Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75593 

■ 2. Section 563.180 is amended by 

revising paragraphs (d)(2)(iii) and (d)(3) 

introductory text, adding a new 

sentence to the end of paragraph (d)(8), 

and revising paragraph (d)(12) to read as 

follows: 

§ 563.180 Suspicious Activity Reports and 

other reports and statements. 

* * * * * 

(d) * * * 

(2) * * * 

(iii) SAR means a Suspicious Activity 

Report. 

(3) SARs required. A savings 

association or service corporation shall 

file a SAR with the appropriate Federal 

law enforcement agencies and the 

Department of the Treasury on the form 

prescribed by the OTS and in 

accordance with the form’s instructions, 

by sending a completed SAR to FinCEN 

in the following circumstances: 

* * * * * 

(8) Retention of records. * * * A 

savings association or service 

corporation shall make all supporting 

documentation available to OTS, 

FinCEN, or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

savings association or service 

corporation for compliance with the 

Bank Secrecy Act, or any State 

regulatory authority administering a 

State law that requires the savings 

association or service corporation to 

comply with the Bank Secrecy Act or 

otherwise authorizes the State authority 

to ensure that the institution complies 

with the Bank Secrecy Act, upon 

request. 

* * * * * 

(12) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential, 

and shall not be disclosed except as 

authorized in this paragraph (d)(12). 

(i) Prohibition on disclosure by 

savings associations or service 

corporations. (A) General rule. No 

savings association or service 

corporation, and no director, officer, 

employee, or agent of a savings 

association or service corporation, shall 

disclose a SAR or any information that 

would reveal the existence of a SAR. 

Any savings association or service 

corporation, and any director, officer, 

employee, or agent of any savings 

association or service corporation that is 

subpoenaed or otherwise requested to 

disclose a SAR, or any information that 

would reveal the existence of a SAR, 

shall decline to produce the SAR or 

such information, citing this section and 

31 U.S.C. 5318(g)(2)(A)(i), and shall 

notify the following of any such request 

and the response thereto: 

(A) Deputy Chief Counsel, Litigation 

Division, Office of Thrift Supervision; 

and 

(B) The Financial Crimes Enforcement 

Network (FinCEN). 

(ii) Rules of construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, 

paragraph (d)(1) of this section shall not 

be construed as prohibiting: 

(A) The disclosure by a savings 

association or service corporation, or 

any director, officer, employee or agent 

of a savings association or service 

corporation of: 

(1) A SAR, or any information that 

would reveal the existence of a SAR, to 

FinCEN or OTS, or any Federal, State, 

or local law enforcement agency; or any 

Federal regulatory authority that 

examines the savings association or 

service corporation for compliance with 

the Bank Secrecy Act, or any State 

regulatory authority administering a 

State law that requires compliance with 

the Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the institution complies with the 

Bank Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including, but not limited to, 

disclosures: 

(i) To another financial institution, or 

any director, officer, employee or agent 

of a financial institution, for the 

preparation of a joint SAR; or 

(ii) In connection with certain 

employment references or termination 

notices, to the full extent authorized in 

31 U.S.C. 5318(g)(2)(B); or 

(B) The sharing by a savings 

association or service corporation, or 

any director, officer, employee, or agent 

of a savings association or service 

corporation, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the corporate 

organizational structure of the savings 

association or service corporation, for 

purposes consistent with Title II of the 

Bank Secrecy Act as determined by 

regulation or in guidance. 

(iii) Prohibition on disclosure by OTS. 

The OTS will not, and no officer, 

employee or agent of OTS, shall 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. 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 use in a private legal 

proceeding or in response to a request 

for disclosure of non-public information 

under 12 CFR 510.5. 

(iv) Limitation on liability. A savings 

association or service corporation and 

any director, officer, employee or agent 

of a savings association or service 

corporation 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). 

* * * * * 

Dated: June 1, 2010. 

By the Office of Thrift Supervision. 

John E. Bowman, 

Acting Director. 

[FR Doc. 2010–29877 Filed 12–2–10; 8:45 am] 

BILLING CODE 6720–01–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 103 

RIN 1506–AA99 

Financial Crimes Enforcement 

Network; Confidentiality of Suspicious 

Activity Reports 

AGENCY: The Financial Crimes 

Enforcement Network (‘‘FinCEN’’), 

Treasury. 

ACTION: Final rule. 

SUMMARY: FinCEN is issuing this final 

rule to amend the Bank Secrecy Act 

(‘‘BSA’’) regulations regarding the 

confidentiality of a report of suspicious 

activity (‘‘SAR’’) to: Clarify the scope of 

the statutory prohibition against the 

disclosure by a financial institution of a 

SAR; address the statutory prohibition 

against the disclosure by the 

government of a SAR; clarify that the 

exclusive standard applicable to the 

disclosure of a SAR by the government 

is to fulfill official duties consistent 

with the purposes of the BSA; modify 

the safe harbor provision to include 

changes made by the Uniting and 

Strengthening America by Providing the 

Appropriate Tools Required to Intercept 

and Obstruct Terrorism Act of 2001 

(‘‘USA PATRIOT Act’’); and make minor 

technical revisions for consistency and 

harmonization among the different SAR 

rules. These amendments are part of the 

Department of the Treasury’s continuing 

effort to increase the efficiency and 

effectiveness of its anti-money 

laundering and counter-terrorist 


emcdonald on DSK2BSOYB1PROD with RULES2
75594 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

1The Federal bank regulatory agencies have 

parallel SAR requirements for their supervised 

entities: See 12 CFR 208.62, 12 CFR 211.24(f), and 

12 CFR 225.4(f) (the Board of Governors of the 

Federal Reserve System) (‘‘Fed’’)); 12 CFR 353.3 (the 

Federal Deposit Insurance Corporation (‘‘FDIC’’)); 12 

CFR 748.1 (the National Credit Union 

Administration (‘‘NCUA’’)); 12 CFR 21.11 (the Office 

of the Comptroller of Currency (‘‘OCC’’)) and 12 CFR 

563.180 (the Office of Thrift Supervision (‘‘OTS’’)). 

2FinCEN has implemented regulations for 

suspicious activity reporting at 31 CFR 103.15 (for 

mutual funds); 31 CFR 103.16 (for insurance 

companies); 31 CFR 103.17 (for futures commission 

merchants and introducing brokers in 

commodities); 31 CFR 103.18 (for banks); 31 CFR 

103.19 (for broker-dealers in securities); 31 CFR 

103.20 (for money services businesses); 31 CFR 

103.21 (for casinos). 

3The Annunzio-Wylie Anti-Money Laundering 

Act of 1992 (the Annunzio-Wylie Act), amended the 

BSA and authorized the Secretary of the Treasury 

to require financial institutions to report suspicious 

transactions relevant to a possible violation of law 

or regulation. See Public Law 102–550, Title XV, 

1517(b), 106 Stat. 4055, 4058–9 (1992); 31 U.S.C. 

5318(g)(1). 

4See 31 U.S.C. 5318(g)(2). 

5Bank Secrecy Act regulations expressly 

permitting the filing of a joint SAR when multiple 

financial transactions are involved in a common 

transaction or series of transactions involving 

suspicious activity can be found at 31 CFR 

103.15(a)(3) (for mutual funds); 31 CFR 

103.16(b)(3)(ii) (for insurance companies); 31 CFR 

103.17(a)(3) (for futures commission merchants and 

introducing brokers in commodities); 31 CFR 

103.19(a)(3) (for broker-dealers in securities); and 

31 CFR 103.20(a)(4) (for money services 

businesses). 

6See USA PATRIOT Act, section 351(b). Public 

Law 107–56, Title III, § 351, 115 Stat. 272, 

321(2001); 31 U.S.C. 5318(g)(2). 

7See USA PATRIOT Act, section 351(a). Public 

Law 107–56, Title III, § 351, 115 Stat. 272, 

321(2001); 31 U.S.C. 5318(g)(3). 

8 Generally, these regulations are known as 

‘‘Touhy regulations,’’ after the Supreme Court’s 

decision in United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951). In that case, the Supreme Court 

held that an agency employee could not be held in 

contempt for refusing to disclose agency records or 

information when following the instructions of his 

or her supervisor regarding the disclosure. As such, 

an agency’s Touhy regulations are the instructions 

agency employees must follow when those 

employees receive requests or demands to testify or 

otherwise disclose agency records or information. 

9All comments to the notices are available for 

public viewing at http://www.regulations.gov or 

http://www.fincen.gov/statutes_regs/bsa/regs_

proposal_comment.html. 

financing policies. These amendments 

are consistent with similar proposals to 

be issued by some of the Federal bank 

regulatory agencies in conjunction with 

FinCEN.1

DATES: Effective Date: January 3, 2011. 

FOR FURTHER INFORMATION CONTACT: The 

FinCEN regulatory helpline at (800) 

949–2732. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The BSA requires financial 

institutions to keep certain records and 

make certain reports that have been 

determined to be useful in criminal, tax, 

or regulatory investigations or 

proceedings, and for intelligence or 

counter-intelligence activities to protect 

against international terrorism. In 

particular, the BSA and its 

implementing regulations require 

financial institutions in certain 

industries 2 to file a SAR when they 

detect a known or suspected violation of 

Federal law or regulation, or a 

suspicious activity related to money 

laundering, terrorist financing, or other 

criminal activity.3

SARs generally are unproven reports 

of possible violations of law or 

regulation, or of suspicious activities, 

that are used for law enforcement or 

regulatory purposes. The BSA provides 

that a financial institution and its 

officers, directors, employees, and 

agents are prohibited from notifying any 

person involved in a suspicious 

transaction that the transaction was 

reported.4 FinCEN implemented this 

provision in its SAR regulations for each 

industry through an explicit prohibition 

that closely mirrored the enacting 

statutory language. Specifically, we 

clarified that disclosure could not be 

made to the person involved in the 

transaction, but that the SAR could be 

provided to FinCEN, law enforcement, 

and the financial institution’s 

supervisory or examining authority. In 

certain SAR rules, we have expressly 

provided for the possibility of 

institutions jointly filing a SAR 

regarding suspicious activity that 

occurred at multiple institutions.5

The USA PATRIOT Act strengthened 

the confidentiality of SARs by adding to 

the BSA a new provision that prohibits 

officers or employees of the Federal 

government or any State, local, Tribal, 

or territorial government within the 

United States with knowledge of a SAR 

from disclosing to any person involved 

in a suspicious transaction that the 

transaction was reported, other than as 

necessary to fulfill the official duties of 

such officer or employee.6

To encourage the reporting of possible 

violations of law or regulation, and the 

filing of SARs, the BSA contains a safe 

harbor provision that shields financial 

institutions making such reports from 

civil liability in connection with the 

report. In 2001, the USA PATRIOT Act 

clarified that the safe harbor also covers 

voluntary disclosure of possible 

violations of law and regulations to a 

government agency and expanded the 

scope of the limit on liability to cover 

any civil liability that may exist ‘‘under 

any contract or other legally enforceable 

agreement (including any arbitration 

agreement).’’ 7

II. The Notice of Proposed Rulemaking 

and Related Actions 

On March 9, 2009, FinCEN published 

in the Federal Register a notice of 

proposed rulemaking (‘‘the proposed 

rule’’) and two separate notices and 

requests for comment on proposed 

guidance (‘‘the proposed guidance’’) 

(collectively, ‘‘the notices’’). In the 

proposed rule, FinCEN proposed 

amendments to each of FinCEN’s SAR 

rules to include key changes that would 

(1) clarify the scope of the statutory 

prohibition against the disclosure by a 

financial institution of a SAR; (2) 

address the statutory prohibition against 

the disclosure by the government of a 

SAR; (3) clarify that the exclusive 

standard applicable to the disclosure of 

a SAR, or any information that would 

reveal the existence of a SAR by the 

government is ‘‘to fulfill official duties 

consistent with Title II of the BSA,’’ in 

order to ensure that SAR information is 

protected from inappropriate 

disclosures unrelated to the BSA 

purposes for which SARs are filed; (4) 

modify the safe harbor provision to 

include changes made by the USA 

PATRIOT Act; and (5) where possible, 

harmonize minor technical differences 

that exist among the confidentiality, safe 

harbor, and compliance provisions of 

our rulemakings for different industries. 

