Final rule: amendment to the bank secrecy act regulations; defining mutual funds as financial institutions

Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations
Epidemiology & Statistics Unit, Research and § 2.125 [Amended]
I. Background
Scientific Affairs, January 2009. 10. Mannino, D. M. et al., ‘‘Surveillance for ■ 5. Effective December 31, 2013, in A. Statutory Provisions. Asthma—United States, 1980–1999,'' § 2.125, remove and reserve paragraphs The Bank Secrecy Act, Public Law Morbidity and Mortality Weekly Report, (e)(2)(iv) and (e)(4)(viii). 91–508, codified as amended at 12 51(SS01):1–13, March 29, 2002. Dated: April 8, 2010. U.S.C. 1829b, 12 U.S.C. 1951–1959, and 11. Analysis completed by FDA based on Leslie Kux,
information provided by IMS Health, IMS 31 U.S.C. 5311–5314; 5316–5332, National Sales Perspective (TM), 2009, Acting Assistant Commissioner for Policy. authorizes the Secretary of the Treasury extracted September 2009. These data can be [FR Doc. 2010–8467 Filed 4–13–10; 8:45 am] (‘‘Secretary'') to issue regulations purchased from IMS Health. Please send all requiring financial institutions to keep BILLING CODE 4160–01–S
inquiries to: IMS Health, Attn: Brian records and file reports that are Palumbo, Account Manager, 660 West determined to have a high degree of Germantown Pike, Plymouth Meeting, PA usefulness in criminal, tax, and DEPARTMENT OF THE TREASURY
regulatory investigations or proceedings, 12. Rozek, R. P., and E. R. Bishko, or in the conduct of intelligence or ‘‘Economic Issues Raised in the FDA's 31 CFR Part 103
Proposed Rule on Removing the Essential- counter-intelligence activities, including Use Designation for Albuterol MDIs,'' analysis, to protect against international RIN 1506–AA93
National Economic Research Associates, terrorism, and to implement anti-money August 13, 2004 (FDA Docket No. 2003P– Financial Crimes Enforcement
laundering programs and compliance procedures.1 Regulations implementing Network; Amendment to the Bank
13. Hendeles, L. G, L. Colice, and R. J. the BSA appear at 31 CFR part 103. The Meyer, ‘‘Withdrawal of Albuterol Inhalers Secrecy Act Regulations; Defining
authority of the Secretary to administer Containing Chlorofluorocarbon Propellants,'' Mutual Funds as Financial Institutions.
the BSA has been delegated to the New England Journal of Medicine, 356:1344– Director of FinCEN. 1351, March 29, 2007. AGENCY: Financial Crimes Enforcement The definition of ‘‘financial 14. Goldman, D. P. et al., ‘‘Pharmacy Network (‘‘FinCEN''), Treasury. Benefits and the Use of Drugs by the institution'' in the BSA includes ACTION: Final rule. Chronically Ill,'' The Journal of the American investment companies.2 The Investment Medical Association, 291:2344–2350, May SUMMARY: FinCEN is issuing this final
Company Act of 1940, codified at 15 rule to include mutual funds within the U.S.C. 80a–1 et seq. (the ‘‘Investment 15. DeNavas-Walt, C., B. D. Proctor, and J. general definition of ‘‘financial Company Act''), defines ‘‘investment C. Smith, U.S. Census Bureau, Current institution'' in regulations implementing company'' 3 and subjects investment Population Reports, P60–236(RV), Income, the Bank Secrecy Act (‘‘BSA''). The final companies to regulation by the SEC. Poverty, and Health Insurance Coverage in the United States: 2008, Table 7, p. 21, 2009. rule subjects mutual funds to rules B. Overview of Current Regulatory under the BSA on the filing of Currency Provisions. List of Subjects in 21 CFR Part 2
Transaction Reports (‘‘CTRs'') and on the Regulations implementing the BSA Administrative practice and creation, retention, and transmittal of currently apply only to investment procedure, Cosmetics, Drugs, Foods. records or information for transmittals companies that are ‘‘open-end of funds. Additionally, the final rule Therefore, under the Federal Food, companies,'' as the term is defined in Drug, and Cosmetic Act and the Clean amends the definition of mutual fund in the Investment Company Act. More Air Act and under authority delegated the rule requiring mutual funds to commonly known as mutual funds, to the Commissioner of Food and Drugs, establish anti-money laundering open-end companies are the after consultation with the (‘‘AML'') programs. The amendment predominant type of investment Administrator of the Environmental harmonizes the definition of mutual company. Open-end companies are Protection Agency, 21 CFR part 2 is fund in the AML program rule with the management companies that offer or amended as follows: definitions found in the other BSA rules to which mutual funds are subject. have outstanding securities that are redeemable at net asset value.4 PART 2—GENERAL ADMINISTRATIVE
Finally, the final rule amends the rule Although FinCEN has issued RULINGS AND DECISIONS
that delegates authority to examine individual rules that apply to mutual institutions for compliance with the funds,5 FinCEN has not included 1. The authority citation for 21 CFR BSA. The amendment makes it clear part 2 continues to read as follows: that FinCEN has not delegated to the 1 Language expanding the scope of the BSA was Authority: 15 U.S.C. 402, 409; 21 U.S.C.
