[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Proposed Rules]
[Pages 35830-35834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17117]


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DEPARTMENT OF THE TREASURY

31 CFR Part 103

RIN 1506-AB02


Financial Crimes Enforcement Network: Anti-Money Laundering 
Program and Suspicious Activity Report Requirements for Non-Bank 
Residential Mortgage Lenders and Originators

AGENCY: Financial Crimes Enforcement Network (FinCEN), Department of 
the Treasury.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: FinCEN is issuing this advance notice of proposed rulemaking 
(ANPRM) to solicit public comment on a wide range of questions 
pertaining to the possible application of anti-money laundering (AML) 
program and suspicious activity report (SAR) regulations to a specific 
sub-set of loan and finance companies: Non-bank residential mortgage 
lenders and originators. FinCEN seeks comment on: An incremental 
approach to the issuance of regulations for loan and finance companies 
that would initially affect only those persons engaged in non-bank 
residential mortgage lending or origination; how any such regulations 
should define persons engaged in non-bank residential mortgage lending 
or origination; the financial crime and money laundering risks posed by 
such persons; how AML programs for such persons should be structured; 
whether such persons should be covered by BSA requirements other than 
the AML program requirement, including SAR reporting; and whether any 
such persons should be exempted from AML program or SAR reporting 
requirements.

DATES: Written comments on this ANPRM must be received on or before 
August 20, 2009.

ADDRESSES: FinCEN: You may submit comments, identified by Regulatory

[[Page 35831]]

Identification Number (RIN) 1506-AB02, by any of the following methods:
    <bullet> Federal E-rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Include 1506-AB02 in 
the submission. Refer to Docket Number TREAS-FinCen-2009-0002.
    <bullet> Mail: FinCEN, P.O. Box 39, Vienna, VA 22183. Include 1506-
AB02 in the body of the text.

Please submit comments by one method only. All comments submitted in 
response to this ANPRM will become a matter of public record. 
Therefore, you should submit only information that you wish to make 
publicly available.
    Inspection of comments: Comments may be inspected, between 10 a.m. 
and 4 p.m., in the FinCEN reading room in Vienna, VA. Persons wishing 
to inspect the comments submitted must request an appointment with the 
Disclosure Officer by telephoning (703) 905-5034 (not a toll free 
call). In general, FinCEN will make all comments publicly available by 
posting them on http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: FinCEN: Regulatory Policy and Programs 
Division, Financial Crimes Enforcement Network, (800) 949-2732 and 
select option 6.

SUPPLEMENTARY INFORMATION:

I. Background

    The Bank Secrecy Act (BSA) \1\ authorizes the Secretary of the 
Treasury (the Secretary) to issue regulations requiring financial 
institutions to keep records and file reports that the Secretary 
determines ``have a high degree of usefulness in criminal, tax, or 
regulatory investigations or proceedings, or in the conduct of 
intelligence or counterintelligence activities, including analysis, to 
protect against international terrorism.'' \2\ The authority of the 
Secretary to administer the BSA has been delegated to the Director of 
FinCEN.\3\
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    \1\ ``Bank Secrecy Act'' is the name that has come to be applied 
to the Currency and Foreign Transactions Reporting Act (Titles I and 
II of Pub. L. 91-508), its amendments, and the other statutes 
referring to the subject matter of that Act. These statutes are 
codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, 18 U.S.C. 1956, 18 
U.S.C. 1957, 18 U.S.C. 1960, and 31 U.S.C. 5311-5314 and 5316-5332, 
and notes thereto.
    \2\ 31 U.S.C. 5311.
    \3\ See Treasury Order 180-01 (Sept. 26, 2002).
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    Financial institutions are required to establish AML programs that 
include, at a minimum: (1) The development of internal policies, 
procedures, and controls; (2) the designation of a compliance officer; 
(3) an ongoing employee training program; and (4) an independent audit 
function to test programs.\4\ When prescribing minimum standards for 
AML programs, FinCEN must ``consider the extent to which the 
requirements imposed under [the AML program requirement] are 
commensurate with the size, location, and activities of the financial 
institutions to which such regulations apply.'' \5\ Federally regulated 
depository institutions are already required to have AML programs.\6\ 
This ANPRM considers imposing on companies performing certain services 
with respect to residential mortgages, analogous requirements to those 
currently applicable to depository institutions performing those same 
services.
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    \4\ 31 U.S.C. 5318(h).
    \5\ Public Law 107-56 section 352(c), 115 Stat. Sec.  322, 
codified at 31 U.S.C. 5318 note. Public Law 107-56 is the USA 
PATRIOT Act of 2001.
    \6\ See 31 CFR 103.120.
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    The BSA defines the term ``financial institution'' to include, in 
part, ``loan or finance company'' and ``persons involved in real estate 
closings and settlements.'' \7\ On April 29, 2002, and again on 
November 6, 2002, FinCEN temporarily exempted both of these categories 
of financial institutions, among others, from the requirement to 
establish an AML program.\8\ The purpose of the temporary exemption was 
to enable Treasury and FinCEN to study the exempted categories of 
institutions and to consider the extent to which AML requirements 
should be applied to them, taking into account their specific 
characteristics and money laundering vulnerabilities.
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    \7\ 31 U.S.C. 5312(a)(2)(P), (U).
    \8\ See 31 CFR 103.170; 67 FR 21113 (Apr. 29, 2002), as amended 
at 67 FR 67549 (Nov. 6, 2002) and corrected at 67 FR 68935 (Nov. 14, 
2002).
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    On April 10, 2003, FinCEN issued an ANPRM regarding AML 
requirements for persons involved in real estate closings and 
settlements.\9\ The 2003 ANPRM noted that the BSA had no definition of 
the term ``persons involved in real estate closings and settlements;'' 
that FinCEN had not had occasion to define the term in a regulation; 
and that the legislative history of the term provided no insight into 
how Congress intended the term to be defined. The 2003 ANPRM also noted 
that real estate transactions could involve multiple persons, 
including: Real estate agents, banks, mortgage banks, mortgage brokers, 
title insurance companies, appraisers, escrow agents, settlement 
attorneys or agents, property inspectors and other persons directly and 
tangentially involved in property financing, acquisition, settlement, 
and occupation. The 2003 ANPRM further noted that the persons involved 
in real estate transactions, and the nature of their involvement, could 
vary with the contemplated use of the real estate, the nature of the 
rights to be acquired, or how these rights were to be held, e.g., for 
residential, commercial, portfolio investment, or development purposes. 
Finally, the 2003 ANPRM expressed FinCEN's views as to guiding 
principles that should be considered in defining persons involved in 
real estate closings and settlements. Any definitions or terms that 
define the scope of the rule should consider: (1) Those persons (i.e., 
individuals and business entities) whose services rendered or products 
offered in connection with a real estate closing or settlement can be 
abused by money launderers; (2) those persons who are positioned to 
identify the purpose and nature of the transaction; (3) the importance 
of various participants to successful completion of the transaction, 
which may suggest that they are well positioned to identify suspicious 
conduct; (4) the degree to which professionals may have very different 
roles, in different transactions, that may result in greater exposure 
to money laundering; and (5) involvement with the actual flow of funds 
used in the transaction.\10\
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    \9\ See 68 FR 17569 (Apr. 10, 2003).
    \10\ See 68 FR 17569, 17570 (Apr. 10, 2003).
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    FinCEN has not issued any additional notices regarding persons 
involved in real estate closings and settlements since the 2003 ANPRM. 
This is FinCEN's first notice regarding loan and finance companies. 
FinCEN has in the interim continued its research and analysis related 
to the categories of financial institutions exempted in 2002.
    In view of increasing concern among regulators, law enforcement and 
Congress over abusive and fraudulent sales and financing practices in 
both the primary and secondary residential mortgage markets, FinCEN 
also has undertaken a number of strategic, outreach and law enforcement 
support initiatives focused on residential mortgage lending.
    FinCEN is contemplating an incremental approach to implementation 
of AML regulations for loan and finance companies that would focus 
first on those business entities that are engaged in residential 
mortgage lending or origination and are not currently subject to any 
AML program requirement under the BSA or other Federal law. These 
``non-bank residential mortgage lenders and originators'' are primary 
providers of mortgage finance--in most cases dealing directly with the 
consumer--and are in a unique position to assess and identify

