Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire: Elimination of “As-of Adjustments” and Other Clarifications, 21854-21861 [2012-8563]
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21854
Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Rules and Regulations
provided in § 204.5(e), are subject to
deficiency charges. Federal Reserve
Banks are authorized to assess charges
for deficiencies at a rate of 1 percentage
point per year above the primary credit
rate, as provided in § 201.51(a) of this
chapter, in effect for borrowings from
the Federal Reserve Bank on the first
day of the calendar month in which the
deficiencies occurred. Charges shall be
assessed on the basis of daily average
deficiencies during each maintenance
period.
(b) Reserve Banks may waive the
charges for deficiencies except when the
deficiency arises out of a depository
institution’s gross negligence or conduct
that is inconsistent with the principles
and purposes of reserve requirements.
Decisions by Reserve Banks to waive
charges are based on an evaluation of
the circumstances in each individual
case and the depository institution’s
reserve maintenance record. For
example, a waiver may be appropriate
for a small charge or once during a twoyear period for a deficiency that does
not exceed a certain percentage of the
depository institution’s reserve
requirement. If a depository institution
has demonstrated a lack of due regard
for the proper maintenance of balances
to satisfy its reserve balance
requirement, the Reserve Bank may
decline to exercise the waiver privilege
and assess all charges regardless of
amount or reason for the deficiency.
*
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*
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■ 9. Effective January 24, 2013, § 204.6
is further amended by revising
paragraphs (a) and (b) to read as follows:
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§ 204.6
Charges for deficiencies.
(a) Federal Reserve Banks are
authorized to assess charges for
deficiencies at a rate of 1 percentage
point per year above the primary credit
rate, as provided in § 201.51(a) of this
chapter, in effect for borrowings from
the Federal Reserve Bank on the first
day of the calendar month in which the
deficiencies occurred. Charges shall be
assessed on the basis of daily average
deficiencies during each maintenance
period.
(b) Reserve Banks may waive the
charges for deficiencies based on an
evaluation of the circumstances in each
individual case.
*
*
*
*
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■ 10. Effective July 12, 2012, § 204.10 is
amended by revising paragraphs (b)(1),
(b)(3), (c), (d)(3) and (e)(2) to read as
follows:
§ 204.10
*
Payment of interest on balances.
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(b) * * *
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(1) For balances maintained to satisfy
reserve balance requirements, at 1⁄4
percent;
*
*
*
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(3) For balances maintained to satisfy
reserve balance requirements, excess
balances, and term deposits, at any
other rate or rates as determined by the
Board from time to time, not to exceed
the general level of short-term interest
rates. For purposes of this paragraph (b),
‘‘short-term interest rates’’ are rates on
obligations with maturities of no more
than one year, such as the primary
credit rate and rates on term federal
funds, term repurchase agreements,
commercial paper, term Eurodollar
deposits, and other similar instruments.
(c) Pass-through balances. A passthrough correspondent that is an eligible
institution may pass back to its
respondent interest paid on balances
maintained to satisfy a reserve balance
requirement of that respondent. In the
case of balances maintained by a passthrough correspondent that is not an
eligible institution, a Reserve Bank shall
pay interest only on the balances
maintained to satisfy a reserve balance
requirement of one or more
respondents, and the correspondent
shall pass back to its respondents
interest paid on balances in the
correspondent’s account.
(d) * * *
(3) Balances maintained in an excess
balance account will not satisfy any
institution’s reserve balance
requirement.
*
*
*
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(e) * * *
(2) A term deposit will not satisfy any
institution’s reserve balance
requirement.
*
*
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■ 11. Effective January 24, 2013,
§ 204.10 is further amended by revising
paragraphs (b)(1), (b)(3), and (c) to read
as follows:
§ 204.10
Payment of interest on balances.
*
*
*
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*
(b) * * *
(1) For balances up to the top of the
penalty-free band, at 1⁄4 percent;
*
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(3) For balances up to the top of the
penalty-free band, excess balances, and
term deposits, at any other rate or rates
as determined by the Board from time
to time, not to exceed the general level
of short-term interest rates. For purposes
of this subsection, ‘‘short-term interest
rates’’ are rates on obligations with
maturities of no more than one year,
such as the primary credit rate and rates
on term federal funds, term repurchase
agreements, commercial paper, term
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Eurodollar deposits, and other similar
instruments.
(c) Pass-through balances. A passthrough correspondent that is an eligible
institution may pass back to its
respondent interest paid on balances
maintained to satisfy a reserve balance
requirement of that respondent. In the
case of balances maintained by a passthrough correspondent that is not an
eligible institution, a Reserve Bank shall
pay interest only on the balances
maintained to satisfy a reserve balance
requirement of one or more respondents
up to the top of the penalty-free band,
and the correspondent shall pass back to
its respondents interest paid on
balances in the correspondent’s account.
*
*
*
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*
By order of the Board of Governors of the
Federal Reserve System, April 5, 2012.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. 2012–8562 Filed 4–11–12; 8:45 am]
BILLING CODE 6210–01–P
FEDERAL RESERVE SYSTEM
12 CFR Part 210
[Regulation J; Docket No. R–1434]
RIN 7100 AD 84
Collection of Checks and Other Items
by Federal Reserve Banks and Funds
Transfers Through Fedwire:
Elimination of ‘‘As-of Adjustments’’
and Other Clarifications
Board of Governors of the
Federal Reserve System.
ACTION: Final rule.
AGENCY:
The Board is amending
Regulation J (Collection of Checks and
Other Items by Federal Reserve Banks
and Funds Transfers through Fedwire).
The final rule eliminates references to
‘‘as-of adjustments’’ consistent with the
Board’s final amendments to Regulation
D to simplify reserves administration;
clarifies that an institution’s
Administrative Reserve Bank is deemed
to have accepted deposit of a check or
other item even if the institution sends
the item directly to another Federal
Reserve Bank; further clarifies that
Regulation J continues to apply to a
Fedwire funds transfer even if the funds
transfer also meets the definition of
‘‘remittance transfer’’ under the
Electronic Fund Transfer Act; and
makes other conforming revisions.
DATES: This final rule is effective July
12, 2012.
FOR FURTHER INFORMATION CONTACT: Kara
Handzlik, Senior Attorney (202) 452–
SUMMARY:
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3852, Legal Division; Margaret Gillis
DeBoer, Assistant Director (202) 452–
3139, or Heather Wiggins, Senior
Financial Analyst (202) 452–3674,
Division of Monetary Affairs; or Joseph
Baressi, Project Leader, Division of
Reserve Bank Operations and Payment
Systems (202) 452–3959; for users of
Telecommunications Device for the Deaf
(TDD) only, contact (202) 263–4869;
Board of Governors of the Federal
Reserve System, 20th and C Streets,
NW., Washington, DC 20551.
SUPPLEMENTARY INFORMATION:
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I. Background
Subpart A of Regulation J governs the
collection of checks and other items by
the Federal Reserve Banks (Reserve
Banks), including the types of checks or
other items that may be sent to Reserve
Banks, the order in which they are
deemed to be handled, and the related
warranties and indemnities. Subpart B
of Regulation J sets forth the terms and
conditions under which Reserve Banks
receive and deliver payment orders from
and to depository institutions over the
Reserve Banks’ Fedwire® Funds Service
(Fedwire).
On October 18, 2011, the Board
proposed amendments to Regulation J,
including the elimination of references
throughout Regulation J to a Reserve
Bank’s use of ‘‘as-of adjustments’’ (76
FR 64259). The Board proposed these
amendments, in part, to conform to
proposed amendments to Regulation D
(12 CFR part 204) to simplify reserves
administration.1 The Board also
proposed amendments to subpart A of
Regulation J to clarify where a check or
other item is deemed to be accepted
when it is sent to a Reserve Bank.
Specifically, the proposal clarified that
when an institution sends a check or
other item for collection to a Reserve
Bank, the institution’s Administrative
Reserve Bank is deemed to have
accepted deposit of the item even if the
item was sent directly to another
Reserve Bank. In addition, the Board
proposed amendments to clarify that
subpart B of Regulation J continues to
apply to a Fedwire funds transfer even
if that funds transfer also meets the
definition of ‘‘remittance transfer’’
under the recently revised Electronic
Fund Transfer Act (‘‘EFTA’’). After
1 The proposed amendments to Regulation D were
published in the Federal Register on October 18,
2011 (76 FR 64250). The Board proposed to
discontinue the use of as-of adjustments for deposit
report revisions and to replace all other as-of
adjustments with direct compensation, create a
common two-week maintenance period for all
depository institutions, create a penalty-free band
around reserve balance requirements in place of
carryover and routine waivers, and eliminate the
contractual clearing balance program.
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consideration of the comments received,
the Board is adopting the amendments
to Regulation J as proposed.
II. Request for Public Comment and
Summary of Comments Received
The Board requested public comment
on its October 2011 proposal to amend
Regulation J. The Board received a total
of eight comments from six financial
institution trade associations, one
depository institution, and one
association of depository institutions.
Commenters generally expressed
support for the proposed amendments,
although some were concerned with
various aspects of the proposal and
provided support contingent on certain
conditions. These comments are
discussed in more detail below.
III. Analysis of Proposed
Simplifications and Comments
Eliminate References to As-of
Adjustments
Regulation J defines ‘‘as-of
adjustment’’ for purposes of subpart B of
the regulation as ‘‘a debit or credit, for
reserve- or clearing-balance
maintenance purposes only, applied to
the reserve or clearing balance of a bank
that either sends a payment order to a
Federal Reserve Bank, or that receives a
payment order from a Federal Reserve
Bank, in lieu of an interest charge or
payment.’’ 2 Regulation J currently
permits a Reserve Bank to use either an
as-of adjustment or direct compensation
(at the federal funds rate) to compensate
for an error in transaction processing or
other damages owed in connection with
a Fedwire funds transfer. Regulation J
further provides in subpart A that a
Reserve Bank’s operating circulars may
include procedures for paying interest
in the form of as-of adjustments in
relation to the collection of checks and
other items.
As noted above, the Board proposed
to amend Regulation D to simplify the
rules governing the administration of
reserve requirements. The proposed
Regulation D amendments included
discontinuing as-of adjustments related
to deposit report revisions and replacing
all other as-of adjustments with direct
compensation in the form of either a
debit or credit applied to an account to
offset the effect of an error. Consistent
with its Regulation D proposal, the
Board proposed to amend Regulation J
§§ 210.3(a), 210.26(b), and 210.32(b)
(along with the corresponding
commentary) to eliminate references to
as-of adjustments. Under the Board’s
Regulation J proposal, a Reserve Bank
2 12
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CFR 210.26(b).
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would continue to be able to pay direct
compensation to a depository institution
based on the federal funds rate in
accordance with § 210.32(b), which
incorporates by reference section 4A–
506 of article 4A of the Uniform
Commercial Code (UCC).3 The Board
specifically requested comment on the
following two items: whether use of the
federal funds rate for the calculation of
direct compensation is appropriate, and
if not, the rate that the Board should
use, and whether the Board should
eliminate § 210.32(b)(1) of Regulation J
entirely, as the Reserve Banks could
simply pay direct compensation based
on the provisions of UCC section 4A–
506, which is already incorporated into
Regulation J.
The Board received eight comments
concerning the elimination of references
to as-of adjustments. Commenters
generally supported this amendment.
One commenter requested that the debit
or credit entry post directly to the
account bearing the routing number of
the original transaction and that the
supporting documentation be forwarded
directly to the depository institution
holding that account. Two commenters
conditioned their support of this change
on Reserve Banks continuing to provide
depository institutions with information
on the error that occurred and the
calculation of the compensation
amount. With respect to compensation
at the federal funds rate, one commenter
stated that the federal funds rate should
be used while another commenter stated
that the rate for calculating the
compensation amount should be at least
equal to the federal funds rate. With
respect to the elimination of
§ 210.32(b)(1), one commenter
recommended that the Board eliminate
this section entirely and allow the
Reserve Banks to pay direct
compensation based on the provisions
of UCC section 4A–506, which is
already incorporated into Regulation J.