The proposed guidance interpreted one 

of the provisions of the proposed rules 

relating to (1) above, to clarify that SARs 

could be shared, subject to certain 

qualifications, within an institution’s 

corporate organizational structure. 

In separate but contemporaneous 

rulemakings, some of the Federal bank 

regulatory agencies proposed amending 

their SAR rules to incorporate 

comparable provisions to FinCEN’s 

proposed rules, and amending their 

information disclosure regulations 8 to 

clarify that the exclusive standard 

governing the release of a SAR, or any 

information that would reveal the 

existence of a SAR, is set forth in the 

confidentiality provisions of their 

respective SAR rules. 

The notices and related Federal bank 

regulatory agency actions were 

published together in their own separate 

part of the Federal Register to 

encourage commenters to take into 

account all relevant provisions. 

III. Comments on the Notices— 

Overview and General Issues 

The comment period for the notices 

ended on June 8, 2009. We received a 

total of 26 submissions from 25 distinct 

entities.9 Of these, 15 were submitted by 

trade groups or associations, four were 

submitted by individual financial 


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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75595 

10Comments about the sharing guidance are 

addressed separately in a related ‘‘notice of 

availability of guidance’’ published by FinCEN in 

today’s Federal Register. 

11See, e.g., Whitney Nat’l Bank v. Karam, 306 F. 

Supp. 2d 678, 682 (S.D. Tex. 2004); Cotton v. 

Private Bank and Trust Co., 235 F. Supp. 2d 809, 

815 (N.D. Ill. 2002). 

12For example, a private litigant may serve a 

discovery request on a bank in civil litigation that 

calls for the bank to produce the underlying 

documentation on companies A, B, and C, where 

the bank has filed a SAR on company A but not 

companies B or C, and the underlying 

documentation reflects the SAR filing decisions. If 

the bank then produces the underlying 

documentation for companies B and C, but neither 

confirms nor denies the existence of a SAR when 

declining to provide similar documentation for 

company A, by negative implication it may have 

revealed the existence of the SAR filed on company 

A. 

13As one commenter correctly suggested, 

information produced in the ordinary course of 

business may contain sufficient information that a 

reasonable and prudent person familiar with SAR 

filing requirements could use to conclude that an 

institution likely filed a SAR (e.g., a copy of a 

fraudulent check, or a cash transaction log showing 

a clear pattern of structured deposits). Such 

information, alone, does not constitute information 

that would reveal the existence of a SAR. 

14See, e.g., Whitney Nat. Bank v. Karam, 306 F. 

Supp. 2d 678, 682 (S.D. Tex. 2004) (noting that 

courts have ‘‘allowed the production of supporting 

documentation that was generated or received in 

the ordinary course of the banks’ business, on 

which the report of suspicious activity was based’’); 

Cotton v. Private Bank and Trust Co., 235 F. Supp. 

2d 809, 815 (N.D. Ill. 2002) (holding that the 

‘‘factual documents which give rise to suspicious 

conduct * * * are to be produced in the ordinary 

course of discovery because they are business 

records made in the ordinary course of business’’). 

15See, e.g., Whitney at 682–83 (holding that the 

SAR confidentiality provision protects, inter alia, 

‘‘communications preceding the filing of a SAR and 

preparatory or preliminary to it; communications 

that follow the filing of a SAR and are explanations 

or follow-up discussion; or oral communications or 

suspected or possible violations that did not 

culminate in the filing of a SAR’’); Cotton at 815 

(holding that ‘‘documents representing the drafts of 

SARs or other work product or privileged 

communications that relate to the SAR itself * * * 

are not to be produced [in discovery] because they 

would disclose whether a SAR has been prepared 

or filed’’); Union Bank of California, N.A. v. 

Superior Court, 130 Cal. App. 4th 378, 391 (2005) 

(holding that ‘‘a draft SAR or internal memorandum 

prepared as part of a financial institution’s process 

for complying with Federal reporting requirements 

is generated for the specific purpose of fulfilling the 

institution’s reporting obligation * * * [and] fall 

within the scope of SAR [confidentiality] because 

they may reveal the contents of a SAR and disclose 

whether ‘a SAR has been prepared or filed’ ’’). 

16One example of such information could 

include summary information commonly provided 

by banks in the ‘‘notification to the board’’ required 

by the various Federal bank regulatory agency SAR 

rules. Banks subject to the requirement are 

encouraged to be cautious in the production of 

relevant portions of board minutes or other records 

to avoid the risk of potentially exposing SAR 

information to the subject, either directly or 

indirectly, in the event such records are subject to 

future subpoena. 

institutions, three were submitted by 

Federal, Tribal, or foreign government 

agencies, three were submitted by 

consultants or attorneys not affiliated 

with a specific financial institution, and 

one was submitted by a self-regulatory 

organization (‘‘SRO’’). The comments 

generally supported the proposed rules 

while requesting the broadening of the 

proposed sharing guidance.10 Several of 

the comments specific to the proposed 

rules provided suggestions for 

additionally strengthening or clarifying 

the general confidentiality provision, as 

well as the specific confidentiality 

provisions for institutions, governments, 

and SROs. Due to the broad and varied 

topics raised during comment, the 

majority of comments are addressed in 

the section-by-section analysis, below. 

IV. Section-by-Section Analysis 

A. Confidentiality of SARs 

FinCEN proposed clarifying the 

general introduction to the 

confidentiality provision in each of its 

SAR rules to read, ‘‘A SAR, and any 

information that would reveal the 

existence of a SAR, are confidential and 

shall not be disclosed except as 

authorized in this paragraph.’’ FinCEN 

proposed this change to be more 

comprehensive than the previous 

language that, on face value, was limited 

only to the person involved in the 

transaction and applied only with 

respect to the SAR form itself. The 

phrase ‘‘SAR[s] are confidential’’ also 

was consistent with the existing Federal 

bank regulatory agency SAR rules, while 

the application of confidentiality to ‘‘a 

SAR, and information that would reveal 

the existence of a SAR’’ (‘‘SAR 

information’’) was consistent with both 

FinCEN and case law interpretations 11

of the previous non-disclosure 

provision. In the final rule, FinCEN is 

adopting this language as proposed, 

without change. 

Some commenters asked that FinCEN 

clarify the term ‘‘information that would 

reveal the existence of a SAR’’ for the 

purpose of defining the scope of SAR 

confidentiality. One commenter 

specifically asked whether that term 

only includes information that 

affirmatively states that a SAR was filed. 

Another commenter urged that FinCEN 

formally recognize that documents 

prepared by a financial institution when 

complying with its SAR obligations 

should be afforded confidentiality. 

Clearly, any document or other 

information that affirmatively states that 

a SAR has been filed constitutes 

information that would reveal the 

existence of a SAR and should be kept 

confidential. By extension, an 

institution also should afford 

confidentiality to any document stating 

that a SAR has not been filed. Were 

FinCEN to allow disclosure of 

information when a SAR is not filed, 

institutions would implicitly reveal the 

existence of a SAR any time they were 

unable to produce records because a 

SAR was filed.12

The more difficult situation is when 

a document or other information is 

silent as to whether a SAR has or has 

not been filed. Documents that may 

identify suspicious activity but that do 

not reveal whether a SAR exists (e.g., a 

document memorializing a customer 

transaction, such as an account 

statement indicating a cash deposit or a 

record of a funds transfer), should be 

treated as falling within the underlying 

facts, transactions, and documents upon 

which a SAR may be based, and should 

not be afforded confidentiality.13 This 

distinction is set forth in the final rule’s 

second rule of construction and reflects 

relevant case law.14

However, the strong public policy that 

underlies the SAR system as a whole— 

namely, the creation of an environment 

that encourages financial institutions to 

report suspicious activity without fear 

of reprisal—leans heavily in favor of 

applying SAR confidentiality not only 

to a SAR itself, but also in appropriate 

circumstances to material prepared by 

the financial institution as part of its 

process to detect and report suspicious 

activity, regardless of whether a SAR 

ultimately was filed or not. This 

interpretation also reflects relevant case 

law.15

As explained in more detail in the 

proposed rule, the primary purpose for 

clarifying the scope of the 

confidentiality provision is to ensure 

that, due to potentially serious 

consequences, the persons involved in 

the transaction and identified in the 

SAR cannot be notified, directly or 

indirectly, of the report. Accordingly, 

FinCEN proposed replacing the 

previous rule text prohibiting disclosure 

of the SAR to the person involved in the 

transaction with a broad general 

confidentiality provision for all SAR 

information applicable to all persons 

not authorized in the rules of 

construction to receive such 

information. With respect to 

‘‘information that would reveal the 

existence of a SAR,’’ therefore, 

institutions should distinguish between 

certain types of statistical or abstract 

information or general discussions of 

suspicious activity that may indicate 

that an institution has filed SARs,16 and 

information that would reveal the 

existence of a SAR in a manner that 

could enable the person involved in the 


emcdonald on DSK2BSOYB1PROD with RULES2
75596 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

17Primary Federal functional regulator, for 

purposes of this final rule, means the Federal bank 

regulatory agencies, the Securities and Exchange 

Commission (‘‘SEC’’), and the Commodity Futures 

Trading Commission (‘‘CFTC’’). Only the Federal 

bank regulatory agencies administer parallel SAR 

requirements. 

18 In the interim, upon notification by a financial 

institution, FinCEN will ensure that an institution’s 

primary Federal regulator has been notified of such 

a request and the institution’s response thereto. 

transaction potentially to be notified, 

whether directly or indirectly. 

