Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75583 

statutory prohibition against the 

disclosure by financial institutions and 

by the government of SAR information 

and clarifies the scope of the safe harbor 

from liability for institutions that report 

suspicious activities. Therefore, 

pursuant to section 605(b) of the RFA, 

the OCC hereby certifies that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. Accordingly, a 

regulatory flexibility analysis is not 

needed. 

Paperwork Reduction Act 

We have reviewed the final rule in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3506; 

5 CFR 1320, Appendix A.1) (PRA) and 

have determined that it does not contain 

any ‘‘collections of information’’ as 

defined by the PRA. 

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. 

If a budgetary impact statement is 

required, section 205 of the Unfunded 

Mandates Act also requires an agency to 

identify and consider a reasonable 

number of regulatory alternatives before 

promulgating a rule. 

The OCC has determined that this 

final rule will not result in expenditures 

by State, local, and Tribal governments, 

or by the private sector, of $100 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 12 CFR Part 21 

Crime, Currency, National banks, 

Reporting and recordkeeping 

requirements, Security measures. 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, part 21 of title 12 of the Code 

of Federal Regulations is amended as 

follows: 

PART 21—MINIMUM SECURITY 

DEVICES AND PROCEDURES, 

REPORTS OF SUSPICIOUS 

ACTIVITIES, AND BANK SECRECY 

ACT COMPLIANCE PROGRAM 

■ 1. The authority citation for part 21 

continues to read as follows: 

Authority: 12 U.S.C. 93a, 1818, 1881–1884, 

and 3401–3422; and 31 U.S.C. 5318. 

■ 2. Section 21.11 is amended by 

revising paragraphs (b)(3), (c) 

introductory text, (k) and (l) to read as 

follows: 

§ 21.11 Suspicious Activity Report. 

* * * * * 

(b) * * * 

(3) SAR means a Suspicious Activity 

Report. 

(c) SARs required. A national bank 

shall file a SAR with the appropriate 

Federal law enforcement agencies and 

the Department of the Treasury on the 

form prescribed by the OCC and in 

accordance with the form’s instructions. 

The bank shall send the completed SAR 

to FinCEN in the following 

circumstances: 

* * * * * 

(k) 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 (k). 

(1) Prohibition on disclosure by 

national banks. (i) General rule. No 

national bank, and no director, officer, 

employee, or agent of a national bank, 

shall disclose a SAR or any information 

that would reveal the existence of a 

SAR. Any national bank, and any 

director, officer, employee, or agent of 

any national 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 the 

following of any such request and the 

response thereto: 

(A) Director, Litigation Division, 

Office of the Comptroller of the 

Currency; 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, this 

paragraph (k)(1) shall not be construed 

as prohibiting: 

(A) The disclosure by a national bank, 

or any director, officer, employee or 

agent of a national bank of: 

(1) A SAR, or any information that 

would reveal the existence of a SAR, to 

the OCC, FinCEN, or any Federal, State, 

or local law enforcement agency; 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 national bank, or 

any director, officer, employee, or agent 

of a national 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 Secrecy Act as determined by 

regulation or in guidance. 

(2) Prohibition on disclosure by the 

OCC. The OCC will not, and no officer, 

employee or agent of the OCC, 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 OCC 

information under 12 CFR 4.33. 

(l) Limitation on liability. A national 

bank and any director, officer, employee 

or agent of a national 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 

financial 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). 

Dated: August 16, 2010. 

John Walsh, 

Acting Comptroller of the Currency. 

[FR Doc. 2010–29880 Filed 12–2–10; 8:45 am] 

BILLING CODE 4810–33–P 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 510 

[Docket ID OTS–2010–0016] 

RIN 1550–AC28 

Standards Governing the Release of a 

Suspicious Activity Report 

AGENCY: Office of Thrift Supervision, 

Treasury. 


emcdonald on DSK2BSOYB1PROD with RULES2
75584 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

1 74 FR 10145, 12 CFR 510.5, Release of 

unpublished OTS information. 

2See 12 CFR 510.5. 

3See 12 CFR 510.5(d). 

4 31 U.S.C. 5318(g)(1). 

5 31 U.S.C. 5318(g)(2)(A)(i). 

6The phrase ‘‘any person involved in the 

transaction’’ has been construed to apply to ‘‘any 

person’’ because the disclosure of SAR information 

to any outside party may make it likely that SAR 

information would be disclosed to a person 

involved in the transaction, which is absolutely 

prohibited by the BSA. See Cotton v. Private Bank 

and Trust Co., 235 F. Supp. 2d 809, 815 (N.D. Ill. 

2002). 

