13 July 2006

Two actions: imposition of sanctions against VEF Banka and withdrawal of sanctions against
Multibanka

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[Federal Register: July 13, 2006 (Volume 71, Number 134)]

[Rules and Regulations]               

[Page 39554-39561]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13jy06-15]                         





[[Page 39554]]



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DEPARTMENT OF THE TREASURY



31 CFR Part 103



RIN 1506-AA82



 

Financial Crimes Enforcement Network; Amendment to the Bank 

Secrecy Act Regulations--Imposition of Special Measure Against VEF 

Banka, as a Financial Institution of Primary Money Laundering Concern



AGENCY: Financial Crimes Enforcement Network, Department of the 

Treasury.



ACTION: Final rule.



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SUMMARY: The Financial Crimes Enforcement Network is issuing a final 

rule imposing a special measure against joint stock company VEF Banka 

(``VEF'', ``VEF Bank'', or the ``bank'') as a financial institution of 

primary money laundering concern, pursuant to the authority contained 

in 31 U.S.C. 5318A of the Bank Secrecy Act.



DATES: This final rule is effective on August 14, 2006.



FOR FURTHER INFORMATION CONTACT: Regulatory Policy and Programs 

Division, Financial Crimes Enforcement Network, (800) 949-2732.



SUPPLEMENTARY INFORMATION:



I. Background



A. Statutory Provisions



    On October 26, 2001, the President signed into law the Uniting and 

Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (``USA 

PATRIOT Act''). Title III of the USA PATRIOT Act amends the anti-money 

laundering provisions of the Bank Secrecy Act, codified at 12 U.S.C. 

1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314 and 5316-5332, to 

promote the prevention, detection, and prosecution of money laundering 

and the financing of terrorism. Regulations implementing the Bank 

Secrecy Act appear at 31 CFR part 103. The authority of the Secretary 

of the Treasury (the ``Secretary'') to administer the Bank Secrecy Act 

and its implementing regulations has been delegated to the Director of 

the Financial Crimes Enforcement Network (the ``Director'').\1\ The 

Bank Secrecy Act authorizes the Director to issue regulations requiring 

all financial institutions defined as such in the Bank Secrecy Act to 

maintain or file certain reports or records that have been determined 

to have a high degree of usefulness in criminal, tax, or regulatory 

investigations or proceedings, or in the conduct of intelligence or 

counter-intelligence activities, including analysis, to protect against 

international terrorism, and to implement anti-money laundering 

programs and compliance procedures.\2\

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    \1\ Therefore, references to the authority of the Secretary of 

the Treasury under section 311 of the USA PATRIOT Act apply equally 

to the Director of the Financial Crimes Enforcement Network.

    \2\ Language expanding the scope of the Bank Secrecy Act to 

intelligence or counter-intelligence activities to protect against 

international terrorism was added by section 358 of the USA PATRIOT 

Act.

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    Section 311 of the USA PATRIOT Act added section 5318A to the Bank 

Secrecy Act, granting the Secretary the authority, after finding that 

reasonable grounds exist for concluding that a foreign jurisdiction, 

foreign financial institution, international class of transactions, or 

type of account is of ``primary money laundering concern,'' to require 

domestic financial institutions and domestic financial agencies to take 

certain ``special measures'' against the primary money laundering 

concern. Section 311 identifies factors for the Secretary to consider 

and Federal agencies to consult before he may find that reasonable 

grounds exist for concluding that a jurisdiction, financial 

institution, class of transactions, or type of account is of primary 

money laundering concern. The statute also provides similar procedures, 

including factors and consultation requirements, for selecting the 

specific special measures to be imposed against the primary money 

laundering concern.

    Taken as a whole, section 311 provides the Secretary with a range 

of options that can be adapted to target specific money laundering and 

terrorist financing concerns most effectively. These options provide 

the authority to bring additional and useful pressure on those 

jurisdictions and institutions that pose money laundering threats and 

the ability to take steps to protect the U.S. financial system. Through 

the imposition of various special measures, we can: Gain more 

information about the concerned jurisdictions, financial institutions, 

transactions, and accounts; monitor more effectively the respective 

jurisdictions, financial institutions, transactions, and accounts; and 

ultimately protect U.S. financial institutions from involvement with 

jurisdictions, financial institutions, transactions, or accounts that 

pose a money laundering concern.

    Before making a finding that reasonable grounds exist for 

concluding that a foreign financial institution is of primary money 

laundering concern, the Secretary is required by the Bank Secrecy Act 

to consult with both the Secretary of State and the Attorney General.

    In addition to these consultations, when finding that a foreign 

financial institution is of primary money laundering concern, the 

Secretary is required by section 311 to consider ``such information as 

the Secretary determines to be relevant, including the following 

potentially relevant factors:''

     The extent to which such financial institution is used to 

facilitate or promote money laundering in or through the jurisdiction;

     The extent to which such financial institution is used for 

legitimate business purposes in the jurisdiction; and

     The extent to which such action is sufficient to ensure, 

with respect to transactions involving the institution operating in the 

jurisdiction, that the purposes of the Bank Secrecy Act continue to be 

fulfilled, and to guard against international money laundering and 

other financial crimes.

    If we determine that reasonable grounds exist for concluding that a 

foreign financial institution is of primary money laundering concern, 

we must determine the appropriate special measure(s) to address the 

specific money laundering risks. Section 311 provides a range of 

special measures that can be imposed, individually or jointly, in any 

combination, and in any sequence.\3\ In the imposition of special 

measures, we follow procedures similar to those for finding a foreign 

financial institution to be of primary money laundering concern, but we 

also engage in additional consultations and consider additional 

factors. Section 311 requires us to consult with other appropriate 

Federal agencies and parties \4\ and to consider the following specific 

factors:

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    \3\ Available special measures include requiring: (1) 

Recordkeeping and reporting of certain financial transactions; (2) 

collection of information relating to beneficial ownership; (3) 

collection of information relating to certain payable-through 

accounts; (4) collection of information relating to certain 

correspondent accounts; and (5) prohibition or conditions on the 

opening or maintaining of correspondent or payable-through accounts. 

31 U.S.C. 5318A(b)(1)-(5). For a complete discussion of the range of 

possible countermeasures, see 68 FR 18917 (April 17, 2003) 

(proposing to impose special measures against Nauru).

    \4\ Section 5318A(a)(4)(A) requires the Secretary to consult 

with the Chairman of the Board of Governors of the Federal Reserve 

System, any other appropriate Federal banking agency, the Secretary 

of State, the U.S. Securities and Exchange Commission, the Commodity 

Futures Trading Commission, the National Credit Union 

Administration, and, in our sole discretion, ``such other agencies 

and interested parties as the Secretary may find to be 

appropriate.'' The consultation process must also include the 

Attorney General, if the Secretary is considering prohibiting or 

imposing conditions upon the opening or maintaining of a 

correspondent account by any domestic financial institution or 

domestic financial agency for the foreign financial institution of 

primary money laundering concern.



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[[Page 39555]]



     Whether similar action has been or is being taken by other 

nations or multilateral groups;

     Whether the imposition of any particular special measure 

would create a significant competitive disadvantage, including any 

undue cost or burden associated with compliance, for financial 

institutions organized or licensed in the United States;

     The extent to which the action or the timing of the action 

would have a significant adverse systemic impact on the international 

payment, clearance, and settlement system, or on legitimate business 

activities involving the particular institution; and

     The effect of the action on U.S. national security and 

foreign policy.\5\

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    \5\ Classified information used in support of a section 311 

finding of primary money laundering concern and imposition of 

special measure(s) may be submitted by the Department of the 

Treasury to a reviewing court ex parte and in camera. See section 

376 of the Intelligence Authorization Act for Fiscal Year 2004, Pub. 

