Obtaining Information From Financial Institutions, 42012-42017 [05-14212]

Download as PDF 42012 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules non-payment of the annual listing fee in § 1404.5(d)(7). FOR FURTHER INFORMATION CONTACT: Maria A. Fried, General Counsel and Federal Register Liaison, FMCS, 2100 K Street, NW., Washington, DC 20427. Telephone (202) 606–5444; Fax (202) 606–5345. Correction In proposed rule FR Doc. 05–11362, beginning on page 39209 in the issue on July 7, 2005, make the following corrections to § 1404.5(b) and (d)(7). On page 39211, in the first column, correctly revise § 1404.5(b) to read as follows: (b) Proof of Qualification. The qualifications listed in (a) of this section are preferably demonstrated by the submission of five recent arbitration awards prepared by the applicant while serving as an impartial arbitrator of record chosen by the parties to labor relations disputes arising under collective bargaining agreements, or the successful completion of the FMCS labor arbitrator training course within the five years immediately preceding the date of application plus two awards as described above, and the submission of information demonstrating extensive and recent experience in collective bargaining, including at least the position or title held, duties or responsibilities, the name and location of the company or organization, and the dates of employment. On page 39211, in the center column, correctly revise § 1404.5(d)(7) to read as follows: (d) * * * (7) Has been in an inactive status pursuant to § 1404.6 for longer than two years and has not paid the annual listing fee. Dated: July 15, 2005. Maria A. Fried, General Counsel and Federal Register Contact. [FR Doc. 05–14347 Filed 7–20–05; 8:45 am] BILLING CODE 6732–01–P SUMMARY: The Department of the Army proposes to revise its regulation concerning obtaining information from financial institutions. The regulation prescribes policies for the Department of the Army to obtain information on a customer’s financial records from financial institutions. DATES: Comments submitted to the address below on or before September 19, 2005, will be considered. ADDRESSES: You may submit comments, identified by 32 CFR Part 504 and RIN 0702–AA49 in the subject line, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • E-mail: james.crumley@hqdaaoc.army.pentagon.mil. Include 32 CFR Part 504 and RIN 0702–AA49 in the subject line of the message. • Mail: Headquarters, Department of the Army, Office of the Provost Marshal General, ATTN: DAPM–MPD–LE, 2800 Army Pentagon, Washington, DC 20310–2800. FOR FURTHER INFORMATION CONTACT: James Crumley (703) 692–6721. SUPPLEMENTARY INFORMATION: not have an adverse impact on the environment. A. Background H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) This rule has previously been published. The Administrative Procedure Act, as amended by the Freedom of Information Act requires that certain policies and procedures and other information concerning the Department of the Army be published in the Federal Register. The policies and procedures covered by this regulation fall into that category. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601–612. C. Unfunded Mandates Reform Act DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 504 RIN 0702–AA49 Obtaining Information From Financial Institutions Department of the Army, DoD. ACTION: Proposed rule; request for comments. AGENCY: VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more. E. Paperwork Reduction Act The Department of the Army has determined that the Paperwork Reduction Act does not apply because the proposed rule does not involve collection of information from the public. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights. G. Executive Order 12866 (Regulatory Planning and Review) The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this proposed rule is not a significant regulatory action. As such, the proposed rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order. The Department of the Army has determined that according to the criteria defined in Executive Order 13045 this proposed rule does not apply. I. Executive Order 13132 (Federalism) The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Jeffery B. Porter, Chief, Law Enforcement Policy and Oversight Section. List of Subjects in 32 CFR Part 504 Banks, Banking, Business, Investigations, Law enforcement, Military law, Privacy. For reasons stated in the preamble the Department of the Army proposes to revise part 504 to subchapter A of title 32 to read as follows: D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 PART 504—OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS Sec. 504.1 E:\FR\FM\21JYP1.SGM General. 21JYP1 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules 504.2 Procedures. Appendix A to Part 504—Request for Basic Identifying Account Data—Sample Format Appendix B to Part 504—Customer Consent and Authorization for Access—Sample Format Appendix C to Part 504—Certificate of Compliance with the Right to Financial Privacy Act of 1978—Sample Format Appendix D to Part 504—Formal Written Request for Access—Sample Format Appendix E to Part 504—Customer Notice of Formal Written Request—Sample Format Authority: 12 U.S.C. 3401 et seq., Pub. L. 95–630, unless otherwise noted. § 504.1 General. (a) Purpose. This part provides DA policies, procedures, and restrictions governing access to and disclosure of financial records maintained by financial institutions during the conduct of Army investigations or inquiries. (b) Applicability and scope. (1) This part applies to the Active Army, the Army National Guard of the United States (ARNGUS)/Army National Guard (ARNG), and the Unites States Army Reserve unless otherwise stated. (2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining access to financial records maintained by financial institutions located outside of the territories of the United States, Puerto Rico, the District of Columbia, Guam, American Samoa, or the Virgin Islands. The procedures outlined in § 504.2(d)(4) will be followed in seeking access to financial information from these facilities. (3) This part also applies to financial records maintained by financial institutions as defined in § 504.1(c)(1). (c) Explanation of terms. (1) For purposes of this part, the following terms apply: (i) Financial institution. Any office of a— (A) Bank. (B) Savings bank. (C) Card issuer as defined in section 103 of the Consumers Credit Protection Act (15 U.S.C. 1602(n)). (D) Industrial loan company. (E) Trust company. (F) Savings association. (G) Building and loan association. (H) Homestead association (including cooperative banks). (I) Credit union. (J) Consumer finance institution. (ii) This includes only those offices located in any State or territory of the United States, or in the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands. (2) Financial record. An original record, its copy, or information known to have been derived from the original VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 record held by a financial institution, pertaining to a customer’s relationship with the financial institution. (3) Person. An individual or partnership of five or fewer individuals. (Per DODD 5400.12.) (4) Customer. Any person or authorized representative of that person— (i) Who used or is using any service of a financial institution. (ii) For which a financial institution is acting or has acted as a fiduciary for an account maintained in the name of that person. (5) Law enforcement inquiry. A lawful investigation or official proceeding inquiring into a violation of, or failure to comply with, a criminal or civil statute or any regulation, rule, or order issued pursuant thereto. (6) Army law enforcement office. Any army element, agency, or unit authorized to conduct investigations under the Uniform Code of Military Justice or Army regulations. This broad definition of Army law enforcement office includes military police, criminal investigation, inspector general, and military intelligence activities conducting investigations of suspected violations of law or regulation. (7) Personnel security investigation. An investigation required to determine a person’s eligibility for access to classified information, assignment or retention in sensitive duties, or other designated duties requiring such investigation. Personnel security investigation includes investigations of subversive affiliations, suitability information, or hostage situations conducted to make personnel security determinations. It also includes investigations of allegations that— (i) Arise after adjudicative action, and (ii) Require resolution to determine a person’s current eligibility for access to classified information or assignment or retention in a sensitive position. With DA, the Defense Investigative Service conducts personnel security investigations. (d) Policy—(1) Customer consent. It is DA policy to seek customer consent to obtain a customer’s financial records from a financial institution unless doing so would compromise or harmfully delay a legitimate law enforcement inquiry. If the person declines to consent to disclosure, the alternative means of obtaining the records authorized by this part will be used. (See § 504.2 (c) through (g).) (2) Access requests. Except as provided in paragraph (d)(3) of this section and §§ 504.1(f)(1), 504.2(g) and 504.2(j), Army investigative elements may not have access to or obtain copies PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 42013 of the information in the financial records of any customer from a financial institution unless the financial records are reasonably described and the— (i) Customer has authorized such disclosure (§ 504.2(b)); (ii) Financial records are disclosed in response to a search warrant which meets the requirements of § 504.2(d); (iii) Financial records are disclosed in response to a judicial subpoena which meets the requirements of § 504.2(e); or (iv) Financial records are disclosed in response to a formal written request which