81_FR_72188 81 FR 71986 - Conditional Exception to Bank Secrecy Act Regulations Relating to the Burma Section 311 Final Rule

81 FR 71986 - Conditional Exception to Bank Secrecy Act Regulations Relating to the Burma Section 311 Final Rule

DEPARTMENT OF THE TREASURY
Financial Crimes Enforcement Network

Federal Register Volume 81, Issue 202 (October 19, 2016)

Page Range71986-71988
FR Document2016-25249

This document contains a conditional exception, pursuant to authority under the Bank Secrecy Act, which would permit certain U.S. financial institutions to maintain correspondent accounts for Burmese banks under certain conditions.

Federal Register, Volume 81 Issue 202 (Wednesday, October 19, 2016)
[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)]
[Rules and Regulations]
[Pages 71986-71988]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-25249]


=======================================================================
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DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement Network

31 CFR Part 1010


Conditional Exception to Bank Secrecy Act Regulations Relating to 
the Burma Section 311 Final Rule

AGENCY: Financial Crimes Enforcement Network (``FinCEN''), Treasury.

ACTION: Grant of conditional exception.

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SUMMARY: This document contains a conditional exception, pursuant to 
authority under the Bank Secrecy Act, which would permit certain U.S. 
financial institutions to maintain correspondent accounts for Burmese 
banks under certain conditions.

DATES: Applicability Date: This conditional exception is applicable 
beginning October 7, 2016.

FOR FURTHER INFORMATION CONTACT: All questions about the exceptive 
relief must be addressed to the FinCEN Resource Center at (800) 767-
2825 (Monday through Friday, 8:00 a.m.-6:00 p.m. ET).

SUPPLEMENTARY INFORMATION: 

I. Statutory and Regulatory Background

    The Bank Secrecy Act (``BSA''), Titles I and II of Public Law 91-
508, as amended, codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 
31 U.S.C. 5311-5314 and 5316-5332, authorizes the Secretary of the 
Treasury (``Secretary''), among other things, to issue regulations 
requiring persons to keep records and file reports that are determined 
to have a high degree of usefulness in criminal, tax, regulatory, and 
counter-terrorism matters. The regulations implementing the BSA appear 
at 31 CFR Chapter X. The Secretary's authority to administer the BSA 
has been delegated to the Director of FinCEN.\1\
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    \1\ Treasury Order 180-01 (Sept. 26, 2002).
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    FinCEN has the authority, under 31 U.S.C. 5318(a)(7) and 31 CFR 
1010.970, to make exceptions to the requirements of 31 CFR Chapter X. 
Such exceptions may be conditional or unconditional, may apply to 
particular persons or to classes of persons, and may apply to 
particular transactions or classes of transactions. Moreover, an 
exception is issuable or revocable in the sole discretion of FinCEN, 
based on the circumstances to which the exception applies.

II. FinCEN Issuance 2016-1

    This document, FinCEN Issuance 2016-1, provides exceptive relief 
under

[[Page 71987]]

31 U.S.C. 5318(a)(7) and 31 CFR 1010.970 to U.S. financial institutions 
covered by 31 CFR 1010.651 (FinCEN's rule imposing special measures 
against Burma under Section 311 of the USA PATRIOT Act). The exceptive 
relief permits such financial institutions to maintain correspondent 
accounts for Burmese banks under certain conditions. Specifically, 
FinCEN is providing the following exceptive relief:
    The provisions of paragraphs (b)(1) and (2) of 31 CFR 1010.651 
shall not apply to a correspondent account that is established, 
maintained, administered, or managed in the United States by a covered 
financial institution (as defined in 31 CFR 1010.651(a)(3)) for, or on 
behalf of, a Burmese banking institution, provided that such covered 
financial institution subjects the account to the due diligence 
obligations set forth under Section 312 of the USA PATRIOT Act and its 
implementing regulation 31 CFR 1010.610.
    FinCEN is providing this exceptive relief given (i) FinCEN's 
assessment of Burma's progress to date in addressing issues identified 
in FinCEN's 2003 finding that Burma was a jurisdiction of primary money 
laundering concern; (ii) a high-level commitment by Burma to continue 
making progress in addressing those issues; and (iii) FinCEN's 
consideration of the ongoing effect on U.S. national security and 
foreign policy of U.S. financial institutions' compliance with 31 CFR 
1010.651.