L. 108-177 (amending 31 U.S.C. 5318A by adding new paragraph (f)).

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    In this final rule, we are imposing the fifth special measure (31 

U.S.C. 5318A(b)(5)) against VEF, a commercial bank in the Republic of 

Latvia (``Latvia''). The fifth special measure allows for the 

imposition of conditions upon, or the prohibition of, the opening or 

maintaining of correspondent or payable-through accounts in the United 

States for or on behalf of a foreign financial institution of primary 

money laundering concern. Unlike the other special measures, this 

special measure may be imposed only through the issuance of a 

regulation.



B. VEF



    VEF is headquartered in Riga, the capital of Latvia. VEF is one of 

the smallest of Latvia's 23 banks, and in 2004 was reported to have 

approximately $80 million in assets and 87 employees. Total assets for 

the bank as of June 30, 2005 were 27.3 million LATS, equivalent to 

approximately $47.4 million. For the first six months of 2005, the bank 

made a profit of 288,410 LATS, equivalent to over $501,000. The bank 

has one subsidiary, Veiksmes lizings, which offers financial leasing 

and factoring services. In addition to its headquarters in Riga, VEF 

has one branch in Riga and one representative office in the Czech 

Republic. VEF offers corporate and private banking services, issues a 

variety of credit cards for non-Latvians, and provides currency 

exchange through Internet banking services, i.e., virtual currencies. 

In addition, according to VEF's financial statements, VEF maintains 

correspondent accounts in countries worldwide, but currently reports 

none in the United States.\6\ However, many of the foreign financial 

institutions from which VEF obtains financial services in turn maintain 

correspondent accounts with financial institutions in the United 

States. Accordingly, it appears that VEF may still have indirect access 

to the U.S. financial system.

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    \6\ Some covered financial institutions closed their 

correspondent accounts with VEF before, and another closed its 

account with VEF after, the issuance of the notice of proposed 

rulemaking in April 2005.

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II. The 2005 Finding and Subsequent Developments



A. The 2005 Finding



    Based upon review and analysis of pertinent information, 

consultations with relevant Federal agencies and parties, and after 

consideration of the factors enumerated in section 311, in April 2005 

the Secretary, through his delegate, the Director of the Financial 

Crimes Enforcement Network, found that reasonable grounds exist for 

concluding that VEF is a financial institution of primary money 

laundering concern. This finding was published in a notice of proposed 

rulemaking, which proposed prohibiting covered financial institutions 

from, directly or indirectly, opening or maintaining correspondent 

accounts in the United States for VEF or any of its branches, offices, 

or subsidiaries, pursuant to the authority under 31 U.S.C. 5318A.\7\

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    \7\ See 70 FR 21369 (April 26, 2005).

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    The notice of proposed rulemaking outlined the various factors 

supporting the finding and proposed prohibition. In finding VEF to be 

of primary money laundering concern, we determined that:

     VEF was used by criminals to facilitate or promote money 

laundering. In particular, we determined that VEF was an important 

banking resource for illicit shell companies and financial fraud rings, 

allowing criminals to pursue illegal financial activities. VEF 

permitted ATM withdrawals in significant amounts, an essential 

component to the execution of large financial fraud schemes typically 

associated with carding networks.

     Any legitimate business use of VEF appeared to be 

significantly outweighed by its use to promote or facilitate money 

laundering and other financial crimes.

     A finding that VEF is of primary money laundering concern 

and prohibiting the maintenance of correspondent accounts for that 

institution would prevent suspect accountholders at VEF from accessing 

the U.S. financial system to facilitate money laundering and would 

bring criminal conduct occurring at or through VEF to the attention of 

the international financial community and thus serve the purposes of 

the Bank Secrecy Act as well as guard against international money 

laundering and other financial crime.

    We determined, based on a variety of sources, that VEF Bank has 

been used to facilitate or promote money laundering based in part on 

its lax identification and verification of accountholders and on its 

weak internal controls. In addition, the proceeds of alleged illicit 

activity have been transferred to or through accounts held by VEF Bank 

at covered financial institutions.



B. Jurisdictional Developments



    Latvia's geographical position, situated by the Baltic Sea and 

bordering Russia, Estonia, Belarus, and Lithuania, makes it an 

attractive transit country for both legitimate and illegitimate trade. 

Sources of illegitimate trade include counterfeiting, arms trafficking, 

contraband smuggling, and other crimes. It is believed that most of 

Latvia's narcotics trafficking is conducted by organized crime groups 

that began with cigarette and alcohol smuggling and then progressed to 

narcotics. Latvian authorities recently have sought tighter legislative 

controls designed to fight money laundering and other financial crime. 

However, Latvia's role as a regional financial center, the number of 

commercial banks (23), and those banks' sizeable non-resident deposit 

base continue to make it vulnerable to money laundering.

    Latvia has taken a number of significant steps to address the 

reported money laundering risks and corruption highlighted in the 

notice of proposed rulemaking. The Parliament of Latvia recently passed 

a new law, On the Declaration of Cash on the State Border, which will 

go into effect on July 1, 2006.\8\ The law is aimed at preventing money 

laundering consistent with the United Nations Convention Against 

Transnational Organized Crime and the European Union draft regulation 

on the control of cash leaving and entering the European Community. In 

2005, Latvian law was amended to broaden



[[Page 39556]]



supervisory authority to revoke banking licenses and to allow 

enforcement agencies greater access to bank account information. The 

amendments also provide for fines of between 5,000 and 100,000 LATS 

(equivalent to over $8,687.50 and over $173,750.00, respectively) 

against banks in violation of the anti-money laundering laws; include a 

definition of and procedures for determining who qualifies as a ``true 

beneficiary''; and introduce criminal liability for providing false 

information to banks. Additionally, Latvia has: Banned the 

establishment of shell banks; clarified the authority of Latvian 

financial institutions to demand customer disclosure regarding the 

source of funds; and allowed for the sharing of information between 

financial institutions on suspicious activities.

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    \8\ The law requires that individuals crossing the Latvian 

border with the equivalent of 10,000 Euros ([euro]10,000) in coins, 

cash, and/or certain monetary instruments to complete a form stating 

the origin of the currency or monetary instruments, the purpose or 

use of the currency or monetary instruments, and the receiver of the 

currency or monetary instruments.

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    In terms of implementation, the Latvian authorities have made 

strides in strengthening their anti-money laundering regulation and 

supervision and in developing more robust anti-money laundering 

examination procedures. To ensure proper protection of Latvia's 

financial sector, authorities will need to continue their efforts to 

effectively implement and enforce their strengthened anti-money 

laundering regime.



C. VEF's Subsequent Developments



    We acknowledge that VEF has taken steps to address many of the 

money laundering concerns that we previously identified. For example, 

the bank revised its policies and procedures, including training 

procedures; created an Anti-Money Laundering Manual; closed 

approximately 600 questionable accounts; changed some of its management 

personnel; \9\ and retained the services of an independent 

international accounting firm to identify weaknesses in its anti-money 

laundering program and to assist the bank in its goal of reaching a 

best practices standard for its anti-money laundering program and 

controls.

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    \9\ In September 2005, VEF removed its Head of Department for 

the Supervision of Clients and its Chief Manager for Remote 

Attraction of Clients, as well as dismissed some of the members of 

its Board and appointed new members.

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    Despite the steps VEF has taken, based on a variety of sources 

including classified information, we continue to have serious concerns 

about the commitment of the bank to implement its revised policies and 

procedures. Specifically, we have continued concern with reported links 

between the bank's ownership and organized crime groups that reportedly 

facilitate money laundering. Accordingly, we find that VEF continues to 

be a financial institution of primary money laundering concern.



III. Imposition of the Fifth Special Measure



    Consistent with the finding that VEF is a financial institution of 

primary money laundering concern, and based upon additional 

consultations with required Federal agencies and parties as well as 

consideration of additional relevant factors, including the comments 

received on the proposed rule, we are imposing the special measure 

authorized by 31 U.S.C. 5318A(b)(5) with regard to VEF.\10\ That 

special measure authorizes the prohibition of, or the imposition of 

conditions upon, the opening or maintaining of correspondent or 

payable-through accounts \11\ by any domestic financial institution or 

domestic financial agency for, or on behalf of, a foreign financial 

institution found to be of primary money laundering concern. A 

discussion of the additional section 311 factors relevant to the 

imposition of this particular special measure follows.