7See USA PATRIOT Act, section 351(b). Pub. L 

107–56, Title III, § 351, 115 Stat. 272, 321(2001). 

8For purposes of this provision ‘‘official duties’’ 

means official disclosures necessary to accomplish 

a governmental purpose consistent with Title II of 

the BSA entrusted to the agency, the officer or 

employee. For example, prosecutorial disclosures 

mandated by statute or the Constitution, such as a 

statement of a government witness to be called at 

trial, impeachment of a government witness, or 

material exculpatory of a criminal defendant. See, 

e.g., Giglio v. United States, 405 U.S. 150, 153–54 

ACTION: Final rule. 

SUMMARY: The Office of Thrift 

Supervision (OTS) is revising its 

regulations governing the release of 

unpublished OTS information. The 

primary change clarifies that the OTS’s 

decision to release a Suspicious Activity 

Report (SAR) is governed by the 

standards set forth in amendments to 

the OTS’s SAR regulation that are part 

of a separate, but simultaneous, 

rulemaking. 

DATES: The final rule is effective January 

3, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Marvin Shaw, Senior Attorney, 

Regulations and Legislation (202–906– 

6639); Dirk Roberts, Deputy Chief 

Counsel, Litigation (202–906–7631), 

Office of Thrift Supervision, 1700 G 

Street, NW., Washington, DC 20552. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

On March 9, 2009, the Office of Thrift 

Supervision (OTS) issued a notice of 

proposed rulemaking to revise its 

regulations governing the release of 

unpublished OTS information.1 The 

proposal was intended to clarify that 

OTS’s decision to release a Suspicious 

Activity Report (SAR) would be 

governed by the standards set forth in 

proposed amendments to OTS’s SARS 

regulation at 12 CFR 563.180, 

Suspicious Activity Reports and other 

reports and statements, that were part of 

a separate, but simultaneous 

rulemaking. 

OTS received no comments to the 

proposed amendments to section 510.5, 

although the agency did receive 

comments to the proposed amendments 

to section 563.180. Those comments are 

addressed in the part 563 final rule 

published elsewhere in today’s Federal 

Register. 

II. Final Rule 

A. Overview 

OTS is amending its regulations set 

forth in 12 CFR part 510, governing the 

release of unpublished OTS 

information. First, the amendments 

conform section 510.5 to amendments to 

the OTS’s SAR confidentiality rule, 12 

CFR 563.180 that are being adopted as 

part of a separate, but simultaneous, 

rulemaking that the OTS is conducting. 

Under the standards that the OTS is 

incorporating into section 510.5, the 

OTS will only release a SAR, or any 

information that reveals the existence of 

a SAR (referred to in this preamble as 

‘‘SAR information’’), when ‘‘necessary to 

fulfill official duties consistent with 

Title II of the Bank Secrecy Act (BSA).’’ 

The effect of these amendments is that 

the OTS will not release SAR 

information in response to a request 

from a private litigant arising out of a 

civil lawsuit or administrative 

proceeding to which the OTS is not a 

party. The Director also will not 

disclose SAR information to any other 

person or entity, and the OTS will not 

release SAR information in response to 

a request by another government 

agency, except to fulfill official duties in 

light of the purposes of the BSA. 

This final rule amends part 510 to 

make it consistent with the amendments 

to OTS’s SAR regulation that 

implements section 351 of the USA 

PATRIOT Act, thus ensuring that the 

appropriate standard is applied to OTS’s 

disclosure of SAR information. Section 

510.5 sets forth OTS’s standards and 

procedures for the release of 

‘‘unpublished OTS information,’’ and 

sets forth the restrictions on the 

dissemination of such information. 

Generally, ‘‘unpublished OTS 

information’’ is confidential and 

privileged information that is the 

property of the OTS, and that the OTS 

is not required to release under the 

Freedom of Information Act (5 U.S.C. 

552 et seq.) or that the OTS has not yet 

published or made available pursuant to 

12 U.S.C. 1818(u), the statute requiring 

publication of certain enforcement 

orders. 

Section 510.5 describes procedures 

for requesting unpublished OTS 

information from the OTS, such as, 

where to submit a request, the form of 

the request, information that must be 

included in any request involving an 

adversarial matter, and various bases for 

the OTS’s denial of such a request.2

Section 510.5 authorizes the OTS to 

make unpublished OTS information 

available to a supervised entity and to 

other persons, at the sole discretion of 

the Director or his or her delegate.3

Section 510.5(d)(5) also indicates that 

the OTS may condition release of 

information that it discloses under this 

section. 