Internal Revenue Service the authority added by the Uniting and Strengthening America by 321, 331, 335, 342, 343, 346a, 348, 351, 352, to examine mutual funds for compliance Providing Appropriate Tools Required to Intercept 355, 360b, 361, 362, 371, 372, 374; 42 U.S.C. with the BSA, but rather to the U.S. and Obstruct Terrorism Act of 2001 (‘‘USA 7671 et seq. Securities and Exchange Commission PATRIOT Act''), Public Law 107–56. 2 31 U.S.C. 5312(a)(2)(I). (‘‘SEC'') as the federal functional § 2.125 [Amended]
3 See 15 U.S.C. 80a–3. regulator of mutual funds. 15 U.S.C. 80a–4; 15 U.S.C. 80a–5(a)(1); 15 U.S.C. 2. Effective June 14, 2010, in § 2.125, DATES: Effective Date: This rule is
80a–2(a)(32). Face-amount certificate companies remove and reserve paragraphs (e)(2)(iii) effective May 14, 2010. and unit investment trusts are excluded from the and (e)(4)(vii). definition of ‘‘management company.'' 15 U.S.C. Compliance Date: Mutual funds must § 2.125 [Amended]
comply with 31 CFR 103.33 by January 5 Anti-Money Laundering Programs for Mutual 10, 2011. The compliance date for all Funds, 67 FR 21117 (April 29, 2002); Customer 3. Effective December 31, 2010, in other aspects of this rulemaking is the Identification Programs for Mutual Funds, 68 FR § 2.125, remove and reserve paragraphs same as the effective date. 25131 (May 9, 2003); Amendment to the Bank (e)(1)(v) and (e)(4)(iv). Secrecy Act Regulations—Requirement That Mutual FOR FURTHER INFORMATION CONTACT: The
Funds Report Suspicious Activity, 71 FR 26213 § 2.125 [Amended]
FinCEN regulatory helpline at (800) (May 4, 2006); Anti-Money Laundering Programs; Special Due Diligence Programs for Certain Foreign ■ 4. Effective June 30, 2011, in § 2.125, 949–2732 and select Option 6. Accounts, 71 FR 496 (Jan. 4, 2006); Anti-Money remove and reserve paragraph (e)(1)(iii). SUPPLEMENTARY INFORMATION:
Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations
mutual funds within the definition of ‘‘mutual fund'' covers only those entities report suspicious transactions on a ‘‘financial institution'' at 31 CFR registered or required to register with Form 8300 is redundant.16 103.11(n), which is less inclusive than the SEC. Specifically, ‘‘mutual fund'' is In the Notice, FinCEN requested the definition in the BSA itself.6 The comment on the anticipated time and definition of ‘‘financial institution'' at 31 monetary savings that could result from an ‘‘investment company'' (as the term is CFR 103.11(n) determines, among other defined in section 3 of the Investment replacing the requirement to file reports things, the scope of rules that require Company Act (15 U.S.C. 80a–3)) that is an on Form 8300 with a requirement to file the filing of CTRs and the creation, ‘‘open-end company'' (as that term is defined CTRs. One commenter stated that retention, and transmittal of records or in section 5 of the Investment Company Act requiring mutual funds to file CTRs information on transmittals of funds and (15 U.S.C. 80a–5)) registered or required to instead of Form 8300s would streamline other specified transactions.7 register with the Securities and Exchange and reduce overall compliance burdens Commission under section 8 of the for mutual funds and could aid in II. Notice of Proposed Rulemaking and
Investment Company Act (15 U.S.C. 80a–8). facilitating enterprise-wide risk Comments
There were no comments concerning management programs. Commenters On June 5, 2009, FinCEN published a the definition of mutual fund. FinCEN were in agreement that requiring mutual notice of proposed rulemaking (the is adopting the definition as proposed. funds to file CTRs instead of Form ‘‘Notice'') that proposed including 8300s should reduce the expense and mutual funds within the general The final rule has the effect of burden of reporting for mutual funds definition of financial institution at 31 replacing a mutual fund's requirement and their transfer agents,17 and one CFR 103.11(n).8 The proposed rule to file a Form 8300 with a requirement commenter stated that there likely will would subject mutual funds to rules on to file a CTR under 31 CFR 103.22.11 A be greater efficiency in larger entities the filing of CTRs and on the creation, mutual fund will now be required to file that have staff and systems in place to retention, and transmittal of records or a CTR for a transaction involving a produce CTR filings. information for transmittals of funds.9 transfer of more than $10,000 in FinCEN also requested comment on The comment period for the Notice currency by, through, or to