The Financial Crimes Enforcement Network (FinCEN) adopted a final rule prescribing enhanced due diligence requirements for financial institutions with respect to their correspondent accounts, under § 312 of the USA Patriot Act. The final rule incorporates risk-based procedures that U.S. financial institutions should use in tailoring their enhanced due diligence to assess the risks of some foreign banking relationships.
Under § 312, the enhanced due diligence measures would apply to correspondent accounts maintained for a foreign bank operating: (a) under an off-shore banking license; (b) under a license issued by a country that has been designated as being non-cooperative with international anti-money laundering principles or procedures by an inter-governmental group or organization of which the United States is a member and with which designation the United States representative to the group or organization concurs; or (c) under a license issued by a country designated by the Secretary of the Treasury as warranting special measures due to money-laundering concerns. A correspondent account for a foreign bank is any account to receive deposits from, make payments or other disbursements on behalf of, or handle other financial transactions related to the foreign bank.
The final rule directs institutions to identify the owners of the foreign bank if its shares are not publicly traded and ascertain whether it provides correspondent accounts to other foreign banks. Risk assessments also should consider the nature of the foreign bank’s business, information on its anti-money-laundering record, and information on the nature of the foreign supervisory regulations under which the bank is operating.
As part of its general due diligence program for foreign correspondent accounts, a covered financial institution is expected to establish policies, procedures, and controls that include the assessing the money laundering risk of a correspondent account based upon consideration of all the risk factors, including (1) the nature of the foreign financial institution’s business and the markets it serves; (2) the type, purpose, and anticipated activity of the correspondent account; (3) the nature and duration of the covered financial institution’s relationship with the foreign financial institution; (4) the anti-money-laundering and supervisory regime of the jurisdiction that issued a charter or license to the foreign financial institution, and its owners if applicable, to the extent that such information is reasonably available; and (5) information known or reasonably available to the covered financial institution about the foreign financial institution’s anti-money-laundering record.