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    \10\ Supra footnote 3.

    \11\ For purposes of the rule, a correspondent account is 

defined as an account established to receive deposits from, or make 

payments or other disbursements on behalf of, a foreign bank, or 

handle other financial transactions related to the foreign bank (see 

31 U.S.C. 5318A(e)(1)(B) as implemented in 31 CFR 

103.175(d)(1)(ii)).

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A. Similar Actions Have Not Been or May Not Be Taken by Other Nations 

or Multilateral Groups Against VEF Bank



    At this time, other countries and multilateral groups have not 

taken any action similar to the imposition of the fifth special measure 

pursuant to section 311, which allows the prohibition of U.S. financial 

institutions and financial agencies from opening or maintaining a 

correspondent account in the United States for or on behalf of VEF and 

requires those institutions and agencies to guard against indirect use 

by VEF. We are encouraging other countries to take similar action based 

on our finding that VEF is a financial institution of primary money 

laundering concern.



B. The Imposition of the Fifth Special Measure Would Not Create a 

Significant Competitive Disadvantage, Including Any Undue Cost or 

Burden Associated With Compliance, for Financial Institutions Organized 

or Licensed in the United States



    The fifth special measure imposed by this rule prohibits covered 

financial institutions from opening or maintaining correspondent 

accounts in the United States for, or on behalf of, VEF. As a corollary 

to this measure, covered financial institutions also are required to 

take reasonable steps to apply due diligence to all of their 

correspondent accounts to ensure that no such account is being used 

indirectly to provide services to VEF. The burden associated with these 

requirements is not expected to be significant, given that we are not 

aware of any covered financial institution that maintains a 

correspondent account directly for VEF. Moreover, there is a minimal 

burden involved in transmitting a one-time notice to all correspondent 

accountholders concerning the prohibition on indirectly providing 

services to VEF. In addition, covered financial institutions generally 

apply some degree of due diligence in screening their transactions and 

accounts, often through the use of commercially available software, 

such as that used for compliance with the economic sanctions programs 

administered by the Department of the Treasury's Office of Foreign 

Assets Control. As explained in more detail in the section-by-section 

analysis below, financial institutions should be able to adapt their 

existing screening procedures to comply with this special measure. 

Thus, the due diligence that is required by this rule is not expected 

to impose a significant additional burden upon covered financial 

institutions.



C. The Action or Timing of the Action Will Not Have a Significant 

Adverse Systemic Impact on the International Payment, Clearance, and 

Settlement System, or on Legitimate Business Activities Involving VEF 

Bank



    VEF is not a major participant in the international payment system 

and is not relied upon by the international banking community for 

clearance or settlement services. Thus, the imposition of the fifth 

special measure against VEF will not have a significant adverse 

systemic impact on the international payment, clearance, and settlement 

system. In addition, we believe that any legitimate use of VEF is 

significantly outweighed by its reported use to promote or facilitate 

money laundering. Moreover, in light of the existence of approximately 

15 larger banks in Latvia, we believe that imposition of the fifth 

special measure against VEF will not impose an undue burden on 

legitimate business activities in Latvia.



D. The Action Enhances U.S. National Security and Complements U.S. 

Foreign Policy



    The exclusion from the U.S. financial system of banks such as VEF 

that serve



[[Page 39557]]



as conduits for significant money laundering activity and that 

participate in other financial crime enhances U.S. national security by 

making it more difficult for criminals to access the substantial 

resources and services of the U.S. financial system. In addition, the 

imposition of the fifth special measure against VEF complements the 

U.S. Government's overall foreign policy strategy of making entry into 

the U.S. financial system more difficult for high-risk financial 

institutions.



IV. Notice of Proposed Rulemaking and Comments



    We received 13 comment letters on the notice of proposed 

rulemaking: Three on behalf of VEF; \12\ one comment letter from a 

securities industry trade association; one from a U.S. firm providing 

search software to U.S. financial institutions; one from Latvia's 

banking regulator, the Financial and Capital Markets Commission; five 

comment letters from VEF accountholders; and two comment letters from 

foreign companies that do business with VEF accountholders. 

Additionally, we met with representatives of VEF on several occasions.

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    \12\ One comment letter is from VEF, through its U.S. legal 

counsel, and two comment letters are from the chairman of the 

Supervisory Council, who owns between 33 and 50 percent of VEF.

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    Most of the comments raised by VEF were unrelated to our request 

for comment on the proposed imposition of the fifth special measure. 

VEF claims: That it was unaware of accountholders funneling illicit 

proceeds through its accounts; that the references in the notice of 

proposed rulemaking were too vague to rebut; and that we did not 

provide the bank notice before issuing the proposed rule.

    The bank also claims that we did not respond fully to certain 

statutory criteria. VEF asserts that we did not address whether the 

imposition of the fifth special measure would have a significant 

adverse systemic impact on the international payment, clearance, and 

settlement system. However, we addressed this issue when we stated in 

the notice of proposed rulemaking that VEF is not a major participant 

in the international payment system and is not relied upon by the 

international banking community for clearance or settlement services 

and, therefore, imposing the fifth special measure would not have a 

significant adverse impact on the international payment, settlement, 

and clearance system.\13\ Furthermore, although we recognize that 

certain current accountholders at VEF will be affected by this final 

rule, Latvia has 22 other banks that can meet their legitimate business 

needs. The statutory criteria for finding VEF to be a financial 

institution of primary money laundering concern and for imposing the 

fifth special measure have been fully addressed.\14\

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    \13\ See 70 FR at 21373.

    \14\ See note 7, supra.

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    The Latvian regulator commented on representations that we made 

about Latvian financial institutions. In response to our concern that 

Latvian financial institutions did not appear to serve the Latvian 

community, it stated that foreign deposits have always been a central 

feature in Latvia, which is a regional financial center due to its 

geographic location. The regulator also took issue with our 

representation that Latvia had material weaknesses in the 

implementation and enforcement of its anti-money laundering laws. As 

previously stated in section II.B., supra, Latvia has significantly 

enhanced its anti-money laundering laws.

    The remaining commenters were companies that were accountholders at 

VEF (five commenters), companies that conducted business with 

accountholders at VEF (two commenters), a trade association, and a U.S. 

search software solutions company. The VEF accountholders and the 

companies that conducted business with VEF accountholders maintained 

that VEF operated lawfully and professionally and that the issuance of 

the proposed rule adversely impacted them. Some of the accountholders 

expressed concern that the closure of correspondent accounts held by 

VEF at covered financial institutions might require accountholders to: 

(1) Open new accounts with other banks that are unfamiliar with their 

businesses and products; and (2) revise many contracts that include 

banking details for the parties involved. We specifically solicited 

comment on the impact of the fifth special measure on legitimate 

business involving VEF, and we understand that the measure may require 

legitimate businesses to make alternative banking arrangements with any 

one of the other 22 available Latvian banking institutions. Despite the 

difficulty this may pose for some businesses, we continue to believe 

that legitimate business use involving VEF is outweighed by its use to 

promote or facilitate money laundering and other financial crimes.



V. Section-by-Section Analysis



    The final rule prohibits covered financial institutions from 

opening or maintaining any correspondent account for, or on behalf of, 

VEF. Covered financial institutions are required to apply due diligence 

to their correspondent accounts to guard against their indirect use by 

VEF. At a minimum, that due diligence must include two elements. First, 

a covered financial institution must notify its correspondent 

accountholders that the account may not be used to provide VEF with 

access to the covered financial institution. Second, a covered 

financial institution must take reasonable steps to identify any 

indirect use of its correspondent accounts by VEF, to the extent that 

such indirect use can be determined from transactional records 

maintained by the covered financial institution in the normal course of 

business. A covered financial institution must take a risk-based 

approach when deciding what, if any, additional due diligence measures 

it should adopt to guard against the indirect use of correspondent 

accounts by VEF, based on risk factors such as the type of services 

offered by, and geographic locations of, its correspondents.



