Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 10139 

standards for determining whether a 

SAR should be disclosed will not have 

an annual effect on the economy of $100 

million or more. The OCC further 

concludes that this proposal 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 proposed 

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 (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 these 

proposed amendments, which change 

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 proposal 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 

proposed to be 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), 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 solely 

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 paragraph § 4.37(c), remove the 

reference to ‘‘§ 4.37’’ in the last sentence 

and add in lieu thereof ‘‘§ 4.38.’’ 

Dated: January 22, 2009. 

John C. Dugan, 

Comptroller of the Currency. 

[FR Doc. E9–4700 Filed 3–6–09; 8:45 am] 

BILLING CODE 4810–33–P 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 563 

[Docket ID OTS–2008–0015] 

RIN 1550–AC26 

Confidentiality of Suspicious Activity 

Reports 

AGENCY: The Office of Thrift 

Supervision, Treasury (OTS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The OTS is proposing 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 report of 

a suspicious transaction, as it applies to 

savings associations and service 

corporations; address the statutory 

prohibition on the disclosure by the 

government of a report of a suspicious 

transaction, as that prohibition applies 

to the OTS’s standards governing the 

disclosure of SARs; clarify 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 its 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 based upon 

a similar proposal being 

contemporaneously issued by the Office 

of Comptroller of the Currency (OCC) 

and the Financial Crimes Enforcement 

Network (FinCEN). 

DATES: Comments must be received by 

June 8, 2009. 

ADDRESSES: You may submit comments, 

identified by OTS–2008–0015 (‘‘docket 

number’’) by any of the following 

methods: 

• Federal eRulemaking Portal:— 

‘‘Regulations.gov’’: Go to http:// 

www.regulations.gov, under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Docket Search’’ option 

where indicated, select ‘‘Office of Thrift 

Supervision’’ from the agency dropdown menu, then click ‘‘Submit.’’ In the 


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10140 Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 

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 Public Law 102–550, Title XV, 

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

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

Federal Reserve System (FRB), the Federal Deposit 

Insurance Corporation (FDIC), the Office of Thrift 

Supervision (OTS), and the 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). 

2See USA PATRIOT Act, section 351(a). Pub. L. 

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

3FinCEN is the agency designated by the 

Department of Treasury to administer the BSA, and 

with which SARS must be filed. See 31 U.S.C. 5318; 

12 CFR 563.180(d). 

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). 

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). 

‘‘Docket ID’’ column, select ‘‘OTS– 

2008–0015’’ to submit or view public 

comments and to view supporting and 

related materials for this notice of 

proposed rulemaking. The ‘‘How to Use 

This Site’’ link on the Regulations.gov 

home page provides information on 

using Regulations.gov, including 

instructions for submitting or viewing 

public comments, viewing other 

supporting and related materials, and 

viewing the docket after the close of the 

comment period. 

• E-mail address: 

regs.comments@ots.treas.gov. Please 

include OTS–2008–0015 in the subject 

line of the message and include your 

name and telephone number in the 

message. 

• Fax: (202) 906–6518. 

• Mail: Regulation Comments, Chief 

Counsel’s Office, Office of Thrift 

Supervision, 1700 G Street, NW., 

Washington, DC 20552, Attention: OTS– 

2008–0015. 

• Hand Delivery/Courier: Guard’s 

Desk, East Lobby Entrance, 1700 G 

Street, NW., from 9 a.m. to 4 p.m. on 

business days, Attention: Regulation 

Comments, Chief Counsel’s Office, 

OTS–2008–0015. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received will 

be posted without change to the OTS 

Internet Site at http://www.ots.treas.gov/ 

Supervision&Legal.Laws&Regulations, 

including any personal information 

provided. Comments received, 

including attachments and other 

supporting materials, are part of the 

public record and subject to public 

disclosure. Do not enclose any 

information in your comment or 

supporting materials that could be 

considered confidential or inappropriate 

for public disclosure. 