FinCEN also proposed modifying this 

introductory section to clarify that ‘‘for 

purposes of [the confidentiality 

provision] only, a SAR shall include any 

suspicious activity report filed with 

FinCEN pursuant to any regulation in 

this part’’ and eliminating references in 

the confidentiality provisions of certain 

rules to specific versions of the SAR 

form like the SAR–SF (for use by the 

securities and futures industries) or 

SAR–MSB (for use by money services 

businesses). This change clarified that 

the confidentiality provisions of our 

SAR rules apply with respect to any 

type of SAR in the filing institution’s 

possession, which, since it may result 

from the joint filing or sharing of a SAR 

with another type of financial 

institution in accordance with the 

provisions of these proposed rules, 

could include a type of SAR form not 

used by the institution. This provision 

is also being adopted as proposed, 

without change. 

B. Disclosure by Financial Institutions 

The proposed rule provided that any 

financial institution, or any director, 

officer, employee, or agent of a financial 

institution, that is subpoenaed or 

otherwise requested to disclose a SAR, 

or information that would reveal the 

existence of a SAR, must decline to 

provide the information, citing this 

section of the rules and 31 U.S.C. 

5318(g)(2)(A)(i), and must provide 

notification of the request and its 

response thereto to FinCEN and, in the 

rules for those industries with parallel 

SAR requirements administered by a 

primary Federal functional regulator,17

notification to that regulator as well. 

One commenter suggested that 

FinCEN adjust the SAR rule for banks to 

remove the ‘‘duplicative’’ requirement 

for a bank to notify both FinCEN and its 

primary Federal functional regulator 

when SAR information is 

inappropriately requested. FinCEN 

disagrees with the characterization of 

the requirement as ‘‘duplicative’’ since 

the entities in question have separate 

SAR rules issued and administered by 

separate agencies. The joint notification 

requirement in FinCEN’s rule, therefore, 

simply acknowledges the notification 

requirement of multiple SAR 

regulations issued under multiple 

authorities. 

Because FinCEN’s jurisdiction is 

limited to the Title 31 SAR rules, 

however, FinCEN is removing the 

requirement from its bank SAR rule that 

an institution notify its primary Federal 

regulator in addition to notifying 

FinCEN in the event of an inappropriate 

request for SAR information. While this 

will create greater consistency within 

FinCEN’s SAR rules for multiple 

industries and between FinCEN’s rules 

and most of the primary Federal 

regulator bank SAR rules with respect to 

the requirement to notify only the 

agency administering that rule, it does 

not relieve institutions from their 

requirement to comply with the 

provisions of similar but distinct rules 

administered by separate agencies. 

FinCEN will continue to explore the 

possibility of streamlining the process of 

notification under separate legal 

authorities.18

Another commenter asked FinCEN to 

establish procedures by which an 

institution, if it thought it would benefit 

the institution, could petition FinCEN to 

authorize the disclosure of SAR 

information for in camera review during 

a private legal proceeding. As discussed 

elsewhere in this rulemaking, the 

protection of the filing institution is not 

the only reason for the SAR 

confidentiality provision. Further, 

FinCEN believes that in most legal 

proceedings, a filing institution that 

would benefit from the disclosure of a 

SAR would benefit comparably with 

evidence from underlying facts, 

transactions, and documents. 

Consequently, FinCEN does not intend 

to establish procedures for submitting 

such a request in this rulemaking. 

C. Rules of Construction 

FinCEN proposed rules of 

construction that clarify the scope of the 

SAR disclosure prohibition and 

implement statutory modifications to 

the BSA made by the USA PATRIOT 

Act. The proposed rules of construction 

primarily describe situations that are 

not covered by the prohibition against 

the disclosure of SAR information. The 

introduction to these rules makes clear 

that the rules of construction are each 

qualified by and subordinate to the 

statutory mandate that no person 

involved in any reported suspicious 

transaction can be notified that the 

transaction has been reported. This 

introductory sentence is being adopted 

as proposed, without change, in the 

final rule. 

1. The First Rule of Construction 

The first proposed rule of 

construction clarified the permissibility 

of disclosures to governmental 

authorities or other examining 

authorities that are otherwise entitled by 

law to receive SARs and to examine for 

or investigate suspicious activity. For 

most industries, the rule stated that a 

financial institution, or any director, 

officer, employee, or agent of a financial 

institution, may disclose a SAR, or 

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 

financial institution for compliance 

with the BSA. 

a. State Regulatory Authorities 

FinCEN is adjusting the language 

slightly in the final rule to make a 

technical correction in the SAR rule text 

for some industries. While the original 

SAR rules provided for requests for 

disclosure from ‘‘appropriate law 

enforcement [and] supervisory 

agenc[ies],’’ the proposed rules sought to 

expand these terms by describing 

explicitly the types of entities that fit 

into those categories. Accordingly, some 

of the proposed rules used the phrase 

‘‘* * * state regulatory authority that 

examines [the institution] for 

compliance with the BSA.’’ FinCEN 

believes that commenters clearly 

understood and consented to the intent 

of this language, but will use the more 

technically accurate phrase ‘‘* * * state 

regulatory authority administering a 

state law that requires [the institution] 

to comply with the BSA or otherwise 

authorizes the state authority to ensure 

that the institution complies with the 

BSA’’ in the final rule. 

This change recognizes that State 

regulatory authorities are generally 

authorized by State law to examine for 

compliance with the BSA in one of two 

ways: (1) The law authorizes the State 

authority to examine the institution for 

compliance with all Federal laws and 

regulations generally or with the BSA 

explicitly, or (2) the law requires a 

financial institution to comply with all 

Federal laws and regulations generally 

or with the BSA explicitly, and 

authorizes the State authority to 

examine for compliance with the State 

law. An institution may provide SAR 

information to a State regulatory 

authority meeting either criterion. 

Commenters pointed out that some, 

but not all of the rules, provided for a 

financial institution to disclose SAR 

information to these State regulatory 

authorities. While one of FinCEN’s goals 


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19For example, prior to this final rule, the 

existing SAR rule for securities broker-dealers at 31 

CFR 103.19(g) stated that ‘‘[r]eports filed under this 

section shall be made available to an SRO registered 

with the [SEC] examining a broker-dealer for 

compliance with the requirements of this section.’’ 

for the final rule is to create consistency 

between the various industry SAR rules 

where appropriate, FinCEN 

intentionally omitted State regulatory 

agencies from this rule of construction 

for the securities and futures industries. 

FinCEN has not delegated, and Congress 

has not authorized, State regulation for 

compliance with the BSA to these 

industries. Accordingly, the provision 

regarding disclosures to State regulatory 

authorities has been incorporated into 

the final rule for all industries other 

than securities broker-dealers, futures 

commission merchants, introducing 

brokers in commodities, and mutual 

funds. 

For each of those industries excluded 

from the aforementioned ‘‘state 

regulatory’’ provision, FinCEN also has 

made a comporting change in the final 

rule to the paragraph entitled ‘‘Retention 

of Records.’’ With respect to an 

institution’s obligation to provide the 

supporting documentation to a SAR 

only to appropriate parties upon 

request, the final rule text includes 

Federal regulatory agencies, but not 

State regulatory agencies. 

b. Tribal Regulatory Authorities 

FinCEN received a similar comment 

regarding Tribal casinos that may be 

regulated by a Tribal regulatory 

authority. As with State agencies, 

FinCEN believes disclosures to such 

authorities should be limited only to an 

entity with authority to examine for 

compliance with laws requiring 

compliance with the BSA. Accordingly, 

FinCEN is incorporating a technical 

change similar to that described for 

State regulatory authorities, above, to 

more accurately describe the methods 

by which Tribal regulatory authorities 

obtain jurisdiction to examine for BSA 

compliance. The first rule of 

construction in the final rule for casinos 

now reads, ‘‘* * * or any tribal 

regulatory authority administering a 

tribal law that requires the casino to 

comply with the BSA or otherwise 

authorizes the tribal regulatory authority 

to ensure that the casino complies with 

tribal law.’’ 

c. Self-Regulatory Organizations 

For the proposed rules governing 

securities broker-dealers, futures 

commission merchants, and introducing 

brokers in commodities, an institution’s 

ability to disclose under the first rule of 

construction also was extended to a selfregulatory organization that is 

examining the institution for 

compliance with the requirements ‘‘of 

this section,’’ a phrase FinCEN 

interpreted in the preamble as meaning 

the SAR rules. FinCEN received 

multiple and conflicting comments on 

this provision. Commenters correctly 

noted that this language differs from the 

standard used for Federal and State 

regulatory authorities. 

One comment received from a 

government agency supported this 

different standard, stating that while 

Congress directed FinCEN to make 

SARs available to certain SROs in 

Section 358(c) of the USA PATRIOT Act 

(amending 31 U.S.C. 5319), Congress’s 

simultaneous expansion in Section 

358(a) of the ‘‘declaration of purpose’’ 

for the data collected under the BSA in 

Chapter 53 of Title 31 of the U.S.C. did 

not include self-regulatory purposes. 

Another comment from an SRO argued, 

however, that limiting SRO access to 

SAR information only in conjunction 

with an examination for BSA 

compliance was inconsistent with the 

aims of the BSA. 

The language in the proposed rule 

limiting SRO use of SARs was 

consistent with the uses originally 

described in the previous SAR rules.19

As such, the proposed rule did not 

propose restricting, but rather declined 

to expand, the existing SRO authority to 

use SARs. In the final rule, however, 

FinCEN is emphasizing the important 

role of BSA data in the support of 

supervisory functions to promote the 

integrity of financial markets and 

mitigate risks of financial crime. 

Accordingly, the final rule text 

regarding SROs more closely models the 

language used for government 

regulatory authorities. At the same time, 

the final rule recognizes the relationship 

of SROs and the Federal agencies 

responsible for their oversight, upon 

whom FinCEN relies for the purpose of 

helping to ensure that the SROs are 

operating in a manner consistent with 

FinCEN’s mission. 

SROs are not governmental entities, 

but do play a significant role in 

regulating segments of the financial 

industry under the close supervision 

and regulatory oversight by specific 

Federal agencies. The SEC regulates the 

Financial Industry Regulatory Authority 

(‘‘FINRA’’) and other SROs, while the 

CFTC regulates the National Futures 

Association (‘‘NFA’’) and a number of 

other SROs. FinCEN relies on the close 

supervision by the Federal functional 

regulators of those industries also 

subject to SRO oversight to assist 

FinCEN in ensuring that SROs 

appropriately use and handle BSA 

information. As these agencies are in a 

position to understand the needs of the 

SROs for BSA information and are also 

in a position to monitor the SROs’ 

interaction with the entities subject to 

both the regulators’ and the SROs’ 

purview, FinCEN has determined that 

SROs should obtain SARs and 

supporting documentation from the 

entities that they examine in a manner 

and for purposes that the Federal agency 

responsible for its oversight deems 

appropriate. Thus, the final rule makes 

it clear that a financial institution 

examined by an SRO can provide SAR 

information to the SRO, upon the 

request of the Federal agency 

responsible for its oversight. 