Section 311 Action Against Burma

    On November 18, 2003, FinCEN found Burma to be a jurisdiction of 
primary money laundering concern pursuant to 31 U.S.C. 5318A, as added 
by Section 311 of the USA PATRIOT Act of 2001 (Section 311).\2\ FinCEN 
based its finding on a number of factors, including (i) Burma's lack of 
an effective anti-money laundering/countering the financing of 
terrorism (AML/CFT) regime; (ii) high levels of public corruption in 
Burma; (iii) a recognition that Burma is a haven for international drug 
trafficking; and (iv) a lack of cooperation by Burma with U.S. law 
enforcement agencies in criminal matters. In connection with this 
finding, on April 12, 2004, FinCEN issued a final rule at 31 CFR 
1010.651 prohibiting U.S. financial institutions from maintaining U.S. 
correspondent accounts for Burmese banking institutions.\3\
---------------------------------------------------------------------------

    \2\ 68 FR 66299 (Nov. 25, 2003).
    \3\ 69 FR 19093 (Apr. 12, 2004) (codified at 31 CFR 1010.651).
---------------------------------------------------------------------------

Burma's Progress in Addressing the Concerns Described in the Section 
311 Finding

    Since FinCEN promulgated the final rule in 2004, Burma has taken 
steps to improve its AML/CFT regime and to address the issues of 
corruption, drug trafficking, and law enforcement cooperation.
Improvements to Burma's AML/CFT Regime
    FinCEN's finding noted that ``the Burmese anti-money laundering law 
is ineffective and unenforceable'' and could not be regarded as 
effectively remedying a number of AML/CFT deficiencies, including that: 
(i) The Burmese Central Bank had no anti-money laundering regulations 
for financial institutions; (ii) banks licensed by Burma were not 
legally required to obtain or maintain identification information about 
their customers; (iii) such banks were also not required to maintain 
transaction records of customer accounts; and (iv) Burmese financial 
institutions were not required to report suspicious transactions.\4\
---------------------------------------------------------------------------

    \4\ 68 FR at 66300.
---------------------------------------------------------------------------

    Since 2012, Burma has made significant progress in addressing the 
strategic AML/CFT deficiencies identified by the Financial Action Task 
Force (FATF),\5\ which resulted in its removal in June 2016 from the 
FATF's public list of countries with strategic AML/CFT deficiencies. In 
2013, the Burmese Central Bank, which previously had been part of the 
Ministry of Finance, became independent. Through its 2014 Money 
Laundering Law and the Burmese Central Bank's 2015 customer due 
diligence directive, Burma now requires financial institutions to 
conduct due diligence and know the true identity of their customers 
including beneficial owners. Burma has criminalized money laundering 
and terrorist financing, and it has established a legal framework to 
implement targeted financial sanctions under United Nations Security 
Council Resolutions (UNSCR) 1267, 1373, and related resolutions. 
Further, Burma has established a financial intelligence unit and made 
progress in ensuring that it has operational and budgetary 
independence.
---------------------------------------------------------------------------

    \5\ The FATF is an inter-governmental body that sets standards 
and promotes effective implementation of legal, regulatory, and 
operational measures for combating money laundering, terrorist 
financing, and other related threats to the integrity of the 
international financial system.
---------------------------------------------------------------------------

Actions Addressing Public Corruption in Burma
    FinCEN's finding noted that, as of 2003, Transparency 
International--the leading international non-governmental organization 
devoted to curbing corruption--ranked Burma as ``the fourth most 
corrupt jurisdiction out of 133 jurisdictions assessed worldwide.'' \6\ 
Burma has taken some significant steps to address public corruption. In 
2012, Burma ratified the UN Convention against Corruption.\7\ Burma 
passed an Anti-Corruption Law in 2013 (and amended it in 2016), 
improving its ability to receive and investigate allegations of 
official corruption.
---------------------------------------------------------------------------

    \6\ 68 FR at 66302.
    \7\ United Nations Office of Drugs and Crime, Myanmar becomes 
the 165th State Party to UN Convention on Corruption, January 10, 
2013.
---------------------------------------------------------------------------

Attention to International Drug Trafficking
    FinCEN's 2003 finding identified Burma as ``a haven for 
international drug trafficking'' and noted that Burma had failed to 
take any regulatory or enforcement action against financial 
institutions with well-known criminal links.\8\ Burma is in the process 
of restructuring and expanding its counternarcotic task forces and 
Burma has worked regionally on counternarcotics initiatives, including 
those coordinated through the United Nations Office on Drugs and Crime.
---------------------------------------------------------------------------

    \8\ 68 FR at 66300-301.
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Cooperation With U.S. Law Enforcement Agencies in Criminal Matters
    FinCEN noted in its 2003 finding that U.S. law enforcement 
indicated that they rarely gained access to bank-related information 
pursuant to investigations, and that they received no cooperation 
regarding counterfeiting investigations involving Burma.\9\
---------------------------------------------------------------------------

    \9\ Id. at 66301.
---------------------------------------------------------------------------

    U.S. law enforcement indicates that cooperation with Burmese 
authorities has since improved. For example, in September 2014, the 
U.S. and Burmese governments signed a Letter of Agreement to enhance 
cooperation in the fight against illicit drugs and transnational crime, 
and to support the development of Burma's law enforcement capacity and 
promote the rule of law.