the mutual the nature, volume, content, and value ended on September 3, 2009. FinCEN fund.12 The CTR filing obligation covers of any potentially lost information to received three comment letters from incoming, outgoing, and exchange law enforcement, tax, regulatory, and various industry associations.10 All of transactions in currency. The definition counter-terrorism investigations or the commenters supported the proposed of ‘‘currency'' for purposes of the CTR activities that could result from this rule and offered many reasons why rule is different from and less inclusive rulemaking. FinCEN did not receive any including mutual funds within the than the definition of ‘‘currency'' in the comments specific to this request. One definition of ‘‘financial institution'' at 31 Form 8300 rule.13 Under the CTR rule, commenter, however, stated generally CFR 103.11(n) is appropriate. These a financial institution must treat that requiring mutual funds to file CTRs, reasons are discussed below in greater multiple transactions as a single rather than Form 8300s, would not detail in the section-by-section analysis. transaction if the financial institution diminish the quality or quantity of All of the commenters requested has knowledge that the transactions are useful BSA data reported by mutual additional time to comply with the conducted by or on behalf of the same Recordkeeping and Travel Rule requirements that would be imposed B. Section 103.33—The Recordkeeping In the Notice, FinCEN asserted that under 31 CFR 103.33. and Travel Rule and Related the volume of Form 8300s filed is Recordkeeping Requirements III. Section-by-Section Analysis
relatively low when compared to the overall volume of mutual fund The final rule subjects mutual funds A. Sections 103.11(n)(10) and transactions.15 Commenters also to requirements on the creation and 103.11(ccc)—Mutual Funds Move From concurred with FinCEN that since retention of records for transmittals of Filing Reports on Form 8300 to the mutual funds are subject to SAR funds, and the requirement to transmit Currency Transaction Report reporting requirements, the ability to The final rule adds mutual funds to 16 FinCEN also offered that because mutual funds the definition of ‘‘financial institution'' rarely receive from or disburse to shareholders 11 31 CFR 103.30(a)(1)(ii) (the requirement to file significant amounts of currency, mutual funds are at 31 CFR 103.11(n)(10). The final rule a Form 8300 does not apply to transactions reported not as likely as depository institutions to be used defines a ‘‘mutual fund'' for this purpose under 31 CFR 103.22). during the initial ‘‘placement'' stage of the money at 31 CFR 103.11(ccc). The definition of 12 31 CFR 103.22(b)(1). laundering process. Amendment to the Bank 13 See 31 CFR 103.11(h) (currency is defined as Secrecy Act Regulations; Defining Mutual Funds as the coin and paper of the United States or of any Financial Institutions, 74 FR 26,996, 26998 (June 5, Laundering Programs; Special Due Diligence other country that is designated as legal tender and 2009). Two commenters agreed with FinCEN. A Programs for Certain Foreign Accounts, 72 FR that circulates and is customarily used as a medium third commenter stated that the terms and 44768 (Aug. 9, 2007). of exchange in a foreign country). conditions of the mutual fund account, rather than 6 See 31 U.S.C. 5312(a)(2). 14 31 CFR 103.22(c)(2). The obligation to file a the type of financial institution offering such 7 See 31 CFR 103.22; 31 CFR 103.28; 31 CFR CTR is conditioned on knowledge that the product, is more likely to determine whether a 103.29; 31 CFR 103.33; and 31 CFR 103.38. Defining transactions are conducted by or on behalf of the mutual fund can be used to place illicit funds in a business as a financial institution would make the same person and result in either cash in or cash out the financial system. business ineligible for exemption from a bank's totaling more than $10,000 during any one business 17 FinCEN has recognized the role of transfer requirement to file CTRs with respect to the day. The threshold in 31 CFR 103.22 applies to agents in performing BSA compliance functions. business' large cash transactions. See 31 CFR transactions conducted during a single business See e.g., 67 FR 2117, (April 29, 2002) (adopting 103.22(d)(5)(viii). day, whereas the requirement to file a Form 8300 release for mutual fund Anti-Money Laundering 8 Amendment to the Bank Secrecy Regulations; can cover transactions that occur over a longer Program rule), 68 FR 25131, (May 9, 2003) Defining Mutual Funds as Financial Institutions, 74 period of time. See 31 CFR 103.22(c)(2) and 31 CFR (adopting release for mutual fund Customer FR 26996 (June 5, 2009). 