meets the requirements of § 504.2(f). (3) Voluntary information. Nothing in this part will preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying an Army investigative element that such institution, or officer, employee or agent has information which may be relevant to a possible violation of any statute or regulation. (e) Authority. (1) Law enforcement offices are authorized to obtain records of financial institutions per this part, except as provided in § 504.2(e). (2) The head of a law enforcement office of field grade rank or higher (or an equivalent grade civilian official) is authorized to initiate requests for such records. (f) Exceptions and waivers. (1) A law enforcement office may issue a formal written request for basic identifying account information to a financial institution as part of a legitimate law enforcement inquiry. The request may be issued for any or all of the following identifying data: (i) Name. (ii) Address. (iii) Account number. (iv) Type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions. (2) A request for disclosure of the above specified basic identifying data on a customer’s account may be issued without complying with the customer notice, challenge, or transfer procedures described in § 504.2. However, if access to the financial records themselves is required, the procedures in § 504.2 must be followed. (A sample format for requesting basic identifying account data is in app. A.) (3) This part will not apply when financial records are sought by the Army under the Federal Rules for Civil Procedure, Criminal Procedure, Rules for Courts-Martial, or other comparable rules of other courts in connection with litigation to which the Government and the customer are parties. E:\FR\FM\21JYP1.SGM 21JYP1 42014 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules (4) No exceptions or waivers will be granted for those portions of this part required by law. Submit requests for exceptions or waivers of other aspects of this part to HQDA OPMG (DAPM– MPD–LE), Washington, DC 20310–2800. § 504.2 Procedures. (a) General. A law enforcement official seeking access to a person’s financial records will, when feasible, obtain the customer’s consent. This section also sets forth other authorized procedures for obtaining financial records if it is not feasible to obtain the customer’s consent. Authorized procedures for obtaining financial records follow. All communications with a U.S. Attorney or a U.S. District Court, as required by this part, will be coordinated with the supporting staff judge advocate before dispatch. (b) Customer consent. (1) A law enforcement office may gain access to or a copy of a customer’s financial records by obtaining the customer’s consent and authorization in writing. (See app. B to this part for a sample format.) Any consent obtained under the provisions of this paragraph must— (i) Be in writing, signed, and dated. (ii) Identify the particular financial records being disclosed. (iii) State that the customer may revoke the consent at any time before disclosure. (iv) Specify the purpose of disclosure and to which agency the records may be disclosed. (v) Authorize the disclosure for a period not over 3 months. (vi) Contain a ‘‘Statement of Customer Rights Under the Right to Financial Privacy Act of 1978’’ (12 U.S.C. 3401 et seq.) (app. B). (2) Any customer’s consent not containing all of the elements listed in paragraph (a) of this section will not be valid. (3) A copy of the customer’s consent will be made a part of the law enforcement inquiry file. (4) A certification of compliance with 12 U.S.C. 3401 et seq. (app. C), along with the customer’s consent, will be provided to the financial institution as a prerequisite to obtaining access to the financial records. (c) Administrative summons or subpoena. The Army has no authority to issue an administrative summons or subpoena for access to financial records. (d) Search warrant. (1) A law enforcement office may obtain financial records by using a search warrant obtained under Rule 41 of the Federal Rules of Criminal Procedure in appropriate cases. (2) No later than 90 days after the search warrant is served, unless a delay VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 of notice is obtained under § 504.2(i), a copy of the search warrant and the following notice must be mailed to the customer’s last known address: Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (office/agency/unit) on (date) for the following purpose: (state purpose). You may have rights under the Right to Financial Privacy Act of 1978. (3) Search authorization signed by installation commanders or military judges will not be used to gain access to financial records from financial institutions in any State or territory of the United States. (4) Access to financial records maintained by military banking contractors in overseas areas or by other financial institutions located on DOD installations outside the United States, Puerto Rico, the District of Columbia, Guam, American Samoa, or the Virgin Islands is preferably obtained by customer consent. (i) In cases where it would not be appropriate to obtain this consent or such consent is refused and the financial institution is not otherwise willing to provide access to its records, the law enforcement activity may seek access by use of a search authorization. This authorization must be prepared and issued per AR 27–10, Military Justice. (ii) Information obtained under this paragraph should be properly identified as financial information. It should be transferred only where an official needto-know exists. Failure to do so, however, does not render the information inadmissible in courtsmartial or other proceedings. (iii) Law enforcement activities seeking access to financial records maintained by all other financial institutions overseas will comply with local foreign statutes or procedures governing such access. (e) Judicial subpoena. Judicial subpoenas—(1) Are those subpoenas issued in connection with a pending judicial proceeding. (2) Include subpoenas issued under Rule for Courts-Martial 703(e)(2) of the Manual for Courts-Martial and Article 46 of the Uniform Code of Military Justice. The servicing staff judge advocate will be consulted on the availability and use of judicial subpoenas. (f) Formal written request. (1) A law enforcement office may formally request financial records when the records are relevant to a legitimate law enforcement inquiry. This request may be issued only if—(i) The customer has declined PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 to consent to the disclosure of his or her records, or (ii) Seeking consent from the customer would compromise or harmfully delay a legitimate law enforcement inquiry. (2) A formal written request will be in a format set forth in appendix D of this part and will— (i) State that the request is issued under the Right to Financial Privacy Act of 1978 and this part. (ii) Described the specific records to be examined. (iii) State that access is sought in connection with a legitimate law enforcement inquiry. (iv) Describe the nature of the inquiry. (v) Be signed by the head of the law enforcement office or a designee (persons specified in § 504.1(e)(2)). (3) At the same time or before a formal written request is issued to a financial institution, a copy of the request will be personally served upon or mailed to the customer’s last known address unless a delay of customer notice has been obtained under § 504.2(i). The notice to the customer will be— (i) In a format similar to appendix E of this part. (ii) Personally served at least 10 days or mailed at least 14 days before the date on which access is sought. (4) The official who signs the customer notice is designated to receive any challenge from the customer. (5) The customer will have 10 days to challenge a notice request when personal service is made, and 14 days when service is by mail. (6) The head of the law enforcement office initiating the formal written request will set up procedures to ensure that no access to financial records is attempted before expiration of the above time periods— (i) While awaiting receipt of a potential customer challenge, or (ii) While awaiting the filing of an application for an injunction by the customer. (7) Proper preparation of the formal written request and notice to the customer requires preparation of motion papers and a statement suitable for court filing by the customer. Accordingly, the law enforcement office intending to initiate a formal written request will coordinate preparation of the request, the notice, motion papers, and sworn statement with the supporting staff judge advocate. These documents are required by statute; their preparation cannot be waived. (8) The supporting staff judge advocate is responsible for liaison with the proper United States Attorney and United States District Court. The E:\FR\FM\21JYP1.SGM 21JYP1 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules requesting official will coordinate with the supporting staff judge advocate to determine whether the customer has filed a motion to prevent disclosure of the financial records within the prescribed time limits. (9) The head of the law enforcement office (§ 504.2(f)(2)(v)) will certify in writing (see app. C) to the financial institution that such office has complied with the requirements of 12 U.S.C. 3401 et seq.