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Alert
September 19, 2023
FINCEN PUBLISHES NOTICE AND PROPOSED RULE RELATED TO CTA BENEFICIAL OWNERSHIP
INFORMATION SYSTEM

By
Samantha M. KirbyAlexander J. CallenWilliam E. Stern
View PDF
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Why it matters: Information gathered and maintained by FinCEN under the CTA will
be exempt from notification and record access requirements, and individuals will
not be permitted to contest the contents of a report if, for example, they
believe that inaccurate information about them has been provided by a reporting
company.

FinCEN has released a notice and proposed rule under the Privacy Act of 1974
(Privacy Act) in connection with FinCEN’s establishment of the Beneficial
Ownership Information (BOI) System related to the implementation of the
Corporate Transparency Act (CTA). Notably, the notice states that information
maintained in the BOI System is exempt from notification requirements, record
access requirements, and requirements that an individual be permitted to contest
its contents, pursuant to exemptions from the Privacy Act relating to systems of
records maintained for certain law enforcement purposes. The proposed rule would
formalize the exemptions.

For more about the BOI reporting requirements, see FinCEN Finalizes Rule
Implementing Beneficial Ownership Reporting Requirements Under the Corporate
Transparency Act.

The Privacy Act, a federal law that governs the collection, maintenance, use,
and dissemination of information about individuals that is maintained in a
system of records by a federal agency, generally prohibits disclosure of a
record about an individual from a system of records without the individual’s
consent unless an exception applies, including an exception for “routine use” of
the information. The Privacy Act also allows an individual to request
notification if a system of records maintained by a government agency contains a
record of information about the person, and to access and request amendment of
the record, again – subject to certain exemptions.

The CTA expressly prohibits certain disclosures to individuals that would
otherwise be required under the Privacy Act. Although FinCEN states in the
commentary to the proposed rule release it believes that where the CTA conflicts
with the Privacy Act, the more detailed, specific provisions of the CTA apply,
the proposed rule will expressly exempt information maintained on the BOI System
from these requirements of the Privacy Act. Comments are due within 30 days of
publication in the Federal Register.

FinCEN’s notice sets forth certain routine uses for which beneficial ownership
information concerning individuals may be used, including authorized disclosure
permitted by the CTA, to the Department of Justice in certain circumstances in
connection with obtaining legal representation or legal advice in a proceeding
involving Treasury, an employee of Treasury, or the United States; to other
agencies or third parties to confirm or remediate a data breach; to student
volunteers and other individuals not having the status of agency employees to
the extent access is required to enable such persons to perform services for
FinCEN as authorized by law; and to the National Archives and Records
Administration, to the extent permitted by law.


CONTACTS


 * SAMANTHA M. KIRBY
   
   Partner
   Co-Chair of Banking and Consumer Financial Services
   skirby@goodwinlaw.com
   Boston+1 617 570 8794
   Washington, DC+1 202 346 4250
   /en/people/k/kirby-samantha


 * ALEXANDER J. CALLEN
   
   Partner
   acallen@goodwinlaw.com
   Washington, DC+1 202 346 4161
   /en/people/c/callen-alexander


 * WILLIAM E. STERN
   
   Partner
   wstern@goodwinlaw.com
   New York+1 212 813 8890
   /en/people/s/stern-william


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