Disclosures at Automated Teller Machines (Regulation E), 18221-18224 [2013-06861]
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18221
Rules and Regulations
Federal Register
Vol. 78, No. 58
Tuesday, March 26, 2013
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Part 1005
[Docket No. CFPB–2013–0006]
RIN 3170–AA36
Disclosures at Automated Teller
Machines (Regulation E)
Bureau of Consumer Financial
Protection.
ACTION: Final rule.
AGENCY:
SUMMARY: The Bureau of Consumer
Financial Protection is amending
Regulation E (Electronic Fund
Transfers), which implements the
Electronic Fund Transfer Act (EFTA),
and the official interpretation to the
regulation. In December 2012, Congress
passed and the President signed
legislation amending the EFTA to
eliminate a requirement that a fee notice
be posted on or at automated teller
machines, leaving in place the
requirement for a specific fee disclosure
to appear on the screen of that machine
or on paper issued from the machine.
This final rule amends Regulation E to
conform to the EFTA amendment.
DATE: This rule is effective on March 26,
2013.
FOR FURTHER INFORMATION CONTACT:
Joseph Devlin, Counsel, Office of
Regulations, Bureau of Consumer
Financial Protection, 1700 G Street NW.,
Washington, DC 20552, at (202) 435–
7700.
SUPPLEMENTARY INFORMATION:
I. Background
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ATM Fees
Consumers using automated teller
machines 1 (ATMs) not provided by
1 The new statutory amendment in Public Law
Number 112–216 uses the term ‘‘automatic teller
machine’’ in the title of the legislation, though the
Electronic Fund Transfer Act and Regulation E use
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their financial institution (foreign
ATMs) to withdraw money or check
balances will typically pay two fees for
a single transaction. First, the operator
of the foreign ATM (which may or may
not be a financial institution) will
usually impose a charge. A recent
survey indicates that the average ATM
charge imposed by foreign ATMs is
$2.40.2 Second, the consumer’s own
financial institution also may impose a
charge for using a foreign ATM. That
charge averages $1.40, according to the
same survey. Thus, the average total
charge for using a foreign ATM,
combining the foreign ATM fee and the
fee charged by the consumer’s own
financial institution, is $3.80. The
average foreign ATM charge has risen
steadily since 2004, when the charge
was less than $1.50.
The Electronic Fund Transfer Act
Congress amended the Electronic
Fund Transfer Act (EFTA) in 1999 to
require ATM fee disclosures to be both
(1) posted ‘‘in a prominent and
conspicuous location on or at the
[ATM],’’ and (2) provided on the screen
or on a paper notice issued from the
ATM. As amended, section 904(d)(3) of
the EFTA stated that the on-screen
notice had to include the specific
amount of the fee the consumer would
be charged by the foreign ATM operator,
but the notice posted ‘‘on or at’’ the
machine only had to disclose ‘‘the fact
that a fee is imposed by such operator
for providing the service.’’ Section
904(d)(3)(C) of the EFTA barred ATM
operators from charging a fee if the
disclosures did not occur. The ‘‘on or
at’’ notice usually involved a sticker
placed on the machine by the ATM
operator. The on-screen or paper notice
was required to be given ‘‘after the
transaction is initiated and before the
consumer is irrevocably committed to
completing the transaction.’’ The statute
allowed operators five years to
implement the technology needed to
disclose on the screen. The statute did
the term ‘‘automated teller machine.’’ The Bureau
considers the two terms to be synonymous.
2 Claes Bell, ATM fees march upward in 2011,
Bankrate.com (Sept. 26, 2011). https://
www.bankrate.com/finance/checking/atm-feesmarch-upward-in-2011.aspx. Fee information
updated in 2012 is also available from
Bankrate.com, but it is presented by metropolitan
area, not as a nationwide average. See https://
www.bankrate.com/finance/checking/checkingaccount-fees.aspx.
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not, however, provide that once the five
years elapsed operators could cease
providing the separate notice ‘‘on or at’’
the machine.
In a private cause of action brought by
a consumer for failure to provide the
required notices, an ATM operator
could be liable for actual damages,
statutory damages for individual or class
actions, and costs and attorney’s fees.3
However, in EFTA section 910(d),
Congress also established a broad
liability protection for the ATM operator
if the ATM notice ‘‘on or at’’ the
machine were damaged or removed
from the machine by someone else.4
Thus, the statute provides that an
operator is not liable if it posted the ‘‘on
or at’’ notice and someone else removed
or damaged it.5
Implementation of the 1999
Amendment
The Board of Governors of the Federal
Reserve System (Board) issued
regulations to implement the ATM
disclosure requirements in 2001 as part
of Regulation E, which implements
EFTA. Those regulations, which the
CFPB republished in 2011 after
authority to implement Regulation E
transferred to the Bureau, provide at 12
CFR 1005.16(c) that an ATM operator
must ‘‘[p]ost in a prominent and
conspicuous location on or at the
automated teller machine a notice that’’
a fee will or may be imposed ‘‘for
providing electronic fund transfer
services or for a balance inquiry.’’ The
regulation further implemented the
statute by requiring an on-screen or
paper notice that includes the amount of
the fee and is provided before the
consumer is committed to paying a fee.
Consistent with the statute prior to
the December 2012 amendment
necessitating this rule change, the
regulation does not require that the ‘‘on
or at’’ notice disclose the amount of the
fee. Also, operators are allowed to
disclose on or at the machine that a fee
‘‘may’’ be imposed—rather than ‘‘will’’
be imposed—if there are circumstances
3 15
U.S.C. 1693m(a); EFTA section 916.
U.S.C. 1693h(d), as adopted by section 705
of the Gramm-Leach Bliley Act, Public Law 106–
102 (1999).
5 The Conference Report reiterates this provision:
‘‘ATM operators are exempt from liability if
properly placed notices on the machines are
subsequently removed, damaged, or altered by
anyone other than the ATM operator.’’ H.R. Rep.