FinCEN's Remaining Concerns

    FinCEN is encouraged by Burma's progress thus far, but believes 
that Burma has not yet fully addressed the concerns articulated in the 
2003 finding.
    Although Burma has made a number of technical improvements to its 
AML/

[[Page 71988]]

CFT regime, FinCEN remains concerned that Burma has not yet implemented 
its new reforms and has not displayed adequate effectiveness in 
mitigating the risks and threats of money laundering and terrorist 
financing. FinCEN also notes that a significant portion of financial 
activity in Burma relies upon informal money transfer systems, which 
remain largely unregulated and unsupervised.
    FinCEN is also concerned that Burma has not sufficiently addressed 
the corruption issues identified in the 2003 finding. Burma's ranking 
on Transparency International's International Corruption Perceptions 
Index remains high. The U.S. State Department's 2016 International 
Narcotics Control Strategy Report on Burma notes that ``corruption is 
endemic in both business and government. . . The rule of law remains 
weak, and Burma continues to face a significant risk of narcotics 
proceeds being laundered through commercial ventures.'' \10\
---------------------------------------------------------------------------

    \10\ U.S. State Department, 2016 International Narcotics Control 
Strategy Report, available at http://www.state.gov/j/inl/rls/nrcrpt/2016/vol2/253387.htm.
---------------------------------------------------------------------------

    The United States also continues to recognize Burma as a haven for 
international drug trafficking. In September 2016, under the Foreign 
Relations Authorization Act, the President determined Burma to be a 
major illicit drug producing country or major drug-transit country.\11\ 
Further, Burma's cooperation with U.S. law enforcement, while improved 
since 2003, nonetheless remains nascent and largely untested.
---------------------------------------------------------------------------

    \11\ See Section 706(1) of the Foreign Relations Authorization 
Act, Fiscal Year 2003 (Pub. L. 107-228); 2016 Presidential 
Determination for Major Drug Producing and Transit Countries, 
available at https://www.whitehouse.gov/the-press-office/2016/09/12/presidential-determination-major-drug-transit-or-major-illicit-drug.
---------------------------------------------------------------------------

Considerations for Exceptive Relief

    As noted in the final rule, the Section 311 action was designed to 
encourage Burma to make necessary changes to its AML/CFT regime in 
order to address FinCEN's concerns. Burma has begun to address those 
concerns, but significant work remains. FinCEN welcomes Burma's recent 
commitment to work with FinCEN and other components of the U.S. 
Department of the Treasury, as well as with the U.S. government more 
broadly, in advancing its AML/CFT efforts. FinCEN has considered 
Burma's progress, its remaining deficiencies, and its commitment to 
address those deficiencies in deciding to issue this exceptive relief.
    This exceptive relief also takes into account the effect of 
FinCEN's action on U.S. national security and foreign policy, as did 
the final rule.\12\ FinCEN's final rule contained an exemption at 31 
CFR 1010.651(b)(3) that allowed U.S. financial institutions to maintain 
correspondent accounts for Burmese banks if such activity was licensed 
under authorities administered by the U.S. Department of the Treasury's 
Office of Foreign Assets Control (OFAC). Since 2012, OFAC has, via 
general licenses, authorized a broad range of financial activity with 
respect to Burma that would otherwise have been prohibited under the 
Section 311 rule. On October 7, 2016, the President terminated the 
national emergency with respect to Burma and revoked all Burma 
sanctions Executive orders, lifting the economic and financial 
sanctions on Burma administered by OFAC. As a result of the termination 
of the Burma sanctions program, the OFAC general licenses referenced 
above are no longer in effect. Therefore, the exemption incorporated 
into FinCEN's final rule at 31 CFR 1010.651(b)(3), which effectively 
permitted U.S. correspondent account activity with Burmese banks, no 
longer has any operational effect. FinCEN has taken this into 
consideration in deciding to issue this exceptive relief.
---------------------------------------------------------------------------

    \12\ 69 FR at 19094.

