Imposition of Special Measure Against FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd., as a Financial Institution of Primary Money Laundering Concern, 74064-74067 [2015-30119]

Download as PDF 74064 Federal Register / Vol. 80, No. 228 / Friday, November 27, 2015 / Proposed Rules air traffic service routes, and reporting points. mstockstill on DSK4VPTVN1PROD with PROPOSALS The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class D airspace, Class E surface area airspace, Class E surface area airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface at Walla Walla Regional Airport, Walla Walla, WA. The Class E airspace area designated as an extension would extend from the 4.3-mile radius of Walla Walla Regional Airport to 7.5 miles southwest and 13.4 miles northeast of the airport. Class E airspace extending upward from 700 feet above the surface would be modified to an area 5.7 miles to the west, 16.5 miles to the southwest, 22.5 miles northeast and within a 13.4-mile radius of a point in space location east of Walla Walla Regional Airport. This action would also update the geographic coordinates of the airport for the Class D and E airspace areas listed above. Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order. Regulatory Notices and Analyses The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Environmental Review This proposal will be subject to an environmental analysis in accordance VerDate Sep<11>2014 16:45 Nov 25, 2015 Jkt 238001 with FAA Order 1050.1F, ‘‘Environmental Impacts: Policies and Procedures’’ prior to any FAA final regulatory action. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: ■ Paragraph 5000: Class D Airspace. * * * * * ANM WA D Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.) That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Walla Walla Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory. Paragraph 6002: Class E Airspace Designated as Surface Areas. * * * * * ANM WA E2 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.) That airspace extending upward from the surface within a 4.3-mile radius of Walla Walla Regional Airport. Paragraph 6004: Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area. * * * * Frm 00061 Fmt 4702 Sfmt 4702 * * * * * ANM WA E5 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.) Walla Walla Regional Airport, point in space coordinates (Lat. 46°03′27″ N., long.118°12′20″ W.) That airspace extending upward from 700 feet above the surface bounded by a line beginning at lat. 45°52′29″ N., long. 118°23′027″ W.; to lat. 45°49′51″ N., long. 118°26′02″ W.; to lat. 45°57′17″ N., long. 118°40′49″ W.; to lat. 46°10′22″ N., long. 118°27′48″ W.; to lat. 46°08′46″ N., long. 118°24′32″ W.; to lat. 46°14′38″ N., long. 118°18′44″ W.; to lat. 46°16′07″ N., long. 118°21′47″ W.; to lat. 46°29′20″ N., long. 118°08′35″ W.; to lat. 46°22′02″ N., long. 117°53′24″ W.; to lat. 46°14′25″ N., long. 118°01′11″ W.; and that airspace within a 13.4-mile radius of point in space coordinates at lat. 46°03′27″ N., long.118°12′20″ W., from the 052° bearing from the Walla Walla Regional Airport clockwise to the 198° bearing. Issued in Seattle, Washington, on November 10, 2015. Christopher Ramirez, Manager, Operations Support Group, Western Service Center. [FR Doc. 2015–29784 Filed 11–25–15; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF THE TREASURY Financial Crimes Enforcement Network 31 CFR Part 1010 RIN 1506–AB27 Imposition of Special Measure Against FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd., as a Financial Institution of Primary Money Laundering Concern Financial Crimes Enforcement Network (FinCEN), Treasury. ACTION: Proposed rule; re-opening of comment period and availability of supplemental information. AGENCY: On July 29, 2015, FinCEN issued a Final Rule imposing the fifth special measure against FBME Bank Ltd. (FBME), formerly known as the Federal Bank of the Middle East, Ltd., with an effective date of August 28, 2015. On August 27, 2015, the United States District Court for the District of Columbia granted FBME’s motion for a preliminary injunction and enjoined the SUMMARY: * ANM WA E4 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.) That airspace extending upward from the surface within 2.7 miles each side of the Walla Walla 215° bearing from the airport extending from the 4.3-mile radius of Walla Walla Regional Airport to 7.5 miles southwest of the airport, and within 4.1 miles PO 00000 each side of the Walla Walla 35° bearing from the airport extending from the 4.3-mile radius of Walla Walla Regional Airport to 13.4 miles northeast of the airport. Paragraph 6005: Class E Airspace Areas Extending Upward from 700 feet or More Above the Surface of the Earth. E:\FR\FM\27NOP1.SGM 27NOP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 228 / Friday, November 27, 2015 / Proposed Rules Final Rule from taking effect. On November 6, 2015, the Court granted the Government’s motion for voluntary remand to allow for further rulemaking proceedings. FinCEN is hereby reopening the Final Rule to solicit additional comment in connection with the rulemaking, particularly with respect to the unclassified, nonprotected documents that support the rulemaking and whether any alternatives to the prohibition of the opening or maintaining of correspondent accounts with FBME would effectively mitigate the risk to domestic financial institutions. DATES: Written comments on this document must be submitted on or before January 26, 2016. ADDRESSES: You may submit comments, identified by 1506–AB27, by any of the following methods: • Federal E-rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Include 1506–AB27 in the submission. • Mail: The Financial Crimes Enforcement Network, P.O. Box 39, Vienna, VA 22183. Include 1506–AB27 in the body of the text. Please submit comments