A. Section 103.192(a)--Definitions



1. VEF

    Section 103.192(a)(4) of the rule defines VEF to include all 

branches, offices, and subsidiaries of VEF operating in the Republic of 

Latvia or in any other jurisdiction. The one known VEF subsidiary, 

Veiksmes lizings, and any of its branches or offices, is included in 

the definition. We will provide information regarding the existence or 

establishment of any other subsidiaries as it becomes available; 

however, covered financial institutions should take commercially 

reasonable measures to determine whether a customer is a branch, 

office, or subsidiary of VEF.

2. Correspondent Account

    Section 103.192(a)(1) defines the term ``correspondent account'' by 

reference to the definition contained in 31 CFR 103.175(d)(1)(ii). 

Section 103.175(d)(1)(ii) defines a correspondent account to mean an 

account established for a foreign bank to receive deposits from, or 

make payments or other disbursements on behalf of the foreign bank, or 

to handle other financial transactions related to the foreign bank.

    In the case of a depository institution in the United States, this 

broad definition of account includes most types of banking 

relationships between the depository institution and a foreign bank 

that are established to provide regular services, dealings, and other



[[Page 39558]]



financial transactions including a demand deposit, savings deposit, or 

other transaction or asset account, and a credit account or other 

extension of credit.

    In the case of securities broker-dealers, futures commission 

merchants, introducing brokers in commodities, and investment companies 

that are open-end companies (``mutual funds''), we are using the same 

definition of ``account'' for purposes of this rule that was 

established in the final rule implementing section 312 of the USA 

PATRIOT Act.\15\

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    \15\ See 31 CFR 103.175(d)(2)(ii)-(iv).

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3. Covered Financial Institution

    Section 103.192(a)(2) of the rule defines covered financial 

institution to include the following:

     An insured bank (as defined in section 3(h) of the Federal 

Deposit Insurance Act (12 U.S.C. 1813(h));

     A commercial bank;

     An agency or branch of a foreign bank in the United 

States;

     A federally insured credit union;

     A savings association;

     A corporation acting under section 25A of the Federal 

Reserve Act (12 U.S.C. 611 et seq.);

     A trust bank or trust company that is federally regulated 

and is subject to an anti-money laundering program requirement;

     A broker or dealer in securities registered, or required 

to be registered, with the U.S. Securities and Exchange Commission 

under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), 

except persons who register pursuant to section 15(b)(11) of the 

Securities Exchange Act of 1934;

     A futures commission merchant or an introducing broker 

registered, or required to be registered, with the Commodity Futures 

Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et 

seq.), except persons who register pursuant to section 4(f)(a)(2) of 

the Commodity Exchange Act; and

     A mutual fund, which means an investment company (as 

defined in section 3(a)(1) of the Investment Company Act of 1940 

((``Investment Company Act'') (15 U.S.C. 80a-3(a)(1)) that is an open-

end company (as defined in section 5(a)(1) of the Investment Company 

Act (15 U.S.C. 80a-5(a)(1)) and that is registered, or is required to 

register, with the U.S. Securities and Exchange Commission pursuant to 

the Investment Company Act.



In the notice of proposed rulemaking, we defined ``covered financial 

institution'' by reference to 31 CFR 103.175(f)(2), the operative 

definition of that term for purposes of the rules implementing sections 

313 and 319 of the USA PATRIOT Act, and we also included in the 

definition futures commission merchants, introducing brokers, and 

mutual funds. The definition of ``covered financial institution'' we 

are adopting for purposes of this final rule is substantially the same 

as in 31 CFR 103.175(f)(2).



B. Section 103.192(b)--Requirements for Covered Financial Institutions



    For purposes of complying with the final rule's prohibition on the 

opening or maintaining in the United States of correspondent accounts 

for, or on behalf of, VEF Bank, we expect a covered financial 

institution to take such steps that a reasonable and prudent financial 

institution would take to protect itself from loan or other fraud or 

loss based on misidentification of a person's status.

1. Prohibition of Direct Use of Correspondent Accounts

    Section 103.192(b)(1) of the rule prohibits all covered financial 

institutions from opening or maintaining a correspondent account in the 

United States for, or on behalf of, VEF Bank. The prohibition requires 

all covered financial institutions to review their account records to 

ensure that they maintain no accounts directly for, or on behalf of, 

VEF Bank.

2. Due Diligence Upon Correspondent Accounts To Prohibit Indirect Use

    As a corollary to the prohibition on the opening or maintaining of 

correspondent accounts directly for VEF Bank, Sec.  103.192(b)(2) 

requires a covered financial institution to apply due diligence to its 

correspondent accounts \16\ that is reasonably designed to guard 

against their indirect use by VEF Bank. At a minimum, that due 

diligence must include notifying correspondent accountholders that 

correspondent accounts may not be used to provide VEF Bank with access 

to the covered financial institution. For example, a covered financial 

institution may satisfy this requirement by transmitting the following 

notice to all of its correspondent accountholders:

---------------------------------------------------------------------------



    \16\ Again, for purposes of the final rule, a correspondent 

account is defined as an account established by a covered financial 

institution for a foreign bank to receive deposits from, or to make 

payments or other disbursements on behalf of, a foreign bank, or to 

handle other financial transactions related to the foreign bank. For 

purposes of this definition, the term account means any formal 

banking or business relationship established to provide regular 

services, dealings, and other financial transactions. See 31 CFR 

103.175(d)(2).



    Notice: Pursuant to U.S. regulations issued under section 311 of 

the USA PATRIOT Act, 31 CFR 103.192, we are prohibited from opening 

or maintaining a correspondent account for, or on behalf of, VEF 

Bank (Republic of Latvia) or any of its subsidiaries (including 

Veiksmes lizings). The regulations also require us to notify you 

that your correspondent account with our financial institution may 

not be used to provide VEF Bank or any of its subsidiaries with 

access to our financial institution. If we become aware that VEF 

Bank or any of its subsidiaries is indirectly using the 

correspondent account you hold at our financial institution, we will 

be required to take appropriate steps to prevent such access, 

---------------------------------------------------------------------------

including terminating your account.



    The purpose of the notice requirement is to help ensure that VEF is 

denied access to the U.S. financial system, as well as to increase 

awareness within the international financial community of the risks and 

deficiencies of VEF. However, we do not require or expect a covered 

financial institution to obtain a certification from its correspondent 

accountholders that indirect access will not be provided in order to 

comply with this notice requirement. Instead, methods of compliance 

with the notice requirement could include, for example, transmitting a 

one-time notice by mail, fax, or e-mail to a covered financial 

institution's correspondent accountholders, informing those 

accountholders that their correspondent accounts may not be used to 

provide VEF Bank with indirect access to the covered financial 

institution, or including such information in the next regularly 

occurring transmittal from the covered financial institution to its 

correspondent accountholders.

    In its comment letter, the trade association requested that we 

consider permitting other methods of providing notice to correspondent 

accountholders or allowing sufficient flexibility so that covered 

financial institutions can use systems already established under other 

provisions of the USA PATRIOT Act to provide notice. As we indicated in 

the notice of proposed rulemaking, a covered financial institution is 

not obligated to use any specific form or method in notifying its 

correspondent accountholders of the special measure. We suggested the 

provision of written notice containing certain language as only one 

example of how a covered financial institution could comply with its 

obligation to notify its correspondents. The trade association further 

suggested that we specifically consider means such as including the 

notice within the certificates used by financial institutions to comply 

with the



[[Page 39559]]



rules issued under sections 313 and 319 of the USA PATRIOT Act. 

Although there may be circumstances where this would be appropriate, we 

note that those certificates are renewable only every three years and 

that relying solely on the certification process for notice purposes 

would not be reasonable where a re-certification would not be made 

within a reasonable time following the issuance of this final rule. 