• Viewing Comments Electronically: 

Go to http://www.regulations.gov, under 

the ‘‘More Search Options’’ tab click 

next to the ‘‘Advanced Document 

Search’’ option where indicated, select 

‘‘Office of Thrift Supervision’’ from the 

agency drop-down menu and click 

‘‘Submit.’’ In the ‘‘Docket ID’’ column, 

select ‘‘[OTS–2008–0015]’’ to view 

public comments for this rulemaking 

action. 

• Viewing Comments On-Site: You 

may inspect comments at the OTS’s 

Public Reading Room, 1700 G Street, 

NW., by appointment. To make an 

appointment call (202) 906–5922, send 

an e-mail to public.info@ots.treas.gov, or 

send a facsimile transmission to (202) 

906–6518. (Prior notice identifying the 

materials you will be requesting will 

assist us in serving you.) We schedule 

appointments on business days between 

10 a.m. and 4 p.m. In most cases, 

appointments will be available the next 

business day following the date we 

receive a request. 

FOR FURTHER INFORMATION CONTACT: 

Louise Batdorf, Analyst, BSA and 

Compliance Examinations (202–906– 

7087); Marvin Shaw, Senior Attorney, 

Regulations and Legislation (202–906– 

6639); Margaret McPartlin, Senior 

Attorney, Enforcement (202–906–6831); 

or Noelle Kurtin, Senior Attorney, 

Enforcement (202–906–6739). 

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 

transaction related to a money 

laundering activity or a violation of the 

BSA, 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. To 

encourage the 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. In 2001, the 

USA PATRIOT Act clarified that the 

safe harbor 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 

which may exist ‘‘under any contract or 

other legally enforceable agreement 

(including any arbitration agreement.)’’ 2

FinCEN 3 has issued rules 

implementing 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 that 

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 regulation and the required filing of 

SARs. 

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 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 The USA PATRIOT Act 

also expanded the safe harbor provision 

shielding financial institutions from 

liability for voluntary reporting of 

possible violations of law and 

regulations, and the filing of SARs, to 

cover any civil liability which may exist 

‘‘under any contract or other legally 

enforceable agreement (including any 

arbitration agreement).’’ 7

FinCEN is proposing to modify its 

SAR rule to interpret or further interpret 

the provisions of the BSA that relate to 

the confidentiality of SARs and the safe 

harbor for such reporting. The OTS is 


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8 12 CFR 563.180(d)(13). 

9See, e.g., 31 CFR 103.19 (FinCEN regulations 

requiring brokers or dealers in securities to file 

reports of suspicious transactions on a SAR–S–F). 

10 12 CFR 563.180(d)(12). 

proposing to amend its rule 

contemporaneously, based upon the 

proposal being issued by FinCEN, to 

clarify the manner in which these 

provisions apply to savings associations 

and service corporations and the OTS’s 

own standards governing the disclosure 

of a SAR and any information that 

would reveal the existence of a SAR 

(referred to in this preamble as ‘‘SAR 

information’’). 

II. Overview of Proposal 

The proposed amendments to the 

OTS’s rule include key changes that 

would (1) clarify the scope of the 

statutory prohibition on the disclosure 

by a financial institution of a report of 

a suspicious transaction, as it applies to 

savings associations and service 

corporations; (2) address the statutory 

prohibition on the disclosure by the 

government of a report of a suspicious 

transaction, which was added to the 

BSA by section 351(b) of the USA 

PATRIOT Act of 2001, as that 

prohibition applies to the OTS’s 

standards governing the disclosure of 

SAR information; and (3) clarify that the 

exclusive standard applicable to the 

disclosure of SAR information by the 

OTS is ‘‘to fulfill official duties 

consistent with the purposes 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. In addition, the proposed 

amendments would modify the safe 

harbor provision in the OTS’s SAR 

rules 8 to include changes made by the 

USA PATRIOT Act. 

In addition, as described in Section 

III, FinCEN is issuing for notice and 

comment proposed guidance regarding 

the sharing of SARs with affiliates. 

FinCEN’s proposed guidance interprets 

a provision of the proposed rulemaking, 

and, accordingly, should be read in 

conjunction with this notice. 

