 (Interpretive Note to FATF             28 See id.
                                                                                                                                                            on the day following the date the business is
                                              Recommendation 16).                                       29 See id.                                          established.

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                                              68010                 Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              Agencies note that technology has                          Accordingly, funds transfers and                       Public use of CVCs has grown
                                              advanced significantly since the                        transmittals of funds involve an                       significantly in recent years. Estimated
                                              issuance of the 2006 ANPRM. Among                       instruction to pay a ‘‘fixed or                        transactions in Bitcoin alone were
                                              other things, data storage costs have                   determinable amount of money.’’ The                    approximately $366 billion dollars in
                                              gone down, and accordingly it is likely                 Recordkeeping Rule does not explicitly                 2019 and $312 billion through in 2020
                                              that financial institutions generally use               define the word ‘‘money.’’ However, in                 through August.39 Furthermore, the
                                              less expensive or more efficient means                  the preamble to the Federal Register                   market capitalization of Bitcoin alone
                                              of electronic storage and retrieval. The                document adopting the Recordkeeping                    was approximately $216 billion as of
                                              Agencies believe there has been an                      Rule, the Agencies explained that                      August 2020.40
                                              increase in the ability of small                        ‘‘terms . . . that are not defined                        The Treasury, including FinCEN, has
                                              institutions to rely on third-party                     specifically in the regulation, but are                closely monitored illicit finance risks
                                              vendors to reduce their costs of                        defined in relevant provisions of the                  posed by CVCs. The Agencies note that
                                              handling compliance with a revised                      UCC, will have the meaning given them                  malign actors have used CVCs to
                                              threshold.                                              in the UCC, unless otherwise                           facilitate international terrorist
                                                                                                      indicated.’’ 36 Under the UCC, the term                financing, weapons proliferation,
                                              III. Application of the Recordkeeping                                                                          sanctions evasion, and transnational
                                              and Travel Rules to CVC and Digital                     ‘‘money’’ is defined as ‘‘a medium of
                                                                                                      exchange currently authorized or                       money laundering, as well as to buy and
                                              Assets That Have Legal Tender Status                                                                           sell controlled substances, stolen and
                                                                                                      adopted by a domestic or foreign
                                              A. The Meaning of ‘‘Money’’ as                          government.’’ 37                                       fraudulent identification documents and
                                              Applicable to the Recordkeeping and                                                                            access devices, counterfeit goods,
                                              Travel Rules                                               In guidance issued in November 2010,                malware and other computer hacking
                                                                                                      FinCEN similarly explained that the                    tools, firearms, and toxic chemicals.41
                                                 The Recordkeeping Rule applies to                    Travel Rule ‘‘uses terms that are
                                              funds transfers (i.e., transactions                                                                            For example, North Korean cyber actors,
                                                                                                      intended to parallel those used in UCC                 such as the Lazarus Group, have
                                              involving banks) and transmittals of                    Article 4A, but that are applicable to all
                                              funds (i.e., transactions involving                                                                            continuously engaged in efforts to steal
                                                                                                      financial institutions, as defined within              and extort CVC as a means of generating
                                              nonbank financial institutions). The                    the Bank Secrecy Act’s implementing
                                              term ‘‘funds transfer’’ is defined, as in                                                                      and laundering large amounts of
                                                                                                      regulations.’’ Similar to the                          revenue for the regime.42
                                              Article 4A of the Uniform Commercial                    Recordkeeping Rule, FinCEN’s                              To mitigate illicit finance risks posed
                                              Code (‘‘UCC’’), to include ‘‘[t]he series               implementing regulations explain that a                by CVC, the FATF has advised that
                                              of transactions, beginning with the                     transmittal order ‘‘includes a payment                 countries should consider so-called
                                              originator’s payment order, made for the                order and is an instruction of a sender                virtual assets as ‘‘property,’’ ‘‘proceeds,’’
                                              purpose of making payment to the                        to a receiving financial institution,
                                              beneficiary of the order.’’ 32 The                      transmitted orally, electronically, or in                 39 Estimates based on data from blockchain.com,
                                              Recordkeeping Rule in turn defines                      writing, to pay, or cause another                      https://www.blockchain.com/charts/estimated-
                                              ‘‘payment order’’ similarly to the UCC                  financial institution or foreign financial             transaction-volume-usd.
                                              Article 4A definition, stating that a                   agency to pay, a fixed or determinable
                                                                                                                                                                40 See Coingecko, Top 100 Coins by Market

                                              payment order is ‘‘[a]n instruction of a                                                                       Capitalization, https://www.coingecko.com/en.
                                                                                                      amount of money to a recipient[.]’’ 38                    41 See, e.g., United States. v. Cazes, No. 1:17CR–
                                              sender to a receiving bank . . . to pay,
                                                                                                                                                             00144, Indictment ¶ 2 (E.D. Ca. filed June 1, 2017)
                                              or to cause another bank or foreign bank                B. FinCEN’s Prior Guidance on CVC,                     (alleging that ‘‘AlphaBay [was] a dark-web
                                              to pay, a fixed or determinable amount                  and This Proposed Rule’s Further                       marketplace designed to enable users to buy and
                                              of money to a beneficiary.’’ 33 (Emphasis               Clarification of the Definition of                     sell illegal goods, including controlled substances,
                                              added.)                                                 ‘‘Money’’ as Applicable to the                         stolen and fraudulent identification documents and
                                                 The Recordkeeping Rule’s definition                                                                         access devices, counterfeit goods, malware and
                                                                                                      Recordkeeping and Travel Rules                         other computer hacking tools, firearms, and toxic
                                              of ‘‘transmittal of funds’’ parallels the                                                                      chemicals . . . AlphaBay required its users to
                                              UCC Article 4A definition of ‘‘funds                       Since the Agencies issued the                       transact in digital currencies, including Bitcoin,
                                              transfer,’’ with minor adjustments that                 Recordkeeping Rule, and FinCEN issued                  Monero, and Ethereum.’’); Dep’t of the Treasury
                                              allow the definition to apply to nonbank                the Travel Rule, a number of CVCs, such                Press Release—Remarks of Sigal Mandelker, Under
                                                                                                                                                             Secretary for Terrorism and Financial Intelligence
                                              financial institutions. Specifically, the               as Bitcoin and Ethereum, have been                     (May 13, 2019), https://home.treasury.gov/news/
                                              Recordkeeping Rule defines transmittal                  created. CVC is a medium of exchange                   press-releases/sm687; Press Release, Dep’t of
                                              of funds as ‘‘[a] series of transactions                (such as cryptocurrency) that either has               Justice, ‘‘Two Chinese Nationals Charged with
                                              beginning with the transmittor’s                        an equivalent value as currency, or acts               Laundering Over $100 Million in Cryptocurrency
                                                                                                                                                             from Exchange Hack’’ at 1 (Mar. 2, 2020) (‘‘North
                                              transmittal order, made for the purpose                 as a substitute for currency, but lacks                Korea continues to attack the growing worldwide
                                              of making payment to the recipient. .                   legal tender status. Generally, CVCs can               ecosystem of virtual currency as a means to bypass
                                              . .’’ 34 The Recordkeeping Rule’s                       be exchanged instantaneously anywhere                  the sanctions imposed on it by the United States
                                              definition of ‘‘transmittal order’’ in turn             in the world through peer-to-peer                      and the United Nations Security Council.’’), https://
                                                                                                                                                             www.justice.gov/opa/pr/two-chinese-nationals-
                                              parallels the UCC Article 4A definition                 payment systems (a distributed ledger)                 charged-laundering-over-100-million-
                                              of payment order, stating that ‘‘[t]he                  that allow any two parties to transact                 cryptocurrency-exchange-hack. For vulnerabilities
                                              term transmittal order includes a                       directly with each other without the                   of digital assets to securities fraud, see SEC—
                                              payment order and is an instruction of                  need for an intermediary financial                     Investor Alert: Ponzi Schemes Using Virtual
                                                                                                                                                             Currencies, SEC Pub. No. 153 (7/13), http://
                                              a sender to a receiving financial                       institution. However, in practice, many                www.sec.gov/investor/alerts/ia_
                                              institution . . . to pay, a fixed or                    persons hold and transmit CVC using a                  virtualcurrencies.pdf (accessed June 23, 2020);
                                                                                                      third-party financial institution such as