by one method only. • Absent a sufficient showing that a submission warrants confidential treatment, comments submitted in response to this document will become a matter of public record. Therefore, you should generally only submit information that you wish to make publicly available. Inspection of comments: The public dockets for FinCEN can be found at www.Regulations.gov. Proposed and final rules published by FinCEN in the Federal Register are searchable by docket number, RIN, or document title, among other things, and the docket number, RIN, and title may be found at the beginning of the document. FinCEN uses the electronic, Internet-accessible dockets at Regulations.gov as their complete docket; all hard copies of materials that should be in the docket, including public comments, are electronically scanned and placed in the docket. In general, FinCEN will make all comments publicly available by posting them on http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: The FinCEN Resource Center at (800) 767– 2825. SUPPLEMENTARY INFORMATION: I. Regulatory Background On July 22, 2014, FinCEN published in the Federal Register a Notice of Finding (NOF) in which the Director of FinCEN explained that reasonable grounds exist for concluding that FBME VerDate Sep<11>2014 16:45 Nov 25, 2015 Jkt 238001 Bank Ltd. (FBME) is a financial institution of primary money laundering concern pursuant to Section 311 of the USA PATRIOT Act (Section 311),1 which is codified at 31 U.S.C. 5318A. FinCEN’s NOF identified two main areas of concern: (i) FBME’s facilitation of money laundering, terrorist financing, transnational organized crime, fraud schemes, sanctions evasion, weapons proliferation, corruption by politicallyexposed persons, and other financial crime; and (ii) FBME’s weak anti-money laundering controls, which allow its customers to perform a significant volume of obscured transactions and activities through the U.S. financial system. Simultaneously with the issuance of the NOF, FinCEN also published in the Federal Register a related Notice of Proposed Rulemaking (NPRM) proposing the imposition of the fifth special measure available under Section 311 against FBME.2 In particular, FinCEN proposed to prohibit covered U.S. financial institutions from opening or maintaining a correspondent account in the United States for, or on behalf of, FBME. On July 29, 2015, after considering comments from the public on these documents, and other information available to FinCEN, including both public and non-public reporting, FinCEN published in the Federal Register a Final Rule imposing the fifth special measure as proposed in the NPRM, with an effective date of August 28, 2015.3 FBME filed suit on August 7, 2015 in the United States District Court for the District of Columbia and sought a preliminary injunction against the Final Rule. On August 27, 2015, the Court granted the motion for preliminary injunction and enjoined the Final Rule from taking effect.4 In its order, the Court found that FBME was likely to succeed on the merits of two of its claims: (i) That FinCEN provided insufficient notice of unclassified, nonprotected information on which it relied during the rulemaking proceedings, and (ii) that FinCEN failed to adequately consider at least one potentially significant, viable, and obvious alternative to the special measure it imposed.5 On November 6, 2015, the Court granted FinCEN’s motion for voluntary remand so that FinCEN may engage in further rulemaking to address 1 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107–56. 2 79 FR 42486 (July 22, 2014) (RIN 1506–AB27). 3 80 FR 45057 (July 29, 2015) (RIN 1506–AB27). 4 FBME Bank Ltd. v. Lew, No. 1:15–cv–01270, 2015 WL 5081209 (D.D.C. Aug. 27, 2015). 5 Id. at *5. PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 74065 the procedural issues identified by the Court in enjoining the Final Rule. Accordingly, FinCEN is issuing this document to solicit additional comment regarding the Section 311 rulemaking related to FBME. In addition, FinCEN is making available for comment the unclassified, non-protected material that FinCEN relied upon and intends to rely upon during the rulemaking proceeding.6 That unclassified, nonprotected material is available at www.regulations.gov [Fincen–2014– 0007]. Those comments previously submitted in connection with the rulemaking need not be resubmitted, as FinCEN will consider all comments received to date. In addition, if FinCEN decides to consider any additional unclassified, non-protected material other than that provided in the comments, such information will be added to www.regulations.gov [Fincen– 2014–0007]. II. Proposed Imposition of the Fifth Special Measure On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107–56 (the USA PATRIOT Act). Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the Bank Secrecy Act (BSA), codified at 12 U.S.C. 1829b, 12 U.S.C. 1951–1959, and 31 U.S.C. 5311– 5314, 5316–5332, to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR chapter X. The authority of the Secretary of the Treasury to administer the BSA and its implementing regulations has been delegated to the Director of FinCEN. Section 311 of the USA PATRIOT Act grants the Director of FinCEN the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, foreign financial institution, class of transactions, or type of account is of ‘‘primary money laundering concern,’’ to require domestic financial institutions and financial agencies to take certain ‘‘special measures’’ to address the primary money laundering concern. The special measures enumerated under Section 311 are prophylactic safeguards 6 As previously disclosed in the litigation involving the Final Rule, FinCEN notes that it does not intend to rely on three documents that were originally included in its administrative record