In a separate rulemaking, the OTS 

also is simultaneously proposing to 

amend its information disclosure 

regulation set forth in 12 CFR 510.5, to 

clarify that the exclusive standard 

governing the release of a SAR is set 

forth in 12 CFR 563.180. The OTS is 

issuing this proposed amendment to 12 

CFR part 510, at the same time, to make 

clear that the OTS will disclose SAR 

information only when necessary to 

satisfy the BSA purposes for which 

SARs are filed. 

III. Section-by-Section Description of 

the Proposal 

Section 563.180(d)(2)(iii): Definition of a 

SAR 

The primary purpose of the OTS’s 

SAR rule is to ensure that a savings 

association or service corporation files a 

SAR when it detects a known or 

suspected violation of a federal law or 

a suspicious transaction related to a 

money laundering activity or a violation 

of the BSA. See 12 CFR 563.180. 

Incidental to this purpose, the OTS’s 

SAR rule includes a section that 

addresses the confidentiality of SARs. 

Under the current SAR rule, the term 

‘‘SAR’’ means ‘‘a Suspicious Activity 

Report on the form prescribed by the 

OTS.’’ The proposed rule simply defines 

a ‘‘SAR’’ generically as ‘‘a Suspicious 

Activity Report.’’ This change would 

extend the confidentiality provisions of 

the OTS’s SAR rule to all SARs, 

including those filed on forms 

prescribed by FinCEN.9 As a 

consequence, a savings association or 

service corporation that obtained a SAR, 

for example, from a non-bank affiliate 

pursuant to the provisions of this 

proposed rule, would be required to 

safeguard the confidentiality of the SAR, 

even if the SAR had not been filed on 

a form prescribed by the OTS. 

Section 563.180(d)(3): SARs Required 

To clarify that a savings association or 

service corporation must file a SAR on 

a form ‘‘prescribed by the OTS,’’ the 

OTS is proposing to add this phrase to 

the introductory language of the section 

of the OTS’s SAR rule that describes the 

procedures for filing of a SAR. 

Accordingly, the proposed rules require 

a savings association or service 

corporation to file a SAR with the 

appropriate Federal law enforcement 

agencies and the Department of the 

Treasury on the form prescribed by the 

OTS in accordance with the form’s 

instructions, by sending a completed 

SAR to FinCEN. 

Section 563.180(d)(12): Confidentiality 

of SARs 

The OTS is proposing to amend its 

rules regarding SAR confidentiality 10

by modifying the introductory sentence, 

and dividing the remainder of the 

current provision into two sections. The 

first section would describe the 

prohibition on disclosure of SAR 

information by savings associations and 

service corporations, and the rules of 

construction applicable to this 

prohibition. The second section would 

describe the prohibition on the OTS’s 

disclosure of SAR information. 

Currently, the OTS’s rules prohibiting 

the disclosure of SARs begins with the 

statement that SARs are confidential. 

Over the years, the OTS has received 

numerous questions regarding the scope 

of the prohibition on the disclosure of 

a SAR in the OTS’s current rules. 

Accordingly, the OTS is proposing to 

clarify the scope of SAR confidentiality 

by more clearly describing the 

information that is subject to the 

prohibition. Like FinCEN, the OTS 

believes that all of the reasons for 

maintaining the confidentiality of SARs 

are equally applicable to any 

information that would reveal the 

existence of a SAR. 

The OTS believes that the 

confidentiality of a SAR cannot be 

maintained unless any information that 

would reveal the existence of a SAR 

(such as the draft of a SAR that has been 

filed) is protected from disclosure. The 

confidentiality of SARs must be 

maintained for a number of compelling 

reasons. For example, the disclosure of 

a SAR could result in notification to 

persons involved in the transaction that 

is being reported, and compromise any 

investigations being conducted in 

connection with the SAR. In addition, 

even the occasional disclosure of a SAR 

could chill the willingness of a savings 

association or service corporation to file 

SARs, and to provide the degree of 

detail and completeness in describing 

suspicious activity in SARs that will be 

of use to law enforcement. If a savings 

association or service corporation 

believes that a SAR can be used for 

purposes unrelated to the law 

enforcement and regulatory purposes of 

the BSA, the disclosure of such 

information could adversely affect the 

timely, appropriate, and candid 

reporting of suspicious transactions. 