103.30(c)(12)(ii). Identification Program rule), 71 FR 26213, (May 4, 9 See 31 CFR 103.22; 31 CFR 103.28; 31 CFR 15 A review of BSA data revealed that while 2006) (adopting release for mutual fund SAR rule). 103.29; 31 CFR 103.33; and 31 CFR 103.38. hundreds of millions of transactions involving Many mutual funds contractually delegate their 10 All comments to the Notice are available for mutual funds were conducted in calendar years BSA compliance functions, including 2004, 2005, 2006, and 2007, fewer than 19,500 recordkeeping, to transfer agents, although the Form 8300s were filed by mutual funds over the mutual fund remains responsible under the BSA for ensuring compliance. Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations
information on these transactions to Investment Company Act, and mutual C. Section 103.130(a)—Amending the other financial institutions in the fund transfer agents are subject to Definition of ‘‘Mutual Fund'' in the AML payment chain (‘‘Recordkeeping and recordkeeping requirements under the Program Rule for Mutual Funds Travel Rule'').18 The Recordkeeping and Securities Exchange Act of 1934.25 In FinCEN is amending the definition of Travel Rule applies to transmittals of light of these existing regulatory ‘‘mutual fund'' at 31 CFR 103.130(a) by funds in amounts that equal or exceed obligations, FinCEN stated in the Notice including an explicit reference to open- $3,000,19 and requires the transmittor's that the requirements of 31 CFR 103.33 end companies ‘‘registered or required to financial institution to obtain and retain and 31 CFR 103.38 would have a de register under section 8 of the name, address, and other information on minimus impact on mutual funds and Investment Company Act.'' The the transmittor and the transaction.20 their transfer agents.26 Furthermore, amended definition of mutual fund Furthermore, the Recordkeeping and rules under the BSA on the harmonizes the definition in the anti- Travel Rule requires the recipient's establishment of customer identification money laundering program rule with financial institution—and in certain programs by mutual funds and on the the definitions in the customer instances, the transmittor's financial reporting by mutual funds of suspicious identification program rule for mutual institution—to obtain or retain funds, enhanced due diligence program identifying information on the transactions impose requirements to rule for certain foreign accounts, and recipient.21 The Recordkeeping and create and retain records.27 suspicious activity reporting rule for Travel Rule requires that certain FinCEN also requested comment on mutual funds.28 Rules requiring the information obtained or retained by the the anticipated impact of subjecting establishment of customer identification transmittor's financial institution mutual funds to the requirements of the and enhanced due diligence programs ‘‘travel'' with the transmittal order Recordkeeping and Travel Rule. All impose requirements that are through the payment chain.22 three commenters noted that subjecting programmatic in nature. It was FinCEN will adopt as proposed the mutual funds to the requirements of the FinCEN's intent that the definition of inclusion of mutual funds within an Recordkeeping and Travel Rule will ‘‘mutual fund'' at 31 CFR 103.130(a) existing exception designed to exclude require mutual funds to implement include only those entities registered or from the Recordkeeping and Travel changes to their transaction processing required to register with the SEC. Rule's coverage funds transfers or and recordkeeping systems. One Paragraph (a) of section 103.130 will transmittal of funds in which certain commenter stated that the impact of the define a mutual fund as follows: categories of financial institution are the Recordkeeping and Travel Rule transmittor, originator, recipient, or an ‘‘investment company'' (as the term is requirements on a mutual fund and its beneficiary.23 Additionally, the final defined in section 3 of the Investment transfer agent may vary significantly, rule subjects mutual funds to Company Act (15 U.S.C. 80a–3)) that is an and that the impact will depend on such ‘‘open-end company'' (as that term is defined requirements on the creation and factors as the transaction processing and in section 5 of the Investment Company Act retention of