The Board is adopting §§ 210.3(a),
210.26(b), and 210.32(b) as proposed
(along with the corresponding
commentary). These final amendments
correspond to the Board’s adoption of
final amendments to Regulation D to
discontinue as-of adjustments related to
deposit report revisions and to replace
all other as-of adjustments with direct
compensation. Under the final rules, the
federal funds rate will be used for the
calculation of direct compensation. The
Board believes that the federal funds
rate is the appropriate rate for direct
compensation in order to ensure that a
3 Article 4A–506(b) states that if the amount of
interest is not determined by an agreement or rule,
the applicable federal funds rate would apply.
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depository institution does not gain or
lose in its position as a result of
accounting or administrative errors or
delays in transaction processing by
Reserve Banks. The Board believes it is
prudent to retain § 210.32(b)(1) to give
appropriate context to the subsequent
provision, § 210.32(b)(2), which
concerns the pass-through of
compensation to the appropriate party.
Under § 210.32(b)(2), an institution that
receives a compensation payment but is
not the party entitled to compensation
would continue to be required to pass
the benefit of that payment through to
the party entitled to compensation,
computed as the value of the payment
as if it had been passed through to the
entitled party on the day the Reserve
Bank effected payment to the
institution. The Board anticipates that
the Reserve Banks will make the
appropriate information and
documentation available to depository
institutions as may be needed to permit
institutions to reconcile accounts and
allocate charges or payments. For
example, information will be available
that helps describe the calculation of
direct compensation entries including
the error amount, the start and end date
of the error, and identification of the
originating service area. The Board also
anticipates that Reserve Banks will
provide institutions with contact
information for service areas processing
direct compensation entries so that
inquiries can be addressed.
Acceptance of Deposits of Items
Section 210.4 of Regulation J governs
the sending and handling of checks and
other items sent to Reserve Banks. The
Reserve Banks have long permitted
institutions to send checks to a Reserve
Bank other than the institution’s
Administrative Reserve Bank. These
‘‘direct sends’’ facilitate a more efficient
check-collection process. Section 210.4
currently specifies the identity and
order of the parties that are deemed to
handle a check or other item, whether
it is deposited electronically or in paper
form, that is sent to a Reserve Bank for
purposes of determining the rights and
liabilities of the parties under
Regulation J, Regulation CC (12 CFR
part 229), and the UCC. Specifically,
§ 210.4 provides that, for an item sent to
a Reserve Bank for collection, the
following parties are deemed to have
handled the item in the following order:
(1) The initial sender; (2) the initial
sender’s Administrative Reserve Bank; 4
4 An
institution’s Administrative Reserve Bank is
the Reserve Bank in whose District the institution
is located. 12 CFR 210.2(c), see section 204.3(g) of
Regulation D, 12 CFR 204.3(g) (location of
depository institutions).
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(3) the Reserve Bank that receives the
item from the initial sender (if different
from the initial sender’s Administrative
Reserve Bank); and (4) another Reserve
Bank, if any, that receives the item from
a Reserve Bank.
The Board proposed to amend
§ 210.4(b)(1)(ii) to clarify that, when an
Administrative Reserve Bank is deemed
to have ‘‘handled’’ a check sent directly
to another Reserve Bank, such
‘‘handling’’ of an item includes
accepting the item for deposit. Thus, for
purposes of determining the rights and
liabilities of parties that send and
handle checks and other items sent to a
Reserve Bank, the Administrative
Reserve Bank is deemed to have
accepted deposit of the item from the
initial sender even if the sender sends
the item directly to another Reserve
Bank. The Board further proposed to
clarify in § 210.4(b)(3) that, in addition
to Regulation J, Regulation CC, and the
UCC, the identity and order of the
parties in § 210.4(b) also determines the
relationships and the rights and
liabilities of the parties for purposes of
sections 13(1) and 16(13) of the Federal
Reserve Act, which govern deposits to
Reserve Banks.5
The Board received six comments
supporting this clarification and no
comments opposing the clarification.
The Board is adopting this clarification
as proposed.
Application of Regulation J to
‘‘Remittance Transfers’’
As noted above, Fedwire funds
transfers are governed by subpart B of
Regulation J. More specifically, subpart
B of Regulation J currently ‘‘governs a
funds transfer that is sent through
Fedwire * * * even though a portion of
the funds transfer is governed by the
Electronic Fund Transfer Act [EFTA],
but the portion of such funds transfer
that is governed by the [EFTA] is not
governed by’’ Regulation J.6 This
provision is slightly different from (and
supersedes) the scope of UCC Article
4A–108, which provides that Article 4A
does not apply ‘‘to a funds transfer, any
part of which is governed by the
[EFTA].’’ Prior to the adoption of the
recently enacted Dodd-Frank Wall
Street Reform and Consumer Protection
Act (Dodd-Frank Act), the exclusion
from Regulation J and Article 4A of
transactions governed by the EFTA did
not create any gaps or overlap because
the EFTA excluded from the definition
of ‘‘electronic fund transfer’’ wire
transfers over systems that are not
designed primarily for consumer
5 12
6 12
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U.S.C. 342 and 360.
CFR 210.25(b)(3).
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transfers (such as Fedwire).7 The DoddFrank Act, however, added new section
919 to the EFTA, which defines
‘‘remittance transfer’’ to include an
electronic transfer of funds requested by
a U.S. consumer sender through a
remittance transfer provider, whether or
not the remittance transfer is also an
electronic fund transfer as defined in
the EFTA. Therefore, a Fedwire funds
transfer could potentially be part of a
remittance transfer under the new
section 919 of the EFTA.8 Consequently,
under Regulation J’s current scope
provision (§ 210.25(b)(3)), Fedwire
funds transfers that meet the EFTA’s
definition of ‘‘remittance transfer’’ could
be viewed as ‘‘governed by’’ the EFTA
and therefore not governed by
Regulation J.
To avoid a gap in coverage for
Fedwire funds transfers, the Board
proposed to amend § 210.25 of
Regulation J to clarify that Regulation J
continues to apply to ‘‘remittance
transfers’’ as defined by the EFTA, to
the extent there is not an inconsistency
between Regulation J and section 919 of
the EFTA (in which case section 919
would prevail). The proposed
clarification was intended to ensure that
the provisions of Regulation J, and
therefore Article 4A of the UCC, apply
to all Fedwire funds transfers, except to
the extent that section 919 of the EFTA
and rules established thereunder apply.
The proposal included clarifications in
the commentary to § 210.25 as well.
Commenters generally supported this
clarification; however, three
commenters requested that the Board
coordinate with the Consumer Financial
Protection Bureau (CFPB) before
finalizing this rule due to outstanding
issues regarding the ‘‘remittance
transfer’’ final rule. Another commenter
supported the proposal but pointed out
that although this amendment will
clarify the application of Regulation J
for Fedwire transactions, the
clarification will not apply to nonFedwire wire transfers governed by
Article 4A.
The Board is adopting the
clarification to Regulation J as proposed.
At the time the Board published the
related proposal for this rulemaking, the
CFPB had yet to finalize amendments to
Regulation E to implement section 919
of the EFTA. The CFPB has since
finalized this rulemaking.9 The CFPB’s
final rule includes a discussion on the
7 15
U.S.C. 1693a(6)(B).
the Consumer Financial Protection Bureau’s
final amendments to Regulation E (12 CFR part
1005) to implement section 919 of the EFTA (77 FR
6194 (Feb. 7, 2012)).
9 77 FR 6194 (February 7, 2012).
8 See
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relationship between the EFTA and
Article 4A of the UCC.10
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Conforming Revisions
The Board is making non-substantive
changes in §§ 210.2, 210.10, and 210.11
to conform terminology to the final
amendments in Regulation D
concerning the use of various reserverelated terms. Regulation J § 210.2(a)
currently defines the term ‘‘account’’ as
an account with reserve or clearing
balances on the books of a Federal
Reserve Bank. Consistent with the
Regulation D final rulemaking, the
Board is amending § 210.2(a) to refer
simply to balances on the books of a
Federal Reserve Bank. In addition,
Regulation J §§ 210.10 and 210.11,
which concern the availability of credit
to depository institutions, currently
refer to ‘‘reserve.’’ Section 210.11(a), for
example, states that a Reserve Bank
shall provide credit of a noncash item
when it receives payment in actually
and finally collected funds and that the
amount of such noncash item ‘‘is
counted as reserve for purposes’’ of
Regulation D. Consistent with the final
amendments to Regulation D, the Board
is amending §§ 210.10(a) and 210.11(a),
(b), and (c) by replacing the term
‘‘reserve’’ with ‘‘balance maintained to
satisfy a reserve balance requirement.’’
Effective Date
The Board proposed that the effective
date for the elimination of references to
as-of adjustments be the same as the
effective date of the corresponding
amendments to Regulation D (no earlier
than the first quarter of 2012). The
Board proposed an effective date of 30
days after adoption of the final rule for
the other clarifications. The Board
received three comments concerning the
proposed effective dates. Two of these
commenters requested that the effective
date of the changes be staggered, with a
delayed effective date for the first
change of at least nine months. One of
these commenters stated that the
elimination of references to ‘‘as-of
adjustments’’ be made in conjunction
with the changes in Regulation D and
made effective no earlier than the first
quarter of 2013. This commenter also
recommended that the two clarifications
be made effective no earlier than the
first quarter of 2013 because banks have
already established their change
management plans for 2012 and the
clarifications will require additional
changes to policies and procedures.
The Board is setting the effective date
for the elimination of ‘‘as-of
adjustments’’ and changes to reserve
10 Id.
at 6211–6212.
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terminology as July 12, 2012. This is the
same effective date as that which has
been finalized for the corresponding
amendments to Regulation D. The Board
is setting the effective date for the other
two clarifications also as July 12, 2012.
Given that these amendments will not
require institutions to take any action or
incur any cost, the Board believes this
date is appropriate.
IV. Competitive Impact Analysis
As a matter of policy, the Board
subjects all operational and legal
changes that could have a substantial
effect on payment system participants to
a competitive impact analysis.11
Pursuant to this policy, the Board
assesses whether proposed changes
‘‘would have a direct and material
adverse effect on the ability of other
service providers to compete effectively
with the Federal Reserve in providing
similar services due to differing legal
powers or constraints or because of a
dominant market position of the Federal
Reserve deriving from such legal
differences.’’ If as a result of this
analysis the Board identifies an adverse
effect on the ability to compete, the
Board then assesses whether the
associated benefits—such as
improvements to payment system
efficiency or integrity—can be achieved
while minimizing the adverse effect on
competition.
The final amendments that eliminate
the use of as-of adjustments require
Reserve Banks to pay compensation in
the form of explicit interest under UCC
Article 4A–506, as is required of private
sector service providers. The final
amendments to section 210.4, clarifying
the status of the Administrative Reserve
Bank of a sender of a check, does not
affect the competitive position of the
`
Reserve Banks vis-a-vis private-sector
service providers. With respect to the
final amendments to section 210.25
(clarifying the applicability of
Regulation J to remittance transfers as
defined in the Electronic Fund Transfer
Act), private-sector funds transfer
systems may have the ability to adopt
clearing-house rules that will vary the
Uniform Commercial Code, although the
extent to which this variation may occur
remains unclear. Nevertheless, the
Board does not believe this difference in
certainty with respect to a small subset
of funds transfers will have a material
adverse effect on the ability of other
service providers to compete with the
Reserve Banks. Therefore, as noted in
the proposal, the Board does not believe
11 See ‘‘The Federal Reserve in the Payments
System,’’ Fed. Res. Reg. Svc. ¶¶ 9–1550, 9–1558
(Apr. 2009).
