Section 311 of the USA PATRIOT Act authorizes the Secretary of the Treasury to designate a foreign jurisdiction, financial institution, class of transactions, or type of account as a "primary money laundering concern" and require domestic financial institutions and agencies to implement one or more of five "special measures." These measures are safeguards to protect the U.S. financial system from money laundering and terrorist financing. The Secretary of the Treasury has delegated authority to administer the Bank Secrecy Act (BSA), including Section 311, to the Director of FinCEN. FinCEN can impose these special measures to address such threats.
Special measures one through four involve additional recordkeeping, information collection, and reporting requirements for covered U.S. financial institutions. The fifth special measure allows FinCEN to prohibit or impose conditions on opening or maintaining correspondent or payable-through accounts in the United States for the identified primary money laundering concern. These measures often require notice and comment rulemaking.
However, FinCEN faces limitations when applying Section 311 to digital assets, as the fifth special measure is restricted to correspondent or payable-through accounts, which are not directly applicable to the digital asset industry.
Congress has introduced newer authorities, similar to Section 311, under Section 2313a of the Fentanyl Sanctions Act and Section 9714 of the Combating Russian Money Laundering Act. These address primary money laundering concerns related to illicit opioid trafficking and Russian illicit finance, respectively. Unlike Section 311, these new authorities allow FinCEN to prohibit or impose conditions on certain "transmittals of funds," as defined by the Secretary of the Treasury, by any domestic financial institution or agency. By using "transmittals of funds" instead of "correspondent or payable-through accounts," these authorities can be applied to both traditional finance and digital assets.
Tailoring Section 311 Authorities for Digital Assets