Furthermore, as noted above, we are not requiring that covered 

financial institutions obtain a certification regarding compliance with 

the final rule from each correspondent accountholder.

    This final rule also requires a covered financial institution to 

take reasonable steps to identify any indirect use of its correspondent 

accounts by VEF, to the extent that such indirect use can be determined 

from transactional records maintained by the covered financial 

institution in the normal course of business. For example, a covered 

financial institution is expected to apply an appropriate screening 

mechanism to be able to identify a funds transfer order that, on its 

face, lists VEF as the originator's or beneficiary's financial 

institution, or otherwise references VEF in a manner detectable under 

the financial institution's normal business screening procedures. We 

acknowledge that not all institutions are capable of screening every 

field in a funds transfer message and that the risk-based controls of 

some institutions may not necessitate such comprehensive screening. 

Alternatively, other institutions may perform more thorough screening 

as part of their risk-based determination to perform ``additional due 

diligence,'' as described below. An appropriate screening mechanism 

could be the mechanism currently used by a covered financial 

institution to comply with various legal requirements, such as the 

commercially available software used to comply with the sanctions 

programs administered by the Office of Foreign Assets Control.

    In its letter, the software company commenter sought clarification 

on how covered financial institutions were expected to prevent indirect 

use of correspondent services to VEF. In particular, the software 

company asked if a one-time search was sufficient to determine if the 

financial institution was being used indirectly by a subject to a 

section 311 special measure and whether the proposed rule also extends 

to wire transfer activity, payable-through accounts, debit and credit 

card transactions, and any other financial activities through which a 

U.S. financial institution may eventually directly transact or act as 

an intermediary.

    After we issue a final section 311 rulemaking and impose the fifth 

special measure with regard to a financial institution (``section 311 

institution''), a covered financial institution is required to apply 

due diligence to its correspondent accounts that is reasonably designed 

to guard against their indirect use by the section 311 institution. 

Specifically, a covered financial institution must: (1) Notify its 

correspondent accountholders that the correspondent account may not be 

used to provide the section 311 institution with access to the covered 

financial institution; and (2) take reasonable steps to identify any 

indirect use of its correspondent accounts by the section 311 

institution. We gave an example above of how a one-time transmittal 

notice to correspondent accountholders would satisfy the notification 

requirement. With respect to the second requirement, a covered 

financial institution has an ongoing--as opposed to a one-time--

obligation to take reasonable steps to identify all correspondent 

account services it may directly or indirectly provide to the section 

311 institution.

    This commenter also suggested that section 311 institutions, like 

VEF, be included in the Office of Foreign Assets Control Specially 

Designated Nationals List to avoid compelling covered financial 

institutions to comply with two separate lists and, therefore, 

alleviate regulatory burden.\17\ However, the suggestion is problematic 

given that the Financial Crimes Enforcement Network and the Office of 

Foreign Assets Control are distinct governmental entities with 

different policy objectives. The Office of Foreign Assets Control 

administers and enforces economic and trade sanctions based on U.S. 

foreign policy and national security goals, while the intent of 

imposing the fifth special measure under a section 311 rulemaking is to 

prevent entities of primary money laundering concern from accessing the 

U.S. financial system. The two lists referenced are not comparable and 

have separate statutory criteria and legal bases and are, therefore, 

not equivalent or interchangeable.

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    \17\ The software company commenter also requested that we 

provide a list of section 311 institutions in an electronic format 

available for download on its Web site in the same formats as our 

section 314(a) (mandatory law enforcement information sharing 

request) lists and lists provided by the Office of Foreign Assets 

Control. This request presupposes that the section 311 list is as 

massive or frequent as the other lists and merits our providing it 

in a downloadable format. However, the number of section 311 

rulemakings issued in one year does not merit such treatment. We 

maintain a list of section 311 rulemakings and withdrawals at http://www.fincen.gov

 under Regulatory/Section 311.



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    Nonetheless, as stated above, covered financial institutions may 

seek to monitor for section 311 institutions by using software that 

they are currently using, such as the commercially available software 

used to comply with the sanctions programs administered by the Office 

of Foreign Assets Control to flag certain entities. Using existing 

screening software should alleviate regulatory burden for covered 

financial institutions in complying with this rulemaking. However, each 

covered financial institution has the flexibility to establish and 

apply a screening mechanism appropriate for its business.

    Notifying correspondent accountholders and taking reasonable steps 

to identify any indirect use of correspondent accounts by VEF in the 

manner discussed above are the minimum due diligence requirements under 

this final rule. Beyond these minimum steps, a covered financial 

institution should adopt a risk-based approach for determining what, if 

any, additional due diligence measures it should implement to guard 

against the indirect use of its correspondent accounts by VEF, based on 

risk factors such as the type of services it offers and the geographic 

locations of its correspondent accountholders.

    A covered financial institution that obtains knowledge that a 

correspondent account is being used by a foreign bank to provide 

indirect access to VEF must take all appropriate steps to prevent such 

indirect access, including, when necessary, terminating the 

correspondent account. A covered financial institution may afford such 

foreign bank a reasonable opportunity to take corrective action prior 

to terminating the correspondent account. We have added language in the 

final rule clarifying that, should the foreign bank refuse to comply, 

or if the covered financial institution cannot obtain adequate 

assurances that the account will not be available to VEF, the covered 

financial institution must terminate the account within a commercially 

reasonable time. This means that the covered financial institution 

should not permit the foreign bank to establish any new positions or 

execute any transactions through the account, other than those 

necessary to close the account. A covered financial institution may 

reestablish an account closed under this rule if it determines that the 

account will not be used to provide banking services indirectly to VEF.



[[Page 39560]]



3. Reporting Not Required

    Section 103.192(b)(3) of the rule clarifies that the rule does not 

impose any reporting requirement upon any covered financial institution 

that is not otherwise required by applicable law or regulation. 

However, a covered financial institution must document its compliance 

with the requirement that it notify its correspondent accountholders 

that the accounts may not be used to provide VEF with access to the 

covered financial institution.



VI. Regulatory Flexibility Act



    It is hereby certified that this rule will not have a significant 

economic impact on a substantial number of small entities. It appears 

that VEF no longer holds correspondent accounts in the United States. 

The correspondent accounts that the bank previously held in the United 

States were closed, and any correspondent accounts that may still be 

held in the United States for foreign banks that still maintain a 

correspondent relationship with VEF are held with large banks. Thus, 

the prohibition on establishing or maintaining such correspondent 

accounts will not have a significant impact on a substantial number of 

small entities. In addition, all covered financial institutions 

currently must exercise some degree of due diligence in order to comply 

with various legal requirements. The tools used for such purposes, 

including commercially available software used to comply with the 

economic sanctions programs administered by the Office of Foreign 

Assets Control, can be modified to monitor for the use of correspondent 

accounts by VEF. Thus, the due diligence that is required by this 

rule--i.e., the one-time transmittal of notice to correspondent 

accountholders and screening of transactions to identify any indirect 

use of a correspondent account--is not expected to impose a significant 

additional economic burden on small covered financial institutions.



VII. Paperwork Reduction Act of 1995



    The collection of information contained in the final rule has been 

approved by the Office of Management and Budget (OMB) in accordance 

with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and has 

been assigned OMB Control Number 1506-0041. An agency may not conduct 

or sponsor, and a person is not required to respond to, a collection of 

information unless it displays a valid control number assigned by OMB.

    The only requirements in the final rule that are subject to the 

Paperwork Reduction Act are the requirements that a covered financial 

institution notify its correspondent accountholders that the 

correspondent accounts maintained on their behalf may not be used to 

provide VEF with access to the covered financial institution and the 

requirement that a covered financial institution document its 

compliance with this obligation to notify its correspondents. The 

estimated annual average burden associated with this collection of 

information is one hour per affected financial institution. We received 

no comments on this information collection burden estimate.