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21857
the amendments to Regulation J will
have any direct and material adverse
effect on the ability of other service
providers to compete with the Reserve
Banks.
V. Final Regulatory Flexibility Analysis
Congress enacted the Regulatory
Flexibility Act (the ‘‘RFA’’) (5 U.S.C.
601 et seq.) to address concerns related
to the effects of agency rules on small
entities and the Board is sensitive to the
impact its rules may impose on small
entities. The RFA requires agencies
either to provide an initial regulatory
flexibility analysis with a proposed rule
or to certify that the proposed rule will
not have a significant economic impact
on a substantial number of small
entities. In accordance with section 3(a)
of the RFA, the Board reviewed the
proposed regulation. In this case, the
rule applies to all depository
institutions. Based on current
information, the Board believes that the
rule would not have a significant
economic impact on a substantial
number of small entities (5 U.S.C.
605(b)). Nonetheless, the Board
prepared an Initial Regulatory
Flexibility Analysis in accordance with
5 U.S.C. 603 in order for the Board to
solicit comment on the potential impact
of the proposed rule on small entities.
The Board received no comments on its
request.
1. Statement of the need for,
objectives of, and legal basis for, the
final rule. The final amendments to
Regulation J eliminate references to ‘‘asof adjustments’’ consistent with the
Board’s amendments to Regulation D
(12 CFR part 204), which simplify
reserves administration. The
amendments also clarify that an
institution’s Administrative Reserve
Bank is deemed to have accepted
deposit of a check or other item even if
the institution sends the item directly to
another Federal Reserve Bank. The
amendments further clarify that
Regulation J continues to apply to a
Fedwire funds transfer even if the funds
transfer also meets the definition of
‘‘remittance transfer’’ under the
Electronic Fund Transfer Act. The
amendments also make conforming
changes to terminology.
2. Summary of significant issues
raised by public comment on the
Board’s initial analysis of issues, and a
statement of any changes made as a
result. The Board did not receive any
public comments on the proposed rule
addressing matters relating to the
Board’s initial regulatory flexibility
analysis.
3. Small entities affected by the final
rule. The rule affects all institutions that
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use Federal Reserve Bank check or wire
transfer services. Pursuant to regulations
issued by the Small Business
Administration (the ‘‘SBA’’) (13 CFR
121.201), a ‘‘small banking
organization’’ includes a depository
institution with $175 million or less in
total assets. Based on data reported as of
December 31, 2011, the Board believes
that there are approximately 10,313
small depository institutions,
approximately 2,754 of which have a
master account with a Federal Reserve
Bank.
4. Record keeping, reporting, and
other compliance requirements. The
final rule eliminates references to as-of
adjustments and replaces the use of asof adjustments with direct
compensation based on the federal
funds rate. As noted above, a depository
institution should not be harmed by this
amendment because the depository
institution will continue to be
compensated for the income effects of a
transaction error; the payment will
simply be in the form of direct
compensation instead of an as-of
adjustment. The other amendments to
Regulation J are clarifications and do
not impose new requirements on
depository institutions.
5. Identification of duplicative,
overlapping, or conflicting Federal
rules. The Board has not identified any
Federal rules that duplicate, overlap, or
conflict with the rule. The Board’s final
clarification to § 210.25 that relates to
Article 4A of the UCC actually avoids a
potential conflict that might arise by
operation of the EFTA and Regulation E.
6. Significant alternatives to the
proposed rule. The Board is unaware of
any significant alternatives to the rule
that accomplish the stated objectives of
the Board. Commenters did not suggest
any alternatives that would minimize
the impact of the rule on small entities.
VI. Paperwork Reduction Act Analysis
In accordance with the Paperwork
Reduction Act (PRA) of 1995 (44 U.S.C.
3506; 5 CFR part 1320 Appendix A.1),
the Board reviewed the final rule under
the authority delegated to the Board by
the Office of Management and Budget
(OMB). No collections of information
pursuant to the PRA are contained in
the final rule. The Board received no
comments on this analysis.
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List of Subjects in 12 CFR Part 210
Banks, banking, Federal Reserve
System.
Authority and Issuance
For the reasons set forth in the
preamble, the Board is amending
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Regulation J, 12 CFR part 210, as
follows:
PART 210—COLLECTION OF CHECKS
AND OTHER ITEMS BY FEDERAL
RESERVE BANKS AND FUNDS
TRANSFERS THROUGH FEDWIRE
(REGULATION J)
1. The authority citation for part 210
continues to read as follows:
■
Authority: 12 U.S.C. 248(i), (j), and (o),
342, 360, 464, 4001–4010, and 5001–5018.
2. In § 210.2, paragraph (a) is revised
to read as follows:
■
§ 210.2
Definitions.
*
*
*
*
*
(a) Account means an account on the
books of a Federal Reserve Bank. A
subaccount is an informational record of
a subset of transactions that affect an
account and is not a separate account.
*
*
*
*
*
■ 3. In § 210.3, paragraph (a) is revised
to read as follows:
§ 210.3
General provisions.
(a) General. Each Reserve Bank shall
receive and handle items in accordance
with this subpart, and shall issue
operating circulars governing the details
of its handling of items and other
matters deemed appropriate by the
Reserve Bank. The circulars may, among
other things, classify cash items and
noncash items, require separate sorts
and letters, provide different closing
times for the receipt of different classes
or types of items, provide for
instructions by an administrative
Reserve Bank to other Reserve Banks,
set forth terms of services, and establish
procedures for adjustments on a Reserve
Bank’s books, including amounts,
waiver of expenses, and payment of
compensation.
*
*
*
*
*
■ 4. Section 210.4 is revised to read as
follows:
§ 210.4
Sending items to Reserve Banks.
(a) Sending of items. A sender, other
than a Reserve Bank, may send any item
to any Reserve Bank, whether or not the
item is payable within the Reserve
Bank’s District, unless the sender’s
administrative Reserve Bank directs the
sender to send the item to a specific
Reserve Bank.
(b) Handling of items. (1) The
following parties, in the following order,
are deemed to have handled an item
that is sent to a Reserve Bank for
collection:
(i) The initial sender;
(ii) The initial sender’s administrative
Reserve Bank (which is deemed to have
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accepted deposit of the item from the
initial sender);
(iii) The Reserve Bank that receives
the item from the initial sender (if
different from the initial sender’s
administrative Reserve Bank); and
(iv) Another Reserve Bank, if any, that
receives the item from a Reserve Bank.
(2) A Reserve Bank that is not
described in paragraph (b)(1) of this
section is not a person that handles an
item and is not a collecting bank with
respect to an item.
(3) The identity and order of the
parties under paragraph (b)(1) of this
section determine the relationships and
the rights and liabilities of the parties
under this subpart, part 229 of this
chapter (Regulation CC), section 13(1)
and section 16(13) of the Federal
Reserve Act, and the Uniform
Commercial Code. An initial sender’s
administrative Reserve Bank that is
deemed to accept an item for deposit or
handle an item is also deemed to be a
sender with respect to that item. The
Reserve Banks that are deemed to
handle an item are deemed to be agents
or subagents of the owner of the item,
as provided in section 210.6(a) of this
subpart.
(c) Checks received at par. The
Reserve Banks shall receive cash items
and other checks at par.
■ 5. In § 210.10, paragraph (a) is revised
to read as follows:
§ 210.10 Time schedule and availability of
credits for cash items and returned checks.
(a) Each Reserve Bank shall include in
its operating circulars a time schedule
for each of its offices indicating when
the amount of any cash item or returned
check received by it is counted toward
the balance maintained to satisfy a
reserve balance requirement for
purposes of part 204 of this chapter
(Regulation D) and becomes available
for use by the sender or paying or
returning bank. The Reserve Bank that
holds the settlement account shall give
either immediate or deferred credit to a
sender, a paying bank, or a returning
bank (other than a foreign
correspondent) in accordance with the
time schedule of the receiving Reserve
Bank. A Reserve Bank ordinarily gives
credit to a foreign correspondent only
when the Reserve Bank receives
payment of the item in actually and
finally collected funds, but, in its
discretion, a Reserve Bank may give
immediate or deferred credit in
accordance with its time schedule.
*
*
*
*
*
■ 6. Section 210.11 is revised to read as
follows:
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§ 210.11 Availability of proceeds of
noncash items; time schedule.
(a) Availability of credit. A Reserve
Bank shall give credit to the sender for
the proceeds of a noncash item when it
receives payment in actually and finally
collected funds (or advice from another
Reserve Bank of such payment to it).
The amount of the item is counted
toward the balance maintained to satisfy
a reserve balance requirement for
purposes of part 204 of this chapter
(Regulation D) and becomes available
for use by the sender when the Reserve
Bank receives the payment or advice,
except as provided in paragraph (b) of
this section.
(b) Time schedule. A Reserve Bank
may give credit for the proceeds of a
noncash item subject to payment in
actually and finally collected funds in
accordance with a time schedule
included in its operating circulars. The
time schedule shall indicate when the
proceeds of the noncash item will be
counted toward the balance maintained
to satisfy a reserve balance requirement
for purposes of part 204 of this chapter
(Regulation D) and become available for
use by the sender. A Reserve Bank may,
however, refuse at any time to permit
the use of credit given by it for a
noncash item for which the Reserve
Bank has not yet received payment in
actually and finally collected funds.
(c) Handling of payment. If a Reserve
Bank receives, in payment for a noncash
item, a bank draft of other form of
payment that it elects to handle as a
noncash item, the Reserve Bank shall
neither count the proceeds toward the
balance maintained to satisfy a reserve
balance requirement for purposes of part
204 of this chapter (Regulation D) nor
make the proceeds available for use
until it receives payment in actually and
finally collected funds.
■ 7. In § 210.25, paragraphs (b)(1) and
(b)(3) are revised to read as follows:
§ 210.25
Authority, purpose, and scope.
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*
*
*
*
*
(b) * * *
(1) This subpart incorporates the
provisions of article 4A set forth in
appendix B to this subpart. In the event
of an inconsistency between the
provisions of the sections of this subpart
and appendix B to this subpart, the
provisions of the sections of this subpart
shall prevail. In the event of an
inconsistency between the provisions
this subpart and section 919 of the
Electronic Fund Transfer Act, section
919 of the Electronic Fund Transfer Act
shall prevail.
*
*
*
*
*
(3) This subpart governs a funds
transfer that is sent through Fedwire, as
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provided in paragraph (b)(2) of this
section, even though a portion of the
funds transfer is governed by the
Electronic Fund Transfer Act, but the
portion of such funds transfer that is
governed by the Electronic Fund
Transfer Act (other than section 919
governing remittance transfers) is not
governed by this subpart.
*
*
*
*
*
8. In § 210.26, paragraph (b) is
removed and reserved.
■
9. In § 210.32, paragraphs (b)(1) and
(b)(2) are revised to read as follows:
■
§ 210.32 Federal Reserve Bank liability;
payment of interest.
*
*
*
*
*
(b) * * *
(1) A Federal Reserve Bank shall
satisfy its obligation, or that of another
Federal Reserve Bank, to pay
compensation in the form of interest
under article 4A by paying
compensation in the form of interest to
its sender, its receiving bank, its
beneficiary, or another party to the
funds transfer that is entitled to such
payment, in an amount that is
calculated in accordance with section
4A–506 of article 4A.
