Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire, 31376-31402 [2021-11759]

Download as PDF 31376 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules FEDERAL RESERVE SYSTEM 12 CFR Part 210 [Regulation J; Docket No. R–1750] RIN 7100–AG16 Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire Board of Governors of the Federal Reserve System (Board). ACTION: Proposed rule, request for comment. AGENCY: The Board is proposing amendments to Regulation J to govern funds transfers through the Federal Reserve Banks’ (Reserve Banks) new FedNowSM Service by establishing a new subpart C. The Board is also proposing changes and clarifications to subpart B, governing the Fedwire Funds Service, to reflect the fact that the Reserve Banks will be operating a second funds transfer service in addition to the Fedwire Funds Service, as well as proposing technical corrections to subpart A, governing the check service. DATES: Comments must be submitted by August 10, 2021. ADDRESSES: You may submit comments, identified by Docket No. R–1750; RIN 7100–AG16, by any of the following methods: • Agency Website: https://www.federal reserve.gov. Follow the instructions for submitting comments at https:// www.federalreserve.gov/generalinfo/ foia/ProposedRegs.cfm. • Email: regs.comments@ federalreserve.gov. Include the docket number and RIN in the subject line of the message. • Fax: (202) 452–3819 or (202) 452– 3102. • Mail: Ann E. Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551. All public comments will be made available on the Board’s website at https://www.federalreserve.gov/general info/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons or to remove sensitive personal information at the commenter’s request. Public comments may also be viewed electronically or in paper in Room 146, 1709 New York Avenue NW, Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on weekdays. FOR FURTHER INFORMATION CONTACT: Jess Cheng, Senior Counsel (202) 452–2309, Gavin L. Smith, Senior Counsel (202) 452–3474, Legal Division, or Ian C.B. jbell on DSKJLSW7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 Spear, Manager (202) 452–3959, Kirstin E. Wells, Principal Economist (202) 452–2962, Division of Reserve Bank Operations and Payment Systems; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263– 4869. SUPPLEMENTARY INFORMATION: I. Background Instant payment services have emerged globally over the past two decades to address the enhanced speed and convenience expected by the public for payment transactions in modern digital economies. Instant payments allow individuals and businesses to send and receive payments at any time of the day, on any day of the year, and to complete those payments within seconds (from the end user perspective) such that the beneficiary has access immediately to final funds, meaning funds they can use at that time. Beyond speed and convenience, instant payments can yield real economic benefits for individuals and businesses by providing them with more flexibility to manage their money and allowing them to make time-sensitive payments whenever needed. In light of these potential benefits, there is broad consensus within the U.S. payment community that, just as real-time services have become standard for other everyday activities, instant payment services have the potential to become widely used, resulting in a significant and positive impact on the U.S. economy. In 2019, the Board issued a Federal Register notice announcing that the Reserve Banks would develop a new interbank 24x7x365 real-time gross settlement service with integrated clearing functionality, called the FedNow Service, to support instant payments in the United States (the 2019 Notice). The Board’s determination was based on the public benefits that the service would provide and the Board’s assessment that such a service would meet the requirements of the Depository Institutions Deregulation and Monetary Control Act of 1980, as well as the Board’s criteria for new or enhanced Federal Reserve payment services.1 The FedNow Service will operate alongside similar services provided by the private sector to provide core infrastructure supporting instant payments in the United States. In the 2019 Notice, the Board also requested comment on all aspects of the planned service. One proposed aspect was that banks would 1 See ‘‘Federal Reserve Actions To Support Interbank Settlement of Faster Payments, Request for Comments,’’ 84 FR 39297 (Aug. 9, 2019). PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 be required to make funds associated with individual instant payments available to their end-user customers immediately after receiving notification from the service that an instant payment had settled. In August 2020, the Board issued a subsequent Federal Register notice describing the FedNow Service details (the 2020 Notice), based on additional analysis informed by the comments received in response to the 2019 Notice.2 In that notice, the Board approved, among other things, the aspect of immediate funds availability proposed in the 2019 Notice. The Board also indicated that it was assessing applicable laws and regulations, and, to the extent changes to the Board’s regulations were needed, including to clarify funds availability, the Board would request public comment. The Board has completed its assessment with respect to Regulation J and is issuing this request for comment on the regulation incorporating changes to provide a legal framework for the FedNow Service. The Board’s proposed amendments to Regulation J establish a new subpart C to govern funds transfers made through the FedNow Service and amend the title of the regulation. The Board is also proposing technical changes and clarifications to subpart B, which governs funds transfers through the Fedwire Funds Service, to reflect the fact that the Reserve Banks will be operating two funds transfer services. The Board is further proposing technical corrections to subpart A of the regulation, which governs the collection of checks and other items by the Reserve Banks. II. Overview of Proposed Regulation J Amendments Subpart B of Regulation J currently specifies the rules applicable to funds transfers handled by Reserve Banks over the Fedwire Funds Service. Subpart B would not apply to transfers over the new FedNow Service, which will be a separate funds transfer service operated by the Reserve Banks. The Board is proposing a new subpart C of Regulation J to provide a comprehensive set of rules governing funds transfers over the FedNow Service. As it did for subpart B, the Board proposes to adopt a commentary to subpart C that would constitute a Board interpretation of the regulation. In general, the proposed new subpart C of Regulation J specifies the terms and conditions under which Reserve Banks 2 ‘‘Service Details on Federal Reserve Actions To Support Interbank Settlement of Instant Payments,’’ 85 FR 48522 (Aug. 11, 2020). E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules will process funds transfers over the FedNow Service, as well as grants the Reserve Banks authority to issue an operating circular for the FedNow Service, which would detail more specific terms and conditions governing the FedNow Service consistent with the proposed subpart. Additionally, proposed subpart C’s terms of service include a requirement for a FedNow participant that is the beneficiary’s bank to make funds available to the beneficiary immediately after it has accepted the payment order over the service. Proposed new subpart C also expands and clarifies the applicability of the Uniform Commercial Code (UCC) Article 4A to all transfers over the FedNow Service, subject to a limited number of modifications and clarifications that are consistent with the purposes of UCC Article 4A. UCC Article 4A, which has been adopted in all 50 states, provides comprehensive rules governing the rights and responsibilities of the parties to funds transfers. The rights and responsibilities covered in UCC Article 4A include those with respect to the receipt, acceptance or rejection, and execution of a payment order and settlement of a payment obligation; liability for the late, erroneous, or improper execution of funds transfers; the risks of loss associated with an unauthorized payment order; the obligation to pay for and the right to receive payment for a payment order; and the effect of payment by funds transfer on any underlying obligation between an originator and a beneficiary of a funds transfer. The Board incorporated UCC Article 4A, as approved by the American Law Institute and the National Conference of Commissioners on Uniform State Laws in 1989, into Regulation J for purposes of the Fedwire Funds Service and proposes to do the same for the FedNow Service. The Board believes that this incorporation is necessary to ensure that the law applicable to all transfers over the FedNow Service is consistent, predictable, and clear. The Board also proposes to replace the currently incorporated 1989 version of UCC Article 4A with the more recent 2012 version and to set forth those provisions in Appendix A of part 210, rather than in Appendix B of subpart B where they are currently set forth.3 3 UCC Article 4A has been amended once, in 2012. The 2012 amendments, as approved by the American Law Institute and the National Conference of Commissioners on Uniform State Laws, which is now also known as the Uniform Law Commission, were necessary to retain the coverage of non-consumer remittance transfers by UCC Article 4A in light of revisions to the VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 Other minor changes are also proposed to Regulation J to make clarifying amendments to subpart B and technical corrections in subpart A. The Board does not believe that the proposed amendments to subparts A and B would impose additional operating burdens on any parties. The Board requests comment on all aspects of the proposed amendment to Regulation J and the specific questions posed below. III. Section-by-Section Analysis A. Subparts A and B The Board is proposing technical corrections in subpart A of Regulation J to update cross-references to other regulations that are no longer current. Additionally, the Board is proposing amendments to subpart B, governing funds transfers through the Fedwire Funds Service, to reflect the fact that the Reserve Banks will be operating two separate funds transfer systems with the launch of the FedNow Service and distinguish between the two services. For example, the proposed amendments include clarifications to § 210.25(b) with respect to subpart B’s scope of application and modifications to the definitions of the following terms: Beneficiary, beneficiary’s bank, payment order, receiving bank, and sender. These proposed amendments are intended to clarify that the provisions of subpart B are limited to payment orders and parties to a funds transfer that are sent through the Fedwire Funds Service; payment orders and parties to a funds transfer that are sent through the FedNow Service, for example, would not be governed by subpart B. Additionally, the proposed amendments to subpart B include changes to update § 210.25(c), which authorizes Reserve Banks to issue operating circulars consistent with the subpart in connection with the Fedwire Funds Service. The proposed revisions explicitly authorize Reserve Banks to issue operating circulars that specify the time and method of receipt, execution, and acceptance of a payment order and Electronic Fund Transfer Act (‘‘EFTA’’), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Those statutory changes brought certain non-consumer remittancerelated fund transfers under the scope of the EFTA and thus, absent amendment, would have been explicitly carved out from coverage by UCC Article 4A. Regulation J was also amended in 2012 to similarly clarify that its provisions continue to apply to a Fedwire Funds transfer even if the funds transfer also meets the definition of ‘‘remittance transfer’’ under the EFTA. ‘‘Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire: Elimination of ‘‘As-of Adjustments’’ and Other Clarifications,’’ 77 FR 21854 (Apr. 12, 2012). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 31377 settlement of a Reserve Bank’s payment obligation for purposes of UCC Article 4A; specify service terms governing ancillary features of the Fedwire Funds Service; and provide for the acceptance of documents in electronic form to the extent any provision in UCC Article 4A requires an agreement or other document to be in writing. The proposed amendments to subpart B further include minor changes to § 210.28(b)(3) to provide that the security interest that a sender grants to a Reserve Bank is with respect to all of the sender’s assets in the possession of, as well as in the control of, or held for the account of, the Reserve Bank; additional revisions are proposed to the commentary to that section to clarify its description of relevant UCC Article 4A provisions. Additionally, the proposed amendments to subpart B include a minor change to § 210.30 to clarify that a sender may not send a payment order to a Reserve Bank that specifies an execution date, nor may it specify a payment date, that is later than the day on which the payment order is issued, unless the Reserve Bank agrees with the sender in writing to follow such instructions. The proposed amendments to subpart B also include a clarifying revision to § 210.32, which governs the payment of compensation by Reserve Banks in the form of interest. Section 210.32 provides that, when a Reserve Bank is obligated to pay compensation to another party in connection with its handling of a funds transfer under UCC Article 4A, the Reserve Bank shall pay 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. The proposed revisions refer to these payments as ‘‘compensation’’ rather than interest payments. The Board believes this clarification would help remove any confusion that such payment is related to any purpose other than compensation, such as monetary policy transmission. Finally, the Board is proposing technical revisions in the commentary to subpart B to correct cross-references to UCC Article 1 and to update crossreferences to statutes and other regulations that are no longer current. B. Subpart C—Funds Transfers Through the FedNow Service The Board is proposing to amend Regulation J to establish a new subpart C governing funds transfers over the FedNow Service. Many of the concepts embodied in the proposed subpart C are similar to those currently in subpart B E:\FR\FM\11JNP2.SGM 11JNP2 31378 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 of Regulation J. Like the Fedwire Funds Service, the FedNow Service is a realtime gross settlement system and a funds-transfer service under UCC Article 4A. However, a number of the proposed subpart C provisions have been tailored to the nature of the FedNow Service where it differs from that of the Fedwire Funds Service. In particular, the FedNow Service is designed for the end-to-end transfer to be completed in a matter of seconds, as described in the 2020 Notice. This means that the beneficiary’s bank would agree, as provided in proposed subpart C, that it will make funds available to the beneficiary immediately after it has accepted the payment order. Another difference between the FedNow Service and the Fedwire Funds Service is that the FedNow Service will accommodate participants that choose to settle their activity over the service in the master account of a correspondent bank. In contrast, participants in the Fedwire Funds Service are limited to settling their activity over that service in their own master account. The terms of proposed subpart C reflect the fact that FedNow Service will support this additional mechanism for settling obligations that arise between Reserve Banks and FedNow participants. Further, unlike the Fedwire Funds Service, which is designed to serve primarily as a large-value funds transfer system between institutional users, the FedNow Service is designed to also accommodate consumer use. Therefore, in the event that a transfer over the FedNow Service meets the definition of ‘‘electronic fund transfer’’ under the Electronic Fund Transfer Act (EFTA), proposed subpart C provides that it would apply to the transfer but the EFTA would prevail to the extent of any inconsistency, as discussed further later. Section 210.40 Authority, Purpose, and Scope This proposed section summarizes the Board’s authority to adopt this regulation and provides a description of how the subpart is organized. Similar to the rules governing the Fedwire Funds Service in subpart B, new subpart C would incorporate those provisions of UCC Article 4A (as set forth in an appendix to Regulation J) into subpart C that are not inconsistent with the provisions set forth expressly in subpart C. Specifically, proposed subpart C provides that UCC Article 4A applies to all funds transfers over the FedNow Service, including a transfer from a consumer originator or a transfer to a consumer beneficiary that is carried out through the FedNow Service. Such a VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 consumer transaction could potentially be subject to the EFTA. By its terms, UCC Article 4A would not apply to a funds transfer any part of which is governed by the EFTA. Therefore, absent this proposed section in subpart C, a number of important legal aspects with respect to these consumer transfers over the FedNow Service could potentially lack clear and consistent rules. This proposed section provides that all transfers over the FedNow Service, including those transfers any portion of which is governed by the EFTA, are covered by subpart C (which incorporates UCC Article 4A by reference); however, in the event of an inconsistency between the provisions of subpart C and the EFTA, the proposed section provides that the EFTA would prevail to the extent of the inconsistency. The commentary accompanying this proposed provision in subpart C provides an illustrative example. The Board believes this proposed provision is necessary in order to provide a clear, consistent, and comprehensive set of rules for all funds transfers over the FedNow Service, consistent with the EFTA and the purposes of UCC Article 4A. This proposed section also specifies the parties subject to proposed subpart C with respect to the FedNow Service. These parties would include senders that send payment orders to a Reserve Bank over the service, receiving banks that receive payment orders from a Reserve Bank over the service, beneficiaries that receive payment for payment orders by means of a credit to their settlement account with a Reserve Bank, and Reserve Banks that send or receive payment orders over the FedNow Service. For example, suppose that Payor has an account with Bank A and instructs Bank A to pay $1,000 to Payee’s account at Bank B, and Bank A carries out Payor’s instruction using the FedNow Service.4 Suppose further that Bank A and Bank B maintain accounts on the books of different Reserve Banks. In this example, the Reserve Bank of Bank A and the Reserve Bank of Bank B would be intermediary banks; Bank A would be the sender with respect to the payment order that it sends to its Reserve Bank; Bank B would be the receiving bank with respect to the payment order that it receives from its Reserve Bank. 4 This example is only for illustrative purposes. Aspects of the arrangement would be different, for example, if either of the banks were to use an agent, service provider, or correspondent bank. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 In this example, the Reserve Banks of Bank A and Bank B would be subject to proposed subpart C, because they are Reserve Banks sending or receiving payment orders over the FedNow Service. It is possible that a Reserve Bank may also be subject to subpart C in its capacity as a beneficiary’s bank with respect to a payment order (e.g., interbank credit transfers between FedNow participants). For other capacities, however, a Reserve Bank would not be a party to the funds transfer for purposes of proposed subpart C and UCC Article 4A. For example, if a sender settles its activity over the FedNow Service in the account of a correspondent bank, the sender’s Reserve Bank would be an intermediary bank in the funds transfer chain, but the Reserve Bank of the correspondent bank would not be a sender or receiving bank with respect to the payment order and would not be a party to the funds transfer. Under the proposed section, subpart C would also apply to any party to a funds transfer sent through the FedNow Service that is in privity (i.e., has a contractual relationship) with a Reserve Bank in the funds transfer chain. Other parties to a funds transfer sent through the FedNow Service (i.e., a party not in privity with a Reserve Bank, such as Payor and Payee in the example above) would be covered by this proposed subpart only under certain circumstances. If these remote parties have notice that the FedNow Service might be used for their funds transfer and that subpart C is the governing law with respect to the transfer over the FedNow Service, then proposed subpart C would govern their rights and obligations with respect to the FedNow Service. However, it is possible for that remote party to expressly select by agreement a governing law other than subpart C with respect to its rights and obligations in connection with that transfer. For example, Payor and Bank A in the example above could make an agreement selecting the law of a particular jurisdiction, and not subpart C, to govern rights and obligations between each other. In that event, the law of that jurisdiction would govern those rights and obligations, and not subpart C, even if the remote party (Payor) had notice that the FedNow Service may be used and that subpart C is the governing law with respect to the transfer over the FedNow Service. Finally, this proposed section authorizes Reserve Banks to issue operating circulars which would detail more specific terms and conditions governing the FedNow Service consistent with the proposed subpart. E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 Similar to the rules governing the Fedwire Funds Service in subpart B and the proposed clarifying edits to subpart B, new subpart C would authorize the Reserve Banks to issue operating circulars with respect to the FedNow Service that may set cut-off hours and funds-transfer business days; address security procedures offered by the Reserve Banks to verify the authenticity of a payment order; specify format and media requirements for payment orders; identify messages that are not payment orders; specify the time and method of receipt, execution, and acceptance of a payment order and settlement of a Reserve Bank’s payment obligation for purposes of UCC Article 4A; specify service terms governing ancillary features of the FedNow Service; provide for the acceptance of documents in electronic form to the extent any provision in UCC Article 4A requires an agreement or other document to be in writing; and impose charges for funds transfer services. Reflecting aspects where the FedNow Service differs from the Fedwire Funds Service, the proposed section further provides that Reserve Bank operating circulars governing the FedNow Service may also prescribe time limits for the processing of payment orders. Section 210.41 Definitions This proposed section defines the terms used in the regulation. Similar to subpart B, proposed subpart C generally incorporates the definitions set forth in UCC Article 4A (e.g., beneficiary, intermediary bank, receiving bank, and security procedure), in some instances with modifications. Specifically, the proposed subpart modifies the definitions of five UCC Article 4A terms: Beneficiary, beneficiary’s bank, payment order, receiving bank, and sender. In general, these modifications are intended to clarify that, for the purposes of subpart C, these terms would be limited to payment orders and parties in a funds transfer that are sent through the FedNow Service. Parties to a funds transfer that is sent through the Fedwire Funds Service, for example, would not be a ‘‘beneficiary,’’ ‘‘beneficiary’s bank,’’ ‘‘receiving bank,’’ or ‘‘sender’’ as those terms are defined in proposed subpart C. This proposed section also includes definitions of other terms not defined in UCC Article 4A, including ‘‘sender’s settlement account,’’ ‘‘receiving bank’s settlement account,’’ and ‘‘beneficiary’s settlement account.’’ These terms reflect the fact that a FedNow participant may settle its activity over the FedNow Service in either its master account with a Reserve Bank or, alternatively, the VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 master account of a correspondent bank with a Reserve Bank. Whether it is its own master account or that of a correspondent, a FedNow participant would need to designate a settlement account on the books of a Reserve Bank that the Reserve Banks may use to settle the participant’s activity over the FedNow Service. This proposed section also includes a definition of the term ‘‘Federal Reserve Bank’’ with respect to an entity, which is not a term defined in UCC Article 4A. In instances where a FedNow participant maintains an account with a Reserve Bank, this proposed section takes an approach similar to the rules governing the Fedwire Funds Service in subpart B. In those instances, the term ‘‘Federal Reserve Bank’’ with respect to the FedNow participant means the Reserve Bank at which the participant maintains an account. To reflect the fact that the FedNow Service will also accommodate participants that choose to settle their activity over the service in the master account of a correspondent bank, the proposed definition also addresses instances where a FedNow participant does not maintain a master account with a Reserve Bank. In those instances, the term ‘‘Federal Reserve Bank’’ with respect to that participant means the Reserve Bank in whose District the participant is located, as determined under the procedure described in Part 204 of this chapter (Regulation D), even if the participant is not otherwise subject to that section. As noted above, the Reserve Bank of the participant would be a party to the funds transfer, but the Reserve Bank of its correspondent bank would not be a party to the funds transfer. Section 210.42 Reliance on Identifying Number This proposed section provides that a Reserve Bank may rely on the number in the payment order identifying the beneficiary’s bank or the beneficiary, consistent with UCC Article 4A. As a practical matter, reliance on identifying numbers enables banks to more efficiently process payment orders by automated means. Rather than manual processing of payment orders with human reading of the contents of the order, banks typically use machines to read orders that, using a standard format, identify the beneficiary’s bank by routing number or the beneficiary by the number of a bank account, or by other identifying number. This standard format might also allow for the inclusion of additional information in the payment order (e.g., the name of the beneficiary’s bank or the beneficiary) that can be useful for reference, even if PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 31379 not relied upon to process the payment order. If a payment order contains both the identifying number and the name of the beneficiary’s bank or beneficiary supplied by the originator of the funds transfer, it might be possible for a receiving bank processing the order to detect an inconsistency and determine that the name and number do not refer to the same party. UCC Article 4A provides that a bank is under no duty to make such a determination that the identifying number and name refer to the same party in processing the payment order. If such a duty were imposed, the benefits of automated payments would be significantly lost; these benefits include the substantial economies of operation and the reduction in the possibility of clerical error. Rather, UCC Article 4A allows receiving banks to act on the basis of the identifying number, without regard to name provided in the payment order, so long as the bank does not know the name and number refer to different parties. Consistent with UCC Article 4A, proposed § 210.42 provides that a Reserve Bank, as receiving bank, may rely on the routing number of the beneficiary’s bank specified in a payment order as identifying the appropriate beneficiary’s bank, even if the payment order identifies another bank by name, provided that the Reserve Bank does not know of the inconsistency. Similarly, a Reserve Bank, where it acts as the beneficiary’s bank, may rely on the number identifying a beneficiary, such as the beneficiary’s account number, specified in a payment order as identifying the appropriate beneficiary, even if the payment order identifies another beneficiary by name, provided that the Reserve Bank does not know of the inconsistency. The proposed section also serves to provide notice to nonbank senders that send payment orders directly to a Reserve Bank through the FedNow Service that the Reserve Bank may rely on the numbers in the payment orders identifying the beneficiary’s bank and the beneficiary. Section 210.43 Agreement of Sender Proposed § 210.43 describes when an obligation to pay arises for FedNow participants that send a payment order over the FedNow Service and how that obligation is discharged. Under that proposed section, when a sender sends a payment order to a Reserve Bank over the FedNow Service and the Reserve Bank accepts the payment order, the sender has an obligation to pay the E:\FR\FM\11JNP2.SGM 11JNP2 31380 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 Reserve Bank for the amount of the payment order. This proposed section further specifies that the obligation of the sender is paid by a debit to the settlement account of the sender. This approach is generally similar to that taken by subpart B for the Fedwire Funds Service, but it has been adjusted to reflect the fact that the FedNow Service will accommodate participants that choose to settle their activity over the service in the master account of a correspondent bank. The proposed section, therefore, provides that the sender authorizes its Reserve Bank to obtain payment for a payment order by debiting, or causing another Reserve Bank (i.e., the Reserve Bank of the correspondent bank, if one is used) to debit, the amount of the payment order from the settlement account. In addition, this proposed section includes provisions addressing overdrafts, taking an approach similar to that of subpart B, with adjustments to reflect the fact that the participant activity over the FedNow Service will settle in settlement accounts designated by the FedNow participant. The proposed section establishes that a sender does not have a right to an overdraft in its settlement account and sets out the sender’s obligations to ensure there are sufficient funds in its settlement account and to cover any overdraft by the time the overdraft becomes due and payable. This section also provides a Reserve Bank with a security interest in the sender’s assets held at any Reserve Bank to secure any obligation owed and also specifies the actions a Reserve Bank may take to recover the amount of an overdraft, including set-off and realization of collateral. Finally, this proposed section clarifies that settlement accounts could be subject to overdraft charges, where applicable. Section 210.44 Agreement of Receiving Bank With respect to FedNow participants that receive payment orders over the service and accept the order, § 210.44 specifies how the participant receives payment. The proposed section provides that for payment orders that a receiving bank receives from a Reserve Bank over the FedNow Service, payment for the order is made by credit to the settlement account of the receiving bank. This approach is generally similar to that taken by the rules governing the Fedwire Funds Service in subpart B, with adjustments to reflect the fact that the FedNow Service will accommodate settlement in a participant’s own master account or, if the participant chooses, the master VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 account of a correspondent bank. Specifically, the proposed section provides that the receiving bank authorizes its Reserve Bank to pay for the payment order by crediting, or causing another Reserve Bank (i.e., the Reserve Bank of the correspondent bank, if one is used), to credit the amount of the payment order to the settlement account. The proposed section also includes a requirement for a FedNow participant that is the beneficiary’s bank to make funds available to the beneficiary immediately after its acceptance of the payment order over the service. As noted above, this requirement reflects the fact that an end-to-end transfer over the FedNow Service is intended to be completed in a matter of seconds. Under the proposed section, if a FedNow participant accepts a payment order over the service, it must pay the beneficiary by crediting the beneficiary’s account, and it must do so immediately after its acceptance of the payment order. The Board specifically requests comment on whether the regulation should set out specific time parameters to clarify the meaning of ‘‘immediately’’ as used in this funds availability requirement and, if so, whether a timeframe of within seconds or, alternatively, within one minute after the bank has accepted the payment order would be reasonable. Relatedly, the proposed section states that the rights and obligations with respect to the availability of funds are also governed by the Expedited Funds Availability Act (EFAA) and its implementing regulation, Regulation CC. Regulation CC provides that funds received by a bank by an electronic payment shall be available for withdrawal not later than the business day after the banking day on which such funds are received. The proposed new subpart C would require funds to be made available on a more prompt basis than the availability requirements of the EFAA and Regulation CC. Proposed § 210.44 therefore clarifies that the EFAA and Regulation CC requirements continue to apply independently of subpart C. The proposed commentary provides an example where a beneficiary’s bank has failed to satisfy the immediate funds availability requirement under proposed subpart C, even if it has satisfied its obligations under Regulation CC. The proposed section also clarifies that the obligation for the beneficiary’s bank to provide immediate funds availability to the beneficiary does not affect any liability of the beneficiary’s bank to the beneficiary, or any party other than a Reserve Bank, under UCC PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Article 4A or other law. The Board believes that the bank-customer relationship should be governed by existing law, rather than the funds availability timing requirement that would apply to a FedNow participant as a term of the service. The proposed commentary explains that the timing requirement in this section does not create any new rights that the beneficiary may assert against the beneficiary’s bank or otherwise alter any rights of the beneficiary under UCC Article 4A or other applicable law. Finally, the proposed section addresses certain circumstances in which a FedNow participant that is the beneficiary’s bank requires additional time to determine whether to accept the payment order because it has reasonable cause to believe that the beneficiary is not entitled or permitted to receive payment. In those circumstances, if the FedNow participant notifies its Reserve Bank that it requires additional time, the FedNow participant would not be deemed to have accepted the payment order at such time as would otherwise be considered acceptance of the payment under proposed subpart C (i.e., when it receives payment from its Reserve Bank). The proposed commentary provides an example of when this provision might apply: When the beneficiary’s bank has reasonable cause to believe that making funds available to the beneficiary may violate applicable U.S. sanctions. The Board specifically requests comment on whether this proposed section is sufficient to cover the likely range of circumstances where a FedNow participant may need additional time to determine whether to accept a payment order. Section 210.45 Payment Orders This proposed section sets forth the terms under which a Reserve Bank will accept payment orders from a sender over the FedNow Service. Similar to the rules governing the Fedwire Funds Service in subpart B, this proposed section provides that a sender must make arrangements with its Reserve Bank before it may send payment orders over the FedNow Service. Also similar to subpart B, this proposed section provides that a Reserve Bank may reject any payment order or impose conditions on the acceptance of payment orders over the FedNow Service for any reason. The proposed commentary provides examples of when rejections might occur with respect to insufficient funds in the sender’s settlement account and the lack of a required agreement concerning security procedures, which E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules mirror the commentary examples in subpart B. The proposed commentary also includes a further example of when a rejection may occur: When a payment order is not successfully processed within time limits established by the Reserve Banks, which reflects the fact that the FedNow Service is designed for the end-to-end transfer to be completed in a matter of seconds. This proposed section also provides terms with respect to the selection of an intermediary bank for a transfer over the FedNow Service. It takes a similar approach to that of subpart B with respect to the Fedwire Funds Service, with adjustments to reflect that the fact that for the FedNow Service, the Reserve Banks will be the only intermediary banks in the funds transfer chain. Reflecting this transaction structure for transfers over the FedNow Service, the proposed section provides that a FedNow participant may not send a payment order to a Reserve Bank that requires the Reserve Bank to issue a payment order to an intermediary bank other than another Reserve Bank. This proposed section also provides that a sender may not send a value-dated payment order through the FedNow Service, unless the Reserve Bank agrees with the sender in writing to follow such instructions. jbell on DSKJLSW7X2PROD with PROPOSALS2 Section 210.46 Payment by a Federal Reserve Bank to a Receiving Bank or Beneficiary This proposed section addresses the timing of when a Reserve Bank makes payment to a receiving bank (when the Reserve Bank is an intermediary bank) or beneficiary (when the Reserve Bank is the beneficiary’s bank). It adopts a similar approach as that taken by subpart B for the Fedwire Funds Service, but it has been adjusted to reflect the fact that the FedNow Service will also accommodate participants that choose to settle their activity over the service in the master account of a correspondent bank. The proposed section, therefore, provides that payment to a FedNow participant by Reserve Banks is final at the earlier of the time when the amount of the payment order is credited to the FedNow participant’s settlement account (which may be the participant’s own master account or the master account of its correspondent bank), or the time when the Reserve Bank sends to the FedNow participant either a conforming payment order or, in instances where the FedNow participant is the beneficiary, a notice of the credit. VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 This payment would be final and irrevocable when made.5 Section 210.47 Federal Reserve Bank Liability; Payment of Compensation This proposed section addresses liability of the Reserve Banks, similar to the rules governing the Fedwire Funds Service in subpart B. It provides that, in connection with its handling of a payment order, a Reserve Bank shall not agree to be liable to a sender, receiving bank, beneficiary, or other Reserve Bank for consequential damages resulting from the Reserve Bank’s failure to execute a payment order. This proposed section is consistent with the presumption in UCC Article 4A, under which damages for a receiving bank’s failure to execute a payment order that it was obligated to execute by express agreement do not include consequential damages, unless they are provided for in an express written agreement of the receiving bank. This proposed section is not intended to affect the liability of parties more broadly. For example, it is not intended to affect the ability of parties to a funds transfer other than a Reserve Bank to agree to be liable for consequential damages. Finally, this proposed section provides that where a Reserve Bank is obligated under UCC Article 4A to provide compensation in the form of interest to another party in connection with its handling of a funds transfer over the FedNow Service, the Reserve Bank may do so. In such cases where a Reserve Bank provides compensation in the form of interest, interest would be calculated in accordance with Article 4A. This proposed section adopts rules similar to the rules governing the Fedwire Funds Service in subpart B, with the proposed clarifying amendments to subpart B described above. IV. Request for Comment The Board requests comment on all aspects of the proposed amendments to Regulation J. The Board also requests comment on the following specific questions: 1. The proposed regulation requires a FedNow participant that is a beneficiary’s bank to make funds available to the beneficiary immediately after it has accepted the payment order over the FedNow Service. a. Should the Board set out specific time parameters to clarify the meaning of ‘‘immediately’’ as used in this funds 5 This does not prevent FedNow participants from implementing procedures to resolve erroneous payments, or impede the ability of the receiving bank to initiate a new transfer to return funds in certain circumstances. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 31381 availability requirement? Why or why not? b. What would be the benefits and drawbacks of specifying that ‘‘immediately’’ as used in this requirement means that the beneficiary’s bank must make funds available to the beneficiary within seconds or, alternatively, within one minute after it has accepted the payment order over the FedNow Service? 6 Or, is there another way for the Board to specify the funds availability timeframe that is consistent with improving the speed of the end-toend process for an instant payment service and continues to align with prevailing market practices over time? 2. The proposed regulation accommodates a feature of the FedNow Service under which a FedNow participant that is the beneficiary’s bank may notify its Reserve Bank that it requires additional time to determine whether to accept the payment order over the FedNow Service because it has reasonable cause to believe that the beneficiary is not entitled or permitted to receive payment. Are there other circumstances where a beneficiary’s bank should have additional time to determine whether to accept a payment order? If so, what are those circumstances? V. Competitive Impact Analysis The Board conducts a competitive impact analysis when it considers an operational or legal change, if that change would have a direct and material adverse effect on the ability of other service providers to compete with the Federal Reserve in providing similar services due to legal differences or due to the Federal Reserve’s dominant market position deriving from such legal differences. All operational or legal changes having a substantial effect on payments-system participants will be subject to a competitive-impact analysis, even if competitive effects are not apparent on the face of the proposal. If such legal differences exist, the Board will assess whether the same objectives could be achieved by a modified 6 As a point of comparison, under the Faster Payments Effectiveness Criteria adopted by the Faster Payments Task Force in 2015, a payment solution would be considered ‘‘very effective’’ in satisfying the criterion of fast availability of good funds to the payee if funds are available to the payee within one minute from payment initiation. The Faster Payments Task Force was a broad and inclusive group of payment industry stakeholders convened by the Federal Reserve to collaboratively identify and evaluate alternative approaches to implementing safe, ubiquitous, faster payments capabilities in the United States. The Faster Payments Effectiveness Criteria is available at https://fedpaymentsimprovement.org/wp-content/ uploads/fptf-payment-criteria.pdf. E:\FR\FM\11JNP2.SGM 11JNP2 31382 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules proposal with lesser competitive impact or, if not, whether the benefits of the proposal (such as contributing to payments-system efficiency or integrity or other Board objectives) outweigh the materially adverse effect on competition.7 The Board does not believe that the proposed amendments to Regulation J will have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services due to legal differences. The proposed rule incorporates UCC Article 4A, with revisions to reflect the nature of funds transfers over the FedNow Service and consistent with the purposes of UCC Article 4A. The proposed amendments do not govern similar services provided by privatesector providers. The proposed amendments also do not include provisions that a private-sector provider of similar services could not also adopt to similar effect through rules or operating procedures. Therefore, the Board does not believe that the proposed amendments would affect the competitive position of private-sector providers vis-a`-vis the Reserve Banks. VI. Administrative Law Matters jbell on DSKJLSW7X2PROD with PROPOSALS2 A. Paperwork Reduction Act In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board 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 Board reviewed the proposed rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.8 Accordingly, there is no paperwork burden associated with the proposed rule. B. Regulatory Flexibility Act The Regulatory Flexibility Act (the ‘‘RFA’’) (5 U.S.C. 601 et seq.) 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 has reviewed the proposed regulation. In this case, the proposed rule would apply to all depository institutions that choose to use the Reserve Bank’s FedNow Service, but the Board does not 7 Federal Reserve Regulatory Service, 7–145.2. 8 See 44 U.S.C. 3502(3). VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 believe it will have a significant economic impact on a substantial number of small entities. Nevertheless, this Initial Regulatory Flexibility Analysis has been prepared in accordance with 5 U.S.C. 603 in order for the Board to solicit comment on the effect of the proposal on small entities. The Board will, if necessary, conduct a final regulatory flexibility analysis after consideration of comments received during the public comment period. 1. Statement of the Need for, Objectives of, and Legal Basis for, the Proposed Rule While the Reserve Banks can prescribe by agreement terms and conditions in providing the FedNow Service, the Board believes it is appropriate to bring the FedNow Service within the coverage of Regulation J. As discussed in previous sections, the main objective of the proposed amendments to Regulation J is to establish a new subpart C to govern funds transfers made through the FedNow Service. 2. Small Entities Affected by the Proposed Rule The proposed amendments would apply to all depository institutions that choose to participate in the FedNow Service regardless of their size. Pursuant to regulations issued by the Small Business Administration (13 CFR 121.201), a ‘‘small banking organization’’ includes a depository institution with $550 million or less in total assets. Based on call report data, there are approximately 9,460 depository institutions that have total domestic assets of $550 million or less and thus are considered small entities for purposes of the RFA. 3. Projected Reporting, Recordkeeping, and Other Compliance Requirements Other than noted here, there are no new projected reporting, recordkeeping, or other compliance requirements and no substantive changes to existing reporting, recordkeeping or other compliance requirements in the proposed amendments to Regulation J. Depository institutions that voluntarily choose to use the FedNow Service will have to comply with the applicable provisions of this proposed rule, which include the requirement on the availability of funds. 4. Identification of Duplicative, Overlapping, or Conflicting Federal Rules The Board has not identified any likely duplication and/or potential conflict between the proposed PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 regulatory amendments and any other Federal rule. While some overlap exists between the proposed amendments and EFAA (implemented in Regulation CC), as discussed above, the regulatory overlap does not create conflicting federal rules. Regulation CC’s availability requirements apply to all electronic payments and establish the outer bound of when those funds must be made available. The proposed requirements in Regulation J regarding availability establish a shorter time period for when funds must be made available than is required under Regulation CC and applies only to the subset of electronic payments that use the FedNow Service as a term of the service. 5. Significant Alternatives to the Proposed Rule As discussed above, the Board has not identified any new or substantial change to regulatory burden associated with the proposed amendments to Regulation J, and the Board has not identified any significant alternatives that would otherwise reduce the regulatory burden on small entities. C. Solicitation of Comments on Use of Plain Language Section 722 of the Gramm-LeachBliley Act (Pub. L. 106–102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the proposed rule in a simple and straightforward manner, and invites comment on the use of plain language and whether any part of the proposed rule could be more clearly stated. List of Subjects in 12 CFR Part 210 Banks, banking, Federal Reserve System. For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 210 as follows: PART 210—COLLECTION OF CHECKS AND OTHER ITEMS BY FEDERAL RESERVE BANKS AND FUNDS TRANSFERS THROUGH THE FEDWIRE FUNDS SERVICE AND THE FEDNOW SERVICE (REGULATION J) 1. The authority citation for part 210 continues to read as follows: ■ Authority: 12 U.S.C. 248(i), (j), and 248– 1, 342, 360, 464, 4001–4010, and 5001–5018. 2. Revise the heading to part 210 as shown above. ■ 3. Revise § 210.2 to read as follows: ■ E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 § 210.2 Definitions. As used in this subpart A, unless the context otherwise requires: 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. Actually and finally collected funds means cash or any other form of payment that is, or has become, final and irrevocable. Administrative Reserve Bank with respect to an entity means the Reserve Bank in whose District the entity is located, as determined under the procedure described in § 204.3(g) of this chapter (Regulation D), even if the entity is not otherwise subject to that section. Bank means any person engaged in the business of banking. A branch or separate office of a bank is a separate bank to the extent provided in the Uniform Commercial Code. Bank draft means a check drawn by one bank on another bank. Banking day means the part of a day on which a bank is open to the public for carrying on substantially all of its banking functions. Cash item means— (1) A check other than one classified as a noncash item under this section; or (2) Any other item payable on demand and collectible at par that the Reserve Bank that receives the item is willing to accept as a cash item. Cash item does not include a returned check. Check means a check or an electronic check, as those terms are defined in § 229.2 of this chapter (Regulation CC). Clock hour and clock half-hour. (1) Clock hour means a time that is on the hour, such as 1:00, 2:00, etc. (2) Clock half-hour means a time that is on the half-hour, such as 1:30, 2:30, etc. Fedwire Funds Service and Fedwire have the same meaning as that set forth in § 210.26. Item. (1) Means— (i) An instrument or a promise or order to pay money, whether negotiable or not, that is— (A) Payable in a Federal Reserve District 1 (District); (B) Sent by a sender to a Reserve Bank for handling under this subpart; and (C) Collectible in funds acceptable to the Reserve Bank of the District in which the instrument is payable; or (ii) A check. (2) Unless otherwise indicated, item includes both a cash and a noncash 1 For purposes of this subpart, the Virgin Islands and Puerto Rico are deemed to be in the Second District, and Guam, American Samoa, and the Northern Mariana Islands in the Twelfth District. VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 item, and includes a returned check sent by a paying or returning bank. Item does not include a check that cannot be collected at par, or a payment order as defined in § 210.26(i) and handled under subpart B of this part. The term also does not include an electronicallycreated item as defined in § 229.2 of this chapter (Regulation CC). Nonbank payor means a payor of an item, other than a bank. Noncash item means an item that a receiving Reserve Bank classifies in its operating circulars as requiring special handling. The term also means an item normally received as a cash item if a Reserve Bank decides that special conditions require that it handle the item as a noncash item. Paying bank means— (1) The bank by which an item is payable unless the item is payable or collectible at or through another bank and is sent to the other bank for payment or collection; (2) The bank at or through which an item is payable or collectible and to which it sent for payment or collection; or (3) The bank whose routing number appears on a check in the MICR line or in fractional form (or in the MICR-line information that accompanies an electronic item) and to which the check is sent for payment or collection. Returned check means a cash item returned by a paying bank, including an electronic returned check as defined in § 229.2 of this chapter (Regulation CC) and a notice of nonpayment in lieu of a returned check, whether or not a Reserve Bank handled the check for collection. Sender means any of the following entities that sends an item to a Reserve Bank for forward collection— (1) A depository institution, as defined in section 19(b) of the Federal Reserve Act (12 U.S.C. 461(b)); (2) A member bank, as defined in section 1 of the Federal Reserve Act (12 U.S.C. 221); (3) A clearing institution, defined as— (i) An institution that is not a depository institution but that maintains with a Reserve Bank the balance referred to in the first paragraph of section 13 of the Federal Reserve Act (12 U.S.C. 342); or (ii) An Edge corporation or agreement corporation that maintains an account with a Reserve Bank in conformity with Part 211 of this chapter (Regulation K); (4) Another Reserve Bank; (5) An international organization for which a Reserve Bank is empowered to act as depositary or fiscal agent and maintains an account; (6) A foreign correspondent, defined as any of the following entities for PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 31383 which a Reserve Bank maintains an account: A foreign bank or banker, a foreign state as defined in section 25(b) of the Federal Reserve Act (12 U.S.C. 632), or a foreign correspondent or agency referred to in section 14(e) of that act (12 U.S.C. 358); or (7) A branch or agency of a foreign bank maintaining reserves under section 7 of the International Banking Act of 1978 (12 U.S.C. 347d, 3105). State means a State of the United States, the District of Columbia, Puerto Rico, or a territory, possession, or dependency of the United States. Uniform Commercial Code and U.C.C. mean the Uniform Commercial Code as adopted in a state Terms not defined in this section. Unless the context otherwise requires— (1) The terms not defined herein have the meanings set forth in § 229.2 of this chapter applicable to subpart C or D of part 229 of this chapter (Regulation CC), as appropriate; and (2) The terms not defined herein or in § 229.2 of this chapter have the meanings set forth in the Uniform Commercial Code. ■ 4. Amend subpart B of part 210 by: ■ a. Revising the heading to subpart B of part 210 to read as follows: Subpart B—Funds Transfers Through the Fedwire Funds Service b. Removing the words ‘‘Appendix B of this subpart’’ and ‘‘Appendix B to this subpart’’ and replace with the words ‘‘Appendix A of this part 210’’ wherever they appear. ■ 5. In § 210.25, revise paragraphs (b)(2) and (c) to read as follows: ■ § 210.25 Authority, purpose, and scope. * * * * * (b) * * * (2) Except as otherwise provided in paragraphs (b)(3) and (4) of this section, this subpart, including Article 4A as set forth in appendix A of this part and operating circulars of the Federal Reserve Banks issued in accordance with paragraph (c) of this section, governs the rights and obligations of the following parties with respect to the Fedwire Funds Service: (i) Federal Reserve Banks that send or receive payment orders; (ii) Senders that send payment orders directly to a Federal Reserve Bank; (iii) Receiving banks that receive payment orders directly from a Federal Reserve Bank; (iv) Beneficiaries that receive payment for payment orders by means of credit to an account maintained or used at a Federal Reserve Bank; and (v) Other parties to a funds transfer any part of which is carried out through E:\FR\FM\11JNP2.SGM 11JNP2 31384 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules the Fedwire Funds Service to the same extent as if this subpart were considered a funds-transfer system rule under Article 4A. * * * * * (c) Operating Circulars. Each Federal Reserve Bank shall issue an Operating Circular consistent with this subpart that governs the details of its fundstransfer operations in connection with the Fedwire Funds Service and other matters it deems appropriate. Among other things, the Operating Circular may set cut-off times and funds-transfer business days; address security procedures offered by the Federal Reserve Banks to verify the authenticity of a payment order; specify format and media requirements for payment orders; specify the time and method of receipt, execution, and acceptance of a payment order and settlement of a Federal Reserve Bank’s payment obligation for purposes of Article 4A; specify service terms governing ancillary features of the Fedwire Funds Service; provide for the acceptance of documents in electronic form to the extent any provision in Article 4A requires an agreement or other document to be in writing; identify messages that are not payment orders; and impose charges for fundstransfer services. * * * * * ■ 6. Revise § 210.26 to read as follows: jbell on DSKJLSW7X2PROD with PROPOSALS2 § 210.26 Definitions. As used in this subpart, the following definitions apply: Article 4A means Article 4A of the Uniform Commercial Code as set forth in appendix A of this part, which is incorporated into this subpart in accordance with § 210.25(b). Automated clearing house transfer means any transfer designated as an automated clearing house transfer in an operating circular issued by the Federal Reserve Banks. Beneficiary has the same meaning as in Article 4A except that the term is limited to a beneficiary in a funds transfer any portion of which is sent through the Fedwire Funds Service. Beneficiary’s bank has the same meaning as in Article 4A, except that: (1) The term is limited to a beneficiary’s bank in a funds transfer any portion of which is sent through the Fedwire Funds Service; (2) A Federal Reserve Bank need not be identified in the payment order in order to be the beneficiary’s bank; and (3) The term includes a Federal Reserve Bank when that Federal Reserve Bank is the beneficiary of a payment order. Fedwire Funds Service means the funds-transfer system owned and VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by this subpart. The Fedwire Funds Service does not include the FedNow Service or the system for making automated clearing house transfers. Interdistrict transfer means a funds transfer involving entries to accounts maintained at two Federal Reserve Banks. Intradistrict transfer means a funds transfer involving entries to accounts maintained at one Federal Reserve Bank. Off-line bank means a bank that sends payment orders to and receives payment orders from a Federal Reserve Bank by telephone orally or by other means other than electronic data transmission. Payment order has the same meaning as in Article 4A except that the term includes only instructions sent or received through the Fedwire Funds Service and does not include automated clearing house transfers or any communication designated in an operating circular issued by a Federal Reserve Bank under this subpart as not being a payment order. Receiving bank has the same meaning as in Article 4A except that the term is limited to a receiving bank in a funds transfer any portion of which is sent through the Fedwire Funds Service. Sender has the same meaning as in Article 4A except that the term is limited to a sender in a funds transfer any portion of which is sent through the Fedwire Funds Service. Sender’s account, receiving bank’s account, and beneficiary’s account mean the reserve, clearing, or other funds deposit account at a Federal Reserve Bank maintained or used by the sender, receiving bank, or beneficiary, respectively. Sender’s Federal Reserve Bank and receiving bank’s Federal Reserve Bank mean the Federal Reserve Bank at which the sender or receiving bank, respectively, maintains or uses an account. ■ 7. In § 210.28, revise paragraphs (b)(1) through (3) to read as follows: § 210.28 Agreement of sender. * * * * * (b) Overdrafts. (1) A sender does not have the right to an overdraft in the sender’s account. In the event an overdraft is created, the overdraft shall be due and payable immediately, without the need for a demand by the Federal Reserve Bank, at the earliest of the following times: (i) At the end of the Fedwire Funds Service funds-transfer business day; PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 (ii) At the time the Federal Reserve Bank, in its sole discretion, deems itself insecure and gives notice thereof to the sender; or (iii) At the time the sender suspends payments or is closed. (2) The sender shall have in its account, at the time the overdraft is due and payable, a balance of actually and finally collected funds sufficient to cover the aggregate amount of all its obligations to the Federal Reserve Bank, whether the obligations result from the execution of a payment order or otherwise. (3) To secure any overdraft, as well as any other obligation due or to become due to its Federal Reserve Bank, each sender, by sending a payment order to a Federal Reserve Bank that is accepted by the Federal Reserve Bank, grants to the Federal Reserve Bank a security interest in all of the sender’s assets in the possession or control of, or held for the account of, the Federal Reserve Bank. The security interest attaches when an overdraft, or any other obligation to the Federal Reserve Bank, becomes due and payable. * * * * * ■ 8. In § 210.30, revise paragraphs (b) and (c) to read as follows: § 210.30 Payment orders. * * * * * (b) Selection of an intermediary bank. For an interdistrict transfer through the Fedwire Funds Service, a Federal Reserve Bank is authorized and directed to execute a payment order through another Federal Reserve Bank. A sender shall not send a payment order to a Federal Reserve Bank that requires the Federal Reserve Bank to send a payment order to an intermediary bank (other than a Federal Reserve Bank) unless that intermediary bank is designated in the sender’s payment order. A sender shall not send to a Federal Reserve Bank a payment order through the Fedwire Funds Service that instructs use by a Federal Reserve Bank of a funds-transfer system or means of transmission other than the Fedwire Funds Service unless the Federal Reserve Bank agrees with the sender in writing to follow such instructions. (c) Execution date and payment date. A sender shall not send a payment order through the Fedwire Funds Service that instructs a Federal Reserve Bank to execute the payment order or to pay the beneficiary on a funds-transfer business day that is later than the Fedwire Funds Service funds-transfer business day on which the order is received by the Federal Reserve Bank, unless the Federal Reserve Bank agrees with the E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules sender in writing to follow such instructions. ■ 9. In § 210.32, revise the section heading and paragraph (b) to read as follows: § 210.32 Federal Reserve Bank liability; payment of compensation. jbell on DSKJLSW7X2PROD with PROPOSALS2 * * * * * (b) Payment of compensation. (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 such compensation in the form of interest to a sender, receiving bank, 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 the payment of compensation is not the party entitled to compensation under Article 4A, the sender or receiving bank shall pass through the benefit of the compensation by making an interest payment, as of the day the compensation was paid by the Federal Reserve Bank, 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 compensation that was paid 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 of subpart B of part 210: ■ a. Under ‘‘Section 210.25—Authority, Purpose, and Scope,’’ revise paragraphs (a), (b)(1) through (6), and (c); ■ b. Revise ‘‘Section 210.26— Definitions;’’ ■ c. Under ‘‘Section 210.28—Agreement of Sender,’’ revise paragraphs (a), (b)(1) and (2), and (c)(2); ■ d. Under ‘‘Section 210.30—Payment Orders,’’ revise paragraphs (b)(2) and (c); and ■ e. Under ‘‘Section 210.32—Federal Reserve Bank Liability; Payment of Compensation,’’ revise the heading and paragraphs (a)(2), (b)(1) through (3), and (c). The revisions read as follows: Appendix A of Subpart B of Part 210— Commentary * * * VerDate Sep<11>2014 * * 19:48 Jun 10, 2021 Jkt 253001 Section 210.25—Authority, Purpose, and Scope (a) Authority and purpose. Section 210.25(a) states that the purpose of subpart B of this part is to provide rules to govern funds transfers through the Fedwire Funds Service and recites the Board’s rulemaking authority for this subpart. Subpart B of this part is federal law and is not a ‘‘fundstransfer system rule’’ as defined in section 4A–501(b) of Article 4A, Funds Transfers, of the Uniform Commercial Code (UCC), as set forth in appendix A of this part. Certain provisions of Article 4A may not be varied by a funds-transfer system rule, but under section 4A–107, regulations of the Board and operating circulars of the Federal Reserve Banks supersede inconsistent provisions of Article 4A to the extent of the inconsistency. In addition, regulations of the Board may preempt inconsistent provisions of state law. Accordingly, subpart B of this part supersedes or preempts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart B of this part, such as Article 4A as enacted in any state, as such state law may apply to parties to funds transfers through the Fedwire Funds Service whose rights and obligations are not governed by subpart B of this part. (b) Scope. (1) Subpart B of this part incorporates the provisions of Article 4A set forth in appendix A 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 A 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 as set forth in appendix A of this part. 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, which is now also known as the Uniform Law Commission, and the American Law Institute, from time to time, are also incorporated into subpart B of this part. Subpart B of this part applies to any party to a funds transfer over the Fedwire Funds Service 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 as payment for a payment order accepted by a Federal Reserve Bank. Other parties to a funds transfer over the Fedwire Funds Service are covered by subpart B of this part to the same extent subpart B would apply to them if subpart B were a ‘‘fundstransfer 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 31385 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 fundstransfer 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 of a fact when the person has actual knowledge of it, receives a notice or notification of it, or has reason to know that it exists from all the facts and circumstances known to the person at the time in question. (See UCC section 1–202.) 