Although a SAR may be considered 

‘‘unpublished OTS information,’’ it is 

the OTS’s position that the release of a 

SAR must be governed by standards set 

forth in the BSA. The BSA and its 

implementing regulations require a 

financial institution to file a SAR when 

it detects a known or suspected 

violation of Federal law or a suspicious 

activity related to money laundering, 

terrorist financing, or other criminal 

activity.4 The BSA also 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.5 Most 

importantly, in 2001, section 351 of the 

USA PATRIOT Act added a new 

provision to the BSA prohibiting 

officers or employees of the Federal 

government or any State, local, tribal, or 

territorial government within the United 

States from disclosing to any person 6

involved in a suspicious transaction that 

the transaction was reported, other than 

as necessary to fulfill the official duties 

of such officer or employee.7

Accordingly, it is this provision that 

now governs the ability of the OTS to 

disclose SAR information to any person. 

The OTS is revisiting the treatment of 

SAR information in section 510.5 in 

light of the 2001 amendments to the 

BSA, added by section 351 of the USA 

PATRIOT Act that specifically 

addresses governmental disclosures of 

SARs. Under the amendments to section 

510.5, the OTS will decide whether to 

release SAR information based upon the 

standard in the OTS’s amendments to 

its SAR rules, 12 CFR 563.180, 

implementing section 351, thereby 

replacing the factors previously set out 

in section 510.5(d). The standard in the 

amendments to the OTS’s SAR rule 

provides that ‘‘Neither OTS (nor any 

officer, employee or agent of OTS, shall 

disclose a SAR, or any information that 

will reveal the existence of a SAR 

except as necessary to fulfill official 

duties consistent with Title II of the 

BSA.’’ In addition, the standard provides 

that ‘‘official duties’’ shall not include 

the disclosure of SAR information 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 510.5.8 The 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75585 

(1972); Brady v. State of Maryland, 373 U.S. 83, 86– 

87 (1963); Jencks v. United States, 353 U.S. 657, 668 

(1957). 

9 31 U.S.C. 5311 (setting forth the purposes of the 

BSA). 

10See, 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). 

11See 12 CFR 510.5(d)(4). 

12As described earlier, § 510.5 does not apply to 

SAR information. 

SAR rules interpret ‘‘official duties’’ to 

mean ‘‘official duties consistent with the 

purposes of Title II of the BSA,’’ namely, 

for ‘‘criminal, tax, regulatory 

investigations or proceedings, or in the 

conduct of intelligence or 

counterintelligence activities, including 

analysis, to protect against international 

terrorism.’’ 9 This standard will permit 

disclosures responsive to a grand jury 

subpoena; a request from an appropriate 

Federal or State law enforcement or 

regulatory agency; 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.10

B. Section-by-Section Description of the 

Rule 

Section 510.5(a) and (b) Scope and 

Purpose. 

The existing section 510(b) includes 

several standards for the release of 

unpublished OTS information. A person 

seeking such information, generally 

must submit a request in writing to the 

OTS that addresses the factors set forth 

in section 510.5(b). Section 510.5(d) 

describes how the OTS will make its 

determination to release the 

information. That provision also 

provides that OTS will deny a request 

if it deems the information to be (A) not 

highly relevant, (B) privileged, (C) 

available from other sources, or (D) 

information that should not be disclosed 

for reasons that warrant restriction 

under the Federal Rules of Civil 

Procedure.11

This final rule adds a new paragraph 

(iv) to the scope section of 12 CFR 

510.5, which states that this section 

does not apply to OTS’s decision to 

disclose records or testimony involving 

a SAR filed pursuant to regulations 

implementing 12 U.S.C. 5318(g) or any 

information that will reveal the 

existence of a SAR. Accordingly, the 

OTS’s decision to disclose records or 

testimony involving SAR information is 

governed solely by the standard in 12 

CFR 563.180. Paragraph (iv) makes clear 

that the standard in 12 CFR 563.180 

applies in place of the standards for 

denial set forth in 12 CFR 510.5(d)(4). 

Accordingly, the OTS will not release 

SAR information in response to any 

request received pursuant to section 

510.5, including from a federal, state, or 

foreign government, and the Director 

will not disclose SAR information to 

any person, except to fulfill the OTS’s 

official duties in light of the purposes of 

the BSA. Consistent with the OTS’s 

longstanding commitment to protect the 

confidentiality of SARs, the SAR rule 

also states that ‘‘official duties’’ does not 

include the disclosure of SAR 

information 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. 

Section 510.5(d) Consideration of 

requests. 