Savings associations and service 

corporations also may be reluctant to 

report suspicious transactions, or may 

delay making such reports, for fear that 

the disclosure of a SAR will interfere 

with its relationship with its customer. 

Further, a SAR may provide insight into 

how a savings association or service 

corporation uncovers potential criminal 

conduct that can be used by others to 

circumvent detection. The disclosure of 

a SAR also could harm the personal 

privacy interests of individuals and 

reputational interests of companies that 

may be named. Finally, the disclosure of 

a SAR for uses unrelated to the law 

enforcement and regulatory purposes for 

which SARs are intended increases the 

risk that savings associations’ or service 

corporations’ employees or others who 


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10142 Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Proposed Rules 

11See 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). 

12See Cotton v. Private Bank and Trust Co., 235 

F. Supp. 2d 809, 815 (N.D. Ill. 2002). 

13The underlying facts, transactions, and 

documents upon which a SAR is based do not 

include previously filed SARs that were not jointly 

filed. 

14On 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. 

Although joint filing of SARs by depository 

institutions is not permitted at this time, this 

proposal would amend the agencies’ regulations to 

enable depository institutions to make disclosures 

are involved in the preparation or filing 

of a SAR could become targets for 

retaliation by persons whose criminal 

conduct has been reported. 

These reasons for maintaining the 

confidentiality of SARs also apply to 

any information that would reveal the 

existence of a SAR. Therefore, like 

FinCEN, the OTS is proposing to modify 

the general introduction in its rules to 

state that confidential treatment must 

also be afforded to ‘‘any information 

that would reveal the existence of a 

SAR.’’ The introduction also would 

indicate that SAR information may not 

be disclosed, except as authorized in the 

narrow circumstances that follow. 

Section 563.180(d): Prohibition on 

Disclosure by Savings Associations 

The OTS’s current rules provide that 

any institution or person subpoenaed or 

otherwise requested to disclose a SAR 

or the information contained in a SAR 

must (1) decline to produce the SAR or 

to provide any information that would 

disclose that a SAR has been prepared 

or filed, and (2) notify the OTS. 

The proposed rules more specifically 

address the prohibition on the 

disclosure of a SAR by a savings 

association or service corporation. The 

rules provide that the prohibition 

includes ‘‘any information that would 

reveal the existence of a SAR’’ instead 

of using the phrase ‘‘any information 

that would disclose that a SAR has been 

prepared or filed.’’ The OTS, like 

FinCEN and the OCC, believes that this 

phrase more clearly describes the type 

of information that is covered by the 

prohibition on the disclosure of a SAR. 

In addition, the proposed rules 

incorporate the specific reference in 31 

U.S.C. 5318(g)(2)(A)(i) to ‘‘directors, 

officers, employees and agents,’’ in 

order to clarify that the prohibition on 

disclosure extends to those individuals 

in a savings association or service 

corporation who may have access to 

SAR information. 

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

states that a ‘‘person involved in the 

transaction may not be notified that the 

transaction has been reported,’’ the 

proposed rules continue to reflect case 

law that has consistently concluded in 

accordance with applicable regulations, 

that financial institutions are broadly 

prohibited from disclosing a SAR or 

information that would reveal existence 

of a SAR to any person. Accordingly, 

these cases have held that, in the 

context of discovery in connection with 

civil lawsuits, financial institutions are 

prohibited from disclosing a SAR or 

information that would reveal the 

existence of a SAR, because section 

5318(g) and its implementing 

regulations have created an unqualified 

discovery and evidentiary privilege for 

such information that cannot be waived 

by financial institutions.11 Consistent 

with case law and current regulation, 

the texts of the proposed rules do not 

limit the prohibitions on disclosure only 

to the person involved in the 

transaction. Permitting disclosure 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 

statute. 