No. 106–434, at 178 (1999) (Conf. Rep.).
4 15
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in which an ATM fee may not be
charged. The Bureau believes that ‘‘on
or at’’ notices generally use the word
‘‘may.’’
The Official Interpretation to
Regulation E, in supplement I to part
1005, includes Comment 16(b)–1, which
explains the permissibility of the use of
the word ‘‘may’’ in the ‘‘on or at’’ the
machine disclosure, and makes clear
that an ATM operator may specify the
type of service for which a fee will or
may apply.
In the Board’s initial rulemaking
implementing the 1999 amendments to
the EFTA, some commenters requested
that the Board eliminate the ‘‘on or at’’
notice requirement. The Board,
however, responded that it lacked the
authority to do so: ‘‘Several commenters
requested action outside the scope of
the Board’s authority, such as deleting
the statutory requirement to post a sign
about fees at the ATM as unnecessary
and burdensome or prohibiting ATM
surcharges.’’ 66 FR 13409, 13410 (March
6, 2001).
The Bureau’s Streamlining Request for
Information
In 2011, rule-writing authority over
the EFTA was transferred to the Bureau
of Consumer Financial Protection
(Bureau) by the Dodd-Frank Wall Street
Reform and Consumer Protection Act
(Dodd-Frank Act). Public Law 111–203,
sec. 1061(b)(1), 124 Stat. 1376 (2010).
Shortly after the transfer, the Bureau
was made aware of long-standing
concerns that the ‘‘on or at’’ notice
requirement provides little or no benefit
to consumers and is the subject of costly
litigation alleging that the ‘‘on or at’’
notice was not properly posted.
Pursuant to those concerns, the Bureau
sought public comment on the
advisability of removing this
requirement in its Streamlining
Inherited Regulations Request for
Information (Streamlining RFI).6
Industry trade associations asked the
Bureau to remove the requirement if it
was within its authority to do so or, if
not, to clarify publicly that it lacked
such authority. Many individual banks
and credit unions also asked the Bureau
to remove the requirement. Many of the
strongly negative comments about the
requirement were from small entities,
including many small ATM operators.
An association of state bank regulators
and an individual state banking division
also favored removing the requirement.
Industry commenters argued that: (1)
The requirement does not benefit
consumers because almost all
6 76 FR 75825 (Dec. 5, 2011). This was one of
many issues on which the RFI solicited comment.
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consumers know that a fee will be
charged, and the on-screen disclosure
provides sufficient notice of the fee and
amount before the transaction takes
place; (2) vigilant compliance with the
provision adds to costs; (3) the litigation
over the provision is costly and
threatens the existence of some small
operators, potentially reducing ATM
availability for consumers; and (4) some
of the ‘‘on or at’’ notices are removed in
order to support litigation, and the
provision providing liability protection
is not sufficient because of evidentiary
problems.
In contrast, a joint letter of several
leading consumer and community
groups opposed removing the
requirement. In addition, four national
consumer groups wrote to Congress
opposing legislation to remove the
requirement. The consumer groups
proposed instead that the Bureau clarify
the statutory provision that gives ATM
operators immunity from liability in
certain cases. An attorney who has
brought cases against banks wrote two
comment letters to the Bureau in
support of the requirement.
The consumer advocates argued that:
(1) The Bureau has no authority to
remove the requirement without
Congressional action; (2) some
consumers are unaware that a foreign
ATM will charge a fee, and they will be
less likely to forgo a transaction they
have almost completed; (3) the ‘‘on or
at’’ notice may be the only indication a
consumer gets of the potential fee
charged by the consumer’s own
financial institution; and (4) ATM
operators who are the subject of
litigation have violated the law.
The December 2012 Statutory
Amendment
While the Bureau was considering
this issue, legislation amending the
relevant provision of the EFTA passed
Congress and was signed into law on
December 20, 2012 (December 2012
Legislation). Public Law 112–216. The
legislation amends only the specific
provision, at EFTA section 904(d)(3)(B),
addressing the ATM fee disclosures,
deleting the ‘‘on or at’’ requirement and
some obsolete transitional language. The
on-screen or paper disclosure
requirement remains unchanged.
II. Legal Authority
The Bureau is issuing this final rule
pursuant to its authority under EFTA
and the Dodd-Frank Act. Effective July
21, 2011, section 1061 of the DoddFrank Act transferred to the Bureau the
‘‘consumer financial protection
functions’’ previously vested in certain
other Federal agencies. The term
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‘‘consumer financial protection
functions’’ is defined to include ‘‘all
authority to prescribe rules or issue
orders or guidelines pursuant to any
Federal consumer financial law,
including performing appropriate
functions to promulgate and review
such rules, orders, and guidelines.’’ 7
EFTA is a Federal consumer financial
law.8 Accordingly, effective July 21,
2011, except with respect to persons
excluded from the Bureau’s rulemaking
authority by section 1029 of the DoddFrank Act, the authority of the Board to
issue regulations pursuant to EFTA
transferred to the Bureau.
EFTA, as amended by the Dodd-Frank
Act, authorizes the Bureau to ‘‘prescribe
rules to carry out the purposes of
[EFTA].’’ Public Law 111–203, sec.
1084(3); 15 U.S.C. 1693b(a). Section
904(d)(3) 9 of EFTA, as amended by
Dodd-Frank Act section 1084(1),
requires those rules to mandate specific
fee disclosures at ATMs.
III. Summary of the Final Rule
The December 2012 Legislation
deletes from the EFTA the requirement
that a fee notice be posted ‘‘on or at’’ an
ATM. The Bureau, therefore, is issuing
a final rule conforming Regulation E to
the statutory amendment eliminating
this requirement. Section 1005.16 of
Regulation E is now amended by
deleting the language requiring that
disclosure. ATM operators will now
only have to provide the on-screen or
paper disclosure, which includes the
amount of the fee to be charged and is
provided before the consumer is
committed to the transaction.
