Obtaining Information From Financial Institutions, 5631-5637 [E6-1326]
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Federal Register / Vol. 71, No. 22 / Thursday, February 2, 2006 / Proposed Rules
5631
6656, 6676, 6806, 7011, 7342, 7606, 7805; 31
U.S.C. 9301, 9303–9308.
DEPARTMENT OF DEFENSE
6. [The proposed amendatory
instructions and the proposed amended
regulatory text for part 25 are the same
as the amendatory instructions and the
amended regulatory text set forth in the
temporary rule on this subject published
in the Rules and Regulations section of
this issue of the Federal Register.]
Office of the Secretary
PART 19—DISTILLED SPIRITS
PLANTS
PART 26—LIQUORS AND ARTICLES
FROM PUERTO RICO AND THE VIRGIN
ISLANDS
AGENCY:
1. The authority citation for part 19
continues to read as follows:
7. The authority citation for part 26
continues to read as follows:
Authority: 19 U.S.C. 81c, 1311; 26 U.S.C.
5001, 5002, 5004–5006, 5008, 5010, 5041,
5061, 5062, 5066, 5081, 5101, 5111–5113,
5142, 5143, 5146, 5148, 5171–5173, 5175,
5176, 5178–5181, 5201–5204, 5206, 5207,
5211–5215, 5221–5223, 5231, 5232, 5235,
5236, 5241–5243, 5271, 5273, 5301, 5311–
5313, 5362, 5370, 5373, 5501–5505, 5551–
5555, 5559, 5561, 5562, 5601, 5612, 5682,
6001, 6065, 6109, 6302, 6311, 6676, 6806,
7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9304,
9306.
Authority: 19 U.S.C. 81c; 26 U.S.C. 5001,
5007, 5008, 5010, 5041, 5051, 5061, 5081,
5111, 5112, 5114, 5121, 5122, 5124, 5131–
5134, 5141, 5146, 5148, 5207, 5232, 5271,
5276, 5301, 5314, 5555, 6001, 6301, 6302,
6804, 7101, 7102, 7651, 7652, 7805; 27 U.S.C.
203, 205; 31 U.S.C. 9301, 9303, 9304, 9306.
SUMMARY: The Department of Defense is
proposing to revise its current policies
concerning obtaining information from
financial institutions under the Right to
Financial Privacy Act of 1978, as
amended (12 U.S.C. chapter 35). This
part prescribes practices and procedures
for the Department of Defense to obtain
from a financial institution the financial
records of its customers.
DATES: Comments must be received by
April 3, 2006.
ADDRESSES: You may submit comments,
identified by docket number and or RIN
number and title, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
https://regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
Freedom of information, Law
enforcement, Penalties, Reporting and
recordkeeping requirements, Surety
bonds.
Proposed Amendments to the
Regulations
For the reasons discussed in the
preamble, TTB proposes to amend 27
CFR parts 19, 24, 25, 26, and 70 as
follows:
2. [The proposed amendatory
instructions and the proposed amended
regulatory text for part 19 are the same
as the amendatory instructions and the
amended regulatory text set forth in the
temporary rule on this subject published
in the Rules and Regulations section of
this issue of the Federal Register.]
PART 24—WINE
8. [The proposed amendatory
instructions and the proposed amended
regulatory text for part 26 are the same
as the amendatory instructions and the
amended regulatory text set forth in the
temporary rule on this subject published
in the Rules and Regulations section of
this issue of the Federal Register.]
PART 70—PROCEDURES AND
PRACTICES
9. The authority citation for part 70
continues to read as follows:
Authority: 5 U.S.C. 552(a); 26 U.S.C. 5001,
5008, 5041, 5042, 5044, 5061, 5062, 5081,
5111–5113, 5121, 5122, 5142, 5143, 5148,
5173, 5206, 5214, 5215, 5351, 5353, 5354,
5356, 5357, 5361, 5362, 5364–5373, 5381–
5388, 5391, 5392, 5511, 5551, 5552, 5661,
5662, 5684, 6065, 6091, 6109, 6301, 6302,
6311, 6651, 6676, 7011, 7302, 7342, 7502,
7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303,
9304, 9306.
Authority: 5 U.S.C. 301 and 552; 26 U.S.C.
4181, 4182, 5146, 5203, 5207, 5275, 5367,
5415, 5504, 5555, 5684(a), 5741, 5761(b),
5802, 6020, 6021, 6064, 6102, 6155, 6159,
6201, 6203, 6204, 6301, 6303, 6311, 6313,
6314, 6321, 6323, 6325, 6326, 6331–6343,
6401–6404, 6407, 6416, 6423, 6501–6503,
6511, 6513, 6514, 6532, 6601, 6602, 6611,
6621, 6622, 6651, 6653, 6656–6658, 6665,
6671, 6672, 6701, 6723, 6801, 6862, 6863,
6901, 7011, 7101, 7102, 7121, 7122, 7207,
7209, 7214, 7304, 7401, 7403, 7406, 7423,
7424, 7425, 7426, 7429, 7430, 7432, 7502,
7503, 7505, 7506, 7513, 7601–7606, 7608–
7610, 7622, 7623, 7653, 7805.
4. [The proposed amendatory
instructions and the proposed amended
regulatory text for part 24 are the same
as the amendatory instructions and the
amended regulatory text set forth in the
temporary rule on this subject published
in the Rules and Regulations section of
this issue of the Federal Register.]
10. [The proposed amendatory
instructions and the proposed amended
regulatory text for part 70 are the same
as the amendatory instructions and the
amended regulatory text set forth in the
temporary rule on this subject published
in the Rules and Regulations section of
this issue of the Federal Register.]
PART 25—BEER
Signed: December 13, 2005.
John J. Manfreda,
Administrator.
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3. The authority citation for part 24
continues to read as follows:
5. The authority citation for part 25
continues to read as follows:
Authority: 19 U.S.C. 81c; 26 U.S.C. 5002,
5051–5054, 5056, 5061, 5091, 5111, 5113,
5142, 5143, 5146, 5148, 5222, 5401–5403,
5411–5417, 5551, 5552, 5555, 5556, 5671,
5673, 5684, 6011, 6061, 6065, 6091, 6109,
6151, 6301, 6302, 6311, 6313, 6402, 6651,
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Approved: December 23, 2005.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and
Tariff Policy).
[FR Doc. 06–980 Filed 2–1–06; 8:45 am]
BILLING CODE 4810–31–P
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32 CFR Part 275
[DOD–2006–OS–0006]
RIN 0790–AH84
Obtaining Information From Financial
Institutions
ACTION:
Department of Defense.
Proposed rule.
Mr.
Vahan Moushegian, Jr., at (703) 607–
2943.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been determined that Privacy
Act rules for the Department of Defense
are not significant rules. The rules do
not (1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy; a sector of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribal governments or
communities; (2) Create a serious
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inconsistency or otherwise interfere
with an action taken or planned by
another Agency; (3) Materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs, or
the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive order.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. Chapter 6)
It has been determined that Privacy
Act rules for the Department of Defense
do not have significant economic impact
on a substantial number of small entities
because they are concerned only with
the administration of Privacy Act
systems of records within the
Department of Defense.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been determined that Privacy
Act rules for the Department of Defense
impose no information requirements
beyond the Department of Defense and
that the information collected within
the Department of Defense is necessary
and consistent with 5 U.S.C. 552a,
known as the Privacy Act of 1974.
Section 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
It has been determined that Privacy
Act rulemaking for the Department of
Defense does not involve a Federal
mandate that may result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
and that such rulemaking will not
significantly or uniquely affect small
governments.
Executive Order 13132, ‘‘Federalism’’
It has been determined that Privacy
Act rules for the Department of Defense
do not have federalism implications.
The rules do not have substantial direct
effects 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.
