The Patriot Act, which amends the Bank Secrecy Act (BSA), was adopted in response to the September 11, 2001 terrorist attacks. The Patriot Act is intended to strengthen U.S. measures to prevent, detect, and prosecute international money laundering and the financing of terrorism. These efforts include anti-money laundering (AML) tools that impact the banking, financial, and investment communities.

As a result of the Patriot Act, persons who are or are required to be registered as futures commission merchants (FCMs), introducing brokers (IBs), commodity pool operators (CPOs), and commodity trading advisors (CTAs) are or may become subject to requirements for establishing AML programs, reporting suspicious activity, verifying the identity of customers, and applying enhanced due diligence to certain types of accounts involving foreign persons.

The Patriot Act amended the BSA to require that financial institutions establish AML Programs. FCMs, CPOs, and CTAs are specifically included in the definition of financial institution in the BSA. IBs are considered to be “brokers or dealers in commodities” within the financial institution definition.

An AML Program must be in writing and must include:

Treasury has adopted interim final rules regarding AML Programs for financial institutions. These rules exempt CPOs and CTAs from the AML Program requirement pending the issuance of final rules. However, Treasury has proposed rules that will require commodity pools and commodity trading advisors to establish and implement written anti-money laundering programs. As required by Section 356(c) of the Patriot Act, Treasury has issued a report to Congress that sets forth existing requirements that apply to both registered and unregistered investment companies, including commodity pools, and contains recommendations on additional regulatory requirements that might be imposed. The National Futures Association has adopted Rule 2-9(c) and an accompanying Interpretive Notice regarding AML Programs for its FCM and IB members. Other AML Program rule notices for specified financial institutions include:

The Patriot Act authorizes Treasury to issue rules requiring FCMs, CPOs, and CTAs to file Suspicious Activity Reports (SARs). Treasury has issued a final rule requiring FCMs and IBs to file SARs. Treasury has not yet proposed a rule requiring CPOs and CTAs to file SARs. Treasury also has issued a SAR SF form and Instructions for the securities and futures industry, which FCMs and IBs must use to report suspicious transactions, and which CPOs and CTAs may use to report voluntarily.

The Patriot Act requires Treasury to issue rules setting forth minimum standards for financial institutions to identify and verify the identity of customers.

Treasury and the CFTC have jointly issued final rules that require FCMs and IBs to have customer identification programs (CIPs) for identifying and verifying the identity of customers. An FCM’s or IB’s procedures must enable it to form a reasonable belief that it knows the true identity of each customer.

The CIP rules permit FCMs and IBs to rely on other financial institutions to perform identification/verification functions; however, the reliance must be reasonable under the circumstances, the relied-upon financial institution must be subject to an AML program rule under the BSA and be regulated by a Federal functional regulator, and the financial institution must enter into a contract requiring it to certify annually to the FCM or IB that it has implemented an AML program and that it will perform specified requirements of the CIP. Pursuant to a staff no-action letter issued on March 14, 2005, FCMs and IBs may rely upon certain CTAs to perform procedures of the FCM's or IB's CIP even though such CTAs are not yet subject to an AML program rule.

Final rules regarding customer identification programs have also been issued for banks, savings associations, credit unions, and certain non-federally regulated banks; broker-dealers, and mutual funds. The rules are substantively identical for all affected sectors of the financial services industry. These rules require that financial institutions have procedures for checking customer’s names against lists of known or suspected terrorists or terrorist organizations that are prepared by any federal agency and made available to the institution. Although no lists have yet been designated, financial institutions are separately required to comply with the rules of the Office of Foreign Assets and Control (OFAC) and must consult OFAC’s lists of sanctioned countries and specially designated nationals and blocked persons. Sources for complying with OFAC rules:

The staff of the CFTC and Treasury also has jointly issued guidance, in question-and-answer format, regarding the application of the CIP rule for FCMs and IBs. This guidance covers a number of topics that were not explicitly addressed by the CIP rules.

One important area of staff guidance addresses the situation where an omnibus account or sub-account or relationship is established by or on behalf of a financial intermediary for the purposes of executing transactions that clear or settle at another financial institution. The staff of Treasury and the CFTC has issued guidance that clarifies that if the financial intermediary is the account holder, the intermediary can be treated as the customer for the purposes of the CIP rule.

Another important area of staff guidance addresses the CIP requirements applicable to FCMs engaged in give-up transactions.  The staff of Treasury and the CFTC has issued guidance that clarifies that an FCM acting solely as an executing broker in a give-up arrangement is not required to apply its CIP procedures to a customer engaged in a give-up transaction.  Conversely, an FCM acting as a clearing broker is required to apply its CIP procedures to a customer engaged in a give-up transaction.

The Patriot Act requires that financial institutions must establish appropriate, and where necessary, enhanced due diligence policies, procedures, and controls that are reasonably designed to detect and report instances of money laundering through foreign private banking and correspondent accounts.