— (i) When a customer fails to file a challenge to access financial records within the above time periods, or (ii) When a challenge is adjudicated in favor of the law enforcement office. No access to any financial records will be made before such certification is given. (g) Emergency access. Section 504.2(g)(2)(3) provides for emergency access in such cases of imminent danger. (No other procedures in this part apply to such emergency access.) (1) In some cases, the requesting law enforcement office may determine that a delay in obtaining access would create an imminent danger of— (i) Physical injury to a person, (ii) Serious property damage, or (iii) Flight to avoid prosecution. (2) When emergency access is made to financial records, the requesting official (§ 504.1(e)(2)) will— (i) Certify in writing (in a format similar to that in app. C) to the financial institution that the provisions of 12 U.S.C. 3401 et seq. have been complied with as a prerequisite to obtaining access. (ii) File with the proper court a signed, sworn statement setting forth the grounds for the emergency access within 5 days of obtaining access to financial records. (3) After filing of the signed, sworn statement, the official who has obtained access to financial records under this paragraph will as soon as practicable— (i) Personally serve or mail to the customer a copy of the request to the financial institution and the following notice, unless a delay of notice has been obtained under § 504.2(i): Records concerning your transactions held by the financial institution named in the attached request were obtained by (office/ agency/unit) under the Right to Financial Privacy Act of 1978 on (date) for the following purpose: (state with reasonable detail the nature of the law enforcement inquiry). Emergency access to such records was obtained on the grounds that (state grounds). (ii) Ensure that mailings under this section are by certified or registered mail to the last known address of the customer. VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 (h) Release of information obtained from financial institutions—(1) Records notice. Financial records, to include derived information, obtained under 12 U.S.C. 3401 et seq. will be marked as follows: This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to another Federal agency or department outside DOD without prior compliance with the transferring requirements of 12 U.S.C. 3412. (2) Records transfer. (i) Financial records originally obtained under this part will not be transferred to another agency or department outside the DOD unless the transferring law enforcement office certifies their relevance in writing. Certification will state that there is reason to believe that the records are relevant to a legitimate law enforcement inquiry within the jurisdiction of the receiving agency or department. To support this certification, the transferring office may require that the requesting agency submit adequate justification for its request. File a copy of this certification with a copy of the released records. (ii) Unless a delay of customer notice has been obtained (§ 504.2(i)), the transferring law enforcement office will, within 14 days, personally serve or mail the following to the customer at his or her last known address— (A) A copy of the certification made according to § 504.2(h)(2)(i) and (B) The following notice, which will state the nature of the law enforcement inquiry with reasonable detail: Copies of, or information contained in, your financial records lawfully in possession of the Department of the Army have been furnished to (state the receiving agency or department) pursuant to the Right to Financial Privacy Act of 1978 for (state the purpose). If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Financial Privacy Act of 1978 or the Privacy Act of 1974. (iii) If a request for release of information is from a Federal agency authorized to conduct foreign intelligence or foreign counterintelligence activities (Executive Order 12333) and is for purposes of conducting such activities by these agencies, the information will be released without notifying the customer, unless permission to provide notification is given in writing by the requesting agency. (iv) Financial information obtained before the effective date of the Financial Privacy Act of 1978 (March 10, 1979) may continue to be provided to other agencies according to existing PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 42015 procedures, to include applicable Privacy Act System Notices published in AR 340–21 series. (3) Precautionary measures. Whenever financial data obtained under this part is incorporated into a report of investigation or other correspondence, precautions must be taken to ensure that— (i) The report or correspondence is not distributed outside of DOD except in compliance with paragraph (h)(2)(ii)(B) of this section. (ii) The report or other correspondence contains the following warning restriction on the first page or cover: Some of the information contained herein (cite specific paragraphs) is financial record information which was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not be released to another Federal agency or department outside the DOD without compliance with the specific requirements of 12 U.S.C. 3412 and AR 190–6. (i) Delay of customer notice procedures—(1) Length of delay. The customer notice required by formal written request (§ 504.2(f)(3)), emergency access (§ 504.2(g)(3)), and release of information (§ 504.2(h)(2)(iii)) may be delayed for successive periods of 90 days. The notice required for search warrant (§ 504.2(d)(2)) may be delayed for one period of 180 days and successive periods of 90 days. (2) Conditions for delay. A delay of notice may only be made by an order of an appropriate court. This will be done when not granting a delay in serving the notice would result in— (i) Endangering the life or physical safety of any person. (ii) Flight from prosecution. (iii) Destruction of or tampering with evidence. (iv) Intimidation of potential witnesses. (v) Otherwise seriously jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the same degree as the circumstances in § 504.2(i)(2)(i) through (iv). (3) Coordination. When a delay of notice is appropriate, the law enforcement office involved will consult with the supporting staff judge advocate before attempting to obtain such a delay. Applications for delay of notice should contain reasonable detail. (4) After delay expiration. Upon the expiration of a delay of notice under above and required by— (i) Section 504.2(d)(2), the law enforcement office obtaining financial records will mail to the customer a copy E:\FR\FM\21JYP1.SGM 21JYP1 42016 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules of the search warrant and the following notice. Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (agency or office) on (date). Notification was delayed beyond the statutory 180-day delay period pursuant to a determination by the court that such notice would seriously jeopardize an investigation concerning (state with reasonable detail). You may have rights under the Right to Financial Privacy Act of 1978. (ii) Section 504.2(f)(3), the law enforcement office obtaining financial records will serve personally or mail to the customer a copy of the process or request and the following notice: Records or information concerning your transactions which are held by the financial institution named in the attached process or request were supplied to or requested by the Government authority named in the process or request on (date). Notification was withheld pursuant to a determination by the (title of the court so ordering) under the Right to Financial Privacy Act of 1978 that such notice might (state reason). The purpose of the investigation or official proceeding was (state purpose with reasonable detail). (iii) Section 504.2(g)(3), the law enforcement office obtaining financial records will serve personally or mail to the customer a copy of the request and the notice required by § 504.2(g)(3). (iv) Section 504.2(h)(2), the law enforcement office transferring financial records will serve personally or mail to the customer the notice required by § 504.2(f)(3). If the law enforcement office was responsible for obtaining the court order authorizing the delay, such office shall also serve personally or by mail to the customer the notice required in § 504.2(f)(3). (j) Foreign intelligence and foreign counterintelligence activities. (1) Except as indicated below, nothing in this regulation applies to requests for financial information in connection with authorized foreign intelligence and foreign counterintelligence activities as defined in Executive Order 12333. Appropriate foreign intelligence and counterintelligence directives should be consulted in these instances. (2) However, to comply with the Financial Privacy Act of 1978, the following guidance will be followed for such requests. When a request for financial records is made— (i) A military intelligence group commander, the chief of an investigative control office, or the Commanding General (CG) (or Deputy CG), U.S. Army Intelligence and Security Command, will certify to the financial institution that the requesting activity has complied with the provisions of 12 U.S.C. 3403(b). VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 (ii) The requesting official will notify the financial institution from which records are sought that 12 U.S.C. 3414(a)(3) prohibits disclosure to any person by the institution, its agents, or employees that financial records have been sought or obtained. (k) Certification. A certificate of compliance with the Right to Financial Privacy Act of 1978 (app. C) will be provided to the financial institution as a prerequisite to obtaining access to financial records under the following access procedures: (1) Customer consent (§ 504.2(b)). (2) Search warrant (§ 504.2(d)). (3) Judicial subpoena (§ 504.2(e)). (4) Formal written request (§ 504.2(f)). (5) Emergency access (§ 504.2(g)). (6) Foreign intelligence and foreign counterintelligence activities (§ 504.2(j)). Appendix A to Part 504—Request for Basic Identifying Account Data— Sample Format (Official Letterhead) (Date) llll Mr./Mrs. llll, Chief Teller (as appropriate), First National Bank, Little Rock, AR 72203. Dear Mr./Mrs.llll: In connection with a legitimate law enforcement inquiry and pursuant to section 3414 of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, you are requested to provide the following account information: (name, address, account number, and type of account of any customer or ascertainable group of customers associated with a certain financial transaction or class of