On February 10, 2010, the Financial Crimes Enforcement Network (FinCEN), a bureau
of the U.S. Department of the Treasury, issued
new regulations to allow foreign law enforcement agencies, as well as state
and local law enforcement agencies, to obtain certain information from banks and
other “financial institutions,” as that term is defined by the Bank Secrecy Act
(BSA), concerning significant money laundering or terrorist financing
The regulations were issued under the authority of Section 314(a) of the USA
PATRIOT Act of 2001. Previously, only federal law enforcement agencies could
seek information under the “314(a) program.”
FinCEN’s expansion of the 314(a) program to include access for foreign law
enforcement agencies is a result of the United States’ treaty obligation under
the Agreement on Mutual Legal Assistance between the United States and the
European Union (U.S.-EU MLAT) and several bilateral agreements. Article 4 of the
U.S.-EU MLAT obligates a signatory to search for information possessed by
financial institutions within its territory that may be important to a criminal
investigation in a requesting signatory’s country.
By expanding the 314(a) program to include access for foreign law enforcement
agencies, the United States meets its treaty obligations and becomes eligible to
exercise reciprocal rights to access information in EU nations.
Importantly, each foreign agency request for information will be reviewed by
a U.S. law enforcement official to ensure that the matter is, in the case of
money laundering, significant and that the foreign agency has been unable to
locate the information through traditional means. State and local law
enforcement agencies will be required to satisfy those same conditions before
they can receive information under the expanded 314(a) program. Upon receiving
the request for information, the financial institution must search its records
to determine whether it maintains accounts for, or has engaged in transactions
with, specified individuals, entities or organizations.
The new regulations also provide that FinCEN may request directly, on its own
behalf and on behalf of other components of the Treasury Department, the same
type of information from financial institutions. FinCEN, which previously only
made such requests on behalf of federal law enforcement agencies, intends to use
information obtained from self-initiated requests to conduct anti-money
laundering (AML) analyses in order to uncover patterns of suspicious conduct.
Banks, credit unions, brokers and dealers in securities, money services
businesses, and any other entity defined by the BSA as a “financial institution”
should be prepared to receive requests for information pursuant to the
now-expanded 314(a) program. These businesses should use this opportunity to
ensure that they have a compliant AML program designed to detect and prevent
money laundering, including the designation of a BSA officer with responsibility
to, among other things, respond to 314(a) requests.
Government, Regulatory and Criminal Investigations Department
has attorneys with extensive experience with AML compliance and investigation
matters, as well as the defense of white collar criminal investigations. The
most valuable weapons a corporation and its officers and directors have against
potential AML issues are preparedness, responsiveness, and the deployment of a
robust compliance program designed to detect and prevent money laundering.
McGuireWoods is prepared to assist with everything from defending
investigations to conducting money laundering risk assessments, audits and
internal investigations, and designing and helping to implement overall and
AML-specific corporate compliance programs and training.