Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Amendment Regulations 2010
PROCEEDS OF CRIME (ANTI-MONEY LAUNDERING AND ANTI-
TERRORIST FINANCING) AMENDMENT REGULATIONS 2010
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BR 2/2010
PROCEEDS OF CRIME ACT 1997
1997 : 34
PROCEEDS OF CRIME (ANTI-MONEY LAUNDERING AND ANTI-
TERRORIST FINANCING) AMENDMENT REGULATIONS 2010
The Minister of Justice, in exercise of the power conferred by
section 49(3) of the Proceeds of Crime Act 1997 and section 12A of the
Anti-Terrorism (Financial and Other Measures) Act 2004, makes the
following Regulations:
Citation
1 These Regulations may be cited as the Proceeds of Crime (Anti-
Money Laundering and Anti-Terrorist Financing) Amendment
Regulations 2010.
Part 4 added
2 The Proceeds of Crime (Anti-Money Laundering and Anti-
Terrorist Financing) Regulations 2008 are amended by adding the
following new Part after Part 3—
“PART 4
WIRE TRANSFERS
Introduction and application
Interpretation of Part 4
21 In this Part —
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“batch file transfer” means several individual transfers of
funds that are bundled together for transmission;
“complete information on the payer” means information
consisting of the payer’s name, address and account
number, but—
(a) in the case of a natural person, the address may
be substituted with the date and place of birth of
the payer, his customer identification number or
national identity number; and
(b) where the payer does not have an account
number, the payer’s PSP shall substitute it with a
unique identifier that allows the transaction to be
traced back to the payer;
“intermediary PSP” means a PSP, neither of the payer nor
of the payee, who participates in the execution of
transfers of funds;
“money laundering” has the meaning given in section 7(1)
of the Proceeds of Crime Act 1997;
“payee” means a person who is the intended final recipient
of transferred funds;
“payer” means either—
(a) a person who holds an account and allows a
transfer of funds from that account, or
(b) where there is no account, a person who places
an order for a transfer of funds;
“payee’s PSP” means the PSP of the payee;
“payer’s PSP” means the PSP of the payer;
“PSP” (payment service provider) means a person whose
business includes the provision of services for the
transfer of funds;
“transfer of funds” means any transaction carried out on
behalf of a payer through a PSP by electronic means,
with a view to making funds available to a payee
through a PSP, irrespective of whether the payer and
the payee are the same person;
“unique identifier” means a combination of letters,
numbers or symbols, determined by the PSP, in
accordance with the protocols of the payment and
PROCEEDS OF CRIME (ANTI-MONEY LAUNDERING AND ANTI-
TERRORIST FINANCING) AMENDMENT REGULATIONS 2010
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settlement system or messaging system used to effect
the transfer of funds.
Application of Part 4
22 (1) This Part applies to transfers of funds, in any
currency, that are sent or received by a PSP in Bermuda.
(2) This Part does not apply to transfers of funds carried
out using a credit or debit card, if ―
(a) the payee has an agreement with the PSP
permitting payment for the provision of goods and
services; and
(b) a unique identifier, allowing the transaction to be
traced back to the payer, accompanies such
transfer of funds.
(3) This Part does not apply to transfers of funds carried
out by means of a mobile telephone or any other digital or
information technology (“IT”) device, when such transfers are
pre-paid and do not exceed $150.
(4) This Part does not apply to transfers of funds carried
out by means of a mobile telephone or any other digital or IT
device, when such transfers are post-paid and meet all of the
following conditions―
(a) the payee has an agreement with the PSP
permitting payment for the provision of goods and
services;
(b) a unique identifier, allowing the transaction to be
traced back to the payer, accompanies the
transfer of funds; and
(c) the payee’s PSP is an AML/ATF regulated
financial institution.