    Dated: October 13, 2016.
Jamal El Hindi,
Acting Director, Financial Crimes Enforcement Network.
[FR Doc. 2016-25249 Filed 10-18-16; 8:45 am]
 BILLING CODE 4810-02-P



                                                71986            Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 / Rules and Regulations

                                                updated guidance on the Samsung                          occurs that supersedes the requirements               DEPARTMENT OF THE TREASURY
                                                Galaxy Note 7 device, urging passengers                  of this Order, in which case the
                                                aboard an aircraft to power down and                     Secretary will issue a Rescission Order.              Financial Crimes Enforcement Network
                                                not use, charge, or stow in checked
                                                baggage, any Samsung Galaxy Note 7                       Failure To Comply                                     31 CFR Part 1010
                                                device.                                                    Any person failing to comply with
                                                  Notwithstanding the above DOT                                                                                Conditional Exception to Bank Secrecy
                                                                                                         this Order is subject to civil penalties of           Act Regulations Relating to the Burma
                                                actions, and in light of continued risks
                                                                                                         up to $179,933 for each violation for                 Section 311 Final Rule
                                                identified by Samsung and CPSC
                                                associated with Samsung Galaxy Note 7                    each day they are found to be in
                                                                                                         violation (49 U.S.C. 5123). A person                  AGENCY: Financial Crimes Enforcement
                                                devices, the further action described in                                                                       Network (‘‘FinCEN’’), Treasury.
                                                this Order is necessary to eliminate                     violating this Order may also be subject
                                                                                                         to criminal prosecution, which may                    ACTION: Grant of conditional exception.
                                                unsafe conditions that create an
                                                imminent hazard to public health and                     result in fines under title 18,                       SUMMARY:   This document contains a
                                                safety and the environment.                              imprisonment of up to ten years, or both              conditional exception, pursuant to
                                                                                                         (49 U.S.C. 5124).                                     authority under the Bank Secrecy Act,
                                                Remedial Action
                                                                                                         Right To Review                                       which would permit certain U.S.
                                                   To eliminate or abate the imminent                                                                          financial institutions to maintain
                                                hazard:                                                    Pursuant to 49 U.S.C. 5121(d)(3) and                correspondent accounts for Burmese
                                                   (1) Persons covered by this Order                     in accordance with section 554 of the                 banks under certain conditions.
                                                shall not transport, nor offer for
                                                                                                         Administrative Procedure Act (APA), 5                 DATES: Applicability Date: This
                                                transportation, via air any Samsung
                                                                                                         U.S.C. 500 et seq, a review of this action            conditional exception is applicable
                                                Galaxy Note 7 device.
                                                   (2) Air carriers are required to alert                may be filed. Any petition seeking relief             beginning October 7, 2016.
                                                passengers to the prohibition against air                must be filed within 20 calendar days of              FOR FURTHER INFORMATION CONTACT: All
                                                transport of Samsung Galaxy Note 7                       the date of this order (49 U.S.C.                     questions about the exceptive relief
                                                devices, in particular, immediately prior                5121(d)(3)), and addressed to U.S. DOT                must be addressed to the FinCEN
                                                to boarding and to deny boarding to a                    Dockets, U.S. Department of                           Resource Center at (800) 767–2825
                                                passenger in possession of a Samsung                     Transportation, 1200 New Jersey                       (Monday through Friday, 8:00 a.m.–6:00
                                                Galaxy Note 7 device unless and until                    Avenue SE., Room W12–140,                             p.m. ET).
                                                the passenger divests themselves and                     Washington, DC 20590 (http://                         SUPPLEMENTARY INFORMATION:
                                                carry-on or checked baggage of the                       Regulations.gov). Furthermore, a
                                                                                                                                                               I. Statutory and Regulatory Background
                                                Samsung Galaxy Note 7 device.                            petition for review must state the
                                                   (3) Persons covered by this Order who                 material facts at issue which the                        The Bank Secrecy Act (‘‘BSA’’), Titles
                                                inadvertently bring a prohibited                         petitioner believes dispute the existence             I and II of Public Law 91–508, as
                                                Samsung Galaxy Note 7 device aboard                      of an imminent hazard and must                        amended, codified at 12 U.S.C. 1829b,
                                                an aircraft must immediately power off                   include all evidence and exhibits to be               12 U.S.C. 1951–1959, and 31 U.S.C.
                                                the device, leave it powered off until no                considered. The petition must also state              5311–5314 and 5316–5332, authorizes
                                                longer aboard the aircraft, not use or                   the relief sought. Within 30 days from                the Secretary of the Treasury
                                                charge the device while aboard the                       the date the petition for review is filed,            (‘‘Secretary’’), among other things, to
                                                aircraft, protect the device from                                                                              issue regulations requiring persons to
                                                                                                         the Secretary must approve or deny the
                                                accidental activation, including                                                                               keep records and file reports that are
                                                                                                         relief in writing; or find that the
                                                disabling any features that may turn on                                                                        determined to have a high degree of
                                                                                                         imminent hazard continues to exist, and
                                                the device, such as alarm clocks, and                                                                          usefulness in criminal, tax, regulatory,
                                                                                                         extend the original Emergency Order. In               and counter-terrorism matters. The
                                                keep the device on their person and not
                                                in the overhead compartment, seat back                   response to a petition for review, the                regulations implementing the BSA
                                                pocket, nor in any carry-on baggage, for                 Secretary may grant the requested relief              appear at 31 CFR Chapter X. The
                                                the duration of the flight.                              in whole or in part; or may order other               Secretary’s authority to administer the
                                                   (4) When a flight crew member                         relief as justice may require (including              BSA has been delegated to the Director
                                                identifies that a passenger is in                        the immediate assignment the case to                  of FinCEN.1
                                                possession of a Samsung Galaxy Note 7                    the Office of Hearings for a formal                      FinCEN has the authority, under 31
                                                device while the aircraft is in flight, the              hearing on the record).                               U.S.C. 5318(a)(7) and 31 CFR 1010.970,
                                                crew member must instruct the                                                                                  to make exceptions to the requirements
                                                                                                         Emergency Contact Official
                                                passenger to power off the device, not                                                                         of 31 CFR Chapter X. Such exceptions
                                                use or charge the device while aboard                       If you have any questions concerning               may be conditional or unconditional,
                                                the aircraft, protect the device from                    this Emergency Restriction/Prohibition                may apply to particular persons or to
                                                accidental activation, including                         Order, you should call PHMSA                          classes of persons, and may apply to
                                                disabling any features that may turn on                  Hazardous Materials Information Center                particular transactions or classes of
                                                the device, such as alarm clocks, and                    at 1–800–467–4922 or email at                         transactions. Moreover, an exception is
                                                keep the device on their person and not                  phmsa.hm-infocenter@dot.gov.                          issuable or revocable in the sole
                                                in the overhead compartment, seat back                                                                         discretion of FinCEN, based on the
                                                pocket, nor in any carry-on baggage, for                   Issued in Washington, DC, on October 14,            circumstances to which the exception
jstallworth on DSK7TPTVN1PROD with RULES