financial transactions as set forth in § 504.1(f)). I hereby certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, that the provisions of the Act have been complied with as to this request for account information. (Official Signature Block) llll Under section 3417(c) of the Act, good faith reliance upon this certification relieves your institution and its employees and agents of any possible liability to the subject in connection with the disclosure of the requested financial records. Appendix B to Part 504—Customer Consent and Authorization for Access— Sample Format Pursuant to section 3404(a) of the Right to Financial Privacy Act of 1978, I, (name of customer), having read the explanation of my rights on the reverse side, hereby authorize the (name and address of financial institution) to disclose these financial records: (list of particular financial records) to(Army law enforcement office) for the following purpose(s): (specify the purpose(s)). I understand that this authorization may be revoked by me in writing at any time before PO 00000 Frm 00014 Fmt 4702 Sfmt 4700 my records, as described above, are disclosed, and that this authorization is valid for no more than 3 months from the date of my signature. Date: llll Signature: llll (Typed name) (Mailing address of customer) Statement of Customer Rights Under the Right to Financial Privacy Act of 1978 Federal law protects the privacy of your financial records. Before banks, savings and loan associations, credit unions, credit card issuers, or other financial institutions may give financial information about you to a Federal agency, certain procedures must be followed. Consent to Financial Records You may be asked to consent to the financial institution making your financial records available to the Government. You may withhold your consent, and your consent is not required as a condition of doing business with any financial institution. If you give your consent, it can be revoked in writing at any time before your records are disclosed. Furthermore, any consent you give is effective for only 3 months and your financial institution must keep a record of the instances in which it discloses your financial information. Without Your Consent Without your consent, a Federal agency that wants to see your financial records may do so ordinarily only by means of a lawful subpoena, summons, formal written request, or search warrant for that purpose. Generally, the Federal agency must give you advance notice of its request for your records explaining why the information is being sought and telling you how to object in court. The Federal agency must also send you copies of court documents to be prepared by you with instructions for filling them out. While these procedures will be kept as simple as possible, you may want to consult an attorney before making a challenge to a Federal agency’s request. Exceptions In some circumstances, a Federal agency may obtain financial information about you without advance notice or your consent. In most of these cases, the Federal agency will be required to go to court for permission to obtain your records without giving you notice beforehand. In these instances, the court will make the Government show that its investigation and request for your records are proper. When the reason for the delay of notice no longer exists, you will usually be notified that your records were obtained. Transfer of Information Generally, a Federal agency that obtains your financial records is prohibited from transferring them to another Federal agency unless it certifies in writing the transfer is proper and sends a notice to you that your records have been sent to another agency. E:\FR\FM\21JYP1.SGM 21JYP1 Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Proposed Rules Penalties If the Federal agency or financial institution violates the Right to Financial Privacy Act, you may sue for damages or seek compliance with the law. If you win, you may be repaid your attorney’s fee and costs. Additional Information If you have any questions about your rights under this law, or about how to consent to release your financial records, please call the official whose name and telephone number appears below: lllllllllllllllllllll (Last Name, First Name, Middle Initial) lllllllllllllllllllll Title (Area Code) (Telephone Number) lllllllllllllllllllll (Component activity, address) Appendix C to Part 504—Certificate of Compliance With the Right to Financial Privacy Act of 1978—Sample Format (Official Letterhead) Mr./Mrs. llll, Manager, Army Federal Credit Union, Fort Ord, CA 93941. Dear Mr./Mrs. llll: I certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, that the applicable provisions of that statute have been complied with as to the (customer’s consent, search warrant or judicial subpoena, formal written request, emergency access, as applicable) presented on (date), for the following financial records of (customer’s name): lllllllllllllllllllll (Describe the specific records) (Official Signature Block) llll Pursuant to section 3417(c) of the Right to Financial Privacy Act of 1978, good faith reliance upon this certificate relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of these financial records. Appendix D to Part 504—Formal Written Request for Access—Sample Format (Official Letterhead) (Date) llll Mr./Mrs. llll, President (as appropriate), City National Bank and Trust Company, Altoona, PA 16602. Dear Mr./Mrs. llll: In connection with a legitimate law enforcement inquiry and pursuant to section 3402(5) and section 3408 of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, and Army Regulation 190–6, you are requested to provide the following account information pertaining to (identify customer); lllllllllllllllllllll (Describe the specific records to be examined) The Army has no authority to issue an administrative summons or subpoena for VerDate jul<14>2003 18:14 Jul 20, 2005 Jkt 205001 access to these financial records which are required for (describe the nature or purpose of the inquiry). A copy of this request was (personally served upon or mailed to) the subject on (date) who has (10 or 14) days in which to challenge this request by filing an application in an appropriate United States district court if the subject desires to do so. Upon expiration of the above mentioned time period and in the absence of any filing or challenge by the subject, you will be furnished a certification certifying in writing that the applicable provisions of the Act have been complied with prior to obtaining the requested records. Upon your receipt of a Certificate of Compliance with the Right to Financial Privacy Act of 1978, you will be relieved of any possible liability to the subject in connection with the disclosure of the requested financial records. (Official Signature Block) llll Appendix E to Part 504—Customer Notice of Formal Written Request— Sample Format (Official Letterhead) (Date) llll Mr./Msllll, 1500 N. Main Street, Washington, DC 20314. Dear Mr./Ms. llll: Information or records concerning your transactions held by the financial institution named in the attached request are being sought by the (agency/department) in accordance with the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, and Army Regulation 190–6, for the following purpose(s): lllllllllllllllllllll (List the purpose(s)) If you desire that such records or information not be made available, you must do the following: a. Fill out the accompanying motion paper and sworn statement or write one of your own— (1) Stating that you are the customer whose records are being requested by the Government. (2) Giving the reasons you believe that the records are not relevant or any other legal basis for objecting to the release of the records. b. File the motion and statement by mailing or delivering them to the clerk of any one of the following United States District Courts: lllllllllllllllllllll (List applicable courts) c. Mail or deliver a copy of your motion and statement to the requesting authority: (give title and address). d. Be prepared to come to court and present your position in further detail. You do not need to have a lawyer, although you may wish to employ one to represent you and protect your rights. If you do not follow the above procedures, upon the expiration of (10 days from the date of personal service) (14 days from the date of mailing) of this notice, the records or information requested therein may be made available. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 42017 These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notified after the transfer if such transfer is made. 3 Enclosures (see para)ll (Signature) llll [FR Doc. 05–14212 Filed 7–20–05; 8:45 am] BILLING CODE 3710–08–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05–05–079] RIN 1625–AA09 Drawbridge Operation Regulations; New Jersey Intracoastal Waterway, Manasquan River Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: SUMMARY: The Coast Guard proposes to temporarily change the regulations that govern the operation of the Route 35 Bridge, at New Jersey Intracoastal Waterway (NJICW) mile 1.1, across Manasquan River, at Brielle, New Jersey. The bridge will be closed to navigation on three four-month closure periods beginning from 8 a.m. November 1, 2006 until 5 p.m. March 1, 2007; from 8 a.m. on November 1, 2007 until 5 p.m. March 1, 2008; and from 8 a.m. on November 1, 2008 until 5 p.m. March 1, 2009. The extensive structural, mechanical, and electrical repairs and improvements necessitate these closures. DATES: Comments and related material must reach the Coast Guard on or before September 6, 2005. ADDRESSES: You may mail comments and related material to Commander (obr), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704–5004. The Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (obr), Fifth Coast Guard District between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Gary Heyer, Bridge Management Specialist, Fifth Coast Guard District, at (757) 398– 6629. SUPPLEMENTARY INFORMATION: E:\FR\FM\21JYP1.SGM 21JYP1