records for extensions of recordkeeping systems currently in (15 U.S.C. 80a–5)) registered or required to credit and cross-border transfers of register with the Commission under section currency, monetary instruments, checks, place, the size of the mutual fund 8 of the Investment Company Act (15 U.S.C. investment securities, and credit.24 complex, and how the mutual fund These requirements apply to shares are distributed. Other D. Section 103.56(b)(8)—Excluding transactions in amounts exceeding commenters stated that subjecting Mutual Funds From the Delegation of mutual funds to the requirements of the Examination Authority to the Internal Mutual funds are subject to record Recordkeeping and Travel Rule would Revenue Service retention requirements under the have a greater impact on smaller mutual funds. FinCEN is amending 31 CFR 18 See 31 CFR 103.33(f) and (g). Financial All commenters requested additional 103.56(b)(8) by including mutual funds institutions must retain records for a period of five time to comply with the Recordkeeping within the list of financial institutions years. 31 CFR 103.38(d). the Internal Revenue Service lacks the 19 Rules under the BSA define a ‘‘transmittal of and Travel Rule. Such an extension authority to examine for compliance funds'' and the persons or institutions involved in would provide mutual funds with an a ‘‘transmittal of funds.'' See 31 CFR 103.11(d), (e), with the BSA. The definition of ‘‘mutual opportunity to implement changes to (q), (r), (s), (v), (w), (cc), (dd), (jj), (kk), (ll), and fund'' at 31 CFR 103.11(ccc) will apply (mm). A ‘‘transmittal of funds'' includes funds their transaction reporting and to this provision. transfers processed by banks, as well as similar recordkeeping systems. Generally, The SEC examines mutual funds for payments where one or more of the financial commenters suggested an extension of institutions processing the payment is not a bank. compliance with the Investment If the mutual fund is processing a payment sent by between 18 to 24 months. FinCEN has Company Act, and FinCEN has or to its customer, then the mutual fund would be determined that extending the delegated to the SEC the authority to either the ‘‘transmittor's financial institution'' or the compliance date with respect to the ‘‘recipient's financial institution.'' examine mutual funds for compliance requirements of the Recordkeeping and 20 See 31 CFR 103.33(f)(1)(i) and (f)(2). with the BSA.29 The SEC has expertise Travel Rule to 270 days after the rule is 21 See 31 CFR 103.33(f)(3) (information that the in the operations of mutual funds and recipient's financial institution must obtain or published in the Federal Register is
experience addressing the adequacy of mutual fund compliance programs. 22 See 31 CFR 103.33(g) (information that must ‘‘travel'' with the transmittal order); 31 CFR Mutual funds are subject to rules under 103.11(kk) (defining ‘‘transmittal order''). 25 See, e.g., 15 U.S.C. 80a–30 (mutual funds); 15 the Investment Company Act that 23 See 31 CFR 103.33(e)(6)(i) and 31 CFR U.S.C. 78q(a)(3) (transfer agents). require the implementation of internal 103.33(f)(6)(i). The inclusion of mutual funds 26 Amendment to Bank Secrecy Act Regulations; controls and other aspects of a within the exceptions is intended to provide mutual Defining Mutual Funds as Financial Institutions, 74 funds with treatment similar to that of banks, FR 26996, 26998 (June 5, 2009). brokers or dealers in securities, futures commission 27 See 31 CFR 103.131 (mutual funds must obtain 28 31 CFR 103.130(a), 103.131(a)(5), merchants, and introducing brokers in and record identifying information for persons 103.175(f)(1)(x), 103.15(a). opening new accounts, and verify the identity of 29 See 31 CFR 103.56(b)(6) (examination authority 24 See 31 CFR 103.33(a)–(c). Financial institutions persons opening new accounts); 31 CFR 103.15(c) under the BSA is delegated to the SEC with respect must retain these records for a period of five years. (mutual funds must maintain records of to ‘‘investment companies,'' as the term is defined 31 CFR 103.38(d). documentation that supports the filing of a SAR). in the Investment Company Act). Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations
compliance program.30 Examinations by FinCEN certifies that the final rule will VIII. Paperwork Reduction Act