(2) If the sender or receiving bank that
is the recipient of interest payment is
not the party entitled to compensation
under article 4A, the sender or receiving
bank shall pass through the benefit of
the interest payment by making an
interest payment, as of the day the
interest payment is effected, to the party
entitled to compensation. The interest
payment that is made to the party
entitled to compensation shall not be
less than the value of the interest
payment that was provided by the
Federal Reserve Bank to the sender or
receiving bank. The party entitled to
compensation may agree to accept
compensation in a form other than a
direct interest payment, provided that
such an alternative form of
compensation is not less than the value
of the interest payment that otherwise
would be made.
*
*
*
*
*
10. In appendix A to subpart B:
a. In Section 210.25, paragraph (b) is
revised.
■ b. In Section 210.26, paragraph (i) is
revised.
■ c. In Section 210.32, paragraph (b) is
revised.
The revisions read as follows:
■
■
Appendix A to Subpart B of Part 210—
Commentary
*
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*
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*
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*
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21859
Section 210.25—Authority, Purpose, and
Scope
*
*
*
*
*
(b) Scope. (1) Subpart B of this part
incorporates the provisions of article 4A set
forth in appendix B of this part. The
provisions set forth expressly in the sections
of subpart B of this part supersede or
preempt any inconsistent provisions of
article 4A as set forth in appendix B of this
part or as enacted in any state. The official
comments to article 4A are not incorporated
in subpart B of this part or this commentary
to subpart B of this part, but the official
comments may be useful in interpreting
article 4A. Because section 4A–105 refers to
other provisions of the Uniform Commercial
Code, e.g., definitions in article 1 of the UCC,
these other provisions of the UCC, as
approved by the National Conference of
Commissioners on Uniform State Laws and
the American Law Institute, from time to
time, are also incorporated in subpart B of
this part. Subpart B of this part applies to any
party to a Fedwire funds transfer that is in
privity with a Federal Reserve Bank. These
parties include a sender (bank or nonbank)
that sends a payment order directly to a
Federal Reserve Bank, a receiving bank that
receives a payment order directly from a
Federal Reserve Bank, and a beneficiary that
receives credit to an account that it uses or
maintains at a Federal Reserve Bank for a
payment order sent to a Federal Reserve
Bank. Other parties to a funds transfer are
covered by this subpart to the same extent
that this subpart would apply to them if this
subpart were a ‘‘funds-transfer system rule’’
under article 4A that selected subpart B of
this part as the governing law.
(2) The scope of the applicability of a
funds-transfer system rule under article 4A is
specified in section 4A–501(b), and the scope
of the choice of law provision is specified in
section 4A–507(c). Under section 4A–507(c),
a choice of law provision is binding on the
participants in a funds-transfer system and
certain other parties having notice that the
funds-transfer system might be used for the
funds transfer and of the choice of law
provision. The Uniform Commercial Code
provides that a person has notice when the
person has actual knowledge, receives
notification, or has reason to know from all
the facts and circumstances known to the
person at the time in question. (See UCC § 1–
201(25).) However, under sections 4A–507(b)
and 4A–507(d), a choice of law by agreement
of the parties takes precedence over a choice
of law made by funds-transfer system rule.
(3) If originators, receiving banks, and
beneficiaries that are not in privity with a
Federal Reserve Bank have the notice
contemplated by Section 4A–507(c) or if
those parties agree to be bound by subpart B
of this part, subpart B of this part generally
would apply to payment orders between
those remote parties, including participants
in other funds-transfer systems. For example,
a funds transfer may be sent from an
originator’s bank through a funds-transfer
system other than Fedwire to a receiving
bank which, in turn, sends a payment order
through Fedwire to execute the funds
transfer. Similarly, a Federal Reserve Bank
may execute a payment order through
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Fedwire to a receiving bank that sends it
through a funds-transfer system other than
Fedwire to a beneficiary’s bank. In the first
example, if the originator’s bank has notice
that Fedwire may be used to effect part of the
funds transfer, the sending of the payment
order through the other funds-transfer system
to the receiving bank will be governed by
subpart B of this part unless the parties to the
payment order have agreed otherwise. In the
second example, if the beneficiary’s bank has
notice that Fedwire may be used to effect part
of the funds transfer, the sending of the
payment order to the beneficiary’s bank
through the other funds-transfer system will
be governed by subpart B of this part unless
the parties have agreed otherwise. In both
cases, the other funds-transfer system’s rules
would also apply to, at a minimum, the
portion of these funds transfers going through
that funds transfer system. Because subpart B
of this part is federal law, to the extent of any
inconsistency, subpart B of this part will take
precedence over any funds-transfer system
rule applicable to the remote sender or
receiving bank or to a Federal Reserve Bank.
If remote parties to a funds transfer, a portion
of which is sent through Fedwire, have
expressly selected by agreement a law other
than subpart B of this part under section 4A–
507(b), subpart B of this part would not take
precedence over the choice of law made by
the agreement even though the remote parties
had notice that Fedwire may be used and of
the governing law. (See 4A–507(d).) In
addition, subpart B of this part would not
apply to a funds transfer sent through
another funds-transfer system where no
Federal Reserve Bank handles the funds
transfer, even though settlement for the funds
transfer is made by means of a separate net
settlement or funds transfer through Fedwire.
(4) Under section 4A–108, article 4A does
not apply to a funds transfer, any part of
which is governed by the Electronic Fund
Transfer Act (EFTA) (15 U.S.C. 1693 et seq.).
In general, Fedwire funds transfers to or from
consumer accounts are exempt from the
EFTA and Regulation E (12 CFR part 205). A
funds transfer from a consumer originator or
a funds transfer to a consumer beneficiary
could be carried out in part through Fedwire
and in part through an automated
clearinghouse or other means that is subject
to the EFTA or Regulation E. In these cases,
subpart B would not govern the portion of
the funds transfer that is governed by the
EFTA or Regulation E. (See the commentary
to section 210.26(i) in this appendix,
‘‘Payment Order’’.)
(5) Section 919 of the EFTA, however,
governs ‘‘remittance transfers,’’ which may
include Fedwire funds transfers. Section 919
of the EFTA sets out the obligations of
remittance transfer providers with respect to
consumer senders of remittance transfers.
Section 919 of the EFTA generally does not
affect the rights and obligations of financial
institutions involved in a remittance transfer.
To the extent that a Fedwire funds transfer
is a ‘‘remittance transfer’’ governed by
section 919 of the EFTA, it continues to be
governed by subpart B, except that, in the
event of an inconsistency between the
provisions of subpart B and section 919 of
the EFTA, section 919 of the EFTA shall
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prevail. For example, a consumer may
initiate a remittance transfer governed by
EFTA section 919 from the consumer’s
account at a depository institution, and the
depository institution may initiate that
transfer by sending a payment order to a
Reserve Bank through the Fedwire funds
system. If the consumer subsequently
exercised the right to cancel the remittance
transfer and obtain a refund under the terms
of EFTA section 919, the depository
institution would be required to comply with
section 919 even if the institution does not
have a right to reverse the payment order sent
to the Reserve Bank under subpart B.
(6) Finally, section 4A–404(a) provides that
a beneficiary’s bank is obliged to pay the
amount of a payment order to the beneficiary
on the payment date unless acceptance of the
payment order occurs on the payment date
after the close of the funds-transfer business
day of the bank. The Expedited Funds
Availability Act provides that funds received
by a bank by wire transfer shall be available
for withdrawal not later than the banking day
after the business day on which such funds
are received (12 U.S.C. 4002(a)). That act also
preempts any provision of state law that was
not effective on September 1, 1989, that is
inconsistent with that act or its implementing
Regulation CC (12 CFR 229). Accordingly, the
Expedited Funds Availability Act and
Regulation CC may preempt section 4A–
404(a) as enacted in any state. In order to
ensure that section 4A–404(a), or other
provisions of article 4A, as incorporated in
subpart B of this part, do not take precedence
over provisions of the Expedited Funds
Availability Act, this section provides that
where subpart B of this part establishes rights
or obligations that are also governed by the
Expedited Funds Availability Act or
Regulation CC, the Expedited Funds
Availability Act or Regulation CC provision
shall apply and subpart B of this part shall
not apply.
*
*
*
*
*
Section 210.26—Definitions
*
*
*
*
*
(i) Payment Order. (1) The definition of
‘‘payment order’’ in subpart B of this part
differs from the section 4A–103(a)(1)
definition. The subpart B definition clarifies
that, for the purposes of subpart B of this
part, automated clearinghouse transfers and
certain messages that are transmitted through
Fedwire are not payment orders. Federal
Reserve Banks and banks participating in
Fedwire send various types of messages
relating to payment orders or to other
matters, through Fedwire, that are not
intended to be payment orders. Under the
subpart B definition, these messages, and
messages involved with automated
clearinghouse transfers, are not ‘‘payment
orders’’ and therefore are not governed by
this subpart. The operating circulars of the
Federal Reserve Banks specify those
messages that may be transmitted through
Fedwire but that are not payment orders.
(2) In some cases, messages sent through
Fedwire, such as certain requests for credit
transfer, may be payment orders under article
4A, but are not treated as payment orders
under subpart B because they are not an
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instruction to a Federal Reserve Bank to pay
money.
(3) This subpart and article 4A govern a
payment order even though the originator’s
or beneficiary’s account may be a consumer
account established primarily for personal,
family, or household purposes. Under section
4A–108, article 4A does not apply to a funds
transfer any part of which is governed by the
Electronic Fund Transfer Act. That act, and
Regulation E (12 CFR part 205) implementing
it, do not apply to funds transfers through
Fedwire (see 15 U.S.C. 1693a(6)(B) and 12
CFR 205.3(b)), except that section 919 of the
Electronic Fund Transfer Act may govern a
Fedwire funds transfer that is a ‘‘remittance
transfer.’’ Such remittance transfers that are
Fedwire funds transfers continue to be
governed by this subpart. Thus, this subpart
applies to all funds transfers through Fedwire
even though some such transfers involve
originators or beneficiaries that are
consumers. (See also § 210.25(b) and
accompanying commentary.)
*
*
*
*
*
Section 210.32—Federal Reserve Bank
Liability; Payment of Interest
*
*
*
*
*
(b) Payment of interest. (1) Under article
4A, a Federal Reserve Bank may be required
to pay compensation in the form of interest
to another party in connection with its
handling of a funds transfer. For example,
payment of compensation in the form of
interest is required in certain situations
pursuant to sections 4A–204 (relating to
refund of payment and duty of customer to
report with respect to unauthorized payment
order), 4A–209 (relating to acceptance of
payment order), 4A–210 (relating to rejection
of payment order), 4A–304 (relating to duty
of sender to report erroneously executed
payment order), 4A–305 (relating to liability
for late or improper execution or failure to
execute a payment order), 4A–402 (relating to
obligation of sender to pay receiving bank),
and 4A–404 (relating to obligation of
beneficiary’s bank to pay and give notice to
beneficiary). Under section 4A–506(a), the
amount of such interest may be determined
by agreement between the sender and
receiving bank or by funds-transfer system
rule. If there is no such agreement, under
section 4A–506(b), the amount of interest is
based on the federal funds rate. Section
210.32(b) requires Federal Reserve Banks to
provide compensation through an explicit
interest payment.
(2) Interest would be calculated in
accordance with the procedures specified in
section 4A–506(b). Similarly, compensation
in the form of explicit interest will be paid
to government senders, receiving banks, or
beneficiaries described in § 210.25(d) if they
are entitled to interest under this subpart. A
Federal Reserve Bank may also, in its
discretion, pay explicit interest directly to a
remote party to a Fedwire funds transfer that
is entitled to interest, rather than providing
compensation to its direct sender or receiving
bank.