                                                the duration of the flight.                              2016.                                                 applies.
                                                                                                         Patricia A. McNall,
                                                Rescission of This Order                                                                                       II. FinCEN Issuance 2016–1
                                                                                                         Deputy Chief Counsel, Federal Aviation
                                                  This Order remains in effect until the                 Administration.                                         This document, FinCEN Issuance
                                                Secretary determines that an imminent                    [FR Doc. 2016–25322 Filed 10–14–16; 4:15 pm]          2016–1, provides exceptive relief under
                                                hazard no longer exists or a change in
                                                                                                         BILLING CODE 4910–13–P
                                                applicable statute or federal regulation                                                                         1 Treasury   Order 180–01 (Sept. 26, 2002).



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                                                                 Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 / Rules and Regulations                                                 71987

                                                31 U.S.C. 5318(a)(7) and 31 CFR                          Burma’s Progress in Addressing the                      Actions Addressing Public Corruption
                                                1010.970 to U.S. financial institutions                  Concerns Described in the Section 311                   in Burma
                                                covered by 31 CFR 1010.651 (FinCEN’s                     Finding                                                    FinCEN’s finding noted that, as of
                                                rule imposing special measures against                                                                           2003, Transparency International—the
                                                Burma under Section 311 of the USA                          Since FinCEN promulgated the final
                                                                                                                                                                 leading international non-governmental
                                                PATRIOT Act). The exceptive relief                       rule in 2004, Burma has taken steps to                  organization devoted to curbing
                                                permits such financial institutions to                   improve its AML/CFT regime and to                       corruption—ranked Burma as ‘‘the
                                                maintain correspondent accounts for                      address the issues of corruption, drug                  fourth most corrupt jurisdiction out of
                                                Burmese banks under certain                              trafficking, and law enforcement                        133 jurisdictions assessed worldwide.’’ 6
                                                conditions. Specifically, FinCEN is                      cooperation.                                            Burma has taken some significant steps
                                                providing the following exceptive relief:                Improvements to Burma’s AML/CFT                         to address public corruption. In 2012,
                                                   The provisions of paragraphs (b)(1)                   Regime                                                  Burma ratified the UN Convention
                                                and (2) of 31 CFR 1010.651 shall not                                                                             against Corruption.7 Burma passed an
                                                                                                            FinCEN’s finding noted that ‘‘the                    Anti-Corruption Law in 2013 (and
                                                apply to a correspondent account that is
                                                                                                         Burmese anti-money laundering law is                    amended it in 2016), improving its
                                                established, maintained, administered,
                                                                                                         ineffective and unenforceable’’ and                     ability to receive and investigate
                                                or managed in the United States by a                                                                             allegations of official corruption.
                                                covered financial institution (as defined                could not be regarded as effectively
                                                in 31 CFR 1010.651(a)(3)) for, or on                     remedying a number of AML/CFT                           Attention to International Drug
                                                behalf of, a Burmese banking institution,                deficiencies, including that: (i) The                   Trafficking
                                                provided that such covered financial                     Burmese Central Bank had no anti-                          FinCEN’s 2003 finding identified
                                                institution subjects the account to the                  money laundering regulations for                        Burma as ‘‘a haven for international
                                                due diligence obligations set forth under                financial institutions; (ii) banks licensed             drug trafficking’’ and noted that Burma
                                                Section 312 of the USA PATRIOT Act                       by Burma were not legally required to                   had failed to take any regulatory or
                                                and its implementing regulation 31 CFR                   obtain or maintain identification                       enforcement action against financial
                                                1010.610.                                                information about their customers; (iii)                institutions with well-known criminal
                                                                                                         such banks were also not required to                    links.8 Burma is in the process of
                                                   FinCEN is providing this exceptive
                                                                                                         maintain transaction records of                         restructuring and expanding its
                                                relief given (i) FinCEN’s assessment of
                                                                                                         customer accounts; and (iv) Burmese                     counternarcotic task forces and Burma
                                                Burma’s progress to date in addressing
                                                                                                         financial institutions were not required                has worked regionally on
                                                issues identified in FinCEN’s 2003                                                                               counternarcotics initiatives, including
                                                                                                         to report suspicious transactions.4
                                                finding that Burma was a jurisdiction of                                                                         those coordinated through the United
                                                primary money laundering concern; (ii)                      Since 2012, Burma has made
                                                                                                                                                                 Nations Office on Drugs and Crime.
                                                a high-level commitment by Burma to                      significant progress in addressing the
                                                continue making progress in addressing                   strategic AML/CFT deficiencies                          Cooperation With U.S. Law
                                                those issues; and (iii) FinCEN’s                         identified by the Financial Action Task                 Enforcement Agencies in Criminal
                                                consideration of the ongoing effect on                   Force (FATF),5 which resulted in its                    Matters
                                                U.S. national security and foreign policy                removal in June 2016 from the FATF’s                       FinCEN noted in its 2003 finding that
                                                of U.S. financial institutions’                          public list of countries with strategic                 U.S. law enforcement indicated that
                                                compliance with 31 CFR 1010.651.                         AML/CFT deficiencies. In 2013, the                      they rarely gained access to bank-related
                                                                                                         Burmese Central Bank, which                             information pursuant to investigations,
                                                Section 311       Action Against Burma                   previously had been part of the Ministry                and that they received no cooperation
                                                   On November 18, 2003, FinCEN                          of Finance, became independent.                         regarding counterfeiting investigations
                                                found Burma to be a jurisdiction of                      Through its 2014 Money Laundering                       involving Burma.9
                                                                                                         Law and the Burmese Central Bank’s                         U.S. law enforcement indicates that
                                                primary money laundering concern
                                                                                                         2015 customer due diligence directive,                  cooperation with Burmese authorities
                                                pursuant to 31 U.S.C. 5318A, as added                                                                            has since improved. For example, in
                                                by Section 311 of the USA PATRIOT                        Burma now requires financial
                                                                                                         institutions to conduct due diligence                   September 2014, the U.S. and Burmese
                                                Act of 2001 (Section 311).2 FinCEN                                                                               governments signed a Letter of
                                                based its finding on a number of factors,                and know the true identity of their
                                                                                                         customers including beneficial owners.                  Agreement to enhance cooperation in
                                                including (i) Burma’s lack of an effective                                                                       the fight against illicit drugs and
                                                anti-money laundering/countering the                     Burma has criminalized money
                                                                                                                                                                 transnational crime, and to support the
                                                financing of terrorism (AML/CFT)                         laundering and terrorist financing, and
                                                                                                                                                                 development of Burma’s law
                                                regime; (ii) high levels of public                       it has established a legal framework to                 enforcement capacity and promote the
                                                corruption in Burma; (iii) a recognition                 implement targeted financial sanctions                  rule of law.
                                                that Burma is a haven for international                  under United Nations Security Council
                                                drug trafficking; and (iv) a lack of                     Resolutions (UNSCR) 1267, 1373, and                     FinCEN’s Remaining Concerns
                                                cooperation by Burma with U.S. law                       related resolutions. Further, Burma has                   FinCEN is encouraged by Burma’s
                                                enforcement agencies in criminal                         established a financial intelligence unit               progress thus far, but believes that
                                                matters. In connection with this finding,                and made progress in ensuring that it                   Burma has not yet fully addressed the
                                                on April 12, 2004, FinCEN issued a final                 has operational and budgetary                           concerns articulated in the 2003 finding.
                                                rule at 31 CFR 1010.651 prohibiting U.S.                 independence.                                             Although Burma has made a number
jstallworth on DSK7TPTVN1PROD with RULES