This request may apply to the SRO in 

an isolated context or in a broad context 

to cover a variety of situations and 

understood uses, as determined 

appropriate by that agency. FinCEN 

expects the Federal agency responsible 

for the SRO’s oversight to provide this 

request either to the institution in 

writing, or to the SRO in the form of a 

writing that is available for the SRO to 

share with the institution. Given the fact 

that many institutions may come under 

the jurisdiction of more than one 

regulator and more than one SRO, a 

record of the relevant Federal regulator’s 

request is important to avoid confusion. 

In keeping with its cooperative 

relationships with the relevant Federal 

regulators, FinCEN will monitor the 

regulators’ requests for SAR information 

and communicate with the regulators 

with respect to any concerns that either 

FinCEN or the regulators identify with 

respect to the use and protection of 

SARs by an SRO. 

In light of the above considerations, 

the final rule for those industries with 

SROs now reads to allow disclosure to 

‘‘* * * any SRO that examines [the 

institution] for compliance with the 

requirements of this section, upon the 

request of [the Federal agency 

responsible for its oversight].’’ 

d. Civil Enforcement Authorities 

One commenter also argued that the 

SEC and CFTC, in their capacity of civil 

enforcement of laws applicable to all 

persons (including institutions they do 

not examine for compliance with the 

BSA), should have the authority to 

request SAR information (specifically, 

supporting documentation) from all 

financial institutions in the same 

manner as law enforcement agencies. 

FinCEN is not amending the first rule of 

construction to allow this for two 

reasons. First, limiting the ability of the 

SEC or the CFTC to obtain information 

that would reveal that a SAR has been 

filed only from the types of institutions 


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20Such ‘‘dual filing’’ requirements, regardless of 

whether the State authority examines for 

compliance with State laws requiring compliance 

with the BSA, are inherently inconsistent with 31 

U.S.C. 5318(g)(4), which clearly intends that all 

SARs be filed to a single government agency 

designated by the Secretary of the Treasury. 

21See Cotton, 235 F. Supp. 2d at 815. 

22This sentence does not speak to any other laws 

or regulations governing a financial institution’s 

responsibilities to maintain and protect 

information. 

23FinCEN reminds institutions that the 

underlying facts, transactions, and documents upon 

which a SAR is based may include or reference 

previously filed SARs or other information that 

would reveal the existence of a SAR. Such 

underlying information could not be disclosed 

under this rule of construction. 

they examine for compliance with the 

BSA is consistent with the treatment 

under the final rule of all other Federal 

regulatory authorities, many of which 

also possess civil enforcement 

authorities. Second, although FinCEN 

recognizes the civil enforcement 

authority of the SEC and CFTC, FinCEN 

believes both agencies have been 

adequately empowered with requisite 

subpoena powers to obtain relevant data 

from financial institutions they do not 

examine for BSA compliance. That data 

includes the underlying facts, 

transactions, and documents upon 

which a SAR is based, pursuant to the 

second rule of construction. For 

example, if a bank receives a subpoena 

from the SEC or the CFTC that does not 

refer to a SAR, but merely requests 

certain transactional documents, then it 

would be permissible for the bank to 

respond to the subpoena with relevant 

documents, so long as the disclosure of 

any such document would not reveal 

the existence of a SAR. FinCEN 

understands that there may be situations 

in which documentation revealing the 

existence of a SAR will be responsive to 

an SEC or CFTC subpoena. In such 

situations, a financial institution should 

contact FinCEN with any questions 

concerning its ability under the SAR 

rules to provide information in response 

to a subpoena. In situations where the 

SEC or CFTC deem a subpoena to be 

imprudent, FinCEN notes the ability of 

those agencies to make a request for 

supporting documentation through 

FinCEN or the primary Federal regulator 

for that institution. 

e. Other Requests for SAR Information 

One commenter brought to FinCEN’s 

attention examples of ‘‘dual filing 

requirements’’ imposed by State 

regulatory authorities that do not meet 

the criteria in the first rule of 

construction of administering a State 

law that requires the financial 

institution to comply with the BSA or 

otherwise authorizes the State authority 

to ensure that the institution complies 

with the BSA. According to the 

commenter, these State agencies request 

that copies of SARs filed with FinCEN 

be provided to the State authority.20 The 

confidentiality provision and first rule 

of construction, as finalized, explicitly 

prohibit an institution from complying 

with such a request. Institutions should 

provide SAR information to only those 

entities specifically included in the 

rules of construction. In the event that 

a State agency that is not described in 

the rules of construction requires access 

to SAR information to exercise its 

authorities, that agency should seek 

access from FinCEN for such 

information. Institutions that are subject 

to such ‘‘dual filing requirements’’ from 

an unauthorized entity should contact 

FinCEN in accordance with the 

procedures of this rule. 

Finally, multiple commenters 

requested assistance from FinCEN in 

discerning whether a request for SAR 

information comes from an appropriate 

party. For example, one commenter 

suggested that FinCEN develop a 

‘‘standard request form’’ for law 

enforcement to use when requesting 

SAR information. Due to the variety of 

authorities to whom a SAR may be 

disclosed, the variety of purposes for 

which they may require SAR 

information, and the greater clarity 

already provided in the first rule of 

construction, FinCEN believes such a 

request to be impractical and 

unnecessary. Another commenter 

suggested FinCEN issue standard 

verification procedures for an 

institution to follow to determine who 

is an ‘‘appropriate’’ authority. In both the 

proposed rules and final rules, FinCEN 

has removed the term ‘‘appropriate’’ 

from the list of entities that could 

receive SAR information. This change 

from the previous SAR rules indicates 

FinCEN’s intention to list explicitly in 

the first rule of construction all 

categories of authorities to whom an 

institution may provide SAR 

information without a subpoena. 

FinCEN believes this should greatly 

reduce the ambiguity surrounding 

requests. One commenter, however, 

requested confirmation that when an 

institution receives a request for 

disclosure of SAR information and 

contacts FinCEN and its regulator 

because of uncertainty regarding the 

requesting entity’s status as an authority 

authorized by the first rule of 

construction, that the SAR should 

continue to be kept confidential as 

prescribed by the regulation. FinCEN 

agrees, but urges institutions in such a 

situation to quickly contact FinCEN for 

resolution. 

2. The Second Rule of Construction 

The second proposed rule of 

construction provided that the phrase, 

‘‘a SAR or information that would reveal 

the existence of a SAR’’ does not include 

‘‘the underlying facts, transactions, and 

documents upon which a SAR is based,’’ 

which therefore are not subject to the 

confidentiality provision. 

This proposed rule of construction 

included illustrative examples of 

situations where the underlying facts, 

transactions, and documents upon 

which a SAR is based may be disclosed. 

One commenter suggested that FinCEN 

clarify that the illustrative examples are 

not exhaustive, and that there may be 

other situations not prescribed in the 

rule where an institution may disclose 

the underlying facts, transactions, and 

documents upon which a SAR is based. 

FinCEN did not intend for these 

examples to be exhaustive and does not 

believe the text, as proposed, implies 

that the examples are exhaustive. The 

preamble to the proposed rules, for 

example, expressly stated that ‘‘these 

two examples are not intended to be an 

exhaustive list of all possible scenarios 

in which the disclosure of underlying 

information is permissible’’ and 

included a discussion of disclosure of 

underlying information that was not 

explicitly listed in the rule text. It stated 

that ‘‘while a financial institution is 

prohibited from producing documents 

in discovery that evidence the existence 

of a SAR, factual documents created in 

the ordinary course of business (for 

example, business records and account 

information upon which a SAR is 

based), may be discoverable in civil 

litigation under the Federal Rules of 

Civil Procedure.21

For purposes of clarity, however, 

FinCEN is modifying the final rule 

language to read ‘‘* * * the underlying 

facts, transactions, and documents upon 

which a SAR is based, including but not 

limited to, disclosures’’ expressly listed 

as illustrative examples in the rule. 

Accordingly, with respect to the SAR 

confidentiality provision only,22

institutions may disclose underlying 

facts, transactions, and documents for 

any purpose, provided that no person 

involved in the transaction is notified 

and none of the underlying information 

reveals the existence of a SAR. 

The first illustrative example in the 

proposed rules clarified that underlying 

information 23 may be disclosed to 

another financial institution, or any 

director, officer, employee, or agent of 

the financial institution, for the 

preparation of a joint SAR. This text is 

being adopted in the final rule, as 


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24On December 21, 2006, FinCEN and the Federal 

bank regulatory agencies announced that the format 

for the SAR form for depository institutions had 

been revised to support a new joint filing initiative 

to reduce the number of duplicate SARs filed for 

a single suspicious transaction. ‘‘Suspicious 

Activity Report (SAR) Revised to Support Joint 

Filings and Reduce Duplicate SARs,’’ Joint Release 

issued by FinCEN, the FRB, the OCC, the OTS, the 

FDIC, and NCUA (Dec. 21, 2006). On February 17, 

2006, FinCEN and the Federal bank regulatory 

agencies published a joint Federal Register notice 

seeking comment on proposed revisions to the SAR 

form. See 71 FR 8640. On April 26, 2007, FinCEN 

announced a delay in implementation of the revised 

SAR form until further notice. See 72 FR 23891. 

Until such time as a new SAR form is available that 

facilitates joint filing, institutions authorized to 

jointly file should follow FinCEN’s guidance to use 

the words ‘‘joint filing’’ in the narrative of the SAR 

and ensure that both institutions maintain a copy 

of the SAR and any supporting documentation (See, 

e.g., http://www.fincen.gov/statutes_regs/guidance/

html/guidance_faqs_sar_10042006.html). 

25 31 U.S.C. 5318(g)(2)(B). 

26See, 31 U.S.C. 5318(g)(2(B). 

27 Disclosure of underlying facts, transactions, 

and documents for compliance purposes to an 

entity outside of an institution’s corporate 

organizational structure may be warranted and 

would not be prohibited, provided that a SAR or 

information that would reveal the existence of a 

SAR was not disclosed. 

28At this time, we are also not expanding the 

2006 guidance on sharing with head offices and 

controlling companies to additional industries. The 

regulatory framework provided in the final rule, 

however, also would facilitate the potential 

expansion of this authority to those industries in 

the future. 

proposed, and clarifies the authority for 

all institutions with a SAR requirement 

to jointly file SARs with any other 

institution with a SAR requirement.24

The second illustrative example in the 

proposed rule was included only in the 

final SAR rules for depository 

institutions, securities broker-dealers, 

futures commission merchants, and 

introducing brokers in commodities, 

and provided that such underlying 

information may be disclosed in certain 

written employment references and 

termination notices as authorized by 

section 351 of the USA PATRIOT Act.25

One commenter suggested that this 

illustrative example should be placed in 

the SAR rules for all industries. The 

statutory authority for this provision, 

however, extends only to entities 

governed by either section 18(w) of the 

Federal Deposit Insurance Act or 

relevant rules of SROs registered with 

the SEC or the CFTC.26

One commenter asked FinCEN to 

allow the disclosure of SAR information 

to a party that has expressed interest in 

purchasing an institution. While 

FinCEN believes generally that such a 

disclosure is inconsistent with the 

purposes of the BSA, certain 

information, such as statistics or other 

underlying information that does not 

reveal the existence of a SAR, could be 

provided to such parties under the 

second rule of construction and could 

assist such purchasers with their due 

diligence obligations. 

