10158 Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 

1This single docket number is shared by three 

related documents (a notice of proposed 

rulemaking, and this and another piece of proposed 

guidance related to that notice of proposed 

rulemaking) published simultaneously by FinCEN 

in today’s Federal Register. Accordingly, 

commenters may submit comments related to any 

of the proposals, or any combination of proposals, 

in a single comment letter. 

2See 31 CFR 103.15 to 103.21. 

3See 12 CFR 208.62 (FRB); 12 CFR 353.3 (FDIC); 

12 CFR 748.1 (NCUA); 12 CFR 21.11 (OCC); and 12 

CFR 563.180 (OTS). 

4 31 U.S.C. 5318(g)(2)(A)(i). 

5 ‘‘Interagency Guidance on Sharing Suspicious 

Activity Reports with Head Offices and Controlling 

Companies’’ (January 20, 2006). 

(A) A SAR, or any information that 

would reveal the existence of a SAR, to 

FinCEN or any Federal, state, or local 

law enforcement agency, or any Federal 

or state regulatory authority that 

examines the casino for compliance 

with the BSA; or 

(B) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including disclosures to another 

financial institution, or any director, 

officer, employee, or agent of a financial 

institution, for the preparation of a joint 

SAR. 

(2) Prohibition on disclosures by 

government authorities. A Federal, 

State, local, territorial, or tribal 

government authority, or any director, 

officer, employee, or agent of any of the 

foregoing, shall not disclose a SAR, or 

any information that would reveal the 

existence of a SAR, except as necessary 

to fulfill official duties consistent with 

Title II of the Bank Secrecy Act (BSA). 

For purposes of this section, official 

duties shall not include the disclosure 

of a SAR, or any information that would 

reveal the existence of a SAR, in 

response to a request for disclosure of 

non-public information or in response 

to a request for use in a private legal 

proceeding, including a request under 

31 CFR 1.11. 

(f) Limitation on liability. A casino, 

and any director, officer, employee, or 

agent of any casino, that makes a 

voluntary disclosure of any possible 

violation of law or regulation to a 

government agency or makes a 

disclosure pursuant to this section or 

any other authority, including a 

disclosure made jointly with another 

institution, shall be protected from 

liability for any such disclosure, or for 

failure to provide notice of such 

disclosure to any person identified in 

the disclosure, or both, to the full extent 

provided by 31 U.S.C. 5318(g)(3). 

(g) Compliance. Casinos shall be 

examined by FinCEN or its delegatees 

for compliance with this section. Failure 

to satisfy the requirements of this 

section may be a violation of the Bank 

Secrecy Act and of this part. 

* * * * * 

Dated: February 27, 2009. 

James H. Freis, Jr., 

Director, Financial Crimes Enforcement 

Network. 

[FR Doc. E9–4697 Filed 3–6–09; 8:45 am] 

BILLING CODE 4810–02–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 103 

[Docket Number: TREAS–FinCen–2008– 

0022] 

Interpretive Guidance—Sharing 

Suspicious Activity Reports by 

Depository Institutions With Certain 

U.S. Affiliates 

AGENCY: Financial Crimes Enforcement 

Network, Department of the Treasury. 

ACTION: Proposed guidance. 

SUMMARY: The Financial Crimes 

Enforcement Network (‘‘FinCEN’’) of the 

Department of the Treasury, after 

consulting with the staffs of the Board 

of Governors of the Federal Reserve 

System (‘‘FRB’’), the Federal Deposit 

Insurance Corporation (‘‘FDIC’’), the 

National Credit Union Administration 

(‘‘NCUA’’), the Office of the Comptroller 

of the Currency (‘‘OCC’’), and the Office 

of Thrift Supervision (‘‘OTS’’) 

(hereinafter, the ‘‘Federal Banking 

Agencies’’), is issuing for comment this 

proposed interpretive guidance. 

Published elsewhere in this part of the 

Federal Register are proposed rules 

clarifying the scope of the statutory 

prohibition on the disclosure by a 

financial institution of a report of a 

suspicious transaction set forth in the 

Bank Secrecy Act (‘‘BSA’’). The 

proposed rules include a provision 

which states that the prohibition does 

not apply when a bank shares a 

suspicious activity report (‘‘SAR’’), or 

any information that would reveal the 

existence of a SAR, within its corporate 

organizational structure for purposes 

consistent with Title II of the BSA, as 

determined by regulation or guidance. 