                                                financial institutions from maintaining                                                                          of technical improvements to its AML/
                                                U.S. correspondent accounts for                            4 68 FR at 66300.
                                                                                                                                                                   6 68
                                                                                                           5 The  FATF is an inter-governmental body that                FR at 66302.
                                                Burmese banking institutions.3                                                                                     7 United
                                                                                                         sets standards and promotes effective                                Nations Office of Drugs and Crime,
                                                                                                         implementation of legal, regulatory, and operational    Myanmar becomes the 165th State Party to UN
                                                  2 68FR 66299 (Nov. 25, 2003).                          measures for combating money laundering, terrorist      Convention on Corruption, January 10, 2013.
                                                  3 69                                                                                                             8 68 FR at 66300–301.
                                                      FR 19093 (Apr. 12, 2004) (codified at 31 CFR       financing, and other related threats to the integrity
                                                1010.651).                                               of the international financial system.                    9 Id. at 66301.




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                                                71988            Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 / Rules and Regulations

                                                CFT regime, FinCEN remains concerned                        This exceptive relief also takes into               and other general rule revisions
                                                that Burma has not yet implemented its                   account the effect of FinCEN’s action on               submitted by the State of Utah. The
                                                new reforms and has not displayed                        U.S. national security and foreign                     revisions affect the Utah Division of
                                                adequate effectiveness in mitigating the                 policy, as did the final rule.12 FinCEN’s              Administrative Rules (DAR), R307–300
                                                risks and threats of money laundering                    final rule contained an exemption at 31                Series; Requirements for Specific
                                                and terrorist financing. FinCEN also                     CFR 1010.651(b)(3) that allowed U.S.                   Locations. The revisions had
                                                notes that a significant portion of                      financial institutions to maintain                     submission dates of May 9, 2013, May
                                                financial activity in Burma relies upon                  correspondent accounts for Burmese                     20, 2014, September 8, 2015, and March
                                                informal money transfer systems, which                   banks if such activity was licensed                    8, 2016. The March 8, 2016 submittal
                                                remain largely unregulated and                           under authorities administered by the                  contains rule revisions to address our
                                                unsupervised.                                            U.S. Department of the Treasury’s Office               February 25, 2016 conditional approval
                                                   FinCEN is also concerned that Burma                   of Foreign Assets Control (OFAC). Since                of several Utah DAR R307–300 Series
                                                has not sufficiently addressed the                       2012, OFAC has, via general licenses,                  rules submitted on February 2, 2012,
                                                corruption issues identified in the 2003                 authorized a broad range of financial                  May 9, 2013, and May 20, 2014. These
                                                finding. Burma’s ranking on                              activity with respect to Burma that                    area source rules control emissions of
                                                Transparency International’s                             would otherwise have been prohibited                   direct PM2.5 and PM2.5 precursors,
                                                International Corruption Perceptions                     under the Section 311 rule. On October                 which are sulfur dioxides (SO2),
                                                Index remains high. The U.S. State                       7, 2016, the President terminated the                  nitrogen oxides (NOX) and volatile
                                                Department’s 2016 International                          national emergency with respect to                     organic compounds (VOC).
                                                Narcotics Control Strategy Report on                     Burma and revoked all Burma sanctions                  Additionally, the EPA is finalizing to
                                                Burma notes that ‘‘corruption is                         Executive orders, lifting the economic                 approve the State’s reasonably available
                                                endemic in both business and                             and financial sanctions on Burma                       control measure (RACM) determinations
                                                government. . . The rule of law remains                  administered by OFAC. As a result of                   for the rule revisions that pertain to the
                                                weak, and Burma continues to face a                      the termination of the Burma sanctions                 PM2.5 SIP. This action is being taken
                                                significant risk of narcotics proceeds                   program, the OFAC general licenses                     under section 110 of the Clean Air Act
                                                being laundered through commercial                       referenced above are no longer in effect.              (CAA or Act).
                                                ventures.’’ 10                                           Therefore, the exemption incorporated                  DATES: This final rule is effective on