supporting the NOF and NPRM: Two were law enforcement sensitive documents and the other was mistakenly included. E:\FR\FM\27NOP1.SGM 27NOP1 74066 Federal Register / Vol. 80, No. 228 / Friday, November 27, 2015 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS that defend the U.S. financial system from money laundering and terrorist financing. FinCEN may impose one or more of these special measures in order to protect the U.S. financial system from these threats. To that end, special measures one through four, codified at 31 U.S.C. 5318A(b)(1–4), impose additional recordkeeping, information collection, and information reporting requirements on covered U.S. financial institutions. The fifth special measure, codified at 31 U.S.C. 5318A(b)(5), allows the Director to prohibit or impose conditions on the opening or maintaining of correspondent or payable-through accounts for the identified institution by U.S. financial institutions. Given FinCEN’s finding that FBME is of primary money laundering concern, in the Final Rule, FinCEN imposed the fifth special measure’s prohibition on the opening or maintaining of a correspondent account in the United States for FBME. In further evaluation of alternative measures pursuant to the Court’s November 6, 2015 opinion and order, FinCEN is reopening the Final Rule to solicit additional comment. First, FinCEN seeks comment on whether any of special measures one through four under Section 311 with respect to covered U.S. financial institutions’ activities involving FBME would be an effective alternative to mitigate the risk posed by FBME, as explained in the Notice of Finding. FinCEN also seeks comment on whether, pursuant to special measure five of Section 311, FinCEN should impose conditions, rather than a prohibition, on the opening or maintaining of correspondent accounts with FBME. III. Request for Comments FinCEN invites comments on all aspects of this rulemaking, including, but not limited to, the following: 1. The unclassified, non-protected information that FinCEN intends to rely upon during the rulemaking proceeding; 7 2. Whether any of special measures one through four under Section 311 with respect to covered U.S. financial institutions’ activities involving FBME would be an effective alternative to mitigate the risk posed by FBME as explained in the Notice of Finding; 3. Whether, pursuant to special measure five of Section 311, FinCEN 7 FinCEN anticipates that certain confidential business information (‘‘CBI’’) pertaining to FBME will not be made available. To the extent documents containing such CBI can be disclosed publicly in redacted form, they will be added to www.regulations.gov. VerDate Sep<11>2014 16:45 Nov 25, 2015 Jkt 238001 should impose conditions, rather than a prohibition, on the opening or maintaining of correspondent accounts with FBME as an effective alternative to mitigate the risk posed by FBME as explained in the Notice of Finding; and 4. Any material developments that have occurred with respect to FBME since the issuance of the NOF and NPRM on July 22, 2014, including whether reasonable grounds continue to exist for concluding that FBME is a primary money laundering concern. IV. Regulatory Flexibility Act When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to ‘‘prepare and make available for public comment an initial regulatory flexibility analysis’’ that will ‘‘describe the impact of the proposed rule on small entities.’’ (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. FinCEN previously provided information about the number and types of entities that would be affected by the earlier proposal to impose special measure five.8 FinCEN is restating that information in this document so that persons may comment on FinCEN’s proposed certification concerning whether the imposition of any of the special measures would have a significant economic impact on a substantial number of small entities. As explained in more detail, the limited number of foreign banking institutions with which FBME maintains or will maintain accounts will likely limit the number of affected covered financial institutions to the largest U.S. banks, which actively engage in international transactions. A. Estimate of the Number of Small Entities to Whom Any of Special Measures One Through Five Would Apply For purposes of the RFA, both banks and credit unions are considered small entities if they have less than $500,000,000 in assets.9 Of the estimated 7,000 banks, 80 percent have less than $500,000,000 in assets and are considered small entities.10 Of the 8 79 FR 42486, 42489 (July 22, 2014) and 80 FR 45057, 45063 (July 29, 2015). 9 Table of Small Business Size Standards Matched to North American Industry Classification System Codes, Small Business Administration Size Standards (SBA Jan. 22, 2014) [hereinafter SBA Size Standards]. 10 Federal Deposit Insurance Corporation, Find an Institution, http://www2.fdic.gov/idasp/main.asp; PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 estimated 7,000 credit unions, 94 percent have less than $500,000,000 in assets.11 Broker-dealers are defined in 31 CFR 1010.100(h) as those broker-dealers required to register with the Securities and Exchange Commission (SEC). Because FinCEN and the SEC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the SEC’s definition of small business as previously submitted to the Small Business Administration (SBA). The SEC has defined the term ‘‘small entity’’ to mean a broker or dealer that: (a) Had total capital (net worth plus subordinated liabilities) of less than $500,000 on the date in the prior fiscal year as of which its audited financial statements, were prepared pursuant to Rule 17a–5(d) or, if not required to file such statements, a broker or dealer that had total capital (net worth plus subordinated debt) of less than $500,000 