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money laundering risks and fraud while directly assisting consumers 
with their financial needs and protecting them from the abuses of 
financial crime. FinCEN believes that new regulations requiring non-
bank residential mortgage lenders and originators to adopt AML programs 
and report suspicious transactions would augment FinCEN's initiatives 
in this area. Among other benefits, such regulations would complement 
efforts underway by mortgage companies to comply with the nationwide 
licensing system and registry under development since the passage of 
the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 
(S.A.F.E. Act).\11\ As mortgage companies implement systems and 
procedures to comply with the S.A.F.E. Act, there will be opportunities 
for them to review and enhance their educational and training programs 
to ensure that employees are able to identify and appropriately deal 
with fraud, money laundering and other financial crimes.
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    \11\ See Title V of Division A of the Housing and Economic 
Recovery Act of 2008, Public Law 110-289, 122 Stat. 2810 (2008), 
codified at 12 U.S.C. 5101, et seq.
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II. Issues for Comment

    This ANPRM solicits comment on all aspects of the potential impact 
of applying BSA requirements to non-bank residential mortgage lenders 
and originators.

1. What Are the Money Laundering Risks in the Non-Bank Residential 
Mortgage Finance Sector?

    As noted in the 2003 ANPRM, the residential real estate sector may 
be vulnerable at all stages of the money laundering process. Money 
laundering is a process by which funds with an illicit origin are 
converted into funds with a plausibly legitimate origin. There are 
three general stages of money laundering. The ``placement'' stage is 
the stage at which funds from illegal activity or funds intended to 
support illegal activity are first introduced into the financial 
system. Money laundering ``layering'' involves the distancing of 
illegal funds from their criminal source through the creation of 
complex layers of financial transactions. ``Integration'' occurs when 
illegal funds are made to appear to have been derived from a legitimate 
source. Despite the relative illiquidity of most real estate assets, 
money launderers have used residential mortgage transactions--
fraudulently and legitimately structured--to disguise the proceeds of 
crime.
    In recent years, a significant percentage of SARs filed with FinCEN 
have reported suspected fraud-for-profit and fraud-for-housing schemes 
involving real estate brokers, appraisers, and other persons associated 
with real estate finance and settlements.\12\ FinCEN studies also have 
shown the connection between persons involved in mortgage fraud and 
other suspected financial crimes.\13\ The crime of money laundering is 
defined, in part, with respect to the proceeds of specific unlawful, 
``predicate'' activities. Both mortgage fraud and the act of laundering 
mortgage fraud proceeds are crimes under Federal and State laws, and 
both are destructive to consumers, individual businesses and the 
financial system as a whole.
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    \12\ See Filing Trends in Mortgage Loan Fraud, Feb. 2009, http://www.fincen.gov/news_room/nr/pdf/20090225a.pdf; Mortgage Loan 
Fraud: an Update of Trends Based upon Analysis of Suspicious 
Activity Reports, Apr. 2008, &fnl;http://www.fincen.gov/news_room/rp/files/MortgageLoanFraudSARAssessment.pdf; Suspected Money 
Laundering in the Residential Real Estate Industry, Apr. 2008, 
http://www.fincen.gov/news_room/rp/files/MLR_Real_Estate_Industry_SAR_web.pdf; Money Laundering in the Commercial Real 
Estate Industry; Dec. 2006, http://www.fincen.gov/news_room/rp/reports/pdf/CREassessment.pdf; Mortgage Loan Fraud: An Industry 
Assessment Based Upon Suspicious Activity Report Analysis, Nov. 
2006, http://www.fincen.gov/news_room/rp/reports/pdf/mortgage_fraud112006.pdf.
    \13\ See Mortgage Loan Fraud Connections with Other Financial 
Crime: An Evaluation of Suspicious Activity Reports Filed by Money 
Services Businesses, Securities and Futures Firms, Insurance 
Companies and Casinos, Mar. 2009, http://www.fincen.gov/news_room/rp/files/mortgage_fraud.pdf.
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    FinCEN seeks comment on the experience of the residential real 
estate lending sector with money laundering and fraud schemes, the 
existence of any safeguards in the industry to guard against these 
crimes, the impact that compliance with AML program and SAR reporting 
requirements may have on business operations, and what additional steps 
may be necessary to protect the industry from abuse by money 
launderers, including those who finance terrorist activity.