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                                              determinable amount of money to a                                                                              CFTC—Investor Alert: Watch Out for Fraudulent
                                              recipient . . . .’’ 35 (Emphasis added.)                a ‘‘hosted wallet’’ or an exchange.                    Digital Asset and ‘‘Crypto’’ Trading websites,
                                                                                                                                                             https://www.cftc.gov/LearnAndProtect/
                                                                                                                                                             AdvisoriesAndArticles/watch_out_for_digital_
                                                32 31 CFR 1010.100(w); see also U.C.C. 4A–104(a).       36 60 FR 220, 222 (Jan. 3, 1995).
                                                                                                                                                             fraud.html (accessed Aug. 28, 2020).
                                                33 31 CFR 1010.100(ll); see also U.C.C. 4A–             37 U.C.C. 1–201(b)(24) (2001); see also U.C.C. 4A–      42 Dep’t of the Treasury Press Release—Remarks
                                              103(a)(1).                                              105(d) (2012) (stating that Article 1 general          of Sigal Mandelker, Under Secretary for Terrorism
                                                34 31 CFR 1010.100(ddd).                              definitions are applicable throughout Article 4A).     and Financial Intelligence (May 13, 2019), https://
                                                35 31 CFR 1010.100(eee).                                38 31 CFR 1010.100(eee).                             home.treasury.gov/news/press-releases/sm687.

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                                                                     Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules                                                  68011

                                              ‘‘funds,’’ ‘‘funds or other assets,’’ or                  proposed rule would therefore                         requirements to retain address
                                              other ‘‘corresponding value’’ and,                        supersede the UCC’s definition of                     information, other than those resulting
                                              consequently, should apply relevant                       ‘‘money’’ for purposes of the                         from a change to the applicable
                                              FATF anti-money laundering/counter-                       Recordkeeping and Travel Rules. The                   thresholds.
                                              terrorist-financing measures to virtual                   Agencies believe this action is
                                                                                                                                                              B. Definition of ‘‘Money’’
                                              assets.43 Consistent with the FATF                        appropriate to provide clarity
                                              guidance, in May 2019, FinCEN issued                      concerning the application of the                        This proposed rule also would revise
                                              guidance advising that CVC-based                          Recordkeeping and Travel Rules.                       the definitions of payment order and
                                              transfers effectuated by a nonbank                          FinCEN is aware that the CVC                        transmittal order set forth in the BSA
                                              financial institution may fall within the                 industry is working on developing                     regulations so that the Recordkeeping
                                              Recordkeeping and Travel Rules, on the                    systems and processes to achieve full                 Rule and Travel Rule would explicitly
                                              grounds that such transfers involve the                   compliance with the Travel Rule as                    apply to domestic and cross-border
                                              making of a ‘‘transmittal order’’ by the                  applied to virtual currency transactions              transactions in CVC and digital assets
                                              sender—i.e., an instruction to pay ‘‘a                    as a result of the distinctive                        having legal tender status.
                                              determinable amount of money to a                         characteristics of CVCs. The Agencies                    Both the Recordkeeping Rule and
                                              recipient’’—a criterion for application of                welcome comment on these efforts and                  Travel Rule refer to a ‘‘payment order’’
                                              the rules.44 However, FinCEN                              any costs related thereto.                            (in the case of banks) and a ‘‘transmittal
                                              understands that at least one industry                                                                          order’’ (in the case of financial
                                                                                                        IV. Section-by-Section Analysis
                                              group has asserted that the                                                                                     institutions other than banks). These
                                              Recordkeeping and Travel Rules do not                     A. Recordkeeping Rule and Travel Rule                 terms, in turn, use the term ‘‘money.’’
                                              apply to transactions involving CVC, in                   Thresholds                                            This proposed rule would clarify the
                                              part because the group asserts that CVC                      This proposed rule would lower the                 meaning of money in 31 CFR
                                              is not ‘‘money’’ as defined by the rules.                 Recordkeeping Rule and Travel Rule                    1010.100(ll) (payment order) and
                                                 In addition to CVCs, foreign                           thresholds set forth in 31 CFR 1020.410               1010.100(eee) (transmittal order),
                                              governments—including Iran,                               and 31 CFR 1010.410(e) and (f) for                    explaining that money includes (1) a
                                              Venezuela, and Russia—have created or                     financial institutions. The thresholds                medium of exchange currently
                                              expressed interest in creating digital                    would be lowered from $3,000 to $250,                 authorized or adopted by a domestic or
                                              currencies that could be used to engage                   but only with respect to funds transfers              foreign government, including any
                                              in sanctions evasion. For example, the                    and transmittals of funds that begin or               digital asset that has legal tender status
                                              Venezuelan government developed a                         end outside the United States. As set                 in any jurisdiction 47 and (2) CVC. The
                                              state-backed digital currency called the                  forth in the proposed revised sections                proposed rule would define CVC as a
                                              ‘‘petro,’’ which the government publicly                  below, a funds transfer or transmittal of             medium of exchange (such as
                                              indicated was designed for the purpose                    funds would be considered to begin or                 cryptocurrency) that either has an
                                              of evading U.S sanctions.45 The                           end outside the United States if the                  equivalent value as currency, or acts as
                                              President subsequently issued Executive                   financial institution knows or has                    a substitute for currency, but lacks legal
                                              Order 13827, prohibiting any U.S.                         reason to know that the transmittor,                  tender status.48
                                              persons from involvement in the petro                     transmittor’s financial institution,
                                              digital currency.                                                                                               V. Request for Comment
                                                                                                        recipient, or recipient’s financial
                                                 This proposed rule would define                        institution is located in, is ordinarily                 The Agencies welcome comment on
                                              ‘‘money’’ in 31 CFR 1010.100(ll) and                      resident in, or is organized under the                all aspects of this proposed rule. The
                                              (eee) to make explicitly clear that both                  laws of a jurisdiction other than the                 Agencies encourage all interested
                                              payment orders and transmittal orders                     United States or a jurisdiction within                parties to provide their views.
                                              include any instruction by the sender to                  the United States.                                       With respect to the effect of lowering
                                              transmit CVC or any digital asset having                     For this purpose, a financial                      the threshold for the requirement in 31
                                              legal tender status to a recipient.46 The                 institution would have ‘‘reason to                    CFR 1020.410 and 31 CFR 1010.410(e)
                                                                                                        know’’ that a transaction begins or ends              and (f) to collect, retain, and transmit
                                                 43 Interpretive Note to FATF Recommendation 15
                                                                                                        outside the United States only to the                 information on funds transfers and
                                              at 70.                                                                                                          transmittals of funds that begin or end
                                                 44 FinCEN Guidance—Application of FinCEN’s             extent such information could be
                                              Regulations to Certain Business Models Involving          determined based on the information                   outside the United States, the Agencies
                                              Convertible Virtual Currencies at 11–12 (May 9,           the financial institution receives in the             in particular request comment on the
                                              2019); see also 31 CFR 1010.100(eee) (defining            transmittal order, collects from the                  following questions from financial
                                              transmittal order) and 31 CFR 1010.410(e) and (f).                                                              institutions and members of the public:
                                                 45 E.O. 13827, Taking Additional Steps to Address      transmittor to effectuate the transmittal
                                                                                                        of funds, or otherwise collects from the                 (1) To what extent would the
                                              the Situation in Venezuela, (March 19, 2018); see
                                              also FinCEN Advisory—Updated Advisory on                  transmittor or recipient to comply with               proposed rule impose a burden on
                                              Widespread Public Corruption in Venezuela at 11           regulations implementing the BSA.                     financial institutions, including with
                                              (May 3, 2019), https://www.fincen.gov/sites/default/
                                                                                                           Financial institutions are already                 respect to information technology
                                              files/advisory/2019-05-03/                                                                                      implementation costs? To what extent
                                              Venezuela%20Advisory%20FINAL%20508.pdf.                   required to retain the address of the
                                                 46 The regulatory definitions of ‘‘money’’ and         transmittor and recipient under the                   would the burden be different for
                                              ‘‘convertible virtual currency’’ that this rulemaking     Recordkeeping Rule for transactions                   thresholds such as $0, $500, or $1,000
                                              proposes to add to the definitions of ‘‘payment           subject to the current threshold, and                 for funds transfers and transmittals of
                                              order’’ and ‘‘transmittal order’’ at 31 CFR                                                                     funds that begin or end outside the
                                              1010.100(ll) and (eee) are specific to those              may, as a matter of their own business
                                                                                                        practices, retain the addresses of other              United States? What would be the