Another commenter suggested that 

FinCEN include another illustrative 

example of the disclosure of underlying 

facts, transactions, and documents not 

prohibited by the confidentiality 

provision. Specifically, this commenter 

asked that we explicitly authorize such 

information to be disclosed within an 

institution’s corporate organizational 

structure for enterprise-wide risk 

management and the identification and 

reporting of suspicious activity. 

Provided that such information does not 

disclose a SAR or information that 

would reveal the existence of a SAR, 

FinCEN agrees that such disclosure of 

underlying information is not 

prohibited by the final rule or any 

previous SAR rules. Given the greater 

clarity provided by the phrase 

‘‘including but not limited to’’ discussed 

previously, and the unnecessarily 

limited universe of entities to whom an 

institution could disclose underlying 

information suggested by the 

commenter,27 FinCEN is reluctant to 

introduce the complex and potentially 

limiting concept of ‘‘corporate 

organizational structure’’ within this 

intentionally broad rule of construction. 

3. The Third Rule of Construction 

As proposed, the third rule of 

construction applied only to depository 

institutions, securities broker-dealers, 

mutual funds, futures commission 

merchants, and introducing brokers in 

commodities, and made clear that the 

prohibition against the disclosure of 

SAR information did not preclude the 

sharing by any of those financial 

institutions, or any director, officer, 

employee, or agent of those institutions, 

of a SAR or information that would 

reveal the existence of the SAR within 

the institution’s corporate 

organizational structure, for purposes 

that are consistent with Title II of the 

BSA, as determined by regulation or in 

guidance. This proposed rule of 

construction recognized that these 

financial institutions may find it 

necessary to share SAR information to 

fulfill reporting obligations under the 

BSA, and to facilitate more effective 

enterprise-wide BSA monitoring, 

reporting, and general risk-management. 

The term ‘‘share’’ used in this rule of 

construction was an acknowledgement 

that sharing within a corporate 

organization for purposes consistent 

with Title II of the BSA is 

distinguishable from a prohibited 

disclosure. 

FinCEN received substantial comment 

about the issue of SAR sharing, much of 

which is addressed in the separate 

notice of availability of guidance 

published in today’s Federal Register. 

In general, the comments requested an 

expansion of the sharing authorities 

with respect to both the parties 

permitted to share and the parties with 

whom SAR information could be 

shared. Most commenters provided a 

clear rationale for how expanded SAR 

sharing would benefit their institutions 

by increasing efficiency, cutting costs, 

and enhancing the detection and 

reporting of suspicious activity. Most 

commenters, however, failed to 

sufficiently address how they would 

mitigate effectively the risk of 

unauthorized disclosure of SAR 

information if the sharing authority was 

expanded to the extent requested. 

Multiple commenters requested the 

expansion of the SAR sharing authority 

to all industries that currently have a 

SAR requirement, not just to depository 

institutions and the securities and 

futures industries. However, these 

commenters failed to address the 

disparity in regulatory oversight 

between those industries with a primary 

Federal functional regulator (industries 

to whom the proposed rules granted the 

authority to share) and those without. 

Accordingly, FinCEN is taking a phased 

approach in the final rule to granting 

additional industries the ability to share 

within their corporate organizational 

structure. To allow for potential future 

expansion of the sharing guidance, we 

are including the third rule of 

construction in the final rule text for all 

industries. As discussed further in the 

notice of availability of guidance, 

however, we have not at this time 

included those industries without a 

primary Federal functional regulator in 

the guidance authorizing sharing with 

affiliates. This approach establishes the 

regulatory framework for those 

industries potentially to share SAR 

information within their corporate 

structure in the future, as prescribed by 

FinCEN in regulation or guidance, 

without necessarily requiring an 

amendment to the SAR confidentiality 

provision in each industry’s SAR 

rules.28

D. Disclosures by Government 

Authorities 

In the proposed rule, FinCEN 

included a regulatory prohibition in 

each industry’s SAR rule that created a 

prohibition against disclosure by all 

Federal, State, local, territorial, or Tribal 

government authorities, and any 

director, officer, employee, or agent of 

those authorities. The proposed rule 


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29See 31 U.S.C. 5318(g)(2)(A)(ii). 

30See, e.g., Giglio v. United States, 405 U.S. 150, 

153–54 (1972); Brady v. State of Maryland, 373 U.S. 

83, 86–87 (1963); Jencks v. United States, 353 U.S. 

657, 668 (1957). 

31For purposes of this rulemaking, ‘‘non-public 

information’’ refers to information that is exempt 

from disclosure under the Freedom of Information 

Act. 

tracked the statutory language 29 closely 

by clarifying that any officer or 

employee of the government may not 

disclose a SAR or information that 

would reveal the existence of the SAR, 

‘‘except as necessary to fulfill official 

duties consistent with Title II of the 

Bank Secrecy Act.’’ 

This standard would permit, for 

example, official disclosures responsive 

to a grand jury subpoena; a request from 

an appropriate Federal or State law 

enforcement or regulatory agency; a 

request from an appropriate 

Congressional committee or 

subcommittees; and prosecutorial 

disclosures mandated by statute or the 

Constitution, in connection with the 

statement of a government witness to be 

called at trial, the impeachment of a 

government witness, or as material 

exculpatory of a criminal defendant.30

This proposed interpretation of section 

5318(g)(2)(A)(ii) would ensure that SAR 

information will not be disclosed for a 

reason that is unrelated to the purposes 

of the BSA. For example, this standard 

would not permit the disclosure of SAR 

information to the media. 

The proposed rules also specifically 

provide that ‘‘official duties consistent 

with Title II of the BSA’’ shall not 

include the disclosure of SAR 

information in response to a request for 

disclosure of non-public information 31

or a request for use in a private legal 

proceeding, including a request 

pursuant to 31 CFR 1.11. The BSA 

exists, in part, to protect the public’s 

interest in an effective reporting system 

that benefits the nation by helping to 

assure that the U.S. financial system 

will not be used for criminal activity or 

to support terrorism. FinCEN believes 

that this purpose would be undermined 

by the disclosure of SAR information to 

a private litigant for use in a civil 

lawsuit for the reasons described earlier, 

including the reason that such 

disclosures could negatively impact full 

and candid reporting by financial 

institutions. 

FinCEN is adopting the text, as 

proposed, while clarifying that the rule 

should not be read to preclude intergovernmental sharing of SAR 

information. For example, while a 

FinCEN employee would be precluded 

under this provision from disclosing 

SAR information if requested by the 

press under the Freedom of Information 

Act, it would not necessarily be outside 

of the FinCEN employee’s official duties 

to provide that information to another 

government agency. 

E. Disclosures by Self-Regulatory 

Organizations 

In the proposed rules governing 

entities which may be examined for 

compliance with their SAR 

requirements by an SRO, FinCEN 

included a provision regarding 

disclosures by SROs that closely 

paralleled the provision regarding 

government disclosures. The language 

differed, however, to reflect the fact that 

self-regulatory organizations are not 

governmental entities. One commenter 

suggested that because SROs are not 

governmental entities but rather are 

subject to oversight by the SEC and 

CFTC, they cannot possess ‘‘official 

duties’’ in the same capacity as a 

government representative. Another 

comment submitted by an SRO 

requested that FinCEN expand, rather 

than limit, an SRO’s authority to use 

and disclose SARs for all self-regulatory 

purposes. While FinCEN agrees that 

SROs are not government agencies, 

FinCEN believes it is not necessary to 

define the extent to which SROs possess 

‘‘official duties’’ under 31 U.S.C. 

5318(g)(2)(A)(ii) at this time. Instead, 

FinCEN has modified the language of 

the final rule text to comport with 

language from the first rule of 

construction by stating that SROs ‘‘shall 

not disclose * * * except as necessary 

to fulfill self-regulatory duties upon the 

request of [the Federal agency 

responsible for its oversight], in a 

manner consistent with title II of the 

BSA.’’ 

For consistency, we also are removing 

‘‘official duties’’ from the subsequent 

sentences in the final rule (regarding the 

appropriate SRO response to requests 

for use in a private legal proceeding or 

for disclosure of non-public 

information) and using the same 

replacement language. 

F. Limitation on Liability 

In Section 351 of the USA PATRIOT 

Act, Congress amended section 

5318(g)(3) to clarify that the scope of the 

safe harbor provision also includes the 

voluntary disclosure of possible 

violations of law and regulations to a 

government agency, and to expand the 

scope of the limit on liability to include 

any liability which may exist ‘‘under 

any contract or other legally enforceable 

agreement (including any arbitration 

agreement).’’ FinCEN tracked more 

closely the statutory language in the 

proposed rules, particularly by stating 

that the safe harbor applies to 

‘‘disclosures’’ (and not ‘‘reports’’ as in 

some previous rulemakings) made by 

institutions. 

Additionally, to comport with the 

authorization to jointly file SARs in the 

second rule of construction, FinCEN 

clarified that the safe harbor also applies 

to ‘‘a disclosure made jointly with 

another institution.’’ This concept exists 

currently in those SAR rules where joint 

filing had been explicitly referenced, 

but has been revised to track more 

closely the statutory language. It was 

also inserted for the sake of consistency 

into those SAR rules where it had been 

absent previously, clarifying that all 

parties to a joint filing, and not simply 

the party that provides the form to 

FinCEN, fall within the scope of the safe 

harbor. 

For consistency, FinCEN also 

separated the provision for 

confidentiality of reports and limitation 

of liability into two separate provisions 

in those rules for industries which 

previously contained both provisions 

under the single heading 

‘‘confidentiality of reports; limitation of 

liability.’’ 

All comments received about the safe 

harbor provision encouraged making the 

provision as strong as possible. One 

commenter identified the statutory 

phrase, ‘‘to any person,’’ that was not 

included in the proposed rules, and 

which FinCEN believes would 

strengthen the safe harbor provided by 

the final rule. The commenter correctly 

pointed out that the statutory safe 

harbor provision protects persons from 

liability not only to the person involved 

in the transaction, but also to any other 

person. Accordingly the final rule is 

being amended to insert the phrase 

‘‘shall be protected from liability to any 

person, for any such disclosure * * *’’ 

and is otherwise being adopted as 

proposed, without change. 

Another commenter requested that 

FinCEN expressly grant safe harbor to 

an institution that makes a 

determination not to file a SAR after 

investigating potentially suspicious 

activity. The statutory safe harbor 

provision, however, is clearly intended 

to protect persons involved in the filing 

of a voluntary or required SAR from 

civil liability only for filing the SAR and 

for refusing to provide notice of such 

filing. FinCEN cannot provide 

additional protection from liability for 

other actions. 

G. Compliance 

In the proposed rule, FinCEN 

streamlined the compliance provision 

by providing only that (1) FinCEN or its 


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32 In the case of the SEC and the CFTC, that 

authority may be further delegated to SROs. 

33 Identical section in separate SAR rules had 

been titled ‘‘Compliance’’ or ‘‘Examination and 

Enforcement’’ prior to the proposed rule. 