In addition to the deletion of the rule
language requiring the ‘‘on or at’’ the
machine disclosure, the Bureau is
deleting Official Comment 16(b)(1)–1,
which interpreted that requirement in
regard to the permissible use of the
word ‘‘may’’ in the disclosure, as well
as the use of more specific language in
making the ‘‘on or at’’ the machine
disclosure. Because the requirement to
which the comment pertains has been
eliminated, there is no longer a need for
this interpretation.
7 Public Law 111–203, sec. 1061(a)(1) (2010).
Effective on the designated transfer date, the Bureau
was also granted ‘‘all powers and duties’’ vested in
each of the Federal agencies, relating to the
consumer financial protection functions, on the day
before the designated transfer date. Id. sec. 1061(b).
8 Public Law 111–203, sec. 1002(14) (defining
‘‘Federal consumer financial law’’ to include the
‘‘enumerated consumer laws’’); id. Sec. 1002(12)
(defining ‘‘enumerated consumer laws’’ to include
EFTA).
9 15 U.S.C. 1693(d)(3).
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IV. Section 1022(b)(2) of the DoddFrank Act
In developing the final rule, the
Bureau has considered potential
benefits, costs, and impacts,10 and has
consulted or offered to consult with the
prudential regulators and the Federal
Trade Commission, including regarding
consistency with any prudential,
market, or systemic objectives
administered by such agencies.
The final rule deletes a requirement
that an ATM operator post a notice on
or at an ATM machine informing
consumers that a fee will or may be
charged for use of the machine. Because
this final rule merely conforms a
regulation to a mandatory statutory
amendment, and does not involve any
exercise of agency discretion, the
Bureau does not believe that the rule
itself will have any benefits, costs, or
impacts beyond those caused by the
statute. In addition, the Bureau does not
expect the final rule to cause a
reduction in consumer access to credit.
However, for informational purposes,
the following discussion considers the
benefits, costs, and impacts of the
statutory amendment being
implemented.
The Bureau believes that the benefits
of the ‘‘on or at’’ notice requirement for
consumers were likely more significant
when it was adopted than they are
today. The Bureau understands that
when the requirement was enacted in
1999, ATMs did not always disclose
fees on-screen. That is presumably why
the statute allowed the industry five
years to come into compliance with the
on-screen requirement. Thus, for several
years, the ‘‘on or at’’ notice might be the
only fee disclosure a consumer would
receive at the ATM.
Now, however, the Bureau believes
that awareness that foreign ATMs
charge a fee is already widespread, and
thus the ‘‘on or at’’ notice provides little
benefit to consumers with respect to
foreign ATM fees.11 Moreover, the ‘‘on
10 Specifically, section 1022(b)(2)(A) calls for the
Bureau to consider the potential benefits and costs
of a regulation to consumers and covered persons,
including the potential reduction of access by
consumers to consumer financial products or
services; the impact on depository institutions and
credit unions with $10 billion or less in total assets
as described in section 1026 of the Act; and the
impact on consumers in rural areas. The manner
and extent to which the provisions of section
1022(b)(2) apply to a rule of this kind are unclear.
Nevertheless, to inform this rulemaking more fully,
the Bureau performed the described analyses and
consultations.
11 The Bureau found only one study of awareness,
which is over a decade old. A 2000 consumer
survey commissioned by an ATM network (PULSE)
found that 86 percent of consumers surveyed said
they were adequately informed of charges they
sometimes pay to withdraw cash from ATMs. The
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or at’’ notice contains much less useful
information about the foreign ATM fee
than the on-screen disclosure. The ‘‘on
or at’’ notice does not tell the consumer
the amount of the fee or whether or not
a fee will be charged—it usually only
states that a fee ‘‘may’’ be charged. For
these reasons, the Bureau considers the
consumer benefit from the requirement
being eliminated to be minimal.
In contrast, the Bureau considers the
on-screen disclosure of the foreign fee
amount and the screen’s prompt
requiring the consumer to agree to the
fee to be a more effective means of
disclosure. Although the consumer must
begin the transaction before receiving
this disclosure, the disclosure must
occur before the transaction is
completed, and the consumer then has
the necessary price information before
purchasing the service. The Bureau
understands that fees at foreign ATMs
have been increasing, so a disclosure of
the specific price before purchase
appears to be the most effective way to
empower consumers in regard to this
type of transaction. This consumer
benefit will continue undisturbed when
the ‘‘on or at’’ the machine disclosure is
eliminated.
In regard to a consumer’s own
financial institution charging a fee for
using a foreign ATM, neither the
regulation nor the statute currently
requires the ATM operator to disclose
the potential existence or amount of that
fee, of which the foreign ATM operator
has no knowledge. Rather, the
consumer’s financial institution is
required to disclose the fee when the
account is opened and on a monthly
statement when the fee is charged.12
Also, the ongoing nature of consumers’
relationships with their own financial
institutions should help to discipline
fee pricing better than a disclosure given
as part of the one-off transactions that
often occur with foreign ATMs.
Accordingly, the ATM fee charged by
consumers’ own financial institutions
for use of foreign ATMs appears to be
less potentially harmful for consumers
in the first place, and the disclosure that
PULSE network, Pulsations (May 2000). Moreover,
96 percent of consumers who said they paid a
surcharge in the last 14 days reported feeling that
ATM fee disclosures were sufficient. The Bureau
believes this survey has limited value since
respondents may have felt disclosures were
adequate but have been ignorant of the fees.
Moreover, it is possible that consumers claimed
awareness in part because they had read the notice
‘‘on or at’’ the ATM. However, the Bureau believes
that whatever the level of awareness of foreign
institution fees, the level will not drop significantly
when the notice on or at the ATM is removed. The
on-screen disclosure is clear and pointed and
requires the consumer affirmatively to accept the
fee before proceeding.
12 12 CFR 1005.7(b)(5), 12 CFR 1005.9(b)(3).