List of Subjects in 32 CFR Part 275
Banks, banking; Credit; Privacy.
Accordingly, 32 CFR part 275 is
proposed to be revised as follows:
275.3 Definitions.
275.4 Policy.
275.5 Responsibilities.
275.6 Obtaining basic identifying account
information.
275.7 Obtaining customer authorization.
275.8 Obtaining access by administrative or
judicial subpoena or by formal written
request.
275.9 Obtaining access by search warrant.
275.10 Obtaining access for foreign
intelligence, foreign counterintelligence,
and international terrorist activities or
investigations.
275.11 Obtaining emergency access.
275.12 Releasing information obtained from
financial institutions.
275.13 Procedures for delay of notice.
275.14 Obtaining access to financial records
overseas.
Appendix A to Part 275—Format for
Obtaining Basic Identifying Account
Information
Appendix B to Part 275—Format for
Customer Authorization
Appendix C to Part 275—Format for a Formal
Written Request
Appendix D to Part 275—Format for
Customer Notice for Administrative or
Judicial Subpoena or for Formal Written
Request
Appendix E to Part 275—Format for
Certificate of Compliance with the Right to
Financial Privacy Act of 1978
Authority: 12 U.S.C. 3401, et seq.
§ 275.1
§ 275.2
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Sec.
275.1
275.2
Purpose.
Applicability and scope.
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Applicability and scope.
This part applies to:
(a) The Office of the Secretary of
Defense, the Military Departments, the
Chairman of the Joint Chiefs of Staff, the
Combatant Commands, the Office of the
Inspector General of the Department of
Defense, the Defense Agencies, the DoD
Field Activities, and all other
organizational entities in the
Department of Defense (hereafter
referred to collectively as the ‘‘DoD
Components’’).
(b) Only to financial records
maintained by financial institutions.
§ 275.3
PART 275—OBTAINING INFORMATION
FROM FINANCIAL INSTITUTIONS;
RIGHT TO FINANCIAL PRIVACY ACT
OF 1978
Purpose.
This part:
(a) Updates policies and
responsibilities, and prescribes
procedures for obtaining access to
financial records maintained by
financial institutions.
(b) Implements 12 U.S.C. Chapter 35
by providing guidance on the
requirements and conditions for
obtaining financial records.
Definitions.
(a) Administrative Summons or
Subpoena. A statutory writ issued by a
Government Authority.
(b) Customer. Any person or
authorized representative of that person
who used or is using any service of a
financial institution or for whom a
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financial institution is acting or has
acted as fiduciary for an account
maintained in the name of that person.
(c) Financial Institution (for
intelligence activity purposes only).
(1) An insured bank (includes a
foreign bank having an insured branch)
whose deposits are insured under the
Federal Deposit Insurance Act.
(2) A commercial bank or trust
company.
(3) A private banker.
(4) An agency or branch of a foreign
bank in the United States.
(5) Any credit union.
(6) A thrift institution.
(7) A broker or dealer registered with
the Securities and Exchange
Commission.
(8) A broker or dealer in securities or
commodities.
(9) An investment banker or
investment company.
(10) A currency exchange.
(11) An issuer, redeemer, or cashier of
travelers’ checks, checks, money orders,
or similar instruments.
(12) An operator of a credit card
system.
(13) An insurance company.
(14) A dealer in precious metals,
stones, or jewels.
(15) A pawnbroker.
(16) A loan or finance company.
(17) A travel agency.
(18) A licensed sender of money or
any other person who engages as a
business in the transmission of funds,
including any person who engages as a
business in an informal money transfer
system or any network of people who
engage as a business in facilitating the
transfer of money domestically or
internationally outside of the
conventional financial institutions
system.
(19) A telegraph company.
(20) A business engaged in vehicle
sales, including automobile, airplane,
and boat sales.
(21) Persons involved in real estate
closings and settlements.
(22) The United States Postal Service.
(23) An agency of the United States
Government or of a State or local
government performing a duty or power
of a business described in this
definition.
(24) A casino, gambling casino, or
gaming establishment with an annual
gaming revenue of more than $1,000,000
which is licensed as a casino, gambling
casino, or gaming establishment under
the laws of a State or locality or is an
Indian gaming operation conducted
pursuant to, and as authorized by, the
Indian Gaming Regulatory Act.
(25) Any business or agency that
engages in any activity which the
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Secretary of the Treasury, by regulation
determines to be an activity in which
any business described in this definition
is authorized to engage; or any other
business designated by the Secretary of
the Treasury whose cash transactions
have a high degree of usefulness in
criminal, tax, or regulatory matters.
(26) Any futures commission
merchant, commodity trading advisor,
or commodity pool operator registered,
or required to register, under the
Commodity Exchange Act that is located
inside any State or territory of the
United States, the District of Columbia,
Puerto Rico, Guam, American Samoa,
the Commonwealth of the Northern
Mariana Islands, or the United States
Virgin Islands.
(d) Financial Institution (other than
for intelligence activity purposes). Any
office of a bank, savings bank, credit
card issuer, industrial loan company,
trust company, savings association,
building and loan, or homestead
association (including cooperative
banks), credit union, or consumer
finance institution that is 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.
(e) Financial Record. An original, its
copy, or information known to have
been derived from the original record
held by a financial institution that
pertains to a customer’s relationship
with the financial institution.
(f) Government Authority. Any agency
or Department of the United States, or
any officer, employee, or agent thereof,
to include DoD law enforcement offices,
personnel security elements, and/or
intelligence organizations.
(g) Intelligence Activities. The
collection, production, and
dissemination of foreign intelligence
and counterintelligence, to include
investigation or analyses related to
international terrorism, by DoD
intelligence organizations.
(h) Intelligence Organizations. Any
element of a DoD Component
authorized by the Secretary of Defense
to conduct intelligence activities.
(i) Law Enforcement Inquiry. A lawful
investigation or official proceeding that
inquires into a violation of or failure to
comply with a criminal or civil statute,
or any rule, regulation, or order issued
pursuant thereto.
(j) Law Enforcement Office. Any
element of a DoD Component
authorized by the Head of the DoD
Component conducting law
enforcement inquiries.
(k) Person. An individual or a
partnership consisting of five or fewer
individuals.
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(l) Personnel Security Element. Any
element of a DoD Component
authorized by the Secretary of Defense
conducting personnel security
investigations.
(m) Personnel Security Investigation.
An investigation required for
determining a person’s eligibility for
access to classified information,
acceptance or retention in the Armed
Forces, assignment or retention in
sensitive duties, or other designated
duties requiring such investigation.
Personnel security investigations
include investigations conducted for the
purpose of making personnel security
determinations. They also include
investigations of allegations that may
arise subsequent to favorable
adjudicative action and require
resolution to determine a person’s
current eligibility for access to classified
information or assignment or retention
in a sensitive position.
§ 275.4
Policy.
It is DoD policy that:
(a) Authorization of the customer to
whom the financial records pertain shall
be sought unless doing so compromises
or harmfully delays either a legitimate
law enforcement inquiry or a lawful
intelligence activity. If the person
declines to consent to disclosure, the
alternative means of obtaining the
records authorized by this part shall be
utilized.
(b) The provisions of 12 U.S.C.
Chapter 35 do not govern obtaining
access to financial records maintained
by military banking contractors located
outside the United States, the District of
Columbia, Guam, American Samoa,
Puerto Rico, and the Virgin Islands. The
guidance set forth in § 275.14 may be
used to obtain financial information
from these contractor operated facilities.
§ 275.5
Responsibilities.
(a) The Director of Administration
and Management, Office of the Secretary
of Defense shall:
(1) Exercise oversight to ensure
compliance with this part.
(2) Provide policy guidance to
affected DoD Components to implement
this part.
(b) The Secretaries of the Military
Departments and the Heads of the
affected DoD Components shall:
(1) Implement policies and
procedures to ensure implementation of
this part when seeking access to
financial records.