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                                              provisions and not intended to have any impact on,
                                              inter alia, the definition of ‘‘currency’’ in 31 CFR      participants in a funds transfer or
                                                                                                                                                                47 ‘‘Money’’ would also include a monetary unit
                                              1010.100(m). Furthermore, nothing in this                 transmittal of funds. This proposed rule
                                              document shall constitute a determination that any                                                              of account established by an intragovernmental
                                              asset that is within the regulatory definitions of        would not impose any new                              organization or by agreement between two or more
                                              ‘‘money’’ or ‘‘convertible virtual currency’’ that this                                                         countries.
                                              rulemaking proposes to add to the definitions of          laws, 15 U.S.C. 78c(47), or the federal derivatives     48 CVC is therefore a type of ‘‘value that

                                              ‘‘payment order’’ and ‘‘transmittal order’’ is            laws, 7 U.S.C. 1–26, and the regulations              substitutes for currency.’’ See 31 CFR
                                              currency for the purposes of the federal securities       promulgated thereunder.                               1010.100(ff)(5)(i)(A).

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                                              68012                 Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              impact on the burden if the proposed                    $3,000 that begin or end outside the                  $79.58 million annually (3,315,844
                                              threshold change were extended to all                   United States?                                        hours multiplied by $24 per hour).
                                              transactions, including domestic                           With respect to the effect of clarifying           However, the PRA burden does not
                                              transactions?                                           the meaning of ‘‘money’’ in the                       include certain costs, such as
                                                 (2) To what extent would the burden                  definitions of ‘‘payment order’’ and                  information technology implementation
                                              of the proposed rule on financial                       ‘‘transmittal order’’ in 31 CFR 1010.100,             costs solely resulting from the need to
                                              institutions and the public be mitigated                the Agencies in particular request                    comply with this proposed rule. FinCEN
                                              were the Agencies to select a threshold                 comment on the following questions                    specifically requests comment regarding
                                              of $250 but not require nonbank                         from law enforcement, financial                       the costs associated with implementing
                                              financial institutions to collect a social              institutions, and members of the public:              these requirements.
                                              security number or employer                                (1) Describe the additional costs, if                 The benefits from the proposed rule
                                              identification number (‘‘EIN’’) for non-                any, from complying with the                          include enhanced law enforcement
                                              established customers engaging in                       Recordkeeping Rule and Travel Rule in                 ability to investigate, prosecute and
                                              transmittals of funds between $250 and                  light of the clarification included in the            disrupt the financing of international
                                              $3,000 that begin or end outside the                    proposed rule, including with respect to              terrorism and other priority
                                              United States?                                          information technology costs.                         transnational security threats, as well as
                                                                                                         (2) What mechanisms have persons                   other types of transnational financial
                                                 (3) To what extent would the burden
                                                                                                      that engage in CVC transactions                       crime. The cost of terrorist attacks can
                                              of the proposed rule be reduced if the
                                                                                                      developed to comply with the                          be immense. For instance, one public
                                              Agencies issued specific guidance about
                                                                                                      Recordkeeping Rule and Travel Rule                    report estimated the cost of terrorism
                                              appropriate forms of identification to be
                                                                                                      and what is the impact of adopting these              globally at $33 billion in 2018, though
                                              used in conjunction with identity
                                                                                                      solutions on the CVC industry,                        this cost was primarily borne outside
                                              verification, including in regards to
                                                                                                      including on other BSA compliance                     the United States.50 The cost of a major
                                              whether there are circumstances in
                                                                                                      efforts?                                              terrorist attack, such as the September
                                              which verification may be done
                                              remotely and what documents are                         VI. Regulatory Analysis                               11 attacks, can reach tens of billions of
                                              acceptable as proof?                                                                                          dollars.51 Of course, it is difficult to
                                                                                                      A. Executive Orders 13563, 12866, and                 quantify the contribution of a particular
                                                 (4) To what extent would the burden                  13771
                                              of the proposed rule on financial                                                                             rule to a reduction in the risk of a
                                                                                                         Executive Orders 13563 and 12866                   terrorist attack. However, even if the
                                              institutions and the public be mitigated
                                                                                                      direct agencies to assess costs and                   proposed rule produced very small
                                              if the Agencies were to include in the
                                                                                                      benefits of available regulatory                      reductions in the probability of a major
                                              regulation the standard described in
                                                                                                      alternatives and, if regulation is                    terrorist attack, the benefits would
                                              Section IV.A for determining when an