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 payment order may be sent from an originator’s bank through a funds-transfer system other than the Fedwire Funds Service to a receiving bank which, in turn, executes that payment order by sending a payment order through the Fedwire Funds Service. Similarly, a Federal Reserve Bank may send a payment order through the Fedwire Funds Service to a receiving bank that sends it through a funds-transfer system other than the Fedwire Funds Service to the beneficiary’s bank. In the first example, if the originator’s bank has notice that the Fedwire Funds Service may be used to effect part of the funds transfer, the sending of the payment order through the other fundstransfer 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 the Fedwire Funds Service 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 being made through that funds transfer system. Because subpart B of this part is federal law, 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 to the extent of any inconsistency. If remote parties to a funds transfer, a portion of which is sent through the Fedwire Funds Service, have expressly selected by agreement, in accordance with section 4A–507(b), a law other than subpart B of this part, 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 the Fedwire Funds Service might be used and of the governing law. (See section 4A–507(d).) In E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 31386 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules 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 the Fedwire Funds Service. (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 1005). A funds transfer from a consumer originator or a funds transfer to a consumer beneficiary could be carried out in part through the Fedwire Funds Service 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 § 210.26 in this appendix, ‘‘Payment Order’’.) (5) Section 919 of the EFTA, however, governs ‘‘remittance transfers,’’ which may include funds transfers over the Fedwire Funds Service. 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 of this part, except that, in the event of an inconsistency between the provisions of subpart B of this part 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 Federal Reserve Bank through the Fedwire Funds Service. If the consumer subsequently exercised the right to cancel the remittance transfer and obtain a refund under the terms of section 919 of the EFTA, 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 Federal Reserve Bank under subpart B of this part. (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 business 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 part 229). Accordingly, the Expedited Funds VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 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 210.25(b)(4) 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. (c) Operating Circulars. The Federal Reserve Banks issue Operating Circulars consistent with this subpart that contain additional provisions applicable to payment orders and other messages sent through the Fedwire Funds Service. Under section 4A– 107, these Operating Circulars supersede inconsistent provisions of Article 4A, both as set forth in appendix A of this part and as enacted in any state. These Operating Circulars are not funds-transfer system rules, but, by their terms, they are binding on all parties covered by this subpart. * * * * * Section 210.26—Definitions Article 4A defines many terms (e.g., beneficiary, intermediary bank, receiving bank, security procedure) used in subpart B of this part. These terms are defined or listed in sections 4A–103 through 4A–105. These terms, such as the term bank (defined in section 4A–105(d)(2)), may differ from comparable terms in subpart A and subpart C of this part. As subpart B of this part incorporates consistent provisions of Article 4A, it incorporates these definitions unless these terms are expressly defined otherwise in subpart B of this part. Subpart B modifies the definitions of five Article 4A terms, beneficiary, beneficiary’s bank, payment order, receiving bank, and sender. Subpart B also defines terms not defined in Article 4A. Article 4A. Article 4A means the version of that article of the Uniform Commercial Code set forth in appendix A of this part. It does not refer to the law of any particular state unless the context indicates otherwise. Subject to the express provisions of this subpart, this version of Article 4A is incorporated into this subpart and made federal law for transactions covered by subpart B of this part. (See § 210.25(b)(1) and accompanying commentary.) 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, which is now also known as the Uniform Law Commission, and the American Law Institute, from time to time, are also incorporated into subpart B of this part. Beneficiary, beneficiary’s bank, receiving bank, and sender. The definitions of ‘‘beneficiary,’’ ‘‘beneficiary’s bank,’’ ‘‘receiving bank,’’ and ‘‘sender’’ in subpart B of this part differ from the definitions in sections 4A–103(a)(2) through (4). The subpart B definitions clarify that, for the PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 purposes of subpart B of this part, these terms are limited to parties in a funds transfer that is sent through the Fedwire Funds Service. For example, the parties to a funds transfer that is sent through the FedNow Service would be governed by subpart C of this part, and would not be a ‘‘beneficiary,’’ ‘‘beneficiary’s bank,’’ ‘‘receiving bank,’’ or ‘‘sender’’ governed by subpart B of this part. The subpart B definition of ‘‘beneficiary’s bank’’ further clarifies that where a Federal Reserve Bank functions as the beneficiary’s bank, it need not be identified in the payment order as the beneficiary’s bank and that a Federal Reserve Bank that receives a payment order as beneficiary is also the beneficiary’s bank with respect to that payment order. Fedwire Funds Service. This term refers to the funds-transfer system owned and operated by the Federal Reserve Banks that is governed by this subpart. The term does not refer to any particular computer, telecommunications facility, or funds transfer, but rather to the system as a whole, which may include transfers by telephone or by written instrument in particular circumstances. The term does not include the FedNow Service or the system used for automated clearing house transfers. Off-line bank. Most Fedwire payment orders are sent electronically from a sender to a Federal Reserve Bank or from a Federal Reserve Bank to a receiving bank. Banks that send payment orders to Federal Reserve Banks electronically are often referred to as on-line banks. Some Fedwire Funds Service participants, however, send payment orders to a Federal Reserve Bank or receive payment orders from a Federal Reserve Bank orally by telephone or, in unusual circumstances, in writing. A bank that does not use either a terminal or a computer that links it electronically to a terminal or computer at its Federal Reserve Bank to send payment orders through the Fedwire Funds Service is an offline bank. 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, the term includes only instructions transmitted through the Fedwire Funds Service. For example, instructions transmitted through the FedNow Service would be governed by subpart C of this part, and not subpart B of this part. Additionally, the subpart B definition provides that certain messages that are transmitted through the Fedwire Funds Service are not payment orders. Federal Reserve Banks and banks participating in the Fedwire Funds Service send various types of messages relating to payment orders or to other matters, through the Fedwire Funds Service, that are not intended to be payment orders. In some cases, messages sent through the Fedwire Funds Service, such as certain requests for credit transfer, may be payment orders under Article 4A, but are not treated as payment orders under subpart B of this part because they are not an instruction to a Federal Reserve Bank to pay or cause another bank to pay money. Under the subpart B definition, these messages are not ‘‘payment E:\FR\FM\11JNP2.SGM 11JNP2 31387 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules orders’’ governed by subpart B of this part. The operating circulars of the Federal Reserve Banks may specify those messages that may be transmitted through the Fedwire Funds Service but that are not payment orders. (2) Subpart B of this part, including its incorporation of Article 4A, governs 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 1005) implementing it do not apply to funds transfers through the Fedwire Funds Service (see 15 U.S.C. 1693a(7)(B) and 12 CFR 1005.3(c)(3)), 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 subpart B of this part. Thus, subpart B of this part applies to all funds transfers through the Fedwire Funds Service even though some such transfers involve originators or beneficiaries who are consumers. (See also § 210.25(b) and accompanying commentary.) jbell on DSKJLSW7X2PROD with PROPOSALS2 * * * * * Section 210.28—Agreement of Sender (a) Payment of sender’s obligation to a Federal Reserve Bank. When a sender sends a payment order to a Federal Reserve Bank and the Federal Reserve Bank accepts the payment order by issuing a conforming order executing the sender’s payment order, under section 4A–402 the sender is indebted to the Federal Reserve Bank for the amount of the payment order. Section 4A–403 specifies the various methods by which a sender may settle the obligation under section 4A–402. With respect to a payment order sent through the Fedwire Funds Service, the obligation of a sender (other than a Federal Reserve Bank) is settled by a debit to the account of the sender at a Federal Reserve Bank. Section 210.28(a) provides that a sender, other than a Federal Reserve Bank, that maintains or uses an account at a Federal Reserve Bank authorizes the Federal Reserve Bank to debit that account so that the Federal Reserve Bank can obtain payment for the payment order. (b) Overdrafts. (1) In some cases, debits to a sender’s account will create an overdraft in the sender’s account. The Board and the Federal Reserve Banks have established policies concerning when a Federal Reserve Bank will permit a bank to incur an overdraft in its account at a Federal Reserve Bank. These policies do not give a bank or other sender a right to an overdraft in its account. Subpart B clarifies that a sender does not have a right to such an overdraft. If an overdraft arises, it becomes immediately due and payable at the earliest of the following times: The end of the Fedwire Funds Service funds-transfer business day; the time the Federal Reserve Bank, in its sole discretion, deems itself insecure and gives notice to the sender; or the time that the sender suspends payments or is closed by governmental action, such as the appointment of a receiver. VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 In some cases, a Federal Reserve Bank extends its Fedwire Funds Service operations beyond the standard cut-off time for that funds-transfer business day. For the purposes of this section, unless otherwise specified by the Federal Reserve Bank making such an extension, an overdraft becomes due and payable at the end of the extended operating hours. An overdraft becomes due and payable prior to a Federal Reserve Bank’s cutoff time if the Federal Reserve Bank deems itself insecure and gives notice to the sender. A Federal Reserve Bank that deems itself insecure may give such notice in accordance with the provisions on notice in section 1– 202(d) of the UCC, in accordance with any other applicable law or agreement, or by any other reasonable means. An overdraft also becomes due and payable at the time that a bank is closed or suspends payments. For example, an overdraft becomes due and payable if a receiver is appointed for the bank or the bank is prevented from making payments by governmental order. The Federal Reserve Bank need not make demand on the sender for the overdraft to become due and payable. (2) A sender must cover any overdraft and any other obligation of the sender to the Federal Reserve Bank by the time the overdraft becomes due and payable. By sending a payment order to a Federal Reserve Bank, the sender grants a security interest to the Federal Reserve Bank in all of the assets of the sender possessed or controlled by, or held for the account of, the Federal Reserve Bank in order to secure all obligations due or to become due to the Federal Reserve Bank. The security interest attaches when the overdraft, or other obligation of the sender to the Federal Reserve Bank, becomes due and payable. The security interest does not apply to assets held by the sender as custodian or trustee for the sender’s customers or third parties. Once an overdraft is due and payable, a Federal Reserve Bank may exercise its right of setoff, liquidate collateral, or take other similar action to satisfy the obligation the sender owes to the Federal Reserve Bank. * * * * * (c) * * * (2) Section 4A–505 provides that, in order for a customer to assert a claim objecting to a debit to its account by a receiving bank, the customer must notify the receiving bank of its objection within one year after the customer received notification reasonably identifying the payment order. Subpart B of this part does not vary this one-year claim preclusion period. * * * * * Section 210.30—Payment Orders * * * * * (b) * * * (2) This section provides that in an interdistrict transfer, a Federal Reserve Bank is authorized and directed to select another Federal Reserve Bank as an intermediary bank. A sender may, however, instruct a Federal Reserve Bank to use a particular intermediary bank by designating that bank as the bank to be credited by that Federal Reserve Bank (or the second Federal Reserve Bank in the case of an interdistrict transfer) in its payment order, in which case the PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 Federal Reserve Bank will send the payment order to that bank if that bank receives payment orders through the Fedwire Funds Service. A sender may not instruct a Federal Reserve Bank to use its discretion to select an intermediary bank other than a Federal Reserve Bank or an intermediary bank designated by the sender. In addition, a sender may not send a payment order through the Fedwire Funds Service that instructs a Federal Reserve Bank to use a funds-transfer system or means of transmission other than the Fedwire Funds Service unless the sender and the Federal Reserve Bank agree in writing to the use of that funds-transfer system or means of transmission. (c) Execution date and payment date. Generally, the Fedwire Funds Service is a same-day value transfer system through which funds may be transferred from the originator to the beneficiary on the same funds-transfer business day. A sender may not send a payment order to a Federal Reserve Bank that specifies an execution date or payment date later than the day on which the payment order is issued, unless the sender of the order and the Federal Reserve Bank agree in writing to the arrangement. * * * * * Section 210.32—Federal Reserve Bank Liability; Payment of Compensation (a) * * * (2) This section does not affect the ability of other parties to a funds transfer to agree to be liable for consequential damages, the liability of a Federal Reserve Bank under section 4A–404 (relating to obligation of beneficiary’s bank to pay and give notice to beneficiary), or the liability to parties governed by subpart B of this part for claims not based on the handling of a payment order under subpart B of this part. (b) Payment of compensation. (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). (2) Section 210.32(b) requires Federal Reserve Banks to provide compensation through payment in the form of interest. 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. Similarly, compensation in the form of interest will be paid to government E:\FR\FM\11JNP2.SGM 11JNP2 31388 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules senders, receiving banks, or beneficiaries described in § 210.25(d) if they are entitled to interest under subpart B of this part. A Federal Reserve Bank may also, in its discretion, pay compensation in the form of interest directly to a remote party to a Fedwire funds transfer that is entitled to interest, rather than providing compensation to its sender or receiving bank. (3) If a sender or receiving bank that received a payment of compensation is not the party entitled to compensation under Article 4A, the sender or receiving bank must pass the benefit of the payment made to it to the party that is entitled to compensation. 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. In the latter case, the value of the compensating balance must be at least equivalent to the value of the interest payment that otherwise would have been provided. (c) Nonwaiver of right of recovery. Several sections of Article 4A allow a party to a funds transfer to make a claim pursuant to the applicable law of mistake and restitution. Nothing in subpart B of this part or any operating circular issued in accordance with subpart B of this part waives any such claim by a Federal Reserve Bank. A Federal Reserve Bank, however, may waive such a claim by express written agreement in order to settle litigation or for other purposes. Appendix B to Subpart B of Part 210— Article 4A, Funds Transfers [Removed] ■ 11. Remove Appendix B of subpart B of part 210. ■ 12. Add subpart C of part 210 to read as follows: Subpart C—Funds Transfers Through the FedNow Service Sec. 210.40 Authority, purpose, and scope. 210.41 Definitions. 210.42 Reliance on identifying number. 210.43 Agreement of sender. 210.44 Agreement of receiving bank. 210.45 Payment orders. 210.46 Payment by a Federal Reserve Bank to a receiving bank or beneficiary. 210.47 Federal Reserve Bank liability; payment of compensation. Appendix A of Subpart C of Part 210— Commentary Subpart C—Funds Transfers Through the FedNow Service jbell on DSKJLSW7X2PROD with PROPOSALS2 § 210.40 Authority, purpose, and scope. (a) Authority and purpose. This subpart provides rules to govern funds transfers through the FedNow Service, and has been issued pursuant to the Federal Reserve Act—section 13 (12 U.S.C. 342), paragraph (f) of section 19 (12 U.S.C. 464), paragraph 14 of section 16 (12 U.S.C. 248(o)), and paragraphs (i) and (j) of section 11 (12 U.S.C. 248(i) and (j))—and other laws and has the force and effect of federal law. This VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 subpart is not a funds-transfer system rule as defined in Section 4A–501(b) of Article 4A. (b) Scope. (1) This subpart incorporates the provisions of Article 4A set forth in appendix A of this part. In the event of an inconsistency between the provisions of the sections of this subpart and appendix A of this part, the provisions of the sections of this subpart shall prevail. (2) Except as otherwise provided in paragraphs (b)(3) and (4) of this section, this subpart, including Article 4A as incorporated herein and operating circulars of the Federal Reserve Banks issued in accordance with paragraph (c) of this section, governs the rights and obligations of the following parties with respect to the FedNow Service: (i) Federal Reserve Banks that send or receive payment orders; (ii) Senders that send payment orders directly to a Federal Reserve Bank; (iii) Receiving banks that receive payment orders directly from a Federal Reserve Bank; (iv) Beneficiaries that receive payment for payment orders by means of credit to the beneficiary’s settlement account; and (v) Other parties to a funds transfer any part of which is carried out through the FedNow Service to the same extent as if this subpart were considered a funds-transfer system rule under Article 4A. (3) A Federal Reserve Bank that is not the sender’s Federal Reserve Bank, receiving bank’s Federal Reserve Bank, or beneficiary’s Federal Reserve Bank is not a party to the funds transfer for purposes of this subpart and Article 4A. (4) This subpart governs a funds transfer that is sent through the FedNow Service, even if a portion of the funds transfer is governed by the Electronic Fund Transfer Act, but in the event of an inconsistency between the provisions this subpart and the Electronic Fund Transfer Act, the Electronic Fund Transfer Act shall prevail to the extent of the inconsistency. (c) Operating Circulars. Each Federal Reserve Bank shall issue an Operating Circular consistent with this subpart that governs the details of its fundstransfer operations in connection with the FedNow Service and other matters it deems appropriate. Among other things, the Operating Circular may: Set cut-off times and funds-transfer business days; address security procedures offered by the Federal Reserve Banks to verify the authenticity of a payment order; specify format and media requirements for payment orders; specify the time and method of receipt, execution, and acceptance of a payment PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 order and settlement of a Federal Reserve Bank’s payment obligation for purposes of Article 4A; prescribe time limits for the processing of payment orders; specify service terms governing ancillary features of the FedNow Service; provide for the acceptance of documents in electronic form to the extent any provision in Article 4A requires an agreement or other document to be in writing; identify messages that are not payment orders; and impose charges for funds-transfer services. (d) Government senders, receiving banks, and beneficiaries. Except as otherwise expressly provided by the statutes of the United States, the parties specified in paragraphs (b)(2)(ii) through (v) of this section include a department, agency, instrumentality, independent establishment, or office of the United States, or a wholly-owned or controlled government corporation. (e) Financial messaging standards. Financial messaging standards (e.g., ISO 20022), including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. This subpart, including Article 4A as incorporated herein, and the operating circulars of the Federal Reserve Banks issued in accordance with paragraph (c) of this section govern the rights and obligations of parties to funds transfers sent through the FedNow Service as provided in paragraph (b) of this section. To the extent there is any inconsistency between a financial messaging standard adopted by the Federal Reserve Banks for the FedNow Service and this subpart, this subpart shall prevail. § 210.41 Definitions. As used in this subpart, the following definitions apply: Article 4A means Article 4A of the Uniform Commercial Code as set forth in appendix A of this part, which is incorporated into this subpart in accordance with § 210.40(b). Beneficiary has the same meaning as in Article 4A, except that the term is limited to a beneficiary in a funds transfer that is sent through the FedNow Service. Beneficiary’s bank has the same meaning as in Article 4A, except that: (1) The term is limited to a beneficiary’s bank in a funds transfer that is sent through the FedNow Service; (2) A Federal Reserve Bank need not be identified in the payment order in order to be the beneficiary’s bank; and E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules (3) The term includes a Federal Reserve Bank when that Federal Reserve Bank is the beneficiary of a payment order. Federal Reserve Bank with respect to an entity means the Federal Reserve Bank in whose District the entity is located, as determined under the procedure described in Part 204 of this chapter (Regulation D), even if the entity is not otherwise subject to that section, or, if the entity maintains an account on the books of a different Federal Reserve Bank, the Federal Reserve Bank at which the entity maintains an account. The FedNow Service means the fundstransfer system owned and operated by the Federal Reserve Banks to support instant payments that is used primarily for the transmission and settlement of payment orders governed by this subpart. The FedNow Service does not include the Fedwire Funds Service. Interdistrict transfer means a funds transfer involving entries to settlement accounts maintained at two Federal Reserve Banks. Payment order has the same meaning as in Article 4A, except that the term includes only instructions sent or received through the FedNow Service, and does not include automated clearing house transfers or any communication designated as not being a payment order in an Operating Circular issued by a Federal Reserve Bank under this subpart. Receiving bank has the same meaning as in Article 4A, except that the term is limited to a receiving bank in a funds transfer that is sent through the FedNow Service. Sender has the same meaning as in Article 4A, except that the term is limited to a sender in a funds transfer that is sent through the FedNow Service. Sender’s settlement account, receiving bank’s settlement account, and beneficiary’s settlement account mean an account on the books of a Federal Reserve Bank maintained by the sender, receiving bank, or beneficiary, respectively. The term also includes any account on a Federal Reserve Bank’s books used with respect to the FedNow Service by the sender, receiving bank, or beneficiary, respectively, by agreement with its Federal Reserve Bank, any other Federal Reserve Bank on whose books the settlement account is maintained, and the account-holder. § 210.42 Reliance on identifying number. (a) Reliance by a Federal Reserve Bank on number to identify a beneficiary’s bank. A Federal Reserve Bank that receives a payment order from a sender containing a number that VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 identifies the beneficiary’s bank may rely on the number, even if it identifies a bank different from the bank identified by name in the payment order, if the Federal Reserve Bank does not know of such an inconsistency in identification. A Federal Reserve Bank has no duty to detect any such inconsistency in identification. (b) Reliance by a Federal Reserve Bank on number to identify beneficiary. A Federal Reserve Bank, acting as a beneficiary’s bank, that receives a payment order from a sender containing a number that identifies the beneficiary may rely on the number, even if it identifies a person different from the person identified by name in the payment order, if the Federal Reserve Bank does not know of such an inconsistency in identification. A Federal Reserve Bank has no duty to detect any such inconsistency in identification. § 210.43 Agreement of sender. (a) Payment of sender’s obligation to a Federal Reserve Bank. A sender (other than a Federal Reserve Bank), by maintaining or using a settlement account with a Federal Reserve Bank, authorizes the sender’s Federal Reserve Bank to obtain payment for the sender’s payment orders by debiting, or causing any other Federal Reserve Bank on whose books the settlement account is maintained to debit, the amount of the payment order from the settlement account. The sender remains responsible for payment if the Federal Reserve Bank on whose books the settlement account is maintained does not, for any reason, obtain payment by debiting that account. (b) Overdrafts. (1) A sender does not have the right to an overdraft in its settlement account. In the event an overdraft is created, the overdraft shall be due and payable immediately, without the need for a demand by the Federal Reserve Bank, at the earliest of the following times: (i) At the end of the FedNow fundstransfer business day; (ii) At the time the Federal Reserve Bank, in its sole discretion, deems itself insecure and gives notice thereof to the sender; or (iii) At the time the sender suspends payments or is closed. (2) The sender shall have in its settlement account, at the time the overdraft is due and payable, a balance of actually and finally collected funds sufficient to cover the aggregate amount of all its obligations to the Federal Reserve Bank, whether the obligations result from the acceptance of a payment order or otherwise. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 31389 (3) To secure any overdraft, as well as any other obligation due or to become due to its Federal Reserve Bank, a sender, by sending a payment order to a Federal Reserve Bank that is accepted by the Federal Reserve Bank, grants to the Federal Reserve Bank a security interest in all of its assets in the possession or control of, or held for the account of, the Federal Reserve Bank. The security interest attaches when an overdraft, or any other obligation to the Federal Reserve Bank, becomes due and payable. (4) A Federal Reserve Bank may take any action authorized by law to recover the amount of an overdraft that is due and payable, including, but not limited to, the exercise of rights of set off, the realization on any available collateral, and any other rights it may have as a creditor under applicable law. (5) If a sender, other than a government sender described in § 210.40(d), incurs an overdraft in its settlement account as a result of a debit to the account by a Federal Reserve Bank under paragraph (a) of this section, the settlement account will be subject to any applicable overdraft charges, regardless of whether the overdraft has become due and payable. A Federal Reserve Bank may debit the settlement account under paragraph (a) of this section immediately on acceptance of the payment order. (c) Review of payment orders. A sender, by sending a payment order to a Federal Reserve Bank, agrees that for the purposes of sections 4A–204(a) and 4A–304 of Article 4A, a reasonable time to notify a Federal Reserve Bank of the relevant facts concerning an unauthorized or erroneously executed payment order is within 60 calendar days after the sender receives notice that the payment order was accepted or that the sender’s settlement account was debited with respect to the payment order. § 210.44 Agreement of receiving bank. (a) Payment. A receiving bank (other than a Federal Reserve Bank) that receives a payment order from its Federal Reserve Bank authorizes that Federal Reserve Bank to pay for the payment order by crediting, or causing any other Federal Reserve Bank on whose books the settlement account is maintained to credit, the amount of the payment order to the settlement account. (b) Funds availability. (1) A beneficiary’s bank (other than a Federal Reserve Bank) that accepts a payment order over the FedNow Service is obliged to pay the amount of the order to the beneficiary of the order E:\FR\FM\11JNP2.SGM 11JNP2 31390 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules immediately after its acceptance of the payment order, by crediting an account of the beneficiary in accordance with section 4A–405(a) of Article 4A. The rights and obligations with respect to the availability of funds are also governed by the Expedited Funds Availability Act and the Board’s Regulation CC, Availability of Funds and Collection of Checks. (2) Nothing in paragraph (b)(1) of this section or any Operating Circular issued hereunder shall create any rights that the beneficiary or any party other than a Federal Reserve Bank may assert against the beneficiary’s bank, or affect any liability of the beneficiary’s bank to the beneficiary or any party other than a Federal Reserve Bank under Article 4A or other law. (3) In circumstances where the beneficiary’s bank (other than a Federal Reserve Bank) has reasonable cause to believe that the beneficiary is not entitled or permitted to receive payment, the beneficiary’s bank may notify its Federal Reserve Bank that it requires additional time to determine whether to accept the payment order. In the event the beneficiary’s bank gives such notice to its Federal Reserve Bank, for purposes of this subpart and Article 4A the beneficiary’s bank does not accept the payment order upon its receipt of payment in the amount of the payment order by a Federal Reserve Bank. jbell on DSKJLSW7X2PROD with PROPOSALS2 § 210.45 Payment orders. (a) Rejection. A sender shall not send a payment order to a Federal Reserve Bank unless authorized to do so by the Federal Reserve Bank. A Federal Reserve Bank may reject, or impose conditions that must be satisfied before it will accept, a payment order for any reason. (b) Selection of an intermediary bank. For an interdistrict transfer through the FedNow Service, a Federal Reserve Bank is authorized and directed to execute a payment order through another Federal Reserve Bank. A sender shall not send a payment order to a Federal Reserve Bank that requires the Federal Reserve Bank to send a payment order to an intermediary bank (other than a Federal Reserve Bank). A sender shall not send to a Federal Reserve Bank a payment order through the FedNow Service that instructs use by a Federal Reserve Bank of a funds-transfer system or means of transmission other than the FedNow Service, unless the Federal Reserve Bank agrees with the sender in writing to follow such instructions. (c) Execution Date and Payment Date. A sender shall not issue a payment order through the FedNow Service that VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 instructs a Federal Reserve Bank to execute the payment order or to pay the beneficiary on a FedNow funds-transfer business day that is later than the fundstransfer business day on which the order is received by the Federal Reserve Bank, unless the Federal Reserve Bank agrees with the sender in writing to follow such instructions. § 210.46 Payment by a Federal Reserve Bank to a receiving bank or beneficiary. (a) Payment to a receiving bank. Payment of a Federal Reserve Bank’s obligation to pay a receiving bank (other than a Federal Reserve Bank) occurs at the earlier of the time when the amount of the payment order is credited to the receiving bank’s settlement account or when the payment order is sent to the receiving bank. (b) Payment to a beneficiary. Payment by a Federal Reserve Bank to a beneficiary of a payment order, where the Federal Reserve Bank is the beneficiary’s bank, occurs at the earlier of the time when the amount of the payment order is credited to the beneficiary’s settlement account or when notice of the credit is sent to the beneficiary. § 210.47 Federal Reserve Bank liability; payment of compensation. (a) Damages. In connection with its handling of a payment order under this subpart, a Federal Reserve Bank shall not be liable to a sender, receiving bank, beneficiary, or other Federal Reserve Bank, governed by this subpart, for any damages other than those payable under Article 4A. A Federal Reserve Bank shall not agree to be liable to a sender, receiving bank, beneficiary, or other Federal Reserve Bank for consequential damages under section 4A–305(d) of Article 4A. (b) Payment of compensation. (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 such compensation to a sender, receiving bank, 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 the payment of compensation is not the party entitled to compensation under Article 4A, the sender or receiving bank shall pass through the benefit of the compensation by making an interest payment, as of the day the compensation was paid by the Federal Reserve Bank, to the party entitled to compensation. The interest payment that is made to the party PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 entitled to compensation shall not be less than the value of the compensation that was paid 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. (c) Nonwaiver of right of recovery. Nothing in this subpart or any operating circular issued hereunder shall constitute, or be construed as constituting, a waiver by a Federal Reserve Bank of a cause of action for recovery under any applicable law of mistake and restitution. Appendix A of Subpart C of Part 210— Commentary The Commentary provides background material to explain the intent of the Board of Governors of the Federal Reserve System (Board) in adopting a particular provision in the subpart and to help readers interpret that provision. In some comments, examples are offered. The Commentary constitutes an official Board interpretation of subpart C of this part. Commentary is not provided for every provision of subpart C of this part, as some provisions are self-explanatory. Section 210.40—Authority, Purpose, and Scope (a) Authority and purpose. Section 210.40(a) states that the purpose of subpart C of this part is to provide rules to govern funds transfers through the FedNow Service and recites the Board’s rulemaking authority for this subpart. Subpart C of this part is federal law and is not a ‘‘funds-transfer system rule,’’ as defined in section 4A–501(b) of Article 4A, Funds Transfers, of the Uniform Commercial Code (UCC), as set forth in appendix A of this part. Certain provisions of Article 4A may not be varied by a fundstransfer system rule, but under section 4A– 107, regulations of the Board and Operating Circulars of the Federal Reserve Banks supersede inconsistent provisions of Article 4A to the extent of the inconsistency. In addition, regulations of the Board may preempt inconsistent provisions of state law. Accordingly, subpart C of this part supersedes or preempts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart C of this part, such as Article 4A, as enacted in any state, as such state law may apply to parties to funds transfers through the FedNow Service whose rights and obligations are not governed by subpart C of this part. (b) Scope. (1) Subpart C of this part incorporates the provisions of Article 4A set forth in appendix A of this part. The provisions set forth expressly in the sections of subpart C of this part supersede or preempt any inconsistent provisions of Article 4A as set forth in appendix A of this part or as enacted in any state. The official comments to Article 4A are not incorporated E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules in subpart C of this part or this commentary to subpart C of this part, but the official comments may be useful in interpreting Article 4A as set forth in appendix A of this part. 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, which is now also known as the Uniform Law Commission, and the American Law Institute, from time to time, are also incorporated into subpart C of this part. Subpart C of this part applies to any party to a funds transfer sent through the FedNow Service that is in privity with a Federal Reserve Bank. These parties include a sender (bank or nonbank) that sends a payment order to a Federal Reserve Bank through the FedNow Service, a receiving bank that receives a payment order from a Federal Reserve Bank, and a beneficiary that receives credit to an account that it uses or maintains at a Federal Reserve Bank as payment for a payment order accepted by a Federal Reserve Bank. Subpart C of this part also applies to Federal Reserve Banks that send or receive payment orders over the FedNow Service. For example, if a sender settles its activity over the FedNow Service in the account of a correspondent bank, the sender’s Federal Reserve Bank would be a bank in the funds transfer chain, but the Federal Reserve Bank of the correspondent bank would not be a sender or receiving bank with respect to the payment order and would not be a party to the funds transfer. Other parties to a funds transfer sent through the FedNow Service 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 C 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 fundstransfer 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 of a fact when the person has actual knowledge of it, receives a notice or notification of it, or has reason to know that it exists from all the facts and circumstances known to the person at the time in question. (See UCC section 1–202.) 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) With respect to funds transfers sent through the FedNow Service, if originators 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 C of this part, subpart C of this part generally would apply to those remote parties. If remote parties to a funds transfer, a portion of which is sent through the FedNow Service, VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 have expressly selected by agreement a law other than subpart C of this part under section 4A–507(b), subpart C of this part would not take precedence over the choice of law made by the agreement even though the remote parties had notice that the FedNow Service may be used and of the governing law. (See 4A–507(d).) In addition, subpart C of this part would not apply to a funds transfer sent through a funds-transfer system other than the FedNow Service, even though settlement for the funds transfer is made by means of a separate funds transfer through the FedNow Service. (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.). A funds transfer from a consumer originator or a funds transfer to a consumer beneficiary could be carried out through the FedNow Service and could potentially be subject to the EFTA and Regulation E (12 CFR part 1005) implementing it. If so, the funds transfer continues to also be governed by subpart C, except that, in the event of an inconsistency between the provisions of subpart C and the EFTA, the EFTA shall prevail to the extent of the inconsistency. (See also the commentary to section 210.41 in this appendix, ‘‘Payment Order.’’) For example, a funds transfer may be initiated from a consumer’s account at a depository institution, and the depository institution may execute that payment order by sending a conforming payment order to a Reserve Bank through the FedNow Service. If that transfer is subject to the EFTA, then where the consumer subsequently reports the transfer as an unauthorized electronic fund transfer to its depository institution and exercises the right to obtain reimbursement under the terms of the EFTA, the depository institution would be required to comply with the EFTA even if the institution does not have a right to reverse the payment order sent to the Reserve Bank through the FedNow Service under subpart C. (c) Operating Circulars. The Federal Reserve Banks issue Operating Circulars consistent with this subpart that contain additional provisions applicable to payment orders and other messages sent through the FedNow Service. Under section 4A–107, this Operating Circular supersedes inconsistent provisions of Article 4A, both as set forth in appendix A of this part and as enacted in any state. These Operating Circulars are not funds-transfer system rules, but, by their terms, they are binding on all parties covered by this subpart. (d) Government senders, receiving banks, and beneficiaries. This section clarifies that unless a statute of the United States provides otherwise, subpart C of this part applies to governmental entities. (e) Financial messaging standards. This paragraph makes clear that financial messaging standards, including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. Instead, subpart C of this part and Federal Reserve Bank operating circulars govern the rights and obligations of parties to funds PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 31391 transfers sent through the FedNow Service as provided in § 210.40(b). Thus, to the extent there is any inconsistency between a financial messaging standard adopted by the FedNow Service and subpart C of this part, subpart C of this part, including Article 4A as set forth in appendix A of this part, will prevail. In the ISO 20022 financial messaging standard, for example, the term agent is used to refer to a variety of bank parties to a funds transfer (e.g., debtor agent, creditor agent, intermediary agent). Notwithstanding use of that term in the standard and in message tags, such banks are not the agents of any party to a funds transfer and owe no duty to any other party to such a funds transfer except as provided in subpart C of this part (including Article 4A) or by express agreement. The ISO 20022 financial messaging standard also permits information to be carried in a fundstransfer message regarding persons that are not parties to that funds transfer (e.g., ultimate debtor, ultimate creditor, initiating party) for regulatory, compliance, remittance, or other purposes. An ‘‘ultimate debtor’’ is not an ‘‘originator’’ as defined in Article 4A. The relationship between the ultimate debtor and the originator (what the ISO 20022 standard calls the ‘‘debtor’’) is determined by law other than Article 4A. Section 210.41—Definitions Article 4A defines many terms (e.g., beneficiary, intermediary bank, receiving bank, security procedure) used in this subpart. These terms are defined or listed in sections 4A–103 through 4A–105. These terms, such as the term bank (defined in section 4A–105(d)(2)), may differ from comparable terms in subpart A and subpart B of this part. As subpart C of this part incorporates consistent provisions of Article 4A, it incorporates these definitions unless these terms are expressly defined otherwise in subpart C of this part. This subpart modifies the definitions of five Article 4A terms: Beneficiary, beneficiary’s bank, payment order, receiving bank, and sender. This subpart also defines terms not defined in Article 4A. Article 4A. Article 4A means the version of that article of the Uniform Commercial Code set forth in appendix A of this part. It does not refer to the law of any particular state unless the context indicates otherwise. Subject to the express provisions of this Subpart, this version of Article 4A is incorporated into this subpart and made federal law for transactions covered by this subpart. (See § 210.40(b)(1) and accompanying commentary.) 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, which is now also known as the Uniform Law Commission, and the American Law Institute, from time to time, are also incorporated in subpart C of this part. Beneficiary, beneficiary’s bank, receiving bank, and sender. The definitions of ‘‘beneficiary,’’ ‘‘beneficiary’s bank,’’ ‘‘receiving bank,’’ and ‘‘sender’’ in subpart C of this part differ from the definitions in sections 4A–103(a)(2)–(4). The subpart C E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 31392 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules definition clarifies that, for the purposes of subpart C of this part, these terms are limited to parties in a funds transfer that is sent through the FedNow Service. For example, the parties to a funds transfer that is sent through the Fedwire Funds Service would be governed by subpart B of this part, and would not be a ‘‘beneficiary,’’ ‘‘beneficiary’s bank,’’ ‘‘receiving bank,’’ or ‘‘sender’’ governed by subpart C. The definition of ‘‘beneficiary’s bank’’ in subpart C further clarifies that where a Federal Reserve Bank functions as the beneficiary’s bank, it need not be identified in the payment order as the beneficiary’s bank and that a Federal Reserve Bank that receives a payment order as beneficiary is also the beneficiary’s bank with respect to that payment order. The FedNow Service. The FedNow Service refers to the funds-transfer system owned and operated by the Federal Reserve Banks to support instant payments that is governed by this Subpart. The term does not refer to any particular computer, telecommunications facility, or funds transfer, but rather to the system as a whole. The FedNow Service does not include the Fedwire Funds Service or the system used for automated clearing house transfers. Payment Order. (1) The definition of ‘‘payment order’’ in subpart C of this part differs from the section 4A–103(a)(1) definition. The subpart C definition clarifies that, for the purposes of subpart C of this part, the term includes only instructions transmitted through the FedNow Service. For example, instructions transmitted through the Fedwire Funds Service would be governed by subpart B of this part, and not subpart C. Additionally, the subpart C definition provides that certain messages that are transmitted through the FedNow Service are not payment orders. Federal Reserve Banks and banks participating in the FedNow Service send various types of messages relating to payment orders or to other matters, through the FedNow Service, that are not intended to be payment orders. In some cases, messages sent through the FedNow Service, such as certain requests for payment, may be payment orders under Article 4A, but are not treated as payment orders under subpart C because they are not an instruction to a Federal Reserve Bank to pay or cause another bank to pay money. Under the subpart C definition, these messages are not ‘‘payment orders’’ governed by this subpart. The operating circulars of the Federal Reserve Banks may specify those messages that may be transmitted through the FedNow Service but that are not payment orders. (2) Subpart C, including its incorporation of Article 4A, governs 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 1005) implementing it, may govern a transfer through the FedNow Service that is from a consumer originator or to a consumer VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 beneficiary. In the event that a transfer through the FedNow Service is subject to the EFTA, the transfer continues to also be governed by this subpart, except that, in the event of an inconsistency between the provisions of subpart C and the EFTA, the EFTA shall prevail to the extent of the inconsistency. (See also § 210.40(b) and accompanying commentary.) Thus, this subpart applies to all funds transfers through the FedNow Service even though some such transfers involve originators or beneficiaries that are consumers. Sender’s settlement account, receiving bank’s settlement account, and beneficiary’s settlement account. A FedNow participant must designate an account on the books of a Federal Reserve Bank that the Federal Reserve Banks may use to settle the participant’s activity over the FedNow Service. A FedNow participant may settle its activity over the FedNow Service in its master account. Alternatively, it may designate the account of a correspondent bank that the Federal Reserve Banks may use to settle activity through the service, subject to the correspondent bank’s agreement to any such designation. Section 210.42—Reliance on Identifying Number (a) Reliance by a Federal Reserve Bank on number to identify intermediary bank or beneficiary’s bank. Section 4A–208 provides that a receiving bank, such as a Federal Reserve Bank, may rely on the routing number of an intermediary bank or the beneficiary’s bank specified in a payment order as identifying the appropriate intermediary bank or beneficiary’s bank, even if the payment order identifies another bank by name, provided that the receiving bank does not know of the inconsistency. Under section 4A–208(b)(2), if the sender of the payment order is not a bank, a receiving bank may rely on the number only if the sender had notice before the receiving bank accepted the sender’s order that the receiving bank might rely on the number. This section provides this notice to entities that are not banks, such as the Department of the Treasury, that send payment orders directly to a Federal Reserve Bank through the FedNow Service. (b) Reliance by a Federal Reserve Bank on number to identify beneficiary. Section 4A– 207 provides that a beneficiary’s bank, such as a Federal Reserve Bank, may rely on the number identifying a beneficiary, such as the beneficiary’s account number, specified in a payment order as identifying the appropriate beneficiary, even if the payment order identifies another beneficiary by name, provided that the beneficiary’s bank does not know of the inconsistency. Under section 4A–207(c)(2), if the originator is not a bank, an originator is not obliged to pay for a payment order if the originator did not have notice that the beneficiary’s bank might rely on the identifying number and the person paid on the basis of the identifying number was not entitled to receive payment. This section of subpart C provides this notice to entities that are not banks, such as the Department of the Treasury, that are originators of payment orders sent directly by PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 the originators to a Federal Reserve Bank through the FedNow Service, where that Federal Reserve Bank or another Federal Reserve Bank is the beneficiary’s bank (see also section 4A–402(b), providing that a sender must pay a beneficiary’s bank for a payment order accepted by the beneficiary’s bank). Section 210.43—Agreement of Sender (a) Payment of sender’s obligation to a Federal Reserve Bank. When a sender sends a payment order to a Federal Reserve Bank and the Federal Reserve Bank accepts the payment order by issuing a conforming order executing the sender’s payment order, under section 4A–402, the sender is indebted to the Federal Reserve Bank for the amount of the payment order. Section 4A–403 specifies the various methods by which a sender may settle the obligation under section 4A–402. With respect to a payment order sent through the FedNow Service, the obligation of a sender (other than a Federal Reserve Bank) is settled by a debit to the account of the sender at a Federal Reserve Bank. Section 210.43(a) provides that a sender, other than a Federal Reserve Bank, that maintains or uses a settlement account at a Federal Reserve Bank authorizes its Federal Reserve Bank to debit, or cause any other Federal Reserve Bank on whose books the settlement account is maintained to debit, that account, so that the Federal Reserve Bank can obtain payment for the payment order. (b) Overdrafts. (1) In some cases, debits to a sender’s settlement account will create an overdraft in the settlement account. The Board and the Federal Reserve Banks have established policies concerning when a Federal Reserve Bank will permit a bank to incur an overdraft in its account at a Federal Reserve Bank. These policies do not give a bank or other sender a right to an overdraft in its account. Subpart C clarifies that a sender does not have a right to such an overdraft. If an overdraft arises, it becomes immediately due and payable at the earliest of the following times: The end of the FedNow funds-transfer business day; the time the Federal Reserve Bank in its sole discretion, deems itself insecure and gives notice to the sender; or the time that the sender suspends payments or is closed by governmental action, such as the appointment of a receiver. In some cases, a Federal Reserve Bank extends its FedNow operations beyond the standard cut-off time for that FedNow funds-transfer business day. For the purposes of this section, unless otherwise specified by the Federal Reserve Bank making such an extension, an overdraft becomes due and payable at the end of the extended operating hours. An overdraft becomes due and payable prior to a Federal Reserve Bank’s cut-off time if the Federal Reserve Bank deems itself insecure and gives notice to the sender. A Federal Reserve Bank that deems itself insecure may give such notice in accordance with the provisions on notice in section 1–202(d) of the UCC, in accordance with any other applicable law or agreement, or by any other reasonable means. An overdraft also becomes due and payable at the time that a bank is closed or suspends payments. For example, an overdraft E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 becomes due and payable if a receiver is appointed for the bank or the bank is prevented from making payments by governmental order. The Federal Reserve Bank need not make demand on the sender for the overdraft to become due and payable. (2) A sender must cover any overdraft and any other obligation of the sender to the Federal Reserve Bank by the time the overdraft becomes due and payable. By sending a payment order to a Federal Reserve Bank, the sender grants a security interest to the Federal Reserve Bank in all of the assets of the sender possessed or controlled by, or held for the account of, the Federal Reserve Bank in order to secure all obligations due or to become due to the Federal Reserve Bank. The security interest attaches when the overdraft, or other obligation of the sender to the Federal Reserve Bank, becomes due and payable. The security interest does not apply to assets held by the sender as custodian or trustee for the sender’s customers or third parties. Once an overdraft is due and payable, a Federal Reserve Bank may exercise its right of set off, liquidate collateral, or take other similar action to satisfy the obligation the sender owes to the Federal Reserve Bank. (c) Review of payment orders. (1) Under section 4A–204, a receiving bank is required to refund the principal amount of an unauthorized payment order that the sender was not obliged to pay, together with interest on the refundable amount calculated from the date that the receiving bank received payment to the date of the refund. The sender is not entitled to compensation in the form of interest if the sender fails to exercise ordinary care to determine that the order was not authorized and to notify the receiving bank within a reasonable time after the sender receives a notice that the payment order was accepted or that the sender’s account was debited with respect to the order. Similarly, under section 4A–304, if a sender of a payment order that was erroneously executed does not notify the bank receiving the payment order within a reasonable time, the bank is not liable to the sender for compensation in the form of interest on any amount refundable to the sender. Section 210.43(c) establishes 60 calendar days as the reasonable period of time for the purposes of these provisions of Article 4A. (2) Section 4A–505 provides that in order for a customer to assert a claim objecting to a debit to its account by a receiving bank, the customer must notify the receiving bank of its objection within one year after the customer received notification reasonably identifying the payment order. Subpart C of this part does not vary this one-year claim preclusion period. Section 210.44—Agreement of Receiving Bank (b) Funds availability. (1) Section 4A– 209(b) provides that a beneficiary’s bank accepts a payment order at the earliest of certain specified events, including when the bank receives payment for the entire amount of the order from the sender (see section 4A– 209(b)(2)). Section 4A–404(a) provides that if a beneficiary’s bank accepts a payment order, it is obliged to pay the amount of a payment VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 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. Section 4A–405(a) provides that if a beneficiary’s bank pays the beneficiary by crediting an account of the beneficiary on its own books, payment of the bank’s obligation under Section 4A–404(a) occurs when and to the extent (i) the bank notifies the beneficiary that it may withdraw the amount of the credit, (ii) the bank lawfully applies the credit to a debt of the beneficiary, or (iii) funds with respect to the payment order are otherwise made available to the beneficiary by the bank. (2) Section 210.44(b)(1) provides that if a FedNow participant that is the beneficiary’s bank accepts a payment order, it must pay the beneficiary by credit to the beneficiary’s account in accordance with section 4A– 405(a) of Article 4A, and it must do so immediately after its acceptance of the payment order. This section further clarifies that the provisions of the Expedited Funds Availability Act (12 U.S.C. 4002(a)) and its implementing regulation, Regulation CC (12 CFR part 229), also govern. Regulation CC provides that funds received by a bank by an electronic payment shall be available for withdrawal not later than the business day after the banking day on which such funds are received. (12 CFR 229.10(b).) Because Subpart C of this part requires funds to be made available on a more prompt basis than the availability requirements of the Expedited Funds Availability Act and Regulation CC, that act and Regulation CC do not preempt or invalidate subpart C. For example, if a beneficiary’s bank accepts a payment order through the FedNow Service at 10 a.m. but does not make funds available to the beneficiary until 5p.m., the bank has failed to satisfy its obligations under subpart C of this part even if it has satisfied its obligations under Regulation CC. (3) Section 210.44(b)(2) clarifies that the obligation for the beneficiary’s bank to provide immediate funds availability to the beneficiary under section 210.44(b)(1), and any Operating Circular issued in accordance with subpart C, should not be construed as creating any rights that the beneficiary or any party other than a Federal Reserve Bank may assert against the beneficiary’s bank, or affect any liability of the beneficiary’s bank to the beneficiary or any party other than a Federal Reserve Bank under Article 4A or other law. In the example in this paragraph (b), where the beneficiary’s bank accepts a payment order through the FedNow Service at 10 a.m. but does not make funds available to the beneficiary until 5 p.m., the bank has failed to satisfy its obligations under § 210.44(b)(1) but the beneficiary would not have a claim or right to assert against the bank under that provision. (4) Section 210.46(a) provides that payment by a Federal Reserve Bank to a receiving bank occurs when the receiving bank’s settlement account is credited or when the payment order is sent by the Federal Reserve Bank to the receiving bank, whichever is earlier, and would ordinarily be considered acceptance of the payment order by the beneficiary’s bank under section 4A– PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 31393 209(b). Section 210.44(b)(3) provides that notwithstanding section 4A–209(b), in certain circumstances a beneficiary’s bank is not deemed to accept a payment order at such time as it receives payment from its Federal Reserve Bank. Specifically, where the beneficiary’s bank has reasonable cause to believe that the beneficiary is not entitled or permitted to receive payment and the beneficiary’s bank notifies its Federal Reserve Bank that it requires additional time to determine whether to accept the payment order, this section provides that for purposes of subpart C and Article 4A, the beneficiary’s bank does not accept the payment order even if it has received payment for the entire amount of the order from its Federal Reserve Bank as provided in § 210.46. For example, if the beneficiary’s bank has reasonable cause to believe that making funds available to the beneficiary may violate applicable U.S. sanctions, the beneficiary’s bank may notify its Federal Reserve Bank that it requires additional time to determine whether to accept the payment order, including to investigate if the beneficiary is subject to applicable sanctions; in the event the beneficiary’s bank gives such notice, the beneficiary’s bank would not be deemed to have accepted the payment order at the time it receives payment from its Federal Reserve Bank. Section 210.45—Payment Orders (a) Rejection. (1) A sender must make arrangements with its Federal Reserve Bank before it can send payment orders to the Federal Reserve Bank. Federal Reserve Banks reserve the right to reject or impose conditions on the acceptance of payment orders for any reason. For example, a Federal Reserve Bank might reject or impose conditions on accepting a payment order where a sender does not have sufficient funds in its settlement account with the Federal Reserve Bank to cover the amount of the sender’s payment order and other obligations of the sender due or to become due to the Federal Reserve Bank. As a further example, a Federal Reserve Bank may reject a payment order that is not successfully processed within time limits established by the Federal Reserve Banks. A Federal Reserve Bank may require a sender to execute a written agreement concerning security procedures or other matters before the sender may send payment orders to the Federal Reserve Bank. (b) Selection of an intermediary bank. (1) Under section 4A–302, if a receiving bank (other than a beneficiary’s bank), such as a Federal Reserve Bank, accepts a payment order, it must issue a payment order that complies with the sender’s order. The sender’s order may include instructions concerning an intermediary bank to be used that must be followed by a receiving bank (see section 4A–302(a)(1)). If the sender does not designate any intermediary bank in its payment order, the receiving bank may select an intermediary bank through which the sender’s payment order can be expeditiously issued to the beneficiary’s bank so long as the receiving bank exercises ordinary care in selecting the intermediary bank (see section 4A–302(b)). E:\FR\FM\11JNP2.SGM 11JNP2 31394 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (2) This section provides that in an interdistrict transfer, a Federal Reserve Bank is authorized and directed to select another Federal Reserve Bank as an intermediary bank. A sender may not instruct a Federal Reserve Bank to use a particular intermediary bank or to use its discretion to select an intermediary bank other than a Federal Reserve Bank or an intermediary bank designated by the sender. In addition, a sender may not send a payment order through the FedNow Service that instructs a Federal Reserve Bank to use a funds-transfer system or means of transmission other than the FedNow Service, unless the sender and the Federal Reserve Bank agree in writing to the use of that funds-transfer system or means of transmission. (c) Execution date and payment date. (1) Under 4A–301(b), the ‘‘execution date’’ of a payment order means the day on which the receiving bank may properly issue a payment order in execution of the sender’s order. Under section 4A–401, the ‘‘payment date’’ of a payment order is the day on which the amount of the order is payable to the beneficiary by the beneficiary’s bank. The execution date and the payment date may be determined by instruction of the sender but cannot be earlier than the day the order is received and, unless otherwise determined, is the day the order is received (see sections 4A–301(b) and 4A–401). Section 4A–106, provides for the time that a payment order is received, including in the event that a receiving bank fixes a cut-off time for the receipt and processing of payment orders. If the bank receives a payment order after its cut-off time, the bank may treat the payment order as received at the opening of the next funds-transfer business day (see section 4A– 106(a)). (2) The FedNow Service is designed to be an instant value transfer system through which funds may be transferred from the originator to the beneficiary on the same funds-transfer business day. This section provides that a sender may not send a payment order to a Federal Reserve Bank that specifies an execution date or payment date later than the day on which the payment order is issued, unless the sender of the order and the Federal Reserve Bank agree in writing to the arrangement. Section 210.46—Payment by a Federal Reserve Bank to a Receiving Bank or Beneficiary (a) Payment to a receiving bank. (1) Under section 4A–402, when a Federal Reserve Bank executes a sender’s payment order by issuing a conforming order to a receiving bank that accepts the payment order, the Federal Reserve Bank must pay the receiving bank the amount of the payment order. Section 210.44(a) authorizes a Federal Reserve Bank to make the payment by crediting, or causing any other Federal Reserve Bank on whose books the settlement account is maintained to credit, the settlement account of the receiving bank. Section 210.46(a) provides that the payment occurs when the receiving bank’s settlement account is credited or when the payment order is sent by the Federal Reserve Bank to the receiving bank, whichever is earlier. VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 Ordinarily, payment will occur during the FedNow funds-transfer business day a short time after the payment order is received. This credit is final and irrevocable when made and constitutes final settlement under section 4A–403. Payment does not waive a Federal Reserve Bank’s right of recovery under the applicable law of mistake and restitution (see § 210.47(c)), affect a Federal Reserve Bank’s right to apply the funds to any obligation due or to become due to the Federal Reserve Bank, or affect legal process or claims by third parties on the funds. (2) This section on final payment does not apply to settlement for payment orders between Federal Reserve Banks. These payment orders are settled by other means. (b) Payment to a beneficiary. Section 210.46(b) specifies when a Federal Reserve Bank makes payment to a beneficiary for which it is the beneficiary’s bank. As in the case of payment to a receiving bank, this payment occurs at the earlier of the time that the Federal Reserve Bank credits the beneficiary’s settlement account or sends notice of the credit to the beneficiary, and is final and irrevocable when made. Section 210.47—Federal Reserve Bank Liability; Payment of Compensation (a) Damages. (1) Under section 4A–305(d), damages for failure of a receiving bank to execute a payment order that it was obligated to execute by express agreement are limited to expenses in the transaction and incidental expenses and interest and do not include additional damages, including consequential damages, unless they are provided for in an express written agreement of the receiving bank. This section clarifies that in connection with the handling of payment orders, Federal Reserve Banks may not agree to be liable for consequential damages under this provision and shall not be liable for damages other than those that may be due under Article 4A to parties governed by this subpart. Any agreement in conflict with these provisions would not be effective, because it would be in violation of subpart C. (2) This section does not affect the ability of other parties to a funds transfer to agree to be liable for consequential damages, the liability of a Federal Reserve Bank under section 4A–404 (relating to obligation of beneficiary’s bank to pay and give notice to beneficiary), or the liability to parties governed by subpart C for claims not based on the handling of a payment order under subpart C. (b) Payment of compensation. (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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 obligation of sender to pay receiving bank), and 4A–404 (relating to obligation of beneficiary’s bank to pay and give notice to beneficiary). (2) Section 210.47(b) requires Federal Reserve Banks to provide compensation through payment in the form of interest. 