TANNENBAUM HELPERN SYRACUSE & HIRSCHTRITT LLP MEMORANDUM

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1 TANNENBAUM HELPERN SYRACUSE & HIRSCHTRITT LLP MEMORANDUM USA PATRIOT Act Update Memorandum: U.S. Treasury Releases Interim Final Rule to Provide Guidance and Clarification on Compliance with Section On July 19, 2002, the U.S. Department of Treasury (the U.S. Treasury ) and the U.S. Treasury s Financial Crimes Enforcement Network ( FinCEN ) jointly issued an interim final rule 2 that temporarily defers compliance with Section 312 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the USA PATRIOT Act ) 3 for certain financial institutions. 4 Moreover, the Interim Final Rule provides guidance for compliance with Section 312 for those financial institutions (banks, broker-dealers, FCMs, and IBs) that are required to comply with Section 312 until such final rules are issued. 5 For banks, broker-dealers, FCMs, and IBs, the effective date of compliance with Section 312 is July 23, By Roderick J. Cruz. Roderick J. Cruz is an associate in the financial services, capital markets and derivatives practice group. This memorandum (the Memorandum ) provides general information on the subject matter described, and it should not be relied on for legal advice on any matter, which may turn on specific facts. You should seek specific legal advice before acting with regard to the subjects treated here. 2 See Treasury Issues Guidance on the USA PATRIOT Act, Pending Issuance of Final Rule PO-3270 (July 19, 2002); Financial Crimes Enforcement Network; Anti-Money Laundering Programs (interim final rule); Special Due Diligence Programs for Certain Foreign Accounts, 31 C.F.R , Special Due Diligence Programs for Banks, Savings Associations, and Credit Unions; 31 C.F.R , Special Due Diligence Programs for Securities Brokers and Dealers, Futures Commission Merchants, and Introducing Brokers; 31 C.F.R , Deferred Due Diligence Programs for Other Financial Institutions (referred to collectively as the Interim Final Rule ). 3 Pub. L (2001). 4 Under the proposed rules implementing Section 312, the U.S. Treasury originally proposed that the following financial institutions would be required to comply with Section 312: (i) insured banks; (ii) a commercial banks; (iii) agency or branch of foreign banks in the United States; (iv) federally insured credit unions; (v) thrift institutions; (vi) corporations acting under section 25A of the Federal Reserve Act; (vii) brokers or dealers registered, or required to be registered, with the Securities Exchange Commission (the SEC ) under the Securities Exchange Act of 1934, as amended; (viii) futures commission merchants ( FCMs ) registered, or required to registered under the Commodity Exchange Act (the CEA ) and introducing brokers ( IBs ) registered, or required to registered under the CEA; (ix) casinos; (x) mutual funds; (xi) money services businesses; and (xii) operators of a credit card system. See 31 C.F.R (d)(1)(i)-(xii). 5 The U.S. Treasury cautioned financial institutions that the interim compliance measures set forth in the [Interim Final Rule] should not be construed as an indication of the obligations that will be imposed by the final rule. See U.S. Treasury and FinCEN commentary to Interim Final Rule Tannenbaum Helpern Syracuse & Hirschtritt LLP.

2 1. General Requirements Under Section 312 as Originally Proposed As proposed, Section 312 would require U.S. financial institutions to establish due diligence policies, procedures and controls reasonably designed to detect and report money laundering through correspondent accounts 6 and private banking accounts 7 that U.S. financial institutions establish or maintain for foreign financial institutions and non- U.S. persons, respectively. 8 In instances when a foreign customer poses a high risk, a U.S. financial institution would be required to conduct enhanced due diligence Who Must Now Comply with Section 312 Originally, fourteen categories of U.S. financial institutions would have been required to comply with rules implementing Section 312 of the USA PATRIOT Act. 10 Under the Interim Final Rule implementing Section 312, the U.S. Treasury has designated the following four categories of financial institutions as having to comply with Section 312: (i) Banks 11 ; (ii) Securities brokers and dealers (registered or required to register with the SEC); (iii) FCMs (registered or required to register with the CFTC); and (iv) IBs (registered or required to register with the CFTC) Correspondent account is defined to mean an account established to receive deposits from, make payments on behalf of a foreign financial institution, or handle other financial transactions related to such institution. 31 C.F.R (c)(1). 7 Private banking account is defined to mean an account that (i) requires a minimum aggregate amount of funds or other assets of not less than U.S.$ 1 million; (ii) is established on behalf of or for the benefit of one or more individuals who have a direct or beneficial ownership interest in the account; and (iii) is assigned to or is administered or managed by the covered financial institution. 31 C.F.R (n). 8 See THSH USA PATRIOT Act Update Memorandum: Proposed Regulation to Implement Section 312; Best Practices Identified by the SEC (discussing the due diligence to conduct with respect to correspondent accounts and private banking accounts, respectively). 9 See e.g. 31 C.F.R (b)-(c) (enhanced due diligence for foreign banks); 31 C.F.R (c) (enhanced due diligence for senior foreign political figures). 10 See supra note The term banks includes an insured bank (as defined in section 3(h) of the Federal Deposit Insurance Act (12 U.S.C. 1813(h)); a commercial bank; an agency or branch of a foreign bank in the United States; a federally insured credit union; a thrift institution; and a corporation acting under section 25A of the Federal Reserve Act (12 U.S.C. 611 et seq). See U.S. Treasury and FinCEN commentary to Interim Final Rule. 12 See U.S. Treasury and FinCEN commentary to Interim Final Rule. Accordingly, the following financial institutions that were originally required to implement due diligence programs pursuant to Section 312 of the USA PATRIOT Act are now deferred from compliance: casinos, mutual funds, money services businesses, and operators of a credit card system. See 31 C.F.R (a); 31 C.F.R (d)(1). Furthermore, the deferral from compliance with Section 312 continue to apply to: dealers in precious metals, stones or jewels; pawnbrokers; loan or finance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons involved in real estate closings and settlements private bankers; insurance companies; commodity pool operators ( CPOs ); commodity trading advisors ( CTAs ); and investment companies other than mutual funds. See 31 C.F.R (a); U.S. Treasury and FinCEN commentary to Interim Final Rule, note 7. 2

