I. INTRODUCTION
FinCEN has issued a final rule to amend the relevant Bank Secrecy Act (“BSA”) information sharing rules to allow certain foreign law enforcement agencies, and State and local law enforcement agencies, to submit requests for information to financial institutions. The rule also clarifies that FinCEN itself, on its own behalf and on behalf of other appropriate components of the Department of the Treasury (“Treasury”), may submit such requests. The final rule became effective on February 10, 2010.
II. ALLOWING CERTAIN FOREIGN LAW ENFORCEMENT AGENCIES TO INITIATE 314(a) QUERIES
In order to satisfy the United States’ treaty obligation with certain foreign governments, FinCEN is extending the use of the 314(a) program to include foreign law enforcement agencies. Foreign law enforcement agencies will be able to use the 314(a) program in a way analogous to how Federal law enforcement agencies currently access the program. Thus, a foreign law enforcement agency, prior to initiating a 314(a) query, will have to certify that, in the case of a money laundering investigation, the matter is significant, and that it has been unable to locate the information sought through traditional methods of investigation and analysis before attempting to use the 314(a) program. A Federal law enforcement official serving as an attaché to the requesting jurisdiction will be notified of, and will review, the foreign request prior to its submission to FinCEN. The application of these internal procedures will help ensure that the 314(a) program is utilized only in significant situations, thereby minimizing the cost to reporting financial institutions.
III. ALLOWING STATE AND LOCAL LAW ENFORCEMENT AGENCIES TO INITIATE 314(a) QUERIES
Money laundering and terrorist-related financial crimes are not limited by jurisdiction or geography. Detection and deterrence of these crimes require information sharing across all levels of investigative authorities, to include State and local law enforcement, to ensure the broadest U.S. Government defense.
Access to the 314(a) program by State and local law enforcement agencies will provide them a platform from which they can more effectively and efficiently fill information gaps, including those connected with multi-jurisdictional financial transactions, in the same manner as Federal law enforcement agencies. This expansion of the 314(a) program, in certain limited circumstances, to include State and local law enforcement authorities, will benefit overall efforts to ensure that all law enforcement resources are made available to combat money laundering and terrorist financing.
As is the case currently with requesting Federal law enforcement agencies, State and local law enforcement, prior to initiating a 314(a) query, will have to certify that, in the case of a money laundering investigation, the matter is significant, and that it has been unable to locate the information sought through traditional methods of investigation and analysis before attempting to use the 314(a) program. The application of these internal procedures will help ensure that the 314(a) program will be utilized only in the most compelling situations, thereby minimizing the cost incurred by reporting financial institutions.
IV. CLARIFYING THAT FINCEN, ON ITS OWN BEHALF AND ON BEHALF OF APPROPRIATE COMPONENTS OF THE DEPARTMENT OF THE TREASURY, MAY INITIATE 314(a) QUERIES
FinCEN’s statutory mandate includes working to identify possible criminal activity to appropriate Federal, State, local, and foreign law enforcement agencies, and to support ongoing criminal financial investigations and prosecutions. FinCEN also routinely assists the law enforcement community through proactive analysis to discover trends, patterns, and common activity in the financial information contained in BSA reports. FinCEN’s use of the 314(a) program will enhance the scope and utility of its case support efforts, including insights provided from BSA data, thereby delivering critical information about significant criminal activity on a timelier basis.
FinCEN assists law enforcement by providing advanced or specialized analysis of BSA data on significant investigations involving offenses of money laundering or terrorist financing. These investigations often involve multiple locations or are otherwise linked to other investigations. A single 314(a) request issued by FinCEN can more efficiently coordinate and simultaneously support several investigations, thereby eliminating the need for separate requests from each investigating agency or jurisdiction.