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. Similarly, compensation in the form of interest will be paid to government senders, receiving banks, or beneficiaries described in § 210.40(d) if they are entitled to interest under subpart C. A Federal Reserve Bank may also, in its discretion, pay compensation in the form of interest directly to a remote party to a transfer through the FedNow Service that is entitled to interest, rather than providing compensation to its sender or receiving bank. (3) If a sender or receiving bank that received a payment of compensation is not the party entitled to compensation under Article 4A, the sender or receiving bank must pass the benefit of the compensation payment made to it to the party that is entitled to compensation. 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. In the latter case, the value of the compensating balance must be at least equivalent to the value of the interest payment that otherwise would have been provided. (c) Nonwaiver of right of recovery. Several sections of Article 4A allow a party to a funds transfer to make a claim pursuant to the applicable law of mistake and restitution. Nothing in subpart C of this part or any Operating Circular issued in accordance with subpart C of this part waives any such claim by a Federal Reserve Bank. A Federal Reserve Bank, however, may waive such a claim by express written agreement in order to settle litigation or for other purposes. 13. Add Appendix A of part 210 to read as follows: ■ Appendix A of Part 210—Article 4A, Funds Transfers Part 1—Subject Matter and Definitions Section 4A–101. Short Title This Article may be cited as Uniform Commercial Code—Funds Transfers. Section 4A–102. Subject Matter Except as otherwise provided in section 4A–108, this Article applies to funds transfers defined in section 4A–104. Section 4A–103. Payment Order—Definitions (a) In this Article: (1) Payment order means an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing, to pay, or to cause another bank to pay, a fixed or determinable amount of money to a beneficiary if: E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules (i) The instruction does not state a condition to payment to the beneficiary other than time of payment, (ii) The receiving bank is to be reimbursed by debiting an account of, or otherwise receiving payment from, the sender, and (iii) The instruction is transmitted by the sender directly to the receiving bank or to an agent, funds-transfer system, or communication system for transmittal to the receiving bank. (2) Beneficiary means the person to be paid by the beneficiary’s bank. (3) ‘‘Beneficiary’s bank’’ means the bank identified in a payment order in which an account of the beneficiary is to be credited pursuant to the order or which otherwise is to make payment to the beneficiary if the order does not provide for payment to an account. (4) Receiving bank means the bank to which the sender’s instruction is addressed. (5) Sender means the person giving the instruction to the receiving bank. (b) If an instruction complying with paragraph (a)(1) of this section is to make more than one payment to a beneficiary, the instruction is a separate payment order with respect to each payment. (c) A payment order is issued when it is sent to the receiving bank. Section 4A–104. Funds Transfer—Definitions In this Article: (a) Funds transfer means the series of transactions, beginning with the originator’s payment order, made for the purpose of making payment to the beneficiary of the order. The term includes any payment order issued by the originator’s bank or an intermediary bank intended to carry out the originator’s payment order. A funds transfer is completed by acceptance by the beneficiary’s bank of a payment order for the benefit of the beneficiary of the originator’s payment order. (b) Intermediary bank means a receiving bank other than the originator’s bank or the beneficiary’s bank. (c) Originator means the sender of the first payment order in a funds transfer. (d) Originator’s bank means (i) the receiving bank to which the payment order of the originator is issued if the originator is not a bank, or (ii) the originator if the originator is a bank. Section 4A–105. Other Definitions (a) In this Article: (1) Authorized account means a deposit account of a customer in a bank designated by the customer as a source of payment of payment orders issued by the customer to the bank. If a customer does not so designate an account, any account of the customer is an authorized account if payment of a payment order from that account is not inconsistent with a restriction on the use of that account. (2) Bank means a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union, and trust company. A branch or separate office of a bank is a separate bank for purposes of this Article. (3) Customer means a person, including a bank, having an account with a bank or from whom a bank has agreed to receive payment orders. VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 (4) Funds-transfer business day of a receiving bank means the part of a day during which the receiving bank is open for the receipt, processing, and transmittal of payment orders and cancellations and amendments of payment orders. (5) Funds-transfer system means a wire transfer network, automated clearing house, or other communication system of a clearing house or other association of banks through which a payment order by a bank may be transmitted to the bank to which the order is addressed. (6) Good faith means honesty in fact and the observance of reasonable commercial standards of fair dealing. (7) Prove with respect to a fact means to meet the burden of establishing the fact (Section 1–201(8)). (b) Other definitions applying to this Article and the sections in which they appear are: ‘‘Acceptance’’. . . . . Sec. 4A–209 ‘‘Beneficiary’’. . . . . Sec. 4A–103 ‘‘Beneficiary’s bank’’. . . . . Sec. 4A–103 ‘‘Executed’’. . . . . Sec. 4A–301 ‘‘Execution date’’. . . . . Sec. 4A–301 ‘‘Funds transfer’’. . . . . Sec. 4A–104 ‘‘Funds-transfer system rule’’. . . . . Sec. 4A–501 ‘‘Intermediary bank’’. . . . . Sec. 4A–104 ‘‘Originator’’. . . . . Sec. 4A–104 ‘‘Originator’s bank’’. . . . . Sec. 4A–104 ‘‘Payment by beneficiary’s bank to beneficiary’’. . . . . Sec. 4A–405 ‘‘Payment by originator to beneficiary’’. . . . . Sec. 4A–406 ‘‘Payment by sender to receiving bank’’. . . . . Sec. 4A–403 ‘‘Payment date’’. . . . . Sec. 4A–401 ‘‘Payment order’’. . . . . Sec. 4A–103 ‘‘Receiving bank’’. . . . . Sec. 4A–103 ‘‘Security procedure’’. . . . . Sec. 4A–201 ‘‘Sender’’. . . . . Sec. 4A–103 (c) The following definitions in Article 4 apply to this Article: ‘‘Clearing house’’ . . . . . Sec. 4–104 ‘‘Item’’ . . . . . Sec. 4–104 ‘‘Suspends payments’’ . . . . . Sec. 4–104 (d) In addition Article 1 contains general definitions and principles of construction and interpretation applicable throughout this Article. Section 4A–106. Time Payment Order is Received (a) The time of receipt of a payment order or communication canceling or amending a payment order is determined by the rules applicable to receipt of a notice stated in Section 1–201(27). A receiving bank may fix a cut-off time or times on a funds-transfer business day for the receipt and processing of payment orders and communications canceling or amending payment orders. Different cut-off times may apply to payment orders, cancellations, or amendments, or to different categories of payment orders, cancellations, or amendments. A cut-off time may apply to senders generally or different cut-off times may apply to different senders or categories of payment orders. If a payment order or communication canceling or amending a payment order is received after the close of a funds-transfer business day or PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 31395 after the appropriate cut-off time on a fundstransfer business day, the receiving bank may treat the payment order or communication as received at the opening of the next fundstransfer business day. (b) If this Article refers to an execution date or payment date or states a day on which a receiving bank is required to take action, and the date or day does not fall on a fundstransfer business day, the next day that is a funds-transfer business day is treated as the date or day stated, unless the contrary is stated in this Article. Section 4A–107. Federal Reserve Regulations and Operating Circulars Regulations of the Board of Governors of the Federal Reserve System and operating circulars of the Federal Reserve Banks supersede any inconsistent provision of this Article to the extent of the inconsistency. Section 4A–108. Relationship to Electronic Fund Transfer Act (a) Except as provided in subsection (b), this Article does not apply to a funds transfer any part of which is governed by the Electronic Fund Transfer Act of 1978 (Title XX, Public Law 95–630, 92 Stat. 3728, 15 U.S.C. 1693 et seq.) as amended from time to time. (b) This Article applies to a funds transfer that is a remittance transfer as defined in the Electronic Fund Transfer Act (15 U.S.C. Sec. 1693o–1) as amended from time to time, unless the remittance transfer is an electronic fund transfer as defined in the Electronic Fund Transfer Act (15 U.S.C. Sec. 1693a) as amended from time to time. (c) In a funds transfer to which this Article applies, in the event of an inconsistency between an applicable provision of this Article and an applicable provision of the Electronic Fund Transfer Act, the provision of the Electronic Fund Transfer Act governs to the extent of the inconsistency. Part 2—Issue and Acceptance of Payment Order Section 4A–201. Security Procedure Security procedure means a procedure established by agreement of a customer and a receiving bank for the purpose of (i) verifying that a payment order or communication amending or canceling a payment order is that of the customer, or (ii) detecting error in the transmission or the content of the payment order or communication. A security procedure may require the use of algorithms or other codes, identifying words or numbers, encryption, callback procedures, or similar security devices. Comparison of a signature on a payment order or communication with an authorized specimen signature of the customer is not by itself a security procedure. Section 4A–202. Authorized and Verified Payment Orders (a) A payment order received by the receiving bank is the authorized order of the person identified as sender if that person authorized the order or is otherwise bound by it under the law of agency. (b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 31396 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially reasonable method of providing security against unauthorized payment orders, and (ii) the bank proves that it accepted the payment order in good faith and in compliance with the security procedure and any written agreement or instruction of the customer restricting acceptance of payment orders issued in the name of the customer. The bank is not required to follow an instruction that violates a written agreement with the customer or notice of which is not received at a time and in a manner affording the bank a reasonable opportunity to act on it before the payment order is accepted. (c) Commercial reasonableness of a security procedure is a question of law to be determined by considering the wishes of the customer expressed to the bank, the circumstances of the customer known to the bank, including the size, type, and frequency of payment orders normally issued by the customer to the bank, alternative security procedures offered to the customer, and security procedures in general use by customers and receiving banks similarly situated. A security procedure is deemed to be commercially reasonable if (i) the security procedure was chosen by the customer after the bank offered, and the customer refused, a security procedure that was commercially reasonable for that customer, and (ii) the customer expressly agreed in writing to be bound by any payment order, whether or not authorized, issued in its name and accepted by the bank in compliance with the security procedure chosen by the customer. (d) The term sender in this Article includes the customer in whose name a payment order is issued if the order is the authorized order of the customer under subsection (a) of this section, or it is effective as the order of the customer under subsection (b) of this section. (e) This section applies to amendments and cancellations of payment orders to the same extent it applies to payment orders. (f) Except as provided in this section and in section 4A–203(a)(1), rights and obligations arising under this section or section 4A–203 may not be varied by agreement. Section 4A–203. Unenforceability of Certain Verified Payment Orders (a) If an accepted payment order is not, under section 4A–202(a), an authorized order of a customer identified as sender, but is effective as an order of the customer pursuant to section 4A–202(b), the following rules apply: (1) By express written agreement, the receiving bank may limit the extent to which it is entitled to enforce or retain payment of the payment order. (2) The receiving bank is not entitled to enforce or retain payment of the payment order if the customer proves that the order was not caused, directly or indirectly, by a person (i) entrusted at any time with duties to act for the customer with respect to payment orders or the security procedure, or (ii) who obtained access to transmitting VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 facilities of the customer or who obtained, from a source controlled by the customer and without authority of the receiving bank, information facilitating breach of the security procedure, regardless of how the information was obtained or whether the customer was at fault. Information includes any access device, computer software, or the like. (b) This section applies to amendments of payment orders to the same extent it applies to payment orders. Section 4A–204. Refund of Payment and Duty of Customer To Report With Respect to Unauthorized Payment Order (a) If a receiving bank accepts a payment order issued in the name of its customer as sender which is (i) not authorized and not effective as the order of the customer under section 4A–202, or (ii) not enforceable, in whole or in part, against the customer under section 4A–203, the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund. However, the customer is not entitled to interest from the bank on the amount to be refunded if the customer fails to exercise ordinary care to determine that the order was not authorized by the customer and to notify the bank of the relevant facts within a reasonable time not exceeding 90 days after the date the customer received notification from the bank that the order was accepted or that the customer’s account was debited with respect to the order The bank is not entitled to any recovery from the customer on account of a failure by the customer to give notification as stated in this section. (b) Reasonable time under subsection (a) of this section may be fixed by agreement as stated in section 1–204(1), but the obligation of a receiving bank to refund payment as stated in subsection (a) may not otherwise be varied by agreement. Section 4A–205. Erroneous Payment Orders (a) If an accepted payment order was transmitted pursuant to a security procedure for the detection of error and the payment order (i) erroneously instructed payment to a beneficiary not intended by the sender, (ii) erroneously instructed payment in an amount greater than the amount intended by the sender, or (iii) was an erroneously transmitted duplicate of a payment order previously sent by the sender, the following rules apply: (1) If the sender proves that the sender or a person acting on behalf of the sender pursuant to section 4A–206 complied with the security procedure and that the error would have been detected if the receiving bank had also complied, the sender is not obliged to pay the order to the extent stated in this paragraphs (2) and (3). (2) If the funds transfer is completed on the basis of an erroneous payment order described in clause (i) or (iii) of subsection (a), the sender is not obliged to pay the order and the receiving bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 (3) If the funds transfer is completed on the basis of a payment order described in clause (ii) of subsection (a), the sender is not obliged to pay the order to the extent the amount received by the beneficiary is greater than the amount intended by the sender. In that case, the receiving bank is entitled to recover from the beneficiary the excess amount received to the extent allowed by the law governing mistake and restitution. (b) If (i) the sender of an erroneous payment order described in subsection (a) is not obliged to pay all or part of the order, and (ii) the sender receives notification from the receiving bank that the order was accepted by the bank or that the sender’s account was debited with respect to the order, the sender has a duty to exercise ordinary care, on the basis of information available to the sender, to discover the error with respect to the order and to advise the bank of the relevant facts within a reasonable time, not exceeding 90 days, after the bank’s notification was received by the sender. If the bank proves that the sender failed to perform that duty, the sender is liable to the bank for the loss the bank proves it incurred as a result of the failure, but the liability of the sender may not exceed the amount of the sender’s order. (c) This section applies to amendments to payment orders to the same extent it applies to payment orders. Section 4A–206. Transmission of Payment Order Through Funds-Transfer or Other Communication System (a) If a payment order addressed to a receiving bank is transmitted to a fundstransfer system or other third-party communication system for transmittal to the bank, the system is deemed to be an agent of the sender for the purpose of transmitting the payment order to the bank. If there is a discrepancy between the terms of the payment order transmitted to the system and the terms of the payment order transmitted by the system to the bank, the terms of the payment order of the sender are those transmitted by the system. This section does not apply to a funds-transfer system of the Federal Reserve Banks. (b) This section applies to cancellations and amendments of payment orders to the same extent it applies to payment orders. Section 4A–207. Misdescription of Beneficiary (a) Subject to subsection (b), if, in a payment order received by the beneficiary’s bank, the name, bank account number, or other identification of the beneficiary refers to a nonexistent or unidentifiable person or account, no person has rights as a beneficiary of the order and acceptance of the order cannot occur. (b) If a payment order received by the beneficiary’s bank identifies the beneficiary both by name and by an identifying or bank account number and the name and number identify different persons, the following rules apply: (1) Except as otherwise provided in subsection (c), if the beneficiary’s bank does not know that the name and number refer to different persons, it may rely on the number as the proper identification of the beneficiary of the order. The beneficiary’s bank need not E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules determine whether the name and number refer to the same person. (2) If the beneficiary’s bank pays the person identified by name or knows that the name and number identify different persons, no person has rights as beneficiary except the person paid by the beneficiary’s bank if that person was entitled to receive payment from the originator of the funds transfer. If no person has rights as beneficiary, acceptance of the order cannot occur. (c) If (i) a payment order described in subsection (b) is accepted, (ii) the originator’s payment order described the beneficiary inconsistently by name and number, and (iii) the beneficiary’s bank pays the person identified by number as permitted by subsection (b)(1), the following rules apply: (1) If the originator is a bank, the originator is obliged to pay its order. (2) If the originator is not a bank and proves that the person identified by number was not entitled to receive payment from the originator, the originator is not obliged to pay its order unless the originator’s bank proves that the originator, before acceptance of the originator’s order, had notice that payment of a payment order issued by the originator might be made by the beneficiary’s bank on the basis of an identifying or bank account number even if it identifies a person different from the named beneficiary. Proof of notice may be made by any admissible evidence. The originator’s bank satisfies the burden of proof if it proves that the originator, before the payment order was accepted, signed a writing stating the information to which the notice relates. (d) In a case governed by subsection (b)(1), if the beneficiary’s bank rightfully pays the person identified by number and that person was not entitled to receive payment from the originator, the amount paid may be recovered from that person to the extent allowed by the law governing mistake and restitution as follows: (1) If the originator is obliged to pay its payment order as stated in subsection (c), the originator has the right to recover. (2) If the originator is not a bank and is not obliged to pay its payment order, the originator’s bank has the right to recover. Section 4A–208. Misdescription of Intermediary Bank or Beneficiary’s Bank (a) This subsection applies to a payment order identifying an intermediary bank or the beneficiary’s bank only by an identifying number. (1) The receiving bank may rely on the number as the proper identification of the intermediary or beneficiary’s bank and need not determine whether the number identifies a bank. (2) The sender is obliged to compensate the receiving bank for any loss and expenses incurred by the receiving bank as a result of its reliance on the number in executing or attempting to execute the order. (b) This subsection applies to a payment order identifying an intermediary bank or the beneficiary’s bank both by name and an identifying number if the name and number identify different persons. (1) If the sender is a bank, the receiving bank may rely on the number as the proper identification of the intermediary or VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 beneficiary’s bank if the receiving bank, when it executes the sender’s order, does not know that the name and number identify different persons. The receiving bank need not determine whether the name and number refer to the same person or whether the number refers to a bank. The sender is obliged to compensate the receiving bank for any loss and expenses incurred by the receiving bank as a result of its reliance on the number in executing or attempting to execute the order. (2) If the sender is not a bank and the receiving bank proves that the sender, before the payment order was accepted, had notice that the receiving bank might rely on the number as the proper identification of the intermediary or beneficiary’s bank even if it identifies a person different from the bank identified by name, the rights and obligations of the sender and the receiving bank are governed by subsection (b)(1), as though the sender were a bank. Proof of notice may be made by any admissible evidence. The receiving bank satisfies the burden of proof if it proves that the sender, before the payment order was accepted, signed a writing stating the information to which the notice relates. (3) Regardless of whether the sender is a bank, the receiving bank may rely on the name as the proper identification of the intermediary or beneficiary’s bank if the receiving bank, at the time it executes the sender’s order, does not know that the name and number identify different persons. The receiving bank need not determine whether the name and number refer to the same person. (4) If the receiving bank knows that the name and number identify different persons, reliance on either the name or the number in executing the sender’s payment order is a breach of the obligation stated in section 4A– 302(a)(1). Section 4A–209. Acceptance of Payment Order (a) Subject to subsection (d), a receiving bank other than the beneficiary’s bank accepts a payment order when it executes the order. (b) Subject to subsections (c) and (d), a beneficiary’s bank accepts a payment order at the earliest of the following times: (1) When the bank (i) pays the beneficiary as stated in section 4A–405(a) or 4A–405(b), or (ii) notifies the beneficiary of receipt of the order or that the account of the beneficiary has been credited with respect to the order unless the notice indicates that the bank is rejecting the order or that funds with respect to the order may not be withdrawn or used until receipt of payment from the sender of the order; (2) When the bank receives payment of the entire amount of the sender’s order pursuant to section 4A–403(a)(1) or 4A–403(a)(2); or (3) The opening of the next funds-transfer business day of the bank following the payment date of the order if, at that time, the amount of the sender’s order is fully covered by a withdrawable credit balance in an authorized account of the sender or the bank has otherwise received full payment from the sender, unless the order was rejected before that time or is rejected within (i) one hour PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 31397 after that time, or (ii) one hour after the opening of the next business day of the sender following the payment date if that time is later. If notice of rejection is received by the sender after the payment date and the authorized account of the sender does not bear interest, the bank is obliged to pay interest to the sender on the amount of the order for the number of days elapsing after the payment date to the day the sender receives notice or learns that the order was not accepted, counting that day as an elapsed day. If the withdrawable credit balance during that period falls below the amount of the order, the amount of interest payable is reduced accordingly. (c) Acceptance of a payment order cannot occur before the order is received by the receiving bank. Acceptance does not occur under subsection (b)(2) or (b)(3) if the beneficiary of the payment order does not have an account with the receiving bank, the account has been closed, or the receiving bank is not permitted by law to receive credits for the beneficiary’s account. (d) A payment order issued to the originator’s bank cannot be accepted until the payment date if the bank is the beneficiary’s bank, or the execution date if the bank is not the beneficiary’s bank. If the originator’s bank executes the originator’s payment order before the execution date or pays the beneficiary of the originator’s payment order before the payment date and the payment order is subsequently canceled pursuant to section 4A–211(b), the bank may recover from the beneficiary any payment received to the extent allowed by the law governing mistake and restitution. Section 4A–210. Rejection of Payment Order (a) A payment order is rejected by the receiving bank by a notice of rejection transmitted to the sender orally, electronically, or in writing. A notice of rejection need not use any particular words and is sufficient if it indicates that the receiving bank is rejecting the order or will not execute or pay the order. Rejection is effective when the notice is given if transmission is by a means that is reasonable in the circumstances. If notice of rejection is given by a means that is not reasonable, rejection is effective when the notice is received. If an agreement of the sender and receiving bank establishes the means to be used to reject a payment order, (i) any means complying with the agreement is reasonable and (ii) any means not complying is not reasonable unless no significant delay in receipt of the notice resulted from the use of the noncomplying means. (b) This subsection applies if a receiving bank other than the beneficiary’s bank fails to execute a payment order despite the existence on the execution date of a withdrawable credit balance in an authorized account of the sender sufficient to cover the order. If the sender does not receive notice of rejection of the order on the execution date and the authorized account of the sender does not bear interest, the bank is obliged to pay interest to the sender on the amount of the order for the number of days elapsing after the execution date to the earlier of the day the order is canceled pursuant to section 4A–211(d) or the day the sender receives E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 31398 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules notice or learns that the order was not executed, counting the final day of the period as an elapsed day. If the withdrawable credit balance during that period falls below the amount of the order, the amount of interest is reduced accordingly. (c) If a receiving bank suspends payments, all unaccepted payment orders issued to it are deemed rejected at the time the bank suspends payments. (d) Acceptance of a payment order precludes a later rejection of the order. Rejection of a payment order precludes a later acceptance of the order. Section 4A–211. Cancellation and Amendment of Payment Order (a) A communication of the sender of a payment order canceling or amending the order may be transmitted to the receiving bank orally, electronically, or in writing. If a security procedure is in effect between the sender and the receiving bank, the communication is not effective to cancel or amend the order unless the communication is verified pursuant to the security procedure or the bank agrees to the cancellation or amendment. (b) Subject to subsection (a), a communication by the sender canceling or amending a payment order is effective to cancel or amend the order if notice of the communication is received at a time and in a manner affording the receiving bank a reasonable opportunity to act on the communication before the bank accepts the payment order. (c) After a payment order has been accepted, cancellation or amendment of the order is not effective unless the receiving bank agrees or a funds-transfer system rule allows cancellation or amendment without agreement of the bank. (1) With respect to a payment order accepted by a receiving bank other than the beneficiary’s bank, cancellation or amendment is not effective unless a conforming cancellation or amendment of the payment order issued by the receiving bank is also made. (2) With respect to a payment order accepted by the beneficiary’s bank, cancellation or amendment is not effective unless the order was issued in execution of an unauthorized payment order, or because of a mistake by a sender in the funds transfer which resulted in the issuance of a payment order (i) that is a duplicate of a payment order previously issued by the sender, (ii) that orders payment to a beneficiary not entitled to receive payment from the originator, or (iii) that orders payment in an amount greater than the amount the beneficiary was entitled to receive from the originator. If the payment order is canceled or amended, the beneficiary’s bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution. (d) An unaccepted payment order is canceled by operation of law at the close of the fifth funds-transfer business day of the receiving bank after the execution date or payment date of the order. (e) A canceled payment order cannot be accepted. If an accepted payment order is canceled, the acceptance is nullified and no VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 person has any right or obligation based on the acceptance. Amendment of a payment order is deemed to be cancellation of the original order at the time of amendment and issue of a new payment order in the amended form at the same time. (f) Unless otherwise provided in an agreement of the parties or in a funds-transfer system rule, if the receiving bank, after accepting a payment order, agrees to cancellation or amendment of the order by the sender or is bound by a funds-transfer system rule allowing cancellation or amendment without the bank’s agreement, the sender, whether or not cancellation or amendment is effective, is liable to the bank for any loss and expenses, including reasonable attorney’s fees, incurred by the bank as a result of the cancellation or amendment or attempted cancellation or amendment. (g) A payment order is not revoked by the death or legal incapacity of the sender unless the receiving bank knows of the death or of an adjudication of incapacity by a court of competent jurisdiction and has reasonable opportunity to act before acceptance of the order. (h) A funds-transfer system rule is not effective to the extent it conflicts with subsection (c)(2) of this section. Section 4A–212. Liability and Duty of Receiving Bank Regarding Unaccepted Payment Order If a receiving bank fails to accept a payment order that it is obliged by express agreement to accept, the bank is liable for breach of the agreement to the extent provided in the agreement or in this Article, but does not otherwise have any duty to accept a payment order or, before acceptance, to take any action, or refrain from taking action, with respect to the order except as provided in this Article or by express agreement. Liability based on acceptance arises only when acceptance occurs as stated in section 4A–209, and liability is limited to that provided in this Article. A receiving bank is not the agent of the sender or beneficiary of the payment order it accepts, or of any other party to the funds transfer, and the bank owes no duty to any party to the funds transfer except as provided in this Article or by express agreement. Part 3—Execution of Sender’s Payment Order by Receiving Bank Section 4A–301. Execution and Execution Date (a) A payment order is ‘‘executed’’ by the receiving bank when it issues a payment order intended to carry out the payment order received by the bank. A payment order received by the beneficiary’s bank can be accepted but cannot be executed. (b) Execution date of a payment order means the day on which the receiving bank may properly issue a payment order in execution of the sender’s order. The execution date may be determined by instruction of the sender but cannot be earlier than the day the order is received and, unless otherwise determined, is the day the order is received. If the sender’s instruction states a payment date, the execution date is the PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 payment date or an earlier date on which execution is reasonably necessary to allow payment to the beneficiary on the payment date. Section 4A–302. Obligations of Receiving Bank in Execution of Payment Order (a) Except as provided in subsections (b) through (d), if the receiving bank accepts a payment order pursuant to section 4A– 209(a), the bank has the following obligations in executing the order: (1) The receiving bank is obliged to issue, on the execution date, a payment order complying with the sender’s order and to follow the sender’s instructions concerning (i) any intermediary bank or funds-transfer system to be used in carrying out the funds transfer, or (ii) the means by which payment orders are to be transmitted in the funds transfer. If the originator’s bank issues a payment order to an intermediary bank, the originator’s bank is obliged to instruct the intermediary bank according to the instruction of the originator. An intermediary bank in the funds transfer is similarly bound by an instruction given to it by the sender of the payment order it accepts. (2) If the sender’s instruction states that the funds transfer is to be carried out telephonically or by wire transfer or otherwise indicates that the funds transfer is to be carried out by the most expeditious means, the receiving bank is obliged to transmit its payment order by the most expeditious available means, and to instruct any intermediary bank accordingly. If a sender’s instruction states a payment date, the receiving bank is obliged to transmit its payment order at a time and by means reasonably necessary to allow payment to the beneficiary on the payment date or as soon thereafter as is feasible. (b) Unless otherwise instructed, a receiving bank executing a payment order may (i) use any funds-transfer system if use of that system is reasonable in the circumstances, and (ii) issue a payment order to the beneficiary’s bank or to an intermediary bank through which a payment order conforming to the sender’s order can expeditiously be issued to the beneficiary’s bank if the receiving bank exercises ordinary care in the selection of the intermediary bank. A receiving bank is not required to follow an instruction of the sender designating a fundstransfer system to be used in carrying out the funds transfer if the receiving bank, in good faith, determines that it is not feasible to follow the instruction or that following the instruction would unduly delay completion of the funds transfer. (c) Unless subsection (a)(2) applies or the receiving bank is otherwise instructed, the bank may execute a payment order by transmitting its payment order by first class mail or by any means reasonable in the circumstances. If the receiving bank is instructed to execute the sender’s order by transmitting its payment order by the means stated or by any means as expeditious as the means stated. (d) Unless instructed by the sender, (i) the receiving bank may not obtain payment of its charges for services and expenses in connection with the execution of the sender’s order by issuing a payment order in an E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules amount equal to the amount of the sender’s order less the amount of the charges, and (ii) may not instruct a subsequent receiving bank to obtain payment of its charges in the same manner. Section 4A–303. Erroneous Execution of Payment Order (a) A receiving bank that (i) executes the payment order of the sender by issuing a payment order in an amount greater than the amount of the sender’s order, or (ii) issues a payment order in execution of the sender’s order and then issues a duplicate order, is entitled to payment of the amount of the sender’s order under section 4A–402(c) if that subsection is otherwise satisfied. The bank is entitled to recover from the beneficiary of the erroneous order the excess payment received to the extent allowed by the law governing mistake and restitution. (b) A receiving bank that executes the payment order of the sender by issuing a payment order in an amount less than the amount of the sender’s order is entitled to payment of the amount of the sender’s order under section 4A–402(c) if (i) that subsection is otherwise satisfied and (ii) the bank corrects its mistake by issuing an additional payment order for the benefit of the beneficiary of the sender’s order. If the error is not corrected, the issuer of the erroneous order is entitled to receive or retain payment from the sender of the order it accepted only to the extent of the amount of the erroneous order. This subsection does not apply if the receiving bank executes the sender’s payment order by issuing a payment order in an amount less than the amount of the sender’s order for the purpose of obtaining payment of its charges for services and expenses pursuant to instruction of the sender. (c) If a receiving bank executes the payment order of the sender by issuing a payment order to a beneficiary different from the beneficiary of the sender’s order and the funds transfer is completed on the basis of that error, the sender of the payment order that was erroneously executed and all previous senders in the funds transfer are not obliged to pay the payment orders they issued. The issuer of the erroneous order is entitled to recover from the beneficiary of the order the payment received to the extent allowed by the law governing mistake and restitution. Section 4A–304. Duty of Sender To Report Erroneously Executed Payment Order If the sender of a payment order that is erroneously executed as stated in section 4A– 303 receives notification from the receiving bank that the order was executed or that the sender’s account was debited with respect to the order, the sender has a duty to exercise ordinary care to determine, on the basis of information available to the sender, that the order was erroneously executed and to notify the bank of the relevant facts within a reasonable time not exceeding 90 days after the notification from the bank was received by the sender. If the sender fails to perform that duty, the bank is not obliged to pay interest on any amount refundable to the sender under section 4A–402(d) for the period before the bank learns of the execution error. The bank is not entitled to VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 any recovery from the sender on account of a failure by the sender to perform the duty stated in this section. Section 4A–305. Liability for Late or Improper Execution or Failure To Execute Payment Order (a) If a funds transfer is completed but execution of a payment order by the receiving bank in breach of section 4A–302 results in delay in payment to the beneficiary, the bank is obliged to pay interest to either the originator or the beneficiary of the funds transfer for the period of delay caused by the improper execution. Except as provided in subsection (c), additional damages are not recoverable. (b) If execution of a payment order by a receiving bank in breach of section 4A–302 results in (i) noncompletion of the funds transfer, (ii) failure to use an intermediary bank designated by the originator, or (iii) issuance of a payment order that does not comply with the terms of the payment order of the originator, the bank is liable to the originator for its expenses in the funds transfer and for incidental expenses and interest losses, to the extent not covered by subsection (a), resulting from the improper execution. Except as provided in subsection (c), additional damages are not recoverable. (c) In addition to the amounts payable under subsections (a) and (b), damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank. (d) If a receiving bank fails to execute a payment order it was obliged by express agreement to execute, the receiving bank is liable to the sender for its expenses in the transaction and for incidential expenses and interest losses resulting from the failure to execute. Additional damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank, but are not otherwise recoverable. (e) Reasonable attorney’s fees are recoverable if demand for compensation under subsection (a) or (b) is made and refused before an action is brought on the claim. If a claim is made for breach of an agreement under subsection (d) and the agreement does not provide for damages, reasonable attorney’s fees are recoverable if demand for compensation under subsection (d) is made and refused before an action is brought on the claim. (f) Except as stated in this section, the liability of a receiving bank under subsections (a) and (b) of this section may not be varied by agreement. Part 4—Payment Section 4A–401. Payment Date Payment date of a payment order means the day on which the amount of the order is payable to the beneficiary by the beneficiary’s bank. The payment date may be determined by instruction of the sender but cannot be earlier than the day the order is received by the beneficiary’s bank and, unless otherwise determined, is the day the order is received by the beneficiary’s bank. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 31399 Section 4A–402. Obligation of Sender To Pay Receiving Bank (a) This section is subject to sections 4A– 205 and 4A–207. (b) With respect to a payment order issued to the beneficiary’s bank, acceptance of the order by the bank obliges the sender to pay the bank the amount of the order, but payment is not due until the payment date of the order. (c) This subsection is subject to subsection (e) and to section 4A–303. With respect to a payment order issued to a receiving bank other than the beneficiary’s bank, acceptance of the order by the receiving bank obliges the sender to pay the bank the amount of the sender’s order. Payment by the sender is not due until the execution date of the sender’s order. The obligation of that sender to pay its payment order is excused if the funds transfer is not completed by acceptance by the beneficiary’s bank of a payment order instructing payment to the beneficiary of that sender’s payment order. (d) If the sender of a payment order pays the order and was not obliged to pay all or part of the amount paid, the bank receiving payment is obliged to refund payment to the extent the sender was not obliged to pay. Except as provided in sections 4A–204 and 4A–304, interest is payable on the refundable amount from the date of payment. (e) If a funds transfer is not completed as stated in subsection (c) and an intermediary bank is obliged to refund payment as stated in subsection (d) but is unable to do so because not permitted by applicable law or because the bank suspends payments, a sender in the funds transfer that executed a payment order in compliance with an instruction, as stated in section 4A–302(a)(1), to route the funds transfer through that intermediary bank is entitled to receive or retain payment from the sender of the payment order that it accepted. The first sender in the funds transfer that issued an instruction requiring routing through that intermediary bank is subrogated to the right of the bank that paid the intermediary bank to refund as stated in subsection (d) of this section . (f) The right of the sender of a payment order to be excused from the obligation to pay the order as stated in this subsection (c) or to receive refund under subsection (d) may not be varied by agreement. Section 4A–403. Payment by Sender To Receiving Bank (a) Payment of the sender’s obligation under section 4A–402 to pay the receiving bank occurs as follows: (1) If the sender is a bank, payment occurs when the receiving bank receives final settlement of the obligation through a Federal Reserve Bank or through a funds-transfer system. (2) If the sender is a bank and the sender (i) credited an account of the receiving bank with the sender, or (ii) caused an account of the receiving bank in another bank to be credited, payment occurs when the credit is withdrawn or, if not withdrawn, at midnight of the day on which the credit is withdrawable and the receiving bank learns of that fact. E:\FR\FM\11JNP2.SGM 11JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 31400 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules (3) If the receiving bank debits an account of the sender with the receiving bank, payment occurs when the debit is made to the extent the debit is covered by a withdrawable credit balance in the account. (b) If the sender and receiving bank are members of a funds-transfer system that nets obligations multilaterally among participants, the receiving bank receives final settlement when settlement is complete in accordance with the rules of the system. The obligation of the sender to pay the amount of a payment order transmitted through the funds-transfer system may be satisfied, to the extent permitted by the rules of the system, by setting off and applying against the sender’s obligation the right of the sender to receive payment from the receiving bank of the amount of any other payment order transmitted to the sender by the receiving bank through the funds-transfer system. The aggregate balance of obligations owed by each sender to each receiving bank in the funds-transfer system may be satisfied, to the extent permitted by the rules of the system, by setting off and applying against that balance the aggregate balance of obligations owed to the sender by other members of the system. The aggregate balance is determined after the right of setoff stated in the second sentence of this subsection has been exercised. (c) If two banks transmit payment orders to each other under an agreement that settlement of the obligations of each bank to the other under section 4A–402 will be made at the end of the day or other period, the total amount owed with respect to all orders transmitted by one bank shall be set off against the total amount owed with respect to all orders transmitted by the other bank. To the extent of the setoff, each bank has made payment to the other. (d) In a case not covered by paragraph (a) of this section, the time when payment of the sender’s obligation under section 4A–402(b) or 4A–402(c) occurs is governed by applicable principles of law that determine when an obligation is satisfied. Section 4A–404. Obligation of Beneficiary’s Bank To Pay and Give Notice to Beneficiary (a) Subject to sections 4A–211(e), 4A– 405(d), and 4A–405(e), if a beneficiary’s bank accepts a payment order, the bank is obliged to pay the amount of the order to the beneficiary of the order. Payment is due on the payment date of the order, but if acceptance occurs on the payment date after the close of the funds-transfer business day of the bank, payment is due on the next funds-transfer business day. If the bank refuses to pay after demand by the beneficiary and receipt of notice of particular circumstances that will give rise to consequential damages as a result of nonpayment, the beneficiary may recover damages resulting from the refusal to pay to the extent the bank had notice of the damages, unless the bank proves that it did not pay because of a reasonable doubt concerning the right of the beneficiary to payment. (b) If a payment order accepted by the beneficiary’s bank instructs payment to an account of the beneficiary, the bank is obliged to notify the beneficiary of receipt of VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 the order before midnight of the next fundstransfer business day following the payment date. If the payment order does not instruct payment to an account of the beneficiary, the bank is required to notify the beneficiary only if notice is required by the order. Notice may be given by first class mail or any other means reasonable in the circumstances. If the bank fails to give the required notice, the bank is obliged to pay interest to the beneficiary on the amount of the payment order from the day notice should have been given until the day the beneficiary learned of receipt of the payment order by the bank. No other damages are recoverable. Reasonable attorney’s fees are also recoverable if demand for interest is made and refused before an action is brought on the claim. (c) The right of a beneficiary to receive payment and damages as stated in subsection (a) may not be varied by agreement or a funds-transfer system rule. The right of a beneficiary to be notified as stated in subsection (b) of this section may be varied by agreement of the beneficiary or by a fundstransfer system rule if the beneficiary is notified of the rule before initiation of the funds transfer. Section 4A–405. Payment by Beneficiary’s Bank To Beneficiary (a) If the beneficiary’s bank credits an account of the beneficiary of a payment order, payment of the bank’s obligation under section 4A–404(a) occurs when and to the extent (i) the beneficiary is notified of the right to withdraw the credit, (ii) the bank lawfully applies the credit to a debt of the beneficiary, or (iii) funds with respect to the order are otherwise made available to the beneficiary by the bank. (b) If the beneficiary’s bank does not credit an account of the beneficiary of a payment order, the time when payment of the bank’s obligation under section 4A–404(a) occurs is governed by principles of law that determine when an obligation is satisfied. (c) Except as stated in paragraphs (d) and (e) of this section, if the beneficiary’s bank pays the beneficiary of a payment order under a condition to payment or agreement of the beneficiary giving the bank the right to recover payment from the beneficiary if the bank does not receive payment of the order, the condition to payment or agreement is not enforceable. (d) A funds-transfer system rule may provide that payments made to beneficiaries of funds transfer made through the system are provisional until receipt of payment by the beneficiary’s bank of the payment order it accepted. A beneficiary’s bank that makes a payment that is provisional under the rule is entitled to refund from the beneficiary if (i) the rule requires that both the beneficiary and the originator be given notice of the provisional nature of the payment before the funds transfer is initiated, (ii) the beneficiary, the beneficiary’s bank and the originator’s bank agreed to be bound by the rule, and (iii) the beneficiary’s bank did not receive payment of the payment order that it accepted. If the beneficiary is obliged to refund payment to the beneficiary’s bank, acceptance of the payment order by the beneficiary’s bank is nullified and no payment by the originator of the funds PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 transfer to the beneficiary occurs under section 4A–406. (e) This paragraph applies to a funds transfer that includes a payment order transmitted over a funds-transfer system that (i) nets obligations-multilaterally among participants, and (ii) has in effect a losssharing agreement among participants for the purpose of providing funds necessary to complete settlement of the obligations of one or more participants that do not meet their settlement obligations. If the beneficiary’s bank in the funds transfer accepts a payment order and the system fails to complete settlement pursuant to its rules with respect to any payment order in the funds transfer, (i) the acceptance by the beneficiary’s bank is nullified and no person has any right or obligation based on the acceptance, (ii) the beneficiary’s bank is entitled to recover payment from the beneficiary, (iii) no payment by the originator to the beneficiary occurs under section 4A–406, and (iv) subject to section 4A–402(e), each sender in the funds transfer is excused from its obligation to pay its payment order under section 4A– 402(c) because the funds transfer has not been completed. Section 4A–406. Payment by Originator to Beneficiary; Discharge of Underlying Obligation (a) Subject to sections 4A–211(e), 4A– 405(d), and 4A–405(e), the originator of a funds transfer pays the beneficiary of the originator’s payment order (i) at the time a payment order for the benefit of the beneficiary is accepted by the beneficiary’s bank in the funds transfer and (ii) in an amount equal to the amount of the order *40813 accepted by the beneficiary’s bank, but not more than the amount of the originator’s order. (b) If payment under paragraph (a) of this section is made to satisfy an obligation, the obligation is discharged to the same extent discharge would result from payment to the beneficiary of the same amount in money, unless (i) the payment under subsection (a) was made by a means prohibited by the contract of the beneficiary with respect to the obligation, (ii) the beneficiary, within a reasonable time after receiving notice of receipt of the order by the beneficiary’s bank, notified the originator of the beneficiary’s refusal of the payment, (iii) funds with respect to the order were not withdrawn by the beneficiary or applied to a debt of the beneficiary, and (iv) the beneficiary would suffer a loss that could reasonably have been avoided if payment had been made by a means complying with the contract. If payment by the originator does not result in discharge under this section, the originator is subrogated to the rights of the beneficiary to receive payment from the beneficiary’s bank under section 4A–404(a). (c) For the purpose of determining whether discharge of an obligation occurs under paragraph (b) of this section, if the beneficiary’s bank accepts a payment order in an amount equal to the amount of the originator’s payment order less charges of one or more receiving banks in the funds transfer, payment to the beneficiary is deemed to be in the amount of the originator’s order unless upon demand by the E:\FR\FM\11JNP2.SGM 11JNP2 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 beneficiary the originator does not pay the beneficiary the amount of the deducted charges. (d) Rights of the originator or of the beneficiary of a funds transfer under this section may be varied only by agreement of the originator and the beneficiary. Part 5—Miscellaneous Provisions Section 4A–501. Variation by Agreement and Effect of Funds-Transfer System Rule (a) Except as otherwise provided in this Article, the rights and obligations of a party to a funds transfer may be varied by agreement of the affected party. (b) Funds-transfer system rule means a rule of an association of banks (i) governing transmission of payment orders by means of a funds-transfer system of the association or rights and obligations with respect to those orders, or (ii) to the extent the rule governs rights and obligations between banks that are parties to a funds transfer in which a Federal Reserve Bank, acting as an intermediary bank, sends a payment order to the beneficiary’s bank. Except as otherwise provided in this Article, a funds-transfer system rule governing rights and obligations between participating banks using the system may be effective even if the rule conflicts with this Article and indirectly affects another party to the funds transfer who does not consent to the rule. A funds-transfer system rule may also govern rights and obligations of parties other than participating banks using the system to the extent stated in sections 4A–404(c), 4A–405(d), and 4A– 507(c). Section 4A–502. Creditor Process Served on Receiving Bank; Setoff by Beneficiary’s Bank (a) As used in this section, creditor process means levy, attachment, garnishment, notice of lien, sequestration, or similar process issued by or on behalf of a creditor or other claimant with respect to an account. (b) This subsection applies to creditor process with respect to an authorized account of the sender of a payment order if the creditor process is served on the receiving bank. For the purpose of determining rights with respect to the creditor process, if the receiving bank accepts the payment order the balance in the authorized account is deemed to be reduced by the amount of the payment order to the extent the bank did not otherwise receive payment of the order, unless the creditor process is served at a time and in a manner affording the bank a reasonable opportunity to act on it before the bank accepts the payment order. (c) If a beneficiary’s bank has received a payment order for payment to the beneficiary’s account in the bank, the following rules apply: (1) The bank may credit the beneficiary’s account. The amount credited may be set off against an obligation owed by the beneficiary to the bank or may be applied to satisfy creditor process served on the bank with respect to the account. (2) The bank may credit the beneficiary’s account and allow withdrawal of the amount credited unless creditor process with respect to the account is served at a time and in a VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 manner affording the bank a reasonable opportunity to act to prevent withdrawal. (3) If creditor process with respect to the beneficiary’s account has been served and the bank has had a reasonable opportunity to act on it, the bank may not reject the payment order except for a reason unrelated to the service of process. (d) Creditor process with respect to a payment by the originator to the beneficiary pursuant to a funds transfer may be served only on the beneficiary’s bank with respect to the debt owned by that bank to the beneficiary. Any other bank served with the creditor process is not obliged to act with respect to the process. Section 4A–503. Injunction or Restraining Order With Respect to Funds Transfer For proper cause and in compliance with applicable law, a court may restrain (i) a person from issuing a payment order to initiate a funds transfer, (ii) an originator’s bank from executing the payment order of the originator, or (iii) the beneficiary’s bank from releasing funds to the beneficiary or the beneficiary from withdrawing the funds. A court may not otherwise restrain a person from issuing a payment order, paying or receiving payment of a payment order, or otherwise acting with respect to a funds transfer. Section 4A–504. Order In Which Items and Payment Orders May Be Charged to Account; Order of Withdrawals From Account (a) If a receiving bank has received more than one payment order of the sender or one or more payment orders and other items that are payable from the sender’s account, the bank may charge the sender’s account with respect to the various orders and items in any sequence. (b) In determining whether a credit to an account has been withdrawn by the holder of the account or applied to a debt of the holder of the account, credits first made to the account are first withdrawn or applied. Section 4A–505. Preclusion of Objection to Debit of Customer’s Account If a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customer’s objection to the payment within one year after the notification was received by the customer. Section 4A–506. Rate of Interest (a) If, under this Article, a receiving bank is obliged to pay interest with respect to a payment order issued to the bank, the amount payable may be determined (i) by agreement of the sender and receiving bank, or (ii) by a funds-transfer system rule if the payment order is transmitted through a funds-transfer system. (b) If the amount of interest is not determined by an agreement or rule as stated in subsection (a), the amount is calculated by multiplying the applicable Federal Funds rate by the amount on which interest is PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 31401 payable, and then multiplying the product by the number of days for which interest is payable. The applicable Federal Funds rate is the average of the Federal Funds rates published by the Federal Reserve Bank of New York for each of the days for which interest is payable divided by 360. The Federal Funds rate for any day on which a published rate is not available is the same as the published rate for the next preceding day for which there is a published rate. If a receiving bank that accepted a payment order is required to refund payment to the sender of the order because the funds transfer was not completed, but the failure to complete was not due to any fault by the bank, the interest payable is reduced by a percentage equal to the reserve requirement on deposits of the receiving bank. Section 4A–507. Choice of Law (a) The following rules apply unless the affected parties otherwise agree or paragraph (c) of this section applies: (1) The rights and obligations between the sender of a payment order and the receiving bank are governed by the law of the jurisdiction in which the receiving bank is located. (2) The rights and obligations between the beneficiary’s bank and the beneficiary are governed by the law of the jurisdiction in which the beneficiary’s bank is located. (3) The issue of when payment is made pursuant to a funds transfer by the originator to the beneficiary is governed by the law of the jurisdiction in which the beneficiary’s bank is located. (b) If the parties described in each subsection of paragraph (a) of this section have made an agreement selecting the law of a particular jurisdiction to govern rights and obligations between each other, the law of that jurisdiction governs those rights and obligations, whether or not the payment order or the funds transfer bears a reasonable relation to that jurisdiction. (c) A funds-transfer system rule may select the law of a particular jurisdiction to govern (i) rights and obligations between participating banks with respect to payment orders transmitted or processed through the system, or (ii) the rights and obligations of some or all parties to a funds transfer any part of which is carried out by means of the system. A choice of law made pursuant to clause (i) is binding on participating banks. A choice of law made pursuant to clause (ii) is binding on the originator, other sender, or a receiving bank having notice that the fundstransfer system might be used in the funds transfer and of the choice of law by the system when the originator, other sender, or receiving bank issued or accepted a payment order. The beneficiary of a funds transfer is bound by the choice of law if, when the funds transfer is initiated, the beneficiary has notice that the funds-transfer system might be used in the funds transfer and of the choice of law by the system. The law of a jurisdiction selected pursuant to this subsection may govern, whether or not that law bears a reasonable relation to the matter in issue. (d) In the event of inconsistency between an agreement under paragraph (b) of this section and a choice-of-law rule under E:\FR\FM\11JNP2.SGM 11JNP2 31402 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Proposed Rules paragraph (c) of this section, the agreement under paragraph (b) prevails. (e) If a funds transfer is made by use of more than one funds-transfer system and there is inconsistency between choice-of-law rules of the systems, the matter in issue is governed by the law of the selected jurisdiction that has the most significant relationship to the matter in issue. By order of the Board of Governors of the Federal Reserve System. Ann Misback, Secretary of the Board. [FR Doc. 2021–11759 Filed 6–10–21; 8:45 am] jbell on DSKJLSW7X2PROD with PROPOSALS2 BILLING CODE P VerDate Sep<11>2014 19:48 Jun 10, 2021 Jkt 253001 PO 00000 Frm 00028 Fmt 4701 Sfmt 9990 E:\FR\FM\11JNP2.SGM 11JNP2