(2) Adhere to the guidance and
procedures contained in this part.
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§ 275.6 Obtaining basic identifying
account information.
(a) A DoD law enforcement office may
issue a formal written request for basic
identifying account information to a
financial institution relevant to a
legitimate law enforcement inquiry. A
request may be issued to a financial
institution for any or all of the following
identifying data:
(1) Name.
(2) Address.
(3) Account number.
(4) Type of account of any customer
or ascertainable group of customers
associated with a financial transaction
or class of financial transactions.
(b) The notice (§ 275.8(b)), challenge
(§ 275.9(d)), and transfer (§ 275.12(b))
requirements of this part shall not apply
when a Government authority is seeking
only the above specified basic
identifying information concerning a
customer’s account.
(c) A format for obtaining basic
identifying account information is set
forth in Appendix A to this part.
§ 275.7
Obtaining customer authorization.
(a) A DoD law enforcement office or
personal security element seeking
access to a person’s financial records
shall, when feasible, obtain the
customer’s consent.
(b) Any authorization obtained under
paragraph (a) of this section, shall:
(1) Be in writing, signed, and dated.
(2) Identify the particular financial
records that are being disclosed.
(3) State that the customer may revoke
the authorization at any time before
disclosure.
(4) Specify the purposes for disclosure
and to which Governmental authority
the records may be disclosed.
(5) Authorize the disclosure for a
period not in excess of 3 months.
(6) Contain a ‘‘Statement of Customer
Rights’’ as required by 12 U.S.C. Chapter
35 (see Appendix B to this part).
(7) Contain a Privacy Act Statement as
required by 32 CFR part 310 for a
personnel security investigation.
(c) Any customer’s authorization not
containing all of the elements listed in
paragraph (b) of this section, shall be
void. A customer authorization form, in
a format set forth in Appendix B to this
part, shall be used for this purpose.
(d) A copy of the customer’s
authorization shall be made a part of the
law enforcement or personnel security
file where the financial records are
maintained.
(e) A certificate of compliance stating
that the applicable requirements of 12
U.S.C. Chapter 35 have been met
(Appendix E to this part), along with the
customer’s authorization, shall be
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provided to the financial institution as
a prerequisite to obtaining access to
financial records.
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§ 275.8 Obtaining access by administrative
or judicial subpoena or by formal written
request.
(a) Access to information contained in
financial records from a financial
institution may be obtained by
Government authority when the nature
of the records is reasonably described
and the records are acquired by:
(1) Administrative Summons or
Subpoena. (i) Within the Department of
Defense, the Inspector General, DoD, has
the authority under the Inspector
General Act to issue administrative
subpoenas for access to financial
records. No other DoD Component
official may issue summons or
subpoenas for access to these records.
(ii) The Inspector General, DoD shall
issue administrative subpoenas for
access to financial records in
accordance with established procedures
but subject to the procedural
requirements of this section.
(2) Judicial Subpoena.
(3) Formal Written Request.
(i) Formal requests may only be used
if an administrative summons or
subpoena is not reasonably available to
obtain the financial records.
(ii) A formal written request shall be
in a format set forth in Appendix C to
this part and shall:
(A) State that the request is issued
under 12 U.S.C. Chapter 35 and the DoD
Component’s implementation of this
part.
(B) Describe the specific records to be
examined.
(C) State that access is sought in
connection with a legitimate law
enforcement inquiry.
(D) Describe the nature of the inquiry.
(E) Be signed by the head of the law
enforcement office or a designee.
(b) A copy of the administrative or
judicial subpoena or formal request,
along with a notice specifying the
nature of the law enforcement inquiry,
shall be served on the person or mailed
to the person’s last known mailing
address on or before the subpoena is
served on the financial institution
unless a delay of notice has been
obtained under § 275.13.
(c) The notice to the customer shall be
in a format similar to Appendix D to
this part and shall be personally served
at least 10 days or mailed at least 14
days prior to the date on which access
is sought.
(d) The customer shall have 10 days
to challenge a notice request when
personal service is made and 14 days
when service is by mail.
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(e) No access to financial records shall
be attempted before the expiration of the
pertinent time period while awaiting
receipt of a potential customer
challenge, or prior to the adjudication of
any challenge made.
(f) The official who signs the customer
notice shall be designated to receive any
challenge from the customer.
(g) When a customer fails to file a
challenge to access to financial records
within the above pertinent time periods,
or after a challenge is adjudicated in
favor of the law enforcement office, the
head of the office, or a designee, shall
certify in writing to the financial
institution that such office has complied
with the requirements of 12 U.S.C.
Chapter 35. No access to any financial
records shall be made before such
certification (Appendix E to this part) is
provided the financial institution.
§ 275.9 Obtaining access by search
warrant.
(a) A Government authority may
obtain financial records by using a
search warrant obtained under Rule 41
of the Federal Rules of Criminal
Procedure.
(b) Unless a delay of notice has been
obtained under provisions of § 275.13,
the law enforcement office shall, no
later than 90 days after serving the
search warrant, mail to the customer’s
last known address a copy of the search
warrant together with the following
notice:
Records or information concerning your
transactions held by the financial institution
named in the attached search warrant were
obtained by this [DoD office or activity] on
[date] for the following purpose: [state
purpose]. You may have rights under the
Right to Financial Privacy Act of 1978.
(c) In any state or territory of the
United States, or in the District of
Columbia, Puerto Rico, Guam, American
Samoa, or the Virgin Islands, search
authorizations signed by installation
commanders, military judges, or
magistrates shall not be used to gain
access to financial records.
§ 275.10 Obtaining access for foreign
intelligence, foreign counterintelligence,
and international terrorist activities or
investigations.
(a) Financial records may be obtained
from a financial institution (as
identified at § 275.3) by an intelligence
organization, as identified in DoD
Directive 5240.1,1 authorized to conduct
intelligence activities, to include
investigation or analyses related to
international terrorism, pursuant to DoD
1 Copies may be obtained at https://www.dtic.mil/
whs/directives/.
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Directive 5240.1 and Executive Order
12333.
(b) The provisions of this part do not
apply to the production and disclosure
of financial records when requests are
submitted by intelligence organizations
except as may be required by this
section.
(c) When a request for financial
records is made under paragraph (a) of
this section, a Component official
designated by the Secretary of Defense,
the Secretary of a Military Department,
or the Head of the DoD Component
authorized to conduct foreign
intelligence or foreign
counterintelligence activities shall
certify to the financial institution that
the requesting Component has complied
with the provisions of 12 U.S.C. Chapter
35. Such certification in a format similar
to § 275.13 to this part shall be made
before obtaining any records.
(d) An intelligence organization
requesting financial records under
paragraph (a) of this section, may notify
the financial institution from which
records are sought 12 U.S.C. 3414(3)
prohibits disclosure to any person by
the institution, its agents, or employees
that financial records have been sought
or obtained. An intelligence
organization requesting financial
records under paragraph (a) of this
section, shall maintain an annual
tabulation of the occasions.
(e) An intelligence organization
requesting financial records under
paragraph (a) of this section, shall
maintain an annual tabulation of the
occasions in which this access
procedure was used.
§ 275.11
Obtaining emergency access.
(a) Except as provided in paragraphs
(b) and (c) of this section, nothing in
this part shall apply to a request for
financial records from a financial
institution when a determination is
made that a delay in obtaining access to
such records would create an imminent
danger of:
(1) Physical injury to any person.
(2) Serious property damage.
(3) Flight to avoid prosecution.
(b) When access is made to financial
records under paragraph (a) of this
section, a Component official designated
by the Secretary of Defense or the
Secretary of a Military Department shall:
(1) Certify in writing, in a format set
forth in Appendix E to this part, to the
financial institution that the Component
has complied with the provisions of 12
U.S.C. Chapter 35, as a prerequisite to
obtaining access.