The proposed rules continue to 

provide that any savings association, or 

any director, officer, employee or agent 

of a savings association, subpoenaed or 

otherwise requested to disclose SAR 

information must decline to provide the 

information, citing this section of the 

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

must give notice of the request to the 

OTS. In addition, the proposed rules 

require the savings association or 

service corporation to notify the OTS of 

its response to the request, and require 

the savings association or service 

corporation, to provide the same 

information to FinCEN. This new 

notification requirement was added to 

the proposed rules so that either or both 

agencies can intervene to prevent the 

disclosure of SAR information by a 

savings association or service 

corporation, if necessary. 

Section 563.180(d)(12)(ii): Rules of 

Construction 

The OTS, like FinCEN and the OCC, 

is proposing rules of construction to 

address issues that have arisen over the 

years about the scope of the SAR 

disclosure prohibition, and to 

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 on 

disclosure of SAR information by a 

savings association or service 

corporation. The introduction to these 

rules makes clear that the rules of 

construction are each qualified by the 

statutory mandate that no person 

involved in any reported suspicious 

transaction can be notified that the 

transaction has been reported. 

The first proposed rule of 

construction states that a savings 

association or service corporation, or 

any director, officer, employee or agent 

of a savings association or service 

corporation may disclose SAR 

information to FinCEN or any Federal, 

state, or local law enforcement agency; 

or any federal or state regulatory agency 

that examines the financial institution 

for compliance with the BSA. Although 

the permissibility of such disclosures 

may be readily apparent, the proposal 

contains this statement to clarify that a 

savings association or service 

corporation cannot use the prohibition 

on disclosure of SAR information to 

withhold this information from 

governmental authorities that are 

otherwise entitled by law to receive 

SARs and to examine for and investigate 

suspicious activity. 

The second proposed rule of 

construction provides that SAR 

information does not include the 

underlying facts, transactions, and 

documents upon which a SAR is based. 

This statement reflects case law which 

has recognized 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.12

This proposed rule of construction 

includes some illustrative examples of 

situations where a savings association or 

service corporation may disclose the 

underlying facts, transactions, and 

documents upon which a SAR is based. 

The first example clarifies that a savings 

association or service corporation may 

disclose this information 13 to another 

financial institution, or any director, 

officer, employee or agent of the 

financial institution, for the preparation 

of a joint SAR.14 The second example 


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necessary to effectuate joint SAR filings, in the 

event that the revised SAR form becomes effective. 

15 31 U.S.C. 5318(b)(2)(B). 

16 ‘‘Interagency Guidance on Sharing Suspicious 

Activity Reports with Head Offices and Controlling 

Companies’’ (January 20, 2006). 

17Under the proposed guidance, an ‘‘affiliate’’ of 

a depository institution means any company under 

common control with, or controlled by, that 

depository institution. 

18See, e.g., 12 CFR 21.11 (SAR rule applicable to 

national banks). 

19 31 U.S.C. 5311 (setting forth the purposes of the 

BSA). 20See, 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). 

simply codifies a rule of construction 

added to the BSA by section 351 of the 

USA PATRIOT Act which provides that 

such underlying information may be 

disclosed in certain written employment 

references and termination notices.15

The third proposed rule of 

construction makes clear that the 

prohibition on the disclosure of SAR 

information by a savings association or 

service corporation does not include the 

sharing by a savings association or 

service corporation, or any director, 

officer, employee or agent of such a 

financial institution, of SAR information 

within the institution’s corporate 

organizational structure, for purposes 

consistent with Title II of the BSA, as 

determined by regulation or in 

published guidance. This proposed rule 

recognizes that a savings association or 

service corporation may find it 

necessary to share SAR information to 

fulfill its reporting obligations under the 

BSA, and to facilitate more effective 

enterprise-wide BSA monitoring and 

reporting, consistent with Title II of the 

BSA. 