on the last business day of the preceding fiscal year (or in the time that it has been in business if shorter); and (b) is not affiliated with any person (other than a natural person) that is not a small business or small organization as defined in this release.12 Based on SEC estimates, 17 percent of broker-dealers are classified as ‘‘small’’ entities for purposes of the RFA.13 Futures commission merchants (FCMs) are defined in 31 CFR 1010.100(x) as those FCMs that are registered or required to be registered as a FCM with the Commodity Futures Trading Commission (CFTC) under the Commodity Exchange Act (CEA), except persons who register pursuant to section 4f(a)(2) of the CEA, 7 U.S.C. 6f(a)(2). Because FinCEN and the CFTC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the CFTC’s definition of small business as previously submitted to the SBA. In the CFTC’s ‘‘Policy Statement and Establishment of Definitions of ‘Small Entities’ for Purposes of the Regulatory Flexibility Act,’’ the CFTC concluded that registered FCMs should not be considered to be small entities for purposes of the RFA.14 The CFTC’s determination in this regard was based, in part, upon the obligation of registered select Size or Performance: Total Assets, type Equal or less than $: ‘‘500000’’ and select Find. 11 National Credit Union Administration, Credit Union Data, http://webapps.ncua.gov/customquery/ select Search Fields: Total Assets, select Operator: Less than or equal to, type Field Values: ‘‘500000000’’ and select Go. 12 17 CFR 240.0–10(c). 13 76 FR 37572, 37602 (June 27, 2011) (the SEC estimates 871 small broker-dealers of the 5,063 total registered broker-dealers). 14 47 FR 18618, 18619 (Apr. 30, 1982). E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 80, No. 228 / Friday, November 27, 2015 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS FCMs to meet the capital requirements established by the CFTC. For purposes of the RFA, an introducing broker-commodities dealer is considered small if it has less than $35,500,000 in gross receipts annually.15 Based on information provided by the National Futures Association (NFA), 95 percent of introducing brokers-commodities dealers have less than $35.5 million in Adjusted Net Capital and are considered to be small entities. Mutual funds are defined in 31 CFR 1010.100(gg) as those investment companies that are open-end investment companies that are registered or are required to register with the SEC. Because FinCEN and the SEC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the SEC’s definition of small business as previously submitted to the SBA. The SEC has defined the term ‘‘small entity’’ under the Investment Company Act to mean an investment company that, together with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.16 Based on SEC estimates, 7 percent of mutual funds are classified as ‘‘small entities’’ for purposes of the RFA under this definition.17 B. Special Measures One Through Five As noted above, 80 percent of banks, 94 percent of credit unions, 17 percent of broker-dealers, 95 percent of introducing brokers-commodities, zero FCMs, and 7 percent of mutual funds are small entities. The limited number of foreign banking institutions with which FBME maintains or will maintain accounts will likely limit the number of affected covered financial institutions to the largest U.S. banks, which actively engage in international transactions. Thus, the imposition of the recordkeeping, information collection, or reporting provisions in any of special measures one through four would not impact a substantial number of small entities. Similarly, the imposition of the prohibition on maintaining correspondent accounts for foreign banking institutions that engage in transactions involving FBME under the fifth special measure, together with related notice and special due diligence, would not impact a substantial number of small entities. Finally, imposing conditions on the opening or maintenance of such a correspondent 15 SBA Size Standards at 28. CFR 270.0–10. 17 78 FR 23637, 23658 (April 19, 2013). 16 17 VerDate Sep<11>2014 16:45 Nov 25, 2015 Jkt 238001 account under special measure five would not impact a substantial number of small entities. C. Certification For these reasons, FinCEN certifies that the proposals contained in this rulemaking would not have a significant impact on a substantial number of small businesses. FinCEN invites comments from members of the public who believe there would be a significant economic impact on small entities from the imposition of any of special measures one through five. Jamal El-Hindi, Deputy Director, Financial Crimes Enforcement Network. [FR Doc. 2015–30119 Filed 11–25–15; 8:45 am] BILLING CODE 4810–02–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2015–0686; FRL– 9939–37– Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision to the Definition of Volatile Organic Compound Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia for the purpose of revising the definition of volatile organic compound (VOC). In the Final Rules section of this Federal Register, EPA is approving the State’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by December 28, 2015. SUMMARY: PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 74067 Submit your comments, identified by Docket ID Number EPA– R03–OAR–2015–0686 by one of the following methods: A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. Email: fernandez.cristina@epa.gov. C. Mail: EPA–R03–OAR–2015–0686, Cristina Fernandez, Associate Director, Office of Air Program Planning, Air Protection Division, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previouslylisted EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2015– 0686. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, ADDRESSES: E:\FR\FM\27NOP1.SGM 27NOP1