Agencies

FEDERAL RESERVE SYSTEM

[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Proposed Rules]
[Pages 31376-31402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11759]



[[Page 31375]]

Vol. 86

Friday,

No. 111

June 11, 2021

Part II





Federal Reserve System





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12 CFR Part 210





Collection of Checks and Other Items by Federal Reserve Banks and Funds 
Transfers Through Fedwire; Proposed Rule

Federal Register / Vol. 86 , No. 111 / Friday, June 11, 2021 / 
Proposed Rules

[[Page 31376]]


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FEDERAL RESERVE SYSTEM

12 CFR Part 210

[Regulation J; Docket No. R-1750]
RIN 7100-AG16


Collection of Checks and Other Items by Federal Reserve Banks and 
Funds Transfers Through Fedwire

AGENCY: Board of Governors of the Federal Reserve System (Board).

ACTION: Proposed rule, request for comment.

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SUMMARY: The Board is proposing amendments to Regulation J to govern 
funds transfers through the Federal Reserve Banks' (Reserve Banks) new 
FedNow\SM\ Service by establishing a new subpart C. The Board is also 
proposing changes and clarifications to subpart B, governing the 
Fedwire Funds Service, to reflect the fact that the Reserve Banks will 
be operating a second funds transfer service in addition to the Fedwire 
Funds Service, as well as proposing technical corrections to subpart A, 
governing the check service.

DATES: Comments must be submitted by August 10, 2021.

ADDRESSES: You may submit comments, identified by Docket No. R-1750; 
RIN 7100-AG16, by any of the following methods:
     Agency Website: https://www.federalreserve.gov. Follow the 
instructions for submitting comments at https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Email: [email protected]. Include the 
docket number and RIN in the subject line of the message.
     Fax: (202) 452-3819 or (202) 452-3102.
     Mail: Ann E. Misback, Secretary, Board of Governors of the 
Federal Reserve System, 20th Street and Constitution Avenue NW, 
Washington, DC 20551.
    All public comments will be made available on the Board's website 
at https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons or to remove sensitive 
personal information at the commenter's request. Public comments may 
also be viewed electronically or in paper in Room 146, 1709 New York 
Avenue NW, Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on 
weekdays.

FOR FURTHER INFORMATION CONTACT: Jess Cheng, Senior Counsel (202) 452-
2309, Gavin L. Smith, Senior Counsel (202) 452-3474, Legal Division, or 
Ian C.B. Spear, Manager (202) 452-3959, Kirstin E. Wells, Principal 
Economist (202) 452-2962, Division of Reserve Bank Operations and 
Payment Systems; for users of Telecommunications Device for the Deaf 
(TDD) only, contact (202) 263-4869.

SUPPLEMENTARY INFORMATION:

I. Background

    Instant payment services have emerged globally over the past two 
decades to address the enhanced speed and convenience expected by the 
public for payment transactions in modern digital economies. Instant 
payments allow individuals and businesses to send and receive payments 
at any time of the day, on any day of the year, and to complete those 
payments within seconds (from the end user perspective) such that the 
beneficiary has access immediately to final funds, meaning funds they 
can use at that time. Beyond speed and convenience, instant payments 
can yield real economic benefits for individuals and businesses by 
providing them with more flexibility to manage their money and allowing 
them to make time-sensitive payments whenever needed. In light of these 
potential benefits, there is broad consensus within the U.S. payment 
community that, just as real-time services have become standard for 
other everyday activities, instant payment services have the potential 
to become widely used, resulting in a significant and positive impact 
on the U.S. economy.
    In 2019, the Board issued a Federal Register notice announcing that 
the Reserve Banks would develop a new interbank 24x7x365 real-time 
gross settlement service with integrated clearing functionality, called 
the FedNow Service, to support instant payments in the United States 
(the 2019 Notice). The Board's determination was based on the public 
benefits that the service would provide and the Board's assessment that 
such a service would meet the requirements of the Depository 
Institutions Deregulation and Monetary Control Act of 1980, as well as 
the Board's criteria for new or enhanced Federal Reserve payment 
services.\1\ The FedNow Service will operate alongside similar services 
provided by the private sector to provide core infrastructure 
supporting instant payments in the United States. In the 2019 Notice, 
the Board also requested comment on all aspects of the planned service. 
One proposed aspect was that banks would be required to make funds 
associated with individual instant payments available to their end-user 
customers immediately after receiving notification from the service 
that an instant payment had settled.
---------------------------------------------------------------------------

    \1\ See ``Federal Reserve Actions To Support Interbank 
Settlement of Faster Payments, Request for Comments,'' 84 FR 39297 
(Aug. 9, 2019).
---------------------------------------------------------------------------

    In August 2020, the Board issued a subsequent Federal Register 
notice describing the FedNow Service details (the 2020 Notice), based 
on additional analysis informed by the comments received in response to 
the 2019 Notice.\2\ In that notice, the Board approved, among other 
things, the aspect of immediate funds availability proposed in the 2019 
Notice. The Board also indicated that it was assessing applicable laws 
and regulations, and, to the extent changes to the Board's regulations 
were needed, including to clarify funds availability, the Board would 
request public comment.
---------------------------------------------------------------------------

    \2\ ``Service Details on Federal Reserve Actions To Support 
Interbank Settlement of Instant Payments,'' 85 FR 48522 (Aug. 11, 
2020).
---------------------------------------------------------------------------

    The Board has completed its assessment with respect to Regulation J 
and is issuing this request for comment on the regulation incorporating 
changes to provide a legal framework for the FedNow Service. The 
Board's proposed amendments to Regulation J establish a new subpart C 
to govern funds transfers made through the FedNow Service and amend the 
title of the regulation. The Board is also proposing technical changes 
and clarifications to subpart B, which governs funds transfers through 
the Fedwire Funds Service, to reflect the fact that the Reserve Banks 
will be operating two funds transfer services. The Board is further 
proposing technical corrections to subpart A of the regulation, which 
governs the collection of checks and other items by the Reserve Banks.