(5) This Part does not apply to transfers of funds―
(a) where the payer withdraws cash from his own
account;
(b) where there is a debit transfer authorisation
between the payer and the payee permitting
payments between them through accounts,
provided that a unique identifier accompanies the
transfer of funds, enabling the payer to be traced
back;
PROCEEDS OF CRIME (ANTI-MONEY LAUNDERING AND ANTI-
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(c) where truncated cheques are used;
(d) to public authorities for taxes, fines or other levies
within Bermuda; or
(e) where both the payer and the payee are PSPs
acting on their own behalf.
Obligations on the Payment Service Provider of the Payer
Information accompanying transfers of funds and record
keeping
23 (1) The payer’s PSP shall ensure that transfers of funds
are accompanied by complete information on the payer.
(2) The payer’s PSP shall, before transferring the funds,
verify the complete information on the payer on the basis of
documents, data or information obtained from a reliable and
independent source.
(3) In the case of transfers of funds from an account, the
complete information on a payer shall be deemed to have been
verified if the payer’s PSP has complied with the requirements of
customer due diligence under Part 2.
(4) In the case of transfers of funds not made from an
account, the payer’s PSP shall verify the information on the
payer only where the amount exceeds $1000, unless the
transaction is carried out in several operations that appear to be
linked and together exceed $1000.
(5) The payer’s PSP shall for five years keep records of
complete information on the payer that accompanies transfers of
funds.
Transfers of funds within Bermuda
24 (1) Notwithstanding regulation 23(1), where both the
payer’s PSP and the payee’s PSP are situated in Bermuda, it
shall suffice if transfers of funds are accompanied by the
account number of the payer or a unique identifier allowing the
transaction to be traced back to the payer.
(2) But if the payee’s PSP so requests, the payer’s PSP
shall make available to the payee’s PSP complete information on
the payer, within three working days of receiving that request.
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Batch file transfers
25 Regulation 23(1) does not apply, in the case of a batch file
transfer from a single payer where any payee’s PSP is situated
outside Bermuda, to the individual transfers bundled together in
the batch transfer, if—
(a) the batch transfer file contains complete information
on the payer; and
(b) the individual transfers of funds carry the account
number of the payer or a unique identifier.
Obligations on the Payment Service Provider of the Payee
Detection of missing or incomplete information on the payer
26 (1) The payee’s PSP shall detect whether, in the
messaging or payment and settlement system used to effect a
transfer of funds, the fields relating to the information on the
payer have been completed using the characters or inputs
admissible within the conventions of that messaging or payment
and settlement system.
(2) The payee’s PSP shall have effective procedures in
place in order to detect whether the following information on the
payer is missing―
(a) for transfers of funds where the payer’s PSP is
situated in Bermuda, the information required
under regulation 24;
(b) for transfers of funds where the payer’s PSP is
situated outside Bermuda, complete information
on the payer or, where applicable, the information
required under regulation 31; and
(c) for batch file transfers where the payer’s PSP is
situated outside Bermuda, complete information
on the payer in the batch file transfer only, but
not in the individual transfers bundled together in
the batch transfer.
Transfers with missing or incomplete information on the
payer
27 (1) If the payee’s PSP becomes aware, when receiving
transfers of funds, that information on the payer required under
this Part is missing or incomplete, the payee’s PSP shall—
(a) reject the transfer; or
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(b) ask for complete information on the payer.
(2) But a person is not required to comply with
paragraph (1) if to do so would contravene any other provision of
an enactment.
(3) If the payer’s PSP regularly fails to supply the
information on the payer required by this Part, the payee’s PSP
shall report that fact to the Bermuda Monetary Authority.
(4) If the payer’s PSP regularly fails to supply the
information on the payer required by this Part, the payee’s PSP
shall take steps to attempt to ensure that the payer’s PSP
complies with the requirements as to the supply of information
set out in this Part, which steps may include―
(a) issuing warnings to the payer’s PSP; and
(b) setting deadlines for the payer’s PSP to comply
with the requirements as to the supply of
information set out in this Part.
(5) If after the payee’s PSP has taken steps under
paragraph (4) in relation to a payer’s PSP and the requirements
as to the supply of information set out in this Part are still not
regularly complied with by the payer’s PSP, the payee’s PSP shall
either―
(a) reject any future transfers of funds from that PSP;
or
(b) decide whether or not to restrict or terminate its
business relationship with that provider, either
with respect to services for the transfer of funds or
with respect to any mutual supply of other
services.