Agencies

[Federal Register Volume 80, Number 228 (Friday, November 27, 2015)]
[Proposed Rules]
[Pages 74064-74067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30119]


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DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement Network

31 CFR Part 1010

RIN 1506-AB27


Imposition of Special Measure Against FBME Bank Ltd., Formerly 
Known as the Federal Bank of the Middle East Ltd., as a Financial 
Institution of Primary Money Laundering Concern

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

ACTION: Proposed rule; re-opening of comment period and availability of 
supplemental information.

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SUMMARY: On July 29, 2015, FinCEN issued a Final Rule imposing the 
fifth special measure against FBME Bank Ltd. (FBME), formerly known as 
the Federal Bank of the Middle East, Ltd., with an effective date of 
August 28, 2015. On August 27, 2015, the United States District Court 
for the District of Columbia granted FBME's motion for a preliminary 
injunction and enjoined the

[[Page 74065]]

Final Rule from taking effect. On November 6, 2015, the Court granted 
the Government's motion for voluntary remand to allow for further 
rulemaking proceedings. FinCEN is hereby re-opening the Final Rule to 
solicit additional comment in connection with the rulemaking, 
particularly with respect to the unclassified, non-protected documents 
that support the rulemaking and whether any alternatives to the 
prohibition of the opening or maintaining of correspondent accounts 
with FBME would effectively mitigate the risk to domestic financial 
institutions.

DATES: Written comments on this document must be submitted on or before 
January 26, 2016.

ADDRESSES: You may submit comments, identified by 1506-AB27, by any of 
the following methods:
     Federal E-rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Include 1506-AB27 in 
the submission.
     Mail: The Financial Crimes Enforcement Network, P.O. Box 
39, Vienna, VA 22183. Include 1506-AB27 in the body of the text. Please 
submit comments by one method only.
     Absent a sufficient showing that a submission warrants 
confidential treatment, comments submitted in response to this document 
will become a matter of public record. Therefore, you should generally 
only submit information that you wish to make publicly available.
    Inspection of comments: The public dockets for FinCEN can be found 
at www.Regulations.gov. Proposed and final rules published by FinCEN in 
the Federal Register are searchable by docket number, RIN, or document 
title, among other things, and the docket number, RIN, and title may be 
found at the beginning of the document. FinCEN uses the electronic, 
Internet-accessible dockets at Regulations.gov as their complete 
docket; all hard copies of materials that should be in the docket, 
including public comments, are electronically scanned and placed in the 
docket. In general, FinCEN will make all comments publicly available by 
posting them on http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: The FinCEN Resource Center at (800) 
767-2825.