II. Overview of Proposed Regulation J Amendments

    Subpart B of Regulation J currently specifies the rules applicable 
to funds transfers handled by Reserve Banks over the Fedwire Funds 
Service. Subpart B would not apply to transfers over the new FedNow 
Service, which will be a separate funds transfer service operated by 
the Reserve Banks. The Board is proposing a new subpart C of Regulation 
J to provide a comprehensive set of rules governing funds transfers 
over the FedNow Service. As it did for subpart B, the Board proposes to 
adopt a commentary to subpart C that would constitute a Board 
interpretation of the regulation.
    In general, the proposed new subpart C of Regulation J specifies 
the terms and conditions under which Reserve Banks

[[Page 31377]]

will process funds transfers over the FedNow Service, as well as grants 
the Reserve Banks authority to issue an operating circular for the 
FedNow Service, which would detail more specific terms and conditions 
governing the FedNow Service consistent with the proposed subpart. 
Additionally, proposed subpart C's terms of service include a 
requirement for a FedNow participant that is the beneficiary's bank to 
make funds available to the beneficiary immediately after it has 
accepted the payment order over the service. Proposed new subpart C 
also expands and clarifies the applicability of the Uniform Commercial 
Code (UCC) Article 4A to all transfers over the FedNow Service, subject 
to a limited number of modifications and clarifications that are 
consistent with the purposes of UCC Article 4A.
    UCC Article 4A, which has been adopted in all 50 states, provides 
comprehensive rules governing the rights and responsibilities of the 
parties to funds transfers. The rights and responsibilities covered in 
UCC Article 4A include those with respect to the receipt, acceptance or 
rejection, and execution of a payment order and settlement of a payment 
obligation; liability for the late, erroneous, or improper execution of 
funds transfers; the risks of loss associated with an unauthorized 
payment order; the obligation to pay for and the right to receive 
payment for a payment order; and the effect of payment by funds 
transfer on any underlying obligation between an originator and a 
beneficiary of a funds transfer.
    The Board incorporated UCC Article 4A, as approved by the American 
Law Institute and the National Conference of Commissioners on Uniform 
State Laws in 1989, into Regulation J for purposes of the Fedwire Funds 
Service and proposes to do the same for the FedNow Service. The Board 
believes that this incorporation is necessary to ensure that the law 
applicable to all transfers over the FedNow Service is consistent, 
predictable, and clear. The Board also proposes to replace the 
currently incorporated 1989 version of UCC Article 4A with the more 
recent 2012 version and to set forth those provisions in Appendix A of 
part 210, rather than in Appendix B of subpart B where they are 
currently set forth.\3\
---------------------------------------------------------------------------

    \3\ UCC Article 4A has been amended once, in 2012. The 2012 
amendments, as approved by the American Law Institute and the 
National Conference of Commissioners on Uniform State Laws, which is 
now also known as the Uniform Law Commission, were necessary to 
retain the coverage of non-consumer remittance transfers by UCC 
Article 4A in light of revisions to the Electronic Fund Transfer Act 
(``EFTA''), as amended by the Dodd-Frank Wall Street Reform and 
Consumer Protection Act. Those statutory changes brought certain 
non-consumer remittance-related fund transfers under the scope of 
the EFTA and thus, absent amendment, would have been explicitly 
carved out from coverage by UCC Article 4A. Regulation J was also 
amended in 2012 to similarly clarify that its provisions continue to 
apply to a Fedwire Funds transfer even if the funds transfer also 
meets the definition of ``remittance transfer'' under the EFTA. 
``Collection of Checks and Other Items by Federal Reserve Banks and 
Funds Transfers Through Fedwire: Elimination of ``As-of 
Adjustments'' and Other Clarifications,'' 77 FR 21854 (Apr. 12, 
2012).
---------------------------------------------------------------------------

    Other minor changes are also proposed to Regulation J to make 
clarifying amendments to subpart B and technical corrections in subpart 
A. The Board does not believe that the proposed amendments to subparts 
A and B would impose additional operating burdens on any parties.
    The Board requests comment on all aspects of the proposed amendment 
to Regulation J and the specific questions posed below.

III. Section-by-Section Analysis

A. Subparts A and B

    The Board is proposing technical corrections in subpart A of 
Regulation J to update cross-references to other regulations that are 
no longer current.
    Additionally, the Board is proposing amendments to subpart B, 
governing funds transfers through the Fedwire Funds Service, to reflect 
the fact that the Reserve Banks will be operating two separate funds 
transfer systems with the launch of the FedNow Service and distinguish 
between the two services. For example, the proposed amendments include 
clarifications to Sec.  210.25(b) with respect to subpart B's scope of 
application and modifications to the definitions of the following 
terms: Beneficiary, beneficiary's bank, payment order, receiving bank, 
and sender. These proposed amendments are intended to clarify that the 
provisions of subpart B are limited to payment orders and parties to a 
funds transfer that are sent through the Fedwire Funds Service; payment 
orders and parties to a funds transfer that are sent through the FedNow 
Service, for example, would not be governed by subpart B.
    Additionally, the proposed amendments to subpart B include changes 
to update Sec.  210.25(c), which authorizes Reserve Banks to issue 
operating circulars consistent with the subpart in connection with the 
Fedwire Funds Service. The proposed revisions explicitly authorize 
Reserve Banks to issue operating circulars that specify the time and 
method of receipt, execution, and acceptance of a payment order and 
settlement of a Reserve Bank's payment obligation for purposes of UCC 
Article 4A; specify service terms governing ancillary features of the 
Fedwire Funds Service; and provide for the acceptance of documents in 
electronic form to the extent any provision in UCC Article 4A requires 
an agreement or other document to be in writing.
    The proposed amendments to subpart B further include minor changes 
to Sec.  210.28(b)(3) to provide that the security interest that a 
sender grants to a Reserve Bank is with respect to all of the sender's 
assets in the possession of, as well as in the control of, or held for 
the account of, the Reserve Bank; additional revisions are proposed to 
the commentary to that section to clarify its description of relevant 
UCC Article 4A provisions.
    Additionally, the proposed amendments to subpart B include a minor 
change to Sec.  210.30 to clarify that a sender may not send a payment 
order to a Reserve Bank that specifies an execution date, nor may it 
specify a payment date, that is later than the day on which the payment 
order is issued, unless the Reserve Bank agrees with the sender in 
writing to follow such instructions.
    The proposed amendments to subpart B also include a clarifying 
revision to Sec.  210.32, which governs the payment of compensation by 
Reserve Banks in the form of interest. Section 210.32 provides that, 
when a Reserve Bank is obligated to pay compensation to another party 
in connection with its handling of a funds transfer under UCC Article 
4A, the Reserve Bank shall pay 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. The proposed 
revisions refer to these payments as ``compensation'' rather than 
interest payments. The Board believes this clarification would help 
remove any confusion that such payment is related to any purpose other 
than compensation, such as monetary policy transmission.
    Finally, the Board is proposing technical revisions in the 
commentary to subpart B to correct cross-references to UCC Article 1 
and to update cross-references to statutes and other regulations that 
are no longer current.

B. Subpart C--Funds Transfers Through the FedNow Service

    The Board is proposing to amend Regulation J to establish a new 
subpart C governing funds transfers over the FedNow Service. Many of 
the concepts embodied in the proposed subpart C are similar to those 
currently in subpart B

[[Page 31378]]

of Regulation J. Like the Fedwire Funds Service, the FedNow Service is 
a real-time gross settlement system and a funds-transfer service under 
UCC Article 4A. However, a number of the proposed subpart C provisions 
have been tailored to the nature of the FedNow Service where it differs 
from that of the Fedwire Funds Service.
    In particular, the FedNow Service is designed for the end-to-end 
transfer to be completed in a matter of seconds, as described in the 
2020 Notice. This means that the beneficiary's bank would agree, as 
provided in proposed subpart C, that it will make funds available to 
the beneficiary immediately after it has accepted the payment order.
    Another difference between the FedNow Service and the Fedwire Funds 
Service is that the FedNow Service will accommodate participants that 
choose to settle their activity over the service in the master account 
of a correspondent bank. In contrast, participants in the Fedwire Funds 
Service are limited to settling their activity over that service in 
their own master account. The terms of proposed subpart C reflect the 
fact that FedNow Service will support this additional mechanism for 
settling obligations that arise between Reserve Banks and FedNow 
participants.
    Further, unlike the Fedwire Funds Service, which is designed to 
serve primarily as a large-value funds transfer system between 
institutional users, the FedNow Service is designed to also accommodate 
consumer use. Therefore, in the event that a transfer over the FedNow 
Service meets the definition of ``electronic fund transfer'' under the 
Electronic Fund Transfer Act (EFTA), proposed subpart C provides that 
it would apply to the transfer but the EFTA would prevail to the extent 
of any inconsistency, as discussed further later.
Section 210.40 Authority, Purpose, and Scope
    This proposed section summarizes the Board's authority to adopt 
this regulation and provides a description of how the subpart is 
organized. Similar to the rules governing the Fedwire Funds Service in 
subpart B, new subpart C would incorporate those provisions of UCC 
Article 4A (as set forth in an appendix to Regulation J) into subpart C 
that are not inconsistent with the provisions set forth expressly in 
subpart C.
    Specifically, proposed subpart C provides that UCC Article 4A 
applies to all funds transfers over the FedNow Service, including a 
transfer from a consumer originator or a transfer to a consumer 
beneficiary that is carried out through the FedNow Service. Such a 
consumer transaction could potentially be subject to the EFTA. By its 
terms, UCC Article 4A would not apply to a funds transfer any part of 
which is governed by the EFTA. Therefore, absent this proposed section 
in subpart C, a number of important legal aspects with respect to these 
consumer transfers over the FedNow Service could potentially lack clear 
and consistent rules.
    This proposed section provides that all transfers over the FedNow 
Service, including those transfers any portion of which is governed by 
the EFTA, are covered by subpart C (which incorporates UCC Article 4A 
by reference); however, in the event of an inconsistency between the 
provisions of subpart C and the EFTA, the proposed section provides 
that the EFTA would prevail to the extent of the inconsistency. The 
commentary accompanying this proposed provision in subpart C provides 
an illustrative example. The Board believes this proposed provision is 
necessary in order to provide a clear, consistent, and comprehensive 
set of rules for all funds transfers over the FedNow Service, 
consistent with the EFTA and the purposes of UCC Article 4A.
    This proposed section also specifies the parties subject to 
proposed subpart C with respect to the FedNow Service. These parties 
would include senders that send payment orders to a Reserve Bank over 
the service, receiving banks that receive payment orders from a Reserve 
Bank over the service, beneficiaries that receive payment for payment 
orders by means of a credit to their settlement account with a Reserve 
Bank, and Reserve Banks that send or receive payment orders over the 
FedNow Service.
    For example, suppose that Payor has an account with Bank A and 
instructs Bank A to pay $1,000 to Payee's account at Bank B, and Bank A 
carries out Payor's instruction using the FedNow Service.\4\ Suppose 
further that Bank A and Bank B maintain accounts on the books of 
different Reserve Banks. In this example, the Reserve Bank of Bank A 
and the Reserve Bank of Bank B would be intermediary banks; Bank A 
would be the sender with respect to the payment order that it sends to 
its Reserve Bank; Bank B would be the receiving bank with respect to 
the payment order that it receives from its Reserve Bank.
---------------------------------------------------------------------------

    \4\ This example is only for illustrative purposes. Aspects of 
the arrangement would be different, for example, if either of the 
banks were to use an agent, service provider, or correspondent bank.
---------------------------------------------------------------------------

    In this example, the Reserve Banks of Bank A and Bank B would be 
subject to proposed subpart C, because they are Reserve Banks sending 
or receiving payment orders over the FedNow Service. It is possible 
that a Reserve Bank may also be subject to subpart C in its capacity as 
a beneficiary's bank with respect to a payment order (e.g., interbank 
credit transfers between FedNow participants). For other capacities, 
however, a Reserve Bank would not be a party to the funds transfer for 
purposes of proposed subpart C and UCC Article 4A. For example, if a 
sender settles its activity over the FedNow Service in the account of a 
correspondent bank, the sender's Reserve Bank would be an intermediary 
bank in the funds transfer chain, but the Reserve Bank of the 
correspondent bank would not be a sender or receiving bank with respect 
to the payment order and would not be a party to the funds transfer.
    Under the proposed section, subpart C would also apply to any party 
to a funds transfer sent through the FedNow Service that is in privity 
(i.e., has a contractual relationship) with a Reserve Bank in the funds 
transfer chain. Other parties to a funds transfer sent through the 
FedNow Service (i.e., a party not in privity with a Reserve Bank, such 
as Payor and Payee in the example above) would be covered by this 
proposed subpart only under certain circumstances. If these remote 
parties have notice that the FedNow Service might be used for their 
funds transfer and that subpart C is the governing law with respect to 
the transfer over the FedNow Service, then proposed subpart C would 
govern their rights and obligations with respect to the FedNow Service. 
However, it is possible for that remote party to expressly select by 
agreement a governing law other than subpart C with respect to its 
rights and obligations in connection with that transfer. For example, 
Payor and Bank A in the example above could make an agreement selecting 
the law of a particular jurisdiction, and not subpart C, to govern 
rights and obligations between each other. In that event, the law of 
that jurisdiction would govern those rights and obligations, and not 
subpart C, even if the remote party (Payor) had notice that the FedNow 
Service may be used and that subpart C is the governing law with 
respect to the transfer over the FedNow Service.
    Finally, this proposed section authorizes Reserve Banks to issue 
operating circulars which would detail more specific terms and 
conditions governing the FedNow Service consistent with the proposed 
subpart.

[[Page 31379]]

Similar to the rules governing the Fedwire Funds Service in subpart B 
and the proposed clarifying edits to subpart B, new subpart C would 
authorize the Reserve Banks to issue operating circulars with respect 
to the FedNow Service that may set cut-off hours and funds-transfer 
business days; address security procedures offered by the Reserve Banks 
to verify the authenticity of a payment order; specify format and media 
requirements for payment orders; identify messages that are not payment 
orders; specify the time and method of receipt, execution, and 
acceptance of a payment order and settlement of a Reserve Bank's 
payment obligation for purposes of UCC Article 4A; specify service 
terms governing ancillary features of the FedNow Service; provide for 
the acceptance of documents in electronic form to the extent any 
provision in UCC Article 4A requires an agreement or other document to 
be in writing; and impose charges for funds transfer services.
    Reflecting aspects where the FedNow Service differs from the 
Fedwire Funds Service, the proposed section further provides that 
Reserve Bank operating circulars governing the FedNow Service may also 
prescribe time limits for the processing of payment orders.
Section 210.41 Definitions
    This proposed section defines the terms used in the regulation. 
Similar to subpart B, proposed subpart C generally incorporates the 
definitions set forth in UCC Article 4A (e.g., beneficiary, 
intermediary bank, receiving bank, and security procedure), in some 
instances with modifications. Specifically, the proposed subpart 
modifies the definitions of five UCC Article 4A terms: Beneficiary, 
beneficiary's bank, payment order, receiving bank, and sender. In 
general, these modifications are intended to clarify that, for the 
purposes of subpart C, these terms would be limited to payment orders 
and parties in a funds transfer that are sent through the FedNow 
Service. Parties to a funds transfer that is sent through the Fedwire 
Funds Service, for example, would not be a ``beneficiary,'' 
``beneficiary's bank,'' ``receiving bank,'' or ``sender'' as those 
terms are defined in proposed subpart C.
    This proposed section also includes definitions of other terms not 
defined in UCC Article 4A, including ``sender's settlement account,'' 
``receiving bank's settlement account,'' and ``beneficiary's settlement 
account.'' These terms reflect the fact that a FedNow participant may 
settle its activity over the FedNow Service in either its master 
account with a Reserve Bank or, alternatively, the master account of a 
correspondent bank with a Reserve Bank. Whether it is its own master 
account or that of a correspondent, a FedNow participant would need to 
designate a settlement account on the books of a Reserve Bank that the 
Reserve Banks may use to settle the participant's activity over the 
FedNow Service.
    This proposed section also includes a definition of the term 
``Federal Reserve Bank'' with respect to an entity, which is not a term 
defined in UCC Article 4A. In instances where a FedNow participant 
maintains an account with a Reserve Bank, this proposed section takes 
an approach similar to the rules governing the Fedwire Funds Service in 
subpart B. In those instances, the term ``Federal Reserve Bank'' with 
respect to the FedNow participant means the Reserve Bank at which the 
participant maintains an account. To reflect the fact that the FedNow 
Service will also accommodate participants that choose to settle their 
activity over the service in the master account of a correspondent 
bank, the proposed definition also addresses instances where a FedNow 
participant does not maintain a master account with a Reserve Bank. In 
those instances, the term ``Federal Reserve Bank'' with respect to that 
participant means the Reserve Bank in whose District the participant is 
located, as determined under the procedure described in Part 204 of 
this chapter (Regulation D), even if the participant is not otherwise 
subject to that section. As noted above, the Reserve Bank of the 
participant would be a party to the funds transfer, but the Reserve 
Bank of its correspondent bank would not be a party to the funds 
transfer.
Section 210.42 Reliance on Identifying Number
    This proposed section provides that a Reserve Bank may rely on the 
number in the payment order identifying the beneficiary's bank or the 
beneficiary, consistent with UCC Article 4A. As a practical matter, 
reliance on identifying numbers enables banks to more efficiently 
process payment orders by automated means. Rather than manual 
processing of payment orders with human reading of the contents of the 
order, banks typically use machines to read orders that, using a 
standard format, identify the beneficiary's bank by routing number or 
the beneficiary by the number of a bank account, or by other 
identifying number. This standard format might also allow for the 
inclusion of additional information in the payment order (e.g., the 
name of the beneficiary's bank or the beneficiary) that can be useful 
for reference, even if not relied upon to process the payment order.
    If a payment order contains both the identifying number and the 
name of the beneficiary's bank or beneficiary supplied by the 
originator of the funds transfer, it might be possible for a receiving 
bank processing the order to detect an inconsistency and determine that 
the name and number do not refer to the same party. UCC Article 4A 
provides that a bank is under no duty to make such a determination that 
the identifying number and name refer to the same party in processing 
the payment order. If such a duty were imposed, the benefits of 
automated payments would be significantly lost; these benefits include 
the substantial economies of operation and the reduction in the 
possibility of clerical error. Rather, UCC Article 4A allows receiving 
banks to act on the basis of the identifying number, without regard to 
name provided in the payment order, so long as the bank does not know 
the name and number refer to different parties.
    Consistent with UCC Article 4A, proposed Sec.  210.42 provides that 
a Reserve Bank, as receiving bank, may rely on the routing number of 
the beneficiary's bank specified in a payment order as identifying the 
appropriate beneficiary's bank, even if the payment order identifies 
another bank by name, provided that the Reserve Bank does not know of 
the inconsistency. Similarly, a Reserve Bank, where it acts as the 
beneficiary's bank, may rely on the number identifying a beneficiary, 
such as the beneficiary's account number, specified in a payment order 
as identifying the appropriate beneficiary, even if the payment order 
identifies another beneficiary by name, provided that the Reserve Bank 
does not know of the inconsistency.
    The proposed section also serves to provide notice to nonbank 
senders that send payment orders directly to a Reserve Bank through the 
FedNow Service that the Reserve Bank may rely on the numbers in the 
payment orders identifying the beneficiary's bank and the beneficiary.
Section 210.43 Agreement of Sender
    Proposed Sec.  210.43 describes when an obligation to pay arises 
for FedNow participants that send a payment order over the FedNow 
Service and how that obligation is discharged. Under that proposed 
section, when a sender sends a payment order to a Reserve Bank over the 
FedNow Service and the Reserve Bank accepts the payment order, the 
sender has an obligation to pay the

[[Page 31380]]

Reserve Bank for the amount of the payment order. This proposed section 
further specifies that the obligation of the sender is paid by a debit 
to the settlement account of the sender. This approach is generally 
similar to that taken by subpart B for the Fedwire Funds Service, but 
it has been adjusted to reflect the fact that the FedNow Service will 
accommodate participants that choose to settle their activity over the 
service in the master account of a correspondent bank. The proposed 
section, therefore, provides that the sender authorizes its Reserve 
Bank to obtain payment for a payment order by debiting, or causing 
another Reserve Bank (i.e., the Reserve Bank of the correspondent bank, 
if one is used) to debit, the amount of the payment order from the 
settlement account.
    In addition, this proposed section includes provisions addressing 
overdrafts, taking an approach similar to that of subpart B, with 
adjustments to reflect the fact that the participant activity over the 
FedNow Service will settle in settlement accounts designated by the 
FedNow participant. The proposed section establishes that a sender does 
not have a right to an overdraft in its settlement account and sets out 
the sender's obligations to ensure there are sufficient funds in its 
settlement account and to cover any overdraft by the time the overdraft 
becomes due and payable. This section also provides a Reserve Bank with 
a security interest in the sender's assets held at any Reserve Bank to 
secure any obligation owed and also specifies the actions a Reserve 
Bank may take to recover the amount of an overdraft, including set-off 
and realization of collateral. Finally, this proposed section clarifies 
that settlement accounts could be subject to overdraft charges, where 
applicable.
Section 210.44 Agreement of Receiving Bank
    With respect to FedNow participants that receive payment orders 
over the service and accept the order, Sec.  210.44 specifies how the 
participant receives payment. The proposed section provides that for 
payment orders that a receiving bank receives from a Reserve Bank over 
the FedNow Service, payment for the order is made by credit to the 
settlement account of the receiving bank. This approach is generally 
similar to that taken by the rules governing the Fedwire Funds Service 
in subpart B, with adjustments to reflect the fact that the FedNow 
Service will accommodate settlement in a participant's own master 
account or, if the participant chooses, the master account of a 
correspondent bank. Specifically, the proposed section provides that 
the receiving bank authorizes its Reserve Bank to pay for the payment 
order by crediting, or causing another Reserve Bank (i.e., the Reserve 
Bank of the correspondent bank, if one is used), to credit the amount 
of the payment order to the settlement account.
    The proposed section also includes a requirement for a FedNow 
participant that is the beneficiary's bank to make funds available to 
the beneficiary immediately after its acceptance of the payment order 
over the service. As noted above, this requirement reflects the fact 
that an end-to-end transfer over the FedNow Service is intended to be 
completed in a matter of seconds. Under the proposed section, if a 
FedNow participant accepts a payment order over the service, it must 
pay the beneficiary by crediting the beneficiary's account, and it must 
do so immediately after its acceptance of the payment order. The Board 
specifically requests comment on whether the regulation should set out 
specific time parameters to clarify the meaning of ``immediately'' as 
used in this funds availability requirement and, if so, whether a 
timeframe of within seconds or, alternatively, within one minute after 
the bank has accepted the payment order would be reasonable.
    Relatedly, the proposed section states that the rights and 
obligations with respect to the availability of funds are also governed 
by the Expedited Funds Availability Act (EFAA) and its implementing 
regulation, Regulation CC. Regulation CC provides that funds received 
by a bank by an electronic payment shall be available for withdrawal 
not later than the business day after the banking day on which such 
funds are received. The proposed new subpart C would require funds to 
be made available on a more prompt basis than the availability 
requirements of the EFAA and Regulation CC. Proposed Sec.  210.44 
therefore clarifies that the EFAA and Regulation CC requirements 
continue to apply independently of subpart C. The proposed commentary 
provides an example where a beneficiary's bank has failed to satisfy 
the immediate funds availability requirement under proposed subpart C, 
even if it has satisfied its obligations under Regulation CC.
    The proposed section also clarifies that the obligation for the 
beneficiary's bank to provide immediate funds availability to the 
beneficiary does not affect any liability of the beneficiary's bank to 
the beneficiary, or any party other than a Reserve Bank, under UCC 
Article 4A or other law. The Board believes that the bank-customer 
relationship should be governed by existing law, rather than the funds 
availability timing requirement that would apply to a FedNow 
participant as a term of the service. The proposed commentary explains 
that the timing requirement in this section does not create any new 
rights that the beneficiary may assert against the beneficiary's bank 
or otherwise alter any rights of the beneficiary under UCC Article 4A 
or other applicable law.
    Finally, the proposed section addresses certain circumstances in 
which a FedNow participant that is the beneficiary's bank requires 
additional time to determine whether to accept the payment order 
because it has reasonable cause to believe that the beneficiary is not 
entitled or permitted to receive payment. In those circumstances, if 
the FedNow participant notifies its Reserve Bank that it requires 
additional time, the FedNow participant would not be deemed to have 
accepted the payment order at such time as would otherwise be 
considered acceptance of the payment under proposed subpart C (i.e., 
when it receives payment from its Reserve Bank). The proposed 
commentary provides an example of when this provision might apply: When 
the beneficiary's bank has reasonable cause to believe that making 
funds available to the beneficiary may violate applicable U.S. 
sanctions. The Board specifically requests comment on whether this 
proposed section is sufficient to cover the likely range of 
circumstances where a FedNow participant may need additional time to 
determine whether to accept a payment order.
Section 210.45 Payment Orders
    This proposed section sets forth the terms under which a Reserve 
Bank will accept payment orders from a sender over the FedNow Service. 
Similar to the rules governing the Fedwire Funds Service in subpart B, 
this proposed section provides that a sender must make arrangements 
with its Reserve Bank before it may send payment orders over the FedNow 
Service.
    Also similar to subpart B, this proposed section provides that a 
Reserve Bank may reject any payment order or impose conditions on the 
acceptance of payment orders over the FedNow Service for any reason. 
The proposed commentary provides examples of when rejections might 
occur with respect to insufficient funds in the sender's settlement 
account and the lack of a required agreement concerning security 
procedures, which

[[Page 31381]]

mirror the commentary examples in subpart B. The proposed commentary 
also includes a further example of when a rejection may occur: When a 
payment order is not successfully processed within time limits 
established by the Reserve Banks, which reflects the fact that the 
FedNow Service is designed for the end-to-end transfer to be completed 
in a matter of seconds.
    This proposed section also provides terms with respect to the 
selection of an intermediary bank for a transfer over the FedNow 
Service. It takes a similar approach to that of subpart B with respect 
to the Fedwire Funds Service, with adjustments to reflect that the fact 
that for the FedNow Service, the Reserve Banks will be the only 
intermediary banks in the funds transfer chain. Reflecting this 
transaction structure for transfers over the FedNow Service, the 
proposed section provides that a FedNow participant may not send a 
payment order to a Reserve Bank that requires the Reserve Bank to issue 
a payment order to an intermediary bank other than another Reserve 
Bank. This proposed section also provides that a sender may not send a 
value-dated payment order through the FedNow Service, unless the 
Reserve Bank agrees with the sender in writing to follow such 
instructions.
Section 210.46 Payment by a Federal Reserve Bank to a Receiving Bank or 
Beneficiary
    This proposed section addresses the timing of when a Reserve Bank 
makes payment to a receiving bank (when the Reserve Bank is an 
intermediary bank) or beneficiary (when the Reserve Bank is the 
beneficiary's bank). It adopts a similar approach as that taken by 
subpart B for the Fedwire Funds Service, but it has been adjusted to 
reflect the fact that the FedNow Service will also accommodate 
participants that choose to settle their activity over the service in 
the master account of a correspondent bank. The proposed section, 
therefore, provides that payment to a FedNow participant by Reserve 
Banks is final at the earlier of the time when the amount of the 
payment order is credited to the FedNow participant's settlement 
account (which may be the participant's own master account or the 
master account of its correspondent bank), or the time when the Reserve 
Bank sends to the FedNow participant either a conforming payment order 
or, in instances where the FedNow participant is the beneficiary, a 
notice of the credit. This payment would be final and irrevocable when 
made.\5\
---------------------------------------------------------------------------

    \5\ This does not prevent FedNow participants from implementing 
procedures to resolve erroneous payments, or impede the ability of 
the receiving bank to initiate a new transfer to return funds in 
certain circumstances.
---------------------------------------------------------------------------

Section 210.47 Federal Reserve Bank Liability; Payment of Compensation
    This proposed section addresses liability of the Reserve Banks, 
similar to the rules governing the Fedwire Funds Service in subpart B. 
It provides that, in connection with its handling of a payment order, a 
Reserve Bank shall not agree to be liable to a sender, receiving bank, 
beneficiary, or other Reserve Bank for consequential damages resulting 
from the Reserve Bank's failure to execute a payment order. This 
proposed section is consistent with the presumption in UCC Article 4A, 
under which damages for a receiving bank's failure to execute a payment 
order that it was obligated to execute by express agreement do not 
include consequential damages, unless they are provided for in an 
express written agreement of the receiving bank. This proposed section 
is not intended to affect the liability of parties more broadly. For 
example, it is not intended to affect the ability of parties to a funds 
transfer other than a Reserve Bank to agree to be liable for 
consequential damages.
    Finally, this proposed section provides that where a Reserve Bank 
is obligated under UCC Article 4A to provide compensation in the form 
of interest to another party in connection with its handling of a funds 
transfer over the FedNow Service, the Reserve Bank may do so. In such 
cases where a Reserve Bank provides compensation in the form of 
interest, interest would be calculated in accordance with Article 4A. 
This proposed section adopts rules similar to the rules governing the 
Fedwire Funds Service in subpart B, with the proposed clarifying 
amendments to subpart B described above.

IV. Request for Comment

    The Board requests comment on all aspects of the proposed 
amendments to Regulation J. The Board also requests comment on the 
following specific questions:
    1. The proposed regulation requires a FedNow participant that is a 
beneficiary's bank to make funds available to the beneficiary 
immediately after it has accepted the payment order over the FedNow 
Service.
    a. Should the Board set out specific time parameters to clarify the 
meaning of ``immediately'' as used in this funds availability 
requirement? Why or why not?
    b. What would be the benefits and drawbacks of specifying that 
``immediately'' as used in this requirement means that the 
beneficiary's bank must make funds available to the beneficiary within 
seconds or, alternatively, within one minute after it has accepted the 
payment order over the FedNow Service? \6\ Or, is there another way for 
the Board to specify the funds availability timeframe that is 
consistent with improving the speed of the end-to-end process for an 
instant payment service and continues to align with prevailing market 
practices over time?
---------------------------------------------------------------------------

    \6\ As a point of comparison, under the Faster Payments 
Effectiveness Criteria adopted by the Faster Payments Task Force in 
2015, a payment solution would be considered ``very effective'' in 
satisfying the criterion of fast availability of good funds to the 
payee if funds are available to the payee within one minute from 
payment initiation. The Faster Payments Task Force was a broad and 
inclusive group of payment industry stakeholders convened by the 
Federal Reserve to collaboratively identify and evaluate alternative 
approaches to implementing safe, ubiquitous, faster payments 
capabilities in the United States. The Faster Payments Effectiveness 
Criteria is available at https://fedpaymentsimprovement.org/wp-content/uploads/fptf-payment-criteria.pdf.
---------------------------------------------------------------------------

    2. The proposed regulation accommodates a feature of the FedNow 
Service under which a FedNow participant that is the beneficiary's bank 
may notify its Reserve Bank that it requires additional time to 
determine whether to accept the payment order over the FedNow Service 
because it has reasonable cause to believe that the beneficiary is not 
entitled or permitted to receive payment. Are there other circumstances 
where a beneficiary's bank should have additional time to determine 
whether to accept a payment order? If so, what are those circumstances?

V. Competitive Impact Analysis

    The Board conducts a competitive impact analysis when it considers 
an operational or legal change, if that change would have a direct and 
material adverse effect on the ability of other service providers to 
compete with the Federal Reserve in providing similar services due to 
legal differences or due to the Federal Reserve's dominant market 
position deriving from such legal differences. All operational or legal 
changes having a substantial effect on payments-system participants 
will be subject to a competitive-impact analysis, even if competitive 
effects are not apparent on the face of the proposal. If such legal 
differences exist, the Board will assess whether the same objectives 
could be achieved by a modified

[[Page 31382]]

proposal with lesser competitive impact or, if not, whether the 
benefits of the proposal (such as contributing to payments-system 
efficiency or integrity or other Board objectives) outweigh the 
materially adverse effect on competition.\7\
---------------------------------------------------------------------------

    \7\ Federal Reserve Regulatory Service, 7-145.2.
---------------------------------------------------------------------------

    The Board does not believe that the proposed amendments to 
Regulation J will have a direct and material adverse effect on the 
ability of other service providers to compete effectively with the 
Reserve Banks in providing similar services due to legal differences. 
The proposed rule incorporates UCC Article 4A, with revisions to 
reflect the nature of funds transfers over the FedNow Service and 
consistent with the purposes of UCC Article 4A. The proposed amendments 
do not govern similar services provided by private-sector providers. 
The proposed amendments also do not include provisions that a private-
sector provider of similar services could not also adopt to similar 
effect through rules or operating procedures. Therefore, the Board does 
not believe that the proposed amendments would affect the competitive 
position of private-sector providers vis-[agrave]-vis the Reserve 
Banks.

VI. Administrative Law Matters

A. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 
U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board 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 Board reviewed the proposed rule 
under the authority delegated to the Board by the OMB and determined 
that it contains no collections of information under the PRA.\8\ 
Accordingly, there is no paperwork burden associated with the proposed 
rule.
---------------------------------------------------------------------------

    \8\ See 44 U.S.C. 3502(3).
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (the ``RFA'') (5 U.S.C. 601 et seq.) 
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 has 
reviewed the proposed regulation. In this case, the proposed rule would 
apply to all depository institutions that choose to use the Reserve 
Bank's FedNow Service, but the Board does not believe it will have a 
significant economic impact on a substantial number of small entities. 
Nevertheless, this Initial Regulatory Flexibility Analysis has been 
prepared in accordance with 5 U.S.C. 603 in order for the Board to 
solicit comment on the effect of the proposal on small entities. The 
Board will, if necessary, conduct a final regulatory flexibility 
analysis after consideration of comments received during the public 
comment period.
1. Statement of the Need for, Objectives of, and Legal Basis for, the 
Proposed Rule
    While the Reserve Banks can prescribe by agreement terms and 
conditions in providing the FedNow Service, the Board believes it is 
appropriate to bring the FedNow Service within the coverage of 
Regulation J. As discussed in previous sections, the main objective of 
the proposed amendments to Regulation J is to establish a new subpart C 
to govern funds transfers made through the FedNow Service.
2. Small Entities Affected by the Proposed Rule
    The proposed amendments would apply to all depository institutions 
that choose to participate in the FedNow Service regardless of their 
size. Pursuant to regulations issued by the Small Business 
Administration (13 CFR 121.201), a ``small banking organization'' 
includes a depository institution with $550 million or less in total 
assets. Based on call report data, there are approximately 9,460 
depository institutions that have total domestic assets of $550 million 
or less and thus are considered small entities for purposes of the RFA.
3. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    Other than noted here, there are no new projected reporting, 
recordkeeping, or other compliance requirements and no substantive 
changes to existing reporting, recordkeeping or other compliance 
requirements in the proposed amendments to Regulation J. Depository 
institutions that voluntarily choose to use the FedNow Service will 
have to comply with the applicable provisions of this proposed rule, 
which include the requirement on the availability of funds.
4. Identification of Duplicative, Overlapping, or Conflicting Federal 
Rules
    The Board has not identified any likely duplication and/or 
potential conflict between the proposed regulatory amendments and any 
other Federal rule. While some overlap exists between the proposed 
amendments and EFAA (implemented in Regulation CC), as discussed above, 
the regulatory overlap does not create conflicting federal rules. 
Regulation CC's availability requirements apply to all electronic 
payments and establish the outer bound of when those funds must be made 
available. The proposed requirements in Regulation J regarding 
availability establish a shorter time period for when funds must be 
made available than is required under Regulation CC and applies only to 
the subset of electronic payments that use the FedNow Service as a term 
of the service.
5. Significant Alternatives to the Proposed Rule
    As discussed above, the Board has not identified any new or 
substantial change to regulatory burden associated with the proposed 
amendments to Regulation J, and the Board has not identified any 
significant alternatives that would otherwise reduce the regulatory 
burden on small entities.

C. Solicitation of Comments on Use of Plain Language

    Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 
Stat. 1338, 1471, 12 U.S.C. 4809) requires the Federal banking agencies 
to use plain language in all proposed and final rules published after 
January 1, 2000. The Board has sought to present the proposed rule in a 
simple and straightforward manner, and invites comment on the use of 
plain language and whether any part of the proposed rule could be more 
clearly stated.

List of Subjects in 12 CFR Part 210

    Banks, banking, Federal Reserve System.

    For the reasons set forth in the preamble, the Board proposes to 
amend 12 CFR part 210 as follows:

PART 210--COLLECTION OF CHECKS AND OTHER ITEMS BY FEDERAL RESERVE 
BANKS AND FUNDS TRANSFERS THROUGH THE FEDWIRE FUNDS SERVICE AND THE 
FEDNOW SERVICE (REGULATION J)

0
1. The authority citation for part 210 continues to read as follows:

    Authority:  12 U.S.C. 248(i), (j), and 248-1, 342, 360, 464, 
4001-4010, and 5001-5018.

0
2. Revise the heading to part 210 as shown above.
0
3. Revise Sec.  210.2 to read as follows:

[[Page 31383]]

Sec.  210.2   Definitions.

    As used in this subpart A, unless the context otherwise requires:
    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.
    Actually and finally collected funds means cash or any other form 
of payment that is, or has become, final and irrevocable.
    Administrative Reserve Bank with respect to an entity means the 
Reserve Bank in whose District the entity is located, as determined 
under the procedure described in Sec.  204.3(g) of this chapter 
(Regulation D), even if the entity is not otherwise subject to that 
section.
    Bank means any person engaged in the business of banking. A branch 
or separate office of a bank is a separate bank to the extent provided 
in the Uniform Commercial Code.
    Bank draft means a check drawn by one bank on another bank.
    Banking day means the part of a day on which a bank is open to the 
public for carrying on substantially all of its banking functions.
    Cash item means--
    (1) A check other than one classified as a noncash item under this 
section; or
    (2) Any other item payable on demand and collectible at par that 
the Reserve Bank that receives the item is willing to accept as a cash 
item. Cash item does not include a returned check.
    Check means a check or an electronic check, as those terms are 
defined in Sec.  229.2 of this chapter (Regulation CC).
    Clock hour and clock half-hour. (1) Clock hour means a time that is 
on the hour, such as 1:00, 2:00, etc.
    (2) Clock half-hour means a time that is on the half-hour, such as 
1:30, 2:30, etc.
    Fedwire Funds Service and Fedwire have the same meaning as that set 
forth in Sec.  210.26.
    Item. (1) Means--
    (i) An instrument or a promise or order to pay money, whether 
negotiable or not, that is--
    (A) Payable in a Federal Reserve District \1\ (District);
---------------------------------------------------------------------------

    \1\ For purposes of this subpart, the Virgin Islands and Puerto 
Rico are deemed to be in the Second District, and Guam, American 
Samoa, and the Northern Mariana Islands in the Twelfth District.
---------------------------------------------------------------------------

    (B) Sent by a sender to a Reserve Bank for handling under this 
subpart; and
    (C) Collectible in funds acceptable to the Reserve Bank of the 
District in which the instrument is payable; or
    (ii) A check.
    (2) Unless otherwise indicated, item includes both a cash and a 
noncash item, and includes a returned check sent by a paying or 
returning bank. Item does not include a check that cannot be collected 
at par, or a payment order as defined in Sec.  210.26(i) and handled 
under subpart B of this part. The term also does not include an 
electronically-created item as defined in Sec.  229.2 of this chapter 
(Regulation CC).
    Nonbank payor means a payor of an item, other than a bank.
    Noncash item means an item that a receiving Reserve Bank classifies 
in its operating circulars as requiring special handling. The term also 
means an item normally received as a cash item if a Reserve Bank 
decides that special conditions require that it handle the item as a 
noncash item.
    Paying bank means--
    (1) The bank by which an item is payable unless the item is payable 
or collectible at or through another bank and is sent to the other bank 
for payment or collection;
    (2) The bank at or through which an item is payable or collectible 
and to which it sent for payment or collection; or
    (3) The bank whose routing number appears on a check in the MICR 
line or in fractional form (or in the MICR-line information that 
accompanies an electronic item) and to which the check is sent for 
payment or collection.
    Returned check means a cash item returned by a paying bank, 
including an electronic returned check as defined in Sec.  229.2 of 
this chapter (Regulation CC) and a notice of nonpayment in lieu of a 
returned check, whether or not a Reserve Bank handled the check for 
collection.
    Sender means any of the following entities that sends an item to a 
Reserve Bank for forward collection--
    (1) A depository institution, as defined in section 19(b) of the 
Federal Reserve Act (12 U.S.C. 461(b));
    (2) A member bank, as defined in section 1 of the Federal Reserve 
Act (12 U.S.C. 221);
    (3) A clearing institution, defined as--
    (i) An institution that is not a depository institution but that 
maintains with a Reserve Bank the balance referred to in the first 
paragraph of section 13 of the Federal Reserve Act (12 U.S.C. 342); or
    (ii) An Edge corporation or agreement corporation that maintains an 
account with a Reserve Bank in conformity with Part 211 of this chapter 
(Regulation K);
    (4) Another Reserve Bank;
    (5) An international organization for which a Reserve Bank is 
empowered to act as depositary or fiscal agent and maintains an 
account;
    (6) A foreign correspondent, defined as any of the following 
entities for which a Reserve Bank maintains an account: A foreign bank 
or banker, a foreign state as defined in section 25(b) of the Federal 
Reserve Act (12 U.S.C. 632), or a foreign correspondent or agency 
referred to in section 14(e) of that act (12 U.S.C. 358); or
    (7) A branch or agency of a foreign bank maintaining reserves under 
section 7 of the International Banking Act of 1978 (12 U.S.C. 347d, 
3105).
    State means a State of the United States, the District of Columbia, 
Puerto Rico, or a territory, possession, or dependency of the United 
States.
    Uniform Commercial Code and U.C.C. mean the Uniform Commercial Code 
as adopted in a state
    Terms not defined in this section. Unless the context otherwise 
requires--
    (1) The terms not defined herein have the meanings set forth in 
Sec.  229.2 of this chapter applicable to subpart C or D of part 229 of 
this chapter (Regulation CC), as appropriate; and
    (2) The terms not defined herein or in Sec.  229.2 of this chapter 
have the meanings set forth in the Uniform Commercial Code.
0
4. Amend subpart B of part 210 by:
0
a. Revising the heading to subpart B of part 210 to read as follows:

Subpart B--Funds Transfers Through the Fedwire Funds Service

0
b. Removing the words ``Appendix B of this subpart'' and ``Appendix B 
to this subpart'' and replace with the words ``Appendix A of this part 
210'' wherever they appear.
0
5. In Sec.  210.25, revise paragraphs (b)(2) and (c) to read as 
follows:


Sec.  210.25   Authority, purpose, and scope.