Agencies

[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Proposed Rules]
[Pages 42012-42017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14212]


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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 504

RIN 0702-AA49


Obtaining Information From Financial Institutions

AGENCY: Department of the Army, DoD.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of the Army proposes to revise its regulation 
concerning obtaining information from financial institutions. The 
regulation prescribes policies for the Department of the Army to obtain 
information on a customer's financial records from financial 
institutions.

DATES: Comments submitted to the address below on or before September 
19, 2005, will be considered.

ADDRESSES: You may submit comments, identified by 32 CFR Part 504 and 
RIN 0702-AA49 in the subject line, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: james.crumley@hqda-aoc.army.pentagon.mil. Include 
32 CFR Part 504 and RIN 0702-AA49 in the subject line of the message.
     Mail: Headquarters, Department of the Army, Office of the 
Provost Marshal General, ATTN: DAPM-MPD-LE, 2800 Army Pentagon, 
Washington, DC 20310-2800.

FOR FURTHER INFORMATION CONTACT: James Crumley (703) 692-6721.

SUPPLEMENTARY INFORMATION: 

A. Background

    This rule has previously been published. The Administrative 
Procedure Act, as amended by the Freedom of Information Act requires 
that certain policies and procedures and other information concerning 
the Department of the Army be published in the Federal Register. The 
policies and procedures covered by this regulation fall into that 
category.

B. Regulatory Flexibility Act

    The Department of the Army has determined that the Regulatory 
Flexibility Act does not apply because the proposed rule does not have 
a significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

    The Department of the Army has determined that the Unfunded 
Mandates Reform Act does not apply because the proposed rule does not 
include a mandate that may result in estimated costs to State, local or 
tribal governments in the aggregate, or the private sector, of $100 
million or more.

D. National Environmental Policy Act

    The Department of the Army has determined that the National 
Environmental Policy Act does not apply because the proposed rule does 
not have an adverse impact on the environment.

E. Paperwork Reduction Act

    The Department of the Army has determined that the Paperwork 
Reduction Act does not apply because the proposed rule does not involve 
collection of information from the public.

F. Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights)

    The Department of the Army has determined that Executive Order 
12630 does not apply because the proposed rule does not impair private 
property rights.

G. Executive Order 12866 (Regulatory Planning and Review)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 12866 this proposed rule is not a 
significant regulatory action. As such, the proposed rule is not 
subject to Office of Management and Budget review under section 6(a)(3) 
of the Executive Order.

H. Executive Order 13045 (Protection of Children From Environmental 
Health Risk and Safety Risks)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13045 this proposed rule does not 
apply.

I. Executive Order 13132 (Federalism)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13132 this proposed rule does not 
apply because it will not have a substantial effect on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.

Jeffery B. Porter,
Chief, Law Enforcement Policy and Oversight Section.

List of Subjects in 32 CFR Part 504

    Banks, Banking, Business, Investigations, Law enforcement, Military 
law, Privacy.

    For reasons stated in the preamble the Department of the Army 
proposes to revise part 504 to subchapter A of title 32 to read as 
follows:

PART 504--OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS

Sec.
504.1 General.

[[Page 42013]]

504.2 Procedures.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format
Appendix B to Part 504--Customer Consent and Authorization for 
Access--Sample Format
Appendix C to Part 504--Certificate of Compliance with the Right to 
Financial Privacy Act of 1978--Sample Format
Appendix D to Part 504--Formal Written Request for Access--Sample 
Format
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format

    Authority: 12 U.S.C. 3401 et seq., Pub. L. 95-630, unless 
otherwise noted.


Sec.  504.1  General.

    (a) Purpose. This part provides DA policies, procedures, and 
restrictions governing access to and disclosure of financial records 
maintained by financial institutions during the conduct of Army 
investigations or inquiries.
    (b) Applicability and scope. (1) This part applies to the Active 
Army, the Army National Guard of the United States (ARNGUS)/Army 
National Guard (ARNG), and the Unites States Army Reserve unless 
otherwise stated.
    (2) The provisions of 12 U.S.C. 3401 et seq. do not govern 
obtaining access to financial records maintained by financial 
institutions located outside of the territories of the United States, 
Puerto Rico, the District of Columbia, Guam, American Samoa, or the 
Virgin Islands. The procedures outlined in Sec.  504.2(d)(4) will be 
followed in seeking access to financial information from these 
facilities.
    (3) This part also applies to financial records maintained by 
financial institutions as defined in Sec.  504.1(c)(1).
    (c) Explanation of terms. (1) For purposes of this part, the 
following terms apply:
    (i) Financial institution. Any office of a--
    (A) Bank.
    (B) Savings bank.
    (C) Card issuer as defined in section 103 of the Consumers Credit 
Protection Act (15 U.S.C. 1602(n)).
    (D) Industrial loan company.
    (E) Trust company.
    (F) Savings association.
    (G) Building and loan association.
    (H) Homestead association (including cooperative banks).
    (I) Credit union.
    (J) Consumer finance institution.
    (ii) This includes only those offices located in any State or 
territory of the United States, or in the District of Columbia, Puerto 
Rico, Guam, American Samoa, or the Virgin Islands.
    (2) Financial record. An original record, its copy, or information 
known to have been derived from the original record held by a financial 
institution, pertaining to a customer's relationship with the financial 
institution.
    (3) Person. An individual or partnership of five or fewer 
individuals. (Per DODD 5400.12.)
    (4) Customer. Any person or authorized representative of that 
person--
    (i) Who used or is using any service of a financial institution.
    (ii) For which a financial institution is acting or has acted as a 
fiduciary for an account maintained in the name of that person.
    (5) Law enforcement inquiry. A lawful investigation or official 
proceeding inquiring into a violation of, or failure to comply with, a 
criminal or civil statute or any regulation, rule, or order issued 
pursuant thereto.
    (6) Army law enforcement office. Any army element, agency, or unit 
authorized to conduct investigations under the Uniform Code of Military 
Justice or Army regulations. This broad definition of Army law 
enforcement office includes military police, criminal investigation, 
inspector general, and military intelligence activities conducting 
investigations of suspected violations of law or regulation.
    (7) Personnel security investigation. An investigation required to 
determine a person's eligibility for access to classified information, 
assignment or retention in sensitive duties, or other designated duties 
requiring such investigation. Personnel security investigation includes 
investigations of subversive affiliations, suitability information, or 
hostage situations conducted to make personnel security determinations. 
It also includes investigations of allegations that--
    (i) Arise after adjudicative action, and
    (ii) Require resolution to determine a person's current eligibility 
for access to classified information or assignment or retention in a 
sensitive position. With DA, the Defense Investigative Service conducts 
personnel security investigations.
    (d) Policy--(1) Customer consent. It is DA policy to seek customer 
consent to obtain a customer's financial records from a financial 
institution unless doing so would compromise or harmfully delay a 
legitimate law enforcement inquiry. If the person declines to consent 
to disclosure, the alternative means of obtaining the records 
authorized by this part will be used. (See Sec.  504.2 (c) through 
(g).)
    (2) Access requests. Except as provided in paragraph (d)(3) of this 
section and Sec. Sec.  504.1(f)(1), 504.2(g) and 504.2(j), Army 
investigative elements may not have access to or obtain copies of the 
information in the financial records of any customer from a financial 
institution unless the financial records are reasonably described and 
the--
    (i) Customer has authorized such disclosure (Sec.  504.2(b));
    (ii) Financial records are disclosed in response to a search 
warrant which meets the requirements of Sec.  504.2(d);
    (iii) Financial records are disclosed in response to a judicial 
subpoena which meets the requirements of Sec.  504.2(e); or
    (iv) Financial records are disclosed in response to a formal 
written request which meets the requirements of Sec.  504.2(f).
    (3) Voluntary information. Nothing in this part will preclude any 
financial institution, or any officer, employee, or agent of a 
financial institution, from notifying an Army investigative element 
that such institution, or officer, employee or agent has information 
which may be relevant to a possible violation of any statute or 
regulation.
    (e) Authority. (1) Law enforcement offices are authorized to obtain 
records of financial institutions per this part, except as provided in 
Sec.  504.2(e).
    (2) The head of a law enforcement office of field grade rank or 
higher (or an equivalent grade civilian official) is authorized to 
initiate requests for such records.
    (f) Exceptions and waivers. (1) A law enforcement office may issue 
a formal written request for basic identifying account information to a 
financial institution as part of a legitimate law enforcement inquiry. 
The request may be issued for any or all of the following identifying 
data:
    (i) Name.
    (ii) Address.
    (iii) Account number.
    (iv) Type of account of any customer or ascertainable group of 
customers associated with a financial transaction or class of financial 
transactions.
    (2) A request for disclosure of the above specified basic 
identifying data on a customer's account may be issued without 
complying with the customer notice, challenge, or transfer procedures 
described in Sec.  504.2. However, if access to the financial records 
themselves is required, the procedures in Sec.  504.2 must be followed. 
(A sample format for requesting basic identifying account data is in 
app. A.)
    (3) This part will not apply when financial records are sought by 
the Army under the Federal Rules for Civil Procedure, Criminal 
Procedure, Rules for Courts-Martial, or other comparable rules of other 
courts in connection with litigation to which the Government and the 
customer are parties.