SUPPLEMENTARY INFORMATION: 

I. Regulatory Background

    On July 22, 2014, FinCEN published in the Federal Register a Notice 
of Finding (NOF) in which the Director of FinCEN explained that 
reasonable grounds exist for concluding that FBME Bank Ltd. (FBME) is a 
financial institution of primary money laundering concern pursuant to 
Section 311 of the USA PATRIOT Act (Section 311),\1\ which is codified 
at 31 U.S.C. 5318A. FinCEN's NOF identified two main areas of concern: 
(i) FBME's facilitation of money laundering, terrorist financing, 
transnational organized crime, fraud schemes, sanctions evasion, 
weapons proliferation, corruption by politically-exposed persons, and 
other financial crime; and (ii) FBME's weak anti-money laundering 
controls, which allow its customers to perform a significant volume of 
obscured transactions and activities through the U.S. financial system. 
Simultaneously with the issuance of the NOF, FinCEN also published in 
the Federal Register a related Notice of Proposed Rulemaking (NPRM) 
proposing the imposition of the fifth special measure available under 
Section 311 against FBME.\2\ In particular, FinCEN proposed to prohibit 
covered U.S. financial institutions from opening or maintaining a 
correspondent account in the United States for, or on behalf of, FBME. 
On July 29, 2015, after considering comments from the public on these 
documents, and other information available to FinCEN, including both 
public and non-public reporting, FinCEN published in the Federal 
Register a Final Rule imposing the fifth special measure as proposed in 
the NPRM, with an effective date of August 28, 2015.\3\
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    \1\ Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism Act of 2001, 
Public Law 107-56.
    \2\ 79 FR 42486 (July 22, 2014) (RIN 1506-AB27).
    \3\ 80 FR 45057 (July 29, 2015) (RIN 1506-AB27).
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    FBME filed suit on August 7, 2015 in the United States District 
Court for the District of Columbia and sought a preliminary injunction 
against the Final Rule. On August 27, 2015, the Court granted the 
motion for preliminary injunction and enjoined the Final Rule from 
taking effect.\4\ In its order, the Court found that FBME was likely to 
succeed on the merits of two of its claims: (i) That FinCEN provided 
insufficient notice of unclassified, non-protected information on which 
it relied during the rulemaking proceedings, and (ii) that FinCEN 
failed to adequately consider at least one potentially significant, 
viable, and obvious alternative to the special measure it imposed.\5\ 
On November 6, 2015, the Court granted FinCEN's motion for voluntary 
remand so that FinCEN may engage in further rulemaking to address the 
procedural issues identified by the Court in enjoining the Final Rule. 
Accordingly, FinCEN is issuing this document to solicit additional 
comment regarding the Section 311 rulemaking related to FBME. In 
addition, FinCEN is making available for comment the unclassified, non-
protected material that FinCEN relied upon and intends to rely upon 
during the rulemaking proceeding.\6\ That unclassified, non-protected 
material is available at www.regulations.gov [Fincen-2014-0007]. Those 
comments previously submitted in connection with the rulemaking need 
not be resubmitted, as FinCEN will consider all comments received to 
date. In addition, if FinCEN decides to consider any additional 
unclassified, non-protected material other than that provided in the 
comments, such information will be added to www.regulations.gov 
[Fincen-2014-0007].
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    \4\ FBME Bank Ltd. v. Lew, No. 1:15-cv-01270, 2015 WL 5081209 
(D.D.C. Aug. 27, 2015).
    \5\ Id. at *5.
    \6\ As previously disclosed in the litigation involving the 
Final Rule, FinCEN notes that it does not intend to rely on three 
documents that were originally included in its administrative record 
supporting the NOF and NPRM: Two were law enforcement sensitive 
documents and the other was mistakenly included.
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II. Proposed Imposition of the Fifth Special Measure

    On October 26, 2001, the President signed into law the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the 
USA PATRIOT Act). Title III of the USA PATRIOT Act amends the anti-
money laundering provisions of the Bank Secrecy Act (BSA), codified at 
12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314, 5316-
5332, to promote the prevention, detection, and prosecution of 
international money laundering and the financing of terrorism. 
Regulations implementing the BSA appear at 31 CFR chapter X. The 
authority of the Secretary of the Treasury to administer the BSA and 
its implementing regulations has been delegated to the Director of 
FinCEN.
    Section 311 of the USA PATRIOT Act grants the Director of FinCEN 
the authority, upon finding that reasonable grounds exist for 
concluding that a foreign jurisdiction, foreign financial institution, 
class of transactions, or type of account is of ``primary money 
laundering concern,'' to require domestic financial institutions and 
financial agencies to take certain ``special measures'' to address the 
primary money laundering concern. The special measures enumerated under 
Section 311 are prophylactic safeguards