                                                                                                      necessary, to select regulatory                       exceed the costs. For instance, if the
                                              institution would be subject to the $250
                                                                                                      approaches that maximize net benefits                 proposed rule reduced by 0.26 percent
                                              threshold for cross-border transfers, i.e.,
                                                                                                      (including potential economic,                        the annual probability of a major
                                              that ‘‘reason to know’’ that a transaction
                                                                                                      environmental, and public health and                  terrorist attack with an economic impact
                                              begins or ends outside the United States
                                                                                                      safety effects; distributive impacts; and             of $30 billion, the benefits would be
                                              exists when such information could be
                                                                                                      equity). Executive Order 13563                        greater than the PRA burden costs
                                              determined based on the information                                                                           described above.
                                              the financial institution receives in the               emphasizes the importance of
                                                                                                      quantifying both costs and benefits, of                  Of course, the proposed rule would
                                              transmittal order, collects from the                                                                          not simply reduce the probability of
                                              transmittor to effectuate the transmittal               reducing costs, of harmonizing rules,
                                                                                                      and of promoting flexibility. This                    terrorism but also would contribute to
                                              of funds, or otherwise collects from the                                                                      the ability of law enforcement to
                                              transmittor or recipient to comply with                 proposed rule has been designated a
                                                                                                      ‘‘significant regulatory action’’ under               investigate a wide array of other priority
                                              regulations implementing the BSA?                                                                             transnational threats and financial
                                                                                                      section 3(f) of Executive Order 12866.
                                                 The Agencies request comment from                                                                          crimes, including proliferation
                                                                                                      Accordingly, the proposed rule has been
                                              law enforcement with respect to the                                                                           financing, sanctions evasion, and money
                                                                                                      reviewed by the Office of Management
                                              following related questions:                                                                                  laundering.
                                                                                                      and Budget (‘‘OMB’’).
                                                 (1) To what extent would the                            FinCEN believes the primary cost of                   FinCEN considered several
                                              proposed rule benefit law enforcement?                  complying with the proposed rule is                   alternatives to the proposed rule. First,
                                              To what extent would these benefits be                  captured in its Paperwork Reduction                   FinCEN considered the possibility of
                                              different for thresholds such as $0,                    Act (44 U.S.C. 3507(d)) (‘‘PRA’’) burden              modifying the proposed rule by
                                              $500, or $1,000 for funds transfers and                 estimates described in detail below,                  applying the FATF’s suggested de
                                              transmittals of funds that begin or end                 which amount to 3,315,844 hours.                      minimis threshold of $1,000 to
                                              outside the United States? What would                   FinCEN estimated in its recent OMB                    transactions that begin or end outside
                                              be the impact on the benefits to law                    control number renewal for SAR                        the United States. However, this
                                              enforcement if the proposed threshold                   requirements that the average labor cost              threshold would exclude over 88
                                              change were extended to all                             of storing SARs and supporting                        percent of the transactions in FinCEN’s
                                              transactions, including domestic                        documentation, weighed against the
                                              transactions?                                           relevant labor required, was $24 per                    50 See Institute for Econoimcs and Peace, Global

                                                 (2) To what extent would the benefit                 hour.49 FinCEN assesses that this is a                Terrorsim Index, 2019 (Nov. 2019), http://
                                              of the proposed rule to law enforcement                                                                       visionofhumanity.org/app/uploads/2019/11/GTI-
                                                                                                      reasonable estimate for the labor cost of

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                                                                                                                                                            2019web.pdf.
                                              be compromised were the Agencies to                     the requirements imposed by this rule.                  51 For example, the New York Comptroller
                                              select a threshold of $250 but not                      Therefore a reasonable minimum                        estimated in 2002 that the direct physical and
                                              require that nonbank financial                          estimate for the burden of administering              human cost of the September 11 attacks on New
                                              institutions collect a social security                                                                        York was over $30.5 billion. See City of New York
                                                                                                      the proposed rule is approximately                    Comptroller, One Year Later: The Fiscal Impact of
                                              number or EIN for non-established                                                                             9/11 on New York City (Sept. 4, 2002), https://
                                              nonbank customers engaging in                             49 85 FR 31598, at 31604 and 31607 (May 26,         comptroller.nyc.gov/wp-content/uploads/
                                              transmittals of funds between $250 and                  2020).                                                documents/impact-9-11-year-later.pdf.

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                                                                    Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules                                                     68013