The proposed guidance interprets this 

provision to permit a bank to share a 

SAR with its affiliates that also are 

subject to SAR rules. 

DATES: Written comments on the 

proposed guidance may be submitted on 

or before June 8, 2009. 

ADDRESSES: You may submit comments, 

identified by docket number TREAS– 

FinCen–2008–0022,1 by any of the 

following methods: 

• Federal e-rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

regcomments@fincen.treas.gov. Include 

docket number TREAS–FinCen–2008– 

0022 in the subject line of the message. 

• Mail: FinCEN, P.O. Box 39, Vienna, 

VA 22183. Include docket number 

TREAS–FinCen–2008–0022 in the body 

of the text. 

FOR FURTHER INFORMATION CONTACT: 

Regulatory Policy and Programs 

Division, FinCEN, (800) 949–2732. 

SUPPLEMENTARY INFORMATION: 

I. Background 

FinCEN, through its authority under 

the BSA as delegated by the Secretary of 

the Treasury, may require financial 

institutions to keep records and file 

reports that FinCEN determines have a 

high degree of usefulness in criminal, 

tax or regulatory investigations or 

proceedings, or for intelligence or 

counterintelligence activities to protect 

against international terrorism. Within 

this framework, FinCEN may require 

financial institutions to file SARs and 

has issued rules implementing that 

specific authority with respect to certain 

types of financial institutions.2 The 

Federal Banking Agencies have issued 

comparable rules for financial 

institutions subject to their 

jurisdiction.3 The SAR rules issued by 

FinCEN and those issued by the Federal 

Banking Agencies currently include a 

section implementing the statutory 

prohibition on the disclosure by a 

financial institution of a SAR that is set 

forth in the BSA.4

Sharing Within the Corporate 

Organizational Structure 

In January 2006, FinCEN and all the 

Federal Banking Agencies other than the 

NCUA issued joint guidance concluding 

that, subject to certain exceptions or 

qualifications, a U.S. branch or agency 

of a foreign bank may share a SAR with 

its head office outside the United States, 

and a U.S. bank or savings association 

may disclose a SAR to its controlling 

company, no matter where the entity or 

party is located.5 FinCEN also issued 

guidance in consultation with the staffs 

of the Securities and Exchange 

Commission (‘‘SEC’’) and the 

Commodity Futures Trading 

Commission (‘‘CFTC’’) determining that, 

subject to certain exceptions or 

qualifications, a securities broker-dealer, 

futures commission merchant, or 

introducing broker in commodities may 

share a SAR with its parent entities, 


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Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 10159 

6 ‘‘Guidance on Sharing of Suspicious Activity 

Reports by Securities Broker-Dealers, Futures 

Commission Merchants, and Introducing Brokers in 

Commodities’’ (January 20, 2006). 7 ‘‘Control’’ for purposes of the October 2006 

Guidance is defined in section 2(a)(9) of the 

Investment Company Act of 1940 (15 U.S.C. 80a– 

2(a)(9)) to mean ‘‘the power to exercise a controlling 

influence over the management or policies of a 

company, unless such power is solely the result of 

an official position with such company.’’ A mutual 

fund typically is organized and operated by an 

investment adviser that controls the fund. By 

contrast, an investment adviser that performs 

limited functions in managing a mutual fund’s 

securities portfolio (also known as a ‘‘subadviser’’) 

would not typically control the fund and therefore 

would be outside the scope of the guidance. 

8FIN–2006–G013, ‘‘Frequently Asked Questions: 

Suspicious Activity Reporting Requirements for 

Mutual Funds’’ (October 4, 2006). 

9The proposed guidance interprets a provision in 

the proposed SAR regulations. The final guidance 

issued will be modified to correspond to any 

changes made in the final SAR regulations. 