FinCEN and the Federal bank 

regulatory agencies have already issued 

joint guidance making clear that the 

U.S. branch or agency of a foreign bank 

may share a SAR with its head office, 

and that a U.S. bank or savings 

association may share a SAR with its 

controlling company (whether domestic 

or foreign). This guidance stated that the 

sharing of a SAR with a head office or 

controlling company both facilitates 

compliance with the applicable 

requirements of the BSA and enables 

the head office or controlling company 

to discharge its oversight 

responsibilities with respect to 

enterprise-wide risk management and 

compliance with applicable laws and 

regulations.16 Concurrent with this 

proposed rulemaking, FinCEN is issuing 

additional guidance for notice and 

comment that further elaborates on 

sharing of SAR information within a 

corporate organization that FinCEN 

considers to be ‘‘consistent with the 

purposes of the BSA.’’ FinCEN has 

indicated that the proposed guidance 

would generally permit sharing of SAR 

information by depository institutions 

with their affiliates 17 that are subject to 

a SAR.18 Consistent with the BSA and 

the proposed rules of construction, the 

proposed guidance also states that a 

financial institution may not share SAR 

information if the institution has reason 

to believe that the SAR may be 

disclosed to any person involved in the 

suspicious activity that is the subject of 

the SAR. 

Section 563.180(d)(12): Prohibition on 

Disclosure by the OTS 

As previously noted, section 351 of 

the USA PATRIOT Act, 31 U.S.C. 

5318(g)(2)(A)(ii), amended the BSA, and 

added a new provision prohibiting 

officers and employees of the 

government from disclosing a SAR 

except ‘‘as necessary to fulfill the 

official duties of such officer or 

employee.’’ The OTS is proposing rules 

to address this new section that are 

comparable to those being proposed by 

the OCC and FinCEN. The proposed 

rules provide that the OTS will not, and 

no officer, employee or agent of the 

OTS, shall disclose SAR information, 

‘‘except as necessary to fulfill official 

duties consistent with Title II of the 

Bank Secrecy Act.’’ 

As stated in section 5318(g)(2)(A)(i), 

which prohibits a financial institution’s 

disclosure of a SAR, section 

5318(g)(2)(A)(ii) also prohibits the 

government from disclosing a SAR to 

‘‘any person involved in the 

transaction.’’ The OTS, like the OCC 

and FinCEN, is proposing to address 

sections 5318(g)(2)(A)(i) and (A)(ii) in a 

consistent manner, because disclosure 

by a governmental authority of SAR 

information to any outside party may 

make it likely that the information will 

be disclosed to a person involved in the 

transaction. Accordingly, the section of 

the rules that address the disclosure of 

SAR information by the OTS and its 

officers, employees and agents is broad, 

and does not simply prohibit disclosure 

to ‘‘any person involved in the 

transaction.’’ 

Section 5318(g)(2)(A)(ii) narrowly 

permits governmental disclosures as 

necessary to ‘‘fulfill official duties,’’ a 

phrase that is not defined in the BSA. 

Consistent with the rules being 

proposed by FinCEN and the OCC, the 

OTS is proposing to construe this 

phrase in the context of the BSA, in 

light of the purpose for which SARs are 

filed. Accordingly, the proposed rules 

interpret ‘‘official duties’’ to mean 

‘‘official duties consistent with the 

purposes of Title II of the BSA,’’ 

namely, for ‘‘criminal, tax, or regulatory 

investigations or proceedings, or in the 

conduct of intelligence or 

counterintelligence activities, including 

analysis, to protect against international 

terrorism.’’ 19 This standard would 

permit, for example, 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 

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.20

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 disclosure of SAR 

information to the media. 

The proposed rules also specifically 

provide 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 

unpublished information under 12 CFR 

510.3. This statement, which 

corresponds to a similar provision in 

FinCEN’s proposed rules, clearly 

establishes that the OTS will not 

disclose SAR information to a private 

litigant for use in a private legal 

proceeding, or pursuant to 12 CFR 

510.3, because such a request cannot be 

consistent with any of the purposes 

enumerated in Title II of the BSA. The 

BSA exists, in part, to protect the 

public’s interest in an effective reporting 

system that benefits the nation by 

helping to ensure that the U.S. financial 

system will not be used for criminal 

activity or to support terrorism. The 

OTS, like 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, that such disclosures will 

chill full and candid reporting by 

financial institutions, including savings 

associations. 