the Internal Revenue Service would not have a significant economic impact result in duplication of effort and on a substantial number of small The collection of information limited benefit in terms of increased entities. The economic impact of the contained in this final rule has been final rule on small entities should not be approved by the Office of Management significant. Mutual funds, regardless of and Budget in accordance with the IV. Notice and Comment Under the
their size, are already required to Paperwork Reduction Act of 1995 (44 Administrative Procedure Act
comply with many of the rules under U.S.C. 3507(d)) under control number The Notice did not propose the BSA that currently exist. While all 1506–0004. Based on comments amendments to 31 CFR 103.130(a) and mutual funds are captured under this received the collection of information as 31 CFR 103.56(b)(8). Under the rulemaking, the estimated burden required by 31 CFR 103.22 will likely Administrative Procedure Act, notice of associated with defining mutual funds reduce the reporting burden for mutual a proposed rulemaking is not required as financial institutions is minimal. funds. Commenters did not state that for ‘‘rules of agency organization, FinCEN believes that mutual funds the collection of information as required procedure, or practice,'' or when the rarely receive from or disburse to by 31 CFR 103.33 would result in an agency, for good cause, finds ‘‘that shareholders significant amounts of increased burden for mutual funds. notice and public procedure thereon are currency. As discussed above, FinCEN Description of Affected Financial impractical, unnecessary, or contrary to and commenters anticipate that moving Institutions: ‘‘Mutual funds'' as defined the public interest.'' 31 The amendment mutual funds from a Form 8300 filing in 31 CFR 103.11(ccc). to 31 CFR 103.56(b)(8) is a ‘‘rule of requirement to a CTR filing requirement Estimated Number of Affected agency organization, procedure, or will reduce the regulatory burden on all Financial Institutions: 8,029.34 practice.'' Furthermore, for the reasons mutual funds. Finally, mutual funds are Estimated Average Annual Burden stated above, FinCEN finds that already subject to record retention Hours per Affected Financial publishing the amendments to 31 CFR requirements under the Investment Institution: The estimated average 103.130(a) and 31 CFR 103.56(b)(8) for Company Act, and mutual fund transfer burden associated with the collection of comment is ‘‘unnecessary and contrary agents are subject to recordkeeping information in this notice is one-hour to the public interest.'' 32 requirements under the Securities recordkeeping per response per affected V. Proposed Location in Chapter X
Exchange Act of 1934. financial institution.35 In the Notice, FinCEN requested In accordance with the November 7, Estimated Total Annual Burden: comment on whether the proposed rule 2008 notice of proposed rulemaking would have a significant economic pertaining to a restructuring of its impact on a substantial number of small In the Notice, FinCEN invited regulations in a new chapter in the Code entities. FinCEN received one letter comment on whether the collection of of Federal Regulations,33 FinCEN is commenting on FinCEN's certification information in the final rule is necessary separately proposing to remove Part 103 under the RFA. This commenter stated for the proper performance of FinCEN's of Chapter I of Title 31, Code of Federal that the requirements of 31 CFR 103.33 mission.37 Commenters did not address Regulations, and add Parts 1000 to 1099 might have a significant economic the issue specifically. However, all (Chapter X). In the proposed Chapter X, impact on small mutual funds. The commenters stated that subjecting the definition of mutual fund will be commenter noted that most of the larger mutual funds to 31 CFR 103.22, and located at 1010.100(gg) and inserted into mutual funds already have affiliations relieving mutual funds of the obligation the definition of ‘‘financial institution'' with other financial institutions and to file reports on Form 8300, will reduce at 1010.100(t)(10). The planned that these financial institutions have the reporting burden on mutual funds. reorganization would have no systems in place enabling mutual funds All commenters noted that requiring substantive effect on the final rule to achieve economies. The commenter mutual funds to comply with 31 CFR herein. The final rule herein would be suggested that FinCEN consider a 103.33 could have an impact on small renumbered according to the structure phased-in requirement to allow smaller mutual funds. As discussed above in the established via the finalization of the mutual funds additional time to comply section by section analysis, all with the requirements of 31 CFR 103.33. commenters requested a delayed compliance date for 31 CFR 103.33 to VI. Regulatory Flexibility Analysis