Requirement to report where missing or incomplete
information makes transaction suspicious
28 The payee’s PSP shall consider missing or incomplete
information on the payer as a factor in assessing whether the
transfer of funds, or any related transaction, is suspicious, and
whether it must be reported, in accordance with the
requirements of section 46 of the Proceeds of Crime Act 1997 or
paragraph 1 of Part 1 of Schedule 1 of the Anti-Terrorism
(Financial and Other Measures) Act 2004.
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Record keeping
29 The payee’s PSP shall keep for five years records of any
information received on the payer.
Obligations on intermediary payment service providers
Keeping information on the payer with the transfer
30 Intermediary PSPs shall ensure that all information received
on the payer that accompanies a transfer of funds is kept with
the transfer.
Duties of intermediary PSP in case of technical limitations
31 (1) This regulation applies where the payer’s PSP is
situated outside Bermuda and the intermediary PSP is situated
within Bermuda.
(2) Unless an intermediary PSP becomes aware, when
receiving a transfer of funds, that information on the payer
required under this Part is missing or incomplete, the
intermediary may, for the purposes of sending transfers of funds
to the payer’s PSP, use a payment system with technical
limitations that prevents information on the payer from
accompanying the transfer of funds.
(3) Where an intermediary PSP becomes aware, when
receiving a transfer of funds, that information on the payer
required under this Part is missing or incomplete, the
intermediary PSP shall only use a payment system with
technical limitations if the intermediary PSP is able to inform the
payee’s PSP of this fact, either within a messaging or payment
system that provides for communication of this fact or through
another procedure, provided that the manner of communication
is accepted by, or agreed between, both PSPs.
(4) Where an intermediary PSP uses a payment system
with technical limitations, the intermediary PSP shall, upon
request from the payee’s PSP, make available to the payee’s PSP
all the information on the payer that it has received, irrespective
of whether it is complete or not, within three working days of
receiving that request.
(5) In the cases referred to in paragraphs (2), (3) and (4),
the intermediary PSP shall keep for five years records of all
information received.
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Offences and Penalties
Offences
32 (1) A payer’s PSP is guilty of an offence if he fails to
comply with any requirements of―
(a) regulation 23(1) (read with regulations 24(1), 24(2)
and 25 as the case requires);
(b) regulation 23(2) (read with regulations 23(3) or
23(4), as the case requires);
(c) regulation 23(5); or
(d) regulation 24(2).
(2) A payee’s PSP is guilty of an offence if he fails to
comply with any requirements of―
(a) regulation 26(1) (read with regulation 26(2));
(b) regulation 27(1) (read with regulation 27(2));
(c) regulation 27(3); or
(d) regulation 29.
(3) An intermediary PSP is guilty of an offence if he fails
to comply with any requirements of―
(a) regulation 30;
(b) regulation 31(3);
(c) regulation 31(4); or
(d) regulation 31(5).
(4) A person guilty of an offence under paragraph (1), (2),
or (3) is liable—
(a) on summary conviction, to a fine of $50,000;
(b) on conviction on indictment to a fine of $750,000
or to imprisonment for a term of two years or to
both.
(5) In deciding whether a person has committed an
offence under paragraph (1), (2) or (3), the court must consider
whether he followed any relevant guidance that was at the time—
(a) issued by the Bermuda Monetary Authority;
(b) approved by the Minister; and
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(c) published in a manner approved by the Minister
as appropriate in his opinion to bring the
guidance to the attention of persons likely to be
affected by it.
(6) A person is not guilty of an offence under this
regulation if he took all reasonable steps and exercised all due
diligence to avoid committing the offence.
(7) Where a person is convicted of an offence under this
regulation, he shall not also be liable to a civil fine imposed by or
under any statutory provision in relation to the same matter.”.
Made this 8th day of January, 2010
Attorney-General and Minister of Justice