10For the purposes of this proposed guidance, an 

‘‘affiliate’’ is effectively defined as a company under 

common control with, or a subsidiary of, the 

depository institution. ‘‘Affiliate’’ does not include 

holding companies because sharing with these 

entities is already addressed in the 2006 Guidance. 

11See 31 CFR 103.15 to 103.21. See also, 12 CFR 

208.62 (FRB); 12 CFR 353.3 (FDIC); 12 CFR 748.1 

(NCUA); 12 CFR 21.11 (OCC); and 12 CFR 563.180 

(OTS). 

12For example, the sharing of a SAR eliminates 

the need to create a separate summary document 

which, if shared, might inadvertently reveal the 

existence of a SAR itself. 

13See the Notice of Proposed Rulemaking 

published elsewhere in today’s Federal Register. 

both domestic and foreign.6 Moreover, 

guidance issued by FinCEN in 

consultation with the SEC in October 

2006, stated that a U.S. mutual fund 

may share a SAR with the investment 

adviser that controls the fund, whether 

domestic or foreign, so that the 

investment adviser could implement 

enterprise-wide risk management and 

compliance functions over all of the 

mutual funds that it controls 7 and 

improve its identification and reporting 

of suspicious activity.8 Nothing in the 

proposed guidance for sharing with 

affiliates supersedes any of the guidance 

mentioned in the preceding paragraph. 

These guidance documents reflected a 

recognition by FinCEN, the FDIC, the 

FRB, the OCC, the OTS, the SEC, and 

the CFTC (referred to collectively in the 

proposed guidance as the ‘‘Federal 

regulators’’) that a head office, 

controlling entity or party, or parent 

entity of a depository institution, 

broker-dealer, mutual fund, futures 

commission merchant, and introducing 

broker in commodities has oversight 

responsibilities with respect to 

enterprise-wide risk management. These 

responsibilities include a valid need to 

review compliance by U.S.-based 

depository institutions, broker-dealers, 

mutual funds, futures commission 

merchants, and introducing brokers in 

commodities with legal requirements to 

identify and report suspicious activity. 

The guidance documents regarding 

the sharing of SARs with head offices, 

controlling companies or parties, and 

parent entities (referred to here as the 

‘‘2006 Guidance’’) expressly noted that 

the sharing of a SAR with a non-U.S. 

entity raises concerns about the ability 

of the foreign entity to protect the SAR 

in light of possible requests for 

disclosure abroad that may be subject to 

foreign law. The 2006 Guidance on 

sharing SARs with head offices and 

controlling companies also provides 

that the recipient may not disclose 

further any Suspicious Activity Report, 

or the fact that such a report has been 

filed; however, the recipient may 

disclose without permission underlying 

information. The 2006 Guidance also 

stated that FinCEN and the Federal 

regulators were considering whether a 

financial institution may share a SAR 

with other entities within the financial 

institution’s corporate organization 

located inside the United States and 

those located abroad, and instructed 

financial institutions not to share SARs 

with such entities until further guidance 

was issued. 

Proposed Regulatory Changes 

In proposed regulations issued today, 

FinCEN is proposing to revise its 

regulations implementing the BSA 

regarding the confidentiality of a SAR to 

clarify, among other things, the scope of 

the statutory prohibition against the 

disclosure by a financial institution of a 

SAR. These proposed rules include a 

provision clarifying that the statutory 

prohibition does not apply to sharing by 

a depository institution, or any director, 

officer, employee, or agent of the 

depository institution, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the 

depository institution’s corporate 

organizational structure for purposes 

consistent with Title II of the BSA, as 

determined by regulation or in 

guidance, provided that no person 

involved in any reported suspicious 

transaction is notified that the 

transaction has been reported. 

II. Proposed Guidance 

This proposed guidance interprets the 

general statement in the proposed SAR 

confidentiality rules 9 that a bank may 

share a SAR, or information that reveals 

the existence of a SAR, within its 

corporate organizational structure for 

purposes consistent with Title II of the 

BSA. First, the proposed guidance 

acknowledges that the 2006 Guidance 

regarding depository institutions 

continues to be applicable. It explains 

that sharing of a SAR or information 

that reveals the existence of a SAR by 

a depository institution with its head 

office or its controlling company, 

whether domestic or foreign, promotes 

compliance with the BSA by enabling 

the head office or controlling company 

to discharge its oversight 

responsibilities with respect to 

enterprise-wide risk management, 

including oversight of the depository 

institution’s compliance with applicable 

laws and regulations. 