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18223
is being eliminated provided minimal
consumer benefit in regard to it.
The compliance burden of the
disclosure being eliminated appears not
to have been very large. Costs included
purchase of stickers or other disclosure
means, personnel costs for placing and
replacing stickers or other disclosure
means, and monitoring whether or not
the disclosures remained present and
undamaged. Because the machines
would need to be serviced and stocked
regularly, it is likely that little extra
travel or work time was needed.
However, there was some burden,
which is now being eliminated.
The statutory amendment and this
conforming final rule have no unique
impact on insured depository
institutions or insured credit unions
with $10 billion or less in assets as
described in section 1026 of the DoddFrank Act, nor does the amendment or
this rule have a unique impact on rural
consumers.
V. Administrative Procedure Act
Under the Administrative Procedure
Act (APA), notice and opportunity for
public comment are not required if the
Bureau finds that notice and public
comment are impracticable,
unnecessary, or contrary to the public
interest. 5 U.S.C. 553(b)(B). Pursuant to
this final rule, 12 CFR 1005.16 is
amended to conform to a statutory
change. The Bureau finds there is good
cause under APA section 553 to issue
this amendment to Regulation E as a
final rule without advance notice and
public comment because ‘‘notice and
public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.’’
Because the December 2012
Legislation mandates the elimination of
the ‘‘on or at’’ the machine disclosure
requirement, notice-and-comment
procedures on this rule are unnecessary.
Any delay in conforming the regulation
to Congress’s mandate as a result of
such procedures would perpetuate
inconsistency and confusion contrary to
the public interest. Moreover, the
Bureau is already informed as to the
major concerns of stakeholders in this
issue through the public comments
received in response to the Streamlining
RFI. For these reasons, the Bureau has
determined that publishing a notice of
proposed rulemaking and providing
opportunity for public comment are
unnecessary and contrary to the public
interest. The Bureau adopts the
amendment in final form.
Further, under section 553(d) of the
APA, the required publication or service
of a substantive rule must be made not
less than 30 days before its effective
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date except for certain instances,
including when a substantive rule
grants or recognizes an exemption or
relieves a restriction. 5 U.S.C. 553(d). As
this rule relieves a disclosure
requirement and restriction on charging
ATM fees, and is therefore a substantive
rule that relieves requirements and
restrictions, the Bureau is publishing
this final rule less than 30 days before
its effective date. As it is in the public
interest to make the regulation conform
to the statute as soon as possible, the
Bureau is making the final rule effective
immediately upon publication in the
Federal Register.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
does not apply to a rulemaking where
general notice of proposed rulemaking
is not required. 5 U.S.C. 603 and 604.
As noted previously, the Bureau has
determined that it is unnecessary to
publish a general notice of proposed
rulemaking for this final rule.
Accordingly the RFA’s requirements
relating to an initial and final regulatory
flexibility analysis do not apply.
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VII. Paperwork Reduction Act
According to the Paperwork
Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., and notwithstanding any
other provisions of law, the Bureau may
not conduct or sponsor, and a
respondent is not required to respond
to, an information collection unless it
displays a valid Office of Management
and Budget (OMB) control number. The
collection of information related to this
final rule has been previously reviewed
and approved by the Office of
Management and Budget (OMB) in
accordance with the PRA, 44 U.S.C.
3507(d), and assigned OMB Control
Number 3170–0014 (Expiration Date 03/
31/15). The Bureau determined that this
final rule would not impose any new
recordkeeping, reporting, or disclosure
requirements on covered entities or
members of the public that would
constitute collections of information
requiring approval under the PRA. This
final rule revises a third-party
disclosure requirement currently
approved under the aforementioned
OMB control number by eliminating the
requirement that ATMs have an ‘‘on or
at’’ notice posted disclosing that a
consumer will or may be charged a fee.
The Bureau has filed a no material nonsubstantive change request with OMB
requesting that this third-party
disclosure requirement be moved from
OMB control number 3170–0014.
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List of Subjects in 12 CFR Part 1005
DEPARTMENT OF TRANSPORTATION
Consumer protection, Electronic
funds transfers, Reporting and
recordkeeping requirements, Automated
teller machines.
Federal Aviation Administration
Authority and Issuance
For the reasons set forth above, the
Bureau is amending Regulation E, 12
CFR part 1005, as set forth below:
PART 1005—ELECTRONIC FUND
TRANSFERS (REGULATION E)
1. The authority citation for Part 1005
continues to read as follows:
■
Authority: 12 U.S.C. 5512, 5581; 15 U.S.C.
1693b.
2. Amend § 1005.16 by revising
paragraphs (b) through (d) to read as
follows:
■
§ 1005.16 Disclosures at automated teller
machines.
*
*
*
*
*
(b) General. An automated teller
machine operator that imposes a fee on
a consumer for initiating an electronic
fund transfer or a balance inquiry must
provide a notice that a fee will be
imposed for providing electronic fund
transfer services or a balance inquiry
that discloses the amount of the fee.
(c) Notice requirement. An automated
teller machine operator must provide
the notice required by paragraph (b) of
this section either by showing it on the
screen of the automated teller machine
or by providing it on paper, before the
consumer is committed to paying a fee.
(d) Imposition of fee. An automated
teller machine operator may impose a
fee on a consumer for initiating an
electronic fund transfer or a balance
inquiry only if:
(1) The consumer is provided the
notice required under paragraph (c) of
this section, and
(2) The consumer elects to continue
the transaction or inquiry after receiving
such notice.
Supplement I to Part 1005
[Amended]
3. In Supplement I to Part 1005,
remove Section 1005.16.
■
Dated: March 20, 2013.
Richard Cordray,
Director, Bureau of Consumer Financial
Protection.