                                                   The United States also continues to                   into FinCEN’s final rule at 31 CFR                     November 18, 2016.
                                                recognize Burma as a haven for                           1010.651(b)(3), which effectively                      ADDRESSES: The EPA has established a
                                                international drug trafficking. In                       permitted U.S. correspondent account                   docket for this action under Docket ID
                                                September 2016, under the Foreign                        activity with Burmese banks, no longer                 No. EPA–R08–OAR–2016–0311. All
                                                Relations Authorization Act, the                         has any operational effect. FinCEN has                 documents in the docket are listed on
                                                President determined Burma to be a                       taken this into consideration in deciding              the http://www.regulations.gov Web
                                                major illicit drug producing country or                  to issue this exceptive relief.                        site. Although listed in the index, some
                                                major drug-transit country.11 Further,                     Dated: October 13, 2016.                             information is not publicly available,
                                                Burma’s cooperation with U.S. law                        Jamal El Hindi,                                        e.g., CBI or other information whose
                                                enforcement, while improved since                        Acting Director, Financial Crimes                      disclosure is restricted by statute.
                                                2003, nonetheless remains nascent and                    Enforcement Network.                                   Certain other material, such as
                                                largely untested.                                        [FR Doc. 2016–25249 Filed 10–18–16; 8:45 am]           copyrighted material, is not placed on
                                                Considerations for Exceptive Relief                      BILLING CODE 4810–02–P
                                                                                                                                                                the Internet and will be publicly
                                                                                                                                                                available only in hard copy form.
                                                   As noted in the final rule, the Section                                                                      Publicly available docket materials are
                                                311 action was designed to encourage                                                                            available through http://
                                                Burma to make necessary changes to its                   ENVIRONMENTAL PROTECTION                               www.regulations.gov, or please contact
                                                AML/CFT regime in order to address                       AGENCY                                                 the person identified in the FOR FURTHER
                                                FinCEN’s concerns. Burma has begun to                                                                           INFORMATION CONTACT section for
                                                                                                         40 CFR Part 52
                                                address those concerns, but significant                                                                         additional availability information.
                                                work remains. FinCEN welcomes                            [EPA–R08–OAR–2016–0311; FRL–9954–14–                   FOR FURTHER INFORMATION CONTACT:
                                                Burma’s recent commitment to work                        Region 8]                                              Crystal Ostigaard, Air Program, EPA,
                                                with FinCEN and other components of                                                                             Region 8, Mailcode 8P–AR, 1595
                                                the U.S. Department of the Treasury, as                  Approval and Promulgation of Air
                                                                                                         Quality Implementation Plans; State of                 Wynkoop Street, Denver, Colorado
                                                well as with the U.S. government more                                                                           80202–1129, (303) 312–6602,
                                                broadly, in advancing its AML/CFT                        Utah; Revisions to the Utah Division of
                                                                                                         Administrative Rules, R307–300                         ostigaard.crystal@epa.gov.
                                                efforts. FinCEN has considered Burma’s                                                                          SUPPLEMENTARY INFORMATION:
                                                progress, its remaining deficiencies, and                Series; Area Source Rules for
                                                its commitment to address those                          Attainment of Fine Particulate Matter                  I. Background
                                                deficiencies in deciding to issue this                   Standards
                                                                                                                                                                   On October 17, 2006 (71 FR 61144),
                                                exceptive relief.                                        AGENCY:  Environmental Protection                      the EPA strengthened the level of the
                                                                                                         Agency (EPA).                                          24-hour PM2.5 National Ambient Air
                                                   10 U.S. State Department, 2016 International
                                                                                                         ACTION: Final rule.                                    Quality Standards (NAAQS), lowering
                                                Narcotics Control Strategy Report, available at                                                                 the primary and secondary standards
jstallworth on DSK7TPTVN1PROD with RULES