Next, the proposed guidance explains 

that FinCEN has concluded that the 

proposed regulations may be interpreted 

to permit a depository institution that 

has filed a SAR to share the SAR, or any 

information that would reveal the 

existence of the SAR, with an affiliate 10

that is subject to a SAR regulation 11

issued by FinCEN or the Federal 

Banking Agencies. 

FinCEN has concluded that such 

sharing within a corporate organization 

is consistent with two important 

purposes of the BSA: Promoting efforts 

to detect and report money laundering 

and terrorist financing by financial 

institutions that are subject to the BSA, 

and ensuring the confidentiality of a 

SAR or any information that would 

reveal the existence of a SAR. The 

sharing by a depository institution of a 

SAR, or any information that would 

reveal the existence of a SAR, can 

facilitate the identification of suspicious 

transactions taking place through the 

depository institution’s affiliates that are 

also subject to SAR reporting 

requirements. Although the sharing of 

information underlying the filing of a 

SAR has never been prohibited under 

the BSA, it is understood that the 

sharing of a SAR itself pursuant to this 

proposed guidance may entail greater 

efficiencies.12

Moreover, the proposed SAR 

confidentiality rules provide that a 

‘‘SAR, and any information that would 

reveal the existence of a SAR, are 

confidential.’’ 13 Accordingly, affiliates 

subject to a SAR rule are prohibited 

from disclosing any SAR or information 

that a SAR was filed, including both 

SARs they have filed, and any SARs 

they have received that have been filed 

by others. In addition, because the 

guidance applies only to the sharing of 

a SAR by the depository institution 

‘‘that has filed’’ the SAR, the guidance 

includes a statement clarifying that it is 

not permissible for an affiliate that has 

received such a SAR from a depository 

institution to share that SAR, or any 


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10160 Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 

14A footnote in the proposed guidance makes 

clear that foreign branches of U.S. banks generally 

are regarded as foreign banks for purposes of the 

BSA and, therefore, would be ‘‘affiliates’’ that are 

not subject to a SAR regulation. Accordingly, a U.S. 

bank that has filed a SAR may not share the SAR, 

or any information that would reveal the existence 

of the SAR, with its foreign branches. 

15For purposes of the guidance text below, all 

citations to Title 31 SAR regulations are references 

to the amended regulations we anticipate 

promulgating as discussed in the above section, 

Proposed Regulatory Changes. 

1For purposes of this guidance, ‘‘affiliate’’ of a 

depository institution means any company under 

common control with, or controlled by, that 

depository institution. ‘‘Under common control’’ 

means that another company (1) directly or 

indirectly or acting through one or more other 

persons owns, controls, or has the power to vote 25 

percent or more of any class of the voting securities 

of the company and the depository institution; or 

(2) controls in any manner the election of a majority 

of the directors or trustees of the company and the 

depository institution. ‘‘Controlled by’’ means that 

the depository institution (1) directly or indirectly 

has the power to vote 25 percent or more of any 

class of the voting securities of the company; or (2) 

controls in any manner the election of a majority 

of the directors or trustees of the company. See, e.g., 

12 U.S.C. 1841(a)(2). 

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

3See 31 CFR 103.18(e). 

4See the Notice of Proposed Rulemaking 

published elsewhere in today’s Federal Register. 

5 Interagency Guidance, ‘‘Sharing Suspicious 

Activity Reports with Head Offices and Controlling 

Companies’’ (January 20, 2006). 

6See supra note 5. 

information that would reveal the 

existence of that SAR with another 

affiliate, even if that affiliate is subject 

to a SAR rule. The guidance also states 

that a depository institution, as part of 

its internal controls, should have 

written confidentiality agreements in 

place ensuring that its affiliates protect 

the confidentiality of the SAR through 

appropriate internal controls. Given the 

above restrictions, FinCEN is satisfied 

that the sharing permitted by this 

guidance is consistent with the BSA 

objective to ensure that suspicious 

activity reporting remains confidential. 