(3) If a bank that received an explicit
interest payment is not the party entitled to
interest compensation under article 4A, the
bank must pass the benefit of the explicit
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interest payment made to it to the party that
is entitled to compensation in the form of
interest from a Federal Reserve Bank. The
benefit may be passed on either in the form
of a direct payment of interest or in the form
of a compensating balance, if the party
entitled to interest agrees to accept the other
form of compensation, and the value of the
compensating balance is at least equivalent to
the value of the explicit interest that
otherwise would have been provided.
*
*
*
*
*
By order of the Board of Governors of the
Federal Reserve System, April 5, 2012.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. 2012–8563 Filed 4–11–12; 8:45 am]
BILLING CODE 6210–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. FAA–2012–0352; Special
Conditions No. 25–462–SC]
Special Conditions: Boeing, Model
777F; Enhanced Flight Vision System
Federal Aviation
Administration (FAA), DOT.
ACTION: Final special conditions; request
for comments.
AGENCY:
These special conditions are
issued for the Boeing Model 777F
airplane. This airplane, as modified by
the FedEx Express Corporation, will
have a novel or unusual design feature
associated with an advanced, enhanced
flight vision system (EFVS). The EFVS
consists of a head-up display (HUD)
system modified to display forwardlooking infrared (FLIR) imagery. The
applicable airworthiness regulations do
not contain adequate or appropriate
safety standards for this design feature.
These special conditions contain the
additional safety standards that the
Administrator considers necessary to
establish a level of safety equivalent to
that established by the existing
airworthiness standards.
DATES: The effective date of these
special conditions is March 22, 2012.
We must receive your comments by May
14, 2012.
ADDRESSES: Send comments identified
by docket number FAA–2012–0352
using any of the following methods:
• Federal eRegulations Portal: Go to
https://www.regulations.gov/ and follow
the online instructions for sending your
comments electronically.
• Mail: Send comments to Docket
Operations, M–30, U.S. Department of
Transportation (DOT), 1200 New Jersey
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SUMMARY:
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Avenue SE., Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE., Washington, DC, between
8 a.m. and 5 p.m., Monday through
Friday, except federal holidays.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
Privacy: The FAA will post all
comments it receives, without change,
to https://www.regulations.gov/,
including any personal information the
commenter provides. Using the search
function of the docket Web site, anyone
can find and read the electronic form of
all comments received into any FAA
docket, including the name of the
individual sending the comment (or
signing the comment for an association,
business, labor union, etc.). DOT’s
complete Privacy Act Statement can be
found in the Federal Register published
on April 11, 2000 (65 FR 19477–19478),
as well as at https://DocketsInfo.
dot.gov/.
Docket: Background documents or
comments received may be read at
https://www.regulations.gov/ at any time.
Follow the online instructions for
accessing the docket or go to the Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except federal holidays.
FOR FURTHER INFORMATION CONTACT: Dale
Dunford, FAA, Transport Standards
Staff, ANM–111, Transport Airplane
Directorate, Aircraft Certification
Service, 1601 Lind Avenue SW.,
Renton, Washington 98057–3356;
telephone 425–227–2239; fax 425–227–
1320; email: dale.dunford@faa.gov.
SUPPLEMENTARY INFORMATION: The FAA
has determined that notice of, and
opportunity for prior public comment
on, these special conditions are
impracticable because these procedures
would significantly delay issuance of
the design approval and thus delivery of
the affected aircraft. In addition, the
substance of these special conditions
has been subject to the public-comment
process in several prior instances with
no substantive comments received. The
FAA therefore finds that good cause
exists for making these special
conditions effective upon issuance.
21861
specific portion of the special
conditions, explain the reason for any
recommended change, and include
supporting data.
We will consider all comments we
receive on or before the closing date for
comments. We may change these special
conditions based on the comments we
receive.
Comments Invited
Background
On November 17, 2010, the FedEx
Express Corporation applied for a
supplemental type certificate for the
installation and operation of a HUD and
an EFVS in the Boeing Model 777F. The
original type certificate for the 777F
airplanes is T00001SE, Revision 28,
dated August 5, 2011.
The Boeing Model 777F is a transportcategory, cargo-carrying airplane that
operates with a crew of two. It is
powered by two General Electric GE90–
110B1 or GE90–115B turbofan engines,
has a maximum gross takeoff weight of
766,800 pounds, and a maximum range
of 4,900 nautical miles.
The electronic infrared image
displayed between the pilot and the
forward windshield represents a novel
or unusual design feature in the context
of Title 14, Code of Federal Regulations
(14 CFR) 25.773. Section 25.773 was not
written in anticipation of such
technology. The electronic image has
the potential to enhance the pilot’s
awareness of the terrain, hazards, and
airport features. At the same time, the
image may partially obscure the pilot’s
direct outside compartment view.
Therefore, the FAA needs adequate
safety standards to evaluate the EFVS to
determine that the imagery provides the
intended visual enhancements without
undue interference with the pilot’s
outside compartment view. The FAA’s
intent is that the pilot will be able to use
a combination of the information seen
in the image and the natural view of the
outside scene, as seen through the
image, as safely and effectively as a pilot
compartment view without an enhanced
vision system (EVS) image, and is
compliant with § 25.773.
Although the FAA has determined
that the existing regulations are not
adequate for certification of EFVSs, it
believes that EFVSs could be certified
through application of appropriate
safety criteria. Therefore, the FAA has
determined that special conditions
should be issued for certification of
EFVSs to provide a level of safety
equivalent to that provided by the
standard in § 25.773.
We invite interested people to take
part in this rulemaking by sending
written comments, data, or views. The
most helpful comments reference a
Note: The term ‘‘enhanced vision system’’
(EVS) in this document refers to a system
comprised of a head-up display (HUD),
imaging sensor(s), and avionics interfaces
PO 00000
Frm 00021
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]]>Agencies
[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Rules and Regulations]
[Pages 21854-21861]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8563]
-----------------------------------------------------------------------
FEDERAL RESERVE SYSTEM
12 CFR Part 210
[Regulation J; Docket No. R-1434]
RIN 7100 AD 84
Collection of Checks and Other Items by Federal Reserve Banks and
Funds Transfers Through Fedwire: Elimination of ``As-of Adjustments''
and Other Clarifications
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Board is amending Regulation J (Collection of Checks and
Other Items by Federal Reserve Banks and Funds Transfers through
Fedwire). The final rule eliminates references to ``as-of adjustments''
consistent with the Board's final amendments to Regulation D to
simplify reserves administration; clarifies that an institution's
Administrative Reserve Bank is deemed to have accepted deposit of a
check or other item even if the institution sends the item directly to
another Federal Reserve Bank; further clarifies that Regulation J
continues to apply to a Fedwire funds transfer even if the funds
transfer also meets the definition of ``remittance transfer'' under the
Electronic Fund Transfer Act; and makes other conforming revisions.
DATES: This final rule is effective July 12, 2012.
FOR FURTHER INFORMATION CONTACT: Kara Handzlik, Senior Attorney (202)
452-
[[Page 21855]]
3852, Legal Division; Margaret Gillis DeBoer, Assistant Director (202)
452-3139, or Heather Wiggins, Senior Financial Analyst (202) 452-3674,
Division of Monetary Affairs; or Joseph Baressi, Project Leader,
Division of Reserve Bank Operations and Payment Systems (202) 452-3959;
for users of Telecommunications Device for the Deaf (TDD) only, contact
(202) 263-4869; Board of Governors of the Federal Reserve System, 20th
and C Streets, NW., Washington, DC 20551.
SUPPLEMENTARY INFORMATION:
I. Background
Subpart A of Regulation J governs the collection of checks and
other items by the Federal Reserve Banks (Reserve Banks), including the
types of checks or other items that may be sent to Reserve Banks, the
order in which they are deemed to be handled, and the related
warranties and indemnities. Subpart B of Regulation J sets forth the
terms and conditions under which Reserve Banks receive and deliver
payment orders from and to depository institutions over the Reserve
Banks' Fedwire[supreg] Funds Service (Fedwire).
On October 18, 2011, the Board proposed amendments to Regulation J,
including the elimination of references throughout Regulation J to a
Reserve Bank's use of ``as-of adjustments'' (76 FR 64259). The Board
proposed these amendments, in part, to conform to proposed amendments
to Regulation D (12 CFR part 204) to simplify reserves
administration.\1\ The Board also proposed amendments to subpart A of
Regulation J to clarify where a check or other item is deemed to be
accepted when it is sent to a Reserve Bank. Specifically, the proposal
clarified that when an institution sends a check or other item for
collection to a Reserve Bank, the institution's Administrative Reserve
Bank is deemed to have accepted deposit of the item even if the item
was sent directly to another Reserve Bank. In addition, the Board
proposed amendments to clarify that subpart B of Regulation J continues
to apply to a Fedwire funds transfer even if that funds transfer also
meets the definition of ``remittance transfer'' under the recently
revised Electronic Fund Transfer Act (``EFTA''). After consideration of
the comments received, the Board is adopting the amendments to
Regulation J as proposed.
---------------------------------------------------------------------------
\1\ The proposed amendments to Regulation D were published in
the Federal Register on October 18, 2011 (76 FR 64250). The Board
proposed to discontinue the use of as-of adjustments for deposit
report revisions and to replace all other as-of adjustments with
direct compensation, create a common two-week maintenance period for
all depository institutions, create a penalty-free band around
reserve balance requirements in place of carryover and routine
waivers, and eliminate the contractual clearing balance program.
---------------------------------------------------------------------------
II. Request for Public Comment and Summary of Comments Received
The Board requested public comment on its October 2011 proposal to
amend Regulation J. The Board received a total of eight comments from
six financial institution trade associations, one depository
institution, and one association of depository institutions. Commenters
generally expressed support for the proposed amendments, although some
were concerned with various aspects of the proposal and provided
support contingent on certain conditions. These comments are discussed
in more detail below.
III. Analysis of Proposed Simplifications and Comments
Eliminate References to As-of Adjustments
Regulation J defines ``as-of adjustment'' for purposes of subpart B
of the regulation as ``a debit or credit, for reserve- or clearing-
balance maintenance purposes only, applied to the reserve or clearing
balance of a bank that either sends a payment order to a Federal
Reserve Bank, or that receives a payment order from a Federal Reserve
Bank, in lieu of an interest charge or payment.'' \2\ Regulation J
currently permits a Reserve Bank to use either an as-of adjustment or
direct compensation (at the federal funds rate) to compensate for an
error in transaction processing or other damages owed in connection
with a Fedwire funds transfer. Regulation J further provides in subpart
A that a Reserve Bank's operating circulars may include procedures for
paying interest in the form of as-of adjustments in relation to the
collection of checks and other items.
---------------------------------------------------------------------------
\2\ 12 CFR 210.26(b).
---------------------------------------------------------------------------
As noted above, the Board proposed to amend Regulation D to
simplify the rules governing the administration of reserve
requirements. The proposed Regulation D amendments included
discontinuing as-of adjustments related to deposit report revisions and
replacing all other as-of adjustments with direct compensation in the
form of either a debit or credit applied to an account to offset the
effect of an error. Consistent with its Regulation D proposal, the
Board proposed to amend Regulation J Sec. Sec. 210.3(a), 210.26(b),
and 210.32(b) (along with the corresponding commentary) to eliminate
references to as-of adjustments. Under the Board's Regulation J
proposal, a Reserve Bank would continue to be able to pay direct
compensation to a depository institution based on the federal funds
rate in accordance with Sec. 210.32(b), which incorporates by
reference section 4A-506 of article 4A of the Uniform Commercial Code
(UCC).\3\ The Board specifically requested comment on the following two
items: whether use of the federal funds rate for the calculation of
direct compensation is appropriate, and if not, the rate that the Board
should use, and whether the Board should eliminate Sec. 210.32(b)(1)
of Regulation J entirely, as the Reserve Banks could simply pay direct
compensation based on the provisions of UCC section 4A-506, which is
already incorporated into Regulation J.