    Comments concerning the accuracy of this information collection 

estimate and suggestions for reducing this burden should be sent 

(preferably by fax (202-395-6974)) to Desk Officer for the Department 

of the Treasury, Office of Information and Regulatory Affairs, Office 

of Management and Budget, Washington, DC 20503 (or by the Internet to 

Alexander_T._Hunt@omb.eop.gov), with a copy to the Financial Crimes 



Enforcement Network by paper mail to FinCEN, P.O. Box 39, Vienna, VA 

22183, ``ATTN: Section 311--Imposition of Special Measure Against VEF'' 

or by electronic mail to regcomments@fincen.treas.gov with the caption 

``ATTN: Section 311--Imposition of Special Measure Against VEF'' in the 

body of the text.



VIII. Executive Order 12866



    This rule is not a significant regulatory action for purposes of 

Executive Order 12866, ``Regulatory Planning and Review.''



List of Subjects in 31 CFR Part 103



    Administrative practice and procedure, Banks and banking, Brokers, 

Counter-money laundering, Counter-terrorism, and Foreign banking.



Authority and Issuance



0

For the reasons set forth in the preamble, part 103 of title 31 of the 

Code of Federal Regulations is amended as follows:



PART 103--FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND 

FINANCIAL TRANSACTIONS



0

1. The authority citation for part 103 continues to read as follows:



    Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 

and 5316-5332; title III, sec. 314 Pub. L. 107-56, 115 Stat. 307.



Subpart I--[Amended]



0

2. Subpart I of part 103 is amended by adding new Sec.  103.192 as 

follows:





Sec.  103.192  Special measures against VEF Bank.



    (a) Definitions. For purposes of this section:

    (1) Correspondent account has the same meaning as provided in Sec.  

103.175(d)(1)(ii).

    (2) Covered financial institution includes:

    (i) An insured bank (as defined in section 3(h) of the Federal 

Deposit Insurance Act (12 U.S.C. 1813(h)));

    (ii) A commercial bank;

    (iii) An agency or branch of a foreign bank in the United States;

    (iv) A federally insured credit union;

    (v) A savings association;

    (vi) A corporation acting under section 25A of the Federal Reserve 

Act (12 U.S.C. 611 et seq.);

    (vii) A trust bank or trust company that is federally regulated and 

is subject to an anti-money laundering program requirement;

    (viii) A broker or dealer in securities registered, or required to 

be registered, with the U.S. Securities and Exchange Commission under 

the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), except 

persons who register pursuant to section 15(b)(11) of the Securities 

Exchange Act of 1934;

    (ix) A futures commission merchant or an introducing broker 

registered, or required to be registered, with the Commodity Futures 

Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et 

seq.), except persons who register pursuant to section 4(f)(a)(2) of 

the Commodity Exchange Act; and

    (x) A mutual fund, which means an investment company (as defined in 

section 3(a)(1) of the Investment Company Act of 1940 ((``Investment 

Company Act'') (15 U.S.C. 80a-3(a)(1))) that is an open-end company (as 

defined in section 5(a)(1) of the Investment Company Act (15 U.S.C. 

80a-5(a)(1))) and that is registered, or is required to register, with 

the U.S. Securities and Exchange Commission pursuant to the Investment 

Company Act.

    (3) Subsidiary means a company of which more than 50 percent of the 

voting stock or analogous equity interest is owned by another company.

    (4) VEF Bank means any branch, office, or subsidiary of joint stock 

company VEF Banka operating in the Republic of Latvia or in any other 

jurisdiction. The one known VEF Bank subsidiary, Veiksmes lizings, and 

any branches or offices, are included in the definition.

    (b) Requirements for covered financial institutions--(1) 

Prohibition on direct use of correspondent accounts. A covered 

financial institution shall



[[Page 39561]]



terminate any correspondent account that is opened or maintained in the 

United States for, or on behalf of, VEF Bank.

    (2) Due diligence of correspondent accounts to prohibit indirect 

use. (i) A covered financial institution shall apply due diligence to 

its correspondent accounts that is reasonably designed to guard against 

their indirect use by VEF Bank. At a minimum, that due diligence must 

include:

    (A) Notifying correspondent accountholders that the correspondent 

account may not be used to provide VEF Bank with access to the covered 

financial institution; and

    (B) Taking reasonable steps to identify any indirect use of its 

correspondent accounts by VEF Bank, to the extent that such indirect 

use can be determined from transactional records maintained in the 

covered financial institution's normal course of business.

    (ii) A covered financial institution shall take a risk-based 

approach when deciding what, if any, additional due diligence measures 

it should adopt to guard against the indirect use of its correspondent 

accounts by VEF Bank.

    (iii) A covered financial institution that obtains knowledge that a 

correspondent account is being used by the foreign bank to provide 

indirect access to VEF Bank shall take all appropriate steps to prevent 

such indirect access, including, where necessary, terminating the 

correspondent account.

    (iv) A covered financial institution required to terminate a 

correspondent account pursuant to paragraph (b)(2)(iii) of this 

section:

    (A) Should do so within a commercially reasonable time, and should 

not permit the foreign bank to establish any new positions or execute 

any transaction through such correspondent account, other than those 

necessary to close the correspondent account; and

    (B) May reestablish a correspondent account closed pursuant to this 

paragraph if it determines that the correspondent account will not be 

used to provide banking services indirectly to VEF Bank.

    (3) Recordkeeping and reporting. (i) A covered financial 

institution is required to document its compliance with the notice 

requirement set forth in paragraph (b)(2)(i)(A) of this section.

    (ii) Nothing in this section shall require a covered financial 

institution to report any information not otherwise required to be 

reported by law or regulation.



    Dated: July 5, 2006.

Robert W. Werner,

Director, Financial Crimes Enforcement Network.

[FR Doc. E6-11043 Filed 7-12-06; 8:45 am]



BILLING CODE 4810-02-P



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[Federal Register: July 13, 2006 (Volume 71, Number 134)]

[Proposed Rules]               

[Page 39606-39609]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13jy06-39]                         



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DEPARTMENT OF THE TREASURY



31 CFR Part 103



RIN 1506-AA81



 

Financial Crimes Enforcement Network; Withdrawal of the Finding 

of Primary Money Laundering Concern and the Notice of Proposed 

Rulemaking Against Multibanka



AGENCY: Financial Crimes Enforcement Network, Department of the 

Treasury.



ACTION: Withdrawal of the notice of proposed rulemaking.



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SUMMARY: This document withdraws our April 26, 2005 finding that joint 

stock company Multibanka (``Multibanka'' or the ``bank'') is a 

financial institution of primary money laundering concern and our 

notice of proposed rulemaking recommending the imposition of a special 

measure, pursuant to the authority contained in 31 U.S.C. 5318A of the 

Bank Secrecy Act.



DATES: The notice of proposed rulemaking is withdrawn as of July 13, 

2006.



FOR FURTHER INFORMATION CONTACT: Regulatory Policy and Programs 

Division, Financial Crimes Enforcement Network, (800) 949-2732.



SUPPLEMENTARY INFORMATION: 



I. Background



A. Statutory Provisions



    On October 26, 2001, the President signed into law the Uniting and 

Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (``USA 

PATRIOT Act''). Title III of the USA PATRIOT Act amends the anti-money 

laundering provisions of the Bank Secrecy Act, codified at 12 U.S.C. 

1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314 and 5316-5332, to 

promote the prevention, detection, and prosecution of money laundering 

and the financing of terrorism. Regulations implementing the Bank 

Secrecy Act appear at 31 CFR part 103. The authority of the Secretary 

of the Treasury (the ``Secretary'') to administer the Bank Secrecy Act 

and its implementing regulations has been delegated to the Director of 

the Financial Crimes Enforcement Network (the ``Director'').\1\ The 

Bank Secrecy Act authorizes the Director to issue regulations requiring 

all financial institutions defined as such in the Bank Secrecy Act to 

maintain or file certain reports or records that have been determined 

to have a high degree of usefulness in criminal, tax, or regulatory 

investigations or proceedings, or in the conduct of intelligence or 

counter-intelligence activities, including analysis, to protect against 

international terrorism, and to implement anti-money laundering 

programs and compliance procedures.\2\

---------------------------------------------------------------------------



    \1\ Therefore, references to the authority of the Secretary of 

the Treasury under section 311 of the USA PATRIOT Act apply equally 

to the Director of the Financial Crimes Enforcement Network.