Section 510.5 generally describes how 

the OTS makes its determination to 

release or to withhold unpublished OTS 

information in response to requests 

received under section 510.5(b) and 

(d).12 Section 510.5(d)(4) specifically 

lists four examples of reasons for which 

the OTS will deny the release of 

unpublished OTS information. 

The OTS is adding ‘‘when not 

prohibited by law’’ as a fifth reason for 

denial of requests made under section 

510.5(d)(4). This addition makes the 

language in section 510.5(d), consistent 

with the standard applicable to 

disclosures to government entities, 

which includes the condition that such 

disclosures only be made ‘‘when not 

prohibited by law.’’ 

III. Regulatory Analysis 

Regulatory Flexibility Act 

Under section 605(b) of the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 605(b), the regulatory flexibility 

analysis otherwise required under 

section 604 of the RFA is not required 

if the agency certifies that the rule will 

not have a significant economic impact 

on a substantial number of small entities 

and publishes its certification and a 

short, explanatory statement in the 

Federal Register along with its rule. 

The OTS has determined that the rule 

does not impose any economic costs as 

they simply clarify the scope of the 

statutory prohibition against the 

disclosure by financial institutions and 

by the government of SAR information. 

Therefore, pursuant to section 605(b) of 

the RFA, the OTS hereby certifies that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. Accordingly, a 

regulatory flexibility analysis is not 

needed. 

Executive Order 12866 

The OTS has determined that this rule 

is not a significant regulatory action 

under Executive Order 12866. We have 

concluded that the changes that made 

by the amendments will not have an 

annual effect on the economy of $100 

million or more. The OTS further 

concludes that this rule does not meet 

any of the other standards for a 

significant regulatory action set forth in 

Executive Order 12866. 

Paperwork Reduction Act 

We have reviewed the amendments in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3506; 

5 CFR 1320, Appendix A.1) (PRA) and 

have determined that they do not 

contain any ‘‘collections of information’’ 

as defined by the PRA. 

Unfunded Mandates Reform Act of 1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4 (UMRA) requires that an 

agency prepare a budgetary impact 

statement before promulgating a rule 

that includes 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 (adjusted annually 

for inflation) in any one year. If a 

budgetary impact statement is required, 

section 205 of the UMRA also requires 

an agency to identify and consider a 

reasonable number of regulatory 

alternatives before promulgating a rule. 

The OTS has determined that its rule 

will not result in expenditures by state, 

local, and tribal governments, or by the 

private sector, of $133 million or more. 

Accordingly, OTS has not prepared a 

budgetary impact statement or 

specifically addressed the regulatory 

alternatives considered. 

List of Subjects in 12 CFR Part 510 

Administrative practice and 

procedure, Freedom of information, 

Individuals with disabilities, Minority 

businesses, Organization and functions 

(Government agencies), Reporting and 

recordkeeping requirements, Women. 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, part 510 of title 12 of the 

Code of Federal Regulations is amended 

as follows: 

PART 510—MISCELLANEOUS 

ORGANIZATIONAL REGULATIONS 

■ 1. The authority citation for part 510 

continues to read as follows: 


emcdonald on DSK2BSOYB1PROD with RULES2
75586 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

1The 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 Pub. L. 102–550, Title XV, section 

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

5318(g)(1). The OTS, Board of Governors of the 

Federal Reserve System (FRB), Federal Deposit 

Insurance Corporation (FDIC), Office of the 

Comptroller of the Currency (OCC), and National 

Credit Union Administration (NCUA), (collectively 

referred to as the Federal bank regulatory agencies) 

subsequently issued virtually identical 

implementing regulations on suspicious activity 

reporting. See 12 CFR 21.11 (OCC); 12 CFR 208.62 

(FRB); 12 CFR 353.3 (FDIC); 12 CFR 563.180 (OTS); 

and 12 CFR 748.1 (NCUA). 

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

3FinCEN is the agency designated by the 

Department of the Treasury to administer the BSA, 

and with which SARs must be filed. See 31 U.S.C. 

5318; 12 CFR 21.11(c). 

4See, e.g., 31 CFR 103.18(e) (SAR confidentiality 

rule for banks); 31 CFR 103.19(e) (SAR 

confidentiality rule for brokers or dealers in 

securities). 

5See 12 CFR 21.11(k) (OCC); 12 CFR 208.62(j) 

(FRB); 12 CFR 353.3(g) (FDIC); 12 CFR 

563.180(d)(12) (OTS); and 12 CFR 748.1 (NCUA). 

6 31 U.S.C. 5318(q)(3). 

7See USA PATRIOT Act, section 351(b), Pub. L. 