3 3. Extent of Compliance under Section 312 What is Required For Now A. Banks Banks must conduct due diligence on both correspondence accounts and private banking accounts established, maintained, administered, or managed in the United States. 13 However, rather than list specific procedures for banks to implement, the U.S. Treasury and FinCEN currently require banks to adopt best practices standards discussed in releases issued by industry associations. Therefore, for correspondent accounts, in the interim, a bank should adopt the Guidelines for Counter Money Laundering Policies and Procedures in Correspondent Banking, issued by the New York Clearing House Association, L.L.C. and Customer Due Diligence for Banks, issued by the Basel Committee on Banking Supervision. 14 For private banking accounts, in the interim, a bank should adopt the Private Banking Activities issued by the U.S. Federal Reserve, the Guidance on Enhanced Scrutiny for Transactions that May Involve the Proceeds of Foreign Official Corruption issued by the U.S. Federal Reserve, and the Global Anti- Money Laundering Guidelines for Private Banking: Wolfsberg AML Principles issued by the Wolfsberg Group. 15 B. Broker-dealers, FCMs, and IBs Broker-dealers, FCMs, and IBs are required to conduct due diligence on only private banking accounts. 16 However, rather than list specific procedures for broker-dealers, FCMs and IBs to implement, the U.S. Treasury and FinCEN currently require brokerdealers, FCMs and IBs to adopt best practices standards for private banking accounts discussed in releases issued by industry associations. Therefore, for private banking accounts, a broker-dealer, FCM or IB likewise should adopt the Private Banking Activities issued by the U.S. Federal Reserve, the Guidance on Enhanced Scrutiny for Transactions that May Involve the Proceeds of Foreign Official Corruption issued by the 13 See 31 CFR New York Clearing House Association, L.L.C., Guidelines for Counter Money Laundering Policies and Procedures in Correspondent Banking (March 2002) available at < and the Basel Committee on Banking Supervision, Customer Due Diligence for Banks (October 2001) available at < See U.S. Treasury and FinCEN commentary to Interim Final Rule, note Federal Reserve (SR (SUP)), Private Banking Activities (June 30, 1997) available at < Federal Reserve (SR SUP)), Guidance on Enhanced Scrutiny for Transactions that May Involve the Proceeds of Foreign Official Corruption (January 16, 2001) available at < and Wolfsberg Group, Global Anti-Money Laundering Guidelines for Private Banking: Wolfsberg AML Principles (1 st Revision May 2002) available at < See U.S. Treasury and FinCEN commentary to Interim Final Rule, note See 31 CFR For broker-dealers, FCMs, and IBs, the U.S. Treasury and FinCEN has exercised its authority to temporarily defer the application of all other requirements under Section 312. See 31 CFR (b); U.S. Treasury and FinCEN commentary to Interim Final Rule. 3

