75574 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

1USA PATRIOT Act, section 351(b); Pub. L. 107– 

56, Title III, section 351; 115 Stat. 272, 320–21 

(2001); 31 U.S.C. 5318(g)(2). 2See 12 CFR 4.32(b)(1)(vii). 3See 12 CFR 4.33–4.35. 4See 12 CFR 4.36. 

5See 12 CFR 4.37(c). 

6See 31 U.S.C. 5318(g)(1). 

7 31 U.S.C. 5318(g)(2)(A)(i). 

8The 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 expressly 

prohibited by the BSA. See Cotton v. Private Bank 

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

2002). 

9See 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). 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 4 

[Docket ID OCC–2010–0018] 

RIN 1557–AD16 

Standards Governing the Release of a 

Suspicious Activity Report 

AGENCY: Office of the Comptroller of the 

Currency, Treasury. 

ACTION: Final rule. 

SUMMARY: The Office of the Comptroller 

of the Currency (OCC) is revising its 

regulations governing the release of nonpublic OCC information. The primary 

change clarifies that the OCC’s decision 

to release a suspicious activity report 

(SAR) will be governed by the standards 

set forth in amendments to the OCC’s 

SAR regulation that is part of a separate 

final rule published today in the 

Federal Register. 

DATES: This rule is effective on January 

3, 2011. 

FOR FURTHER INFORMATION CONTACT: 

James Vivenzio, Senior Counsel for 

BSA/AML, (202) 874–5200; Ellen 

Warwick, Assistant Director, Litigation, 

(202) 874–5280; or Patrick Tierney, 

Counsel, Legislative and Regulatory 

Activities, (202) 874–5090; Office of the 

Comptroller of the Currency, 250 E 

Street, SW., Washington, DC 20219. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The OCC is amending its regulations 

set forth in 12 CFR part 4, subpart C, 

governing the release of non-public OCC 

information. First, the amendments 

conform subpart C to amendments to 

the OCC’s SAR confidentiality rule, 12 

CFR 21.11(k), that are being issued as 

part of a separate, but simultaneous, 

rulemaking that the OCC is conducting 

together with the Financial Crimes 

Enforcement Network (FinCEN) and is 

published elsewhere in this issue of the 

Federal Register. Under the standards 

that the OCC is incorporating into part 

4, the OCC will release a SAR, or any 

information that would reveal the 

existence of a SAR (referred to in this 

SUPPLEMENTARY INFORMATION as ‘‘SAR 

information’’) only when necessary to 

fulfill official duties consistent with 

Title II of the Bank Secrecy Act (BSA). 

The standards also state that ‘‘official 

duties’’ do 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 OCC 

information under § 4.33. Thus, one 

effect of these amendments is that the 

OCC will not release SAR information 

in response to a request from a private 

litigant arising out of a private legal 

proceeding. 

In addition to the clarification of the 

standards governing the release of SAR 

information, the amendments to subpart 

C also clarify that the OCC will deny a 

request for non-public information 

made under 12 CFR 4.33, if the release 

is prohibited by law. Finally, the 

amendments include a technical 

correction to § 4.37 that is described in 

section IV of this SUPPLEMENTARY

INFORMATION. 

II. Background 

As described in greater detail below, 

this final rule amends part 4 to make 

subpart C consistent with the 

amendments to the OCC’s SAR 

regulation that implement section 351 of 

the USA PATRIOT Act to ensure that 

the appropriate standard is applied to 

the OCC’s disclosure of SAR 

information.1 12 CFR part 4, subpart C, 

contains the OCC’s standards and 

procedures for the release of ‘‘nonpublic OCC information’’ and sets forth 

the restrictions on the dissemination of 

such information. Generally, ‘‘nonpublic OCC information’’ is confidential 

and privileged information that is the 

property of the OCC and that the OCC 

is not required to release under the 

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

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

published or made available pursuant to 

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

publication of certain enforcement 

actions. Examples in subpart C of ‘‘nonpublic OCC information’’ currently 

include ‘‘a SAR filed by the OCC, a 

national bank, or a Federal branch or 

agency of a foreign bank licensed or 

chartered by the OCC under 12 CFR 

21.11.’’ 2

Subpart C generally describes 

procedures for requesting non-public 

OCC information from the OCC, 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 OCC’s denial of such a request.3

Subpart C also authorizes the OCC to 

make non-public OCC information 

available to a supervised entity and to 

other persons, at the sole discretion of 

the Comptroller, without a request for 

records or testimony,4 and sets forth the 

OCC’s policy regarding the release of 

non-public OCC information to other 

government agencies in response to a 

request.5 Subpart C also describes the 

conditions and limitations that the OCC 

may place on information it discloses 

under subpart C. 