2. Should FinCEN Pursue an Incremental Approach to Regulation of Loan 
and Finance Companies That Focuses First on Persons Engaged in Non-Bank 
Residential Mortgage Lending or Origination?

    As is the case with the term ``persons involved in real estate 
closings and settlements,'' the term ``loan or finance company'' is not 
defined or discussed in any FinCEN regulation, and there is no 
legislative history on the term. The term, however, could conceivably 
extend to any business entity that makes loans or finances purchases to 
or on behalf of consumers and businesses. For consumers, loan and 
finance companies originate loans and leases to finance the purchase of 
consumer goods such as automobiles, furniture, and household 
appliances. They also extend personal loans and loans secured by real 
estate mortgages, including home equity loans. For businesses, they 
supply short- and intermediate-term credit for such purposes as the 
purchase of equipment and motor vehicles and the financing of 
inventories. In addition, specialized wholesale loan and finance 
companies provide liquidity that allows retail loan and finance 
companies, as well as banks and others, to service end users.\14\
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    \14\ The North American Industry Classification System 
classifies approximately 10 types of mortgage finance-related 
businesses and professions and over 60 other businesses, professions 
and institutions (e.g., consumer and commercial finance companies, 
pawnshops, auto finance, equipment leasing, personal credit 
companies, industrial loan companies and government sponsored 
enterprises) as primarily engaged in consumer and commercial lending 
and finance.
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    There has been a ``regulatory gap'' between the BSA's coverage of 
depository institutions and non-bank residential mortgage lenders and 
originators. FinCEN is concerned that this disparity in BSA regulatory 
coverage may have made non-bank residential mortgage lenders and 
originators more vulnerable to financial crime and money laundering 
than their bank counterparts. FinCEN believes that implementation of 
appropriate, risk-based AML programs by non-bank residential mortgage 
lenders and originators will strengthen their existing compliance and 
anti-fraud programs, as well as the training and licensing programs 
that will be updated to comply with the S.A.F.E. Act. Moreover, a SAR 
reporting regulation likely would reduce the vulnerability of this 
sector and substantially expand FinCEN's BSA database, thereby giving 
our regulatory and law enforcement partners a more complete macro and 
micro (case-specific) picture of mortgage-related financial crimes. In 
these and other respects, non-bank residential mortgage lenders and 
originators may assume an increasingly crucial role in government and 
industry efforts to protect consumers, mortgage finance businesses, and 
the United States financial system from money laundering and other 
financial crimes.
    FinCEN is inclined to defer regulations for commercial real estate 
finance businesses and other types of consumer and commercial finance 
businesses until further research and analysis can be conducted to 
enhance our understanding of their business operations and money 
laundering vulnerabilities.

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    FinCEN seeks general comment on whether FinCEN should adopt this 
incremental approach or some other approach to implementation of AML 
program and SAR regulations for loan and finance companies.