                                              dataset of transactions potentially                        FinCEN requests comment on the                     and transmitted by financial
                                              linked to terrorism. Given the intended                 benefits, and any estimates of costs,                 institutions.
                                              goal of the proposed rule to increase the               associated with the requirements of the                 The clarifications regarding the
                                              availability of information to address                  proposed rule and the proposed                        meaning of ‘‘money’’ in the definitions
                                              priority transnational threats, including               alternatives.                                         of ‘‘payment order’’ and ‘‘transmittal
                                              terrorism, FinCEN believes a lower                         Executive Order 13771 requires an                  order’’ in 31 CFR 1010.100 address
                                              threshold would be appropriate.                         agency to identify at least two existing              urgent concerns regarding illicit finance,
                                                 Second, FinCEN considered the                        regulations to be repealed whenever it                including the financing of international
                                              possibility of implementing the                         publicly proposes for notice and                      terrorism, sanctions evasion, and
                                              proposed rule with a threshold of $0 for                comment or otherwise promulgates a                    weapons proliferation through CVC. In
                                              transactions beginning or ending                        new regulation. As described above, the               the absence of clarification, some
                                              outside of the United States. FinCEN’s                  proposed amendments to the                            entities may not be aware of or may
                                              terrorism-related transaction analysis                  Recordkeeping Rule and Travel Rule                    choose not to comply with the
                                              suggests that transactions potentially                  involve a national security function.                 Recordkeeping Rule and the Travel Rule
                                              related to terrorism occur at values                    Therefore, Executive Order 13771 does                 when engaging in transactions involving
                                              below the $250 level. Although FinCEN                   not apply.                                            CVC. The Agencies are also clarifying
                                              believes that a $0 threshold would lead                                                                       that ‘‘money’’ includes digital assets
                                              to enhanced benefits in terms of                        B. Regulatory Flexibility Act                         with legal tender status.
                                              capturing a larger universe of                             The Regulatory Flexibility Act                     ii. Small Entities Affected by the
                                              transactions, requiring collection and                  (‘‘RFA’’) (5 U.S.C. 601 et seq.) requires             Proposed Regulation
                                              verification of transaction information                 an agency either to provide an initial
                                              for low-value transactions could impose                                                                          The proposed changes to the
                                                                                                      regulatory flexibility analysis with a                Recordkeeping Rule and Travel Rule
                                              a substantial burden on small financial
                                                                                                      proposed rule or certify that the                     would apply to all financial institutions
                                              institutions, such as small money
                                                                                                      proposed rule will not have a significant             regulated under the BSA.52 However, as
                                              services businesses. Nonetheless,
                                                                                                      impact on a substantial number of small               a practical matter, because the
                                              FinCEN will carefully consider
                                                                                                      entities. This proposed regulation on its             requirements of this proposed rule are
                                              comments to determine whether a $0
                                                                                                      face would apply to all financial                     only triggered by funds transfers and
                                              threshold would be appropriate in a
                                                                                                      institutions. However, because of the                 transmittals of funds, the proposal
                                              final rule. FinCEN will also consider in
                                                                                                      nature of the requirements contained                  would impact mostly banks and money
                                              a final rule the extent to which the
                                                                                                      therein, only banks (including credit                 transmitters. As described in the PRA
                                              burden could be minimized by
                                                                                                      unions), money transmitters, and other                section that follows, based upon current
                                              providing guidance on appropriate
                                              verification procedures for lower-value                 MSBs would be impacted. Although the                  data there are 5,306 banks, 5,236 credit
                                              transactions.                                           Agencies believe that the proposed                    unions, and 12,692 money transmitters
                                                 Third, FinCEN considered applying                    regulatory changes would affect a                     that would be impacted by the proposed
                                              the requirements of the proposed rule to                substantial number of small entities, the             rule changes. Based upon current data,
                                              all transactions, including those that                  Agencies also believe these changes                   for the purposes of the RFA, there are
                                              begin and end within the United States.                 would be unlikely to have a significant               at least 3,817 small Federally-regulated
                                              However, FinCEN’s analysis identified                   economic impact on such entities. The                 banks and 4,681 small credit unions.53
                                              that only approximately 17,000 of the                   Agencies, however, recognize the                      The Agencies believe that most money
                                              approximately 1.29 million transactions                 limitations in readily available data                 transmitters are small entities.54
                                              included within its terrorism analysis                  about potential costs and benefits and                Because the proposed rule would apply
                                              dataset involved domestic-only                          have prepared an initial regulatory                   to all of these small financial
                                              transactions. Applying the requirements                 flexibility analysis pursuant to the RFA.
                                              to all domestic transactions would                      The Agencies welcome comments on all                     52 31 CFR 1010.400 notes that ‘‘[e]ach financial

                                              therefore capture a relatively small                    aspects of the initial regulatory                     institution (as defined in 31 U.S.C. 5312(a)(2) or
                                                                                                      flexibility analysis. A final regulatory              (c)(1)) should refer to its chapter X part for any
                                              number of additional transactions while                                                                       additional recordkeeping requirements. Unless
                                              resulting in significant additional                     flexibility analysis will be conducted                otherwise indicated, the recordkeeping
                                              recordkeeping burden for financial                      after consideration of comments                       requirements contained in this subpart D apply to
                                              institutions. FinCEN believes that, at                  received during the comment period.                   all financial institutions.’’ See 31 CFR 1020.410
                                                                                                                                                            (banks), 31 CFR 1022.410 (dealers in foreign
                                              this time, it would therefore be                        i. Statement of the Need for, and                     exchange), 31 CFR 1022.400 (MSBs), 31 CFR
                                              appropriate to limit the proposed rule to               Objectives of, the Proposed Regulation                1023.410 (broker dealers in securities), 31 CFR
                                              transactions that begin or end outside                                                                        1024.410 (mutual funds), 31 CFR 1025.410
                                                                                                         The proposed changes to the                        (insurance), 31 CFR 1026.410 (futures commission
                                              the United States. Again, based on                                                                            merchants and introducing brokers in
                                              comments received, FinCEN will                          Recordkeeping Rule and Travel Rule                    commodities), 31 CFR 1027.410 (dealers in precious
                                              consider in a final rule the extent to                  would reduce from $3,000 to $250 the                  metals, precious stones, or jewels), 31 CFR 1028.410
                                              which the benefits of extending the                     threshold for the requirement to collect,             (operators of credit card systems), 31 CFR 1029.400
                                                                                                      retain, and transmit information on                   (loan or finance companies), and 31 CFR 1030.400
                                              scope of the changes to the thresholds                                                                        (housing government sponsored entities).
                                              of the Recordkeeping Rule and Travel                    funds transfers and transmittal of funds                 53 The Small Business Administration (‘‘SBA’’)
                                              Rule to include domestic transactions                   for transactions that begin or end                    defines a depository institution (including a credit
                                              would exceed the burdens.                               outside the United States. These                      union) as a small business if it has assets of $600
                                                 With respect to the clarification of the             changes are necessary because funds                   million or less. The information on small banks is

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                                                                                                                                                            published by the Federal Deposit Insurance
                                              definition of ‘‘money,’’ FinCEN                         transfers and transmittals of funds                   Corporation (‘‘FDIC’’) and was current as of March
                                              considered the alternative of leaving the               related to terrorist financing, narcotics             31, 2020.
                                              regulation as it was, but believed doing                trafficking, and other crimes are                        54 The SBA defines an entity engaged in

                                              so would perpetuate uncertainty about                   occurring well below the current $3,000               ‘‘Financial Transactions Processing, Reserve, and
                                                                                                                                                            Clearinghouse Activities’’ to be small if it has assets
                                              the applicability of the Recordkeeping                  threshold. It therefore would benefit law             of $41.5 million or less. FinCEN assesses that
                                              and Travel Rules to transactions                        enforcement for this additional                       money transmitters most closely align with this
                                              involving CVC.                                          information to be collected, retained,                SBA category of entities.