* * * * *
    (b) * * *
    (2) Except as otherwise provided in paragraphs (b)(3) and (4) of 
this section, this subpart, including Article 4A as set forth in 
appendix A of this part and operating circulars of the Federal Reserve 
Banks issued in accordance with paragraph (c) of this section, governs 
the rights and obligations of the following parties with respect to the 
Fedwire Funds Service:
    (i) Federal Reserve Banks that send or receive payment orders;
    (ii) Senders that send payment orders directly to a Federal Reserve 
Bank;
    (iii) Receiving banks that receive payment orders directly from a 
Federal Reserve Bank;
    (iv) Beneficiaries that receive payment for payment orders by means 
of credit to an account maintained or used at a Federal Reserve Bank; 
and
    (v) Other parties to a funds transfer any part of which is carried 
out through

[[Page 31384]]

the Fedwire Funds Service to the same extent as if this subpart were 
considered a funds-transfer system rule under Article 4A.
* * * * *
    (c) Operating Circulars. Each Federal Reserve Bank shall issue an 
Operating Circular consistent with this subpart that governs the 
details of its funds-transfer operations in connection with the Fedwire 
Funds Service and other matters it deems appropriate. Among other 
things, the Operating Circular may set cut-off times and funds-transfer 
business days; address security procedures offered by the Federal 
Reserve Banks to verify the authenticity of a payment order; specify 
format and media requirements for payment orders; specify the time and 
method of receipt, execution, and acceptance of a payment order and 
settlement of a Federal Reserve Bank's payment obligation for purposes 
of Article 4A; specify service terms governing ancillary features of 
the Fedwire Funds Service; provide for the acceptance of documents in 
electronic form to the extent any provision in Article 4A requires an 
agreement or other document to be in writing; identify messages that 
are not payment orders; and impose charges for funds-transfer services.
* * * * *
0
6. Revise Sec.  210.26 to read as follows:


Sec.  210.26   Definitions.

    As used in this subpart, the following definitions apply:
    Article 4A means Article 4A of the Uniform Commercial Code as set 
forth in appendix A of this part, which is incorporated into this 
subpart in accordance with Sec.  210.25(b).
    Automated clearing house transfer means any transfer designated as 
an automated clearing house transfer in an operating circular issued by 
the Federal Reserve Banks.
    Beneficiary has the same meaning as in Article 4A except that the 
term is limited to a beneficiary in a funds transfer any portion of 
which is sent through the Fedwire Funds Service.
    Beneficiary's bank has the same meaning as in Article 4A, except 
that:
    (1) The term is limited to a beneficiary's bank in a funds transfer 
any portion of which is sent through the Fedwire Funds Service;
    (2) A Federal Reserve Bank need not be identified in the payment 
order in order to be the beneficiary's bank; and
    (3) The term includes a Federal Reserve Bank when that Federal 
Reserve Bank is the beneficiary of a payment order.
    Fedwire Funds Service means the funds-transfer system owned and 
operated by the Federal Reserve Banks that is used primarily for the 
transmission and settlement of payment orders governed by this subpart. 
The Fedwire Funds Service does not include the FedNow Service or the 
system for making automated clearing house transfers.
    Interdistrict transfer means a funds transfer involving entries to 
accounts maintained at two Federal Reserve Banks.
    Intradistrict transfer means a funds transfer involving entries to 
accounts maintained at one Federal Reserve Bank.
    Off-line bank means a bank that sends payment orders to and 
receives payment orders from a Federal Reserve Bank by telephone orally 
or by other means other than electronic data transmission.
    Payment order has the same meaning as in Article 4A except that the 
term includes only instructions sent or received through the Fedwire 
Funds Service and does not include automated clearing house transfers 
or any communication designated in an operating circular issued by a 
Federal Reserve Bank under this subpart as not being a payment order.
    Receiving bank has the same meaning as in Article 4A except that 
the term is limited to a receiving bank in a funds transfer any portion 
of which is sent through the Fedwire Funds Service.
    Sender has the same meaning as in Article 4A except that the term 
is limited to a sender in a funds transfer any portion of which is sent 
through the Fedwire Funds Service.
    Sender's account, receiving bank's account, and beneficiary's 
account mean the reserve, clearing, or other funds deposit account at a 
Federal Reserve Bank maintained or used by the sender, receiving bank, 
or beneficiary, respectively.
    Sender's Federal Reserve Bank and receiving bank's Federal Reserve 
Bank mean the Federal Reserve Bank at which the sender or receiving 
bank, respectively, maintains or uses an account.
0
7. In Sec.  210.28, revise paragraphs (b)(1) through (3) to read as 
follows:


Sec.  210.28   Agreement of sender.

* * * * *
    (b) Overdrafts. (1) A sender does not have the right to an 
overdraft in the sender's account. In the event an overdraft is 
created, the overdraft shall be due and payable immediately, without 
the need for a demand by the Federal Reserve Bank, at the earliest of 
the following times:
    (i) At the end of the Fedwire Funds Service funds-transfer business 
day;
    (ii) At the time the Federal Reserve Bank, in its sole discretion, 
deems itself insecure and gives notice thereof to the sender; or
    (iii) At the time the sender suspends payments or is closed.
    (2) The sender shall have in its account, at the time the overdraft 
is due and payable, a balance of actually and finally collected funds 
sufficient to cover the aggregate amount of all its obligations to the 
Federal Reserve Bank, whether the obligations result from the execution 
of a payment order or otherwise.
    (3) To secure any overdraft, as well as any other obligation due or 
to become due to its Federal Reserve Bank, each sender, by sending a 
payment order to a Federal Reserve Bank that is accepted by the Federal 
Reserve Bank, grants to the Federal Reserve Bank a security interest in 
all of the sender's assets in the possession or control of, or held for 
the account of, the Federal Reserve Bank. The security interest 
attaches when an overdraft, or any other obligation to the Federal 
Reserve Bank, becomes due and payable.
* * * * *
0
8. In Sec.  210.30, revise paragraphs (b) and (c) to read as follows:


Sec.  210.30   Payment orders.

* * * * *
    (b) Selection of an intermediary bank. For an interdistrict 
transfer through the Fedwire Funds Service, a Federal Reserve Bank is 
authorized and directed to execute a payment order through another 
Federal Reserve Bank. A sender shall not send a payment order to a 
Federal Reserve Bank that requires the Federal Reserve Bank to send a 
payment order to an intermediary bank (other than a Federal Reserve 
Bank) unless that intermediary bank is designated in the sender's 
payment order. A sender shall not send to a Federal Reserve Bank a 
payment order through the Fedwire Funds Service that instructs use by a 
Federal Reserve Bank of a funds-transfer system or means of 
transmission other than the Fedwire Funds Service unless the Federal 
Reserve Bank agrees with the sender in writing to follow such 
instructions.
    (c) Execution date and payment date. A sender shall not send a 
payment order through the Fedwire Funds Service that instructs a 
Federal Reserve Bank to execute the payment order or to pay the 
beneficiary on a funds-transfer business day that is later than the 
Fedwire Funds Service funds-transfer business day on which the order is 
received by the Federal Reserve Bank, unless the Federal Reserve Bank 
agrees with the

[[Page 31385]]

sender in writing to follow such instructions.
0
9. In Sec.  210.32, revise the section heading and paragraph (b) to 
read as follows:


Sec.  210.32   Federal Reserve Bank liability; payment of compensation.

* * * * *
    (b) Payment of compensation. (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 such 
compensation in the form of interest to a sender, receiving bank, 
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 the 
payment of compensation is not the party entitled to compensation under 
Article 4A, the sender or receiving bank shall pass through the benefit 
of the compensation by making an interest payment, as of the day the 
compensation was paid by the Federal Reserve Bank, 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 
compensation that was paid 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 of subpart B of part 210:
0
a. Under ``Section 210.25--Authority, Purpose, and Scope,'' revise 
paragraphs (a), (b)(1) through (6), and (c);
0
b. Revise ``Section 210.26--Definitions;''
0
c. Under ``Section 210.28--Agreement of Sender,'' revise paragraphs 
(a), (b)(1) and (2), and (c)(2);
0
d. Under ``Section 210.30--Payment Orders,'' revise paragraphs (b)(2) 
and (c); and
0
e. Under ``Section 210.32--Federal Reserve Bank Liability; Payment of 
Compensation,'' revise the heading and paragraphs (a)(2), (b)(1) 
through (3), and (c).
    The revisions read as follows:

Appendix A of Subpart B of Part 210--Commentary

* * * * *

Section 210.25--Authority, Purpose, and Scope

    (a) Authority and purpose. Section 210.25(a) states that the 
purpose of subpart B of this part is to provide rules to govern 
funds transfers through the Fedwire Funds Service and recites the 
Board's rulemaking authority for this subpart. Subpart B of this 
part is federal law and is not a ``funds-transfer system rule'' as 
defined in section 4A-501(b) of Article 4A, Funds Transfers, of the 
Uniform Commercial Code (UCC), as set forth in appendix A of this 
part. Certain provisions of Article 4A may not be varied by a funds-
transfer system rule, but under section 4A-107, regulations of the 
Board and operating circulars of the Federal Reserve Banks supersede 
inconsistent provisions of Article 4A to the extent of the 
inconsistency. In addition, regulations of the Board may preempt 
inconsistent provisions of state law. Accordingly, subpart B of this 
part supersedes or preempts inconsistent provisions of state law. It 
does not affect state law governing funds transfers that does not 
conflict with the provisions of subpart B of this part, such as 
Article 4A as enacted in any state, as such state law may apply to 
parties to funds transfers through the Fedwire Funds Service whose 
rights and obligations are not governed by subpart B of this part.
    (b) Scope. (1) Subpart B of this part incorporates the 
provisions of Article 4A set forth in appendix A 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 A 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 as set 
forth in appendix A of this part. 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, which is now also known as the Uniform Law Commission, 
and the American Law Institute, from time to time, are also 
incorporated into subpart B of this part. Subpart B of this part 
applies to any party to a funds transfer over the Fedwire Funds 
Service 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 as payment for a payment order 
accepted by a Federal Reserve Bank. Other parties to a funds 
transfer over the Fedwire Funds Service are covered by subpart B of 
this part to the same extent subpart B would apply to them if 
subpart B 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 of a fact 
when the person has actual knowledge of it, receives a notice or 
notification of it, or has reason to know that it exists from all 
the facts and circumstances known to the person at the time in 
question. (See UCC section 1-202.) 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 payment order may be sent from an originator's bank through a 
funds-transfer system other than the Fedwire Funds Service to a 
receiving bank which, in turn, executes that payment order by 
sending a payment order through the Fedwire Funds Service. 
Similarly, a Federal Reserve Bank may send a payment order through 
the Fedwire Funds Service to a receiving bank that sends it through 
a funds-transfer system other than the Fedwire Funds Service to the 
beneficiary's bank. In the first example, if the originator's bank 
has notice that the Fedwire Funds Service 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 the Fedwire Funds Service 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 being made through that funds transfer system. Because 
subpart B of this part is federal law, 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 to 
the extent of any inconsistency. If remote parties to a funds 
transfer, a portion of which is sent through the Fedwire Funds 
Service, have expressly selected by agreement, in accordance with 
section 4A-507(b), a law other than subpart B of this part, 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 the 
Fedwire Funds Service might be used and of the governing law. (See 
section 4A-507(d).) In

[[Page 31386]]

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 the Fedwire Funds Service.
    (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 1005). A funds transfer from a 
consumer originator or a funds transfer to a consumer beneficiary 
could be carried out in part through the Fedwire Funds Service 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 Sec.  210.26 in this 
appendix, ``Payment Order''.)
    (5) Section 919 of the EFTA, however, governs ``remittance 
transfers,'' which may include funds transfers over the Fedwire 
Funds Service. 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 of this part, except 
that, in the event of an inconsistency between the provisions of 
subpart B of this part 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 Federal 
Reserve Bank through the Fedwire Funds Service. If the consumer 
subsequently exercised the right to cancel the remittance transfer 
and obtain a refund under the terms of section 919 of the EFTA, 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 Federal Reserve Bank under subpart B of this part.
    (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 business 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 part 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 
210.25(b)(4) 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.
    (c) Operating Circulars. The Federal Reserve Banks issue 
Operating Circulars consistent with this subpart that contain 
additional provisions applicable to payment orders and other 
messages sent through the Fedwire Funds Service. Under section 4A-
107, these Operating Circulars supersede inconsistent provisions of 
Article 4A, both as set forth in appendix A of this part and as 
enacted in any state. These Operating Circulars are not funds-
transfer system rules, but, by their terms, they are binding on all 
parties covered by this subpart.
* * * * *

Section 210.26--Definitions

    Article 4A defines many terms (e.g., beneficiary, intermediary 
bank, receiving bank, security procedure) used in subpart B of this 
part. These terms are defined or listed in sections 4A-103 through 
4A-105. These terms, such as the term bank (defined in section 4A-
105(d)(2)), may differ from comparable terms in subpart A and 
subpart C of this part. As subpart B of this part incorporates 
consistent provisions of Article 4A, it incorporates these 
definitions unless these terms are expressly defined otherwise in 
subpart B of this part. Subpart B modifies the definitions of five 
Article 4A terms, beneficiary, beneficiary's bank, payment order, 
receiving bank, and sender. Subpart B also defines terms not defined 
in Article 4A.
    Article 4A. Article 4A means the version of that article of the 
Uniform Commercial Code set forth in appendix A of this part. It 
does not refer to the law of any particular state unless the context 
indicates otherwise. Subject to the express provisions of this 
subpart, this version of Article 4A is incorporated into this 
subpart and made federal law for transactions covered by subpart B 
of this part. (See Sec.  210.25(b)(1) and accompanying commentary.) 
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, which is now also known as 
the Uniform Law Commission, and the American Law Institute, from 
time to time, are also incorporated into subpart B of this part.
    Beneficiary, beneficiary's bank, receiving bank, and sender. The 
definitions of ``beneficiary,'' ``beneficiary's bank,'' ``receiving 
bank,'' and ``sender'' in subpart B of this part differ from the 
definitions in sections 4A-103(a)(2) through (4). The subpart B 
definitions clarify that, for the purposes of subpart B of this 
part, these terms are limited to parties in a funds transfer that is 
sent through the Fedwire Funds Service. For example, the parties to 
a funds transfer that is sent through the FedNow Service would be 
governed by subpart C of this part, and would not be a 
``beneficiary,'' ``beneficiary's bank,'' ``receiving bank,'' or 
``sender'' governed by subpart B of this part. The subpart B 
definition of ``beneficiary's bank'' further clarifies that where a 
Federal Reserve Bank functions as the beneficiary's bank, it need 
not be identified in the payment order as the beneficiary's bank and 
that a Federal Reserve Bank that receives a payment order as 
beneficiary is also the beneficiary's bank with respect to that 
payment order.
    Fedwire Funds Service. This term refers to the funds-transfer 
system owned and operated by the Federal Reserve Banks that is 
governed by this subpart. The term does not refer to any particular 
computer, telecommunications facility, or funds transfer, but rather 
to the system as a whole, which may include transfers by telephone 
or by written instrument in particular circumstances. The term does 
not include the FedNow Service or the system used for automated 
clearing house transfers.
    Off-line bank. Most Fedwire payment orders are sent 
electronically from a sender to a Federal Reserve Bank or from a 
Federal Reserve Bank to a receiving bank. Banks that send payment 
orders to Federal Reserve Banks electronically are often referred to 
as on-line banks. Some Fedwire Funds Service participants, however, 
send payment orders to a Federal Reserve Bank or receive payment 
orders from a Federal Reserve Bank orally by telephone or, in 
unusual circumstances, in writing. A bank that does not use either a 
terminal or a computer that links it electronically to a terminal or 
computer at its Federal Reserve Bank to send payment orders through 
the Fedwire Funds Service is an off-line bank.
    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, the term includes only 
instructions transmitted through the Fedwire Funds Service. For 
example, instructions transmitted through the FedNow Service would 
be governed by subpart C of this part, and not subpart B of this 
part. Additionally, the subpart B definition provides that certain 
messages that are transmitted through the Fedwire Funds Service are 
not payment orders. Federal Reserve Banks and banks participating in 
the Fedwire Funds Service send various types of messages relating to 
payment orders or to other matters, through the Fedwire Funds 
Service, that are not intended to be payment orders. In some cases, 
messages sent through the Fedwire Funds Service, such as certain 
requests for credit transfer, may be payment orders under Article 
4A, but are not treated as payment orders under subpart B of this 
part because they are not an instruction to a Federal Reserve Bank 
to pay or cause another bank to pay money. Under the subpart B 
definition, these messages are not ``payment

[[Page 31387]]

orders'' governed by subpart B of this part. The operating circulars 
of the Federal Reserve Banks may specify those messages that may be 
transmitted through the Fedwire Funds Service but that are not 
payment orders.
    (2) Subpart B of this part, including its incorporation of 
Article 4A, governs 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 1005) implementing it do not apply to 
funds transfers through the Fedwire Funds Service (see 15 U.S.C. 
1693a(7)(B) and 12 CFR 1005.3(c)(3)), 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 subpart B of 
this part. Thus, subpart B of this part applies to all funds 
transfers through the Fedwire Funds Service even though some such 
transfers involve originators or beneficiaries who are consumers. 
(See also Sec.  210.25(b) and accompanying commentary.)
* * * * *

Section 210.28--Agreement of Sender

    (a) Payment of sender's obligation to a Federal Reserve Bank. 
When a sender sends a payment order to a Federal Reserve Bank and 
the Federal Reserve Bank accepts the payment order by issuing a 
conforming order executing the sender's payment order, under section 
4A-402 the sender is indebted to the Federal Reserve Bank for the 
amount of the payment order. Section 4A-403 specifies the various 
methods by which a sender may settle the obligation under section 
4A-402. With respect to a payment order sent through the Fedwire 
Funds Service, the obligation of a sender (other than a Federal 
Reserve Bank) is settled by a debit to the account of the sender at 
a Federal Reserve Bank. Section 210.28(a) provides that a sender, 
other than a Federal Reserve Bank, that maintains or uses an account 
at a Federal Reserve Bank authorizes the Federal Reserve Bank to 
debit that account so that the Federal Reserve Bank can obtain 
payment for the payment order.
    (b) Overdrafts. (1) In some cases, debits to a sender's account 
will create an overdraft in the sender's account. The Board and the 
Federal Reserve Banks have established policies concerning when a 
Federal Reserve Bank will permit a bank to incur an overdraft in its 
account at a Federal Reserve Bank. These policies do not give a bank 
or other sender a right to an overdraft in its account. Subpart B 
clarifies that a sender does not have a right to such an overdraft. 
If an overdraft arises, it becomes immediately due and payable at 
the earliest of the following times: The end of the Fedwire Funds 
Service funds-transfer business day; the time the Federal Reserve 
Bank, in its sole discretion, deems itself insecure and gives notice 
to the sender; or the time that the sender suspends payments or is 
closed by governmental action, such as the appointment of a 
receiver. In some cases, a Federal Reserve Bank extends its Fedwire 
Funds Service operations beyond the standard cut-off time for that 
funds-transfer business day. For the purposes of this section, 
unless otherwise specified by the Federal Reserve Bank making such 
an extension, an overdraft becomes due and payable at the end of the 
extended operating hours. An overdraft becomes due and payable prior 
to a Federal Reserve Bank's cut-off time if the Federal Reserve Bank 
deems itself insecure and gives notice to the sender. A Federal 
Reserve Bank that deems itself insecure may give such notice in 
accordance with the provisions on notice in section 1-202(d) of the 
UCC, in accordance with any other applicable law or agreement, or by 
any other reasonable means. An overdraft also becomes due and 
payable at the time that a bank is closed or suspends payments. For 
example, an overdraft becomes due and payable if a receiver is 
appointed for the bank or the bank is prevented from making payments 
by governmental order. The Federal Reserve Bank need not make demand 
on the sender for the overdraft to become due and payable.
    (2) A sender must cover any overdraft and any other obligation 
of the sender to the Federal Reserve Bank by the time the overdraft 
becomes due and payable. By sending a payment order to a Federal 
Reserve Bank, the sender grants a security interest to the Federal 
Reserve Bank in all of the assets of the sender possessed or 
controlled by, or held for the account of, the Federal Reserve Bank 
in order to secure all obligations due or to become due to the 
Federal Reserve Bank. The security interest attaches when the 
overdraft, or other obligation of the sender to the Federal Reserve 
Bank, becomes due and payable. The security interest does not apply 
to assets held by the sender as custodian or trustee for the 
sender's customers or third parties. Once an overdraft is due and 
payable, a Federal Reserve Bank may exercise its right of setoff, 
liquidate collateral, or take other similar action to satisfy the 
obligation the sender owes to the Federal Reserve Bank.
* * * * *
    (c) * * *
    (2) Section 4A-505 provides that, in order for a customer to 
assert a claim objecting to a debit to its account by a receiving 
bank, the customer must notify the receiving bank of its objection 
within one year after the customer received notification reasonably 
identifying the payment order. Subpart B of this part does not vary 
this one-year claim preclusion period.
* * * * *

Section 210.30--Payment Orders

* * * * *
    (b) * * *
    (2) This section provides that in an interdistrict transfer, a 
Federal Reserve Bank is authorized and directed to select another 
Federal Reserve Bank as an intermediary bank. A sender may, however, 
instruct a Federal Reserve Bank to use a particular intermediary 
bank by designating that bank as the bank to be credited by that 
Federal Reserve Bank (or the second Federal Reserve Bank in the case 
of an interdistrict transfer) in its payment order, in which case 
the Federal Reserve Bank will send the payment order to that bank if 
that bank receives payment orders through the Fedwire Funds Service. 
A sender may not instruct a Federal Reserve Bank to use its 
discretion to select an intermediary bank other than a Federal 
Reserve Bank or an intermediary bank designated by the sender. In 
addition, a sender may not send a payment order through the Fedwire 
Funds Service that instructs a Federal Reserve Bank to use a funds-
transfer system or means of transmission other than the Fedwire 
Funds Service unless the sender and the Federal Reserve Bank agree 
in writing to the use of that funds-transfer system or means of 
transmission.
    (c) Execution date and payment date. Generally, the Fedwire 
Funds Service is a same-day value transfer system through which 
funds may be transferred from the originator to the beneficiary on 
the same funds-transfer business day. A sender may not send a 
payment order to a Federal Reserve Bank that specifies an execution 
date or payment date later than the day on which the payment order 
is issued, unless the sender of the order and the Federal Reserve 
Bank agree in writing to the arrangement.
* * * * *

Section 210.32--Federal Reserve Bank Liability; Payment of 
Compensation

    (a) * * *
    (2) This section does not affect the ability of other parties to 
a funds transfer to agree to be liable for consequential damages, 
the liability of a Federal Reserve Bank under section 4A-404 
(relating to obligation of beneficiary's bank to pay and give notice 
to beneficiary), or the liability to parties governed by subpart B 
of this part for claims not based on the handling of a payment order 
under subpart B of this part.
    (b) Payment of compensation. (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).
    (2) Section 210.32(b) requires Federal Reserve Banks to provide 
compensation through payment in the form of interest. 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. 
Similarly, compensation in the form of interest will be paid to 
government

[[Page 31388]]

senders, receiving banks, or beneficiaries described in Sec.  
210.25(d) if they are entitled to interest under subpart B of this 
part. A Federal Reserve Bank may also, in its discretion, pay 
compensation in the form of interest directly to a remote party to a 
Fedwire funds transfer that is entitled to interest, rather than 
providing compensation to its sender or receiving bank.
    (3) If a sender or receiving bank that received a payment of 
compensation is not the party entitled to compensation under Article 
4A, the sender or receiving bank must pass the benefit of the 
payment made to it to the party that is entitled to compensation. 
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. In the latter case, the value of the compensating 
balance must be at least equivalent to the value of the interest 
payment that otherwise would have been provided.
    (c) Nonwaiver of right of recovery. Several sections of Article 
4A allow a party to a funds transfer to make a claim pursuant to the 
applicable law of mistake and restitution. Nothing in subpart B of 
this part or any operating circular issued in accordance with 
subpart B of this part waives any such claim by a Federal Reserve 
Bank. A Federal Reserve Bank, however, may waive such a claim by 
express written agreement in order to settle litigation or for other 
purposes.

Appendix B to Subpart B of Part 210--Article 4A, Funds Transfers 
[Removed]

0
11. Remove Appendix B of subpart B of part 210.
0
12. Add subpart C of part 210 to read as follows:
Subpart C--Funds Transfers Through the FedNow Service
Sec.
210.40 Authority, purpose, and scope.
210.41 Definitions.
210.42 Reliance on identifying number.
210.43 Agreement of sender.
210.44 Agreement of receiving bank.
210.45 Payment orders.
210.46 Payment by a Federal Reserve Bank to a receiving bank or 
beneficiary.
210.47 Federal Reserve Bank liability; payment of compensation.

Appendix A of Subpart C of Part 210--Commentary

Subpart C--Funds Transfers Through the FedNow Service


Sec.  210.40   Authority, purpose, and scope.

    (a) Authority and purpose. This subpart provides rules to govern 
funds transfers through the FedNow Service, and has been issued 
pursuant to the Federal Reserve Act--section 13 (12 U.S.C. 342), 
paragraph (f) of section 19 (12 U.S.C. 464), paragraph 14 of section 16 
(12 U.S.C. 248(o)), and paragraphs (i) and (j) of section 11 (12 U.S.C. 
248(i) and (j))--and other laws and has the force and effect of federal 
law. This subpart is not a funds-transfer system rule as defined in 
Section 4A-501(b) of Article 4A.
    (b) Scope. (1) This subpart incorporates the provisions of Article 
4A set forth in appendix A of this part. In the event of an 
inconsistency between the provisions of the sections of this subpart 
and appendix A of this part, the provisions of the sections of this 
subpart shall prevail.
    (2) Except as otherwise provided in paragraphs (b)(3) and (4) of 
this section, this subpart, including Article 4A as incorporated herein 
and operating circulars of the Federal Reserve Banks issued in 
accordance with paragraph (c) of this section, governs the rights and 
obligations of the following parties with respect to the FedNow 
Service:
    (i) Federal Reserve Banks that send or receive payment orders;
    (ii) Senders that send payment orders directly to a Federal Reserve 
Bank;
    (iii) Receiving banks that receive payment orders directly from a 
Federal Reserve Bank;
    (iv) Beneficiaries that receive payment for payment orders by means 
of credit to the beneficiary's settlement account; and
    (v) Other parties to a funds transfer any part of which is carried 
out through the FedNow Service to the same extent as if this subpart 
were considered a funds-transfer system rule under Article 4A.
    (3) A Federal Reserve Bank that is not the sender's Federal Reserve 
Bank, receiving bank's Federal Reserve Bank, or beneficiary's Federal 
Reserve Bank is not a party to the funds transfer for purposes of this 
subpart and Article 4A.
    (4) This subpart governs a funds transfer that is sent through the 
FedNow Service, even if a portion of the funds transfer is governed by 
the Electronic Fund Transfer Act, but in the event of an inconsistency 
between the provisions this subpart and the Electronic Fund Transfer 
Act, the Electronic Fund Transfer Act shall prevail to the extent of 
the inconsistency.
    (c) Operating Circulars. Each Federal Reserve Bank shall issue an 
Operating Circular consistent with this subpart that governs the 
details of its funds-transfer operations in connection with the FedNow 
Service and other matters it deems appropriate. Among other things, the 
Operating Circular may: Set cut-off times and funds-transfer business 
days; address security procedures offered by the Federal Reserve Banks 
to verify the authenticity of a payment order; specify format and media 
requirements for payment orders; specify the time and method of 
receipt, execution, and acceptance of a payment order and settlement of 
a Federal Reserve Bank's payment obligation for purposes of Article 4A; 
prescribe time limits for the processing of payment orders; specify 
service terms governing ancillary features of the FedNow Service; 
provide for the acceptance of documents in electronic form to the 
extent any provision in Article 4A requires an agreement or other 
document to be in writing; identify messages that are not payment 
orders; and impose charges for funds-transfer services.
    (d) Government senders, receiving banks, and beneficiaries. Except 
as otherwise expressly provided by the statutes of the United States, 
the parties specified in paragraphs (b)(2)(ii) through (v) of this 
section include a department, agency, instrumentality, independent 
establishment, or office of the United States, or a wholly-owned or 
controlled government corporation.
    (e) Financial messaging standards. Financial messaging standards 
(e.g., ISO 20022), including the financial messaging components, 
elements, technical documentation, tags, and terminology used to 
implement those standards, do not confer or connote legal status or 
responsibilities. This subpart, including Article 4A as incorporated 
herein, and the operating circulars of the Federal Reserve Banks issued 
in accordance with paragraph (c) of this section govern the rights and 
obligations of parties to funds transfers sent through the FedNow 
Service as provided in paragraph (b) of this section. To the extent 
there is any inconsistency between a financial messaging standard 
adopted by the Federal Reserve Banks for the FedNow Service and this 
subpart, this subpart shall prevail.


Sec.  210.41   Definitions.

    As used in this subpart, the following definitions apply:
    Article 4A means Article 4A of the Uniform Commercial Code as set 
forth in appendix A of this part, which is incorporated into this 
subpart in accordance with Sec.  210.40(b).
    Beneficiary has the same meaning as in Article 4A, except that the 
term is limited to a beneficiary in a funds transfer that is sent 
through the FedNow Service.
    Beneficiary's bank has the same meaning as in Article 4A, except 
that:
    (1) The term is limited to a beneficiary's bank in a funds transfer 
that is sent through the FedNow Service;
    (2) A Federal Reserve Bank need not be identified in the payment 
order in order to be the beneficiary's bank; and

[[Page 31389]]

    (3) The term includes a Federal Reserve Bank when that Federal 
Reserve Bank is the beneficiary of a payment order.
    Federal Reserve Bank with respect to an entity means the Federal 
Reserve Bank in whose District the entity is located, as determined 
under the procedure described in Part 204 of this chapter (Regulation 
D), even if the entity is not otherwise subject to that section, or, if 
the entity maintains an account on the books of a different Federal 
Reserve Bank, the Federal Reserve Bank at which the entity maintains an 
account.
    The FedNow Service means the funds-transfer system owned and 
operated by the Federal Reserve Banks to support instant payments that 
is used primarily for the transmission and settlement of payment orders 
governed by this subpart. The FedNow Service does not include the 
Fedwire Funds Service.
    Interdistrict transfer means a funds transfer involving entries to 
settlement accounts maintained at two Federal Reserve Banks.
    Payment order has the same meaning as in Article 4A, except that 
the term includes only instructions sent or received through the FedNow 
Service, and does not include automated clearing house transfers or any 
communication designated as not being a payment order in an Operating 
Circular issued by a Federal Reserve Bank under this subpart.
    Receiving bank has the same meaning as in Article 4A, except that 
the term is limited to a receiving bank in a funds transfer that is 
sent through the FedNow Service.
    Sender has the same meaning as in Article 4A, except that the term 
is limited to a sender in a funds transfer that is sent through the 
FedNow Service.
    Sender's settlement account, receiving bank's settlement account, 
and beneficiary's settlement account mean an account on the books of a 
Federal Reserve Bank maintained by the sender, receiving bank, or 
beneficiary, respectively. The term also includes any account on a 
Federal Reserve Bank's books used with respect to the FedNow Service by 
the sender, receiving bank, or beneficiary, respectively, by agreement 
with its Federal Reserve Bank, any other Federal Reserve Bank on whose 
books the settlement account is maintained, and the account-holder.


Sec.  210.42   Reliance on identifying number.

    (a) Reliance by a Federal Reserve Bank on number to identify a 
beneficiary's bank. A Federal Reserve Bank that receives a payment 
order from a sender containing a number that identifies the 
beneficiary's bank may rely on the number, even if it identifies a bank 
different from the bank identified by name in the payment order, if the 
Federal Reserve Bank does not know of such an inconsistency in 
identification. A Federal Reserve Bank has no duty to detect any such 
inconsistency in identification.
    (b) Reliance by a Federal Reserve Bank on number to identify 
beneficiary. A Federal Reserve Bank, acting as a beneficiary's bank, 
that receives a payment order from a sender containing a number that 
identifies the beneficiary may rely on the number, even if it 
identifies a person different from the person identified by name in the 
payment order, if the Federal Reserve Bank does not know of such an 
inconsistency in identification. A Federal Reserve Bank has no duty to 
detect any such inconsistency in identification.


Sec.  210.43   Agreement of sender.

    (a) Payment of sender's obligation to a Federal Reserve Bank. A 
sender (other than a Federal Reserve Bank), by maintaining or using a 
settlement account with a Federal Reserve Bank, authorizes the sender's 
Federal Reserve Bank to obtain payment for the sender's payment orders 
by debiting, or causing any other Federal Reserve Bank on whose books 
the settlement account is maintained to debit, the amount of the 
payment order from the settlement account. The sender remains 
responsible for payment if the Federal Reserve Bank on whose books the 
settlement account is maintained does not, for any reason, obtain 
payment by debiting that account.
    (b) Overdrafts. (1) A sender does not have the right to an 
overdraft in its settlement account. In the event an overdraft is 
created, the overdraft shall be due and payable immediately, without 
the need for a demand by the Federal Reserve Bank, at the earliest of 
the following times:
    (i) At the end of the FedNow funds-transfer business day;
    (ii) At the time the Federal Reserve Bank, in its sole discretion, 
deems itself insecure and gives notice thereof to the sender; or
    (iii) At the time the sender suspends payments or is closed.
    (2) The sender shall have in its settlement account, at the time 
the overdraft is due and payable, a balance of actually and finally 
collected funds sufficient to cover the aggregate amount of all its 
obligations to the Federal Reserve Bank, whether the obligations result 
from the acceptance of a payment order or otherwise.
    (3) To secure any overdraft, as well as any other obligation due or 
to become due to its Federal Reserve Bank, a sender, by sending a 
payment order to a Federal Reserve Bank that is accepted by the Federal 
Reserve Bank, grants to the Federal Reserve Bank a security interest in 
all of its assets in the possession or control of, or held for the 
account of, the Federal Reserve Bank. The security interest attaches 
when an overdraft, or any other obligation to the Federal Reserve Bank, 
becomes due and payable.
    (4) A Federal Reserve Bank may take any action authorized by law to 
recover the amount of an overdraft that is due and payable, including, 
but not limited to, the exercise of rights of set off, the realization 
on any available collateral, and any other rights it may have as a 
creditor under applicable law.
    (5) If a sender, other than a government sender described in Sec.  
210.40(d), incurs an overdraft in its settlement account as a result of 
a debit to the account by a Federal Reserve Bank under paragraph (a) of 
this section, the settlement account will be subject to any applicable 
overdraft charges, regardless of whether the overdraft has become due 
and payable. A Federal Reserve Bank may debit the settlement account 
under paragraph (a) of this section immediately on acceptance of the 
payment order.
    (c) Review of payment orders. A sender, by sending a payment order 
to a Federal Reserve Bank, agrees that for the purposes of sections 4A-
204(a) and 4A-304 of Article 4A, a reasonable time to notify a Federal 
Reserve Bank of the relevant facts concerning an unauthorized or 
erroneously executed payment order is within 60 calendar days after the 
sender receives notice that the payment order was accepted or that the 
sender's settlement account was debited with respect to the payment 
order.


Sec.  210.44   Agreement of receiving bank.

    (a) Payment. A receiving bank (other than a Federal Reserve Bank) 
that receives a payment order from its Federal Reserve Bank authorizes 
that Federal Reserve Bank to pay for the payment order by crediting, or 
causing any other Federal Reserve Bank on whose books the settlement 
account is maintained to credit, the amount of the payment order to the 
settlement account.
    (b) Funds availability. (1) A beneficiary's bank (other than a 
Federal Reserve Bank) that accepts a payment order over the FedNow 
Service is obliged to pay the amount of the order to the beneficiary of 
the order

[[Page 31390]]

immediately after its acceptance of the payment order, by crediting an 
account of the beneficiary in accordance with section 4A-405(a) of 
Article 4A. The rights and obligations with respect to the availability 
of funds are also governed by the Expedited Funds Availability Act and 
the Board's Regulation CC, Availability of Funds and Collection of 
Checks.
    (2) Nothing in paragraph (b)(1) of this section or any Operating 
Circular issued hereunder shall create any rights that the beneficiary 
or any party other than a Federal Reserve Bank may assert against the 
beneficiary's bank, or affect any liability of the beneficiary's bank 
to the beneficiary or any party other than a Federal Reserve Bank under 
Article 4A or other law.
    (3) In circumstances where the beneficiary's bank (other than a 
Federal Reserve Bank) has reasonable cause to believe that the 
beneficiary is not entitled or permitted to receive payment, the 
beneficiary's bank may notify its Federal Reserve Bank that it requires 
additional time to determine whether to accept the payment order. In 
the event the beneficiary's bank gives such notice to its Federal 
Reserve Bank, for purposes of this subpart and Article 4A the 
beneficiary's bank does not accept the payment order upon its receipt 
of payment in the amount of the payment order by a Federal Reserve 
Bank.


Sec.  210.45   Payment orders.

    (a) Rejection. A sender shall not send a payment order to a Federal 
Reserve Bank unless authorized to do so by the Federal Reserve Bank. A 
Federal Reserve Bank may reject, or impose conditions that must be 
satisfied before it will accept, a payment order for any reason.
    (b) Selection of an intermediary bank. For an interdistrict 
transfer through the FedNow Service, a Federal Reserve Bank is 
authorized and directed to execute a payment order through another 
Federal Reserve Bank. A sender shall not send a payment order to a 
Federal Reserve Bank that requires the Federal Reserve Bank to send a 
payment order to an intermediary bank (other than a Federal Reserve 
Bank). A sender shall not send to a Federal Reserve Bank a payment 
order through the FedNow Service that instructs use by a Federal 
Reserve Bank of a funds-transfer system or means of transmission other 
than the FedNow Service, unless the Federal Reserve Bank agrees with 
the sender in writing to follow such instructions.
    (c) Execution Date and Payment Date. A sender shall not issue a 
payment order through the FedNow Service that instructs a Federal 
Reserve Bank to execute the payment order or to pay the beneficiary on 
a FedNow funds-transfer business day that is later than the funds-
transfer business day on which the order is received by the Federal 
Reserve Bank, unless the Federal Reserve Bank agrees with the sender in 
writing to follow such instructions.


Sec.  210.46   Payment by a Federal Reserve Bank to a receiving bank or 
beneficiary.

    (a) Payment to a receiving bank. Payment of a Federal Reserve 
Bank's obligation to pay a receiving bank (other than a Federal Reserve 
Bank) occurs at the earlier of the time when the amount of the payment 
order is credited to the receiving bank's settlement account or when 
the payment order is sent to the receiving bank.
    (b) Payment to a beneficiary. Payment by a Federal Reserve Bank to 
a beneficiary of a payment order, where the Federal Reserve Bank is the 
beneficiary's bank, occurs at the earlier of the time when the amount 
of the payment order is credited to the beneficiary's settlement 
account or when notice of the credit is sent to the beneficiary.