Finally, the proposed rules would 

apply to the OTS, in addition to its 

officers, employees, and agents. 

Comparable to a provision being 

proposed by FinCEN and the OCC, the 

OTS is proposing to include the agency 

itself in the scope of coverage, because 


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21See footnote 1. 

22See 31 CFR 103.18(e) (FinCEN), 12 CFR 21.11(l) 

(OCC), 12 CFR 563.180(d)(13) (OTS). The safe 

harbor regulations are also applicable to oral reports 

of violations. In situations requiring immediate 

attention, a financial institution must immediately 

notify its regulator and appropriate law 

enforcement by telephone, in addition to filing a 

SAR. See, e.g., 12 CFR 563.180(d)(13). 

requests for SAR information are 

typically directed to the agency, rather 

than to individuals within the OTS with 

authority to respond to the request. In 

addition, agents are included in the 

proposed paragraph because agents of 

the OTS may have access to SAR 

information. Accordingly, this proposed 

interpretation would more 

comprehensively cover disclosures by 

the OTS, agents of the OTS, and protect 

the confidentiality of SAR information. 

Section 563.180(d)(13): Safe Harbor/ 

Limitation on Liability 

In 1992, the Annunzio-Wylie Act 

amended the BSA by providing a safe 

harbor for financial institutions and 

their employees from civil liability for 

the reporting of known or suspected 

criminal offenses or suspicious activity 

through the filing of a SAR.21 FinCEN, 

the OCC, and the OTS incorporated the 

safe harbor provisions of the 1992 law 

into their SAR rules.22 In Section 351 of 

the USA PATRIOT Act, Congress 

amended section 5318(g)(3) to clarify 

the scope of the safe harbor provision to 

include 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).’’ The OTS 

has more closely tracked the statutory 

language in the proposed rule, 

particularly by stating that the safe 

harbor applies to ‘‘disclosures’’ (and not 

‘‘reports’’ as in some previous 

rulemakings) made by institutions. The 

OTS, like FinCEN and the OCC, has 

incorporated the statutory expansion of 

the safe harbor by placing a crossreference to section 5318(g)(3) in the 

proposed rules. 

Additionally, to comport with the 

authorization to jointly file SARs, like 

FinCEN, the OTS is clarifying 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 has also been 

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 the 

OTS or FinCEN, fall within the scope of 

the safe harbor. 

Conforming Amendments to 12 CFR 

Part 510 

The OTS is proposing to amend its 

release of unpublished OTS information 

rule set forth in 12 CFR part 510. Among 

other things, the proposal clarifies that 

the OTS’s disclosure of SAR 

information will be governed 

exclusively by the standards set forth in 

the proposed amendments to the OTS’s 

SAR rule set forth in 12 CFR 563.180. 

The effect of these proposed 

amendments is that the OTS: (i) Will not 

release SAR information to private 

litigants; and (ii) will only release SAR 

information to other government 

agencies, in response to a request or in 

the exercise of its discretion, when 

necessary to fulfill official duties 

consistent with the purposes of Title II 

of the BSA. 

IV. Request for Comments 

The OTS welcomes comments on any 

aspect of these proposed amendments to 

the SAR rules. 

The OTS has timed the release of this 

proposal to coincide with the issuance 

of the proposed rule to amend the 

information disclosure rules set forth in 

12 CFR part 510, so that commenters 

can consider each proposal in 

commenting on the other. 

V. OTS Solicitation of Comments on 

Use of Plain Language 

Section 722 of the Gramm-LeachBliley Act, Public Law 106–102, sec. 

722, 113 Stat. 1338, 1471 (Nov. 12, 

1999), requires the OTS to use plain 

language in all proposed and final rules 

published after January 1, 2000. 

Therefore, the OTS specifically invite 

your comments on how to make this 

proposal easier to understand. For 

example: 

• Have we organized the material to 

suit your needs? If not, how could this 

material be better organized? 