107–56, Title III, section 351, 115 Stat. 272, 321 

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

Authority: 12 U.S.C. 1462a, 1463, 1464; 

Pub.L. 101–410, 104 Stat 890; Pub.L. 104– 

134, 110 Stat 1321–358. 

■ 2. Amend § 510.5 by: 

■ a. Removing, at the end of paragraph 

(a)(3)(ii), the word ‘‘and’’; 

■ b. Removing, at the end of paragraph 

(a)(3)(iii), the period and adding ‘‘; and’’ 

in its place; 

■ c. Adding paragraph (a)(3)(iv) to read 

as set forth below; 

■ d. Removing, at the end of paragraph 

(d)(4)(i)(C), the word ‘‘or’’; 

■ e. Removing, at the end of paragraph 

(d)(4)(i)(D) the period and adding ‘‘; and’’ 

in its place; and 

■ f. Adding paragraph (d)(4)(i)(E) as set 

forth below. 

§ 510.5 Release of unpublished OTS 

information. 

(a) * * * 

(3) * * * 

(iv) Requests for a Suspicious Activity 

Report (SAR), or any information that 

would reveal the existence of a SAR. 

* * * * * 

(d) * * * 

(4) * * * 

(i) * * * 

(E) Information that should not be 

disclosed, because such disclosure is 

prohibited by law. 

* * * * * 

Dated: June 1, 2010. 

By the Office of Thrift Supervision. 

John E. Bowman, 

Acting Director. 

[FR Doc. 2010–29871 Filed 12–2–10; 8:45 am] 

BILLING CODE 6720–01–P 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 563 

[Docket ID OTS–2010–0015] 

RIN 1550–AC26 

Confidentiality of Suspicious Activity 

Reports 

AGENCY: The Office of Thrift 

Supervision, Treasury (OTS). 

ACTION: Final rule. 

SUMMARY: The OTS is issuing this final 

rule to amend its regulations 

implementing the Bank Secrecy Act 

(BSA) governing the confidentiality of a 

suspicious activity report (SAR) to: 

Clarify the scope of the statutory 

prohibition on the disclosure by a 

financial institution of a SAR, as it 

applies to savings associations and 

service corporations; address the 

statutory prohibition on the disclosure 

by the government of a SAR, as that 

prohibition applies to the OTS’s 

standards governing the disclosure of 

SARs; 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 OTS is to 

fulfill official duties consistent with the 

purposes of the BSA; and modify the 

safe harbor provision in the OTS’s SAR 

rules to include changes made by the 

Uniting and Strengthening America by 

Providing Appropriate Tools Required 

to Intercept and Obstruct Terrorism 

(USA PATRIOT) Act. These 

amendments are consistent with a final 

rule being contemporaneously issued by 

the Financial Crimes Enforcement 

Network (FinCEN) and the Office of 

Comptroller of the Currency (OCC). 

DATES: This rule is effective on January 

3, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Marvin Shaw, Senior Attorney, 

Regulations and Legislation (202–906– 

6639); Noelle Kurtin, Senior Attorney, 

Enforcement (202–906–6739); or Stacy 

Messett, Senior Project Manager, BSA 

and Compliance Examinations (202– 

906–6241); Office of Thrift Supervision, 

1700 G Street, NW., Washington, DC 

20552. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The BSA requires financial 

institutions, including savings 

associations and service corporations 

regulated by the OTS, 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 a 

financial institution to file a SAR when 

it detects a known or suspected 

violation of Federal law or a suspicious 

activity related to money laundering, 

terrorist financing, or other criminal 

activity.1

SARs are used for law enforcement or 

regulatory purposes to combat terrorism, 

terrorist financing, money laundering 

and other financial crimes. For this 

reason, 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.2 To 

encourage the voluntary reporting of 

possible violations of law and 

regulation, and the filing of SARs, the 

BSA also contains a safe harbor 

provision, which shields financial 

institutions making such reports from 

civil liability. 

FinCEN 3 has issued rules 

implementing the SAR confidentiality 

provisions for various types of financial 

institutions that closely mirror the 

statutory language.4 In addition, the 

Federal bank regulatory agencies 

implemented these provisions through 

similar regulations that provide SARs 

are confidential and generally no 

information about or contained in a SAR 

may be disclosed.5 The regulations 

issued by FinCEN and the Federal bank 

regulatory agencies also describe the 

applicability of the safe harbor 

provision to both voluntary reports of 

possible and known violations of law 

and the required filing of SARs.6

The USA PATRIOT Act of 2001 

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.7 The USA PATRIOT Act 

also clarified that the safe harbor 

shielding financial institutions from 

liability covers voluntary disclosures 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 


emcdonald on DSK2BSOYB1PROD with RULES2