    \2\ Language expanding the scope of the Bank Secrecy Act to 

intelligence or counter-intelligence activities to protect against 

international terrorism was added by section 358 of the USA PATRIOT 

Act.

---------------------------------------------------------------------------



    Section 311 of the USA PATRIOT Act added section 5318A to the Bank 

Secrecy Act, granting the Secretary the authority, after finding that 

reasonable grounds exist for concluding that a foreign jurisdiction, 

foreign financial institution, class of international transactions, or 

type of account is of ``primary money laundering concern,'' to require 

domestic financial institutions and domestic financial agencies to take 

certain ``special measures'' against the primary money laundering 

concern. Section 311 identifies factors for the Secretary to consider 

and Federal agencies to consult before he may find that reasonable 

grounds exist for concluding that a jurisdiction, financial 

institution, class of transactions, or type of account is of primary 

money laundering concern. The statute also provides similar procedures, 

including factors and consultation requirements, for selecting the 

specific special measures to be imposed against the primary money 

laundering concern.

    Taken as a whole, section 311 provides the Secretary with a range 

of options that can be adapted to target specific money laundering and 

terrorist financing concerns most effectively. These options provide 

the authority to bring additional and useful pressure on those 

jurisdictions and institutions that pose money laundering threats and 

the ability to take steps to protect the U.S. financial system. Through 

the imposition of various special measures, we can: Gain more 

information about the concerned jurisdictions, financial institutions, 

transactions, and accounts; monitor more effectively the respective 

jurisdictions, financial institutions, transactions, and accounts; and 

ultimately protect U.S. financial institutions from involvement with 

jurisdictions, financial institutions, transactions, or accounts that 

pose a money laundering concern.

    Before making a finding that reasonable grounds exist for 

concluding that a foreign financial institution is of primary money 

laundering concern, the Secretary is required by the Bank Secrecy Act 

to consult with both the Secretary of State and the Attorney General.

    In addition to these consultations, when finding that a foreign 

financial institution is of primary money laundering concern, the 

Secretary is required by section 311 to consider ``such information as 

the Secretary determines to be relevant, including the following 

potentially relevant factors:''

     The extent to which such financial institution is used to 

facilitate or promote money laundering in or through the jurisdiction;

     The extent to which such financial institution is used for 

legitimate business purposes in the jurisdiction; and

     The extent to which such action is sufficient to ensure, 

with respect to



[[Page 39607]]



transactions involving the institution operating in the jurisdiction, 

that the purposes of the Bank Secrecy Act continue to be fulfilled, and 

to guard against international money laundering and other financial 

crimes.

    If we determine that reasonable grounds exist for concluding that a 

foreign financial institution is of primary money laundering concern, 

we must determine the appropriate special measure(s) to address the 

specific money laundering risks. Section 311 provides a range of 

special measures that can be imposed, individually or jointly, in any 

combination, and in any sequence.\3\ In the imposition of special 

measures, we follow procedures similar to those for finding a foreign 

financial institution to be of primary money laundering concern, but we 

also engage in additional consultations and consider additional 

factors. Section 311 requires us to consult with other appropriate 

Federal agencies and parties \4\ and to consider the following specific 

factors:

---------------------------------------------------------------------------



    \3\ Available special measures include requiring: (1) 

Recordkeeping and reporting of certain financial transactions; (2) 

collection of information relating to beneficial ownership; (3) 

collection of information relating to certain payable-through 

accounts; (4) collection of information relating to certain 

correspondent accounts; and (5) prohibition or conditions on the 

opening or maintaining of correspondent or payable-through accounts. 

31 U.S.C. 5318A(b)(1)-(5). For a complete discussion of the range of 

possible countermeasures, see 68 FR 18917 (April 17, 2003) 

(proposing to impose special measures against Nauru).

    \4\ Section 5318A(a)(4)(A) requires the Secretary to consult 

with the Chairman of the Board of Governors of the Federal Reserve 

System, any other appropriate Federal banking agency, the Secretary 

of State, the U.S. Securities and Exchange Commission, the Commodity 

Futures Trading Commission, the National Credit Union 

Administration, and, in our sole discretion, ``such other agencies 

and interested parties as the Secretary may find to be 

appropriate.'' The consultation process must also include the 

Attorney General, if the Secretary is considering prohibiting or 

imposing conditions upon the opening or maintaining of a 

correspondent account by any domestic financial institution or 

domestic financial agency for the foreign financial institution of 

primary money laundering concern.

---------------------------------------------------------------------------



     Whether similar action has been or is being taken by other 

nations or multilateral groups;

     Whether the imposition of any particular special measure 

would create a significant competitive disadvantage, including any 

undue cost or burden associated with compliance, for financial 

institutions organized or licensed in the United States;

     The extent to which the action or the timing of the action 

would have a significant adverse systemic impact on the international 

payment, clearance, and settlement system, or on legitimate business 

activities involving the particular institution; and

     The effect of the action on U.S. national security and 

foreign policy.\5\

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    \5\ Classified information used in support of a section 311 

finding of primary money laundering concern and imposition of 

special measure(s) may be submitted by the Department of the 

Treasury to a reviewing court ex parte and in camera. See section 

376 of the Intelligence Authorization Act for Fiscal Year 2004, 

Public Law 108-177 (amending 31 U.S.C. 5318A by adding new paragraph 

(f)).

---------------------------------------------------------------------------



B. Multibanka



    Multibanka is headquartered in Riga, the capital of the Republic of 

Latvia (``Latvia''). Multibanka is the oldest commercial bank in Latvia 

and is among the smallest of Latvia's 23 banks. It has: Four foreign 

offices, which are located in Russia, Ukraine, and Belarus; five 

domestic branches; and one leasing subsidiary, Multilizings. Multibanka 

provides a full range of banking services in the Latvian market and is 

a member of the Riga Stock Exchange, the Central Depository, and the 

Association of Commercial Banks of Latvia. Multibanka currently has 

direct ties to the U.S. financial system through one of its 

correspondent relationships.



II. The 2005 Finding and Subsequent Developments



A. The 2005 Finding



    Based upon review and analysis of relevant information, 

consultations with relevant Federal agencies and parties, and after 

consideration of the factors enumerated in section 311, in April 2005 

the Secretary, through his delegate, the Director of the Financial 

Crimes Enforcement Network, found that reasonable grounds exist for 

concluding that Multibanka is a financial institution of primary money 

laundering concern. This finding was published in a notice of proposed 

rulemaking which proposed prohibiting covered financial institutions 

from, directly or indirectly, opening or maintaining correspondent 

accounts in the United States for Multibanka or any of its branches, 

offices, or subsidiaries, pursuant to the authority under 31 U.S.C. 

5318A.\6\

---------------------------------------------------------------------------



    \6\ See 70 FR 21362 (April 26, 2005).

---------------------------------------------------------------------------



    The notice of proposed rulemaking outlined the various factors 

supporting the finding and proposed prohibition. In finding Multibanka 

to be of primary money laundering concern, we determined that:

     Multibanka was used by criminals to facilitate or promote 

money laundering. In particular, we determined Multibanka was an 

important banking resource for illicit shell companies and financial 

fraud rings, allowing criminals to pursue illegal financial activities.

     Any legitimate business use of Multibanka appeared to be 

significantly outweighed by its use to promote or facilitate money 

laundering and other financial crimes.

     A finding that Multibanka was a financial institution of 

primary money laundering concern and prohibiting the maintenance of 

correspondent accounts for that financial institution would prevent 

suspect accountholders at Multibanka from accessing the U.S. financial 

system to facilitate money laundering and would bring criminal conduct 

occurring at or through Multibanka to the attention of the 

international financial community, thus serving the purposes of the 

Bank Secrecy Act and guarding against international money laundering 

and other financial crimes.