FinCEN has declined to permit 

sharing with affiliates that are not 

subject to a SAR rule, whether domestic 

or foreign.14 At this time, it is not 

apparent that such sharing would be 

consistent with the purposes of the 

BSA, to promote efforts to detect and 

report money laundering and terrorist 

financing by financial institutions that 

are subject to rules implementing the 

BSA, and to ensure the confidentiality 

of a SAR or any information that would 

reveal the existence of a SAR. 

Finally, this proposed guidance is 

intended only to remove unnecessary 

obstacles to detecting and reporting 

suspicious activity. It should not be read 

to impose new BSA requirements or to 

suggest that sharing with affiliates is 

compulsory. 

III. Request for Comment 

FinCEN invites comments on all 

aspects of the guidance. We solicit 

comment on whether this proposed 

guidance would achieve the intended 

effect of promoting compliance with the 

BSA. We also request comment on 

whether the proposed guidance will be 

beneficial, whether it raises any 

ambiguities, and whether it will result 

in any negative consequences. In 

addition, we specifically invite 

comment on the following: 

• Whether the definition of affiliate is 

appropriate; 

• Whether the scope of the guidance 

should be expanded to permit sharing 

with other affiliates within the United 

States. Commenters suggesting that the 

scope of the guidance be expanded 

should address how additional sharing 

would be consistent with the purposes 

of Title II of the BSA; 

• Whether the scope of the guidance 

should be expanded to permit sharing 

with other affiliates outside of the 

United States, including with foreign 

branches of U.S. banks. Commenters 

suggesting that the scope of the 

guidance be expanded should address 

how additional sharing outside of the 

U.S. would be consistent with the 

purposes of Title II of the BSA. In 

particular, commenters should explain 

how a foreign affiliate might protect a 

SAR in light of a possible request for 

disclosure abroad that may be subject to 

foreign law; 

• Whether similar provisions to allow 

sharing with certain affiliates should be 

permitted among all financial 

institutions subject to a SAR rule; 

• Whether financial institutions, 

other than depository institutions, 

securities broker-dealers, mutual funds, 

futures commission merchants, or 

introducing brokers in commodities 

subject to a SAR rule, should be 

permitted to share a SAR, or any 

information that would reveal the 

existence of a SAR, with parent entities 

and/or affiliates; and 

• Whether and how a depository 

institution can store and provide access 

to SARs in an electronic system in a 

way that prevents the SARs from being 

subject to disclosure laws or obligations 

of foreign jurisdictions. 

Proposed Interpretive Guidance 15

Sharing Suspicious Activity Reports by 

Depository Institutions With Certain 

U.S. Affiliates 1

The Financial Crimes Enforcement 

Network (‘‘FinCEN’’), after consulting 

with the staffs of the Board of Governors 

of the Federal Reserve System (‘‘FRB’’), 

the Federal Deposit Insurance 

Corporation (‘‘FDIC’’), the National 

Credit Union Administration (‘‘NCUA’’), 

the Office of the Comptroller of the 

Currency (‘‘OCC’’), and the Office of 

Thrift Supervision (‘‘OTS’’) (hereinafter, 

the ‘‘Federal Banking Agencies’’), is 

issuing this guidance to confirm that 

under the Bank Secrecy Act (‘‘BSA’’) 

and its implementing regulations, a 

depository institution subject to FinCEN 

regulations (‘‘depository institution’’) 

that has filed a Suspicious Activity 

Report (‘‘SAR’’) may share the SAR, or 

any information that would reveal the 

existence of the SAR, with certain 

affiliates. This guidance does not 

address the applicability of any other 

Federal or state laws. 

The BSA prohibits the filer of a SAR 

from notifying any person involved in a 

suspicious transaction that the activity 

has been reported.2 Regulations issued 

by FinCEN 3 construe this 

confidentiality provision as generally 

prohibiting a depository institution from 

disclosing a SAR, or any information 

that would reveal the existence of a 

SAR. 