(2) Submit for filing with the
appropriate court a signed sworn
statement setting forth the grounds for
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the emergency access within 5 days of
obtaining access to financial records.
(c)(1) When access to financial
records are obtained under paragraph (a)
of this section, a copy of the request,
along with the following notice, shall be
served on the person or mailed to the
person’s last known mailing address as
soon as practicable after the records
have been obtained unless a delay of
notice has been obtained under
§ 275.13.
Records concerning your transactions held
by the financial institution named in the
attached request were obtained by [Agency or
Department] under the Right to Financial
Privacy Act of 1978 on [date] for the
following purpose: [state with reasonable
specificity the nature of the law enforcement
inquiry]. Emergency access to such records
was obtained on the grounds that [state
grounds].
(2) Mailings under this paragraph
shall be by certified or registered mail.
hsrobinson on PROD1PC71 with PROPOSALS
§ 275.12 Releasing information obtained
from financial institutions.
(a) Financial records obtained under
12 U.S.C. Chapter 35 shall be marked:
‘‘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 without prior
compliance with the transferring
requirements of 12 U.S.C. 3412.’’
(b) Financial records obtained under
this part shall not be transferred to
another Agency or Department outside
the Department of Defense unless the
head of the transferring law enforcement
office, personnel security element, or
intelligence organization, or designee,
certifies in writing that there is reason
to believe that the records are relevant
to a legitimate law enforcement inquiry,
or intelligence or counterintelligence
activity (to include investigation or
analyses related to international
terrorism) within the jurisdiction of the
receiving Agency or Department. Such
certificates shall be maintained with the
DoD Component along with a copy of
the released records.
(c) Subject to paragraph (d) of this
section, unless a delay of customer
notice has been obtained under
§ 275.13, the law enforcement office or
personnel security element shall, within
14 days, personally serve or mail to the
customer, at his or her last known
address, a copy of the certificate
required by paragraph (b) of this section,
along with the following notice:
Copies of or information contained in your
financial records lawfully in possession of
[name of Component] have been furnished to
[name of Agency or Department] pursuant to
the Right to Financial Privacy Act of 1978 for
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Jkt 208001
the following purposes: [state the nature of
the law enforcement inquiry with reasonable
specificity]. 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.
(d) If a request for release of
information is from a Federal Agency, as
identified in E.O. 12333, authorized to
conduct foreign intelligence or foreign
counterintelligence activities, the
transferring DoD Component shall
release the information without
notifying the customer, unless
permission to provide notification is
given in writing by the requesting
Agency.
(e) Whenever financial data obtained
under this part is incorporated into a
report of investigation or other
correspondence; precautions must be
taken to ensure that:
(1) The reports or correspondence are
not distributed outside the Department
of Defense except in compliance with
paragraph (b) of this section; and
(2) The report or other
correspondence contains an appropriate
warning restriction on the first page or
cover. Such a warning could read as
follows:
Some of the information contained herein
(cite specific paragraph) is financial record
information which was obtained pursuant to
the Right to 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 Department of
Defense except for those purposes expressly
authorized by Act.
§ 275.13
Procedures for delay of notice.
(a) The customer notice required
when seeking an administrative
subpoena or summons (§ 275.8(b)),
obtaining a search warrant (§ 275.9(b)),
seeking a judicial subpoena (paragraph
(b) to appendix C to this part), making
a formal written request (§ 275.8(b)),
obtaining emergency access
(§ 275.11(c)), or transferring information
(§ 275.12(c)) may be delayed for an
initial period of 90 days and successive
periods of 90 days. The notice required
when obtaining a search warrant
(§ 275.9(b)) may be delayed for a period
of 180 days and successive periods of 90
days. A delay of notice may only be
made by an order of an appropriate
court if the presiding judge or magistrate
finds that:
(1) The investigation is within the
lawful jurisdiction of the Government
authority seeking the records.
(2) There is reason to believe the
records being sought are relevant to a
law enforcement inquiry.
(3) There is reason to believe that
serving the notice will result in:
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5635
(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 paragraphs
(a)(2)(i). through (a)(2)(iv) of this
section.
(b) When a delay of notice is
appropriate, legal counsel shall be
consulted to obtain such a delay.
Application for delays of notice shall be
made with reasonable specificity.
(c) Upon the expiration of a delay of
notification obtained under paragraph
(a) of this section for a search warrant,
the law enforcement office obtaining
such records shall mail to the customer
a copy of the search warrant, along with
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 department] 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
specificity]. You may have rights under the
Right to Financial Privacy Act of 1978.
(d) Upon the expiration of all other
delays of notification obtained under
paragraph (a) of this section, the
customer shall be served with or mailed
a copy of the legal process or formal
request, together with the following
notice which shall state with reasonable
specificity the nature of the law
enforcement inquiry.
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 ordering the delay) under
the Right to Financial Privacy Act of 1978
that such notice might (state the reason). The
purpose of the investigation or official
proceeding was (state the purpose).
§ 275.14 Obtaining access to financial
records overseas.
(a) The provisions of 12 U.S.C.
Chapter 35 do not govern obtaining
access to financial records maintained
by military banking contractors overseas
or other financial institutions in offices
located on DoD installations outside the
United States, the District of Columbia,
Guam, American Samoa, Puerto Rico, or
the Virgin Islands.
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(b) Access to financial records held by
such contractors or institutions is
preferably obtained by customer
authorization. However, in those cases
where it would not be appropriate to
obtain this authorization or where such
authorization is refused and the
financial institution is not otherwise
willing to provide access to its records:
(1) A law enforcement activity may
seek access by the use of a search
authorization issued pursuant to
established Component procedures;
Rule 315, Military Rules of Evidence
(Part III, Manual for Courts-Martial); and
Article 46 of the Uniform Code of
Military Justice.
(2) An intelligence organization may
seek access pursuant to Procedure 7 of
DoD 5240.1–R.
(3) Information obtained under this
section shall be properly identified as
financial information and transferred
only where an official need-to-know
exists. Failure to identify or limit access
in accordance with this paragraph does
not render the information inadmissible
in courts-martial or other proceedings.
(4) Access to financial records
maintained by all other financial
institutions overseas by law
enforcement activities shall be in
accordance with the local foreign
statutes or procedures governing such
access.
hsrobinson on PROD1PC71 with PROPOSALS
Appendix A to Part 275—Format for
Obtaining Basic Identifying Account
Information
[Official Letterhead]
[Date]
Mr./Mrs. XXXXXXXXXX,
Chief Teller [as appropriate],
First National Bank,
Anywhere, VA 00000–0000,
Dear Mr./Mrs. XXXXXXXXXX: In connection
with a legitimate law enforcement
inquiry and pursuant to section 3413(g)
of the Right to Financial Privacy Act of
1978, 12 U.S.C. 3401 et. seq., 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
financial transaction or class of financial
transactions.]
I hereby certify, pursuant to section
3403(b) of the Right of Financial Privacy Act
of 1978, that the provisions of the Act have
been complied with as to this request for
account information.
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 customer in
connection with the disclosure of the
requested financial records.
[Official Signature Block]
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Jkt 208001
Appendix B to Part 275—Format for
Customer Authorization
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 the particular financial records]
to [DoD Component] for the following
purpose(s): [Specify the purpose(s)].
I understand that the 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 three months from the date
of my signature.
Signature: llllllllllllllll
Date: llllllllllllllllll
[Typed name] llllllllllllll
[Mailing address of customer] lllllll
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 be notified that your records
were obtained.
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.