34See the earlier preamble discussion of ‘‘civil 

enforcement authorities’’ under the first rule of 

construction, including the ability of a regulator to 

obtain supporting documentation from FinCEN or 

the supervisor of an institution in cases where its 

own authorities are limited. 

35Specifically, we note that in both the mutual 

fund SAR rule adopting release (71 FR 26213) and 

the October 2006 guidance, (http://www.fincen.gov/ 

statutes_regs/guidance/pdf/guidance_faqs

_sar_10042006.pdf), FinCEN acknowledged the role 

of transfer agents and other service providers and 

their access to SAR information in the context of 

the suspicious activity monitoring, detection, and 

reporting obligations of mutual funds. These service 

providers may be unaffiliated or affiliated with the 

mutual funds. The October 2006 guidance and 

adopting release clarified that a mutual fund may 

contractually delegate its SAR functions to such an 

agent, although the mutual fund remains 

responsible for assuring compliance with the rule, 

and therefore must monitor actively the 

performance of its reporting obligations. In those 

same documents, FinCEN acknowledged the role of 

an investment adviser that controls a mutual fund 

and its access to SAR information in the context of 

enterprise-wide risk management and compliance 

functions. 

36An agent and principal should only disclose 

SAR information with respect to transactions 

common to both parties. For example, an 

independent currency exchanger may not disclose 

suspicious activity regarding currency exchange to 

its principal MSB for money transmission, unless 

there is a nexus between the currency exchange and 

money transmission activity. Additionally, FinCEN 

has not authorized at this time the sharing of SAR 

information between multiple agents of the same 

principal MSB. 

37See Suspicious Activity Report Supporting 

Documentation. June 13, 2007. http:// 

www.fincen.gov/statutes_regs/guidance/html/

Supporting_Documentation_Guidance.html. 

delegatees 32 may examine the 

institution for compliance with the SAR 

requirement; (2) that a failure to satisfy 

the requirements of the SAR rule may 

constitute a violation of the BSA or BSA 

regulations; and (3) for depository 

institutions with parallel Title 12 SAR 

requirements, that failure to comply 

with FinCEN’s SAR requirement may 

also constitute a violation of the parallel 

Title 12 rules. For consistency, the 

proposed rules also used only the 

heading ‘‘Compliance’’ for this provision 

in each of the SAR rules.33 In the 

absence of any comments objecting to 

any of the proposed changes to the 

Compliance provision, FinCEN is 

adopting them as proposed, without 

change, in the final rule. 

H. Technical Corrections and 

Harmonization 

In addition to the changes described 

above in the Section-by-Section 

analysis, the final rule incorporates the 

proposed technical corrections to 

harmonize, where appropriate, each of 

FinCEN’s seven SAR rules with each 

other and with those being issued by 

some of the Federal bank regulatory 

agencies. FinCEN believes that such 

efforts will simplify compliance with 

SAR reporting requirements. 

In the final rule for each industry, 

FinCEN is making one such change that 

had not been proposed. FinCEN is 

amending the paragraph entitled 

‘‘retention of records’’ so that the 

standard for the disclosure of a SAR’s 

supporting documentation to 

appropriate governmental authorities 

comports with the standard found in the 

first rule of construction. Because the 

supporting documentation is deemed to 

have been filed with the SAR but kept 

in custody by the financial institution, 

this change is necessary to ensure that 

all types of SAR information are subject 

to the same standard of confidentiality. 

This comporting change is consistent 

with the substance of the proposed rule 

text, as addressed through public 

comment. 

For the mutual fund SAR rule only, 

this comporting change results in 

striking language regarding supporting 

documentation for a SAR jointly filed 

with a broker-dealer in securities being 

made available by the mutual fund to 

the SRO of the broker-dealer. This 

change is consistent with FinCEN’s 

treatment elsewhere in the final rule of 

regulatory authorities’ ability to request 

SAR information from entities they do 

not regulate.34

V. Other Issues 

A. Requests for Guidance 

One commenter requested additional 

guidance from FinCEN regarding 

additional situations under which a 

SAR could be disclosed, but did not 

provide any examples of the ‘‘unclear 

and vague’’ issues that remained. It is 

FinCEN’s intent, and one of the 

underlying motivations for this 

rulemaking, that the rules of 

construction, as finalized, constitute 

clearly all of the circumstances under 

which an institution may disclose SAR 

information to, or share SAR 

information with, a third party. 

Additional commenters requested 

guidance regarding the appropriate use 

of SARs by agents of financial 

institutions. Examples of such agents 

suggested by one commenter included 

independent auditors or other 

contracted service providers 

(information technology, legal counsel, 

etc.). Another commenter requested 

similar clarification regarding the use of 

SAR information by transfer agents or 

other third party service providers in 

the context of mutual funds. FinCEN 

reiterates from the notices that nothing 

in the final rule or accompanying 

guidance supersedes any of FinCEN’s 

previous written guidance or the 

adopting release for the mutual fund 

SAR rule.35

FinCEN also recognizes, particularly 

in the context of the money services 

business (‘‘MSB’’) industry, potential 

concerns regarding confidentiality and 

the principal-agent relationship when 

both parties are subject to a SAR rule. 

Nothing in the final rule is intended to 

preclude the disclosure of SAR 

information within the United States 

between an agent-MSB and its 

principal-MSB.36

FinCEN is considering additional 

guidance on each of these matters. Until 

such guidance is issued, however, 

FinCEN reminds institutions of their 

ultimate responsibility to protect, 

through reasonable controls or 

agreements with such agents, the 

confidentiality of a SAR, or any 

information that would reveal the 

existence of a SAR, as prescribed in the 

final rule. 

B. Comments Outside the Scope of This 

Rulemaking 

FinCEN received multiple comments 

making suggestions relevant to, but 

outside the scope of, this final rule. One 

commenter, for example, requested that 

FinCEN grant greater electronic access 

of all BSA data to certain SROs. 

Similarly, one government agency 

requested an expansion of the universe 

of BSA data available to them 

electronically. Prior to the issuance of 

the proposed rules, FinCEN was 

considering each of these issues in a 

context other than within this 

rulemaking. FinCEN will continue such 

efforts apart from this rulemaking. 

Another commenter’s suggestion for 

FinCEN-issued guidance regarding what 

constitutes ‘‘supporting documentation’’ 

of a SAR also had been addressed 

outside this rulemaking.37

Finally, one commenter from a large 

trade organization stated that the 

organization interpreted the proposals 

to have authorized international 

outsourcing of compliance functions 

related to suspicious activity reporting. 

FinCEN was intentionally silent on the 

issue in the proposed rules, and has 

been studying the issue while 

considering additional future guidance 

with respect to outsourcing. Like the 

proposed rules, this final rulemaking 

takes no position on the matter. 

VI. Location in Chapter X 

As discussed in Federal Register 

Notice, 75 FR 65806, October 26, 2010, 

FinCEN will be removing Part 103 of 


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Chapter I of Title 31, Code of Federal 

Regulations, and adding Parts 1000 to 

1099 (Chapter X) effective March 1, 

2011. Per that final rule, the changes in 

the present rule will be reorganized 

according to Chapter X within a 

separate technical amendment to 

Chapter X in advance of the March 1, 

2011 effective date. The upcoming 

reorganization will have no substantive 

effect on the regulatory changes herein. 

The regulatory changes of this specific 

rulemaking would be renumbered 

according to Chapter X as follows: 

• § 103.15 would be moved to 

§ 1024.320; 

• § 103.16 would be moved to 

§ 1025.320; 

• § 103.17 would be moved to 

§ 1026.320; 

• § 103.18 would be moved to 

§ 1020.320; 

• § 103.19 would be moved to 

§ 1023.320; 

• § 103.20 would be moved to 

§ 1022.320; and 

• § 103.21 would be moved to 

§ 1021.320. 

VII. Regulatory Matters 

A. Executive Order 12866 

The final rule is a significant 

regulatory action for purposes of 

Executive Order 12866. 

B. Paperwork Reduction Act Notices 

The final rule does not contain any 

‘‘collections of information’’ as defined 

in the Paperwork Reduction Act of 1995 

(44 U.S.C. 3506; 5 CFR 1320, Appendix 

A.1). 

C. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), FinCEN 

certifies that this final regulation will 

not have a significant economic impact 

on a substantial number of small 

entities. The regulatory changes in this 

rulemaking affect only the disclosure 

provisions of the current rules relating 

to the reporting of suspicious activity by 

financial institutions, and do not change 

any requirement to file or maintain a 

report. In the context of disclosure, the 

rulemaking clarifies, rather than adding 

to, existing regulatory provisions 

regarding the confidentiality of 

suspicious activity reports. FinCEN 

therefore expects little or no economic 

impact to result from the final rule. 

Accordingly, a regulatory flexibility 

analysis is not required. 

D. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4 (2 U.S.C. 1532) (Unfunded 

Mandates Act), requires that an agency 

prepare a budgetary impact statement 

before promulgating any rule likely to 

result in a Federal mandate that may 

result in the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The current inflation-adjusted 

expenditure threshold is $133 million. If 

a budgetary impact statement is 

required, § 205 of the Unfunded 

Mandates Act also requires an agency to 

identify and consider a reasonable 

number of regulatory alternatives before 

promulgating a rule. 

FinCEN has determined that the 

proposed rules will not result in 

expenditures by State, local, and Tribal 

governments, or by the private sector, of 

$133 million or more in any one year. 

Accordingly, this proposal is not subject 

to section 202 of the Unfunded 

Mandates Act. 

List of Subjects in 31 CFR Part 103 

Administrative practice and 

procedure, Authority delegations 

(government agencies), Crime, Currency, 

Investigations, Law enforcement, 

Reporting and recordkeeping 

requirements, Security measures. 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, 31 CFR Part 103 is amended 

as follows: 

PART 103—FINANCIAL 

RECORDKEEPING AND REPORTING 

OF CURRENCY AND FOREIGN 

TRANSACTIONS 

■ 1. The authority citation for part 103 

continues to read as follows: 

Authority: 12 U.S.C. 1829b and 1951–1959; 

31 U.S.C. 5311–5314 and 5316–5332; title III, 

sec. 314 Pub. L. 107–56, 115 Stat. 307. 

■ 2. Section 103.15 is amended by: 

■ a. Revising the last sentence of 

paragraph (c); and 

■ b. Revising paragraphs (d), (e), and (f), 

to read as follows: 

§ 103.15 Reports by mutual funds of 

suspicious transactions. 

* * * * * 

(c) * * * The mutual fund shall make 

all supporting documentation available 

to FinCEN or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

mutual fund for compliance with the 

Bank Secrecy Act, upon request.. 

(d) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (d). For 

purposes of this paragraph (d) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

mutual funds. (i) General rule. No 

mutual fund, and no director, officer, 

employee, or agent of any mutual fund, 

shall disclose a SAR or any information 

that would reveal the existence of a 

SAR. Any mutual fund, and any 

director, officer, employee, or agent of 

any mutual fund that is subpoenaed or 

otherwise requested to disclose a SAR 

or any information that would reveal the 

existence of a SAR, shall decline to 

produce the SAR or such information, 

citing this section and 31 U.S.C. 