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                                              68014                 Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              institutions, the Agencies conclude that                interpretation that the Recordkeeping                 payment or transmittal order sent by the
                                              this proposed rule would apply to a                     and Travel Rules apply to transactions                bank or nonbank financial institution to
                                              substantial number of small entities.                   involving a digital asset with legal                  another bank or nonbank financial
                                                 Although the proposed changes                        tender status. The Agencies do not                    institution in the payment chain. An
                                              would apply to a substantial number of                  believe that any financial institutions               intermediary bank or financial
                                              small entities, the Agencies believe that               currently facilitate transactions                     institution would also be required to
                                              the changes would not have a                            involving sovereign digital currencies.               transmit information to other banks or
                                              significant economic impact on such                                                                           nonbank financial institutions in the
                                              entities for the reasons noted below. In                iii. Compliance Requirements
                                                                                                                                                            payment chain, to the extent the
                                              the first year, the Agencies expect                        Compliance costs for entities that                 information is received by the
                                              additional expense of time and                          would be affected by these regulations                intermediary bank or financial
                                              resources to read and understand the                    are generally, reporting, recordkeeping,              institution.
                                              regulations and train staff and                         and information technology
                                              implement technological changes.                        implementation and maintenance costs.                 iv. Duplicative, Overlapping, or
                                                 In 2006, the Agencies solicited public               Data are not readily available to                     Conflicting Federal Rules
                                              comment on the potential benefits and                   determine the costs specific to small                   The Agencies are unaware of any
                                              burdens of reducing the threshold for                   entities and the Agencies invite                      Federal rules that duplicate, overlap
                                              the Recordkeeping Rule and Travel Rule                  comments about compliance costs,                      with, or conflict with the proposed
                                              requirements.55 Based on the comments                   especially those affecting small entities.            changes to the Recordkeeping and
                                              received at that time, it appears that                     These proposed changes (a) reduce                  Travel Rules, except that some financial
                                              almost all banks, regardless of size,                   the threshold for the Recordkeeping and               institutions may already collect some of
                                              maintain records of all funds transfers                 Travel Rule requirements to collect,                  the information required by the
                                              and transmittals of funds regardless of                 retain, and transmit information on                   proposed modifications as part of their
                                              the dollar amount, including those                      funds transfers and transmittals of funds             existing implementation of their risk-
                                              transfers/transmittals below the $3,000                 for transactions that begin or end                    based AML programs under the BSA
                                              regulatory threshold. Similarly, in 2006,               outside the United States; and (b) clarify            and its implementing regulations.
                                              many money transmitters indicated that                  the application of the Recordkeeping
                                                                                                      and Travel Rule requirements to                       v. Significant Alternatives to the
                                              they maintained records of transfers/
                                                                                                      transactions involving CVC or digital                 Proposed Regulations
                                              transmittals at approximately the $1,000
                                              level. Since 2006 there have been                       assets with legal tender status. Banks                   The Agencies considered several
                                              significant advances in technology,                     and other financial institutions therefore            alternatives to the proposed regulatory
                                              likely allowing small entities to comply                would need to collect and retain the                  changes. First, the Agencies considered
                                              with regulatory recordkeeping                           following information on funds transfers              the possibility of modifying the
                                              requirements at a lower cost.                           and transmittals of funds in amounts at               proposed rule by applying the FATF’s
                                                 As noted previously, in May 2019,                    or above the applicable threshold,                    suggested de minimis threshold of
                                              FinCEN issued guidance advising that                    including with respect to transactions                $1,000 to transactions that begin or end
                                              CVC-based transfers effectuated by a                    involving CVC or digital assets with                  outside the United States. However, this
                                              nonbank financial institution may fall                  legal tender status: The name and                     threshold would exclude an
                                              within the Recordkeeping and Travel                     address of the originator or transmittor;             unacceptably large percentage of
                                              Rules, on the grounds that such                         the amount and date of the transaction;               transactions. It is unclear what impact
                                              transfers involve the making of a                       any payment instructions received; and                this alternative would have on small
                                              ‘‘transmittal order’’ by the sender—i.e.,               the identity of the beneficiary’s bank or             entities and it might not reduce the
                                              an instruction to pay ‘‘a determinable                  recipient’s financial institution. In                 impact on affected small entities in a
                                              amount of money to a recipient’’—a                      addition, for transactions at or above the            meaningful way.
                                              criterion for application of the rules.56               applicable threshold, including with                     Second, the Agencies considered the
                                              Therefore, the proposed rule would                      respect to transactions involving CVC or              possibility of implementing the
                                              codify FinCEN’s existing expectation. In                digital assets with legal tender status, an           proposed rule with a threshold of $0 for
                                              addition, FATF’s international                          originator’s bank or transmittor’s                    transactions that begin or end outside of
                                              standards now call for jurisdictions to                 financial institution would be required               the United States. Although this would
                                              apply their rules equivalent to the                     to verify the identity of the person                  expand the data available to law
                                              Recordkeeping and Travel Rule to                        placing a payment or transmittal order                enforcement, and the Agencies will
                                              virtual assets.57 Therefore, U.S.                       if the order is made in person and the                carefully consider comments to
                                              financial institutions engaged in CVC                   person placing the order is not an                    determine whether a $0 threshold
                                              transactions with an international nexus                established customer. An intermediary                 would be appropriate in a final rule, the
                                              would likely need to adopt such                         bank or intermediary financial                        Agencies believed that a $0 threshold
                                              compliance measures regardless of the                   institution, and the beneficiary’s bank or            might impose a significant burden on
                                              applicable U.S. rules, as other countries               recipient’s financial institution, also               small financial institutions and
                                              have aligned or are aligning their                      would be required to retain originals or              therefore are not proposing a $0
                                              regulatory regimes with the FATF                        copies of payment or transmittal orders.              threshold at this time.
                                              recommendations.                                           For funds transfers and transmittals of               Third, the Agencies considered
                                                 As described above, the proposed rule                funds at or above the applicable                      exempting small banks from the lower
                                              would also clarify the Agencies’ existing               threshold, including with respect to                  threshold requirement entirely.

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                                                                                                      transactions involving CVC or digital                 However, the Agencies believe that the
                                                55 71 FR 35564 (June 21, 2006).                       assets with legal tender status, the                  number of transactions beginning or
                                                 56 FinCEN Guidance—Application of FinCEN’s
                                                                                                      originator’s bank or transmittor’s                    ending outside the United States is
                                              Regulations to Certain Business Models Involving        financial institution also would be                   relatively low for most small banks,
                                              Convertible Virtual Currencies at 11–12 (May 9,
                                              2019); see also 31 CFR 1010.100(eee) (defining          required to include information,                      which should substantially reduce the
                                              transmittal order) and 31 CFR 1010.410(e) and (f).      including all information required                    burden on them from the proposed
                                                 57 Interpretive Note to FATF Recommendation 15.      under the Recordkeeping Rule, in a                    change in the threshold.