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) Title
(Area Code) (Telephone number)
lllllllllllllllllllll
(Component activity, Local Mailing Address)
Authorization To Access Financial Records
You may be asked to authorize the
financial institution to make your financial
records available to the Government. You
may withhold your authorization, and your
authorization is not required as a condition
of doing business with any financial
institution. If you provide authorization, it
can be revoked in writing at any time before
your records are disclosed. Furthermore, any
authorization you provide is effective for
only three months, and your financial
institution must keep a record of the
instances in which it discloses your financial
information.
Without Your Authorization
Without your authorization, a Federal
Agency that wants to see your financial
records may do so ordinarily only by means
of a lawful administrative subpoena or
summons, search warrant, judicial subpoena,
or formal written request 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
authorization. In most of these cases, the
Federal Agency will be required to go to
court for permission to obtain your records
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Sfmt 4702
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 that the transfer
is proper and sends a notice to you that your
records have been sent to another Agency.
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.
Appendix C to Part 275—Format for Formal
Written Request
[Official Letterhead]
[Date]
Mr./Mrs. XXXXXXXXXX,
President (as appropriate),
City National Bank and Trust Company,
Anytown, VA 00000–0000.
Dear Mr./Mrs. XXXXXXXXXXXXX: 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, 12 U.S.C. 3401
et seq., and [cite Component’s
implementation of this Part], you are
requested to provide the following account
information pertaining to the subject:
[Describe the specific records to be
examined]
The [DoD Component] is without 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 the expiration of the above
mentioned time period and absent 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
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subject in connection with the disclosure of
the requested financial records.
[Official Signature Block]
Appendix D to Part 275—Format for
Customer Notice for Administrative or
Judicial Subpoena or for a Formal Written
Request
hsrobinson on PROD1PC71 with PROPOSALS
[Official Letterhead]
[Date]
Mr./Ms. XXXXX X. XXXX,
1500 N. Main Street,
Anytown, VA 00000–0000.
Dear Mr./Ms. XXXX: Information or records
concerning your transactions held by the
financial institution named in the attached
[administrative subpoena or summons]
[judicial subpoena] [request] are being sought
by the [Agency/Department] in accordance
with the Right to Financial Privacy Act of
1978, Title 12, United States Code, section
3401 et seq., and [Component’s
implementing document], for the following
purpose(s):
[List the purpose(s)]
If you desire that such records or
information not be made available, you must:
1. Fill out the accompanying motion paper
and sworn statement or write one of your
own, stating that you are the customer whose
records are being requested by the
Government and either giving the reasons
you believe that the records are not relevant
to the legitimate law enforcement inquiry
stated in this notice or any other legal basis
for objecting to the release of the records.
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Jkt 208001
2. 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]
3. Serve the Government authority
requesting the records by mailing or
delivering a copy of your motion and
statement to: [Give title and address].
4. Be prepared to come to court and
present your position in further detail.
5. 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 or 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.
[Signature],
[Name and title of official],
[DoD Component],
[Telephone].
Attachments—3
1. Copy of request
2. Motion papers
3. Sworn statement
Appendix E to Part 275—Format for
Certificate of Compliance With the Right to
Financial Privacy Act of 1978
[Official Letterhead]
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5637
[Date]
Mr./Mrs. XXXXXXXXXX,
Manager,
Army Federal Credit Union,
Fort Anywhere, VA 00000–0000.
Dear Mr./Mrs. XXXXXXXXXX: I certify,
pursuant to section 3403(b) of the Right to
Financial Privacy Act of 1978, 12 U.S.C. 3401
et seq., that the applicable provisions of that
statute have been complied with as to the
[Customer’s authorization, administrative
subpoena or summons, search warrant,
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]
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.
[Official Signature Block]
Dated: January 27, 2006.
L.M. Bynum,
Alternate OSD Federal Register Liaison
Officer, DoD.
[FR Doc. E6–1326 Filed 2–1–06; 8:45 am]
BILLING CODE 5001–06–P
E:\FR\FM\02FEP1.SGM
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Agencies
[Federal Register Volume 71, Number 22 (Thursday, February 2, 2006)]
[Proposed Rules]
[Pages 5631-5637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-1326]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 275
[DOD-2006-OS-0006]
RIN 0790-AH84
Obtaining Information From Financial Institutions
AGENCY: Department of Defense.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Defense is proposing to revise its current
policies concerning obtaining information from financial institutions
under the Right to Financial Privacy Act of 1978, as amended (12 U.S.C.
chapter 35). This part prescribes practices and procedures for the
Department of Defense to obtain from a financial institution the
financial records of its customers.
DATES: Comments must be received by April 3, 2006.
ADDRESSES: You may submit comments, identified by docket number and or
RIN number and title, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at https://regulations.gov
as they are received without change, including any personal identifiers
or contact information.
FOR FURTHER INFORMATION CONTACT: Mr. Vahan Moushegian, Jr., at (703)
607-2943.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that Privacy Act rules for the Department of
Defense are not significant rules. The rules do not (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy; a sector of the economy; productivity;
competition; jobs; the environment; public health or safety; or State,
local, or tribal governments or communities; (2) Create a serious
[[Page 5632]]
inconsistency or otherwise interfere with an action taken or planned by
another Agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in this Executive order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been determined that Privacy Act rules for the Department of
Defense do not have significant economic impact on a substantial number
of small entities because they are concerned only with the
administration of Privacy Act systems of records within the Department
of Defense.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that Privacy Act rules for the Department of
Defense impose no information requirements beyond the Department of
Defense and that the information collected within the Department of
Defense is necessary and consistent with 5 U.S.C. 552a, known as the
Privacy Act of 1974.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that Privacy Act rulemaking for the
Department of Defense does not involve a Federal mandate that may
result in the expenditure by State, local and tribal governments, in
the aggregate, or by the private sector, of $100 million or more and
that such rulemaking will not significantly or uniquely affect small
governments.
Executive Order 13132, ``Federalism''
It has been determined that Privacy Act rules for the Department of
Defense do not have federalism implications. The rules do not have
substantial direct effects 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.
List of Subjects in 32 CFR Part 275
Banks, banking; Credit; Privacy.
Accordingly, 32 CFR part 275 is proposed to be revised as follows:
PART 275--OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS; RIGHT
TO FINANCIAL PRIVACY ACT OF 1978
Sec.
275.1 Purpose.
275.2 Applicability and scope.
275.3 Definitions.
275.4 Policy.
275.5 Responsibilities.
275.6 Obtaining basic identifying account information.
275.7 Obtaining customer authorization.
275.8 Obtaining access by administrative or judicial subpoena or by
formal written request.
275.9 Obtaining access by search warrant.
275.10 Obtaining access for foreign intelligence, foreign
counterintelligence, and international terrorist activities or
investigations.
275.11 Obtaining emergency access.
275.12 Releasing information obtained from financial institutions.
275.13 Procedures for delay of notice.
275.14 Obtaining access to financial records overseas.
Appendix A to Part 275--Format for Obtaining Basic Identifying
Account Information
Appendix B to Part 275--Format for Customer Authorization
Appendix C to Part 275--Format for a Formal Written Request
Appendix D to Part 275--Format for Customer Notice for
Administrative or Judicial Subpoena or for Formal Written Request
Appendix E to Part 275--Format for Certificate of Compliance with
the Right to Financial Privacy Act of 1978
Authority: 12 U.S.C. 3401, et seq.
Sec. 275.1 Purpose.
This part:
(a) Updates policies and responsibilities, and prescribes
procedures for obtaining access to financial records maintained by
financial institutions.
(b) Implements 12 U.S.C. Chapter 35 by providing guidance on the
requirements and conditions for obtaining financial records.
Sec. 275.2 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Office of the Inspector General of the Department of
Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities in the Department of Defense (hereafter
referred to collectively as the ``DoD Components'').
(b) Only to financial records maintained by financial institutions.
Sec. 275.3 Definitions.
(a) Administrative Summons or Subpoena. A statutory writ issued by
a Government Authority.