FinCEN believes that this rulemaking will not have a significant impact on a allow mutual funds time to implement Pursuant to the Regulatory Flexibility substantial number of small mutual changes to their transaction reporting Act (‘‘RFA'') (5 U.S.C. 601 et seq.), funds. FinCEN, however, has and recordkeeping systems. FinCEN has determined that a delayed compliance determined that all mutual funds should 30 17 CFR 270.30a–3 (registered investment date to allow all mutual funds to make companies must implement disclosure controls, and procedures and internal controls over financial changes to their recordkeeping and 34 See Investment Company Institute (ICI) 2008 reporting.); 17 CFR 270.38a–1 (registered transaction reporting systems in order to Investment Company Fact Book, at 110 (2008), investment companies must implement written comply with the requirements of 31 CFR policies and procedures reasonably designed to ensure compliance with the federal securities laws). 103.33 is appropriate. FinCEN has, 31 5 USC 553(b). therefore, extended the compliance date 35 The single hour is based on an estimate of 45 32 For similar reasons, the amendment to 31 CFR with respect to the requirements of 31 minutes to complete the CTR form and 15 minutes 103.56(b)(8) does not require analysis under the CFR 103.33 to 270 days after the rule is for recordkeeping and archiving. Regulatory Flexibility Act or analysis of major rule 36 While it is not industry practice for mutual published in the Federal Register.
status under the Small Business Regulatory funds to accept cash, there is no restriction on Enforcement Fairness Act. 5 USC 804(3)(C) (for VII. Executive Order 12866
mutual funds that prohibits mutual funds from purposes of Congressional review of agency accepting cash. Therefore, for purposes of rulemaking, the term ‘‘rule'' does not include any It has been determined that the final estimating the annual burden the filing of CTRs will rule of agency organization, procedure, or practice rule is not a ‘‘significant regulatory have on mutual funds, FinCEN estimates that each that does not substantially affect the rights or mutual fund will file one CTR per year. action'' for purposes of Executive Order obligations of non-agency parties). 37 Amendment to Bank Secrecy Act Regulations; 33 Transfer and Reorganization of Bank Secrecy 12866. Accordingly, a regulatory impact Defining Mutual Funds as Financial Institutions, 74 Act Regulations, 73 FR 66414 (Nov. 7, 2008). analysis is not required. FR 26996, 26999 (June 5, 2009). Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations
be granted additional time to comply § 103.33 Records to be made and retained
DEPARTMENT OF HOMELAND
with 31 CFR 103.33. by financial institutions.
SECURITY
Under the Paperwork Reduction Act, an agency may not conduct or sponsor Coast Guard
a collection of information, and a person is not required to respond to a collection 33 CFR Part 117
of information, unless it displays a valid (I) A Federal, State or local OMB control number. government agency or instrumentality; [Docket No. USCG–2010–0217]
List of Subjects in 31 CFR Part 103
Drawbridge Operation Regulation;
(J) A mutual fund; and Administrative practice and Elizabeth River, Eastern Branch, VA
procedure, Banks and banking, Brokers, AGENCY: Coast Guard, DHS. Currency, Foreign banking, Foreign ACTION: Notice of temporary deviation currencies, Gambling, Investigations, from regulations. Penalties, Reporting and recordkeeping requirements, Securities, Terrorism. (I) A federal, state or local government agency or instrumentality; or SUMMARY: The Commander, Fifth Coast
Amendment
Guard District has issued a temporary (J) A mutual fund; and deviation from the regulations For the reasons set forth above in the governing the operation of the Berkley preamble, 31 CFR part 103 is amended Bridge (I–264), across the Elizabeth Subpart I—Anti-Money Laundering
River, Eastern Branch, mile 0.4, at Programs
Norfolk, VA. The deviation is necessary PART 103—FINANCIAL
to facilitate structural repairs to the lift RECORDKEEPING AND REPORTING
■ 4. Section 103.130 is amended by spans. This deviation allows the OF CURRENCY AND FOREIGN
revising paragraph (a) to read as follows: drawbridge to remain in the closed to § 103.130 Anti-money laundering
navigation position. programs for mutual funds.