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                                                                    Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules                                                  68015

                                                 Finally, the Agencies considered the                    Currently, financial institutions must             Although the proposed rule on its face
                                              possibility of waiving the requirement                  collect, retain, and transmit certain                 would apply to all nonbank financial
                                              that financial institutions obtain a social             information as part of funds transfers or             institutions, because of the nature of the
                                              security number or EIN for funds                        transmittals of funds involving $3,000                requirements contained therein, mostly
                                              transfers or transmittals of funds below                or more (31 CFR 1020.410(a) and 31                    money transmitters and other MSBs that
                                              a certain threshold by non-established                  CFR 1010.410(e) and (f)). This proposed               conduct transmittals of funds that begin
                                              customers. Adopting this alternative                    rule would modify the thresholds in the               or end outside the United States would
                                              would primarily impact MSBs, many of                    rules implementing the BSA requiring                  be impacted.
                                              which are small and more likely to deal                 financial institutions to collect and                    Estimated Number of Recordkeepers:
                                              with non-established customers. The                     retain information on certain funds                   12,692 money transmitters. As of June
                                              Agencies have not adopted this                          transfers and transmittals of funds. The              2020, there were 12,692 MSBs registered
                                              alternative at this time because it would               modifications would reduce the                        with FinCEN that indicated they were
                                              increase the likelihood of criminals                    threshold from the current $3,000 to                  conducting money transmission.
                                              using false identities to transmit funds.               $250 for funds transfers and transmittals                Estimated Average Annual Burden
                                              Although the Agencies have not                          of funds that begin or end outside the                Hours per Recordkeeper: The estimated
                                              adopted this alternative at this time, this             United States. The proposed rule                      average burden hours would vary
                                              proposed rule requests comment on the                   likewise would modify the threshold in                depending on the number of
                                              benefits and drawbacks of waiving the                   the rule requiring financial institutions             transmittals of funds conducted by a
                                              requirement to obtain a social security                 to transmit to other financial                        nonbank financial institution between
                                              number or EIN below some threshold.                     institutions in the payment chain                     $250 and $3,000 that begin or end
                                                                                                      information on funds transfers and                    outside the United States. Under OMB
                                                 The Agencies welcome comment on
                                                                                                      transmittals of funds from $3,000 to                  control number 1506–0058, FinCEN
                                              the overall regulatory flexibility
                                                                                                      $250 for funds transfers and transmittals             estimates that the recordkeeping burden
                                              analysis, especially information about
                                                                                                      of funds that begin or end outside the                per recordkeeper to maintain records of
                                              compliance costs and alternatives.
                                                                                                      United States. The proposed rule would                all transmittals of funds of $3,000 or
                                              C. Unfunded Mandates Act                                also clarify the meaning of ‘‘money,’’                more is 16 hours a year. FinCEN
                                                                                                      making more clear the transactions in                 estimates that twice as many
                                                 Section 202 of the Unfunded                                                                                transmittals of funds conducted by
                                              Mandates Reform Act of 1995                             relation to which financial institutions
                                                                                                      must comply with the Recordkeeping                    nonbank financial institutions are
                                              (‘‘Unfunded Mandates Act’’), Public                                                                           between $250 and $3,000, and begin or
                                              Law 104–4 (March 22, 1995), requires                    Rule and the Travel Rule.
                                                                                                         Since FinCEN has authority to                      end outside the United States, in
                                              that an agency prepare a budgetary                                                                            comparison to all transmittals of funds
                                                                                                      implement the Recordkeeping Rule and
                                              impact statement before promulgating a                                                                        over $3,000. For that reason, FinCEN
                                                                                                      Travel Rule with respect to all
                                              rule that may result in expenditure by                                                                        estimates that the proposed rule would
                                                                                                      respondents, FinCEN will be
                                              the state, local, and tribal governments,                                                                     add an additional 32 hours of burden
                                                                                                      responsible for the entire paperwork
                                              in the aggregate, or by the private sector,                                                                   per recordkeeper a year.58
                                                                                                      burden associated with this information
                                              of $100 million or more in any one year.                                                                         Estimated Total Additional Annual
                                                                                                      collection.
                                              If a budgetary impact statement is                                                                            Burden Hours: 406,144 hours. (12,692
                                              required, section 202 of the Unfunded                   i. Threshold Changes to the                           money transmitters multiplied by 32
                                              Mandates Act also requires an agency to                 Recordkeeping and Travel Rules                        hours).
                                              identify and consider a reasonable                         This proposed rule would reduce
                                              number of regulatory alternatives before                                                                      2. 31 CFR 1010.410(f)
                                                                                                      from $3,000 to $250 the threshold for
                                              promulgating a rule. See section VI.A                   the requirement to collect, retain, and                  This proposed rule would reduce the
                                              for a discussion of the economic impact                 transmit information on funds transfers               threshold for the requirement to
                                              of this proposed rule.                                  and transmittals of funds that begin or               transmit information on funds transfers
                                              D. Paperwork Reduction Act                              end outside the United States. This                   and transmittals of funds conducted by
                                                                                                      threshold change is necessary because                 financial institutions acting as the
                                                The recordkeeping requirements                        funds transfers and transmittals of funds             transmitting financial institution or the
                                              contained in this proposed rule (31 CFR                 related to terrorist financing, drug                  intermediary financial institution in
                                              1010.410 and 31 CFR 1020.410) have                      trafficking, and other crimes often occur             funds transfers and transmittals of funds
                                              been submitted by FinCEN to OMB for                     well below the current threshold. It                  that begin or end outside the United
                                              review in accordance with the PRA.                      therefore would benefit law                           States.
                                              Written comments and                                    enforcement for this additional financial                Description of Recordkeepers:
                                              recommendations for the proposed                        information to be collected, retained,                Financial institutions, including banks
                                              information collection can be submitted                 and transmitted by financial                          and credit unions, that are the
                                              by visiting www.reginfo.gov/public/do/                  institutions.                                         transmitting or intermediary financial
                                              PRAMain. Find this particular                                                                                 institution in a transmittal of funds in
                                              document by selecting ‘‘Currently under                 1. 31 CFR 1010.410(e)                                 an amount between $250 and $3,000
                                              Review—Open for Public Comments’’ or                       This proposed rule would reduce the                that begin or end outside the United
                                              by using the search function. Comments                  threshold for the requirement to collect              States. Although the proposed rule on
                                              are welcome and must be received by                     and retain information on transmittals                its face would apply to all financial
                                              November 27, 2020. In accordance with                   of funds conducted by nonbank                         institutions, because of the nature of the

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                                              requirements of the PRA and its                         financial institutions that begin or end              requirements contained therein, only
                                              implementing regulations, 5 CFR part                    outside the United States.
                                              1320, the following information                            Description of Recordkeepers:                        58 FinCEN estimates that the costs of the

                                              concerning the collections of                           Financial institutions other than banks               Recordkeeping Rule scale linearly with the number
                                                                                                                                                            of transactions, though there may well be
                                              information are presented to assist those               that conduct transmittals of funds in an              economies of scale that reduce the burden. This
                                              persons wishing to comment on the                       amount between $250 and $3,000 that                   observation applies to the other burden estimates in
                                              information collections.                                begin or end outside the United States.               this section as well.