---------------------------------------------------------------------------
\3\ Article 4A-506(b) states that if the amount of interest is
not determined by an agreement or rule, the applicable federal funds
rate would apply.
---------------------------------------------------------------------------
The Board received eight comments concerning the elimination of
references to as-of adjustments. Commenters generally supported this
amendment. One commenter requested that the debit or credit entry post
directly to the account bearing the routing number of the original
transaction and that the supporting documentation be forwarded directly
to the depository institution holding that account. Two commenters
conditioned their support of this change on Reserve Banks continuing to
provide depository institutions with information on the error that
occurred and the calculation of the compensation amount. With respect
to compensation at the federal funds rate, one commenter stated that
the federal funds rate should be used while another commenter stated
that the rate for calculating the compensation amount should be at
least equal to the federal funds rate. With respect to the elimination
of Sec. 210.32(b)(1), one commenter recommended that the Board
eliminate this section entirely and allow the Reserve Banks to pay
direct compensation based on the provisions of UCC section 4A-506,
which is already incorporated into Regulation J.
The Board is adopting Sec. Sec. 210.3(a), 210.26(b), and 210.32(b)
as proposed (along with the corresponding commentary). These final
amendments correspond to the Board's adoption of final amendments to
Regulation D to discontinue as-of adjustments related to deposit report
revisions and to replace all other as-of adjustments with direct
compensation. Under the final rules, the federal funds rate will be
used for the calculation of direct compensation. The Board believes
that the federal funds rate is the appropriate rate for direct
compensation in order to ensure that a
[[Page 21856]]
depository institution does not gain or lose in its position as a
result of accounting or administrative errors or delays in transaction
processing by Reserve Banks. The Board believes it is prudent to retain
Sec. 210.32(b)(1) to give appropriate context to the subsequent
provision, Sec. 210.32(b)(2), which concerns the pass-through of
compensation to the appropriate party. Under Sec. 210.32(b)(2), an
institution that receives a compensation payment but is not the party
entitled to compensation would continue to be required to pass the
benefit of that payment through to the party entitled to compensation,
computed as the value of the payment as if it had been passed through
to the entitled party on the day the Reserve Bank effected payment to
the institution. The Board anticipates that the Reserve Banks will make
the appropriate information and documentation available to depository
institutions as may be needed to permit institutions to reconcile
accounts and allocate charges or payments. For example, information
will be available that helps describe the calculation of direct
compensation entries including the error amount, the start and end date
of the error, and identification of the originating service area. The
Board also anticipates that Reserve Banks will provide institutions
with contact information for service areas processing direct
compensation entries so that inquiries can be addressed.
Acceptance of Deposits of Items
Section 210.4 of Regulation J governs the sending and handling of
checks and other items sent to Reserve Banks. The Reserve Banks have
long permitted institutions to send checks to a Reserve Bank other than
the institution's Administrative Reserve Bank. These ``direct sends''
facilitate a more efficient check-collection process. Section 210.4
currently specifies the identity and order of the parties that are
deemed to handle a check or other item, whether it is deposited
electronically or in paper form, that is sent to a Reserve Bank for
purposes of determining the rights and liabilities of the parties under
Regulation J, Regulation CC (12 CFR part 229), and the UCC.
Specifically, Sec. 210.4 provides that, for an item sent to a Reserve
Bank for collection, the following parties are deemed to have handled
the item in the following order: (1) The initial sender; (2) the
initial sender's Administrative Reserve Bank; \4\ (3) the Reserve Bank
that receives the item from the initial sender (if different from the
initial sender's Administrative Reserve Bank); and (4) another Reserve
Bank, if any, that receives the item from a Reserve Bank.
---------------------------------------------------------------------------
\4\ An institution's Administrative Reserve Bank is the Reserve
Bank in whose District the institution is located. 12 CFR 210.2(c),
see section 204.3(g) of Regulation D, 12 CFR 204.3(g) (location of
depository institutions).
---------------------------------------------------------------------------
The Board proposed to amend Sec. 210.4(b)(1)(ii) to clarify that,
when an Administrative Reserve Bank is deemed to have ``handled'' a
check sent directly to another Reserve Bank, such ``handling'' of an
item includes accepting the item for deposit. Thus, for purposes of
determining the rights and liabilities of parties that send and handle
checks and other items sent to a Reserve Bank, the Administrative
Reserve Bank is deemed to have accepted deposit of the item from the
initial sender even if the sender sends the item directly to another
Reserve Bank. The Board further proposed to clarify in Sec.
210.4(b)(3) that, in addition to Regulation J, Regulation CC, and the
UCC, the identity and order of the parties in Sec. 210.4(b) also
determines the relationships and the rights and liabilities of the
parties for purposes of sections 13(1) and 16(13) of the Federal
Reserve Act, which govern deposits to Reserve Banks.\5\
---------------------------------------------------------------------------
\5\ 12 U.S.C. 342 and 360.
---------------------------------------------------------------------------
The Board received six comments supporting this clarification and
no comments opposing the clarification. The Board is adopting this
clarification as proposed.
Application of Regulation J to ``Remittance Transfers''
As noted above, Fedwire funds transfers are governed by subpart B
of Regulation J. More specifically, subpart B of Regulation J currently
``governs a funds transfer that is sent through Fedwire * * * even
though a portion of the funds transfer is governed by the Electronic
Fund Transfer Act [EFTA], but the portion of such funds transfer that
is governed by the [EFTA] is not governed by'' Regulation J.\6\ This
provision is slightly different from (and supersedes) the scope of UCC
Article 4A-108, which provides that Article 4A does not apply ``to a
funds transfer, any part of which is governed by the [EFTA].'' Prior to
the adoption of the recently enacted Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank Act), the exclusion from Regulation
J and Article 4A of transactions governed by the EFTA did not create
any gaps or overlap because the EFTA excluded from the definition of
``electronic fund transfer'' wire transfers over systems that are not
designed primarily for consumer transfers (such as Fedwire).\7\ The
Dodd-Frank Act, however, added new section 919 to the EFTA, which
defines ``remittance transfer'' to include an electronic transfer of
funds requested by a U.S. consumer sender through a remittance transfer
provider, whether or not the remittance transfer is also an electronic
fund transfer as defined in the EFTA. Therefore, a Fedwire funds
transfer could potentially be part of a remittance transfer under the
new section 919 of the EFTA.\8\ Consequently, under Regulation J's
current scope provision (Sec. 210.25(b)(3)), Fedwire funds transfers
that meet the EFTA's definition of ``remittance transfer'' could be
viewed as ``governed by'' the EFTA and therefore not governed by
Regulation J.
---------------------------------------------------------------------------
\6\ 12 CFR 210.25(b)(3).
\7\ 15 U.S.C. 1693a(6)(B).
\8\ See the Consumer Financial Protection Bureau's final
amendments to Regulation E (12 CFR part 1005) to implement section
919 of the EFTA (77 FR 6194 (Feb. 7, 2012)).
---------------------------------------------------------------------------
To avoid a gap in coverage for Fedwire funds transfers, the Board
proposed to amend Sec. 210.25 of Regulation J to clarify that
Regulation J continues to apply to ``remittance transfers'' as defined
by the EFTA, to the extent there is not an inconsistency between
Regulation J and section 919 of the EFTA (in which case section 919
would prevail). The proposed clarification was intended to ensure that
the provisions of Regulation J, and therefore Article 4A of the UCC,
apply to all Fedwire funds transfers, except to the extent that section
919 of the EFTA and rules established thereunder apply. The proposal
included clarifications in the commentary to Sec. 210.25 as well.
Commenters generally supported this clarification; however, three
commenters requested that the Board coordinate with the Consumer
Financial Protection Bureau (CFPB) before finalizing this rule due to
outstanding issues regarding the ``remittance transfer'' final rule.
Another commenter supported the proposal but pointed out that although
this amendment will clarify the application of Regulation J for Fedwire
transactions, the clarification will not apply to non-Fedwire wire
transfers governed by Article 4A.
The Board is adopting the clarification to Regulation J as
proposed. At the time the Board published the related proposal for this
rulemaking, the CFPB had yet to finalize amendments to Regulation E to
implement section 919 of the EFTA. The CFPB has since finalized this
rulemaking.\9\ The CFPB's final rule includes a discussion on the
[[Page 21857]]
relationship between the EFTA and Article 4A of the UCC.\10\
---------------------------------------------------------------------------
\9\ 77 FR 6194 (February 7, 2012).
\10\ Id. at 6211-6212.
---------------------------------------------------------------------------
Conforming Revisions
The Board is making non-substantive changes in Sec. Sec. 210.2,
210.10, and 210.11 to conform terminology to the final amendments in
Regulation D concerning the use of various reserve-related terms.
Regulation J Sec. 210.2(a) currently defines the term ``account'' as
an account with reserve or clearing balances on the books of a Federal
Reserve Bank. Consistent with the Regulation D final rulemaking, the
Board is amending Sec. 210.2(a) to refer simply to balances on the
books of a Federal Reserve Bank. In addition, Regulation J Sec. Sec.
210.10 and 210.11, which concern the availability of credit to
depository institutions, currently refer to ``reserve.'' Section
210.11(a), for example, states that a Reserve Bank shall provide credit
of a noncash item when it receives payment in actually and finally
collected funds and that the amount of such noncash item ``is counted
as reserve for purposes'' of Regulation D. Consistent with the final
amendments to Regulation D, the Board is amending Sec. Sec. 210.10(a)
and 210.11(a), (b), and (c) by replacing the term ``reserve'' with
``balance maintained to satisfy a reserve balance requirement.''
Effective Date
The Board proposed that the effective date for the elimination of
references to as-of adjustments be the same as the effective date of
the corresponding amendments to Regulation D (no earlier than the first
quarter of 2012). The Board proposed an effective date of 30 days after
adoption of the final rule for the other clarifications. The Board
received three comments concerning the proposed effective dates. Two of
these commenters requested that the effective date of the changes be
staggered, with a delayed effective date for the first change of at
least nine months. One of these commenters stated that the elimination
of references to ``as-of adjustments'' be made in conjunction with the
changes in Regulation D and made effective no earlier than the first
quarter of 2013. This commenter also recommended that the two
clarifications be made effective no earlier than the first quarter of
2013 because banks have already established their change management
plans for 2012 and the clarifications will require additional changes
to policies and procedures.
The Board is setting the effective date for the elimination of
``as-of adjustments'' and changes to reserve terminology as July 12,
2012. This is the same effective date as that which has been finalized
for the corresponding amendments to Regulation D. The Board is setting
the effective date for the other two clarifications also as July 12,
2012. Given that these amendments will not require institutions to take
any action or incur any cost, the Board believes this date is
appropriate.
IV. Competitive Impact Analysis
As a matter of policy, the Board subjects all operational and legal
changes that could have a substantial effect on payment system
participants to a competitive impact analysis.\11\ Pursuant to this
policy, the Board assesses whether proposed changes ``would have a
direct and material adverse effect on the ability of other service
providers to compete effectively with the Federal Reserve in providing
similar services due to differing legal powers or constraints or
because of a dominant market position of the Federal Reserve deriving
from such legal differences.'' If as a result of this analysis the
Board identifies an adverse effect on the ability to compete, the Board
then assesses whether the associated benefits--such as improvements to
payment system efficiency or integrity--can be achieved while
minimizing the adverse effect on competition.
---------------------------------------------------------------------------
\11\ See ``The Federal Reserve in the Payments System,'' Fed.
Res. Reg. Svc. ]] 9-1550, 9-1558 (Apr. 2009).