5318(g)(2)(A)(i), and shall notify 

FinCEN of any such request and the 

response thereto. 

(ii) Rules of construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (d)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a mutual fund, 

or any director, officer, employee, or 

agent of a mutual fund, of: 

(1) 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 

regulatory authority that examines the 

mutual fund for compliance with the 

Bank Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures to another financial 

institution, or any director, officer, 

employee, or agent of a financial 

institution, for the preparation of a joint 

SAR; or 

(B) The sharing by a mutual fund, or 

any director, officer, employee, or agent 

of the mutual fund, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the mutual 

fund’s corporate organizational 

structure for purposes consistent with 

Title II of the Bank Secrecy Act as 

determined by regulation or in 

guidance. 

(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. 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 


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response to a request for disclosure of 

non-public information or a request for 

use in a private legal proceeding, 

including a request pursuant to 31 CFR 

1.11. 

(e) Limitation on liability. A mutual 

fund, and any director, officer, 

employee, or agent of any mutual fund, 

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 to any person 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). 

(f) Compliance. Mutual funds 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. 

* * * * * 

■ 3. Section 103.16 is amended by: 

■ a. Revising the last sentence of 

paragraph (e); 

■ b. Revising paragraph (f); 

■ c. Redesignating paragraphs (g) 

through (i) as paragraphs (h) through (j); 

■ d. Adding new paragraph (g); and 

■ e. Revising newly designated 

paragraph (h), to read as follows: 

§ 103.16 Reports by insurance companies 

of suspicious transactions. 

* * * * * 

(e) * * * An insurance company shall 

make all supporting documentation 

available to FinCEN or any Federal, 

State, or local law enforcement agency, 

or any Federal regulatory authority that 

examines the insurance company for 

compliance with the Bank Secrecy Act, 

or any State regulatory authority 

administering a State law that requires 

the insurance company to comply with 

the Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the institution complies with the 

Bank Secrecy Act, upon request. 

(f) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (f). For 

purposes of this paragraph (f) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

insurance companies. (i) General rule. 

No insurance company, and no director, 

officer, employee, or agent of any 

insurance company, shall disclose a 

SAR or any information that would 

reveal the existence of a SAR. Any 

insurance company, and any director, 

officer, employee, or agent of any 

insurance company that is subpoenaed 

or otherwise requested to disclose a 

SAR or any information that would 

reveal the existence of a SAR, shall 

decline to produce the SAR or such 

information, citing this section and 31 

U.S.C. 5318(g)(2)(A)(i), and shall notify 

FinCEN of any such request and the 

response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (f)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by an insurance 

company, or any director, officer, 

employee, or agent of an insurance 

company, of: 

(1) 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 

regulatory authority that examines the 

insurance company for compliance with 

the Bank Secrecy Act, or any State 

regulatory authority administering a 

State law that requires the insurance 

company to comply with the Bank 

Secrecy Act or otherwise authorizes the 

State authority to ensure that the 

institution complies with the Bank 

Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures to another financial 

institution, or any director, officer, 

employee, or agent of a financial 

institution, for the preparation of a joint 

SAR. 

(B) The sharing by an insurance 

company, or any director, officer, 

employee, or agent of the insurance 

company, of a SAR, or any information 

that would reveal the existence of a 

SAR, within the insurance company’s 

corporate organizational structure for 

purposes consistent with Title II of the 

Bank Secrecy Act as determined by 

regulation or in guidance. 

(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. 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 a request for 

use in a private legal proceeding, 

including a request pursuant to 31 CFR 

1.11. 

(g) Limitation on liability. An 

insurance company, and any director, 

officer, employee, or agent of any 

insurance company, 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 to any person 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). 

(h) Compliance. Insurance companies 

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. 

* * * * * 

■ 4. Section 103.17 is amended by 

revising the last sentence in paragraph 

(d), and all of paragraphs (e), (f), and (g) 

to read as follows: 

§ 103.17 Reports by futures commission 

merchants and introducing brokers in 

commodities of suspicious transactions. 

* * * * * 

(d) * * * An FCM or IB–C shall make 

all supporting documentation available 

to FinCEN or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

FCM or IB–C for compliance with the 

BSA, upon request; or to any registered 

futures association or registered entity 

(as defined in the Commodity Exchange 

Act, 7 U.S.C. 21 and 7 U.S.C. 1(a)(29)) 

(collectively, a self-regulatory 

organization (‘‘SRO’’)) that examines the 

FCM or IB–C for compliance with the 

requirements of this section, upon the 

request of the Commodity Futures 

Trading Commission. 

(e) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (e). For 

purposes of this paragraph (e) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

futures commission merchants and 

introducing brokers in commodities. (i) 

General rule. No FCM or IB–C, and no 

director, officer, employee, or agent of 


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any FCM or IB–C, shall disclose a SAR 

or any information that would reveal the 

existence of a SAR. Any FCM or IB–C, 

and any director, officer, employee, or 

agent of any FCM or IB–C that is 

subpoenaed or otherwise requested to 

disclose a SAR or any information that 

would reveal the existence of a SAR, 

shall decline to produce the SAR or 

such information, citing this section and 

31 U.S.C. 5318(g)(2)(A)(i), and shall 

notify FinCEN of any such request and 

the response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (e)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by an FCM or IB– 

C, or any director, officer, employee, or 

agent of an FCM or IB–C, of: 

(1) 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 

regulatory authority that examines the 

FCM or IB–C for compliance with the 

BSA; or to any SRO that examines the 

FCM or IB–C for compliance with the 

requirements of this section, upon the 

request of the Commodity Futures 

Trading Commission; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures: 

(i) To another financial institution, or 

any director, officer, employee, or agent 

of a financial institution, for the 

preparation of a joint SAR; or 

(ii) In connection with certain 

employment references or termination 

notices, to the full extent authorized in 

31 U.S.C. 5318(g)(2)(B); or 

(B) The sharing by an FCM or IB–C, 

or any director, officer, employee, or 

agent of the FCM or IB–C, of a SAR, or 

any information that would reveal the 

existence of a SAR, within the FCM’s or 

IB–C’s corporate organizational 

structure for purposes consistent with 

Title II of the BSA as determined by 

regulation or in guidance. 

(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 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 a request for use in a 

private legal proceeding, including a 

request pursuant to 31 CFR 1.11. 

(3) Prohibition on disclosures by SelfRegulatory Organizations. Any selfregulatory organization registered with 

or designated by the Commodity 

Futures Trading Commission, 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 self-regulatory duties 

upon the request of the Commodity 

Futures Trading Commission, in a 

manner consistent with Title II of the 

BSA. For purposes of this section, ‘‘selfregulatory 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 

a request for use in a private legal 

proceeding. 

(f) Limitation on liability. An FCM or 

IB–C, and any director, officer, 

employee, or agent of any FCM or IB– 

C, 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 to any person 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. FCMs or IB–Cs 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. 

* * * * * 

■ 5. Section 103.18 is amended by: 

■ a. Revising the last sentence of 

paragraph (d); and 

■ b. Revising paragraphs (e) and (f); and 

■ c. Adding new paragraph (g), to read 

as follows: 

§ 103.18 Reports by banks of suspicious 

transactions. 

* * * * * 

(d) * * * A bank shall make all 

supporting documentation available to 

FinCEN or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

bank for compliance with the Bank 

Secrecy Act, or any State regulatory 

authority administering a State law that 

requires the bank to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the institution complies with the 

Bank Secrecy Act, upon request. 

(e) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (e). For 

purposes of this paragraph (e) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

banks. (i) General rule. No bank, and no 

director, officer, employee, or agent of 

any bank, shall disclose a SAR or any 

information that would reveal the 

existence of a SAR. Any bank, and any 

director, officer, employee, or agent of 

any bank that is subpoenaed or 

otherwise requested to disclose a SAR 

or any information that would reveal the 

existence of a SAR, shall decline to 

produce the SAR or such information, 

citing this section and 31 U.S.C. 

5318(g)(2)(A)(i), and shall notify 

FinCEN of any such request and the 

response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (e)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a bank, or any 

director, officer, employee, or agent of a 

bank, of: 

(1) 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 

regulatory authority that examines the 

bank for compliance with the Bank 

Secrecy Act, or any State regulatory 

authority administering a State law that 

requires the bank to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the bank complies with the Bank 

Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures: 

(i) To another financial institution, or 

any director, officer, employee, or agent 

of a financial institution, for the 

preparation of a joint SAR; or 

(ii) In connection with certain 

employment references or termination 

notices, to the full extent authorized in 

31 U.S.C. 5318(g)(2)(B); or 

(B) The sharing by a bank, or any 

director, officer, employee, or agent of 

the bank, of a SAR, or any information 

that would reveal the existence of a 

SAR, within the bank’s corporate 

organizational structure for purposes 

consistent with Title II of the Bank 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75605 

Secrecy Act as determined by regulation 

or in guidance. 

(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. 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 a request for 

use in a private legal proceeding, 

including a request pursuant to 31 CFR 

1.11. 

(f) Limitation on liability. A bank, and 

any director, officer, employee, or agent 

of any bank, 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 to any person 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. Banks 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. Such 

failure may also violate provisions of 

Title 12 of the Code of Federal 

Regulations. 

■ 6. Section 103.19 is amended by 

revising the last sentence in paragraph 

(d), and all of paragraphs (e), (f), and (g) 

to read as follows: 

§ 103.19 Reports by brokers or dealers in 

securities of suspicious transactions. 

* * * * * 

(d) * * * A broker-dealer shall make 

all supporting documentation available 

to FinCEN or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

broker-dealer for compliance with the 

Bank Secrecy Act, upon request; or to 

any SRO that examines the brokerdealer for compliance with the 

requirements of this section, upon the 

request of the Securities and Exchange 

Commission. 

(e) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (e). For 

purposes of this paragraph (e) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

brokers or dealers in securities. (i) 

General rule. No broker-dealer, and no 

director, officer, employee, or agent of 

any broker-dealer, shall disclose a SAR 

or any information that would reveal the 

existence of a SAR. Any broker-dealer, 

and any director, officer, employee, or 

agent of any broker-dealer that is 

subpoenaed or otherwise requested to 

disclose a SAR or any information that 

would reveal the existence of a SAR, 

shall decline to produce the SAR or 

such information, citing this section and 

31 U.S.C. 5318(g)(2)(A)(i), and shall 

notify FinCEN of any such request and 

the response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (e)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a broker-dealer, 

or any director, officer, employee, or 

agent of a broker-dealer, of: 

(1) 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 

regulatory authority that examines the 

broker-dealer for compliance with the 

Bank Secrecy Act; or to any SRO that 

examines the broker-dealer for 

compliance with the requirements of 

this section, upon the request of the 

Securities Exchange Commission; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures: 

(i) To another financial institution, or 

any director, officer, employee, or agent 

of a financial institution, for the 

preparation of a joint SAR; or 

(ii) In connection with certain 

employment references or termination 

notices, to the full extent authorized in 

31 U.S.C. 5318(g)(2)(B); or 

(B) The sharing by a broker-dealer, or 

any director, officer, employee, or agent 

of the broker-dealer, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the brokerdealer’s corporate organizational 

structure for purposes consistent with 

Title II of the Bank Secrecy Act as 

determined by regulation or in 

guidance. 