[FR Doc. 2013–06861 Filed 3–25–13; 8:45 am]
BILLING CODE 4810–AM–P
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14 CFR Part 39
[Docket No. FAA–2012–1088; Directorate
Identifier 2012–SW–005–AD; Amendment
39–17387; AD 2013–05–15]
RIN 2120–AA64
Airworthiness Directives; Robinson
Helicopter Company Helicopters
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: We are adopting a new
airworthiness directive (AD) for
Robinson Helicopter Company
(Robinson) Model R44 and R44 II
helicopters equipped with emergency
floats. This AD requires replacing the
inflation valve assembly. This AD was
prompted by the failure of the
emergency floats to deploy during a
factory test because a needle was
binding within the inflation valve
assembly. The actions are intended to
prevent the failure of the floats to inflate
during an emergency landing.
DATES: This AD is effective April 30,
2013.
ADDRESSES: For service information
identified in this AD, contact Robinson
Helicopter Company, 2901 Airport
Drive, Torrance, CA 90505; telephone
(310) 539–0508; fax (310) 539–5198; or
at https://www.robinsonheli.com. You
may review a copy of the referenced
service information at the FAA, Office
of the Regional Counsel, Southwest
Region, 2601 Meacham Blvd., Room
663, Fort Worth, Texas 76137.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov or in person at the
Docket Operations Office between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD
docket contains this AD, any
incorporated-by-reference service
information, the economic evaluation,
any comments received, and other
information. The street address for the
Docket Operations Office (phone: 800–
647–5527) is U.S. Department of
Transportation, Docket Operations
Office, M–30, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT:
Venessa Stiger, Aerospace Engineer,
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[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Rules and Regulations]
[Pages 18221-18224]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-06861]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 78, No. 58 / Tuesday, March 26, 2013 / Rules
and Regulations
[[Page 18221]]
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BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1005
[Docket No. CFPB-2013-0006]
RIN 3170-AA36
Disclosures at Automated Teller Machines (Regulation E)
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Final rule.
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SUMMARY: The Bureau of Consumer Financial Protection is amending
Regulation E (Electronic Fund Transfers), which implements the
Electronic Fund Transfer Act (EFTA), and the official interpretation to
the regulation. In December 2012, Congress passed and the President
signed legislation amending the EFTA to eliminate a requirement that a
fee notice be posted on or at automated teller machines, leaving in
place the requirement for a specific fee disclosure to appear on the
screen of that machine or on paper issued from the machine. This final
rule amends Regulation E to conform to the EFTA amendment.
DATE: This rule is effective on March 26, 2013.
FOR FURTHER INFORMATION CONTACT: Joseph Devlin, Counsel, Office of
Regulations, Bureau of Consumer Financial Protection, 1700 G Street
NW., Washington, DC 20552, at (202) 435-7700.
SUPPLEMENTARY INFORMATION:
I. Background
ATM Fees
Consumers using automated teller machines \1\ (ATMs) not provided
by their financial institution (foreign ATMs) to withdraw money or
check balances will typically pay two fees for a single transaction.
First, the operator of the foreign ATM (which may or may not be a
financial institution) will usually impose a charge. A recent survey
indicates that the average ATM charge imposed by foreign ATMs is
$2.40.\2\ Second, the consumer's own financial institution also may
impose a charge for using a foreign ATM. That charge averages $1.40,
according to the same survey. Thus, the average total charge for using
a foreign ATM, combining the foreign ATM fee and the fee charged by the
consumer's own financial institution, is $3.80. The average foreign ATM
charge has risen steadily since 2004, when the charge was less than
$1.50.
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\1\ The new statutory amendment in Public Law Number 112-216
uses the term ``automatic teller machine'' in the title of the
legislation, though the Electronic Fund Transfer Act and Regulation
E use the term ``automated teller machine.'' The Bureau considers
the two terms to be synonymous.
\2\ Claes Bell, ATM fees march upward in 2011, Bankrate.com
(Sept. 26, 2011). https://www.bankrate.com/finance/checking/atm-fees-march-upward-in-2011.aspx. Fee information updated in 2012 is also
available from Bankrate.com, but it is presented by metropolitan
area, not as a nationwide average. See https://www.bankrate.com/finance/checking/checking-account-fees.aspx.
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The Electronic Fund Transfer Act
Congress amended the Electronic Fund Transfer Act (EFTA) in 1999 to
require ATM fee disclosures to be both (1) posted ``in a prominent and
conspicuous location on or at the [ATM],'' and (2) provided on the
screen or on a paper notice issued from the ATM. As amended, section
904(d)(3) of the EFTA stated that the on-screen notice had to include
the specific amount of the fee the consumer would be charged by the
foreign ATM operator, but the notice posted ``on or at'' the machine
only had to disclose ``the fact that a fee is imposed by such operator
for providing the service.'' Section 904(d)(3)(C) of the EFTA barred
ATM operators from charging a fee if the disclosures did not occur. The
``on or at'' notice usually involved a sticker placed on the machine by
the ATM operator. The on-screen or paper notice was required to be
given ``after the transaction is initiated and before the consumer is
irrevocably committed to completing the transaction.'' The statute
allowed operators five years to implement the technology needed to
disclose on the screen. The statute did not, however, provide that once
the five years elapsed operators could cease providing the separate
notice ``on or at'' the machine.
In a private cause of action brought by a consumer for failure to
provide the required notices, an ATM operator could be liable for
actual damages, statutory damages for individual or class actions, and
costs and attorney's fees.\3\ However, in EFTA section 910(d), Congress
also established a broad liability protection for the ATM operator if
the ATM notice ``on or at'' the machine were damaged or removed from
the machine by someone else.\4\ Thus, the statute provides that an
operator is not liable if it posted the ``on or at'' notice and someone
else removed or damaged it.\5\
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\3\ 15 U.S.C. 1693m(a); EFTA section 916.
\4\ 15 U.S.C. 1693h(d), as adopted by section 705 of the Gramm-
Leach Bliley Act, Public Law 106-102 (1999).