[[Page 42014]]

    (4) No exceptions or waivers will be granted for those portions of 
this part required by law. Submit requests for exceptions or waivers of 
other aspects of this part to HQDA OPMG (DAPM-MPD-LE), Washington, DC 
20310-2800.


Sec.  504.2  Procedures.

    (a) General. A law enforcement official seeking access to a 
person's financial records will, when feasible, obtain the customer's 
consent. This section also sets forth other authorized procedures for 
obtaining financial records if it is not feasible to obtain the 
customer's consent. Authorized procedures for obtaining financial 
records follow. All communications with a U.S. Attorney or a U.S. 
District Court, as required by this part, will be coordinated with the 
supporting staff judge advocate before dispatch.
    (b) Customer consent. (1) A law enforcement office may gain access 
to or a copy of a customer's financial records by obtaining the 
customer's consent and authorization in writing. (See app. B to this 
part for a sample format.) Any consent obtained under the provisions of 
this paragraph must--
    (i) Be in writing, signed, and dated.
    (ii) Identify the particular financial records being disclosed.
    (iii) State that the customer may revoke the consent at any time 
before disclosure.
    (iv) Specify the purpose of disclosure and to which agency the 
records may be disclosed.
    (v) Authorize the disclosure for a period not over 3 months.
    (vi) Contain a ``Statement of Customer Rights Under the Right to 
Financial Privacy Act of 1978'' (12 U.S.C. 3401 et seq.) (app. B).
    (2) Any customer's consent not containing all of the elements 
listed in paragraph (a) of this section will not be valid.
    (3) A copy of the customer's consent will be made a part of the law 
enforcement inquiry file.
    (4) A certification of compliance with 12 U.S.C. 3401 et seq. (app. 
C), along with the customer's consent, will be provided to the 
financial institution as a prerequisite to obtaining access to the 
financial records.
    (c) Administrative summons or subpoena. The Army has no authority 
to issue an administrative summons or subpoena for access to financial 
records.
    (d) Search warrant. (1) A law enforcement office may obtain 
financial records by using a search warrant obtained under Rule 41 of 
the Federal Rules of Criminal Procedure in appropriate cases.
    (2) No later than 90 days after the search warrant is served, 
unless a delay of notice is obtained under Sec.  504.2(i), a copy of 
the search warrant and the following notice must be mailed to the 
customer's last known address:

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were 
obtained by this (office/agency/unit) on (date) for the following 
purpose: (state purpose). You may have rights under the Right to 
Financial Privacy Act of 1978.

    (3) Search authorization signed by installation commanders or 
military judges will not be used to gain access to financial records 
from financial institutions in any State or territory of the United 
States.
    (4) Access to financial records maintained by military banking 
contractors in overseas areas or by other financial institutions 
located on DOD installations outside the United States, Puerto Rico, 
the District of Columbia, Guam, American Samoa, or the Virgin Islands 
is preferably obtained by customer consent.
    (i) In cases where it would not be appropriate to obtain this 
consent or such consent is refused and the financial institution is not 
otherwise willing to provide access to its records, the law enforcement 
activity may seek access by use of a search authorization. This 
authorization must be prepared and issued per AR 27-10, Military 
Justice.
    (ii) Information obtained under this paragraph should be properly 
identified as financial information. It should be transferred only 
where an official need-to-know exists. Failure to do so, however, does 
not render the information inadmissible in courts-martial or other 
proceedings.
    (iii) Law enforcement activities seeking access to financial 
records maintained by all other financial institutions overseas will 
comply with local foreign statutes or procedures governing such access.
    (e) Judicial subpoena. Judicial subpoenas--(1) Are those subpoenas 
issued in connection with a pending judicial proceeding.
    (2) Include subpoenas issued under Rule for Courts-Martial 
703(e)(2) of the Manual for Courts-Martial and Article 46 of the 
Uniform Code of Military Justice. The servicing staff judge advocate 
will be consulted on the availability and use of judicial subpoenas.
    (f) Formal written request. (1) A law enforcement office may 
formally request financial records when the records are relevant to a 
legitimate law enforcement inquiry. This request may be issued only 
if--(i) The customer has declined to consent to the disclosure of his 
or her records, or
    (ii) Seeking consent from the customer would compromise or 
harmfully delay a legitimate law enforcement inquiry.
    (2) A formal written request will be in a format set forth in 
appendix D of this part and will--
    (i) State that the request is issued under the Right to Financial 
Privacy Act of 1978 and this part.
    (ii) Described the specific records to be examined.
    (iii) State that access is sought in connection with a legitimate 
law enforcement inquiry.
    (iv) Describe the nature of the inquiry.
    (v) Be signed by the head of the law enforcement office or a 
designee (persons specified in Sec.  504.1(e)(2)).
    (3) At the same time or before a formal written request is issued 
to a financial institution, a copy of the request will be personally 
served upon or mailed to the customer's last known address unless a 
delay of customer notice has been obtained under Sec.  504.2(i). The 
notice to the customer will be--
    (i) In a format similar to appendix E of this part.
    (ii) Personally served at least 10 days or mailed at least 14 days 
before the date on which access is sought.
    (4) The official who signs the customer notice is designated to 
receive any challenge from the customer.
    (5) The customer will have 10 days to challenge a notice request 
when personal service is made, and 14 days when service is by mail.
    (6) The head of the law enforcement office initiating the formal 
written request will set up procedures to ensure that no access to 
financial records is attempted before expiration of the above time 
periods--
    (i) While awaiting receipt of a potential customer challenge, or
    (ii) While awaiting the filing of an application for an injunction 
by the customer.
    (7) Proper preparation of the formal written request and notice to 
the customer requires preparation of motion papers and a statement 
suitable for court filing by the customer. Accordingly, the law 
enforcement office intending to initiate a formal written request will 
coordinate preparation of the request, the notice, motion papers, and 
sworn statement with the supporting staff judge advocate. These 
documents are required by statute; their preparation cannot be waived.
    (8) The supporting staff judge advocate is responsible for liaison 
with the proper United States Attorney and United States District 
Court. The

[[Page 42015]]

requesting official will coordinate with the supporting staff judge 
advocate to determine whether the customer has filed a motion to 
prevent disclosure of the financial records within the prescribed time 
limits.
    (9) The head of the law enforcement office (Sec.  504.2(f)(2)(v)) 
will certify in writing (see app. C) to the financial institution that 
such office has complied with the requirements of 12 U.S.C. 3401 et 
seq.--
    (i) When a customer fails to file a challenge to access financial 
records within the above time periods, or
    (ii) When a challenge is adjudicated in favor of the law 
enforcement office. No access to any financial records will be made 
before such certification is given.
    (g) Emergency access. Section 504.2(g)(2)(3) provides for emergency 
access in such cases of imminent danger. (No other procedures in this 
part apply to such emergency access.)
    (1) In some cases, the requesting law enforcement office may 
determine that a delay in obtaining access would create an imminent 
danger of--
    (i) Physical injury to a person,
    (ii) Serious property damage, or
    (iii) Flight to avoid prosecution.
    (2) When emergency access is made to financial records, the 
requesting official (Sec.  504.1(e)(2)) will--
    (i) Certify in writing (in a format similar to that in app. C) to 
the financial institution that the provisions of 12 U.S.C. 3401 et seq. 
have been complied with as a prerequisite to obtaining access.
    (ii) File with the proper court a signed, sworn statement setting 
forth the grounds for the emergency access within 5 days of obtaining 
access to financial records.
    (3) After filing of the signed, sworn statement, the official who 
has obtained access to financial records under this paragraph will as 
soon as practicable--
    (i) Personally serve or mail to the customer a copy of the request 
to the financial institution and the following notice, unless a delay 
of notice has been obtained under Sec.  504.2(i):

    Records concerning your transactions held by the financial 
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on 
(date) for the following purpose: (state with reasonable detail the 
nature of the law enforcement inquiry). Emergency access to such 
records was obtained on the grounds that (state grounds).