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                                              68016                  Federal Register / Vol. 85, No. 208 / Tuesday, October 27, 2020 / Proposed Rules

                                              banks, credit unions, money                                 Estimated Number of Recordkeepers:                 thus increasing such risks. Although the
                                              transmitters, and other MSBs that                        10,542 banks and credit unions. FinCEN                clarification is consistent with FinCEN’s
                                              conduct transmittals of funds that begin                 estimates that there are approximately                interpretation of existing rules, the
                                              or end outside the United States would                   5,306 federally regulated banks and                   estimates below analyze the costs of
                                              be impacted.                                             5,236 federally regulated credit unions.              compliance with this clarification
                                                 Estimated Number of Recordkeepers:                       Estimated Average Annual Burden                    against a baseline in which financial
                                              23,234 financial institutions. FinCEN                    Hours per Recordkeeper: The estimated                 institutions are not complying with
                                              estimates that there are approximately                   average burden hours will vary                        FinCEN’s interpretation of the
                                              5,306 federally regulated banks and                      depending on the number of funds                      Recordkeeping Rule and Travel Rule for
                                              5,236 federally regulated credit                         transfers conducted by banks and credit               such transactions.
                                              unions.59 As of June 2020, there were                    unions between $250 and $3,000 that
                                                                                                       begin or end outside the United States.               1. 31 CFR 1010.410(e)
                                              12,692 MSBs registered with FinCEN
                                              that indicated they were conducting                      Under OMB control number 1506–0059,                      This proposed rule would explicitly
                                              money transmission.                                      FinCEN estimates that the                             include within the requirement to
                                                 Estimated Average Annual Burden                       recordkeeping burden per recordkeeper                 collect and retain information on
                                              Hours per Recordkeeper: The estimated                    to maintain records of all funds transfers            transmittals of funds conducted by
                                              average burden hours will vary                           of $3,000 or more is 100 hours a year.                nonbank financial institutions
                                              depending on the number of                               FinCEN estimates that on average twice                transactions involving (1) CVC, or (2)
                                              transmittals of funds conducted by                       as many funds transfers conducted by                  any digital asset having legal tender
                                              banks, credit unions, and money                          banks and credit unions are between                   status.
                                              transmitters between $250 and $3,000                     $250 and $3,000 and begin or end                         Description of Recordkeepers:
                                                                                                       outside the United States, in                         Financial institutions other than banks
                                              that begin or end outside the United
                                                                                                       comparison to all transmittals of funds               that conduct transmittals of funds
                                              States. Under OMB control number
                                                                                                       over $3,000. For that reason, FinCEN                  involving CVCs or digital assets with
                                              1506–0058, FinCEN estimates that the
                                                                                                       estimates that the proposed rule would                legal tender status. Although the
                                              recordkeeping burden per recordkeeper
                                                                                                       add an additional 200 hours of burden                 proposed rule on its face applies to all
                                              to transmit information relating to all
                                                                                                       per recordkeeper a year.                              nonbank financial institutions, this
                                              transmittals of funds of $3,000 or more
                                                                                                          Estimated Total Additional Annual                  provision would only impact money
                                              is 12 hours a year. FinCEN estimates
                                                                                                       Burden Hours: 2,108,400 hours. (10,542                transmitters and other MSBs that
                                              that twice as many transmittals of funds
                                                                                                       banks and credit unions multiplied by                 conduct transmittals of funds involving
                                              conducted by banks, credit unions, and
                                                                                                       200 hours).                                           CVC or digital assets with legal tender
                                              money transmitters are between $250                                                                            status.
                                              and $3,000, and begin or end outside                     4. Total Burden Resulting From                           Estimated Number of Recordkeepers:
                                              the United States, in comparison to all                  Threshold Changes to the                              530 money transmitters and other MSBs
                                              transmittals of funds over $3,000. For                   Recordkeeping and Travel Rules                        engaged in CVC transactions, which
                                              that reason, FinCEN estimates that the                      Total Estimated Annual Burden                      FinCEN assesses is a reasonable
                                              proposed rule would add an additional                    Increase Because of Threshold                         estimate of the number of MSBs
                                              24 hours of burden per recordkeeper a                    Reduction in the Recordkeeping and                    engaging in transactions involving CVC.
                                              year.                                                    Travel Rules: 31 CFR 1010.410(e)                      As of June 2020, there were 12,692
                                                 Estimated Total Additional Annual                     [406,144 hours] + 31 CFR 1010.410(f)                  MSBs registered with FinCEN that
                                              Burden Hours: 557,616 hours. (23,234                     [557,616 hours] + 31 CFR 1020.410                     indicated they were conducting money
                                              financial institutions multiplied by 24                  [2,108,400 hours] = 3,072,160 hours.                  transmission. Of those 12,692 MSBs,
                                              hours).                                                                                                        FinCEN estimates that 530 engage in
                                                                                                       ii. Clarification of the Meaning of                   CVC transactions. The FinCEN MSB
                                              3. 31 CFR 1020.410                                       ‘‘Money’’ in the Recordkeeping Rule                   registration form does not require that
                                                 This proposed rule would reduce the                   and the Travel Rule                                   companies disclose whether they engage
                                              threshold for the requirement to collect                    This proposed rule also would clarify              in CVC transactions. This estimate is
                                              and retain information on funds                          the meaning of ‘‘money’’ as used in the               therefore based on adding the number of
                                              transfers conducted by a bank acting as                  Recordkeeping Rule and the Travel                     MSBs that indicated they engage in CVC
                                              the transmitting, intermediary, or                       Rule. Specifically, the proposed rule                 transactions in an optional field on the
                                              recipient bank when the funds transfer                   would explicitly clarify that these rules             MSB registration form, and the number
                                              begins or ends outside the United                        apply to transactions involving (1) CVC,              that did not so indicate but which,
                                              States.                                                  or (2) any digital asset having legal                 based on FinCEN’s research, FinCEN
                                                 Description of Recordkeepers: Banks                   tender status. The clarification related to           believes engage in CVC transactions.
                                              that are the originator’s bank, the                      such transactions is necessary because                FinCEN does not believe that any
                                              intermediary bank, or the beneficiary’s                  many of these transactions present                    nonbank financial institutions currently
                                              bank with respect to funds transfers in                  heightened terrorist financing, weapons               facilitate transactions involving
                                              an amount between $250 and $3,000                        proliferation, sanctions evasion, and                 sovereign digital currencies.
                                              that begin or end outside the United                     money laundering risks due to their                      Estimated Average Annual Burden
                                              States.                                                  global nature, distributed structure,                 Hours per Recordkeeper: The estimated
                                                                                                       limited transparency, and speed. While                average burden hours will vary
                                                59 According to the FDIC there were 5,103 FDIC-
                                                                                                       these transactions pose some of the                   depending on the number of

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                                              insured banks as of March 31, 2020. According to
                                              the Board, there were 203 other entities supervised
                                                                                                       same risks as those made in traditional               transmittals of funds conducted by a
                                              by the Board or other Federal regulators, as of June     financial systems, in addition, a                     nonbank financial institution engaged in
                                              16, 2020, that fall within the definition of bank. (20   combination of features unique to CVC                 CVC transactions. Under OMB control
                                              Edge Act