However, the regulations make clear 

that, provided no person involved in the 

transaction is notified that the 

transaction has been reported, the 

prohibition does not include disclosures 

to (1) FinCEN; (2) any Federal, state, or 

local law enforcement agency; or (3) any 

Federal or state regulatory agency that 

examines the depository institution for 

compliance with the BSA. The 

regulations also provide that the 

prohibition does not apply to: (i) The 

disclosure of the underlying facts, 

transactions, and documents upon 

which a SAR is based, including, but 

not limited to, disclosures related to 

filing a joint SAR and in connection 

with certain employment references or 

termination notices; and (ii) the sharing 

of a SAR, or any information that would 

reveal the existence of a SAR, within a 

depository institution’s corporate 

organizational structure for purposes 

consistent with Title II of the BSA, as 

determined by regulation or in 

guidance.4

In previously issued guidance 

(‘‘January 2006 Guidance’’), FinCEN, the 

OCC, the OTS, the FRB, and the FDIC 

determined that a U.S. branch or agency 

of a foreign bank may share a SAR with 

its head office.5 The January 2006 

Guidance also stipulated that a U.S. 

bank or savings association may share a 

SAR with its controlling company 

(whether domestic or foreign). The 

January 2006 Guidance continues to be 

applicable and comports with the SAR 

regulations referenced above.6 The 


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Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 10161 

7See 31 CFR 103.15 to 103.21. See also, 12 CFR 

208.62 (FRB); 12 CFR 353.3 (FDIC); 12 CFR 748.1 

(NCUA); 12 CFR 21.11 (OCC); and 12 CFR 563.180 

(OTS). 

8Because foreign branches of U.S. banks are 

regarded as foreign banks for purposes of the BSA, 

under this guidance, they are ‘‘affiliates’’ that are 

not subject to a SAR regulation. Accordingly, a U.S. 

bank that has filed a SAR may not share the SAR, 

or any information that would reveal the existence 

of the SAR, with its foreign branches. 

1This single docket number is shared by three 

related documents (a notice of proposed 

rulemaking, and this and another piece of proposed 

guidance related to that notice of proposed 

rulemaking) published simultaneously by FinCEN 

in today’s Federal Register. Accordingly, 

commenters may submit comments related to any 

of the proposals, or any combination of proposals, 

in a single comment letter. 

2See 31 CFR 103.15 to 103.21. 

3 ‘‘Guidance on Sharing of Suspicious Activity 

Reports by Securities Broker-Dealers, Futures 

Continued 

sharing of a SAR or, more broadly, any 

information that would reveal the 

existence of a SAR, with a head office 

or controlling company (including 

overseas) promotes compliance with the 

applicable requirements of the BSA by 

enabling the head office or controlling 

company to discharge its oversight 

responsibilities with respect to 

enterprise-wide risk management, 

including oversight of a depository 

institution’s compliance with applicable 

laws and regulations. 

The January 2006 Guidance deferred 

taking a position on whether a 

depository institution is permitted to 

share a SAR with affiliates and directed 

institutions not to share with such 

affiliates. FinCEN has now concluded 

that a depository institution that has 

filed a SAR may share the SAR, or any 

information that would reveal the 

existence of the SAR, with an affiliate, 

as defined herein, provided the affiliate 

is subject to a SAR regulation.7 The 

sharing of SARs with such affiliates 

facilitates the identification of 

suspicious transactions taking place 

through the depository institution’s 

affiliates that are subject to a SAR rule. 

Therefore, such sharing within the 

depository institution’s corporate 

organizational structure is consistent 

with the purposes of Title II of the 

BSA.8

It is not consistent with the purposes 

of Title II of the BSA for an affiliate that 

has received a SAR from a depository 

institution that has filed the SAR to 

further share that SAR, or any 

information that would reveal the 

existence of that SAR with an affiliate 

of its own, even if that affiliate is subject 

to a SAR rule. 

As is the case with sharing SARs with 

head offices and controlling companies, 

there may be circumstances under 

which a depository institution, its 

affiliate, or both entities would be liable 

for direct or indirect disclosure by the 

affiliate of a SAR or any information 

that would reveal the existence of a 

SAR. Therefore, the depository 

institution, as part of its internal 

controls, should have written 

confidentiality agreements in place 

ensuring that its affiliates protect the 

confidentiality of the SAR through 

appropriate internal controls. 