(b) Customer. Any person or authorized representative of that
person who used or is using any service of a financial institution or
for whom a financial institution is acting or has acted as fiduciary
for an account maintained in the name of that person.
(c) Financial Institution (for intelligence activity purposes
only).
(1) An insured bank (includes a foreign bank having an insured
branch) whose deposits are insured under the Federal Deposit Insurance
Act.
(2) A commercial bank or trust company.
(3) A private banker.
(4) An agency or branch of a foreign bank in the United States.
(5) Any credit union.
(6) A thrift institution.
(7) A broker or dealer registered with the Securities and Exchange
Commission.
(8) A broker or dealer in securities or commodities.
(9) An investment banker or investment company.
(10) A currency exchange.
(11) An issuer, redeemer, or cashier of travelers' checks, checks,
money orders, or similar instruments.
(12) An operator of a credit card system.
(13) An insurance company.
(14) A dealer in precious metals, stones, or jewels.
(15) A pawnbroker.
(16) A loan or finance company.
(17) A travel agency.
(18) A licensed sender of money or any other person who engages as
a business in the transmission of funds, including any person who
engages as a business in an informal money transfer system or any
network of people who engage as a business in facilitating the transfer
of money domestically or internationally outside of the conventional
financial institutions system.
(19) A telegraph company.
(20) A business engaged in vehicle sales, including automobile,
airplane, and boat sales.
(21) Persons involved in real estate closings and settlements.
(22) The United States Postal Service.
(23) An agency of the United States Government or of a State or
local government performing a duty or power of a business described in
this definition.
(24) A casino, gambling casino, or gaming establishment with an
annual gaming revenue of more than $1,000,000 which is licensed as a
casino, gambling casino, or gaming establishment under the laws of a
State or locality or is an Indian gaming operation conducted pursuant
to, and as authorized by, the Indian Gaming Regulatory Act.
(25) Any business or agency that engages in any activity which the
[[Page 5633]]
Secretary of the Treasury, by regulation determines to be an activity
in which any business described in this definition is authorized to
engage; or any other business designated by the Secretary of the
Treasury whose cash transactions have a high degree of usefulness in
criminal, tax, or regulatory matters.
(26) Any futures commission merchant, commodity trading advisor, or
commodity pool operator registered, or required to register, under the
Commodity Exchange Act that is located inside any State or territory of
the United States, the District of Columbia, Puerto Rico, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, or
the United States Virgin Islands.
(d) Financial Institution (other than for intelligence activity
purposes). Any office of a bank, savings bank, credit card issuer,
industrial loan company, trust company, savings association, building
and loan, or homestead association (including cooperative banks),
credit union, or consumer finance institution that is 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.
(e) Financial Record. An original, its copy, or information known
to have been derived from the original record held by a financial
institution that pertains to a customer's relationship with the
financial institution.
(f) Government Authority. Any agency or Department of the United
States, or any officer, employee, or agent thereof, to include DoD law
enforcement offices, personnel security elements, and/or intelligence
organizations.
(g) Intelligence Activities. The collection, production, and
dissemination of foreign intelligence and counterintelligence, to
include investigation or analyses related to international terrorism,
by DoD intelligence organizations.
(h) Intelligence Organizations. Any element of a DoD Component
authorized by the Secretary of Defense to conduct intelligence
activities.
(i) Law Enforcement Inquiry. A lawful investigation or official
proceeding that inquires into a violation of or failure to comply with
a criminal or civil statute, or any rule, regulation, or order issued
pursuant thereto.
(j) Law Enforcement Office. Any element of a DoD Component
authorized by the Head of the DoD Component conducting law enforcement
inquiries.
(k) Person. An individual or a partnership consisting of five or
fewer individuals.
(l) Personnel Security Element. Any element of a DoD Component
authorized by the Secretary of Defense conducting personnel security
investigations.
(m) Personnel Security Investigation. An investigation required for
determining a person's eligibility for access to classified
information, acceptance or retention in the Armed Forces, assignment or
retention in sensitive duties, or other designated duties requiring
such investigation. Personnel security investigations include
investigations conducted for the purpose of making personnel security
determinations. They also include investigations of allegations that
may arise subsequent to favorable adjudicative action and require
resolution to determine a person's current eligibility for access to
classified information or assignment or retention in a sensitive
position.
Sec. 275.4 Policy.
It is DoD policy that:
(a) Authorization of the customer to whom the financial records
pertain shall be sought unless doing so compromises or harmfully delays
either a legitimate law enforcement inquiry or a lawful intelligence
activity. If the person declines to consent to disclosure, the
alternative means of obtaining the records authorized by this part
shall be utilized.
(b) The provisions of 12 U.S.C. Chapter 35 do not govern obtaining
access to financial records maintained by military banking contractors
located outside the United States, the District of Columbia, Guam,
American Samoa, Puerto Rico, and the Virgin Islands. The guidance set
forth in Sec. 275.14 may be used to obtain financial information from
these contractor operated facilities.
Sec. 275.5 Responsibilities.
(a) The Director of Administration and Management, Office of the
Secretary of Defense shall:
(1) Exercise oversight to ensure compliance with this part.
(2) Provide policy guidance to affected DoD Components to implement
this part.
(b) The Secretaries of the Military Departments and the Heads of
the affected DoD Components shall:
(1) Implement policies and procedures to ensure implementation of
this part when seeking access to financial records.
(2) Adhere to the guidance and procedures contained in this part.
Sec. 275.6 Obtaining basic identifying account information.
(a) A DoD law enforcement office may issue a formal written request
for basic identifying account information to a financial institution
relevant to a legitimate law enforcement inquiry. A request may be
issued to a financial institution for any or all of the following
identifying data:
(1) Name.
(2) Address.
(3) Account number.
(4) Type of account of any customer or ascertainable group of
customers associated with a financial transaction or class of financial
transactions.
(b) The notice (Sec. 275.8(b)), challenge (Sec. 275.9(d)), and
transfer (Sec. 275.12(b)) requirements of this part shall not apply
when a Government authority is seeking only the above specified basic
identifying information concerning a customer's account.
(c) A format for obtaining basic identifying account information is
set forth in Appendix A to this part.
Sec. 275.7 Obtaining customer authorization.
(a) A DoD law enforcement office or personal security element
seeking access to a person's financial records shall, when feasible,
obtain the customer's consent.
(b) Any authorization obtained under paragraph (a) of this section,
shall:
(1) Be in writing, signed, and dated.
(2) Identify the particular financial records that are being
disclosed.
(3) State that the customer may revoke the authorization at any
time before disclosure.
(4) Specify the purposes for disclosure and to which Governmental
authority the records may be disclosed.
(5) Authorize the disclosure for a period not in excess of 3
months.
(6) Contain a ``Statement of Customer Rights'' as required by 12
U.S.C. Chapter 35 (see Appendix B to this part).
(7) Contain a Privacy Act Statement as required by 32 CFR part 310
for a personnel security investigation.
(c) Any customer's authorization not containing all of the elements
listed in paragraph (b) of this section, shall be void. A customer
authorization form, in a format set forth in Appendix B to this part,
shall be used for this purpose.
(d) A copy of the customer's authorization shall be made a part of
the law enforcement or personnel security file where the financial
records are maintained.
(e) A certificate of compliance stating that the applicable
requirements of 12 U.S.C. Chapter 35 have been met (Appendix E to this
part), along with the customer's authorization, shall be
[[Page 5634]]
provided to the financial institution as a prerequisite to obtaining
access to financial records.
Sec. 275.8 Obtaining access by administrative or judicial subpoena or
by formal written request.
(a) Access to information contained in financial records from a
financial institution may be obtained by Government authority when the
nature of the records is reasonably described and the records are
acquired by:
(1) Administrative Summons or Subpoena. (i) Within the Department
of Defense, the Inspector General, DoD, has the authority under the
Inspector General Act to issue administrative subpoenas for access to
financial records. No other DoD Component official may issue summons or
subpoenas for access to these records.