Although SARs fall within the 

definition of ‘‘non-public OCC 

information,’’ the release of a SAR is 

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.6

SARs generally are unsubstantiated 

reports of possible violations of law 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.7 More 

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 8

involved in a suspicious transaction that 

the transaction was reported, other than 

as necessary to fulfill the official duties 

of such officer or employee.9

Accordingly, it is this provision that 

now governs the ability of the OCC to 

disclose SAR information to any person. 

To implement this provision, this 

final rule amends subpart C to provide 

that the OCC will not, and an officer, 

employee or agent of the OCC, shall not, 

disclose SAR information except as 

necessary to fulfill official duties 

consistent with Title II of the BSA. The 

final rule further provides that the OCC 

will decide whether to release SAR 

information based upon the standard in 

its SAR rules, 12 CFR 21.11(k), 

implementing section 351, rather than 


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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75575 

10See, e.g., 12 CFR 4.35. 

11 31 U.S.C. 5311 (setting forth the purposes of the 

BSA). 

12See, e.g., Giglio v. United States, 405 U.S. 150, 

153–54 (1972); Brady v. Maryland, 373 U.S. 83, 86– 

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

(1957). 

13 74 FR 10136 (Mar. 9, 2009). 

14However, the OCC received comments on 

proposed changes to the part 21 SAR rules, which 

are discussed in the SUPPLEMENTARY INFORMATION

section of the OCC’s part 21 final SAR rule 

published today in the Federal Register. 

15See 12 CFR 4.35(a)(2). 

16See 12 CFR 4.31(b)(3). 

17See 12 CFR 21.11(k)(2). 

18 Id. 

upon any of the factors set out in 

subpart C.10

In addition, the final part 21 rule 

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 OCC information under 

§ 4.33. The final part 21 SAR rule 

interprets ‘‘official duties’’ as ‘‘official 

duties consistent with Title II of the 

Bank Secrecy Act,’’ meaning official 

disclosures necessary to accomplish a 

governmental purpose entrusted to the 

agency, the officer, or employee, 

consistent with Title II of the BSA.11

This standard permits, for example, 

disclosures responsive to a grand jury 

subpoena; a request from an appropriate 

Federal or State law enforcement 

agency; a request from an appropriate 

Congressional committee or 

subcommittee; 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.12

III. Notice of Proposed Rulemaking 

On March 9, 2009, the OCC published 

a notice of proposed rulemaking to 

amend its regulations set forth in 12 

CFR part 4, subpart C, governing the 

release of non-public OCC 

information.13 The OCC received no 

public comment on the part 4 

proposal.14 The proposed rule is 

adopted as final without change and is 

described in detail in the Section-bySection Analysis section. 

IV. Section-by-Section Analysis of the 

Final Rule 

Section 4.31(b)(4) Purpose and Scope 

Subpart C currently includes several 

standards for the release of non-public 

OCC information. A person seeking nonpublic OCC information generally must 

submit a request in writing to the OCC 

that addresses the factors set forth in 

§ 4.33. Section 4.35 describes how the 

OCC will make its determination to 

release the information and contains an 

illustrative list of possible bases for 

denial of a request.15 Section 4.36(a) 

provides that the OCC may release 

information to a supervised entity or 

any person, even without a request, at 

the discretion of the Comptroller when 

necessary or appropriate. In addition, 

the scope section of subpart C makes 

clear that § 4.37(c) applies to requests 

for non-public OCC information from 

Federal and foreign governments and 

State agencies with authority to 

investigate violations of criminal law 

and State bank regulatory agencies.16

Section 4.37(c) states that, when not 

prohibited by law, the Comptroller may 

make non-public OCC information 

available to these governmental entities 

for their use when necessary in the 

performance of their official duties. 

This final rule adds a new paragraph 

(b)(4) to 12 CFR 4.31, the scope section 

of subpart C, which states that the 

OCC’s decision to disclose records or 

testimony involving SAR information 

for purposes of 12 CFR 4.35(a)(1), 

4.36(a), and 4.37(c), is governed by the 

standard in 12 CFR 21.11(k). 