• Are the requirements in the 

proposed regulations clearly stated? If 

not, how could the regulations be more 

clearly stated? 

• Do the proposed regulations contain 

language or jargon that is not clear? If 

so, which language requires 

clarification? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the regulations 

easier to understand? If so, what 

changes to the format would make them 

easier to understand? 

• What else could we do to make the 

regulations easier to understand? 

VI. OTS 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 

proposed rules do 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 proposal 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 

proposal is not a significant regulatory 

action under Executive Order 12866. We 

have concluded that the changes that 

would be made by this proposed rule 

will not have an annual effect on the 

economy of $100 million or more. The 

OTS further concludes that this 

proposal does not meet any of the other 

standards for a significant regulatory 

action set forth in Executive Order 

12866. 

Paperwork Reduction Act 

The OTS has reviewed the proposed 

rule in accordance with the Paperwork 

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

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

has 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. The current 

inflation-adjusted expenditure threshold 

is $133 million. If a budgetary impact 

statement is required, section 205 of the 

Unfunded Mandates Act also requires 


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an agency to identify and consider a 

reasonable number of regulatory 

alternatives before promulgating a rule. 

The OTS has determined that this 

proposed rule 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 12 CFR Part 563 

Crime, Currency, Savings 

associations, Reporting and 

recordkeeping requirements, Security 

measures. 

Authority and Issuance 

For the reasons set forth in the 

preamble, part 563 of title 12 of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 563—SAVINGS 

ASSOCIATIONS—OPERATIONS 

1. The authority citation for part 563 

continues to read as follows: 

Authority: 12 U.S.C. 375b, 1462a, 1463, 

1464, 1467a, 1468, 1817, 1828, 3806; 31 

U.S.C 5318; 

2. Section 563.180 is amended by 

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

introductory text, (d)(12), and (d)(13) 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: 

* * * * * 

(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—(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: 

(1) Deputy Chief Counsel, Litigation 

Division, Office of Thrift Supervision; 

and 

(2) 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, 

subparagraph (k)(1) 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 any Federal, state, or local 

law enforcement agency; or any Federal 

or state regulatory authority that 

examines the savings association for 

compliance with the Bank Secrecy Act; 

or 

(2) The underlying facts, transactions, 

and documents upon which a SAR is 

based, including 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 any director, officer, 

employee, or agent of a savings 

association, of a SAR, or any 

information that would reveal the 

existence of a SAR, within the savings 

association’s corporate organizational 

structure, for purposes consistent with 

Title II of the Bank Secrecy Act as 

determined by regulation or in 

published guidance. 

(iii) Prohibition on disclosure by OTS. 

Neither OTS (nor any 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. 

(13) 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: November 18, 2008. 

By the Office of Thrift Supervision. 

John M. Reich, 

Director. 

Editorial Note: This document was 

received in the Office of the Federal Register 

on February 27, 2009. 

[FR Doc. E9–4701 Filed 3–6–09; 8:45 am] 

BILLING CODE 6720–01–P 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 510 

[Docket ID OTS–2008–0018] 

RIN 1550–AC28 

Standards Governing the Release of a 

Suspicious Activity Report 

AGENCY: Office of Thrift Supervision, 

Treasury. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Office of Thrift 

Supervision (OTS) is proposing to revise 

its regulations governing the release of 

unpublished OTS information. The 

primary change being proposed would 

clarify that the OTS’s decision to release 

a Suspicious Activity Report (SAR) will 

be governed by the standards set forth 

in proposed amendments to the OTS’s 

SAR regulation that are part of a 

separate, but simultaneous, rulemaking. 

DATES: Comments must be received by 

June 8, 2009. 

ADDRESSES: You may submit comments, 

identified by OTS–2008–0018 by any of 

the following methods: 

• Federal Rulemaking Portal:— 

‘‘Regulations.gov’’: Go to http:// 

www.regulations.gov, under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Docket Search’’ option 

where indicated, select ‘‘Office of Thrift 


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