(ii) The Inspector General, DoD shall issue administrative
subpoenas for access to financial records in accordance with
established procedures but subject to the procedural requirements of
this section.
(2) Judicial Subpoena.
(3) Formal Written Request.
(i) Formal requests may only be used if an administrative summons
or subpoena is not reasonably available to obtain the financial
records.
(ii) A formal written request shall be in a format set forth in
Appendix C to this part and shall:
(A) State that the request is issued under 12 U.S.C. Chapter 35 and
the DoD Component's implementation of this part.
(B) Describe the specific records to be examined.
(C) State that access is sought in connection with a legitimate law
enforcement inquiry.
(D) Describe the nature of the inquiry.
(E) Be signed by the head of the law enforcement office or a
designee.
(b) A copy of the administrative or judicial subpoena or formal
request, along with a notice specifying the nature of the law
enforcement inquiry, shall be served on the person or mailed to the
person's last known mailing address on or before the subpoena is served
on the financial institution unless a delay of notice has been obtained
under Sec. 275.13.
(c) The notice to the customer shall be in a format similar to
Appendix D to this part and shall be personally served at least 10 days
or mailed at least 14 days prior to the date on which access is sought.
(d) The customer shall have 10 days to challenge a notice request
when personal service is made and 14 days when service is by mail.
(e) No access to financial records shall be attempted before the
expiration of the pertinent time period while awaiting receipt of a
potential customer challenge, or prior to the adjudication of any
challenge made.
(f) The official who signs the customer notice shall be designated
to receive any challenge from the customer.
(g) When a customer fails to file a challenge to access to
financial records within the above pertinent time periods, or after a
challenge is adjudicated in favor of the law enforcement office, the
head of the office, or a designee, shall certify in writing to the
financial institution that such office has complied with the
requirements of 12 U.S.C. Chapter 35. No access to any financial
records shall be made before such certification (Appendix E to this
part) is provided the financial institution.
Sec. 275.9 Obtaining access by search warrant.
(a) A Government authority may obtain financial records by using a
search warrant obtained under Rule 41 of the Federal Rules of Criminal
Procedure.
(b) Unless a delay of notice has been obtained under provisions of
Sec. 275.13, the law enforcement office shall, no later than 90 days
after serving the search warrant, mail to the customer's last known
address a copy of the search warrant together with the following
notice:
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were
obtained by this [DoD office or activity] on [date] for the
following purpose: [state purpose]. You may have rights under the
Right to Financial Privacy Act of 1978.
(c) In any state or territory of the United States, or in the
District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin
Islands, search authorizations signed by installation commanders,
military judges, or magistrates shall not be used to gain access to
financial records.
Sec. 275.10 Obtaining access for foreign intelligence, foreign
counterintelligence, and international terrorist activities or
investigations.
(a) Financial records may be obtained from a financial institution
(as identified at Sec. 275.3) by an intelligence organization, as
identified in DoD Directive 5240.1,\1\ authorized to conduct
intelligence activities, to include investigation or analyses related
to international terrorism, pursuant to DoD Directive 5240.1 and
Executive Order 12333.
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\1\ Copies may be obtained at https://www.dtic.mil/whs/
directives/.
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(b) The provisions of this part do not apply to the production and
disclosure of financial records when requests are submitted by
intelligence organizations except as may be required by this section.
(c) When a request for financial records is made under paragraph
(a) of this section, a Component official designated by the Secretary
of Defense, the Secretary of a Military Department, or the Head of the
DoD Component authorized to conduct foreign intelligence or foreign
counterintelligence activities shall certify to the financial
institution that the requesting Component has complied with the
provisions of 12 U.S.C. Chapter 35. Such certification in a format
similar to Sec. 275.13 to this part shall be made before obtaining any
records.
(d) An intelligence organization requesting financial records under
paragraph (a) of this section, may notify the financial institution
from which records are sought 12 U.S.C. 3414(3) prohibits disclosure to
any person by the institution, its agents, or employees that financial
records have been sought or obtained. An intelligence organization
requesting financial records under paragraph (a) of this section, shall
maintain an annual tabulation of the occasions.
(e) An intelligence organization requesting financial records under
paragraph (a) of this section, shall maintain an annual tabulation of
the occasions in which this access procedure was used.
Sec. 275.11 Obtaining emergency access.
(a) Except as provided in paragraphs (b) and (c) of this section,
nothing in this part shall apply to a request for financial records
from a financial institution when a determination is made that a delay
in obtaining access to such records would create an imminent danger of:
(1) Physical injury to any person.
(2) Serious property damage.
(3) Flight to avoid prosecution.
(b) When access is made to financial records under paragraph (a) of
this section, a Component official designated by the Secretary of
Defense or the Secretary of a Military Department shall:
(1) Certify in writing, in a format set forth in Appendix E to this
part, to the financial institution that the Component has complied with
the provisions of 12 U.S.C. Chapter 35, as a prerequisite to obtaining
access.
(2) Submit for filing with the appropriate court a signed sworn
statement setting forth the grounds for
[[Page 5635]]
the emergency access within 5 days of obtaining access to financial
records.
(c)(1) When access to financial records are obtained under
paragraph (a) of this section, a copy of the request, along with the
following notice, shall be served on the person or mailed to the
person's last known mailing address as soon as practicable after the
records have been obtained unless a delay of notice has been obtained
under Sec. 275.13.
Records concerning your transactions held by the financial
institution named in the attached request were obtained by [Agency
or Department] under the Right to Financial Privacy Act of 1978 on
[date] for the following purpose: [state with reasonable specificity
the nature of the law enforcement inquiry]. Emergency access to such
records was obtained on the grounds that [state grounds].
(2) Mailings under this paragraph shall be by certified or
registered mail.
Sec. 275.12 Releasing information obtained from financial
institutions.
(a) Financial records obtained under 12 U.S.C. Chapter 35 shall be
marked: ``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 without prior compliance with
the transferring requirements of 12 U.S.C. 3412.''
(b) Financial records obtained under this part shall not be
transferred to another Agency or Department outside the Department of
Defense unless the head of the transferring law enforcement office,
personnel security element, or intelligence organization, or designee,
certifies in writing that there is reason to believe that the records
are relevant to a legitimate law enforcement inquiry, or intelligence
or counterintelligence activity (to include investigation or analyses
related to international terrorism) within the jurisdiction of the
receiving Agency or Department. Such certificates shall be maintained
with the DoD Component along with a copy of the released records.
(c) Subject to paragraph (d) of this section, unless a delay of
customer notice has been obtained under Sec. 275.13, the law
enforcement office or personnel security element shall, within 14 days,
personally serve or mail to the customer, at his or her last known
address, a copy of the certificate required by paragraph (b) of this
section, along with the following notice:
Copies of or information contained in your financial records
lawfully in possession of [name of Component] have been furnished to
[name of Agency or Department] pursuant to the Right to Financial
Privacy Act of 1978 for the following purposes: [state the nature of
the law enforcement inquiry with reasonable specificity]. 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.
(d) If a request for release of information is from a Federal
Agency, as identified in E.O. 12333, authorized to conduct foreign
intelligence or foreign counterintelligence activities, the
transferring DoD Component shall release the information without
notifying the customer, unless permission to provide notification is
given in writing by the requesting Agency.
(e) Whenever financial data obtained under this part is
incorporated into a report of investigation or other correspondence;
precautions must be taken to ensure that:
(1) The reports or correspondence are not distributed outside the
Department of Defense except in compliance with paragraph (b) of this
section; and
(2) The report or other correspondence contains an appropriate
warning restriction on the first page or cover. Such a warning could
read as follows:
Some of the information contained herein (cite specific
paragraph) is financial record information which was obtained
pursuant to the Right to 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 Department of Defense except for those
purposes expressly authorized by Act.