Accordingly, the Comptroller’s 

discretion to disclose SAR information 

to any person or entity without a request 

under § 4.36, and the OCC’s 

determination to disclose SAR 

information to another government 

agency under § 4.37, will be subject to 

the standard in the amendments to 

12 CFR 21.11(k) prohibiting the 

disclosure of SAR information ‘‘except 

as necessary to fulfill official duties 

consistent with Title II of the Bank 

Secrecy Act.’’ 17 In accordance with the 

OCC’s longstanding commitment to 

protect the confidentiality of SARs, 

section 21.11(k) also provides 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 § 4.33.18

Section 4.32(b) Definition of NonPublic OCC Information 

This final rule amends the definition 

of ‘‘non-public OCC information’’ in 

§ 4.32(b) to remove the reference to ‘‘a 

SAR filed by the OCC, a national bank, 

or a Federal branch or agency of a 

foreign bank licensed or chartered by 

the OCC under 12 CFR 21.11’’ from the 

illustrative list of examples that follow 

the definition of ‘‘non-public OCC 

information.’’ SAR information is still 

covered by the definition of ‘‘non-public 

OCC information.’’ However, the OCC is 

removing the reference to SARs from the 

illustrative list because highlighting 

SAR information as an example of nonpublic OCC information would be 

misleading in light of the amendments 

to § 4.31 described in the previous 

section. As described earlier, under the 

amendments to subpart C, SAR 

information will be treated as a unique 

subset of non-public OCC information 

subject to release in accordance with the 

standards set forth in 12 CFR 21.11(k). 

Notwithstanding the OCC’s deletion 

of the specific reference to SARs as an 

example of ‘‘non-public OCC 

information,’’ SAR information 

continues to be otherwise subject to the 

provisions of subpart C that are not 

superseded by the standards in revised 

part 21. For example, § 4.37(d), which 

generally provides that the possession 

by a person of non-public OCC 

information does not constitute a waiver 

by the OCC of its right to control, or 

impose limitations on, the use and 

dissemination of the information, 

continues to apply to SAR information. 

Section 4.35(a)(2) Consideration of 

Requests 

Section 4.35 generally describes how 

the OCC makes its determination to 

release or to withhold non-public OCC 

information in response to requests 

received under § 4.33. Section 4.35(a)(2) 

lists five examples of reasons for which 

the OCC will deny the release of nonpublic OCC information. 

The final rule adds ‘‘when prohibited 

by law’’ as a sixth example of a reason 

for denial of requests made under § 4.35. 

This addition clarifies that the OCC may 

deny a request under § 4.33 when 

prohibited by law, including, for 

example, § 21.11(k). 

Section 4.37(c) Disclosures to 

Government Agencies 

The final rule also makes a technical 

correction to § 4.37(c). Section 4.37(c) 

describes the basis for disclosures of 

non-public OCC information to 

government agencies. The last sentence 

in § 4.37(c) also states that any 

information that is made available 

under this section is OCC property, and 

the OCC may condition its use on 

appropriate confidentiality protections, 

‘‘including the mechanisms identified in 

§ 4.37.’’ However, the various 

mechanisms that provide confidentiality 

protections are identified in § 4.38 of 

subpart C, rather than in § 4.37. 

Therefore, the final rule replaces the 

reference to ‘‘§ 4.37’’ with a reference to 

‘‘§ 4.38.’’ 


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75576 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

V. OCC Regulatory Analysis 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency that is 

issuing a final rule to prepare and make 

available a final regulatory flexibility 

analysis that describes the impact of the 

final rule on small entities, 5 U.S.C. 604. 

However, the RFA provides that an 

agency is not required to prepare and 

make available a final regulatory 

flexibility analysis if the agency certifies 

that the final 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 final rule. 

5 U.S.C. 605(b). For purposes of the RFA 

and OCC-regulated entities, a ‘‘small 

entity’’ is a national bank with assets of 

$175 million or less (small national 

bank). 