---------------------------------------------------------------------------
The final amendments that eliminate the use of as-of adjustments
require Reserve Banks to pay compensation in the form of explicit
interest under UCC Article 4A-506, as is required of private sector
service providers. The final amendments to section 210.4, clarifying
the status of the Administrative Reserve Bank of a sender of a check,
does not affect the competitive position of the Reserve Banks vis-
[agrave]-vis private-sector service providers. With respect to the
final amendments to section 210.25 (clarifying the applicability of
Regulation J to remittance transfers as defined in the Electronic Fund
Transfer Act), private-sector funds transfer systems may have the
ability to adopt clearing-house rules that will vary the Uniform
Commercial Code, although the extent to which this variation may occur
remains unclear. Nevertheless, the Board does not believe this
difference in certainty with respect to a small subset of funds
transfers will have a material adverse effect on the ability of other
service providers to compete with the Reserve Banks. Therefore, as
noted in the proposal, the Board does not believe the amendments to
Regulation J will have any direct and material adverse effect on the
ability of other service providers to compete with the Reserve Banks.
V. Final Regulatory Flexibility Analysis
Congress enacted the Regulatory Flexibility Act (the ``RFA'') (5
U.S.C. 601 et seq.) to address concerns related to the effects of
agency rules on small entities and the Board is sensitive to the impact
its rules may impose on small entities. The RFA requires agencies
either to provide an initial regulatory flexibility analysis with a
proposed rule or to certify that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
In accordance with section 3(a) of the RFA, the Board reviewed the
proposed regulation. In this case, the rule applies to all depository
institutions. Based on current information, the Board believes that the
rule would not have a significant economic impact on a substantial
number of small entities (5 U.S.C. 605(b)). Nonetheless, the Board
prepared an Initial Regulatory Flexibility Analysis in accordance with
5 U.S.C. 603 in order for the Board to solicit comment on the potential
impact of the proposed rule on small entities. The Board received no
comments on its request.
1. Statement of the need for, objectives of, and legal basis for,
the final rule. The final amendments to Regulation J eliminate
references to ``as-of adjustments'' consistent with the Board's
amendments to Regulation D (12 CFR part 204), which simplify reserves
administration. The amendments also clarify that an institution's
Administrative Reserve Bank is deemed to have accepted deposit of a
check or other item even if the institution sends the item directly to
another Federal Reserve Bank. The amendments further clarify that
Regulation J continues to apply to a Fedwire funds transfer even if the
funds transfer also meets the definition of ``remittance transfer''
under the Electronic Fund Transfer Act. The amendments also make
conforming changes to terminology.
2. Summary of significant issues raised by public comment on the
Board's initial analysis of issues, and a statement of any changes made
as a result. The Board did not receive any public comments on the
proposed rule addressing matters relating to the Board's initial
regulatory flexibility analysis.
3. Small entities affected by the final rule. The rule affects all
institutions that
[[Page 21858]]
use Federal Reserve Bank check or wire transfer services. Pursuant to
regulations issued by the Small Business Administration (the ``SBA'')
(13 CFR 121.201), a ``small banking organization'' includes a
depository institution with $175 million or less in total assets. Based
on data reported as of December 31, 2011, the Board believes that there
are approximately 10,313 small depository institutions, approximately
2,754 of which have a master account with a Federal Reserve Bank.
4. Record keeping, reporting, and other compliance requirements.
The final rule eliminates references to as-of adjustments and replaces
the use of as-of adjustments with direct compensation based on the
federal funds rate. As noted above, a depository institution should not
be harmed by this amendment because the depository institution will
continue to be compensated for the income effects of a transaction
error; the payment will simply be in the form of direct compensation
instead of an as-of adjustment. The other amendments to Regulation J
are clarifications and do not impose new requirements on depository
institutions.
5. Identification of duplicative, overlapping, or conflicting
Federal rules. The Board has not identified any Federal rules that
duplicate, overlap, or conflict with the rule. The Board's final
clarification to Sec. 210.25 that relates to Article 4A of the UCC
actually avoids a potential conflict that might arise by operation of
the EFTA and Regulation E.
6. Significant alternatives to the proposed rule. The Board is
unaware of any significant alternatives to the rule that accomplish the
stated objectives of the Board. Commenters did not suggest any
alternatives that would minimize the impact of the rule on small
entities.
VI. Paperwork Reduction Act Analysis
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the
final rule under the authority delegated to the Board by the Office of
Management and Budget (OMB). No collections of information pursuant to
the PRA are contained in the final rule. The Board received no comments
on this analysis.
List of Subjects in 12 CFR Part 210
Banks, banking, Federal Reserve System.
Authority and Issuance
For the reasons set forth in the preamble, the Board is amending
Regulation J, 12 CFR part 210, as follows:
PART 210--COLLECTION OF CHECKS AND OTHER ITEMS BY FEDERAL RESERVE
BANKS AND FUNDS TRANSFERS THROUGH FEDWIRE (REGULATION J)
0
1. The authority citation for part 210 continues to read as follows:
Authority: 12 U.S.C. 248(i), (j), and (o), 342, 360, 464, 4001-
4010, and 5001-5018.
0
2. In Sec. 210.2, paragraph (a) is revised to read as follows:
Sec. 210.2 Definitions.
* * * * *
(a) Account means an account on the books of a Federal Reserve
Bank. A subaccount is an informational record of a subset of
transactions that affect an account and is not a separate account.
* * * * *
0
3. In Sec. 210.3, paragraph (a) is revised to read as follows:
Sec. 210.3 General provisions.
(a) General. Each Reserve Bank shall receive and handle items in
accordance with this subpart, and shall issue operating circulars
governing the details of its handling of items and other matters deemed
appropriate by the Reserve Bank. The circulars may, among other things,
classify cash items and noncash items, require separate sorts and
letters, provide different closing times for the receipt of different
classes or types of items, provide for instructions by an
administrative Reserve Bank to other Reserve Banks, set forth terms of
services, and establish procedures for adjustments on a Reserve Bank's
books, including amounts, waiver of expenses, and payment of
compensation.
* * * * *
0
4. Section 210.4 is revised to read as follows:
Sec. 210.4 Sending items to Reserve Banks.
(a) Sending of items. A sender, other than a Reserve Bank, may send
any item to any Reserve Bank, whether or not the item is payable within
the Reserve Bank's District, unless the sender's administrative Reserve
Bank directs the sender to send the item to a specific Reserve Bank.
(b) Handling of items. (1) The following parties, in the following
order, are deemed to have handled an item that is sent to a Reserve
Bank for collection:
(i) The initial sender;
(ii) The initial sender's administrative Reserve Bank (which is
deemed to have accepted deposit of the item from the initial sender);
(iii) The Reserve Bank that receives the item from the initial
sender (if different from the initial sender's administrative Reserve
Bank); and
(iv) Another Reserve Bank, if any, that receives the item from a
Reserve Bank.
(2) A Reserve Bank that is not described in paragraph (b)(1) of
this section is not a person that handles an item and is not a
collecting bank with respect to an item.
(3) The identity and order of the parties under paragraph (b)(1) of
this section determine the relationships and the rights and liabilities
of the parties under this subpart, part 229 of this chapter (Regulation
CC), section 13(1) and section 16(13) of the Federal Reserve Act, and
the Uniform Commercial Code. An initial sender's administrative Reserve
Bank that is deemed to accept an item for deposit or handle an item is
also deemed to be a sender with respect to that item. The Reserve Banks
that are deemed to handle an item are deemed to be agents or subagents
of the owner of the item, as provided in section 210.6(a) of this
subpart.
(c) Checks received at par. The Reserve Banks shall receive cash
items and other checks at par.
0
5. In Sec. 210.10, paragraph (a) is revised to read as follows:
Sec. 210.10 Time schedule and availability of credits for cash items
and returned checks.
(a) Each Reserve Bank shall include in its operating circulars a
time schedule for each of its offices indicating when the amount of any
cash item or returned check received by it is counted toward the
balance maintained to satisfy a reserve balance requirement for
purposes of part 204 of this chapter (Regulation D) and becomes
available for use by the sender or paying or returning bank. The
Reserve Bank that holds the settlement account shall give either
immediate or deferred credit to a sender, a paying bank, or a returning
bank (other than a foreign correspondent) in accordance with the time
schedule of the receiving Reserve Bank. A Reserve Bank ordinarily gives
credit to a foreign correspondent only when the Reserve Bank receives
payment of the item in actually and finally collected funds, but, in
its discretion, a Reserve Bank may give immediate or deferred credit in
accordance with its time schedule.
* * * * *
0
6. Section 210.11 is revised to read as follows:
[[Page 21859]]
Sec. 210.11 Availability of proceeds of noncash items; time schedule.
(a) Availability of credit. A Reserve Bank shall give credit to the
sender for the proceeds of a noncash item when it receives payment in
actually and finally collected funds (or advice from another Reserve
Bank of such payment to it). The amount of the item is counted toward
the balance maintained to satisfy a reserve balance requirement for
purposes of part 204 of this chapter (Regulation D) and becomes
available for use by the sender when the Reserve Bank receives the
payment or advice, except as provided in paragraph (b) of this section.
(b) Time schedule. A Reserve Bank may give credit for the proceeds
of a noncash item subject to payment in actually and finally collected
funds in accordance with a time schedule included in its operating
circulars. The time schedule shall indicate when the proceeds of the
noncash item will be counted toward the balance maintained to satisfy a
reserve balance requirement for purposes of part 204 of this chapter
(Regulation D) and become available for use by the sender. A Reserve
Bank may, however, refuse at any time to permit the use of credit given
by it for a noncash item for which the Reserve Bank has not yet
received payment in actually and finally collected funds.
(c) Handling of payment. If a Reserve Bank receives, in payment for
a noncash item, a bank draft of other form of payment that it elects to
handle as a noncash item, the Reserve Bank shall neither count the
proceeds toward the balance maintained to satisfy a reserve balance
requirement for purposes of part 204 of this chapter (Regulation D) nor
make the proceeds available for use until it receives payment in
actually and finally collected funds.
0
7. In Sec. 210.25, paragraphs (b)(1) and (b)(3) are revised to read as
follows:
Sec. 210.25 Authority, purpose, and scope.
* * * * *
(b) * * *
(1) This subpart incorporates the provisions of article 4A set
forth in appendix B to this subpart. In the event of an inconsistency
between the provisions of the sections of this subpart and appendix B
to this subpart, the provisions of the sections of this subpart shall
prevail. In the event of an inconsistency between the provisions this
subpart and section 919 of the Electronic Fund Transfer Act, section
919 of the Electronic Fund Transfer Act shall prevail.
* * * * *
(3) This subpart governs a funds transfer that is sent through
Fedwire, as provided in paragraph (b)(2) of this section, even though a
portion of the funds transfer is governed by the Electronic Fund
Transfer Act, but the portion of such funds transfer that is governed
by the Electronic Fund Transfer Act (other than section 919 governing
remittance transfers) is not governed by this subpart.
* * * * *
0
8. In Sec. 210.26, paragraph (b) is removed and reserved.
0
9. In Sec. 210.32, paragraphs (b)(1) and (b)(2) are revised to read as
follows:
Sec. 210.32 Federal Reserve Bank liability; payment of interest.
* * * * *
(b) * * *
(1) A Federal Reserve Bank shall satisfy its obligation, or that of
another Federal Reserve Bank, to pay compensation in the form of
interest under article 4A by paying compensation in the form of
interest to its sender, its receiving bank, its beneficiary, or another
party to the funds transfer that is entitled to such payment, in an
amount that is calculated in accordance with section 4A-506 of article
4A.