[[Page 74066]]

that defend the U.S. financial system from money laundering and 
terrorist financing. FinCEN may impose one or more of these special 
measures in order to protect the U.S. financial system from these 
threats. To that end, special measures one through four, codified at 31 
U.S.C. 5318A(b)(1-4), impose additional recordkeeping, information 
collection, and information reporting requirements on covered U.S. 
financial institutions. The fifth special measure, codified at 31 
U.S.C. 5318A(b)(5), allows the Director to prohibit or impose 
conditions on the opening or maintaining of correspondent or payable-
through accounts for the identified institution by U.S. financial 
institutions.
    Given FinCEN's finding that FBME is of primary money laundering 
concern, in the Final Rule, FinCEN imposed the fifth special measure's 
prohibition on the opening or maintaining of a correspondent account in 
the United States for FBME. In further evaluation of alternative 
measures pursuant to the Court's November 6, 2015 opinion and order, 
FinCEN is reopening the Final Rule to solicit additional comment. 
First, FinCEN seeks comment on whether any of special measures one 
through four under Section 311 with respect to covered U.S. financial 
institutions' activities involving FBME would be an effective 
alternative to mitigate the risk posed by FBME, as explained in the 
Notice of Finding. FinCEN also seeks comment on whether, pursuant to 
special measure five of Section 311, FinCEN should impose conditions, 
rather than a prohibition, on the opening or maintaining of 
correspondent accounts with FBME.

III. Request for Comments

    FinCEN invites comments on all aspects of this rulemaking, 
including, but not limited to, the following:
    1. The unclassified, non-protected information that FinCEN intends 
to rely upon during the rulemaking proceeding; \7\
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    \7\ FinCEN anticipates that certain confidential business 
information (``CBI'') pertaining to FBME will not be made available. 
To the extent documents containing such CBI can be disclosed 
publicly in redacted form, they will be added to 
www.regulations.gov.
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    2. Whether any of special measures one through four under Section 
311 with respect to covered U.S. financial institutions' activities 
involving FBME would be an effective alternative to mitigate the risk 
posed by FBME as explained in the Notice of Finding;
    3. Whether, pursuant to special measure five of Section 311, FinCEN 
should impose conditions, rather than a prohibition, on the opening or 
maintaining of correspondent accounts with FBME as an effective 
alternative to mitigate the risk posed by FBME as explained in the 
Notice of Finding; and
    4. Any material developments that have occurred with respect to 
FBME since the issuance of the NOF and NPRM on July 22, 2014, including 
whether reasonable grounds continue to exist for concluding that FBME 
is a primary money laundering concern.

IV. Regulatory Flexibility Act

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' that will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an 
agency to certify a rule, in lieu of preparing an analysis, if the 
proposed rulemaking is not expected to have a significant economic 
impact on a substantial number of small entities. FinCEN previously 
provided information about the number and types of entities that would 
be affected by the earlier proposal to impose special measure five.\8\ 
FinCEN is restating that information in this document so that persons 
may comment on FinCEN's proposed certification concerning whether the 
imposition of any of the special measures would have a significant 
economic impact on a substantial number of small entities. As explained 
in more detail, the limited number of foreign banking institutions with 
which FBME maintains or will maintain accounts will likely limit the 
number of affected covered financial institutions to the largest U.S. 
banks, which actively engage in international transactions.
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    \8\ 79 FR 42486, 42489 (July 22, 2014) and 80 FR 45057, 45063 
(July 29, 2015).
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A. Estimate of the Number of Small Entities to Whom Any of Special 
Measures One Through Five Would Apply