(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. 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 a request for 

use in a private legal proceeding, 

including a request pursuant to 31 CFR 

1.11. 

(3) Prohibition on disclosures by SelfRegulatory Organizations. Any selfregulatory organization registered with 

the Securities and Exchange 

Commission, 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 self-regulatory duties with the 

consent of the Securities Exchange 

Commission, in a manner consistent 

with Title II of the Bank Secrecy Act. 

For purposes of this section, ‘‘selfregulatory 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 

a request for use in a private legal 

proceeding. 

(f) Limitation on liability. A brokerdealer, and any director, officer, 

employee, or agent of any broker-dealer, 

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 to any person 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. Broker-dealers 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. 

* * * * * 

■ 7. Section 103.20 is amended by: 

■ a. Revising the last sentence of 

paragraph (c); 

■ b. Revising paragraph (d); 

■ c. Redesignating paragraphs (e) and (f) 

as paragraphs (f) and (g); 

■ d. Adding new paragraph (e); and 

■ e. Revising newly designated 

paragraph (f), to read as follows: 


emcdonald on DSK2BSOYB1PROD with RULES2
75606 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

§ 103.20 Reports by money services 

businesses of suspicious transactions. 

* * * * * 

(c) * * * A money services business 

shall make all supporting 

documentation available to FinCEN or 

any Federal, State, or local law 

enforcement agency, or any Federal 

regulatory authority that examines the 

money services business for compliance 

with the Bank Secrecy Act, or any State 

regulatory authority administering a 

State law that requires the money 

services business to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the money services business 

complies with the Bank Secrecy Act. 

(d) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (d). For 

purposes of this paragraph (d) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

money services businesses. (i) General 

rule. No money services business, and 

no director, officer, employee, or agent 

of any money services business, shall 

disclose a SAR or any information that 

would reveal the existence of a SAR. 

Any money services business, and any 

director, officer, employee, or agent of 

any money services business that is 

subpoenaed or otherwise requested to 

disclose a SAR or any information that 

would reveal the existence of a SAR, 

shall decline to produce the SAR or 

such information, citing this section and 

31 U.S.C. 5318(g)(2)(A)(i), and shall 

notify FinCEN of any such request and 

the response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (d)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a money 

services business, or any director, 

officer, employee, or agent of a money 

services business, of: 

(1) 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 

regulatory authority that examines the 

money services business for compliance 

with the Bank Secrecy Act, or any State 

regulatory authority administering a 

State law that requires the money 

services business to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the money services business 

complies with the Bank Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures to another financial 

institution, or any director, officer, 

employee, or agent of a financial 

institution, for the preparation of a joint 

SAR. 

(B) The sharing by a money services 

business, or any director, officer, 

employee, or agent of the money 

services business, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the money 

services business’s corporate 

organizational structure for purposes 

consistent with Title II of the Bank 

Secrecy Act as determined by regulation 

or in guidance. 

(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. 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 a request for 

use in a private legal proceeding, 

including a request pursuant to 31 CFR 

1.11. 

(e) Limitation on liability. A money 

services business, and any director, 

officer, employee, or agent of any money 

services business, 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 to any person 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). 

(f) Compliance. Money services 

businesses 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. 

* * * * * 

■ 8. Section 103.21 is amended by: 

■ a. Revising the last sentence of 

paragraph (d); 

■ b. Revising paragraph (e); 

■ c. Redesignating paragraphs (f) and (g) 

as paragraphs (g) and (h); 

■ d. Adding new paragraph (f); and 

■ e. Revising newly designated 

paragraph (g). 

§ 103.21 Reports by casinos of suspicious 

transactions. 

* * * * * 

(d) * * * A casino shall make all 

supporting documentation available to 

FinCEN or any Federal, State, or local 

law enforcement agency, or any Federal 

regulatory authority that examines the 

casino for compliance with the Bank 

Secrecy Act, or any State regulatory 

authority administering a State law that 

requires the casino to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the casino complies with the Bank 

Secrecy Act, or any Tribal regulatory 

authority administering a Tribal law 

that requires the casino to comply with 

the Bank Secrecy Act or otherwise 

authorizes the Tribal regulatory 

authority to ensure that the casino 

complies with the Bank Secrecy Act, 

upon request. 

(e) Confidentiality of SARs. A SAR, 

and any information that would reveal 

the existence of a SAR, are confidential 

and shall not be disclosed except as 

authorized in this paragraph (e). For 

purposes of this paragraph (e) only, a 

SAR shall include any suspicious 

activity report filed with FinCEN 

pursuant to any regulation in this part. 

(1) Prohibition on disclosures by 

casinos. (i) General rule. No casino, and 

no director, officer, employee, or agent 

of any casino, shall disclose a SAR or 

any information that would reveal the 

existence of a SAR. Any casino, and any 

director, officer, employee, or agent of 

any casino that is subpoenaed or 

otherwise requested to disclose a SAR 

or any information that would reveal the 

existence of a SAR, shall decline to 

produce the SAR or such information, 

citing this section and 31 U.S.C. 

5318(g)(2)(A)(i), and shall notify 

FinCEN of any such request and the 

response thereto. 

(ii) Rules of Construction. Provided 

that no person involved in any reported 

suspicious transaction is notified that 

the transaction has been reported, this 

paragraph (e)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a casino, or any 

director, officer, employee, or agent of a 

casino, of: 

(1) 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 

regulatory authority that examines the 

casino for compliance with the Bank 

Secrecy Act, or any State regulatory 

authority administering a State law that 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75607 

1FinCEN has implemented regulations for 

suspicious activity reporting at 31 CFR 103.15 (for 

mutual funds); 31 CFR 103.16 (for insurance 

companies); 31 CFR 103.17 (for futures commission 

merchants and introducing brokers in 

commodities); 31 CFR 103.18 (for banks); 31 CFR 

103.19 (for broker-dealers in securities); 31 CFR 

103.20 (for money services businesses); 31 CFR 

103.21 (for casinos). 

2The Annunzio-Wylie Anti-Money Laundering 

Act of 1992 (the Annunzio-Wylie Act), amended the 

BSA and authorized the Secretary of the Treasury 

to require financial institutions to report suspicious 

transactions relevant to a possible violation of law 

or regulation. See Public Law 102–550, Title XV, 

§ 1517(b), 106 Stat. 4055, 4058–9 (1992); 31 U.S.C. 

5318(g)(1). 

3FinCEN’s SAR rules include 31 CFR 103.15 (for 

mutual funds); 31 CFR 103.16 (for insurance 

companies); 31 CFR 103.17 (for futures commission 

merchants and introducing brokers in 

commodities); 31 CFR 103.18 (for banks); 31 CFR 

103.19 (for broker-dealers in securities); 31 CFR 

103.20 (for money services businesses); 31 CFR 

103.21 (for casinos). 

requires the casino to comply with the 

Bank Secrecy Act or otherwise 

authorizes the State authority to ensure 

that the casino complies with the Bank 

Secrecy Act, or any Tribal regulatory 

authority administering a Tribal law 

that requires the casino to comply with 

the Bank Secrecy Act or otherwise 

authorizes the Tribal regulatory 

authority to ensure that casino complies 

with the Bank Secrecy Act; or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including but not limited to, 

disclosures to another financial 

institution, or any director, officer, 

employee, or agent of a financial 

institution, for the preparation of a joint 

SAR. 

(B) The sharing by a casino, or any 

director, officer, employee, or agent of 

the casino, of a SAR, or any information 

that would reveal the existence of a 

SAR, within the casino’s corporate 

organizational structure for purposes 

consistent with Title II of the Bank 

Secrecy Act as determined by regulation 

or in guidance. 

(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 a request for 

use in a private legal proceeding, 

including a request pursuant to 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 to any person 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: November 22, 2010. 

James H. Freis, Jr., 

Director, Financial Crimes Enforcement 

Network. 

[FR Doc. 2010–29869 Filed 12–2–10; 8:45 am] 

BILLING CODE 4810–02–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 103 

[Docket Number: Treas-FinCEN–2008–0022] 

Notice of Availability of Final 

Interpretative Guidance—Sharing 

Suspicious Activity Reports by 

Depository Institutions and Securities 

Broker-Dealers, Mutual Funds, Futures 

Commission Merchants, or Introducing 

Brokers in Commodities With Certain 

U.S. Affiliates 

AGENCY: Financial Crimes Enforcement 

Network (‘‘FinCEN’’), Treasury. 

ACTION: Interpretive guidance. 

SUMMARY: By this notice, FinCEN 

announces the availability of two 

related pieces of guidance that apply to 

depository institutions and to securities 

broker-dealers, mutual funds, futures 

commission merchants, and introducing 

brokers in commodities (collectively 

referred to as ‘‘final guidance’’) 

interpreting the final rule published 

elsewhere in this part of today’s Federal 

Register. Among other things, the final 

rule clarifies 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’’) by stating that 

the confidentiality provision does not 

apply when a depository institution, 

securities broker-dealer, mutual fund, 

futures commission merchant, or 

introducing broker in commodities 

(hereafter, ‘‘an authorized institution’’) 

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 final guidance interprets 

this provision to permit an authorized 

institution to share a SAR, or 

information that would reveal the 

existence of a SAR (collectively, ‘‘SAR 

information’’), with certain affiliates. 

DATES: This final guidance is effective 

January 3, 2011. 

ADDRESSES: The final guidance is 

available in the U.S. Government’s 

electronic docket site at http:// 

www.regulations.gov under the under 

docket number TREAS–2008–0022 and 

on FinCEN’s Web site at http:// 

www.fincen.gov. 

FOR FURTHER INFORMATION CONTACT: 

FinCEN’s Regulatory Helpline, (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 

counter-intelligence activities to protect 

against international terrorism. In 

particular, the BSA and its 

implementing regulations require 

financial institutions in certain 

industries 1 to file a SAR when they 

detect a known or suspected violation of 

Federal law or regulation, or a 

suspicious activity related to money 

laundering, terrorist financing, or other 

criminal activity.2

II. The Notice of Proposed Guidance 

and Related Actions 

On March 9, 2009, FinCEN published 

in the Federal Register a notice of 

proposed rulemaking (‘‘the proposed 

rule’’) and two separate notices and 

requests for comment on proposed 

guidance (‘‘the proposed guidance’’) 

(collectively, ‘‘the notices’’). In the 

proposed rule, FinCEN proposed 

amendments to each of FinCEN’s SAR 

rules 3 to include key changes that 

would, among other things, clarify the 

scope of the statutory prohibition 

against the disclosure by a financial 

institution of a SAR. 


emcdonald on DSK2BSOYB1PROD with RULES2