Sec.  210.47   Federal Reserve Bank liability; payment of compensation.

    (a) Damages. In connection with its handling of a payment order 
under this subpart, a Federal Reserve Bank shall not be liable to a 
sender, receiving bank, beneficiary, or other Federal Reserve Bank, 
governed by this subpart, for any damages other than those payable 
under Article 4A. A Federal Reserve Bank shall not agree to be liable 
to a sender, receiving bank, beneficiary, or other Federal Reserve Bank 
for consequential damages under section 4A-305(d) of Article 4A.
    (b) Payment of compensation. (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 such 
compensation to a sender, receiving bank, 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 the 
payment of compensation is not the party entitled to compensation under 
Article 4A, the sender or receiving bank shall pass through the benefit 
of the compensation by making an interest payment, as of the day the 
compensation was paid by the Federal Reserve Bank, 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 
compensation that was paid 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.
    (c) Nonwaiver of right of recovery. Nothing in this subpart or any 
operating circular issued hereunder shall constitute, or be construed 
as constituting, a waiver by a Federal Reserve Bank of a cause of 
action for recovery under any applicable law of mistake and 
restitution.

Appendix A of Subpart C of Part 210--Commentary

    The Commentary provides background material to explain the 
intent of the Board of Governors of the Federal Reserve System 
(Board) in adopting a particular provision in the subpart and to 
help readers interpret that provision. In some comments, examples 
are offered. The Commentary constitutes an official Board 
interpretation of subpart C of this part. Commentary is not provided 
for every provision of subpart C of this part, as some provisions 
are self-explanatory.

Section 210.40--Authority, Purpose, and Scope

    (a) Authority and purpose. Section 210.40(a) states that the 
purpose of subpart C of this part is to provide rules to govern 
funds transfers through the FedNow Service and recites the Board's 
rulemaking authority for this subpart. Subpart C of this part is 
federal law and is not a ``funds-transfer system rule,'' as defined 
in section 4A-501(b) of Article 4A, Funds Transfers, of the Uniform 
Commercial Code (UCC), as set forth in appendix A of this part. 
Certain provisions of Article 4A may not be varied by a funds-
transfer system rule, but under section 4A-107, regulations of the 
Board and Operating Circulars of the Federal Reserve Banks supersede 
inconsistent provisions of Article 4A to the extent of the 
inconsistency. In addition, regulations of the Board may preempt 
inconsistent provisions of state law. Accordingly, subpart C of this 
part supersedes or preempts inconsistent provisions of state law. It 
does not affect state law governing funds transfers that does not 
conflict with the provisions of subpart C of this part, such as 
Article 4A, as enacted in any state, as such state law may apply to 
parties to funds transfers through the FedNow Service whose rights 
and obligations are not governed by subpart C of this part.
    (b) Scope. (1) Subpart C of this part incorporates the 
provisions of Article 4A set forth in appendix A of this part. The 
provisions set forth expressly in the sections of subpart C of this 
part supersede or preempt any inconsistent provisions of Article 4A 
as set forth in appendix A of this part or as enacted in any state. 
The official comments to Article 4A are not incorporated

[[Page 31391]]

in subpart C of this part or this commentary to subpart C of this 
part, but the official comments may be useful in interpreting 
Article 4A as set forth in appendix A of this part. 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, which is now also known as the Uniform Law 
Commission, and the American Law Institute, from time to time, are 
also incorporated into subpart C of this part. Subpart C of this 
part applies to any party to a funds transfer sent through the 
FedNow Service that is in privity with a Federal Reserve Bank. These 
parties include a sender (bank or nonbank) that sends a payment 
order to a Federal Reserve Bank through the FedNow Service, a 
receiving bank that receives a payment order from a Federal Reserve 
Bank, and a beneficiary that receives credit to an account that it 
uses or maintains at a Federal Reserve Bank as payment for a payment 
order accepted by a Federal Reserve Bank. Subpart C of this part 
also applies to Federal Reserve Banks that send or receive payment 
orders over the FedNow Service. For example, if a sender settles its 
activity over the FedNow Service in the account of a correspondent 
bank, the sender's Federal Reserve Bank would be a bank in the funds 
transfer chain, but the Federal Reserve Bank of the correspondent 
bank would not be a sender or receiving bank with respect to the 
payment order and would not be a party to the funds transfer. Other 
parties to a funds transfer sent through the FedNow Service 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 C 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 of a fact 
when the person has actual knowledge of it, receives a notice or 
notification of it, or has reason to know that it exists from all 
the facts and circumstances known to the person at the time in 
question. (See UCC section 1-202.) 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) With respect to funds transfers sent through the FedNow 
Service, if originators 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 C of this 
part, subpart C of this part generally would apply to those remote 
parties. If remote parties to a funds transfer, a portion of which 
is sent through the FedNow Service, have expressly selected by 
agreement a law other than subpart C of this part under section 4A-
507(b), subpart C of this part would not take precedence over the 
choice of law made by the agreement even though the remote parties 
had notice that the FedNow Service may be used and of the governing 
law. (See 4A-507(d).) In addition, subpart C of this part would not 
apply to a funds transfer sent through a funds-transfer system other 
than the FedNow Service, even though settlement for the funds 
transfer is made by means of a separate funds transfer through the 
FedNow Service.
    (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.). A funds transfer from 
a consumer originator or a funds transfer to a consumer beneficiary 
could be carried out through the FedNow Service and could 
potentially be subject to the EFTA and Regulation E (12 CFR part 
1005) implementing it. If so, the funds transfer continues to also 
be governed by subpart C, except that, in the event of an 
inconsistency between the provisions of subpart C and the EFTA, the 
EFTA shall prevail to the extent of the inconsistency. (See also the 
commentary to section 210.41 in this appendix, ``Payment Order.'') 
For example, a funds transfer may be initiated from a consumer's 
account at a depository institution, and the depository institution 
may execute that payment order by sending a conforming payment order 
to a Reserve Bank through the FedNow Service. If that transfer is 
subject to the EFTA, then where the consumer subsequently reports 
the transfer as an unauthorized electronic fund transfer to its 
depository institution and exercises the right to obtain 
reimbursement under the terms of the EFTA, the depository 
institution would be required to comply with the EFTA even if the 
institution does not have a right to reverse the payment order sent 
to the Reserve Bank through the FedNow Service under subpart C.
    (c) Operating Circulars. The Federal Reserve Banks issue 
Operating Circulars consistent with this subpart that contain 
additional provisions applicable to payment orders and other 
messages sent through the FedNow Service. Under section 4A-107, this 
Operating Circular supersedes inconsistent provisions of Article 4A, 
both as set forth in appendix A of this part and as enacted in any 
state. These Operating Circulars are not funds-transfer system 
rules, but, by their terms, they are binding on all parties covered 
by this subpart.
    (d) Government senders, receiving banks, and beneficiaries. This 
section clarifies that unless a statute of the United States 
provides otherwise, subpart C of this part applies to governmental 
entities.
    (e) Financial messaging standards. This paragraph makes clear 
that financial messaging standards, including the financial 
messaging components, elements, technical documentation, tags, and 
terminology used to implement those standards, do not confer or 
connote legal status or responsibilities. Instead, subpart C of this 
part and Federal Reserve Bank operating circulars govern the rights 
and obligations of parties to funds transfers sent through the 
FedNow Service as provided in Sec.  210.40(b). Thus, to the extent 
there is any inconsistency between a financial messaging standard 
adopted by the FedNow Service and subpart C of this part, subpart C 
of this part, including Article 4A as set forth in appendix A of 
this part, will prevail. In the ISO 20022 financial messaging 
standard, for example, the term agent is used to refer to a variety 
of bank parties to a funds transfer (e.g., debtor agent, creditor 
agent, intermediary agent). Notwithstanding use of that term in the 
standard and in message tags, such banks are not the agents of any 
party to a funds transfer and owe no duty to any other party to such 
a funds transfer except as provided in subpart C of this part 
(including Article 4A) or by express agreement. The ISO 20022 
financial messaging standard also permits information to be carried 
in a funds-transfer message regarding persons that are not parties 
to that funds transfer (e.g., ultimate debtor, ultimate creditor, 
initiating party) for regulatory, compliance, remittance, or other 
purposes. An ``ultimate debtor'' is not an ``originator'' as defined 
in Article 4A. The relationship between the ultimate debtor and the 
originator (what the ISO 20022 standard calls the ``debtor'') is 
determined by law other than Article 4A.

Section 210.41--Definitions

    Article 4A defines many terms (e.g., beneficiary, intermediary 
bank, receiving bank, security procedure) used in this subpart. 
These terms are defined or listed in sections 4A-103 through 4A-105. 
These terms, such as the term bank (defined in section 4A-
105(d)(2)), may differ from comparable terms in subpart A and 
subpart B of this part. As subpart C of this part incorporates 
consistent provisions of Article 4A, it incorporates these 
definitions unless these terms are expressly defined otherwise in 
subpart C of this part. This subpart modifies the definitions of 
five Article 4A terms: Beneficiary, beneficiary's bank, payment 
order, receiving bank, and sender. This subpart also defines terms 
not defined in Article 4A.
    Article 4A. Article 4A means the version of that article of the 
Uniform Commercial Code set forth in appendix A of this part. It 
does not refer to the law of any particular state unless the context 
indicates otherwise. Subject to the express provisions of this 
Subpart, this version of Article 4A is incorporated into this 
subpart and made federal law for transactions covered by this 
subpart. (See Sec.  210.40(b)(1) and accompanying commentary.) 
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, which is now also known as 
the Uniform Law Commission, and the American Law Institute, from 
time to time, are also incorporated in subpart C of this part.
    Beneficiary, beneficiary's bank, receiving bank, and sender. The 
definitions of ``beneficiary,'' ``beneficiary's bank,'' ``receiving 
bank,'' and ``sender'' in subpart C of this part differ from the 
definitions in sections 4A-103(a)(2)-(4). The subpart C

[[Page 31392]]

definition clarifies that, for the purposes of subpart C of this 
part, these terms are limited to parties in a funds transfer that is 
sent through the FedNow Service. For example, the parties to a funds 
transfer that is sent through the Fedwire Funds Service would be 
governed by subpart B of this part, and would not be a 
``beneficiary,'' ``beneficiary's bank,'' ``receiving bank,'' or 
``sender'' governed by subpart C. The definition of ``beneficiary's 
bank'' in subpart C further clarifies that where a Federal Reserve 
Bank functions as the beneficiary's bank, it need not be identified 
in the payment order as the beneficiary's bank and that a Federal 
Reserve Bank that receives a payment order as beneficiary is also 
the beneficiary's bank with respect to that payment order.
    The FedNow Service. The FedNow Service refers to the funds-
transfer system owned and operated by the Federal Reserve Banks to 
support instant payments that is governed by this Subpart. The term 
does not refer to any particular computer, telecommunications 
facility, or funds transfer, but rather to the system as a whole. 
The FedNow Service does not include the Fedwire Funds Service or the 
system used for automated clearing house transfers.
    Payment Order. (1) The definition of ``payment order'' in 
subpart C of this part differs from the section 4A-103(a)(1) 
definition. The subpart C definition clarifies that, for the 
purposes of subpart C of this part, the term includes only 
instructions transmitted through the FedNow Service. For example, 
instructions transmitted through the Fedwire Funds Service would be 
governed by subpart B of this part, and not subpart C.
    Additionally, the subpart C definition provides that certain 
messages that are transmitted through the FedNow Service are not 
payment orders. Federal Reserve Banks and banks participating in the 
FedNow Service send various types of messages relating to payment 
orders or to other matters, through the FedNow Service, that are not 
intended to be payment orders. In some cases, messages sent through 
the FedNow Service, such as certain requests for payment, may be 
payment orders under Article 4A, but are not treated as payment 
orders under subpart C because they are not an instruction to a 
Federal Reserve Bank to pay or cause another bank to pay money. 
Under the subpart C definition, these messages are not ``payment 
orders'' governed by this subpart. The operating circulars of the 
Federal Reserve Banks may specify those messages that may be 
transmitted through the FedNow Service but that are not payment 
orders.
    (2) Subpart C, including its incorporation of Article 4A, 
governs 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 1005) implementing it, may govern a 
transfer through the FedNow Service that is from a consumer 
originator or to a consumer beneficiary. In the event that a 
transfer through the FedNow Service is subject to the EFTA, the 
transfer continues to also be governed by this subpart, except that, 
in the event of an inconsistency between the provisions of subpart C 
and the EFTA, the EFTA shall prevail to the extent of the 
inconsistency. (See also Sec.  210.40(b) and accompanying 
commentary.) Thus, this subpart applies to all funds transfers 
through the FedNow Service even though some such transfers involve 
originators or beneficiaries that are consumers.
    Sender's settlement account, receiving bank's settlement 
account, and beneficiary's settlement account. A FedNow participant 
must designate an account on the books of a Federal Reserve Bank 
that the Federal Reserve Banks may use to settle the participant's 
activity over the FedNow Service. A FedNow participant may settle 
its activity over the FedNow Service in its master account. 
Alternatively, it may designate the account of a correspondent bank 
that the Federal Reserve Banks may use to settle activity through 
the service, subject to the correspondent bank's agreement to any 
such designation.

Section 210.42--Reliance on Identifying Number

    (a) Reliance by a Federal Reserve Bank on number to identify 
intermediary bank or beneficiary's bank. Section 4A-208 provides 
that a receiving bank, such as a Federal Reserve Bank, may rely on 
the routing number of an intermediary bank or the beneficiary's bank 
specified in a payment order as identifying the appropriate 
intermediary bank or beneficiary's bank, even if the payment order 
identifies another bank by name, provided that the receiving bank 
does not know of the inconsistency. Under section 4A-208(b)(2), if 
the sender of the payment order is not a bank, a receiving bank may 
rely on the number only if the sender had notice before the 
receiving bank accepted the sender's order that the receiving bank 
might rely on the number. This section provides this notice to 
entities that are not banks, such as the Department of the Treasury, 
that send payment orders directly to a Federal Reserve Bank through 
the FedNow Service.
    (b) Reliance by a Federal Reserve Bank on number to identify 
beneficiary. Section 4A-207 provides that a beneficiary's bank, such 
as a Federal Reserve Bank, may rely on the number identifying a 
beneficiary, such as the beneficiary's account number, specified in 
a payment order as identifying the appropriate beneficiary, even if 
the payment order identifies another beneficiary by name, provided 
that the beneficiary's bank does not know of the inconsistency. 
Under section 4A-207(c)(2), if the originator is not a bank, an 
originator is not obliged to pay for a payment order if the 
originator did not have notice that the beneficiary's bank might 
rely on the identifying number and the person paid on the basis of 
the identifying number was not entitled to receive payment. This 
section of subpart C provides this notice to entities that are not 
banks, such as the Department of the Treasury, that are originators 
of payment orders sent directly by the originators to a Federal 
Reserve Bank through the FedNow Service, where that Federal Reserve 
Bank or another Federal Reserve Bank is the beneficiary's bank (see 
also section 4A-402(b), providing that a sender must pay a 
beneficiary's bank for a payment order accepted by the beneficiary's 
bank).

Section 210.43--Agreement of Sender

    (a) Payment of sender's obligation to a Federal Reserve Bank. 
When a sender sends a payment order to a Federal Reserve Bank and 
the Federal Reserve Bank accepts the payment order by issuing a 
conforming order executing the sender's payment order, under section 
4A-402, the sender is indebted to the Federal Reserve Bank for the 
amount of the payment order. Section 4A-403 specifies the various 
methods by which a sender may settle the obligation under section 
4A-402. With respect to a payment order sent through the FedNow 
Service, the obligation of a sender (other than a Federal Reserve 
Bank) is settled by a debit to the account of the sender at a 
Federal Reserve Bank. Section 210.43(a) provides that a sender, 
other than a Federal Reserve Bank, that maintains or uses a 
settlement account at a Federal Reserve Bank authorizes its Federal 
Reserve Bank to debit, or cause any other Federal Reserve Bank on 
whose books the settlement account is maintained to debit, that 
account, so that the Federal Reserve Bank can obtain payment for the 
payment order.
    (b) Overdrafts. (1) In some cases, debits to a sender's 
settlement account will create an overdraft in the settlement 
account. The Board and the Federal Reserve Banks have established 
policies concerning when a Federal Reserve Bank will permit a bank 
to incur an overdraft in its account at a Federal Reserve Bank. 
These policies do not give a bank or other sender a right to an 
overdraft in its account. Subpart C clarifies that a sender does not 
have a right to such an overdraft. If an overdraft arises, it 
becomes immediately due and payable at the earliest of the following 
times: The end of the FedNow funds-transfer business day; the time 
the Federal Reserve Bank in its sole discretion, deems itself 
insecure and gives notice to the sender; or the time that the sender 
suspends payments or is closed by governmental action, such as the 
appointment of a receiver. In some cases, a Federal Reserve Bank 
extends its FedNow operations beyond the standard cut-off time for 
that FedNow funds-transfer business day. For the purposes of this 
section, unless otherwise specified by the Federal Reserve Bank 
making such an extension, an overdraft becomes due and payable at 
the end of the extended operating hours. An overdraft becomes due 
and payable prior to a Federal Reserve Bank's cut-off time if the 
Federal Reserve Bank deems itself insecure and gives notice to the 
sender. A Federal Reserve Bank that deems itself insecure may give 
such notice in accordance with the provisions on notice in section 
1-202(d) of the UCC, in accordance with any other applicable law or 
agreement, or by any other reasonable means. An overdraft also 
becomes due and payable at the time that a bank is closed or 
suspends payments. For example, an overdraft

[[Page 31393]]

becomes due and payable if a receiver is appointed for the bank or 
the bank is prevented from making payments by governmental order. 
The Federal Reserve Bank need not make demand on the sender for the 
overdraft to become due and payable.
    (2) A sender must cover any overdraft and any other obligation 
of the sender to the Federal Reserve Bank by the time the overdraft 
becomes due and payable. By sending a payment order to a Federal 
Reserve Bank, the sender grants a security interest to the Federal 
Reserve Bank in all of the assets of the sender possessed or 
controlled by, or held for the account of, the Federal Reserve Bank 
in order to secure all obligations due or to become due to the 
Federal Reserve Bank. The security interest attaches when the 
overdraft, or other obligation of the sender to the Federal Reserve 
Bank, becomes due and payable. The security interest does not apply 
to assets held by the sender as custodian or trustee for the 
sender's customers or third parties. Once an overdraft is due and 
payable, a Federal Reserve Bank may exercise its right of set off, 
liquidate collateral, or take other similar action to satisfy the 
obligation the sender owes to the Federal Reserve Bank.
    (c) Review of payment orders. (1) Under section 4A-204, a 
receiving bank is required to refund the principal amount of an 
unauthorized payment order that the sender was not obliged to pay, 
together with interest on the refundable amount calculated from the 
date that the receiving bank received payment to the date of the 
refund. The sender is not entitled to compensation in the form of 
interest if the sender fails to exercise ordinary care to determine 
that the order was not authorized and to notify the receiving bank 
within a reasonable time after the sender receives a notice that the 
payment order was accepted or that the sender's account was debited 
with respect to the order. Similarly, under section 4A-304, if a 
sender of a payment order that was erroneously executed does not 
notify the bank receiving the payment order within a reasonable 
time, the bank is not liable to the sender for compensation in the 
form of interest on any amount refundable to the sender. Section 
210.43(c) establishes 60 calendar days as the reasonable period of 
time for the purposes of these provisions of Article 4A.
    (2) Section 4A-505 provides that in order for a customer to 
assert a claim objecting to a debit to its account by a receiving 
bank, the customer must notify the receiving bank of its objection 
within one year after the customer received notification reasonably 
identifying the payment order. Subpart C of this part does not vary 
this one-year claim preclusion period.

Section 210.44--Agreement of Receiving Bank

    (b) Funds availability. (1) Section 4A-209(b) provides that a 
beneficiary's bank accepts a payment order at the earliest of 
certain specified events, including when the bank receives payment 
for the entire amount of the order from the sender (see section 4A-
209(b)(2)). Section 4A-404(a) provides that if a beneficiary's bank 
accepts a payment order, it 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. Section 4A-
405(a) provides that if a beneficiary's bank pays the beneficiary by 
crediting an account of the beneficiary on its own books, payment of 
the bank's obligation under Section 4A-404(a) occurs when and to the 
extent (i) the bank notifies the beneficiary that it may withdraw 
the amount of the credit, (ii) the bank lawfully applies the credit 
to a debt of the beneficiary, or (iii) funds with respect to the 
payment order are otherwise made available to the beneficiary by the 
bank.
    (2) Section 210.44(b)(1) provides that if a FedNow participant 
that is the beneficiary's bank accepts a payment order, it must pay 
the beneficiary by credit to the beneficiary's account in accordance 
with section 4A-405(a) of Article 4A, and it must do so immediately 
after its acceptance of the payment order. This section further 
clarifies that the provisions of the Expedited Funds Availability 
Act (12 U.S.C. 4002(a)) and its implementing regulation, Regulation 
CC (12 CFR part 229), also govern. Regulation CC provides that funds 
received by a bank by an electronic payment shall be available for 
withdrawal not later than the business day after the banking day on 
which such funds are received. (12 CFR 229.10(b).) Because Subpart C 
of this part requires funds to be made available on a more prompt 
basis than the availability requirements of the Expedited Funds 
Availability Act and Regulation CC, that act and Regulation CC do 
not preempt or invalidate subpart C. For example, if a beneficiary's 
bank accepts a payment order through the FedNow Service at 10 a.m. 
but does not make funds available to the beneficiary until 5p.m., 
the bank has failed to satisfy its obligations under subpart C of 
this part even if it has satisfied its obligations under Regulation 
CC.
    (3) Section 210.44(b)(2) clarifies that the obligation for the 
beneficiary's bank to provide immediate funds availability to the 
beneficiary under section 210.44(b)(1), and any Operating Circular 
issued in accordance with subpart C, should not be construed as 
creating any rights that the beneficiary or any party other than a 
Federal Reserve Bank may assert against the beneficiary's bank, or 
affect any liability of the beneficiary's bank to the beneficiary or 
any party other than a Federal Reserve Bank under Article 4A or 
other law. In the example in this paragraph (b), where the 
beneficiary's bank accepts a payment order through the FedNow 
Service at 10 a.m. but does not make funds available to the 
beneficiary until 5 p.m., the bank has failed to satisfy its 
obligations under Sec.  210.44(b)(1) but the beneficiary would not 
have a claim or right to assert against the bank under that 
provision.
    (4) Section 210.46(a) provides that payment by a Federal Reserve 
Bank to a receiving bank occurs when the receiving bank's settlement 
account is credited or when the payment order is sent by the Federal 
Reserve Bank to the receiving bank, whichever is earlier, and would 
ordinarily be considered acceptance of the payment order by the 
beneficiary's bank under section 4A-209(b). Section 210.44(b)(3) 
provides that notwithstanding section 4A-209(b), in certain 
circumstances a beneficiary's bank is not deemed to accept a payment 
order at such time as it receives payment from its Federal Reserve 
Bank. Specifically, where the beneficiary's bank has reasonable 
cause to believe that the beneficiary is not entitled or permitted 
to receive payment and the beneficiary's bank notifies its Federal 
Reserve Bank that it requires additional time to determine whether 
to accept the payment order, this section provides that for purposes 
of subpart C and Article 4A, the beneficiary's bank does not accept 
the payment order even if it has received payment for the entire 
amount of the order from its Federal Reserve Bank as provided in 
Sec.  210.46. For example, if the beneficiary's bank has reasonable 
cause to believe that making funds available to the beneficiary may 
violate applicable U.S. sanctions, the beneficiary's bank may notify 
its Federal Reserve Bank that it requires additional time to 
determine whether to accept the payment order, including to 
investigate if the beneficiary is subject to applicable sanctions; 
in the event the beneficiary's bank gives such notice, the 
beneficiary's bank would not be deemed to have accepted the payment 
order at the time it receives payment from its Federal Reserve Bank.

Section 210.45--Payment Orders

    (a) Rejection. (1) A sender must make arrangements with its 
Federal Reserve Bank before it can send payment orders to the 
Federal Reserve Bank. Federal Reserve Banks reserve the right to 
reject or impose conditions on the acceptance of payment orders for 
any reason. For example, a Federal Reserve Bank might reject or 
impose conditions on accepting a payment order where a sender does 
not have sufficient funds in its settlement account with the Federal 
Reserve Bank to cover the amount of the sender's payment order and 
other obligations of the sender due or to become due to the Federal 
Reserve Bank. As a further example, a Federal Reserve Bank may 
reject a payment order that is not successfully processed within 
time limits established by the Federal Reserve Banks. A Federal 
Reserve Bank may require a sender to execute a written agreement 
concerning security procedures or other matters before the sender 
may send payment orders to the Federal Reserve Bank.
    (b) Selection of an intermediary bank. (1) Under section 4A-302, 
if a receiving bank (other than a beneficiary's bank), such as a 
Federal Reserve Bank, accepts a payment order, it must issue a 
payment order that complies with the sender's order. The sender's 
order may include instructions concerning an intermediary bank to be 
used that must be followed by a receiving bank (see section 4A-
302(a)(1)). If the sender does not designate any intermediary bank 
in its payment order, the receiving bank may select an intermediary 
bank through which the sender's payment order can be expeditiously 
issued to the beneficiary's bank so long as the receiving bank 
exercises ordinary care in selecting the intermediary bank (see 
section 4A-302(b)).

[[Page 31394]]

    (2) This section provides that in an interdistrict transfer, a 
Federal Reserve Bank is authorized and directed to select another 
Federal Reserve Bank as an intermediary bank. A sender may not 
instruct a Federal Reserve Bank to use a particular intermediary 
bank or to use its discretion to select an intermediary bank other 
than a Federal Reserve Bank or an intermediary bank designated by 
the sender. In addition, a sender may not send a payment order 
through the FedNow Service that instructs a Federal Reserve Bank to 
use a funds-transfer system or means of transmission other than the 
FedNow Service, unless the sender and the Federal Reserve Bank agree 
in writing to the use of that funds-transfer system or means of 
transmission.
    (c) Execution date and payment date. (1) Under 4A-301(b), the 
``execution date'' of a payment order means the day on which the 
receiving bank may properly issue a payment order in execution of 
the sender's order. Under section 4A-401, the ``payment date'' of a 
payment order is the day on which the amount of the order is payable 
to the beneficiary by the beneficiary's bank. The execution date and 
the payment date may be determined by instruction of the sender but 
cannot be earlier than the day the order is received and, unless 
otherwise determined, is the day the order is received (see sections 
4A-301(b) and 4A-401). Section 4A-106, provides for the time that a 
payment order is received, including in the event that a receiving 
bank fixes a cut-off time for the receipt and processing of payment 
orders. If the bank receives a payment order after its cut-off time, 
the bank may treat the payment order as received at the opening of 
the next funds-transfer business day (see section 4A-106(a)).
    (2) The FedNow Service is designed to be an instant value 
transfer system through which funds may be transferred from the 
originator to the beneficiary on the same funds-transfer business 
day. This section provides that a sender may not send a payment 
order to a Federal Reserve Bank that specifies an execution date or 
payment date later than the day on which the payment order is 
issued, unless the sender of the order and the Federal Reserve Bank 
agree in writing to the arrangement.

Section 210.46--Payment by a Federal Reserve Bank to a Receiving 
Bank or Beneficiary

    (a) Payment to a receiving bank. (1) Under section 4A-402, when 
a Federal Reserve Bank executes a sender's payment order by issuing 
a conforming order to a receiving bank that accepts the payment 
order, the Federal Reserve Bank must pay the receiving bank the 
amount of the payment order. Section 210.44(a) authorizes a Federal 
Reserve Bank to make the payment by crediting, or causing any other 
Federal Reserve Bank on whose books the settlement account is 
maintained to credit, the settlement account of the receiving bank. 
Section 210.46(a) provides that the payment occurs when the 
receiving bank's settlement account is credited or when the payment 
order is sent by the Federal Reserve Bank to the receiving bank, 
whichever is earlier. Ordinarily, payment will occur during the 
FedNow funds-transfer business day a short time after the payment 
order is received. This credit is final and irrevocable when made 
and constitutes final settlement under section 4A-403. Payment does 
not waive a Federal Reserve Bank's right of recovery under the 
applicable law of mistake and restitution (see Sec.  210.47(c)), 
affect a Federal Reserve Bank's right to apply the funds to any 
obligation due or to become due to the Federal Reserve Bank, or 
affect legal process or claims by third parties on the funds.
    (2) This section on final payment does not apply to settlement 
for payment orders between Federal Reserve Banks. These payment 
orders are settled by other means.
    (b) Payment to a beneficiary. Section 210.46(b) specifies when a 
Federal Reserve Bank makes payment to a beneficiary for which it is 
the beneficiary's bank. As in the case of payment to a receiving 
bank, this payment occurs at the earlier of the time that the 
Federal Reserve Bank credits the beneficiary's settlement account or 
sends notice of the credit to the beneficiary, and is final and 
irrevocable when made.

Section 210.47--Federal Reserve Bank Liability; Payment of 
Compensation

    (a) Damages. (1) Under section 4A-305(d), damages for failure of 
a receiving bank to execute a payment order that it was obligated to 
execute by express agreement are limited to expenses in the 
transaction and incidental expenses and interest and do not include 
additional damages, including consequential damages, unless they are 
provided for in an express written agreement of the receiving bank. 
This section clarifies that in connection with the handling of 
payment orders, Federal Reserve Banks may not agree to be liable for 
consequential damages under this provision and shall not be liable 
for damages other than those that may be due under Article 4A to 
parties governed by this subpart. Any agreement in conflict with 
these provisions would not be effective, because it would be in 
violation of subpart C.
    (2) This section does not affect the ability of other parties to 
a funds transfer to agree to be liable for consequential damages, 
the liability of a Federal Reserve Bank under section 4A-404 
(relating to obligation of beneficiary's bank to pay and give notice 
to beneficiary), or the liability to parties governed by subpart C 
for claims not based on the handling of a payment order under 
subpart C.
    (b) Payment of compensation. (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).
    (2) Section 210.47(b) requires Federal Reserve Banks to provide 
compensation through payment in the form of interest. 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. 
Similarly, compensation in the form of interest will be paid to 
government senders, receiving banks, or beneficiaries described in 
Sec.  210.40(d) if they are entitled to interest under subpart C. A 
Federal Reserve Bank may also, in its discretion, pay compensation 
in the form of interest directly to a remote party to a transfer 
through the FedNow Service that is entitled to interest, rather than 
providing compensation to its sender or receiving bank.
    (3) If a sender or receiving bank that received a payment of 
compensation is not the party entitled to compensation under Article 
4A, the sender or receiving bank must pass the benefit of the 
compensation payment made to it to the party that is entitled to 
compensation. 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. In the latter case, the value of the compensating 
balance must be at least equivalent to the value of the interest 
payment that otherwise would have been provided.
    (c) Nonwaiver of right of recovery. Several sections of Article 
4A allow a party to a funds transfer to make a claim pursuant to the 
applicable law of mistake and restitution. Nothing in subpart C of 
this part or any Operating Circular issued in accordance with 
subpart C of this part waives any such claim by a Federal Reserve 
Bank. A Federal Reserve Bank, however, may waive such a claim by 
express written agreement in order to settle litigation or for other 
purposes.

0
13. Add Appendix A of part 210 to read as follows:

Appendix A of Part 210--Article 4A, Funds Transfers

Part 1--Subject Matter and Definitions

Section 4A-101. Short Title

    This Article may be cited as Uniform Commercial Code--Funds 
Transfers.

Section 4A-102. Subject Matter

    Except as otherwise provided in section 4A-108, this Article 
applies to funds transfers defined in section 4A-104.

Section 4A-103. Payment Order--Definitions

    (a) In this Article:
    (1) Payment order means an instruction of a sender to a 
receiving bank, transmitted orally, electronically, or in writing, 
to pay, or to cause another bank to pay, a fixed or determinable 
amount of money to a beneficiary if:

[[Page 31395]]

    (i) The instruction does not state a condition to payment to the 
beneficiary other than time of payment,
    (ii) The receiving bank is to be reimbursed by debiting an 
account of, or otherwise receiving payment from, the sender, and
    (iii) The instruction is transmitted by the sender directly to 
the receiving bank or to an agent, funds-transfer system, or 
communication system for transmittal to the receiving bank.
    (2) Beneficiary means the person to be paid by the beneficiary's 
bank.
    (3) ``Beneficiary's bank'' means the bank identified in a 
payment order in which an account of the beneficiary is to be 
credited pursuant to the order or which otherwise is to make payment 
to the beneficiary if the order does not provide for payment to an 
account.
    (4) Receiving bank means the bank to which the sender's 
instruction is addressed.
    (5) Sender means the person giving the instruction to the 
receiving bank.
    (b) If an instruction complying with paragraph (a)(1) of this 
section is to make more than one payment to a beneficiary, the 
instruction is a separate payment order with respect to each 
payment.
    (c) A payment order is issued when it is sent to the receiving 
bank.

Section 4A-104. Funds Transfer--Definitions

    In this Article:
    (a) Funds transfer means the series of transactions, beginning 
with the originator's payment order, made for the purpose of making 
payment to the beneficiary of the order. The term includes any 
payment order issued by the originator's bank or an intermediary 
bank intended to carry out the originator's payment order. A funds 
transfer is completed by acceptance by the beneficiary's bank of a 
payment order for the benefit of the beneficiary of the originator's 
payment order.
    (b) Intermediary bank means a receiving bank other than the 
originator's bank or the beneficiary's bank.
    (c) Originator means the sender of the first payment order in a 
funds transfer.
    (d) Originator's bank means (i) the receiving bank to which the 
payment order of the originator is issued if the originator is not a 
bank, or (ii) the originator if the originator is a bank.

Section 4A-105. Other Definitions

    (a) In this Article:
    (1) Authorized account means a deposit account of a customer in 
a bank designated by the customer as a source of payment of payment 
orders issued by the customer to the bank. If a customer does not so 
designate an account, any account of the customer is an authorized 
account if payment of a payment order from that account is not 
inconsistent with a restriction on the use of that account.
    (2) Bank means a person engaged in the business of banking and 
includes a savings bank, savings and loan association, credit union, 
and trust company. A branch or separate office of a bank is a 
separate bank for purposes of this Article.
    (3) Customer means a person, including a bank, having an account 
with a bank or from whom a bank has agreed to receive payment 
orders.
    (4) Funds-transfer business day of a receiving bank means the 
part of a day during which the receiving bank is open for the 
receipt, processing, and transmittal of payment orders and 
cancellations and amendments of payment orders.
    (5) Funds-transfer system means a wire transfer network, 
automated clearing house, or other communication system of a 
clearing house or other association of banks through which a payment 
order by a bank may be transmitted to the bank to which the order is 
addressed.
    (6) Good faith means honesty in fact and the observance of 
reasonable commercial standards of fair dealing.
    (7) Prove with respect to a fact means to meet the burden of 
establishing the fact (Section 1-201(8)).
    (b) Other definitions applying to this Article and the sections 
in which they appear are:

``Acceptance''. . . . . Sec. 4A-209
``Beneficiary''. . . . . Sec. 4A-103
``Beneficiary's bank''. . . . . Sec. 4A-103
``Executed''. . . . . Sec. 4A-301
``Execution date''. . . . . Sec. 4A-301
``Funds transfer''. . . . . Sec. 4A-104
``Funds-transfer system rule''. . . . . Sec. 4A-501
``Intermediary bank''. . . . . Sec. 4A-104
``Originator''. . . . . Sec. 4A-104
``Originator's bank''. . . . . Sec. 4A-104
``Payment by beneficiary's bank to beneficiary''. . . . . Sec. 4A-
405
``Payment by originator to beneficiary''. . . . . Sec. 4A-406
``Payment by sender to receiving bank''. . . . . Sec. 4A-403
``Payment date''. . . . . Sec. 4A-401
``Payment order''. . . . . Sec. 4A-103
``Receiving bank''. . . . . Sec. 4A-103
``Security procedure''. . . . . Sec. 4A-201
``Sender''. . . . . Sec. 4A-103

    (c) The following definitions in Article 4 apply to this 
Article:

``Clearing house'' . . . . . Sec. 4-104
``Item'' . . . . . Sec. 4-104
``Suspends payments'' . . . . . Sec. 4-104

    (d) In addition Article 1 contains general definitions and 
principles of construction and interpretation applicable throughout 
this Article.

Section 4A-106. Time Payment Order is Received

    (a) The time of receipt of a payment order or communication 
canceling or amending a payment order is determined by the rules 
applicable to receipt of a notice stated in Section 1-201(27). A 
receiving bank may fix a cut-off time or times on a funds-transfer 
business day for the receipt and processing of payment orders and 
communications canceling or amending payment orders. Different cut-
off times may apply to payment orders, cancellations, or amendments, 
or to different categories of payment orders, cancellations, or 
amendments. A cut-off time may apply to senders generally or 
different cut-off times may apply to different senders or categories 
of payment orders. If a payment order or communication canceling or 
amending a payment order is received after the close of a funds-
transfer business day or after the appropriate cut-off time on a 
funds-transfer business day, the receiving bank may treat the 
payment order or communication as received at the opening of the 
next funds-transfer business day.
    (b) If this Article refers to an execution date or payment date 
or states a day on which a receiving bank is required to take 
action, and the date or day does not fall on a funds-transfer 
business day, the next day that is a funds-transfer business day is 
treated as the date or day stated, unless the contrary is stated in 
this Article.

Section 4A-107. Federal Reserve Regulations and Operating Circulars

    Regulations of the Board of Governors of the Federal Reserve 
System and operating circulars of the Federal Reserve Banks 
supersede any inconsistent provision of this Article to the extent 
of the inconsistency.

Section 4A-108. Relationship to Electronic Fund Transfer Act

    (a) Except as provided in subsection (b), this Article does not 
apply to a funds transfer any part of which is governed by the 
Electronic Fund Transfer Act of 1978 (Title XX, Public Law 95-630, 
92 Stat. 3728, 15 U.S.C. 1693 et seq.) as amended from time to time.
    (b) This Article applies to a funds transfer that is a 
remittance transfer as defined in the Electronic Fund Transfer Act 
(15 U.S.C. Sec. 1693o-1) as amended from time to time, unless the 
remittance transfer is an electronic fund transfer as defined in the 
Electronic Fund Transfer Act (15 U.S.C. Sec. 1693a) as amended from 
time to time.
    (c) In a funds transfer to which this Article applies, in the 
event of an inconsistency between an applicable provision of this 
Article and an applicable provision of the Electronic Fund Transfer 
Act, the provision of the Electronic Fund Transfer Act governs to 
the extent of the inconsistency.

Part 2--Issue and Acceptance of Payment Order

Section 4A-201. Security Procedure

    Security procedure means a procedure established by agreement of 
a customer and a receiving bank for the purpose of (i) verifying 
that a payment order or communication amending or canceling a 
payment order is that of the customer, or (ii) detecting error in 
the transmission or the content of the payment order or 
communication. A security procedure may require the use of 
algorithms or other codes, identifying words or numbers, encryption, 
callback procedures, or similar security devices. Comparison of a 
signature on a payment order or communication with an authorized 
specimen signature of the customer is not by itself a security 
procedure.

Section 4A-202. Authorized and Verified Payment Orders

    (a) A payment order received by the receiving bank is the 
authorized order of the person identified as sender if that person 
authorized the order or is otherwise bound by it under the law of 
agency.
    (b) If a bank and its customer have agreed that the authenticity 
of payment orders issued to the bank in the name of the

[[Page 31396]]

customer as sender will be verified pursuant to a security 
procedure, a payment order received by the receiving bank is 
effective as the order of the customer, whether or not authorized, 
if (i) the security procedure is a commercially reasonable method of 
providing security against unauthorized payment orders, and (ii) the 
bank proves that it accepted the payment order in good faith and in 
compliance with the security procedure and any written agreement or 
instruction of the customer restricting acceptance of payment orders 
issued in the name of the customer. The bank is not required to 
follow an instruction that violates a written agreement with the 
customer or notice of which is not received at a time and in a 
manner affording the bank a reasonable opportunity to act on it 
before the payment order is accepted.
    (c) Commercial reasonableness of a security procedure is a 
question of law to be determined by considering the wishes of the 
customer expressed to the bank, the circumstances of the customer 
known to the bank, including the size, type, and frequency of 
payment orders normally issued by the customer to the bank, 
alternative security procedures offered to the customer, and 
security procedures in general use by customers and receiving banks 
similarly situated. A security procedure is deemed to be 
commercially reasonable if (i) the security procedure was chosen by 
the customer after the bank offered, and the customer refused, a 
security procedure that was commercially reasonable for that 
customer, and (ii) the customer expressly agreed in writing to be 
bound by any payment order, whether or not authorized, issued in its 
name and accepted by the bank in compliance with the security 
procedure chosen by the customer.
    (d) The term sender in this Article includes the customer in 
whose name a payment order is issued if the order is the authorized 
order of the customer under subsection (a) of this section, or it is 
effective as the order of the customer under subsection (b) of this 
section.
    (e) This section applies to amendments and cancellations of 
payment orders to the same extent it applies to payment orders.
    (f) Except as provided in this section and in section 4A-
203(a)(1), rights and obligations arising under this section or 
section 4A-203 may not be varied by agreement.