(2) If the sender or receiving bank that is the recipient of
interest payment is not the party entitled to compensation under
article 4A, the sender or receiving bank shall pass through the benefit
of the interest payment by making an interest payment, as of the day
the interest payment is effected, to the party entitled to
compensation. The interest payment that is made to the party entitled
to compensation shall not be less than the value of the interest
payment that was provided by the Federal Reserve Bank to the sender or
receiving bank. The party entitled to compensation may agree to accept
compensation in a form other than a direct interest payment, provided
that such an alternative form of compensation is not less than the
value of the interest payment that otherwise would be made.
* * * * *
0
10. In appendix A to subpart B:
0
a. In Section 210.25, paragraph (b) is revised.
0
b. In Section 210.26, paragraph (i) is revised.
0
c. In Section 210.32, paragraph (b) is revised.
The revisions read as follows:
Appendix A to Subpart B of Part 210--Commentary
* * * * *
Section 210.25--Authority, Purpose, and Scope
* * * * *
(b) Scope. (1) Subpart B of this part incorporates the
provisions of article 4A set forth in appendix B of this part. The
provisions set forth expressly in the sections of subpart B of this
part supersede or preempt any inconsistent provisions of article 4A
as set forth in appendix B of this part or as enacted in any state.
The official comments to article 4A are not incorporated in subpart
B of this part or this commentary to subpart B of this part, but the
official comments may be useful in interpreting article 4A. Because
section 4A-105 refers to other provisions of the Uniform Commercial
Code, e.g., definitions in article 1 of the UCC, these other
provisions of the UCC, as approved by the National Conference of
Commissioners on Uniform State Laws and the American Law Institute,
from time to time, are also incorporated in subpart B of this part.
Subpart B of this part applies to any party to a Fedwire funds
transfer that is in privity with a Federal Reserve Bank. These
parties include a sender (bank or nonbank) that sends a payment
order directly to a Federal Reserve Bank, a receiving bank that
receives a payment order directly from a Federal Reserve Bank, and a
beneficiary that receives credit to an account that it uses or
maintains at a Federal Reserve Bank for a payment order sent to a
Federal Reserve Bank. Other parties to a funds transfer are covered
by this subpart to the same extent that this subpart would apply to
them if this subpart were a ``funds-transfer system rule'' under
article 4A that selected subpart B of this part as the governing
law.
(2) The scope of the applicability of a funds-transfer system
rule under article 4A is specified in section 4A-501(b), and the
scope of the choice of law provision is specified in section 4A-
507(c). Under section 4A-507(c), a choice of law provision is
binding on the participants in a funds-transfer system and certain
other parties having notice that the funds-transfer system might be
used for the funds transfer and of the choice of law provision. The
Uniform Commercial Code provides that a person has notice when the
person has actual knowledge, receives notification, or has reason to
know from all the facts and circumstances known to the person at the
time in question. (See UCC Sec. 1-201(25).) However, under sections
4A-507(b) and 4A-507(d), a choice of law by agreement of the parties
takes precedence over a choice of law made by funds-transfer system
rule.
(3) If originators, receiving banks, and beneficiaries that are
not in privity with a Federal Reserve Bank have the notice
contemplated by Section 4A-507(c) or if those parties agree to be
bound by subpart B of this part, subpart B of this part generally
would apply to payment orders between those remote parties,
including participants in other funds-transfer systems. For example,
a funds transfer may be sent from an originator's bank through a
funds-transfer system other than Fedwire to a receiving bank which,
in turn, sends a payment order through Fedwire to execute the funds
transfer. Similarly, a Federal Reserve Bank may execute a payment
order through
[[Page 21860]]
Fedwire to a receiving bank that sends it through a funds-transfer
system other than Fedwire to a beneficiary's bank. In the first
example, if the originator's bank has notice that Fedwire may be
used to effect part of the funds transfer, the sending of the
payment order through the other funds-transfer system to the
receiving bank will be governed by subpart B of this part unless the
parties to the payment order have agreed otherwise. In the second
example, if the beneficiary's bank has notice that Fedwire may be
used to effect part of the funds transfer, the sending of the
payment order to the beneficiary's bank through the other funds-
transfer system will be governed by subpart B of this part unless
the parties have agreed otherwise. In both cases, the other funds-
transfer system's rules would also apply to, at a minimum, the
portion of these funds transfers going through that funds transfer
system. Because subpart B of this part is federal law, to the extent
of any inconsistency, subpart B of this part will take precedence
over any funds-transfer system rule applicable to the remote sender
or receiving bank or to a Federal Reserve Bank. If remote parties to
a funds transfer, a portion of which is sent through Fedwire, have
expressly selected by agreement a law other than subpart B of this
part under section 4A-507(b), subpart B of this part would not take
precedence over the choice of law made by the agreement even though
the remote parties had notice that Fedwire may be used and of the
governing law. (See 4A-507(d).) In addition, subpart B of this part
would not apply to a funds transfer sent through another funds-
transfer system where no Federal Reserve Bank handles the funds
transfer, even though settlement for the funds transfer is made by
means of a separate net settlement or funds transfer through
Fedwire.
(4) Under section 4A-108, article 4A does not apply to a funds
transfer, any part of which is governed by the Electronic Fund
Transfer Act (EFTA) (15 U.S.C. 1693 et seq.). In general, Fedwire
funds transfers to or from consumer accounts are exempt from the
EFTA and Regulation E (12 CFR part 205). A funds transfer from a
consumer originator or a funds transfer to a consumer beneficiary
could be carried out in part through Fedwire and in part through an
automated clearinghouse or other means that is subject to the EFTA
or Regulation E. In these cases, subpart B would not govern the
portion of the funds transfer that is governed by the EFTA or
Regulation E. (See the commentary to section 210.26(i) in this
appendix, ``Payment Order''.)
(5) Section 919 of the EFTA, however, governs ``remittance
transfers,'' which may include Fedwire funds transfers. Section 919
of the EFTA sets out the obligations of remittance transfer
providers with respect to consumer senders of remittance transfers.
Section 919 of the EFTA generally does not affect the rights and
obligations of financial institutions involved in a remittance
transfer. To the extent that a Fedwire funds transfer is a
``remittance transfer'' governed by section 919 of the EFTA, it
continues to be governed by subpart B, except that, in the event of
an inconsistency between the provisions of subpart B and section 919
of the EFTA, section 919 of the EFTA shall prevail. For example, a
consumer may initiate a remittance transfer governed by EFTA section
919 from the consumer's account at a depository institution, and the
depository institution may initiate that transfer by sending a
payment order to a Reserve Bank through the Fedwire funds system. If
the consumer subsequently exercised the right to cancel the
remittance transfer and obtain a refund under the terms of EFTA
section 919, the depository institution would be required to comply
with section 919 even if the institution does not have a right to
reverse the payment order sent to the Reserve Bank under subpart B.
(6) Finally, section 4A-404(a) provides that a beneficiary's
bank is obliged to pay the amount of a payment order to the
beneficiary on the payment date unless acceptance of the payment
order occurs on the payment date after the close of the funds-
transfer business day of the bank. The Expedited Funds Availability
Act provides that funds received by a bank by wire transfer shall be
available for withdrawal not later than the banking day after the
business day on which such funds are received (12 U.S.C. 4002(a)).
That act also preempts any provision of state law that was not
effective on September 1, 1989, that is inconsistent with that act
or its implementing Regulation CC (12 CFR 229). Accordingly, the
Expedited Funds Availability Act and Regulation CC may preempt
section 4A-404(a) as enacted in any state. In order to ensure that
section 4A-404(a), or other provisions of article 4A, as
incorporated in subpart B of this part, do not take precedence over
provisions of the Expedited Funds Availability Act, this section
provides that where subpart B of this part establishes rights or
obligations that are also governed by the Expedited Funds
Availability Act or Regulation CC, the Expedited Funds Availability
Act or Regulation CC provision shall apply and subpart B of this
part shall not apply.
* * * * *
Section 210.26--Definitions
* * * * *
(i) Payment Order. (1) The definition of ``payment order'' in
subpart B of this part differs from the section 4A-103(a)(1)
definition. The subpart B definition clarifies that, for the
purposes of subpart B of this part, automated clearinghouse
transfers and certain messages that are transmitted through Fedwire
are not payment orders. Federal Reserve Banks and banks
participating in Fedwire send various types of messages relating to
payment orders or to other matters, through Fedwire, that are not
intended to be payment orders. Under the subpart B definition, these
messages, and messages involved with automated clearinghouse
transfers, are not ``payment orders'' and therefore are not governed
by this subpart. The operating circulars of the Federal Reserve
Banks specify those messages that may be transmitted through Fedwire
but that are not payment orders.
(2) In some cases, messages sent through Fedwire, such as
certain requests for credit transfer, may be payment orders under
article 4A, but are not treated as payment orders under subpart B
because they are not an instruction to a Federal Reserve Bank to pay
money.
(3) This subpart and article 4A govern a payment order even
though the originator's or beneficiary's account may be a consumer
account established primarily for personal, family, or household
purposes. Under section 4A-108, article 4A does not apply to a funds
transfer any part of which is governed by the Electronic Fund
Transfer Act. That act, and Regulation E (12 CFR part 205)
implementing it, do not apply to funds transfers through Fedwire
(see 15 U.S.C. 1693a(6)(B) and 12 CFR 205.3(b)), except that section
919 of the Electronic Fund Transfer Act may govern a Fedwire funds
transfer that is a ``remittance transfer.'' Such remittance
transfers that are Fedwire funds transfers continue to be governed
by this subpart. Thus, this subpart applies to all funds transfers
through Fedwire even though some such transfers involve originators
or beneficiaries that are consumers. (See also Sec. 210.25(b) and
accompanying commentary.)
* * * * *
Section 210.32--Federal Reserve Bank Liability; Payment of Interest
* * * * *
(b) Payment of interest. (1) Under article 4A, a Federal Reserve
Bank may be required to pay compensation in the form of interest to
another party in connection with its handling of a funds transfer.
For example, payment of compensation in the form of interest is
required in certain situations pursuant to sections 4A-204 (relating
to refund of payment and duty of customer to report with respect to
unauthorized payment order), 4A-209 (relating to acceptance of
payment order), 4A-210 (relating to rejection of payment order), 4A-
304 (relating to duty of sender to report erroneously executed
payment order), 4A-305 (relating to liability for late or improper
execution or failure to execute a payment order), 4A-402 (relating
to obligation of sender to pay receiving bank), and 4A-404 (relating
to obligation of beneficiary's bank to pay and give notice to
beneficiary). Under section 4A-506(a), the amount of such interest
may be determined by agreement between the sender and receiving bank
or by funds-transfer system rule. If there is no such agreement,
under section 4A-506(b), the amount of interest is based on the
federal funds rate. Section 210.32(b) requires Federal Reserve Banks
to provide compensation through an explicit interest payment.
(2) Interest would be calculated in accordance with the
procedures specified in section 4A-506(b). Similarly, compensation
in the form of explicit interest will be paid to government senders,
receiving banks, or beneficiaries described in Sec. 210.25(d) if
they are entitled to interest under this subpart. A Federal Reserve
Bank may also, in its discretion, pay explicit interest directly to
a remote party to a Fedwire funds transfer that is entitled to
interest, rather than providing compensation to its direct sender or
receiving bank.
(3) If a bank that received an explicit interest payment is not
the party entitled to interest compensation under article 4A, the
bank must pass the benefit of the explicit
[[Page 21861]]
interest payment made to it to the party that is entitled to
compensation in the form of interest from a Federal Reserve Bank.
The benefit may be passed on either in the form of a direct payment
of interest or in the form of a compensating balance, if the party
entitled to interest agrees to accept the other form of
compensation, and the value of the compensating balance is at least
equivalent to the value of the explicit interest that otherwise
would have been provided.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, April 5, 2012.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. 2012-8563 Filed 4-11-12; 8:45 am]
BILLING CODE 6210-01-P
