Interpretive Guidance on Sharing Suspicious Activity Reports by Depository Institutions with Certain U.S. Affiliates

1This single docket number is shared by three related documents (a notice of proposed rulemaking, and this and another piece of proposed guidance related to that notice of proposed rulemaking) published simultaneously by FinCEN in today’s Federal Register. Accordingly, commenters may submit comments related to any of the proposals, or any combination of proposals, in a single comment letter. 2See 31 CFR 103.15 to 103.21. 3See 12 CFR 208.62 (FRB); 12 CFR 353.3 (FDIC); 12 CFR 748.1 (NCUA); 12 CFR 21.11 (OCC); and 12 CFR 563.180 (OTS). 4 31 U.S.C. 5318(g)(2)(A)(i). 5 ‘‘Interagency Guidance on Sharing Suspicious Activity Reports with Head Offices and Controlling Companies’’ (January 20, 2006). (A) A SAR, or any information that would reveal the existence of a SAR, to FinCEN or any Federal, state, or local law enforcement agency, or any Federal or state regulatory authority that examines the casino for compliance with the BSA; or (B) The underlying facts, transactions, and documents upon which a SAR is based, including disclosures to another financial institution, or any director, officer, employee, or agent of a financial institution, for the preparation of a joint SAR. (2) Prohibition on disclosures by government authorities. A Federal, State, local, territorial, or tribal government authority, or any director, officer, employee, or agent of any of the foregoing, shall not disclose a SAR, or any information that would reveal the existence of a SAR, except as necessary to fulfill official duties consistent with Title II of the Bank Secrecy Act (BSA). For purposes of this section, official duties shall not include the disclosure of a SAR, or any information that would reveal the existence of a SAR, in response to a request for disclosure of non-public information or in response to a request for use in a private legal proceeding, including a request under 31 CFR 1.11. (f) Limitation on liability. A casino, and any director, officer, employee, or agent of any casino, that makes a voluntary disclosure of any possible violation of law or regulation to a government agency or makes a disclosure pursuant to this section or any other authority, including a disclosure made jointly with another institution, shall be protected from liability for any such disclosure, or for failure to provide notice of such disclosure to any person identified in the disclosure, or both, to the full extent provided by 31 U.S.C. 5318(g)(3). (g) Compliance. Casinos shall be examined by FinCEN or its delegatees for compliance with this section. Failure to satisfy the requirements of this
section may be a violation of the Bank
Secrecy Act and of this part.

Dated: February 27, 2009.
James H. Freis, Jr.,
Director, Financial Crimes Enforcement Network. [FR Doc. E9–4697 Filed 3–6–09; 8:45 am] BILLING CODE 4810–02–P DEPARTMENT OF THE TREASURY 31 CFR Part 103 [Docket Number: TREAS–FinCen–2008– 0022] Interpretive Guidance—Sharing Suspicious Activity Reports by Depository Institutions With Certain U.S. Affiliates AGENCY: Financial Crimes Enforcement Network, Department of the Treasury. ACTION: Proposed guidance. SUMMARY: The Financial Crimes Enforcement Network (‘‘FinCEN’’) of the Department of the Treasury, after consulting with the staffs of the Board of Governors of the Federal Reserve System (‘‘FRB’’), the Federal Deposit Insurance Corporation (‘‘FDIC’’), the National Credit Union Administration (‘‘NCUA’’), the Office of the Comptroller of the Currency (‘‘OCC’’), and the Office of Thrift Supervision (‘‘OTS’’) (hereinafter, the ‘‘Federal Banking Agencies’’), is issuing for comment this proposed interpretive guidance. Published elsewhere in this part of the Federal Register are proposed rules clarifying the scope of the statutory prohibition on the disclosure by a financial institution of a report of a suspicious transaction set forth in the Bank Secrecy Act (‘‘BSA’’). The proposed rules include a provision which states that the prohibition does not apply when a bank shares a suspicious activity report (‘‘SAR’’), or any information that would reveal the existence of a SAR, within its corporate organizational structure for purposes consistent with Title II of the BSA, as determined by regulation or guidance. The proposed guidance interprets this provision to permit a bank to share a SAR with its affiliates that also are subject to SAR rules. DATES: Written comments on the proposed guidance may be submitted on or before June 8, 2009. ADDRESSES: You may submit comments, identified by docket number TREAS– FinCen–2008–0022,1 by any of the following methods:

• Federal e-rulemaking portal: http://
  www.regulations.gov. Follow the instructions for submitting comments.
• E-mail:
  regcomments@fincen.treas.gov. Include docket number TREAS–FinCen–2008– 0022 in the subject line of the message.
• Mail: FinCEN, P.O. Box 39, Vienna,
  VA 22183. Include docket number TREAS–FinCen–2008–0022 in the body of the text. FOR FURTHER INFORMATION CONTACT:
  Regulatory Policy and Programs Division, FinCEN, (800) 949–2732. SUPPLEMENTARY INFORMATION:
  I. Background
  FinCEN, through its authority under the BSA as delegated by the Secretary of the Treasury, may require financial institutions to keep records and file reports that FinCEN determines have a high degree of usefulness in criminal, tax or regulatory investigations or proceedings, or for intelligence or counterintelligence activities to protect against international terrorism. Within this framework, FinCEN may require financial institutions to file SARs and has issued rules implementing that specific authority with respect to certain types of financial institutions.2 The Federal Banking Agencies have issued comparable rules for financial institutions subject to their jurisdiction.3 The SAR rules issued by FinCEN and those issued by the Federal Banking Agencies currently include a
  section implementing the statutory
  prohibition on the disclosure by a financial institution of a SAR that is set forth in the BSA.4 Sharing Within the Corporate Organizational Structure In January 2006, FinCEN and all the Federal Banking Agencies other than the NCUA issued joint guidance concluding that, subject to certain exceptions or qualifications, a U.S. branch or agency of a foreign bank may share a SAR with its head office outside the United States, and a U.S. bank or savings association may disclose a SAR to its controlling company, no matter where the entity or party is located.5 FinCEN also issued guidance in consultation with the staffs of the Securities and Exchange Commission (‘‘SEC’’) and the Commodity Futures Trading Commission (‘‘CFTC’’) determining that, subject to certain exceptions or qualifications, a securities broker-dealer, futures commission merchant, or introducing broker in commodities may share a SAR with its parent entities, pwalker on PROD1PC71 with PROPOSALS2