3. How Should Persons Engaged in Non-Bank Residential Mortgage Lending 
or Origination Be Defined?

    Most real estate finance--both residential and commercial--involves 
complex transactions and multiple parties whose roles are not always 
readily discernable by the titles and terms used to describe them in 
generally accepted business practices or under applicable licensing and 
registration regimes. The primary mortgage market in the United States 
is very fragmented, and even simple real estate finance transactions 
may involve one or more parties that may originate, fund, broker, 
purchase, transfer, service, securitize, and insure the mortgage loan.
    FinCEN believes that the views, assumptions and guiding principles 
noted in the 2003 ANPRM are equally relevant to the development of AML 
program and SAR reporting regulations for non-bank residential mortgage 
lenders and originators. AML obligations should focus on those persons 
(i.e., individuals and business entities) that conduct the activities 
that place them in the best position to identify the nature of the 
transaction, recognize suspicious activity and prevent misuse of their 
services for money laundering and other financial crimes. This 
activities-based approach focuses on the nature of the activity 
conducted and its primary function in a particular residential mortgage 
transaction, rather than on the name or title of the person. Moreover, 
FinCEN believes that any regulations for non-bank residential mortgage 
lenders and originators should strive to avoid, to the greatest extent 
possible, requirements that overlap or duplicate those of other BSA 
rules.
    FinCEN seeks comment on which participants involved in non-bank 
residential mortgage finance are in a position where they can 
effectively identify and guard against financial crime and money 
laundering in the transactions they conduct. Information and comment 
may, among other things, address both the extent to which various 
participants have access to information regarding the nature and 
purpose of the transactions at issue and the importance of the 
participants' involvement to successful completion of the transactions. 
Comments are welcome from those involved centrally in the residential 
mortgage finance process (i.e., those who may act as an agent for some 
or all of the parties and are responsible for reviewing the form and 
type of payment, as well as being aware of the parties to the mortgage 
transaction), and those who view their involvement as more peripheral.
    Various definitions in the S.A.F.E. Act may be a useful reference 
for comments related to the development of regulatory definitions that 
would affect the scope of any proposed regulations for non-bank 
residential mortgage lenders and originators. FinCEN seeks comment 
specifically on whether FinCEN should adopt a definition of ``non-bank 
mortgage lender or originator'' that would be similar to the definition 
of ``loan originator'' in the S.A.F.E. Act.\15\ The term ``loan 
originator'' in the S.A.F.E. Act means individuals who take 
applications for residential mortgage loan transactions, including 
employees of mortgage bankers and brokers, as well as loan officers of 
banks and their subsidiaries. The S.A.F.E. Act also provides a broad 
definition of ``residential mortgage loan'' that may be a useful 
reference for comments: ``any loan primarily for personal, family, or 
household use that is secured by a mortgage, deed of trust, or other 
equivalent consensual security interest on a dwelling (as defined in 
section 103(v) of the Truth in Lending Act) or residential real estate 
upon which is constructed or intended to be constructed a dwelling * * 
*.'' \16\ As noted, the focus of this ANPRM is non-bank residential 
mortgage lenders and originators who are primary providers of mortgage 
finance and are in the best position to prevent and detect money 
laundering, fraud and other financial crimes. FinCEN seeks comment on 
whether any regulations promulgated by FinCEN should cover the same 
persons as those covered by the S.A.F.E. Act, or a broader or narrower 
range of persons.
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    \15\ 12 U.S.C. 5102(3).
    \16\ 12 U.S.C. 5102(8).
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4. How Should the Anti-Money Laundering Requirements for Persons 
Engaged in Non-Bank Residential Mortgage Lending or Origination Be 
Structured?

    In applying the BSA to persons engaged in non-bank residential 
mortgage lending and origination, FinCEN must consider the extent to 
which the standards for AML programs are commensurate with the size, 
location, and activities of such persons. FinCEN recognizes that while 
large businesses are engaged in mortgage finance, businesses in this 
industry also include smaller companies or sole proprietors. FinCEN 
thus seeks comment on any particular concerns smaller businesses may 
have regarding the implementation of an AML program.
    FinCEN believes that AML programs will complement the anti-fraud 
and general compliance programs that non-bank residential mortgage 
lenders and originators have established to comply with other Federal 
and State laws and protect their own business operations. Many non-bank 
residential mortgage lenders and originators may be able to integrate 
risk-based AML reporting programs into existing enterprise-wide anti-
fraud and compliance programs in a symbiotic manner that utilizes 
economies of scale and enhances the effectiveness of a business's 
compliance measures. FinCEN therefore seeks comment on what types of 
programs and practices that persons engaged in non-bank residential 
mortgage lending or origination have in place to prevent mortgage fraud 
and other illegal activities, and the applicability of such programs to 
the development of AML programs.

5. Should FinCEN Require Persons Engaged in Non-Bank Residential 
Mortgage Lending or Origination To File SARs or Comply With Any Other 
BSA Requirements?