    We determined, based on a variety of sources, that Multibanka had 

been used to facilitate or promote money laundering based in part on 

its lax identification and verification of accountholders and on its 

weak internal controls. In addition, the proceeds of alleged illicit 

activity had been transferred to or through accounts held by Multibanka 

at U.S. financial institutions.



B. Jurisdictional Developments



    Latvia's geographical position, situated by the Baltic Sea and 

bordering Russia, Estonia, Belarus, and Lithuania, makes it an 

attractive transit country for both legitimate and illegitimate trade. 

Sources of illegitimate trade include counterfeiting, arms trafficking, 

contraband smuggling, and other crimes. It is believed that most of 

Latvia's narcotics trafficking is conducted by organized crime groups 

that began with cigarette and alcohol smuggling and then progressed to 

narcotics. Latvian authorities recently have sought tighter legislative 

controls designed to fight money laundering and other financial crime. 

However, Latvia's role as a regional financial center, the number of 

commercial banks (23), and those banks' sizeable non-resident deposit 

base continue to make it vulnerable to money laundering.

    Latvia has taken a number of significant steps to address the 

reported money laundering risks and corruption highlighted in the 

notice of proposed rulemaking. The Parliament of Latvia recently passed 

a new law, On the Declaration of Cash on the State Border, which will 

go into effect on July 1, 2006.\7\ The law is aimed at preventing



[[Page 39608]]



money laundering consistent with the United Nations Convention Against 

Transnational Organized Crime and the European Union draft regulation 

on the control of cash leaving and entering the European Community. In 

2005, Latvian law was amended to broaden supervisory authority to 

revoke banking licenses and to allow enforcement agencies greater 

access to bank account information. The amendments: Provide for fines 

of between 5,000 and 100,000 LATS (equivalent to over $8,687.50 and 

over $173,750.00, respectively) against banks in violation of the anti-

money laundering laws; include a definition of and procedures for 

determining who qualifies as a ``true beneficiary''; and introduce 

criminal liability for providing false information to banks. 

Additionally, Latvia has: Banned the establishment of shell banks; 

clarified the authority of Latvian financial institutions to demand 

customer disclosure regarding the source of funds; and allowed for the 

sharing of information between financial institutions on suspicious 

activities.

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    \7\ The law requires that individuals crossing the Latvian 

border with the equivalent of 10,000 Euros ([euroi]10,000) in coins, 

cash, and/or certain monetary instruments to complete a form stating 

the origin of the currency or monetary instruments, the purpose or 

use of the currency or monetary instruments, and the receiver of the 

currency or monetary instruments.

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    In terms of implementation, the Latvian authorities have made 

strides in strengthening their anti-money laundering regulation and 

supervision and in developing more robust anti-money laundering 

examination procedures. To ensure proper protection of Latvia's 

financial sector, authorities will need to continue their efforts to 

effectively implement and enforce their strengthened anti-money 

laundering regime.



C. Multibanka's Subsequent Developments



    Multibanka has informed us that it has taken significant steps to 

address deficiencies in its anti-money laundering programs and 

controls. Although some of these efforts were initiated prior to the 

finding that Multibanka was a financial institution of primary money 

laundering concern, the bank is continuing to improve its anti-money 

laundering procedures and is working to ensure that these are 

translated effectively into practice. First, the bank revised its 

policies, procedures, and internal controls, and established an Anti-

Money Laundering Manual to address previously identified weaknesses, 

which included lax practices in the identification and verification of 

accountholders and insufficient internal controls. Second, it committed 

to review, and has since reviewed, its entire portfolio of accounts 

with the aim of verifying the identities of all accountholders. We 

understand that, in connection with this review process, the bank 

terminated relationships with more than 2,600 customers that were 

unwilling or unable to comply with Multibanka's enhanced information 

collection and verification standards. As a result, 98 percent of the 

bank's non-resident accounts and more than 50 percent of the bank's 

resident accounts have been closed. Third, Multibanka retained the 

services of an independent, international accounting firm to identify 

weaknesses in its anti-money laundering program and to assist the bank 

in its goal of reaching a best international practices standard for its 

anti-money laundering program and internal controls. Together, the bank 

and the international accounting firm have created an action plan to 

address deficiencies and have targeted compliance dates, and the bank 

has evinced implementation of the plan. Fourth, the bank has made 

organizational changes to coordinate and lead anti-money laundering 

activities, including the creation of a Compliance Committee, a Finance 

Monitoring Department, a Corporate Customer Department, and a Customer 

Management Division. In addition to hiring additional employees to 

assist with compliance, the bank has enhanced training opportunities 

for bank personnel with key anti-money laundering responsibilities. 

Fifth, in an effort to improve internal controls, the bank has enhanced 

and continues to enhance information technology systems that assist in 

the automated screening of accountholders, beneficial owners, and other 

persons and transactions that need to be flagged for enhanced scrutiny 

or possible reporting.

    We believe that Multibanka has been forthcoming in addressing the 

concerns that we identified in the notice of proposed rulemaking and 

has instituted measures to guard against money laundering abuses. The 

bank, through its counsel, initiated meetings with us in May and 

October 2005, with the intent to demonstrate the remedial measures 

taken. We permitted the bank to submit additional documentation to 

demonstrate its continued efforts and the bank has provided copies of 

its revised policies, procedures, and internal controls.

    Multibanka has significantly improved its anti-money laundering 

policies, procedures, and internal controls, has enhanced its 

organizational structure, and has strengthened its accountholder 

identification and verification requirements. We believe that the 

bank's cumulative efforts demonstrate its continuing commitment to 

fighting money laundering and other financial crimes.

    If a financial institution that is the object of a proposed section 

311 special measure is determined to no longer be of primary money 

laundering concern, we have authority to withdraw the finding and to 

withdraw any related proposal to impose a special measure. In light of 

Multibanka's significant remedial measures, described above, to address 

deficiencies in its anti-money laundering program and internal 

controls, particularly the bank's attempts to review its accounts to 

focus on legitimate business customers, we believe that the risk of 

criminals using Multibanka to facilitate or promote money laundering 

has decreased.



III. Notice of Proposed Rulemaking and Comments



    In the April 26, 2005 notice of proposed rulemaking, we proposed to 

impose the fifth special measure authorized by 31 U.S.C. 5318A(b)(5) 

against Multibanka, which would prohibit U.S. financial institutions 

from opening or maintaining correspondent or payable-through accounts 

for Multibanka in the United States.

    We received six comments on the notice of proposed rulemaking. 

Three comments, one each from an industry association, a firm providing 

search software to financial institutions, and a private individual, 

addressed the finding and rulemaking under Section 311 generally, but 

did not provide specifics with respect to Multibanka. The Latvian 

financial intelligence unit and a Latvian financial services 

supervisory authority jointly filed a comment regarding Latvian anti-

money laundering requirements, but similarly provided no specifics with 

respect to Multibanka. Legal counsel to Multibanka submitted two 

comment letters, and representatives of Multibanka met with us to 

discuss the anti-money laundering efforts described in their comments.



IV. Withdrawal of the Finding of Multibanka as a Financial Institution 

of Primary Laundering Concern



    For the reasons set forth above, we hereby withdraw our finding 

that Multibanka is a financial institution of primary money laundering 

concern as of July 13, 2006.



[[Page 39609]]



V. Withdrawal of Notice of Proposed Rulemaking



    For the reasons set forth above, we hereby withdraw the notice of 

proposed rulemaking imposing the fifth special measure authorized by 31 

U.S.C. 5318A(b)(5) against Multibanka for purposes of section 5318A as 

published in the Federal Register on April 26, 2005 (70 FR 21362).



    Dated: May 12, 2006.

Robert W. Werner,

Director, Financial Crimes Enforcement Network.

 [FR Doc. E6-10941 Filed 7-12-06; 8:45 am]



BILLING CODE 4810-02-P