\5\ The Conference Report reiterates this provision: ``ATM
operators are exempt from liability if properly placed notices on
the machines are subsequently removed, damaged, or altered by anyone
other than the ATM operator.'' H.R. Rep. No. 106-434, at 178 (1999)
(Conf. Rep.).
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Implementation of the 1999 Amendment
The Board of Governors of the Federal Reserve System (Board) issued
regulations to implement the ATM disclosure requirements in 2001 as
part of Regulation E, which implements EFTA. Those regulations, which
the CFPB republished in 2011 after authority to implement Regulation E
transferred to the Bureau, provide at 12 CFR 1005.16(c) that an ATM
operator must ``[p]ost in a prominent and conspicuous location on or at
the automated teller machine a notice that'' a fee will or may be
imposed ``for providing electronic fund transfer services or for a
balance inquiry.'' The regulation further implemented the statute by
requiring an on-screen or paper notice that includes the amount of the
fee and is provided before the consumer is committed to paying a fee.
Consistent with the statute prior to the December 2012 amendment
necessitating this rule change, the regulation does not require that
the ``on or at'' notice disclose the amount of the fee. Also, operators
are allowed to disclose on or at the machine that a fee ``may'' be
imposed--rather than ``will'' be imposed--if there are circumstances
[[Page 18222]]
in which an ATM fee may not be charged. The Bureau believes that ``on
or at'' notices generally use the word ``may.''
The Official Interpretation to Regulation E, in supplement I to
part 1005, includes Comment 16(b)-1, which explains the permissibility
of the use of the word ``may'' in the ``on or at'' the machine
disclosure, and makes clear that an ATM operator may specify the type
of service for which a fee will or may apply.
In the Board's initial rulemaking implementing the 1999 amendments
to the EFTA, some commenters requested that the Board eliminate the
``on or at'' notice requirement. The Board, however, responded that it
lacked the authority to do so: ``Several commenters requested action
outside the scope of the Board's authority, such as deleting the
statutory requirement to post a sign about fees at the ATM as
unnecessary and burdensome or prohibiting ATM surcharges.'' 66 FR
13409, 13410 (March 6, 2001).
The Bureau's Streamlining Request for Information
In 2011, rule-writing authority over the EFTA was transferred to
the Bureau of Consumer Financial Protection (Bureau) by the Dodd-Frank
Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Public
Law 111-203, sec. 1061(b)(1), 124 Stat. 1376 (2010). Shortly after the
transfer, the Bureau was made aware of long-standing concerns that the
``on or at'' notice requirement provides little or no benefit to
consumers and is the subject of costly litigation alleging that the
``on or at'' notice was not properly posted. Pursuant to those
concerns, the Bureau sought public comment on the advisability of
removing this requirement in its Streamlining Inherited Regulations
Request for Information (Streamlining RFI).\6\ Industry trade
associations asked the Bureau to remove the requirement if it was
within its authority to do so or, if not, to clarify publicly that it
lacked such authority. Many individual banks and credit unions also
asked the Bureau to remove the requirement. Many of the strongly
negative comments about the requirement were from small entities,
including many small ATM operators. An association of state bank
regulators and an individual state banking division also favored
removing the requirement.
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\6\ 76 FR 75825 (Dec. 5, 2011). This was one of many issues on
which the RFI solicited comment.
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Industry commenters argued that: (1) The requirement does not
benefit consumers because almost all consumers know that a fee will be
charged, and the on-screen disclosure provides sufficient notice of the
fee and amount before the transaction takes place; (2) vigilant
compliance with the provision adds to costs; (3) the litigation over
the provision is costly and threatens the existence of some small
operators, potentially reducing ATM availability for consumers; and (4)
some of the ``on or at'' notices are removed in order to support
litigation, and the provision providing liability protection is not
sufficient because of evidentiary problems.
In contrast, a joint letter of several leading consumer and
community groups opposed removing the requirement. In addition, four
national consumer groups wrote to Congress opposing legislation to
remove the requirement. The consumer groups proposed instead that the
Bureau clarify the statutory provision that gives ATM operators
immunity from liability in certain cases. An attorney who has brought
cases against banks wrote two comment letters to the Bureau in support
of the requirement.
The consumer advocates argued that: (1) The Bureau has no authority
to remove the requirement without Congressional action; (2) some
consumers are unaware that a foreign ATM will charge a fee, and they
will be less likely to forgo a transaction they have almost completed;
(3) the ``on or at'' notice may be the only indication a consumer gets
of the potential fee charged by the consumer's own financial
institution; and (4) ATM operators who are the subject of litigation
have violated the law.
The December 2012 Statutory Amendment
While the Bureau was considering this issue, legislation amending
the relevant provision of the EFTA passed Congress and was signed into
law on December 20, 2012 (December 2012 Legislation). Public Law 112-
216. The legislation amends only the specific provision, at EFTA
section 904(d)(3)(B), addressing the ATM fee disclosures, deleting the
``on or at'' requirement and some obsolete transitional language. The
on-screen or paper disclosure requirement remains unchanged.
II. Legal Authority
The Bureau is issuing this final rule pursuant to its authority
under EFTA and the Dodd-Frank Act. Effective July 21, 2011, section
1061 of the Dodd-Frank Act transferred to the Bureau the ``consumer
financial protection functions'' previously vested in certain other
Federal agencies. The term ``consumer financial protection functions''
is defined to include ``all authority to prescribe rules or issue
orders or guidelines pursuant to any Federal consumer financial law,
including performing appropriate functions to promulgate and review
such rules, orders, and guidelines.'' \7\ EFTA is a Federal consumer
financial law.\8\ Accordingly, effective July 21, 2011, except with
respect to persons excluded from the Bureau's rulemaking authority by
section 1029 of the Dodd-Frank Act, the authority of the Board to issue
regulations pursuant to EFTA transferred to the Bureau.