    As FinCEN emphasized in its recent report on mortgage loan fraud 
trends, SARs provide a valuable tool for regulatory agencies and law 
enforcement seeking to isolate specific instances of potential criminal 
activity for further investigation, and to identify emerging money 
laundering and terrorism financing trends.\17\ The due diligence 
necessary for financial institutions to detect and report known or 
suspected suspicious activity greatly reduces vulnerability to the 
abuses of money laundering and terrorist financing.
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    \17\ Filing Trends in Mortgage Loan Fraud, Feb. 2009, page 1, 
http://www.fincen.gov/news_room/nr/pdf/20090225a.pdf.
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    FinCEN has promulgated SAR reporting regulations for a number of 
financial institutions that have AML program requirements, including 
mutual funds, insurance companies, futures commission merchants and 
introducing brokers in commodities, banks, brokers or dealers in 
securities, money services businesses, and casinos.\18\ FinCEN 
anticipates that any SAR regulation proposal applicable to persons 
engaged in non-bank residential mortgage lending or origination would 
have similar reporting standards, thresholds and procedures as those 
set

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forth in SAR regulations for other industries.
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    \18\ See 31 CFR 103.15-103.21.
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    In addition to any proposed SAR reporting regulations for non-bank 
residential mortgage lenders or originators, FinCEN also may propose to 
require these businesses to file currency transaction reports (rather 
than Form 8300) or retain certain records, including those related to 
large transmittals of funds.\19\ These changes could be accomplished 
through amendments to the definitions regulation, 31 CFR 103.11 
(specifically, to the definition of ``financial institution''), and the 
exemptions regulation, 31 CFR 103.170 (specifically, to the temporary 
exemption from the AML program requirement); or they could be 
accomplished by issuing new regulations. FinCEN also recognizes that 
persons engaged in residential mortgage lending or origination may 
already have programs and practices in place to meet existing legal 
obligations or protect the business from fraud and other illegal 
activities. FinCEN requests comment on any aspect of possible new 
regulatory requirements, including any factors FinCEN should consider 
in structuring new requirements, exceptions, and differences from 
established regulations. Useful information would include any available 
estimates of volumes of transactions that might be subject to 
particular reporting or recordkeeping requirements.
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    \19\ See 31 CFR 103.22, 103.30 and 103.33.
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6. Should Any Persons or Transactions Be Exempted From Coverage of AML 
or SAR Regulations?

    FinCEN also solicits comment regarding whether there should be 
regulatory exemptions for any category of persons engaged in non-bank 
residential mortgage lending or origination, or any category of 
transactions conducted by such persons. Comments regarding possible 
exemptions should be designed to enable FinCEN to evaluate whether the 
risk of money laundering through a category of persons or transactions 
is sufficiently small that a proposed rule could be crafted that would 
exempt the categories, while also providing adequate protection for the 
industry from the risks of money laundering. The question of exemption 
is specifically directed to professionals and those persons who are 
primarily engaged in a business related to residential mortgage lending 
or origination.

III. Conclusion

    With this ANPRM, FinCEN is seeking input on how FinCEN should 
implement the requirements of the BSA with respect to non-bank 
residential mortgage lenders and originators. We also seek input on: 
(1) Estimates and financial projections on the likely costs of 
complying with AML program and SAR reporting regulations by specific 
types of non-bank residential mortgage lenders and originators; (2) the 
impact of any such regulatory requirements on industry profitability, 
growth and business practices; (3) the impact of these requirements on 
consumers seeking to obtain residential mortgages; (4) the 
effectiveness of examining for and enforcing compliance with these 
requirements; and (5) the advisability of establishing some minimum 
transaction threshold value or annual volume threshold below which some 
or all of these requirements would not apply. We also solicit comment 
on the impact to law enforcement and regulatory agencies. FinCEN 
welcomes comments on all aspects of the ANPRM, and we encourage all 
interested parties to provide their views.

IV. Executive Order 12866

    This advance notice of proposed rulemaking is not a significant 
regulatory action under Executive Order 12866. Therefore, a Regulatory 
Assessment is not required.

William F. Baity,
Acting Director, Financial Crimes Enforcement Network.
[FR Doc. E9-17117 Filed 7-20-09; 8:45 am]
BILLING CODE 4810-02-P