Sec. 275.13 Procedures for delay of notice.
(a) The customer notice required when seeking an administrative
subpoena or summons (Sec. 275.8(b)), obtaining a search warrant (Sec.
275.9(b)), seeking a judicial subpoena (paragraph (b) to appendix C to
this part), making a formal written request (Sec. 275.8(b)), obtaining
emergency access (Sec. 275.11(c)), or transferring information (Sec.
275.12(c)) may be delayed for an initial period of 90 days and
successive periods of 90 days. The notice required when obtaining a
search warrant (Sec. 275.9(b)) may be delayed for a period of 180 days
and successive periods of 90 days. A delay of notice may only be made
by an order of an appropriate court if the presiding judge or
magistrate finds that:
(1) The investigation is within the lawful jurisdiction of the
Government authority seeking the records.
(2) There is reason to believe the records being sought are
relevant to a law enforcement inquiry.
(3) There is reason to believe that serving the notice will 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 paragraphs (a)(2)(i). through
(a)(2)(iv) of this section.
(b) When a delay of notice is appropriate, legal counsel shall be
consulted to obtain such a delay. Application for delays of notice
shall be made with reasonable specificity.
(c) Upon the expiration of a delay of notification obtained under
paragraph (a) of this section for a search warrant, the law enforcement
office obtaining such records shall mail to the customer a copy of the
search warrant, along with 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 department] 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 specificity]. You may have rights under the Right to
Financial Privacy Act of 1978.
(d) Upon the expiration of all other delays of notification
obtained under paragraph (a) of this section, the customer shall be
served with or mailed a copy of the legal process or formal request,
together with the following notice which shall state with reasonable
specificity the nature of the law enforcement inquiry.
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 ordering the
delay) under the Right to Financial Privacy Act of 1978 that such
notice might (state the reason). The purpose of the investigation or
official proceeding was (state the purpose).
Sec. 275.14 Obtaining access to financial records overseas.
(a) The provisions of 12 U.S.C. Chapter 35 do not govern obtaining
access to financial records maintained by military banking contractors
overseas or other financial institutions in offices located on DoD
installations outside the United States, the District of Columbia,
Guam, American Samoa, Puerto Rico, or the Virgin Islands.
[[Page 5636]]
(b) Access to financial records held by such contractors or
institutions is preferably obtained by customer authorization. However,
in those cases where it would not be appropriate to obtain this
authorization or where such authorization is refused and the financial
institution is not otherwise willing to provide access to its records:
(1) A law enforcement activity may seek access by the use of a
search authorization issued pursuant to established Component
procedures; Rule 315, Military Rules of Evidence (Part III, Manual for
Courts-Martial); and Article 46 of the Uniform Code of Military
Justice.
(2) An intelligence organization may seek access pursuant to
Procedure 7 of DoD 5240.1-R.
(3) Information obtained under this section shall be properly
identified as financial information and transferred only where an
official need-to-know exists. Failure to identify or limit access in
accordance with this paragraph does not render the information
inadmissible in courts-martial or other proceedings.
(4) Access to financial records maintained by all other financial
institutions overseas by law enforcement activities shall be in
accordance with the local foreign statutes or procedures governing such
access.
Appendix A to Part 275--Format for Obtaining Basic Identifying Account
Information
[Official Letterhead]
[Date]
Mr./Mrs. XXXXXXXXXX,
Chief Teller [as appropriate],
First National Bank,
Anywhere, VA 00000-0000,
Dear Mr./Mrs. XXXXXXXXXX: In connection with a legitimate law
enforcement inquiry and pursuant to section 3413(g) of the Right to
Financial Privacy Act of 1978, 12 U.S.C. 3401 et. seq., 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
financial transaction or class of financial transactions.]
I hereby certify, pursuant to section 3403(b) of the Right of
Financial Privacy Act of 1978, that the provisions of the Act have
been complied with as to this request for account information.
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 customer in connection with the
disclosure of the requested financial records.
[Official Signature Block]
Appendix B to Part 275--Format for Customer Authorization
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 the particular financial records] to [DoD Component]
for the following purpose(s): [Specify the purpose(s)].
I understand that the 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
three months from the date of my signature.
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
[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.
Authorization To Access Financial Records
You may be asked to authorize the financial institution to make
your financial records available to the Government. You may withhold
your authorization, and your authorization is not required as a
condition of doing business with any financial institution. If you
provide authorization, it can be revoked in writing at any time
before your records are disclosed. Furthermore, any authorization
you provide is effective for only three months, and your financial
institution must keep a record of the instances in which it
discloses your financial information.
Without Your Authorization
Without your authorization, a Federal Agency that wants to see
your financial records may do so ordinarily only by means of a
lawful administrative subpoena or summons, search warrant, judicial
subpoena, or formal written request 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 authorization.
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 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 that the transfer is proper and sends
a notice to you that your records have been sent to another Agency.
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:
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(Last Name, First Name, Middle Initial) Title
(Area Code) (Telephone number)
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(Component activity, Local Mailing Address)
Appendix C to Part 275--Format for Formal Written Request
[Official Letterhead]
[Date]
Mr./Mrs. XXXXXXXXXX,
President (as appropriate),
City National Bank and Trust Company,
Anytown, VA 00000-0000.
Dear Mr./Mrs. XXXXXXXXXXXXX: 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, 12 U.S.C. 3401 et
seq., and [cite Component's implementation of this Part], you are
requested to provide the following account information pertaining to
the subject:
[Describe the specific records to be examined]
The [DoD Component] is without 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 the expiration of the above mentioned time period and
absent 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
[[Page 5637]]
subject in connection with the disclosure of the requested financial
records.
[Official Signature Block]
Appendix D to Part 275--Format for Customer Notice for Administrative
or Judicial Subpoena or for a Formal Written Request
[Official Letterhead]
[Date]
Mr./Ms. XXXXX X. XXXX,
1500 N. Main Street,
Anytown, VA 00000-0000.
Dear Mr./Ms. XXXX: Information or records concerning your
transactions held by the financial institution named in the attached
[administrative subpoena or summons] [judicial subpoena] [request]
are being sought by the [Agency/Department] in accordance with the
Right to Financial Privacy Act of 1978, Title 12, United States
Code, section 3401 et seq., and [Component's implementing document],
for the following purpose(s):
[List the purpose(s)]
If you desire that such records or information not be made
available, you must:
1. Fill out the accompanying motion paper and sworn statement or
write one of your own, stating that you are the customer whose
records are being requested by the Government and either giving the
reasons you believe that the records are not relevant to the
legitimate law enforcement inquiry stated in this notice or any
other legal basis for objecting to the release of the records.
2. 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]
3. Serve the Government authority requesting the records by
mailing or delivering a copy of your motion and statement to: [Give
title and address].
4. Be prepared to come to court and present your position in
further detail.
5. 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 or 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.
[Signature],
[Name and title of official],
[DoD Component],
[Telephone].
Attachments--3
1. Copy of request
2. Motion papers
3. Sworn statement
Appendix E to Part 275--Format for Certificate of Compliance With the
Right to Financial Privacy Act of 1978
[Official Letterhead]
[Date]
Mr./Mrs. XXXXXXXXXX,
Manager,
Army Federal Credit Union,
Fort Anywhere, VA 00000-0000.
Dear Mr./Mrs. XXXXXXXXXX: I certify, pursuant to section 3403(b)
of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et
seq., that the applicable provisions of that statute have been
complied with as to the [Customer's authorization, administrative
subpoena or summons, search warrant, 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]
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.
[Official Signature Block]
Dated: January 27, 2006.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E6-1326 Filed 2-1-06; 8:45 am]
BILLING CODE 5001-06-P