BW&TBLOG

Federal government agency access to BOI. Under the Access Rule and as authorized by the CTA, FinCEN may disclose BOI to Federal agencies engaged in national security, intelligence, or law enforcement activity if the requested BOI is for use in furtherance of such activity. “Law enforcement activity” includes both criminal and civil investigations and actions, such as actions to impose civil penalties, civil forfeiture actions, and civil enforcement through administrative proceedings. Prior to requesting BOI, Federal agency users will be required to certify that the agency is engaged in a national security, intelligence, or law enforcement activity and that the information requested is for use in furtherance of that activity. They will also be required to provide the specific reasons why the requested information is relevant to the activity.

State, local, and Tribal law enforcement agency access to BOI. FinCEN may disclose BOI to State, local, and Tribal law enforcement agencies if “a court of competent jurisdiction” has authorized the law enforcement agency to seek the information in a criminal or civil investigation. Prior to requesting BOI, State, local, and Tribal law enforcement agency users must certify that a court of competent jurisdiction has authorized the agency to seek the information in a criminal or civil investigation and that the requested information is relevant to the criminal or civil investigation. Such users must also provide a description of the information the court has authorized the agency to seek.

Foreign requesters. FinCEN may disclose BOI to foreign requesters, provided their requests meet certain criteria. Specifically, the foreign request for BOI must be on behalf of a law enforcement agency, prosecutor, or judge of another country, or on behalf of a foreign central authority or foreign competent authority, and: (1) come to FinCEN through an intermediary Federal agency; (2) be for assistance in a law enforcement investigation or prosecution, or for a national security or intelligence activity, authorized under the laws of the foreign country; and (3) either be made under an international treaty, agreement, or convention, or, when no such instrument is available, be an official request by a law enforcement, judicial, or prosecutorial authority of a trusted foreign country.

Financial institutions subject to customer due diligence requirements. FinCEN may disclose BOI to financial institutions using BOI to facilitate compliance with customer due diligence requirements under applicable law, provided the financial institution requesting the BOI has the relevant reporting company’s consent for such disclosure. In response to comments on the proposed rule, the final Access Rule broadens the definition of “customer due diligence requirements under applicable law” to include “any legal requirement or prohibition designed to counter money laundering or the financing of terrorism, or to safeguard the national security of the United States, to comply with which it is reasonably necessary for a financial institution to obtain or verify beneficial ownership information of a legal entity customer.” Such requirements may include AML (anti-money laundering)/CFT (countering the financing of terrorism) obligations under the Bank Secrecy Act (BSA) — including AML program, customer identification, Suspicious Activity Report filing, and enhanced due diligence requirements — as well as, for example, compliance with sanctions imposed by Treasury’s Office of Foreign Assets Control, provided it is reasonably necessary to obtain or verify BOI of legal entity customers to satisfy those requirements. General business or commercial use of BOI is not authorized.

Federal functional regulators and other appropriate regulatory agencies. FinCEN may disclose BOI to Federal functional regulators and other appropriate regulatory agencies acting in a supervisory capacity assessing financial institutions for compliance with customer due diligence requirements. In keeping with the CTA, such regulators may only access BOI that financial institutions they supervise received from FinCEN, and may only use the information to assess, supervise, enforce, or otherwise determine the compliance of those financial institutions with customer due diligence requirements as defined above.

Treasury personnel. The CTA provides Treasury with a unique degree of access to BOI, making the information available to any Treasury officer or employee (1) whose official duties require BOI inspection or disclosure, or (2) for tax administration. As authorized by the CTA, Treasury will establish internal policies and procedures governing Treasury officer and employee access to BOI. FinCEN anticipates that the security and confidentiality protocols in those policies and procedures will include elements of security and confidentiality requirements applicable to other domestic agencies. Treasury expects to use BOI for appropriate purposes, such as tax administration, enforcement actions, intelligence and analytical purposes, use in sanctions investigations and designations, and identification of property blocked pursuant to sanctions, as well as for administration of the BOI framework, such as for audits, enforcement, and oversight.

Source: www.fincen.gov