    (ii) Ensure that mailings under this section are by certified or 
registered mail to the last known address of the customer.
    (h) Release of information obtained from financial institutions--
(1) Records notice. Financial records, to include derived information, 
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:

    This record was obtained pursuant to the Right to Financial 
Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be 
transferred to another Federal agency or department outside DOD 
without prior compliance with the transferring requirements of 12 
U.S.C. 3412.

    (2) Records transfer. (i) Financial records originally obtained 
under this part will not be transferred to another agency or department 
outside the DOD unless the transferring law enforcement office 
certifies their relevance in writing. Certification will state that 
there is reason to believe that the records are relevant to a 
legitimate law enforcement inquiry within the jurisdiction of the 
receiving agency or department. To support this certification, the 
transferring office may require that the requesting agency submit 
adequate justification for its request. File a copy of this 
certification with a copy of the released records.
    (ii) Unless a delay of customer notice has been obtained (Sec.  
504.2(i)), the transferring law enforcement office will, within 14 
days, personally serve or mail the following to the customer at his or 
her last known address--
    (A) A copy of the certification made according to Sec.  
504.2(h)(2)(i) and
    (B) The following notice, which will state the nature of the law 
enforcement inquiry with reasonable detail:

    Copies of, or information contained in, your financial records 
lawfully in possession of the Department of the Army have been 
furnished to (state the receiving agency or department) pursuant to 
the Right to Financial Privacy Act of 1978 for (state the purpose). 
If you believe that this transfer has not been made to further a 
legitimate law enforcement inquiry, you may have legal rights under 
the Financial Privacy Act of 1978 or the Privacy Act of 1974.

    (iii) If a request for release of information is from a Federal 
agency authorized to conduct foreign intelligence or foreign 
counterintelligence activities (Executive Order 12333) and is for 
purposes of conducting such activities by these agencies, the 
information will be released without notifying the customer, unless 
permission to provide notification is given in writing by the 
requesting agency.
    (iv) Financial information obtained before the effective date of 
the Financial Privacy Act of 1978 (March 10, 1979) may continue to be 
provided to other agencies according to existing procedures, to include 
applicable Privacy Act System Notices published in AR 340-21 series.
    (3) Precautionary measures. Whenever financial data obtained under 
this part is incorporated into a report of investigation or other 
correspondence, precautions must be taken to ensure that--
    (i) The report or correspondence is not distributed outside of DOD 
except in compliance with paragraph (h)(2)(ii)(B) of this section.
    (ii) The report or other correspondence contains the following 
warning restriction on the first page or cover:

    Some of the information contained herein (cite specific 
paragraphs) is financial record information which was obtained 
pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 
3401 et seq. This information may not be released to another Federal 
agency or department outside the DOD without compliance with the 
specific requirements of 12 U.S.C. 3412 and AR 190-6.

    (i) Delay of customer notice procedures--(1) Length of delay. The 
customer notice required by formal written request (Sec.  504.2(f)(3)), 
emergency access (Sec.  504.2(g)(3)), and release of information (Sec.  
504.2(h)(2)(iii)) may be delayed for successive periods of 90 days. The 
notice required for search warrant (Sec.  504.2(d)(2)) may be delayed 
for one period of 180 days and successive periods of 90 days.
    (2) Conditions for delay. A delay of notice may only be made by an 
order of an appropriate court. This will be done when not granting a 
delay in serving the notice would result in--
    (i) Endangering the life or physical safety of any person.
    (ii) Flight from prosecution.
    (iii) Destruction of or tampering with evidence.
    (iv) Intimidation of potential witnesses.
    (v) Otherwise seriously jeopardizing an investigation or official 
proceeding or unduly delaying a trial or ongoing official proceeding to 
the same degree as the circumstances in Sec.  504.2(i)(2)(i) through 
(iv).
    (3) Coordination. When a delay of notice is appropriate, the law 
enforcement office involved will consult with the supporting staff 
judge advocate before attempting to obtain such a delay. Applications 
for delay of notice should contain reasonable detail.
    (4) After delay expiration. Upon the expiration of a delay of 
notice under above and required by--
    (i) Section 504.2(d)(2), the law enforcement office obtaining 
financial records will mail to the customer a copy

[[Page 42016]]

of the search warrant and the following notice.

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were 
obtained by this (agency or office) on (date). Notification was 
delayed beyond the statutory 180-day delay period pursuant to a 
determination by the court that such notice would seriously 
jeopardize an investigation concerning (state with reasonable 
detail). You may have rights under the Right to Financial Privacy 
Act of 1978.

    (ii) Section 504.2(f)(3), the law enforcement office obtaining 
financial records will serve personally or mail to the customer a copy 
of the process or request and the following notice:

    Records or information concerning your transactions which are 
held by the financial institution named in the attached process or 
request were supplied to or requested by the Government authority 
named in the process or request on (date). Notification was withheld 
pursuant to a determination by the (title of the court so ordering) 
under the Right to Financial Privacy Act of 1978 that such notice 
might (state reason). The purpose of the investigation or official 
proceeding was (state purpose with reasonable detail).

    (iii) Section 504.2(g)(3), the law enforcement office obtaining 
financial records will serve personally or mail to the customer a copy 
of the request and the notice required by Sec.  504.2(g)(3).
    (iv) Section 504.2(h)(2), the law enforcement office transferring 
financial records will serve personally or mail to the customer the 
notice required by Sec.  504.2(f)(3). If the law enforcement office was 
responsible for obtaining the court order authorizing the delay, such 
office shall also serve personally or by mail to the customer the 
notice required in Sec.  504.2(f)(3).
    (j) Foreign intelligence and foreign counterintelligence 
activities. (1) Except as indicated below, nothing in this regulation 
applies to requests for financial information in connection with 
authorized foreign intelligence and foreign counterintelligence 
activities as defined in Executive Order 12333. Appropriate foreign 
intelligence and counterintelligence directives should be consulted in 
these instances.
    (2) However, to comply with the Financial Privacy Act of 1978, the 
following guidance will be followed for such requests. When a request 
for financial records is made--
    (i) A military intelligence group commander, the chief of an 
investigative control office, or the Commanding General (CG) (or Deputy 
CG), U.S. Army Intelligence and Security Command, will certify to the 
financial institution that the requesting activity has complied with 
the provisions of 12 U.S.C. 3403(b).
    (ii) The requesting official will notify the financial institution 
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits 
disclosure to any person by the institution, its agents, or employees 
that financial records have been sought or obtained.
    (k) Certification. A certificate of compliance with the Right to 
Financial Privacy Act of 1978 (app. C) will be provided to the 
financial institution as a prerequisite to obtaining access to 
financial records under the following access procedures:
    (1) Customer consent (Sec.  504.2(b)).
    (2) Search warrant (Sec.  504.2(d)).
    (3) Judicial subpoena (Sec.  504.2(e)).
    (4) Formal written request (Sec.  504.2(f)).
    (5) Emergency access (Sec.  504.2(g)).
    (6) Foreign intelligence and foreign counterintelligence activities 
(Sec.  504.2(j)).

Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format

(Official Letterhead)

(Date) --------

Mr./Mrs. --------

,Chief Teller (as appropriate), First National Bank, Little Rock, AR 
72203.

    Dear Mr./Mrs.--------: In connection with a legitimate law 
enforcement inquiry and pursuant to section 3414 of the Right to 
Financial Privacy Act of 1978, section 3401 et seq., Title 12, 
United States Code, you are requested to provide the following 
account information: (name, address, account number, and type of 
account of any customer or ascertainable group of customers 
associated with a certain financial transaction or class of 
financial transactions as set forth in Sec.  504.1(f)).
    I hereby certify, pursuant to section 3403(b) of the Right to 
Financial Privacy Act of 1978, that the provisions of the Act have 
been complied with as to this request for account information.

(Official Signature Block) --------

    Under section 3417(c) of the Act, good faith reliance upon this 
certification relieves your institution and its employees and agents 
of any possible liability to the subject in connection with the 
disclosure of the requested financial records.

Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format

    Pursuant to section 3404(a) of the Right to Financial Privacy 
Act of 1978, I, (name of customer), having read the explanation of 
my rights on the reverse side, hereby authorize the (name and 
address of financial institution) to disclose these financial 
records: (list of particular financial records) to(Army law 
enforcement office) for the following purpose(s): (specify the 
purpose(s)).
    I understand that this authorization may be revoked by me in 
writing at any time before my records, as described above, are 
disclosed, and that this authorization is valid for no more than 3 
months from the date of my signature.

Date: --------

Signature: --------

(Typed name)

(Mailing address of customer)

Statement of Customer Rights Under the Right to Financial Privacy Act 
of 1978

    Federal law protects the privacy of your financial records. 
Before banks, savings and loan associations, credit unions, credit 
card issuers, or other financial institutions may give financial 
information about you to a Federal agency, certain procedures must 
be followed.

Consent to Financial Records

    You may be asked to consent to the financial institution making 
your financial records available to the Government. You may withhold 
your consent, and your consent is not required as a condition of 
doing business with any financial institution. If you give your 
consent, it can be revoked in writing at any time before your 
records are disclosed. Furthermore, any consent you give is 
effective for only 3 months and your financial institution must keep 
a record of the instances in which it discloses your financial 
information.

Without Your Consent

    Without your consent, a Federal agency that wants to see your 
financial records may do so ordinarily only by means of a lawful 
subpoena, summons, formal written request, or search warrant for 
that purpose. Generally, the Federal agency must give you advance 
notice of its request for your records explaining why the 
information is being sought and telling you how to object in court. 
The Federal agency must also send you copies of court documents to 
be prepared by you with instructions for filling them out. While 
these procedures will be kept as simple as possible, you may want to 
consult an attorney before making a challenge to a Federal agency's 
request.

Exceptions

    In some circumstances, a Federal agency may obtain financial 
information about you without advance notice or your consent. In 
most of these cases, the Federal agency will be required to go to 
court for permission to obtain your records without giving you 
notice beforehand. In these instances, the court will make the 
Government show that its investigation and request for your records 
are proper. When the reason for the delay of notice no longer 
exists, you will usually be notified that your records were 
obtained.

Transfer of Information

    Generally, a Federal agency that obtains your financial records 
is prohibited from transferring them to another Federal agency 
unless it certifies in writing the transfer is proper and sends a 
notice to you that your records have been sent to another agency.

[[Page 42017]]

Penalties

    If the Federal agency or financial institution violates the 
Right to Financial Privacy Act, you may sue for damages or seek 
compliance with the law. If you win, you may be repaid your 
attorney's fee and costs.

Additional Information

    If you have any questions about your rights under this law, or 
about how to consent to release your financial records, please call 
the official whose name and telephone number appears below:

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

(Last Name, First Name, Middle Initial)

-----------------------------------------------------------------------
Title (Area Code) (Telephone Number)

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

(Component activity, address)

Appendix C to Part 504--Certificate of Compliance With the Right to 
Financial Privacy Act of 1978--Sample Format

(Official Letterhead)

Mr./Mrs. --------,

Manager, Army Federal Credit Union, Fort Ord, CA 93941.

    Dear Mr./Mrs. --------: I certify, pursuant to section 3403(b) 
of the Right to Financial Privacy Act of 1978, section 3401 et seq., 
Title 12, United States Code, that the applicable provisions of that 
statute have been complied with as to the (customer's consent, 
search warrant or judicial subpoena, formal written request, 
emergency access, as applicable) presented on (date), for the 
following financial records of (customer's name):

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

(Describe the specific records)

(Official Signature Block) --------

    Pursuant to section 3417(c) of the Right to Financial Privacy 
Act of 1978, good faith reliance upon this certificate relieves your 
institution and its employees and agents of any possible liability 
to the customer in connection with the disclosure of these financial 
records.

Appendix D to Part 504--Formal Written Request for Access--Sample 
Format

(Official Letterhead)

(Date) --------

Mr./Mrs. --------

,President (as appropriate), City National Bank and Trust Company, 
Altoona, PA 16602.

    Dear Mr./Mrs. --------: In connection with a legitimate law 
enforcement inquiry and pursuant to section 3402(5) and section 3408 
of the Right to Financial Privacy Act of 1978, section 3401 et seq., 
Title 12, United States Code, and Army Regulation 190-6, you are 
requested to provide the following account information pertaining to 
(identify customer);

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

(Describe the specific records to be examined)

    The Army has no authority to issue an administrative summons or 
subpoena for access to these financial records which are required 
for (describe the nature or purpose of the inquiry).
    A copy of this request was (personally served upon or mailed to) 
the subject on (date) who has (10 or 14) days in which to challenge 
this request by filing an application in an appropriate United 
States district court if the subject desires to do so.
    Upon expiration of the above mentioned time period and in the 
absence of any filing or challenge by the subject, you will be 
furnished a certification certifying in writing that the applicable 
provisions of the Act have been complied with prior to obtaining the 
requested records. Upon your receipt of a Certificate of Compliance 
with the Right to Financial Privacy Act of 1978, you will be 
relieved of any possible liability to the subject in connection with 
the disclosure of the requested financial records.

(Official Signature Block) --------

Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format

(Official Letterhead)

(Date) --------

Mr./Ms--------

,1500 N. Main Street, Washington, DC 20314.

    Dear Mr./Ms. --------: Information or records concerning your 
transactions held by the financial institution named in the attached 
request are being sought by the (agency/department) in accordance 
with the Right to Financial Privacy Act of 1978, section 3401 et 
seq., Title 12, United States Code, and Army Regulation 190-6, for 
the following purpose(s):

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

(List the purpose(s))

    If you desire that such records or information not be made 
available, you must do the following:
    a. Fill out the accompanying motion paper and sworn statement or 
write one of your own--
    (1) Stating that you are the customer whose records are being 
requested by the Government.
    (2) Giving the reasons you believe that the records are not 
relevant or any other legal basis for objecting to the release of 
the records.
    b. File the motion and statement by mailing or delivering them 
to the clerk of any one of the following United States District 
Courts:

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

(List applicable courts)

    c. Mail or deliver a copy of your motion and statement to the 
requesting authority:
(give title and address).

    d. Be prepared to come to court and present your position in 
further detail.
    You do not need to have a lawyer, although you may wish to 
employ one to represent you and protect your rights.
    If you do not follow the above procedures, upon the expiration 
of (10 days from the date of personal service) (14 days from the 
date of mailing) of this notice, the records or information 
requested therein may be made available.
    These records may be transferred to other Government authorities 
for legitimate law enforcement inquiries, in which event you will be 
notified after the transfer if such transfer is made.

3 Enclosures (see para)----

(Signature) --------

[FR Doc. 05-14212 Filed 7-20-05; 8:45 am]
BILLING CODE 3710-08-P