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\7\ Public Law 111-203, sec. 1061(a)(1) (2010). Effective on the
designated transfer date, the Bureau was also granted ``all powers
and duties'' vested in each of the Federal agencies, relating to the
consumer financial protection functions, on the day before the
designated transfer date. Id. sec. 1061(b).
\8\ Public Law 111-203, sec. 1002(14) (defining ``Federal
consumer financial law'' to include the ``enumerated consumer
laws''); id. Sec. 1002(12) (defining ``enumerated consumer laws'' to
include EFTA).
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EFTA, as amended by the Dodd-Frank Act, authorizes the Bureau to
``prescribe rules to carry out the purposes of [EFTA].'' Public Law
111-203, sec. 1084(3); 15 U.S.C. 1693b(a). Section 904(d)(3) \9\ of
EFTA, as amended by Dodd-Frank Act section 1084(1), requires those
rules to mandate specific fee disclosures at ATMs.
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\9\ 15 U.S.C. 1693(d)(3).
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III. Summary of the Final Rule
The December 2012 Legislation deletes from the EFTA the requirement
that a fee notice be posted ``on or at'' an ATM. The Bureau, therefore,
is issuing a final rule conforming Regulation E to the statutory
amendment eliminating this requirement. Section 1005.16 of Regulation E
is now amended by deleting the language requiring that disclosure. ATM
operators will now only have to provide the on-screen or paper
disclosure, which includes the amount of the fee to be charged and is
provided before the consumer is committed to the transaction.
In addition to the deletion of the rule language requiring the ``on
or at'' the machine disclosure, the Bureau is deleting Official Comment
16(b)(1)-1, which interpreted that requirement in regard to the
permissible use of the word ``may'' in the disclosure, as well as the
use of more specific language in making the ``on or at'' the machine
disclosure. Because the requirement to which the comment pertains has
been eliminated, there is no longer a need for this interpretation.
[[Page 18223]]
IV. Section 1022(b)(2) of the Dodd-Frank Act
In developing the final rule, the Bureau has considered potential
benefits, costs, and impacts,\10\ and has consulted or offered to
consult with the prudential regulators and the Federal Trade
Commission, including regarding consistency with any prudential,
market, or systemic objectives administered by such agencies.
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\10\ Specifically, section 1022(b)(2)(A) calls for the Bureau to
consider the potential benefits and costs of a regulation to
consumers and covered persons, including the potential reduction of
access by consumers to consumer financial products or services; the
impact on depository institutions and credit unions with $10 billion
or less in total assets as described in section 1026 of the Act; and
the impact on consumers in rural areas. The manner and extent to
which the provisions of section 1022(b)(2) apply to a rule of this
kind are unclear. Nevertheless, to inform this rulemaking more
fully, the Bureau performed the described analyses and
consultations.
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The final rule deletes a requirement that an ATM operator post a
notice on or at an ATM machine informing consumers that a fee will or
may be charged for use of the machine. Because this final rule merely
conforms a regulation to a mandatory statutory amendment, and does not
involve any exercise of agency discretion, the Bureau does not believe
that the rule itself will have any benefits, costs, or impacts beyond
those caused by the statute. In addition, the Bureau does not expect
the final rule to cause a reduction in consumer access to credit.
However, for informational purposes, the following discussion considers
the benefits, costs, and impacts of the statutory amendment being
implemented.
The Bureau believes that the benefits of the ``on or at'' notice
requirement for consumers were likely more significant when it was
adopted than they are today. The Bureau understands that when the
requirement was enacted in 1999, ATMs did not always disclose fees on-
screen. That is presumably why the statute allowed the industry five
years to come into compliance with the on-screen requirement. Thus, for
several years, the ``on or at'' notice might be the only fee disclosure
a consumer would receive at the ATM.
Now, however, the Bureau believes that awareness that foreign ATMs
charge a fee is already widespread, and thus the ``on or at'' notice
provides little benefit to consumers with respect to foreign ATM
fees.\11\ Moreover, the ``on or at'' notice contains much less useful
information about the foreign ATM fee than the on-screen disclosure.
The ``on or at'' notice does not tell the consumer the amount of the
fee or whether or not a fee will be charged--it usually only states
that a fee ``may'' be charged. For these reasons, the Bureau considers
the consumer benefit from the requirement being eliminated to be
minimal.
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\11\ The Bureau found only one study of awareness, which is over
a decade old. A 2000 consumer survey commissioned by an ATM network
(PULSE) found that 86 percent of consumers surveyed said they were
adequately informed of charges they sometimes pay to withdraw cash
from ATMs. The PULSE network, Pulsations (May 2000). Moreover, 96
percent of consumers who said they paid a surcharge in the last 14
days reported feeling that ATM fee disclosures were sufficient. The
Bureau believes this survey has limited value since respondents may
have felt disclosures were adequate but have been ignorant of the
fees. Moreover, it is possible that consumers claimed awareness in
part because they had read the notice ``on or at'' the ATM. However,
the Bureau believes that whatever the level of awareness of foreign
institution fees, the level will not drop significantly when the
notice on or at the ATM is removed. The on-screen disclosure is
clear and pointed and requires the consumer affirmatively to accept
the fee before proceeding.
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In contrast, the Bureau considers the on-screen disclosure of the
foreign fee amount and the screen's prompt requiring the consumer to
agree to the fee to be a more effective means of disclosure. Although
the consumer must begin the transaction before receiving this
disclosure, the disclosure must occur before the transaction is
completed, and the consumer then has the necessary price information
before purchasing the service. The Bureau understands that fees at
foreign ATMs have been increasing, so a disclosure of the specific
price before purchase appears to be the most effective way to empower
consumers in regard to this type of transaction. This consumer benefit
will continue undisturbed when the ``on or at'' the machine disclosure
is eliminated.