                                                http://www.state.gov/j/inl/rls/nrcrpt/2016/vol2/
                                                253387.htm.                                              SUMMARY:   The Environmental Protection                from 65 micrograms per cubic meter
                                                   11 See Section 706(1) of the Foreign Relations        Agency (EPA) is finalizing approval and                (mg/m3), the 1997 standard, to 35 mg/m3.
                                                Authorization Act, Fiscal Year 2003 (Pub. L. 107–        finalizing the conditional approval of                 On November 13, 2009 (74 FR 58688),
                                                228); 2016 Presidential Determination for Major          portions of the fine particulate matter                the EPA designated three nonattainment
                                                Drug Producing and Transit Countries, available at
                                                https://www.whitehouse.gov/the-press-office/2016/        (PM2.5) State Implementation Plan (SIP)                areas in Utah for the 24-hour PM2.5
                                                09/12/presidential-determination-major-drug-                                                                    NAAQS of 35 mg/m3. These are the Salt
                                                transit-or-major-illicit-drug.                             12 69   FR at 19094.                                 Lake City, Utah; Provo, Utah; and


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Document Created: 2016-10-19 02:11:53
Document Modified: 2016-10-19 02:11:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionGrant of conditional exception.
ContactAll questions about the exceptive
FR Citation81 FR 71986 

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