Consistent with the BSA and the 

implementing regulations issued by 

FinCEN and the Federal Banking 

Agencies, a SAR, or any information 

that would reveal the existence of a 

SAR, must not be disclosed, even under 

this guidance, if the depository 

institution has reason to believe it may 

be disclosed to any person involved in 

the suspicious activity that is the subject 

of the SAR. 

Dated: February 27, 2009. 

James H. Freis, Jr., 

Director, Financial Crimes Enforcement 

Network. 

[FR Doc. E9–4693 Filed 3–6–09; 8:45 am] 

BILLING CODE 4810–02–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 103 

[Docket Number: TREAS–FinCen–2008– 

0022] 

Interpretive Guidance—Sharing 

Suspicious Activity Reports by 

Securities Broker-Dealers, Mutual 

Funds, Futures Commission 

Merchants, and Introducing Brokers in 

Commodities With Certain U.S. 

Affiliates 

AGENCY: Financial Crimes Enforcement 

Network, Department of the Treasury. 

ACTION: Proposed guidance. 

SUMMARY: The Financial Crimes 

Enforcement Network (‘‘FinCEN’’) of the 

Department of the Treasury, after 

consulting with staffs of the U.S. 

Securities and Exchange Commission 

(‘‘SEC’’) and the Commodity Futures 

Trading Commission (‘‘CFTC’’), is 

issuing for comment this proposed 

interpretive guidance. Published 

elsewhere in this part of the Federal 

Register are proposed rules clarifying 

the scope of the statutory prohibition on 

the disclosure by a financial institution 

of a report of a suspicious transaction 

set forth in the Bank Secrecy Act 

(‘‘BSA’’). The proposed rules include a 

provision which states that the 

prohibition does not apply when a 

securities broker-dealer, mutual fund, 

futures commission merchant, or 

introducing broker in commodities 

shares a suspicious activity report 

(‘‘SAR’’), or any information that would 

reveal the existence of a SAR, within its 

corporate organizational structure for 

purposes consistent with Title II of the 

BSA, as determined by regulation or 

guidance. The proposed guidance 

interprets this provision to permit a 

securities broker-dealer, mutual fund, 

futures commission merchant, or 

introducing broker in commodities to 

share a SAR with its affiliates that are 

also subject to SAR rules. 

DATES: Written comments on the 

proposed guidance may be submitted on 

or before June 8, 2009. 

ADDRESSES: You may submit comments, 

identified by docket number TREAS– 

FinCen–2008–0022,1 by any of the 

following methods: 

• Federal e-rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

regcomments@fincen.treas.gov. Include 

docket number TREAS–FinCen–2008– 

0022 in the subject line of the message. 

• Mail: FinCEN, P.O. Box 39, Vienna, 

VA 22183. Include docket number 

TREAS–FinCen–2008–0022 in the body 

of the text. 

FOR FURTHER INFORMATION CONTACT: 

Regulatory Policy and Programs 

Division, FinCEN, (800) 949–2732. 

SUPPLEMENTARY INFORMATION: 

I. Background 

FinCEN, through its authority under 

the BSA as delegated by the Secretary of 

the Treasury, may require financial 

institutions to keep records and file 

reports that FinCEN determines have a 

high degree of usefulness in criminal, 

tax, or regulatory investigations or 

proceedings, or for intelligence or 

counterintelligence activities to protect 

against international terrorism. Within 

this framework, FinCEN may require 

financial institutions to file SARs and 

has issued rules implementing that 

specific authority with respect to certain 

types of financial institutions.2

Sharing Within the Corporate 

Organizational Structure 

In January 2006, FinCEN, after 

consulting with the staffs of the 

Securities Exchange Commission 

(‘‘SEC’’) and the Commodity Futures 

Trading Commission (‘‘CFTC’’), 

determined that, subject to certain 

exceptions or qualifications, a securities 

broker-dealer, futures commission 

merchant, or introducing broker in 

commodities may share a SAR with its 

parent entities, both domestic and 

foreign.3 Moreover, guidance issued by 


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