A final rule issued by Treasury requires covered financial institutions, including FCMs and IBs, to establish due diligence programs that include appropriate, specific, risk-based, and where necessary, enhanced policies, procedures and controls that are reasonably designed to detect and report, on an ongoing basis, any known or suspected money laundering activity conducted through or involving any correspondent account established, maintained, administered, or managed by such covered financial institution in the United States for a foreign financial institution.

Another final rule requires covered financial institutions, including FCMs and IBs, to maintain due diligence programs that are reasonably designed to detect and report known or suspected money laundering or suspicious activity conducted through or involving any private banking account that is established, maintained, administered, or managed in the United States by such financial institution for a non-U.S. person. The due diligence program must ensure, at a minimum, that the financial institution takes reasonable steps to ascertain the identity of the nominal and beneficial owners of the private account, whether any such person is a senior foreign political figure, the sources of funds deposited into the private banking account and the purpose and expected use of the account. The program also must ensure that the financial institution reviews the activity in the private banking account to ensure it is consistent with the information obtained about the client and reports known or suspected money laundering or suspicious activity conducted to, from or through the private banking account. Where a senior foreign political figure is the nominal or beneficial owner of a private banking account, the program must include enhanced scrutiny of the account that is reasonably designed to detect and report transactions that may involve the proceeds of foreign corruption.

Notwithstanding the final rule for correspondent accounts, Treasury has issued guidance confirming that an IB is not subject to the correspondent account due diligence requirements where it merely solicits and accepts orders for transactions in commodity futures and options.

Treasury also has issued a proposed rule that will require a covered financial institution, including an FCM or IB, to ensure that its due diligence program provides for enhanced due diligence for correspondent accounts that have been established, maintained, administered, or managed for certain foreign banks.

The Patriot Act authorizes Treasury to find that a foreign jurisdiction, institution, class of transactions, or type of account is of "primary money laundering concern" and to require domestic financial institutions to take certain "special measures" against the primary money laundering concern. The first four special measures impose information gathering, reporting, and recordkeeping requirements on those financial institutions dealing, directly or indirectly, with the designated jurisdiction or entity. Under special measure 5, a financial institution may be prohibited from opening or maintaining a correspondent account or a payable-through account. Pursuant to this authority, Treasury has designated each of the following as a primary money laundering concern:

Pursuant to this authority, Treasury has imposed the following special measures:

Treasury also has proposed (but not yet imposed) the following special measures:

A financial institution and any “nonfinancial trade or business” must file a report concerning a transaction (or series of related transactions) in excess of $10,000 in currency.

The BSA requires each United States person who has a financial interest in, or signature authority over, any financial accounts in a foreign country to file an FBAR if the aggregate value of the financial accounts exceeds $10,000 at any time during the calendar year. The term "financial account" includes any commodity interest account. The term "United States person" includes any Commission registrant that is a citizen or resident of the United States, domestic partnership, domestic corporation, or a domestic estate or trust.

The BSA requires the filing of a CMIR by any person, such as an FCM, who physically transports, mails, ships, or causes to be physically transported, mailed, or shipped, currency or other monetary instrument in an aggregate amount exceeding $10,000 on any one occasion, whether that transportation is into or out of the United States. A CMIR also must be filed by any person who receives in the United States currency or other monetary instrument in an aggregate amount exceeding $10,000 that has come from outside the United States and on which no CMIR was filed. A CMIR does not need to be filed, however, if the person is a bank or broker-dealer, and the currency or other monetary instrument is mailed or shipped through the postal service or by a common carrier.

Pursuant to the Patriot Act, Treasury has issued a final rule that requires financial institutions, including FCMs, IBs, CPOs, and CTAs, to comply with information requests received from law enforcement. The final rule requires a financial institution to make an expeditious search of its records for accounts and transactions involving named suspects, provide specified information about the named suspects, and prohibit the financial institution from disclosing the fact that a request has been made (other than as necessary to comply with the information request).

CFTC registrants are reminded of the requirement in 31 CFR 103.100 to maintain adequate procedures to safeguard the security and confidentiality of any information request received from FinCEN. Firms may not disclose to any person other than FinCEN or the Federal law enforcement agency on whose behalf FinCEN is requesting information the fact that FinCEN has requested or has obtained information, except to the extent necessary to comply with the information request. There are significant penalties for willful violations of the BSA regulations.

A separate final rule permits financial institutions required by the BSA to establish AML Programs and associations of such financial institutions to share information regarding individuals and other persons involved in possible terrorist activity or money laundering. FCMs and IBs are required to establish AML Programs, and thus are permitted to share information with other financial institutions that are required to establish AML Programs, such as other FCMs, IBs, broker-dealers, and banks.

Financial institutions and associations of financial institutions that intend to share information must file, on a yearly basis, a notice with Treasury’s Financial Crimes Enforcement Network (FinCEN). A copy of the notice is included as Appendix A to the final rules relating to information sharing that are discussed above.

^[1] The Executive Order generally restricts all U.S. financial institutions from undertaking financial transactions with Burmese financial institutions, subject to certain exemptions.