The OCC has determined that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. The final 

rule’s changes to the OCC’s internal 

standards, which were prompted by a 

statutory change, apply to the OCC, and 

its internal deliberations regarding the 

agency’s ability to disclose a SAR, and 

not to any other entities. Therefore, 

pursuant to section 605(b) of the RFA, 

the OCC certifies that this final rule will 

not have a significant economic impact 

on a substantial number of small 

entities. Accordingly, the requirement to 

prepare and publish a final regulatory 

flexibility analysis does not apply to 

this final rule. 

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 the final rule 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 (adjusted for inflation) 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, which amends the standards 

the OCC will apply when determining 

whether to release a SAR, will not result 

in expenditures by State, local, and 

tribal governments, or by the private 

sector, of $100 million or more (adjusted 

for inflation) in any one year. 

Accordingly, this final rule is not 

subject to section 202 of the Unfunded 

Mandates Act. 

List of Subjects in 12 CFR Part 4 

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 4, subpart C, of title 12 

of the Code of Federal Regulations is 

amended as follows: 

PART 4—ORGANIZATION AND 

FUNCTIONS, AVAILABILITY AND 

RELEASE OF INFORMATION, 

CONTRACTING OUTREACH 

PROGRAM, POST-EMPLOYMENT 

RESTRICTIONS FOR SENIOR 

EXAMINERS 

■ 1. Revise the authority citation for part 

4 to read as follows: 

Authority: 12 U.S.C. 93a. Subpart A also 

issued under 5 U.S.C. 552. Subpart B also 

issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 

1987 Comp., p. 235). Subpart C also issued 

under 5 U.S.C. 301, 552; 12 U.S.C. 161, 481, 

482, 484(a), 1442, 1817(a)(2) and (3), 1818(u) 

and (v), 1820(d)(6), 1820(k), 1821(c), 1821(o), 

1821(t), 1831m, 1831p–1, 1831o, 1867, 1951 

et seq., 2601 et seq., 2801 et seq., 2901 et seq., 

3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 

78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 

U.S.C. 1204; 31 U.S.C. 5318(g)(2), 9701; 

42 U.S.C. 3601; 44 U.S.C. 3506, 3510. 

Subpart D also issued under 12 U.S.C. 1833e. 

■ 2. Add § 4.31(b)(4) to read as follows: 

§ 4.31 Purpose and scope. 

* * * * * 

(b) * * * 

(4) For purposes of §§ 4.35(a)(1), 

4.36(a) and 4.37(c) of this part, the 

OCC’s decision to disclose records or 

testimony involving a Suspicious 

Activity Report (SAR) filed pursuant to 

the regulations implementing 12 U.S.C. 

5318(g), or any information that would 

reveal the existence of a SAR, is 

governed by 12 CFR 21.11(k). 

§ 4.32 [Amended] 

■ 3. Amend § 4.32(b) by: 

■ a. Removing paragraph (b)(1)(vii). 

■ b. Adding the word ‘‘and’’ at the end 

of paragraph (b)(1)(v); and 

■ c. Removing, at the end of paragraph 

(b)(1)(vi), ‘‘; and’’ and adding a period in 

its place. 

■ 4. Amend § 4.35(a)(2) by: 

■ a. Removing the word ‘‘or’’ at the end 

of paragraph (a)(2)(iv); 

■ b. Removing, in paragraph (a)(2)(v), 

the period and by adding in lieu thereof 

‘‘; or’’; and 

■ c. Adding a new paragraph (a)(2)(vi) to 

read as follows: 

§ 4.35 Consideration of requests. 

(a) * * * 

(2) * * * 

(vi) When prohibited by law. 

* * * * * 

§ 4.37 [Amended] 

■ 5. In § 4.37(c), remove the reference to 

‘‘§ 4.37’’ in the last sentence and add in 

lieu thereof ‘‘§ 4.38.’’ 

[This Signature Page Relates to the Final 

Rule on Standards Governing the 

Release of a Suspicious Activity 

Report—Part 4.] 

Dated: August 16, 2010. 

John Walsh, 

Acting Comptroller of the Currency. 

[FR Doc. 2010–29883 Filed 12–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 21 

[Docket ID OCC–2010–0019] 

RIN 1557–AD17 

Confidentiality of Suspicious Activity 

Reports 

AGENCY: The Office of the Comptroller 

of the Currency (OCC), Treasury. 

ACTION: Final rule. 

SUMMARY: The OCC 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 national banks; address the 

statutory prohibition on the disclosure 

by the government of a SAR, as that 

prohibition applies to the OCC’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 


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