DATES: This deviation is effective from
1. The authority citation for part 103 continues to read as follows: 8 p.m. on April 23, 2010 through 4:30 (a) For purposes of this section a.m. on June 21, 2010. Authority: 12 U.S.C. 1829b and 1951–1959; mutual fund means an ‘‘investment
31 U.S.C. 5311–5314 and 5316–5332; title III, ADDRESSES: Documents mentioned in
company'' (as that term is defined in secs. 311, 312, 313, 314, 319, 326, 352, Pub. this preamble as being available in the L. 107–56, 115 Stat. 307. section 3 of the Investment Company docket are part of docket USCG–2010– Act (15 U.S.C. (15 U.S.C. 80a–3)) that is 0217 and are available online by going Subpart A—Definitions
an ‘‘open-end company'' (as that term is defined in section 5 of the Investment USCG–2010–0217 in the ‘‘Keyword'' box ■ 2. Amend § 103.11 by revising Company Act (15 U.S.C. 80a–5)) and then clicking ‘‘Search''. They are paragraph (n)(9); and by adding registered or required to register with also available for inspection or copying paragraphs (n)(10) and (ccc): the Commission under section 8 of the at the Docket Management Facility (M– Investment Company Act (15 U.S.C. 30), U.S. Department of Transportation, § 103.11 Meaning of Terms.
West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. (9) An introducing broker in Subpart E—General Provisions
and 5 p.m., Monday through Friday, except Federal holidays. (10) A mutual fund. 5. Section 103.56 is amended by revising paragraph (b)(8) to read as FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or (ccc) Mutual fund means an e-mail Terrance Knowles, ‘‘investment company'' (as the term is § 103.56 Enforcement.
Environmental Protection Specialist, defined in section 3 of the Investment Fifth Coast Guard District; telephone Company Act (15 U.S.C. 80a–3)) that is 757–398–6587, e-mail an ‘‘open-end company'' (as that term is (8) To the Commissioner of Internal defined in section 5 of the Investment Revenue with respect to all financial have questions on viewing the docket, Company Act (15 U.S.C. 80a–5)) institutions, except brokers or dealers in call Renee V. Wright, Program Manager, registered or required to register with securities, mutual funds, futures Docket Operations, telephone 202–366– the Securities and Exchange commission merchants, introducing Commission under section 8 of the brokers in commodities, and commodity SUPPLEMENTARY INFORMATION: The
Investment Company Act (15 U.S.C. trading advisors, not currently Virginia Department of Transportation, examined by Federal bank supervisory who owns and operates this bascule- agencies for soundness and safety; and type drawbridge, has requested a temporary deviation from the current Subpart C—Records Required To Be
operating regulations set out in 33 CFR Maintained
Dated: April 8, 2010. 117.1007(b) and (c) to facilitate the James H. Freis, Jr.,
resurfacing of the bridge roadway, as ■ 3. Amend § 103.33 by revising Director, Financial Crimes Enforcement modified by the temporary deviation at paragraphs (e)(6)(i)(I) and (f)(6)(i)(I); and Network. Docket No. USCG–2010–0083, by adding paragraphs (e)(6)(i)(J) and [FR Doc. 2010–8500 Filed 4–13–10; 8:45 am] published in the Federal Register on
(f)(6)(i)(J), to read as follows: BILLING CODE 4810–02–P
March 3, 2010, 75 Fed. Reg. 9521.

Source: http://www.sec.gov.edgekey.net/about/offices/ocie/aml/75fr19241.pdf