4 U.S. Federal Reserve, and the Global Anti-Money Laundering Guidelines for Private Banking: Wolfsberg AML Principles issued by the Wolfsberg Group. 17 C. Banks, Broker-Dealers, FCMs, and IBs: Evidencing a Reasonable Due Diligence Policy and Compliance with Section 312 The U.S. Treasury stated that in the interim, a reasonable due diligence policy, in Treasury s view, is one that comports with existing best practices standards. 18 Moreover, by adopting existing best practices standards, it evidences good faith efforts of compliance. 19 It appears though that the U.S. Treasury expects banks, broker-dealers, FCMs, and IBs to adopt existing best practice standards in a wholesale fashion based on the U.S. Treasury s comment that a financial institution should have a justification for not adopting a particular best practice or standard. 20 As such, banks, broker-dealers, FCMs, and IBs should consider adopting best practices standards in their entirety as a means of demonstrating that it has implemented a reasonable due diligence policy until final rules are issued. Furthermore, even though there is no specific guidance as to the due diligence measures to exercise when screening a non-u.s. person or a non-u.s. financial institution, the U.S. Treasury expects banks, broker-dealers, FCMs, and IBs to accord priority to conducting due diligence on high risk customers. 21 In particular, the U.S. Treasury expects banks, broker-dealers, FCMs, and IBs to conduct enhanced due diligence on those high risk customers seeking to open on or after July 23, By focusing its efforts on non- U.S. persons/entities that pose a high risk of money laundering, a bank s, broker-dealer s, FCM s, and IB s due diligence program will be deemed to be reasonable in the U.S. Treasury s view Federal Reserve (SR (SUP)), Private Banking Activities (June 30, 1997) available at < >, Federal Reserve (SR SUP)), Guidance on Enhanced Scrutiny for Transactions that May Involve the Proceeds of Foreign Official Corruption (January 16, 2001) available at < and Wolfsberg Group, Global Anti-Money Laundering Guidelines for Private Banking: Wolfsberg AML Principles (1 st Revision May 2002) available at < See U.S. Treasury and FinCEN commentary to Interim Final Rule, note See U.S. Treasury and FinCEN commentary to Interim Final Rule. 19 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 20 A due diligence program that does not adopt all of the best practices and standards described in industry and other available guidance also could be considered reasonable if there is a justifiable basis for not adopting a particular best practice or standard, based on the particular type of accounts held by he institution. See U.S. Treasury and FinCEN commentary to Interim Final Rule, note 8. See also U.S. Treasury and FinCEN commentary to Interim Final Rule, note See U.S. Treasury and FinCEN commentary to Interim Final Rule. 22 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 23 In the interim period before the issuance of a final rule, a due diligence program under section 5318(i)(1) will be reasonable in Treasury s view if it focuses compliance efforts on the correspondent accounts [and private banking accounts] that pose a high risk of money laundering based on an overall assessment of the money laundering risk See U.S. Treasury and FinCEN commentary to Interim Final Rule. 4

5 4. Effective Date of Compliance For banks, broker-dealers, FCMs, and IBs, the effective date of compliance with Section 312 of the USA PATRIOT Act is July 23, 2002, regardless of whether the U.S. Treasury has issued final rules implementing Section Moreover, application of the due diligence measures prescribed in Section 312 applies regardless of when a correspondent account or a private banking account was opened. 25 The U.S. Treasury anticipates issuing a final rule implementing Section 312 no later than October 25, Significance of the Interim Final Rule for Section 312 The significance of this release is that the U.S. Treasury recognizes the complexity of implementing Section 312 of the USA PATRIOT Act and therefore has adopted a more studied approach towards compliance. A strict application of the proposed rules would have been unrealistic and counterproductive in light of the unique business practices of each financial industry. 27 As such, the U.S. Treasury acknowledges the need for further study as to how each industry should comply with Section Furthermore, the Interim Final Rule implementing Section 312 is significant because it demonstrates that the U.S. Treasury is being responsive to comments and concerns from the financial services industry. 29 A primary concern that the financial industry has expressed to the U.S. Treasury is that neither Title III of the USA PATRIOT Act nor the proposed rule implementing Section 312 defined key terms that establish the parameters of compliance with Section 312 for U.S. financial institutions. 30 Even if certain terms are defined, the criticism is that such defined terms are overly broad and difficult to implement. 31 In response to these concerns and difficulties, the U.S. Treasury has taken the position that additional time is necessary and appropriate to consider the definitions and the text of the proposed rule in light of comments received to determine whether the terms used in Section 312 should be further defined with respect to each financial institution See U.S. Treasury and FinCEN commentary to Interim Final Rule. 25 See U.S. Treasury and FinCEN commentary to Interim Final Rule. See also THSH USA PATRIOT Act Update Memorandum: Proposed Regulation to Implement Section 312; Best Practices Identified by the SEC (discussing retroactive effect of Section 312). 26 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 27 See U.S. Treasury and FinCEN commentary to Interim Final Rule: Were Treasury to require strict compliance with the proposed rule, not only would it undermine the administrative process, but also it might require financial institutions to incur substantial costs comply with provisions of the proposed rule that may be altered or eliminated. 28 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 29 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 30 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 31 See U.S. Treasury and FinCEN commentary to Interim Final Rule. In its commentary, the U.S. Treasury and FinCEN noted that commenters consistently criticized the definitions of correspondent account, covered financial institution, and foreign financial institution as being overly broad. 32 See U.S. Treasury and FinCEN commentary to Interim Final Rule. 5

6 The Interim Final Rule and its commentary indicate that the application of the antimoney laundering rules are not likely to be uniform but instead are likely to be tailored to each industry. As such, the hedge fund industry should view this release as an encouraging sign that the U.S. Treasury is willing to listen to the concerns of financial institutions. Therefore, the hedge fund industry should be pro-active when proposed rules for hedge funds are released for comment and collaborate with the U.S. Treasury on how anti-money laundering should be accomplished in the industry. * * * * * * * If you have any questions or comments regarding compliance with the USA PATRIOT Act and about the U.S. Treasury s press release and the accompanying Interim Final Rule implementing Section 312 of the USA PATRIOT Act, please feel free to contact Michael G. Tannenbaum at (212) , Ricardo W. Davidovich at (212) or Roderick J. Cruz at (212) July 30,

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