In regard to a consumer's own financial institution charging a fee
for using a foreign ATM, neither the regulation nor the statute
currently requires the ATM operator to disclose the potential existence
or amount of that fee, of which the foreign ATM operator has no
knowledge. Rather, the consumer's financial institution is required to
disclose the fee when the account is opened and on a monthly statement
when the fee is charged.\12\ Also, the ongoing nature of consumers'
relationships with their own financial institutions should help to
discipline fee pricing better than a disclosure given as part of the
one-off transactions that often occur with foreign ATMs. Accordingly,
the ATM fee charged by consumers' own financial institutions for use of
foreign ATMs appears to be less potentially harmful for consumers in
the first place, and the disclosure that is being eliminated provided
minimal consumer benefit in regard to it.
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\12\ 12 CFR 1005.7(b)(5), 12 CFR 1005.9(b)(3).
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The compliance burden of the disclosure being eliminated appears
not to have been very large. Costs included purchase of stickers or
other disclosure means, personnel costs for placing and replacing
stickers or other disclosure means, and monitoring whether or not the
disclosures remained present and undamaged. Because the machines would
need to be serviced and stocked regularly, it is likely that little
extra travel or work time was needed. However, there was some burden,
which is now being eliminated.
The statutory amendment and this conforming final rule have no
unique impact on insured depository institutions or insured credit
unions with $10 billion or less in assets as described in section 1026
of the Dodd-Frank Act, nor does the amendment or this rule have a
unique impact on rural consumers.
V. Administrative Procedure Act
Under the Administrative Procedure Act (APA), notice and
opportunity for public comment are not required if the Bureau finds
that notice and public comment are impracticable, unnecessary, or
contrary to the public interest. 5 U.S.C. 553(b)(B). Pursuant to this
final rule, 12 CFR 1005.16 is amended to conform to a statutory change.
The Bureau finds there is good cause under APA section 553 to issue
this amendment to Regulation E as a final rule without advance notice
and public comment because ``notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.''
Because the December 2012 Legislation mandates the elimination of
the ``on or at'' the machine disclosure requirement, notice-and-comment
procedures on this rule are unnecessary. Any delay in conforming the
regulation to Congress's mandate as a result of such procedures would
perpetuate inconsistency and confusion contrary to the public interest.
Moreover, the Bureau is already informed as to the major concerns of
stakeholders in this issue through the public comments received in
response to the Streamlining RFI. For these reasons, the Bureau has
determined that publishing a notice of proposed rulemaking and
providing opportunity for public comment are unnecessary and contrary
to the public interest. The Bureau adopts the amendment in final form.
Further, under section 553(d) of the APA, the required publication
or service of a substantive rule must be made not less than 30 days
before its effective
[[Page 18224]]
date except for certain instances, including when a substantive rule
grants or recognizes an exemption or relieves a restriction. 5 U.S.C.
553(d). As this rule relieves a disclosure requirement and restriction
on charging ATM fees, and is therefore a substantive rule that relieves
requirements and restrictions, the Bureau is publishing this final rule
less than 30 days before its effective date. As it is in the public
interest to make the regulation conform to the statute as soon as
possible, the Bureau is making the final rule effective immediately
upon publication in the Federal Register.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) does not apply to a rulemaking
where general notice of proposed rulemaking is not required. 5 U.S.C.
603 and 604. As noted previously, the Bureau has determined that it is
unnecessary to publish a general notice of proposed rulemaking for this
final rule. Accordingly the RFA's requirements relating to an initial
and final regulatory flexibility analysis do not apply.
VII. Paperwork Reduction Act
According to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., and notwithstanding any other provisions of law, the
Bureau may not conduct or sponsor, and a respondent is not required to
respond to, an information collection unless it displays a valid Office
of Management and Budget (OMB) control number. The collection of
information related to this final rule has been previously reviewed and
approved by the Office of Management and Budget (OMB) in accordance
with the PRA, 44 U.S.C. 3507(d), and assigned OMB Control Number 3170-
0014 (Expiration Date 03/31/15). The Bureau determined that this final
rule would not impose any new recordkeeping, reporting, or disclosure
requirements on covered entities or members of the public that would
constitute collections of information requiring approval under the PRA.
This final rule revises a third-party disclosure requirement currently
approved under the aforementioned OMB control number by eliminating the
requirement that ATMs have an ``on or at'' notice posted disclosing
that a consumer will or may be charged a fee. The Bureau has filed a no
material non-substantive change request with OMB requesting that this
third-party disclosure requirement be moved from OMB control number
3170-0014.
List of Subjects in 12 CFR Part 1005
Consumer protection, Electronic funds transfers, Reporting and
recordkeeping requirements, Automated teller machines.
Authority and Issuance
For the reasons set forth above, the Bureau is amending Regulation
E, 12 CFR part 1005, as set forth below:
PART 1005--ELECTRONIC FUND TRANSFERS (REGULATION E)
0
1. The authority citation for Part 1005 continues to read as follows:
Authority: 12 U.S.C. 5512, 5581; 15 U.S.C. 1693b.
0
2. Amend Sec. 1005.16 by revising paragraphs (b) through (d) to read
as follows:
Sec. 1005.16 Disclosures at automated teller machines.
* * * * *
(b) General. An automated teller machine operator that imposes a
fee on a consumer for initiating an electronic fund transfer or a
balance inquiry must provide a notice that a fee will be imposed for
providing electronic fund transfer services or a balance inquiry that
discloses the amount of the fee.
(c) Notice requirement. An automated teller machine operator must
provide the notice required by paragraph (b) of this section either by
showing it on the screen of the automated teller machine or by
providing it on paper, before the consumer is committed to paying a
fee.
(d) Imposition of fee. An automated teller machine operator may
impose a fee on a consumer for initiating an electronic fund transfer
or a balance inquiry only if:
(1) The consumer is provided the notice required under paragraph
(c) of this section, and
(2) The consumer elects to continue the transaction or inquiry
after receiving such notice.
Supplement I to Part 1005 [Amended]
0
3. In Supplement I to Part 1005, remove Section 1005.16.
Dated: March 20, 2013.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2013-06861 Filed 3-25-13; 8:45 am]
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