    For purposes of the RFA, both banks and credit unions are 
considered small entities if they have less than $500,000,000 in 
assets.\9\ Of the estimated 7,000 banks, 80 percent have less than 
$500,000,000 in assets and are considered small entities.\10\ Of the 
estimated 7,000 credit unions, 94 percent have less than $500,000,000 
in assets.\11\
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    \9\ Table of Small Business Size Standards Matched to North 
American Industry Classification System Codes, Small Business 
Administration Size Standards (SBA Jan. 22, 2014) [hereinafter SBA 
Size Standards].
    \10\ Federal Deposit Insurance Corporation, Find an Institution, 
http://www2.fdic.gov/idasp/main.asp; select Size or Performance: 
Total Assets, type Equal or less than $: ``500000'' and select Find.
    \11\ National Credit Union Administration, Credit Union Data, 
http://webapps.ncua.gov/customquery/ select Search Fields: Total 
Assets, select Operator: Less than or equal to, type Field Values: 
``500000000'' and select Go.
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    Broker-dealers are defined in 31 CFR 1010.100(h) as those broker-
dealers required to register with the Securities and Exchange 
Commission (SEC). Because FinCEN and the SEC regulate substantially the 
same population, for the purposes of the RFA, FinCEN relies on the 
SEC's definition of small business as previously submitted to the Small 
Business Administration (SBA). The SEC has defined the term ``small 
entity'' to mean a broker or dealer that: (a) Had total capital (net 
worth plus subordinated liabilities) of less than $500,000 on the date 
in the prior fiscal year as of which its audited financial statements, 
were prepared pursuant to Rule 17a-5(d) or, if not required to file 
such statements, a broker or dealer that had total capital (net worth 
plus subordinated debt) of less than $500,000 on the last business day 
of the preceding fiscal year (or in the time that it has been in 
business if shorter); and (b) is not affiliated with any person (other 
than a natural person) that is not a small business or small 
organization as defined in this release.\12\ Based on SEC estimates, 17 
percent of broker-dealers are classified as ``small'' entities for 
purposes of the RFA.\13\
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    \12\ 17 CFR 240.0-10(c).
    \13\ 76 FR 37572, 37602 (June 27, 2011) (the SEC estimates 871 
small broker-dealers of the 5,063 total registered broker-dealers).
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    Futures commission merchants (FCMs) are defined in 31 CFR 
1010.100(x) as those FCMs that are registered or required to be 
registered as a FCM with the Commodity Futures Trading Commission 
(CFTC) under the Commodity Exchange Act (CEA), except persons who 
register pursuant to section 4f(a)(2) of the CEA, 7 U.S.C. 6f(a)(2). 
Because FinCEN and the CFTC regulate substantially the same population, 
for the purposes of the RFA, FinCEN relies on the CFTC's definition of 
small business as previously submitted to the SBA. In the CFTC's 
``Policy Statement and Establishment of Definitions of `Small Entities' 
for Purposes of the Regulatory Flexibility Act,'' the CFTC concluded 
that registered FCMs should not be considered to be small entities for 
purposes of the RFA.\14\ The CFTC's determination in this regard was 
based, in part, upon the obligation of registered

[[Page 74067]]

FCMs to meet the capital requirements established by the CFTC.
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    \14\ 47 FR 18618, 18619 (Apr. 30, 1982).
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    For purposes of the RFA, an introducing broker-commodities dealer 
is considered small if it has less than $35,500,000 in gross receipts 
annually.\15\ Based on information provided by the National Futures 
Association (NFA), 95 percent of introducing brokers-commodities 
dealers have less than $35.5 million in Adjusted Net Capital and are 
considered to be small entities.
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    \15\ SBA Size Standards at 28.
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    Mutual funds are defined in 31 CFR 1010.100(gg) as those investment 
companies that are open-end investment companies that are registered or 
are required to register with the SEC. Because FinCEN and the SEC 
regulate substantially the same population, for the purposes of the 
RFA, FinCEN relies on the SEC's definition of small business as 
previously submitted to the SBA. The SEC has defined the term ``small 
entity'' under the Investment Company Act to mean an investment company 
that, together with other investment companies in the same group of 
related investment companies, has net assets of $50 million or less as 
of the end of its most recent fiscal year.\16\ Based on SEC estimates, 
7 percent of mutual funds are classified as ``small entities'' for 
purposes of the RFA under this definition.\17\
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    \16\ 17 CFR 270.0-10.
    \17\ 78 FR 23637, 23658 (April 19, 2013).
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B. Special Measures One Through Five

    As noted above, 80 percent of banks, 94 percent of credit unions, 
17 percent of broker-dealers, 95 percent of introducing brokers-
commodities, zero FCMs, and 7 percent of mutual funds are small 
entities. The limited number of foreign banking institutions with which 
FBME maintains or will maintain accounts will likely limit the number 
of affected covered financial institutions to the largest U.S. banks, 
which actively engage in international transactions. Thus, the 
imposition of the recordkeeping, information collection, or reporting 
provisions in any of special measures one through four would not impact 
a substantial number of small entities. Similarly, the imposition of 
the prohibition on maintaining correspondent accounts for foreign 
banking institutions that engage in transactions involving FBME under 
the fifth special measure, together with related notice and special due 
diligence, would not impact a substantial number of small entities. 
Finally, imposing conditions on the opening or maintenance of such a 
correspondent account under special measure five would not impact a 
substantial number of small entities.

C. Certification

    For these reasons, FinCEN certifies that the proposals contained in 
this rulemaking would not have a significant impact on a substantial 
number of small businesses.
    FinCEN invites comments from members of the public who believe 
there would be a significant economic impact on small entities from the 
imposition of any of special measures one through five.

Jamal El-Hindi,
Deputy Director, Financial Crimes Enforcement Network.
[FR Doc. 2015-30119 Filed 11-25-15; 8:45 am]
BILLING CODE 4810-02-P