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USA PATRIOT Act Monitor News Release: Currency Dealers and Exchanger
2/13/2003 1:50:35 PM Eastern Standard Time
Currency Dealers and Exchangers Now Required to File Suspicious Activity Reports
[Prior MLT Coverage: "Currency Dealers and Exchanges Would Be Required To File SARs Under Proposed Rule Change," USA PATRIOT Act Monitor, vol. 1(2), p. 9 (December 2002); MLT 2.5-3 (SAR-MSB); 5.2-10[c] (FATF Special Recommendations)]
FinCEN has finalized rules extending suspicious activity reporting requirements to currency dealers and exchangers. 68 Fed. Reg. 6613 (2/10/2003). In 2000, FinCEN issued a final rule requiring certain money services businesses to report suspicious transactions to FinCEN beginning January 1, 2002. The rule, 31 CFR 103.20, requires certain money services businesses to file a report of any transaction conducted or attempted by, at, or through the money services business, involving or aggregating at least $2,000, or in a specific case, $5,000. The $5,000 threshold applies if the identification of transactions required to be reported was derived from a review of clearance records of money orders or traveler's checks sold or processed. In either case, the filing is to occur when the money services business knows, suspects, or has reason to suspect that the transaction:
1. Involves funds derived from illegal activity or intended or conducted
to hide or disguise funds or assets derived from illegal activity.
2. Is Designed to evade BSA requirements.
3. Appears to have no business purposes or varies so substantially from normal commercial activities appropriate for the particular customer or type of customer as to have no reasonable explanation.
The transaction must be reported within 30 days after the business becomes aware of the suspicious transaction by filing a Suspicious Activity Report-MSB (SAR-MSB). Where a delay in reporting might hinder law enforcement's ability to investigate or respond, the business is to notify, by telephone, the appropriate authority in addition to filing a SAR-MSB. SAR-MSBs are placed in a central database available electronically to federal and state law enforcement and regulatory agencies. The obligation to report a suspicious transaction rests with each money services business involved in a particular transaction.
Broker-Dealer SAR Form Renamed
The Federal Register release formally recognizes that a suspicious activity report by a broker dealer is no longer a SAR-BD, but rather is now a "Suspicious Activity Report by the Securities and Futures Industries" or SAR-SF. Further analysis of the final rule will appear in the February issue of the USA PATRIOT Act Monitor.
The final regulation, as amended, now reads as follows:
§ 103.20 Reports by money services businesses of suspicious transactions.
(a) General. (1) Every money services business, described in § 103.11(uu) (1), (3), (4), (5), or (6), shall file with the Treasury Department, to the extent and in the manner required by this section, a report of any suspicious transaction relevant to a possible violation of law or regulation. Any money services business may also file with the
Treasury Department, by using the form specified in paragraph (b)(1) of this section, or otherwise, a report of any suspicious transaction that it believes is relevant to the possible violation of any law or regulation but whose reporting is not required by this section.
(2) A transaction requires reporting under the terms of this section if it
is conducted or attempted by, at, or through a money services business, involves
or aggregates funds or other assets of at least $2,000 (except as provided
in paragraph (a)(3) of this section), and the money services business knows,
suspects, or has reason to suspect that the transaction (or a pattern of transactions
of which the transaction is a part):
(i) Involves funds derived from illegal activity or is intended or conducted in order to hide or disguise funds or assets derived from illegal activity (including, without limitation, the ownership, nature, source, location, or control of such funds or assets) as part of a plan to violate or evade any federal law or regulation or to avoid any transaction reporting requirement under federal law or regulation;
(ii) Is designed, whether through structuring or other means, to
evade any requirements of this part or of any other regulations promulgated under the Bank Secrecy Act, Public Law 91-508, as amended, codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5330;
(iii) Serves no business or apparent lawful purpose, and the
reporting money services business knows of no reasonable explanation for the transaction after examining the available facts, including the
background and possible purpose of the transaction; or
(iv) Involves use of the money services business to facilitate criminal activity.
(3) To the extent that the identification of transactions required to be reported is derived from a review of clearance records or other similar records of money orders or traveler's checks that have been sold or processed, an issuer of money orders or traveler's checks shall only be required to report a transaction or pattern of transactions that involves or aggregates funds or other assets of at least $5,000.
(4) The obligation to identify and properly and timely to report a suspicious transaction rests with each money services business involved in the transaction, provided that no more than one report is required to be filed by the money services businesses involved in a particular transaction (so long as the report filed contains all relevant facts). Whether, in addition to any liability on its own for failure to report, a money services business that issues the instrument or provides the funds transfer service involved in the transaction may be liable for the failure of another money services business involved in the transaction to report that transaction depends upon the nature of the contractual or other relationship between the businesses, and the legal effect of the facts and circumstances of the relationship and transaction involved, under general principles of the law of agency.
(b) Filing procedures--(1) What to file. A suspicious transaction
shall be reported by completing a Suspicious Activity Report-MSB (``SAR-MSB''), and collecting and maintaining supporting documentation as required by paragraph (c) of this section.
(2) Where to file. The SAR-MSB shall be filed in a central location to be determined by FinCEN, as indicated in the instructions to the SAR-MSB.
(3) When to file. A money services business subject to this section is required to file each SAR-MSB no later than 30 calendar days after the date of the initial detection by the money services business of facts that may constitute a basis for filing a SAR-MSB under this section. In situations involving violations that require immediate attention, such as ongoing money laundering schemes, the money services business shall immediately notify by telephone an appropriate law enforcement authority in addition to filing a SAR-MSB. Money services businesses wishing voluntarily to report suspicious transactions that may relate to terrorist activity may call FinCEN's Financial Institutions Hotline at 1-866-556-3974 in addition to filing timely a SAR-MSB if required by this section.
(c) Retention of records. A money services business shall maintain a copy of any SAR-MSB filed and the original or business record equivalent of any supporting documentation for a period of five years from the date of filing the SAR-MSB. Supporting documentation shall be identified as such and maintained by the money services business, and shall be deemed to have been filed with the SAR-MSB. A money services business shall make all supporting documentation available to FinCEN and any other appropriate law enforcement agencies or supervisory agencies upon request.
(d) Confidentiality of reports; limitation of liability. No financial institution, and no director, officer, employee, or agent of any financial institution, who reports a suspicious transaction under this part, may notify any person involved in the transaction that the transaction has been reported. Thus, any person subpoenaed or otherwise requested to disclose a SAR-MSB or the information contained in a SAR-MSB, except where such disclosure is requested by FinCEN or an appropriate law enforcement or supervisory agency, shall decline to produce the SAR-MSB or to provide any information that would disclose that a SAR-MSB has been prepared or filed, citing this paragraph (d) and 31 U.S.C. 5318(g)(2), and shall notify FinCEN of any such request and its response thereto. A reporting money services business, and any director, officer, employee, or agent of such reporting money services business, that makes a report pursuant to this section (whether such report is required by this section or made voluntarily) shall be protected from liability for any disclosure contained in, or for failure to disclose the fact of, such report, or both, to the extent provided by 31 U.S.C. 5318(g)(3).
(e) Compliance. Compliance with this section shall be audited by the Department of the Treasury, through FinCEN or its delegees under the terms of the Bank Secrecy Act. Failure to satisfy the requirements of this section may constitute a violation of the reporting rules of the Bank Secrecy Act and of this part.
(f) Effective date. This section applies to transactions occurring after December 31, 2001.
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