Section 4A-203. Unenforceability of Certain Verified Payment Orders

    (a) If an accepted payment order is not, under section 4A-
202(a), an authorized order of a customer identified as sender, but 
is effective as an order of the customer pursuant to section 4A-
202(b), the following rules apply:
    (1) By express written agreement, the receiving bank may limit 
the extent to which it is entitled to enforce or retain payment of 
the payment order.
    (2) The receiving bank is not entitled to enforce or retain 
payment of the payment order if the customer proves that the order 
was not caused, directly or indirectly, by a person (i) entrusted at 
any time with duties to act for the customer with respect to payment 
orders or the security procedure, or (ii) who obtained access to 
transmitting facilities of the customer or who obtained, from a 
source controlled by the customer and without authority of the 
receiving bank, information facilitating breach of the security 
procedure, regardless of how the information was obtained or whether 
the customer was at fault. Information includes any access device, 
computer software, or the like.
    (b) This section applies to amendments of payment orders to the 
same extent it applies to payment orders.

Section 4A-204. Refund of Payment and Duty of Customer To Report With 
Respect to Unauthorized Payment Order

    (a) If a receiving bank accepts a payment order issued in the 
name of its customer as sender which is (i) not authorized and not 
effective as the order of the customer under section 4A-202, or (ii) 
not enforceable, in whole or in part, against the customer under 
section 4A-203, the bank shall refund any payment of the payment 
order received from the customer to the extent the bank is not 
entitled to enforce payment and shall pay interest on the refundable 
amount calculated from the date the bank received payment to the 
date of the refund. However, the customer is not entitled to 
interest from the bank on the amount to be refunded if the customer 
fails to exercise ordinary care to determine that the order was not 
authorized by the customer and to notify the bank of the relevant 
facts within a reasonable time not exceeding 90 days after the date 
the customer received notification from the bank that the order was 
accepted or that the customer's account was debited with respect to 
the order The bank is not entitled to any recovery from the customer 
on account of a failure by the customer to give notification as 
stated in this section.
    (b) Reasonable time under subsection (a) of this section may be 
fixed by agreement as stated in section 1-204(1), but the obligation 
of a receiving bank to refund payment as stated in subsection (a) 
may not otherwise be varied by agreement.

Section 4A-205. Erroneous Payment Orders

    (a) If an accepted payment order was transmitted pursuant to a 
security procedure for the detection of error and the payment order 
(i) erroneously instructed payment to a beneficiary not intended by 
the sender, (ii) erroneously instructed payment in an amount greater 
than the amount intended by the sender, or (iii) was an erroneously 
transmitted duplicate of a payment order previously sent by the 
sender, the following rules apply:
    (1) If the sender proves that the sender or a person acting on 
behalf of the sender pursuant to section 4A-206 complied with the 
security procedure and that the error would have been detected if 
the receiving bank had also complied, the sender is not obliged to 
pay the order to the extent stated in this paragraphs (2) and (3).
    (2) If the funds transfer is completed on the basis of an 
erroneous payment order described in clause (i) or (iii) of 
subsection (a), the sender is not obliged to pay the order and the 
receiving bank is entitled to recover from the beneficiary any 
amount paid to the beneficiary to the extent allowed by the law 
governing mistake and restitution.
    (3) If the funds transfer is completed on the basis of a payment 
order described in clause (ii) of subsection (a), the sender is not 
obliged to pay the order to the extent the amount received by the 
beneficiary is greater than the amount intended by the sender. In 
that case, the receiving bank is entitled to recover from the 
beneficiary the excess amount received to the extent allowed by the 
law governing mistake and restitution.
    (b) If (i) the sender of an erroneous payment order described in 
subsection (a) is not obliged to pay all or part of the order, and 
(ii) the sender receives notification from the receiving bank that 
the order was accepted by the bank or that the sender's account was 
debited with respect to the order, the sender has a duty to exercise 
ordinary care, on the basis of information available to the sender, 
to discover the error with respect to the order and to advise the 
bank of the relevant facts within a reasonable time, not exceeding 
90 days, after the bank's notification was received by the sender. 
If the bank proves that the sender failed to perform that duty, the 
sender is liable to the bank for the loss the bank proves it 
incurred as a result of the failure, but the liability of the sender 
may not exceed the amount of the sender's order.
    (c) This section applies to amendments to payment orders to the 
same extent it applies to payment orders.

Section 4A-206. Transmission of Payment Order Through Funds-Transfer or 
Other Communication System

    (a) If a payment order addressed to a receiving bank is 
transmitted to a funds-transfer system or other third-party 
communication system for transmittal to the bank, the system is 
deemed to be an agent of the sender for the purpose of transmitting 
the payment order to the bank. If there is a discrepancy between the 
terms of the payment order transmitted to the system and the terms 
of the payment order transmitted by the system to the bank, the 
terms of the payment order of the sender are those transmitted by 
the system. This section does not apply to a funds-transfer system 
of the Federal Reserve Banks.
    (b) This section applies to cancellations and amendments of 
payment orders to the same extent it applies to payment orders.

Section 4A-207. Misdescription of Beneficiary

    (a) Subject to subsection (b), if, in a payment order received 
by the beneficiary's bank, the name, bank account number, or other 
identification of the beneficiary refers to a nonexistent or 
unidentifiable person or account, no person has rights as a 
beneficiary of the order and acceptance of the order cannot occur.
    (b) If a payment order received by the beneficiary's bank 
identifies the beneficiary both by name and by an identifying or 
bank account number and the name and number identify different 
persons, the following rules apply:
    (1) Except as otherwise provided in subsection (c), if the 
beneficiary's bank does not know that the name and number refer to 
different persons, it may rely on the number as the proper 
identification of the beneficiary of the order. The beneficiary's 
bank need not

[[Page 31397]]

determine whether the name and number refer to the same person.
    (2) If the beneficiary's bank pays the person identified by name 
or knows that the name and number identify different persons, no 
person has rights as beneficiary except the person paid by the 
beneficiary's bank if that person was entitled to receive payment 
from the originator of the funds transfer. If no person has rights 
as beneficiary, acceptance of the order cannot occur.
    (c) If (i) a payment order described in subsection (b) is 
accepted, (ii) the originator's payment order described the 
beneficiary inconsistently by name and number, and (iii) the 
beneficiary's bank pays the person identified by number as permitted 
by subsection (b)(1), the following rules apply:
    (1) If the originator is a bank, the originator is obliged to 
pay its order.
    (2) If the originator is not a bank and proves that the person 
identified by number was not entitled to receive payment from the 
originator, the originator is not obliged to pay its order unless 
the originator's bank proves that the originator, before acceptance 
of the originator's order, had notice that payment of a payment 
order issued by the originator might be made by the beneficiary's 
bank on the basis of an identifying or bank account number even if 
it identifies a person different from the named beneficiary. Proof 
of notice may be made by any admissible evidence. The originator's 
bank satisfies the burden of proof if it proves that the originator, 
before the payment order was accepted, signed a writing stating the 
information to which the notice relates.
    (d) In a case governed by subsection (b)(1), if the 
beneficiary's bank rightfully pays the person identified by number 
and that person was not entitled to receive payment from the 
originator, the amount paid may be recovered from that person to the 
extent allowed by the law governing mistake and restitution as 
follows:
    (1) If the originator is obliged to pay its payment order as 
stated in subsection (c), the originator has the right to recover.
    (2) If the originator is not a bank and is not obliged to pay 
its payment order, the originator's bank has the right to recover.

Section 4A-208. Misdescription of Intermediary Bank or Beneficiary's 
Bank

    (a) This subsection applies to a payment order identifying an 
intermediary bank or the beneficiary's bank only by an identifying 
number.
    (1) The receiving bank may rely on the number as the proper 
identification of the intermediary or beneficiary's bank and need 
not determine whether the number identifies a bank.
    (2) The sender is obliged to compensate the receiving bank for 
any loss and expenses incurred by the receiving bank as a result of 
its reliance on the number in executing or attempting to execute the 
order.
    (b) This subsection applies to a payment order identifying an 
intermediary bank or the beneficiary's bank both by name and an 
identifying number if the name and number identify different 
persons.
    (1) If the sender is a bank, the receiving bank may rely on the 
number as the proper identification of the intermediary or 
beneficiary's bank if the receiving bank, when it executes the 
sender's order, does not know that the name and number identify 
different persons. The receiving bank need not determine whether the 
name and number refer to the same person or whether the number 
refers to a bank. The sender is obliged to compensate the receiving 
bank for any loss and expenses incurred by the receiving bank as a 
result of its reliance on the number in executing or attempting to 
execute the order.
    (2) If the sender is not a bank and the receiving bank proves 
that the sender, before the payment order was accepted, had notice 
that the receiving bank might rely on the number as the proper 
identification of the intermediary or beneficiary's bank even if it 
identifies a person different from the bank identified by name, the 
rights and obligations of the sender and the receiving bank are 
governed by subsection (b)(1), as though the sender were a bank. 
Proof of notice may be made by any admissible evidence. The 
receiving bank satisfies the burden of proof if it proves that the 
sender, before the payment order was accepted, signed a writing 
stating the information to which the notice relates.
    (3) Regardless of whether the sender is a bank, the receiving 
bank may rely on the name as the proper identification of the 
intermediary or beneficiary's bank if the receiving bank, at the 
time it executes the sender's order, does not know that the name and 
number identify different persons. The receiving bank need not 
determine whether the name and number refer to the same person.
    (4) If the receiving bank knows that the name and number 
identify different persons, reliance on either the name or the 
number in executing the sender's payment order is a breach of the 
obligation stated in section 4A-302(a)(1).

Section 4A-209. Acceptance of Payment Order

    (a) Subject to subsection (d), a receiving bank other than the 
beneficiary's bank accepts a payment order when it executes the 
order.
    (b) Subject to subsections (c) and (d), a beneficiary's bank 
accepts a payment order at the earliest of the following times:
    (1) When the bank (i) pays the beneficiary as stated in section 
4A-405(a) or 4A-405(b), or (ii) notifies the beneficiary of receipt 
of the order or that the account of the beneficiary has been 
credited with respect to the order unless the notice indicates that 
the bank is rejecting the order or that funds with respect to the 
order may not be withdrawn or used until receipt of payment from the 
sender of the order;
    (2) When the bank receives payment of the entire amount of the 
sender's order pursuant to section 4A-403(a)(1) or 4A-403(a)(2); or
    (3) The opening of the next funds-transfer business day of the 
bank following the payment date of the order if, at that time, the 
amount of the sender's order is fully covered by a withdrawable 
credit balance in an authorized account of the sender or the bank 
has otherwise received full payment from the sender, unless the 
order was rejected before that time or is rejected within (i) one 
hour after that time, or (ii) one hour after the opening of the next 
business day of the sender following the payment date if that time 
is later. If notice of rejection is received by the sender after the 
payment date and the authorized account of the sender does not bear 
interest, the bank is obliged to pay interest to the sender on the 
amount of the order for the number of days elapsing after the 
payment date to the day the sender receives notice or learns that 
the order was not accepted, counting that day as an elapsed day. If 
the withdrawable credit balance during that period falls below the 
amount of the order, the amount of interest payable is reduced 
accordingly.
    (c) Acceptance of a payment order cannot occur before the order 
is received by the receiving bank. Acceptance does not occur under 
subsection (b)(2) or (b)(3) if the beneficiary of the payment order 
does not have an account with the receiving bank, the account has 
been closed, or the receiving bank is not permitted by law to 
receive credits for the beneficiary's account.
    (d) A payment order issued to the originator's bank cannot be 
accepted until the payment date if the bank is the beneficiary's 
bank, or the execution date if the bank is not the beneficiary's 
bank. If the originator's bank executes the originator's payment 
order before the execution date or pays the beneficiary of the 
originator's payment order before the payment date and the payment 
order is subsequently canceled pursuant to section 4A-211(b), the 
bank may recover from the beneficiary any payment received to the 
extent allowed by the law governing mistake and restitution.

Section 4A-210. Rejection of Payment Order

    (a) A payment order is rejected by the receiving bank by a 
notice of rejection transmitted to the sender orally, 
electronically, or in writing. A notice of rejection need not use 
any particular words and is sufficient if it indicates that the 
receiving bank is rejecting the order or will not execute or pay the 
order. Rejection is effective when the notice is given if 
transmission is by a means that is reasonable in the circumstances. 
If notice of rejection is given by a means that is not reasonable, 
rejection is effective when the notice is received. If an agreement 
of the sender and receiving bank establishes the means to be used to 
reject a payment order, (i) any means complying with the agreement 
is reasonable and (ii) any means not complying is not reasonable 
unless no significant delay in receipt of the notice resulted from 
the use of the noncomplying means.
    (b) This subsection applies if a receiving bank other than the 
beneficiary's bank fails to execute a payment order despite the 
existence on the execution date of a withdrawable credit balance in 
an authorized account of the sender sufficient to cover the order. 
If the sender does not receive notice of rejection of the order on 
the execution date and the authorized account of the sender does not 
bear interest, the bank is obliged to pay interest to the sender on 
the amount of the order for the number of days elapsing after the 
execution date to the earlier of the day the order is canceled 
pursuant to section 4A-211(d) or the day the sender receives

[[Page 31398]]

notice or learns that the order was not executed, counting the final 
day of the period as an elapsed day. If the withdrawable credit 
balance during that period falls below the amount of the order, the 
amount of interest is reduced accordingly.
    (c) If a receiving bank suspends payments, all unaccepted 
payment orders issued to it are deemed rejected at the time the bank 
suspends payments.
    (d) Acceptance of a payment order precludes a later rejection of 
the order. Rejection of a payment order precludes a later acceptance 
of the order.

Section 4A-211. Cancellation and Amendment of Payment Order

    (a) A communication of the sender of a payment order canceling 
or amending the order may be transmitted to the receiving bank 
orally, electronically, or in writing. If a security procedure is in 
effect between the sender and the receiving bank, the communication 
is not effective to cancel or amend the order unless the 
communication is verified pursuant to the security procedure or the 
bank agrees to the cancellation or amendment.
    (b) Subject to subsection (a), a communication by the sender 
canceling or amending a payment order is effective to cancel or 
amend the order if notice of the communication is received at a time 
and in a manner affording the receiving bank a reasonable 
opportunity to act on the communication before the bank accepts the 
payment order.
    (c) After a payment order has been accepted, cancellation or 
amendment of the order is not effective unless the receiving bank 
agrees or a funds-transfer system rule allows cancellation or 
amendment without agreement of the bank.
    (1) With respect to a payment order accepted by a receiving bank 
other than the beneficiary's bank, cancellation or amendment is not 
effective unless a conforming cancellation or amendment of the 
payment order issued by the receiving bank is also made.
    (2) With respect to a payment order accepted by the 
beneficiary's bank, cancellation or amendment is not effective 
unless the order was issued in execution of an unauthorized payment 
order, or because of a mistake by a sender in the funds transfer 
which resulted in the issuance of a payment order (i) that is a 
duplicate of a payment order previously issued by the sender, (ii) 
that orders payment to a beneficiary not entitled to receive payment 
from the originator, or (iii) that orders payment in an amount 
greater than the amount the beneficiary was entitled to receive from 
the originator. If the payment order is canceled or amended, the 
beneficiary's bank is entitled to recover from the beneficiary any 
amount paid to the beneficiary to the extent allowed by the law 
governing mistake and restitution.
    (d) An unaccepted payment order is canceled by operation of law 
at the close of the fifth funds-transfer business day of the 
receiving bank after the execution date or payment date of the 
order.
    (e) A canceled payment order cannot be accepted. If an accepted 
payment order is canceled, the acceptance is nullified and no person 
has any right or obligation based on the acceptance. Amendment of a 
payment order is deemed to be cancellation of the original order at 
the time of amendment and issue of a new payment order in the 
amended form at the same time.
    (f) Unless otherwise provided in an agreement of the parties or 
in a funds-transfer system rule, if the receiving bank, after 
accepting a payment order, agrees to cancellation or amendment of 
the order by the sender or is bound by a funds-transfer system rule 
allowing cancellation or amendment without the bank's agreement, the 
sender, whether or not cancellation or amendment is effective, is 
liable to the bank for any loss and expenses, including reasonable 
attorney's fees, incurred by the bank as a result of the 
cancellation or amendment or attempted cancellation or amendment.
    (g) A payment order is not revoked by the death or legal 
incapacity of the sender unless the receiving bank knows of the 
death or of an adjudication of incapacity by a court of competent 
jurisdiction and has reasonable opportunity to act before acceptance 
of the order.
    (h) A funds-transfer system rule is not effective to the extent 
it conflicts with subsection (c)(2) of this section.

Section 4A-212. Liability and Duty of Receiving Bank Regarding 
Unaccepted Payment Order

    If a receiving bank fails to accept a payment order that it is 
obliged by express agreement to accept, the bank is liable for 
breach of the agreement to the extent provided in the agreement or 
in this Article, but does not otherwise have any duty to accept a 
payment order or, before acceptance, to take any action, or refrain 
from taking action, with respect to the order except as provided in 
this Article or by express agreement. Liability based on acceptance 
arises only when acceptance occurs as stated in section 4A-209, and 
liability is limited to that provided in this Article. A receiving 
bank is not the agent of the sender or beneficiary of the payment 
order it accepts, or of any other party to the funds transfer, and 
the bank owes no duty to any party to the funds transfer except as 
provided in this Article or by express agreement.

Part 3--Execution of Sender's Payment Order by Receiving Bank

Section 4A-301. Execution and Execution Date

    (a) A payment order is ``executed'' by the receiving bank when 
it issues a payment order intended to carry out the payment order 
received by the bank. A payment order received by the beneficiary's 
bank can be accepted but cannot be executed.
    (b) Execution date of a payment order means the day on which the 
receiving bank may properly issue a payment order in execution of 
the sender's order. The execution date may be determined by 
instruction of the sender but cannot be earlier than the day the 
order is received and, unless otherwise determined, is the day the 
order is received. If the sender's instruction states a payment 
date, the execution date is the payment date or an earlier date on 
which execution is reasonably necessary to allow payment to the 
beneficiary on the payment date.

Section 4A-302. Obligations of Receiving Bank in Execution of Payment 
Order

    (a) Except as provided in subsections (b) through (d), if the 
receiving bank accepts a payment order pursuant to section 4A-
209(a), the bank has the following obligations in executing the 
order:
    (1) The receiving bank is obliged to issue, on the execution 
date, a payment order complying with the sender's order and to 
follow the sender's instructions concerning (i) any intermediary 
bank or funds-transfer system to be used in carrying out the funds 
transfer, or (ii) the means by which payment orders are to be 
transmitted in the funds transfer. If the originator's bank issues a 
payment order to an intermediary bank, the originator's bank is 
obliged to instruct the intermediary bank according to the 
instruction of the originator. An intermediary bank in the funds 
transfer is similarly bound by an instruction given to it by the 
sender of the payment order it accepts.
    (2) If the sender's instruction states that the funds transfer 
is to be carried out telephonically or by wire transfer or otherwise 
indicates that the funds transfer is to be carried out by the most 
expeditious means, the receiving bank is obliged to transmit its 
payment order by the most expeditious available means, and to 
instruct any intermediary bank accordingly. If a sender's 
instruction states a payment date, the receiving bank is obliged to 
transmit its payment order at a time and by means reasonably 
necessary to allow payment to the beneficiary on the payment date or 
as soon thereafter as is feasible.
    (b) Unless otherwise instructed, a receiving bank executing a 
payment order may (i) use any funds-transfer system if use of that 
system is reasonable in the circumstances, and (ii) issue a payment 
order to the beneficiary's bank or to an intermediary bank through 
which a payment order conforming to the sender's order can 
expeditiously be issued to the beneficiary's bank if the receiving 
bank exercises ordinary care in the selection of the intermediary 
bank. A receiving bank is not required to follow an instruction of 
the sender designating a funds-transfer system to be used in 
carrying out the funds transfer if the receiving bank, in good 
faith, determines that it is not feasible to follow the instruction 
or that following the instruction would unduly delay completion of 
the funds transfer.
    (c) Unless subsection (a)(2) applies or the receiving bank is 
otherwise instructed, the bank may execute a payment order by 
transmitting its payment order by first class mail or by any means 
reasonable in the circumstances. If the receiving bank is instructed 
to execute the sender's order by transmitting its payment order by 
the means stated or by any means as expeditious as the means stated.
    (d) Unless instructed by the sender, (i) the receiving bank may 
not obtain payment of its charges for services and expenses in 
connection with the execution of the sender's order by issuing a 
payment order in an

[[Page 31399]]

amount equal to the amount of the sender's order less the amount of 
the charges, and (ii) may not instruct a subsequent receiving bank 
to obtain payment of its charges in the same manner.

Section 4A-303. Erroneous Execution of Payment Order

    (a) A receiving bank that (i) executes the payment order of the 
sender by issuing a payment order in an amount greater than the 
amount of the sender's order, or (ii) issues a payment order in 
execution of the sender's order and then issues a duplicate order, 
is entitled to payment of the amount of the sender's order under 
section 4A-402(c) if that subsection is otherwise satisfied. The 
bank is entitled to recover from the beneficiary of the erroneous 
order the excess payment received to the extent allowed by the law 
governing mistake and restitution.
    (b) A receiving bank that executes the payment order of the 
sender by issuing a payment order in an amount less than the amount 
of the sender's order is entitled to payment of the amount of the 
sender's order under section 4A-402(c) if (i) that subsection is 
otherwise satisfied and (ii) the bank corrects its mistake by 
issuing an additional payment order for the benefit of the 
beneficiary of the sender's order. If the error is not corrected, 
the issuer of the erroneous order is entitled to receive or retain 
payment from the sender of the order it accepted only to the extent 
of the amount of the erroneous order. This subsection does not apply 
if the receiving bank executes the sender's payment order by issuing 
a payment order in an amount less than the amount of the sender's 
order for the purpose of obtaining payment of its charges for 
services and expenses pursuant to instruction of the sender.
    (c) If a receiving bank executes the payment order of the sender 
by issuing a payment order to a beneficiary different from the 
beneficiary of the sender's order and the funds transfer is 
completed on the basis of that error, the sender of the payment 
order that was erroneously executed and all previous senders in the 
funds transfer are not obliged to pay the payment orders they 
issued. The issuer of the erroneous order is entitled to recover 
from the beneficiary of the order the payment received to the extent 
allowed by the law governing mistake and restitution.

Section 4A-304. Duty of Sender To Report Erroneously Executed Payment 
Order

    If the sender of a payment order that is erroneously executed as 
stated in section 4A-303 receives notification from the receiving 
bank that the order was executed or that the sender's account was 
debited with respect to the order, the sender has a duty to exercise 
ordinary care to determine, on the basis of information available to 
the sender, that the order was erroneously executed and to notify 
the bank of the relevant facts within a reasonable time not 
exceeding 90 days after the notification from the bank was received 
by the sender. If the sender fails to perform that duty, the bank is 
not obliged to pay interest on any amount refundable to the sender 
under section 4A-402(d) for the period before the bank learns of the 
execution error. The bank is not entitled to any recovery from the 
sender on account of a failure by the sender to perform the duty 
stated in this section.

Section 4A-305. Liability for Late or Improper Execution or Failure To 
Execute Payment Order

    (a) If a funds transfer is completed but execution of a payment 
order by the receiving bank in breach of section 4A-302 results in 
delay in payment to the beneficiary, the bank is obliged to pay 
interest to either the originator or the beneficiary of the funds 
transfer for the period of delay caused by the improper execution. 
Except as provided in subsection (c), additional damages are not 
recoverable.
    (b) If execution of a payment order by a receiving bank in 
breach of section 4A-302 results in (i) noncompletion of the funds 
transfer, (ii) failure to use an intermediary bank designated by the 
originator, or (iii) issuance of a payment order that does not 
comply with the terms of the payment order of the originator, the 
bank is liable to the originator for its expenses in the funds 
transfer and for incidental expenses and interest losses, to the 
extent not covered by subsection (a), resulting from the improper 
execution. Except as provided in subsection (c), additional damages 
are not recoverable.
    (c) In addition to the amounts payable under subsections (a) and 
(b), damages, including consequential damages, are recoverable to 
the extent provided in an express written agreement of the receiving 
bank.
    (d) If a receiving bank fails to execute a payment order it was 
obliged by express agreement to execute, the receiving bank is 
liable to the sender for its expenses in the transaction and for 
incidential expenses and interest losses resulting from the failure 
to execute. Additional damages, including consequential damages, are 
recoverable to the extent provided in an express written agreement 
of the receiving bank, but are not otherwise recoverable.
    (e) Reasonable attorney's fees are recoverable if demand for 
compensation under subsection (a) or (b) is made and refused before 
an action is brought on the claim. If a claim is made for breach of 
an agreement under subsection (d) and the agreement does not provide 
for damages, reasonable attorney's fees are recoverable if demand 
for compensation under subsection (d) is made and refused before an 
action is brought on the claim.
    (f) Except as stated in this section, the liability of a 
receiving bank under subsections (a) and (b) of this section may not 
be varied by agreement.

Part 4--Payment

Section 4A-401. Payment Date

    Payment date of a payment order means the day on which the 
amount of the order is payable to the beneficiary by the 
beneficiary's bank. The payment date may be determined by 
instruction of the sender but cannot be earlier than the day the 
order is received by the beneficiary's bank and, unless otherwise 
determined, is the day the order is received by the beneficiary's 
bank.

Section 4A-402. Obligation of Sender To Pay Receiving Bank

    (a) This section is subject to sections 4A-205 and 4A-207.
    (b) With respect to a payment order issued to the beneficiary's 
bank, acceptance of the order by the bank obliges the sender to pay 
the bank the amount of the order, but payment is not due until the 
payment date of the order.
    (c) This subsection is subject to subsection (e) and to section 
4A-303. With respect to a payment order issued to a receiving bank 
other than the beneficiary's bank, acceptance of the order by the 
receiving bank obliges the sender to pay the bank the amount of the 
sender's order. Payment by the sender is not due until the execution 
date of the sender's order. The obligation of that sender to pay its 
payment order is excused if the funds transfer is not completed by 
acceptance by the beneficiary's bank of a payment order instructing 
payment to the beneficiary of that sender's payment order.
    (d) If the sender of a payment order pays the order and was not 
obliged to pay all or part of the amount paid, the bank receiving 
payment is obliged to refund payment to the extent the sender was 
not obliged to pay. Except as provided in sections 4A-204 and 4A-
304, interest is payable on the refundable amount from the date of 
payment.
    (e) If a funds transfer is not completed as stated in subsection 
(c) and an intermediary bank is obliged to refund payment as stated 
in subsection (d) but is unable to do so because not permitted by 
applicable law or because the bank suspends payments, a sender in 
the funds transfer that executed a payment order in compliance with 
an instruction, as stated in section 4A-302(a)(1), to route the 
funds transfer through that intermediary bank is entitled to receive 
or retain payment from the sender of the payment order that it 
accepted. The first sender in the funds transfer that issued an 
instruction requiring routing through that intermediary bank is 
subrogated to the right of the bank that paid the intermediary bank 
to refund as stated in subsection (d) of this section .
    (f) The right of the sender of a payment order to be excused 
from the obligation to pay the order as stated in this subsection 
(c) or to receive refund under subsection (d) may not be varied by 
agreement.

Section 4A-403. Payment by Sender To Receiving Bank

    (a) Payment of the sender's obligation under section 4A-402 to 
pay the receiving bank occurs as follows:
    (1) If the sender is a bank, payment occurs when the receiving 
bank receives final settlement of the obligation through a Federal 
Reserve Bank or through a funds-transfer system.
    (2) If the sender is a bank and the sender (i) credited an 
account of the receiving bank with the sender, or (ii) caused an 
account of the receiving bank in another bank to be credited, 
payment occurs when the credit is withdrawn or, if not withdrawn, at 
midnight of the day on which the credit is withdrawable and the 
receiving bank learns of that fact.

[[Page 31400]]

    (3) If the receiving bank debits an account of the sender with 
the receiving bank, payment occurs when the debit is made to the 
extent the debit is covered by a withdrawable credit balance in the 
account.
    (b) If the sender and receiving bank are members of a funds-
transfer system that nets obligations multilaterally among 
participants, the receiving bank receives final settlement when 
settlement is complete in accordance with the rules of the system. 
The obligation of the sender to pay the amount of a payment order 
transmitted through the funds-transfer system may be satisfied, to 
the extent permitted by the rules of the system, by setting off and 
applying against the sender's obligation the right of the sender to 
receive payment from the receiving bank of the amount of any other 
payment order transmitted to the sender by the receiving bank 
through the funds-transfer system. The aggregate balance of 
obligations owed by each sender to each receiving bank in the funds-
transfer system may be satisfied, to the extent permitted by the 
rules of the system, by setting off and applying against that 
balance the aggregate balance of obligations owed to the sender by 
other members of the system. The aggregate balance is determined 
after the right of setoff stated in the second sentence of this 
subsection has been exercised.
    (c) If two banks transmit payment orders to each other under an 
agreement that settlement of the obligations of each bank to the 
other under section 4A-402 will be made at the end of the day or 
other period, the total amount owed with respect to all orders 
transmitted by one bank shall be set off against the total amount 
owed with respect to all orders transmitted by the other bank. To 
the extent of the setoff, each bank has made payment to the other.
    (d) In a case not covered by paragraph (a) of this section, the 
time when payment of the sender's obligation under section 4A-402(b) 
or 4A-402(c) occurs is governed by applicable principles of law that 
determine when an obligation is satisfied.

Section 4A-404. Obligation of Beneficiary's Bank To Pay and Give Notice 
to Beneficiary

    (a) Subject to sections 4A-211(e), 4A-405(d), and 4A-405(e), if 
a beneficiary's bank accepts a payment order, the bank is obliged to 
pay the amount of the order to the beneficiary of the order. Payment 
is due on the payment date of the order, but if acceptance occurs on 
the payment date after the close of the funds-transfer business day 
of the bank, payment is due on the next funds-transfer business day. 
If the bank refuses to pay after demand by the beneficiary and 
receipt of notice of particular circumstances that will give rise to 
consequential damages as a result of nonpayment, the beneficiary may 
recover damages resulting from the refusal to pay to the extent the 
bank had notice of the damages, unless the bank proves that it did 
not pay because of a reasonable doubt concerning the right of the 
beneficiary to payment.
    (b) If a payment order accepted by the beneficiary's bank 
instructs payment to an account of the beneficiary, the bank is 
obliged to notify the beneficiary of receipt of the order before 
midnight of the next funds-transfer business day following the 
payment date. If the payment order does not instruct payment to an 
account of the beneficiary, the bank is required to notify the 
beneficiary only if notice is required by the order. Notice may be 
given by first class mail or any other means reasonable in the 
circumstances. If the bank fails to give the required notice, the 
bank is obliged to pay interest to the beneficiary on the amount of 
the payment order from the day notice should have been given until 
the day the beneficiary learned of receipt of the payment order by 
the bank. No other damages are recoverable. Reasonable attorney's 
fees are also recoverable if demand for interest is made and refused 
before an action is brought on the claim.
    (c) The right of a beneficiary to receive payment and damages as 
stated in subsection (a) may not be varied by agreement or a funds-
transfer system rule. The right of a beneficiary to be notified as 
stated in subsection (b) of this section may be varied by agreement 
of the beneficiary or by a funds-transfer system rule if the 
beneficiary is notified of the rule before initiation of the funds 
transfer.

Section 4A-405. Payment by Beneficiary's Bank To Beneficiary

    (a) If the beneficiary's bank credits an account of the 
beneficiary of a payment order, payment of the bank's obligation 
under section 4A-404(a) occurs when and to the extent (i) the 
beneficiary is notified of the right to withdraw the credit, (ii) 
the bank lawfully applies the credit to a debt of the beneficiary, 
or (iii) funds with respect to the order are otherwise made 
available to the beneficiary by the bank.
    (b) If the beneficiary's bank does not credit an account of the 
beneficiary of a payment order, the time when payment of the bank's 
obligation under section 4A-404(a) occurs is governed by principles 
of law that determine when an obligation is satisfied.
    (c) Except as stated in paragraphs (d) and (e) of this section, 
if the beneficiary's bank pays the beneficiary of a payment order 
under a condition to payment or agreement of the beneficiary giving 
the bank the right to recover payment from the beneficiary if the 
bank does not receive payment of the order, the condition to payment 
or agreement is not enforceable.
    (d) A funds-transfer system rule may provide that payments made 
to beneficiaries of funds transfer made through the system are 
provisional until receipt of payment by the beneficiary's bank of 
the payment order it accepted. A beneficiary's bank that makes a 
payment that is provisional under the rule is entitled to refund 
from the beneficiary if (i) the rule requires that both the 
beneficiary and the originator be given notice of the provisional 
nature of the payment before the funds transfer is initiated, (ii) 
the beneficiary, the beneficiary's bank and the originator's bank 
agreed to be bound by the rule, and (iii) the beneficiary's bank did 
not receive payment of the payment order that it accepted. If the 
beneficiary is obliged to refund payment to the beneficiary's bank, 
acceptance of the payment order by the beneficiary's bank is 
nullified and no payment by the originator of the funds transfer to 
the beneficiary occurs under section 4A-406.
    (e) This paragraph applies to a funds transfer that includes a 
payment order transmitted over a funds-transfer system that (i) nets 
obligations-multilaterally among participants, and (ii) has in 
effect a loss-sharing agreement among participants for the purpose 
of providing funds necessary to complete settlement of the 
obligations of one or more participants that do not meet their 
settlement obligations. If the beneficiary's bank in the funds 
transfer accepts a payment order and the system fails to complete 
settlement pursuant to its rules with respect to any payment order 
in the funds transfer, (i) the acceptance by the beneficiary's bank 
is nullified and no person has any right or obligation based on the 
acceptance, (ii) the beneficiary's bank is entitled to recover 
payment from the beneficiary, (iii) no payment by the originator to 
the beneficiary occurs under section 4A-406, and (iv) subject to 
section 4A-402(e), each sender in the funds transfer is excused from 
its obligation to pay its payment order under section 4A-402(c) 
because the funds transfer has not been completed.

Section 4A-406. Payment by Originator to Beneficiary; Discharge of 
Underlying Obligation

    (a) Subject to sections 4A-211(e), 4A-405(d), and 4A-405(e), the 
originator of a funds transfer pays the beneficiary of the 
originator's payment order (i) at the time a payment order for the 
benefit of the beneficiary is accepted by the beneficiary's bank in 
the funds transfer and (ii) in an amount equal to the amount of the 
order *40813 accepted by the beneficiary's bank, but not more than 
the amount of the originator's order.
    (b) If payment under paragraph (a) of this section is made to 
satisfy an obligation, the obligation is discharged to the same 
extent discharge would result from payment to the beneficiary of the 
same amount in money, unless (i) the payment under subsection (a) 
was made by a means prohibited by the contract of the beneficiary 
with respect to the obligation, (ii) the beneficiary, within a 
reasonable time after receiving notice of receipt of the order by 
the beneficiary's bank, notified the originator of the beneficiary's 
refusal of the payment, (iii) funds with respect to the order were 
not withdrawn by the beneficiary or applied to a debt of the 
beneficiary, and (iv) the beneficiary would suffer a loss that could 
reasonably have been avoided if payment had been made by a means 
complying with the contract. If payment by the originator does not 
result in discharge under this section, the originator is subrogated 
to the rights of the beneficiary to receive payment from the 
beneficiary's bank under section 4A-404(a).
    (c) For the purpose of determining whether discharge of an 
obligation occurs under paragraph (b) of this section, if the 
beneficiary's bank accepts a payment order in an amount equal to the 
amount of the originator's payment order less charges of one or more 
receiving banks in the funds transfer, payment to the beneficiary is 
deemed to be in the amount of the originator's order unless upon 
demand by the

[[Page 31401]]

beneficiary the originator does not pay the beneficiary the amount 
of the deducted charges.
    (d) Rights of the originator or of the beneficiary of a funds 
transfer under this section may be varied only by agreement of the 
originator and the beneficiary.

Part 5--Miscellaneous Provisions

Section 4A-501. Variation by Agreement and Effect of Funds-Transfer 
System Rule

    (a) Except as otherwise provided in this Article, the rights and 
obligations of a party to a funds transfer may be varied by 
agreement of the affected party.
    (b) Funds-transfer system rule means a rule of an association of 
banks (i) governing transmission of payment orders by means of a 
funds-transfer system of the association or rights and obligations 
with respect to those orders, or (ii) to the extent the rule governs 
rights and obligations between banks that are parties to a funds 
transfer in which a Federal Reserve Bank, acting as an intermediary 
bank, sends a payment order to the beneficiary's bank. Except as 
otherwise provided in this Article, a funds-transfer system rule 
governing rights and obligations between participating banks using 
the system may be effective even if the rule conflicts with this 
Article and indirectly affects another party to the funds transfer 
who does not consent to the rule. A funds-transfer system rule may 
also govern rights and obligations of parties other than 
participating banks using the system to the extent stated in 
sections 4A-404(c), 4A-405(d), and 4A-507(c).

Section 4A-502. Creditor Process Served on Receiving Bank; Setoff by 
Beneficiary's Bank

    (a) As used in this section, creditor process means levy, 
attachment, garnishment, notice of lien, sequestration, or similar 
process issued by or on behalf of a creditor or other claimant with 
respect to an account.
    (b) This subsection applies to creditor process with respect to 
an authorized account of the sender of a payment order if the 
creditor process is served on the receiving bank. For the purpose of 
determining rights with respect to the creditor process, if the 
receiving bank accepts the payment order the balance in the 
authorized account is deemed to be reduced by the amount of the 
payment order to the extent the bank did not otherwise receive 
payment of the order, unless the creditor process is served at a 
time and in a manner affording the bank a reasonable opportunity to 
act on it before the bank accepts the payment order.
    (c) If a beneficiary's bank has received a payment order for 
payment to the beneficiary's account in the bank, the following 
rules apply:
    (1) The bank may credit the beneficiary's account. The amount 
credited may be set off against an obligation owed by the 
beneficiary to the bank or may be applied to satisfy creditor 
process served on the bank with respect to the account.
    (2) The bank may credit the beneficiary's account and allow 
withdrawal of the amount credited unless creditor process with 
respect to the account is served at a time and in a manner affording 
the bank a reasonable opportunity to act to prevent withdrawal.
    (3) If creditor process with respect to the beneficiary's 
account has been served and the bank has had a reasonable 
opportunity to act on it, the bank may not reject the payment order 
except for a reason unrelated to the service of process.
    (d) Creditor process with respect to a payment by the originator 
to the beneficiary pursuant to a funds transfer may be served only 
on the beneficiary's bank with respect to the debt owned by that 
bank to the beneficiary. Any other bank served with the creditor 
process is not obliged to act with respect to the process.

Section 4A-503. Injunction or Restraining Order With Respect to Funds 
Transfer

    For proper cause and in compliance with applicable law, a court 
may restrain (i) a person from issuing a payment order to initiate a 
funds transfer, (ii) an originator's bank from executing the payment 
order of the originator, or (iii) the beneficiary's bank from 
releasing funds to the beneficiary or the beneficiary from 
withdrawing the funds. A court may not otherwise restrain a person 
from issuing a payment order, paying or receiving payment of a 
payment order, or otherwise acting with respect to a funds transfer.

Section 4A-504. Order In Which Items and Payment Orders May Be Charged 
to Account; Order of Withdrawals From Account

    (a) If a receiving bank has received more than one payment order 
of the sender or one or more payment orders and other items that are 
payable from the sender's account, the bank may charge the sender's 
account with respect to the various orders and items in any 
sequence.
    (b) In determining whether a credit to an account has been 
withdrawn by the holder of the account or applied to a debt of the 
holder of the account, credits first made to the account are first 
withdrawn or applied.

Section 4A-505. Preclusion of Objection to Debit of Customer's Account

    If a receiving bank has received payment from its customer with 
respect to a payment order issued in the name of the customer as 
sender and accepted by the bank, and the customer received 
notification reasonably identifying the order, the customer is 
precluded from asserting that the bank is not entitled to retain the 
payment unless the customer notifies the bank of the customer's 
objection to the payment within one year after the notification was 
received by the customer.

Section 4A-506. Rate of Interest

    (a) If, under this Article, a receiving bank is obliged to pay 
interest with respect to a payment order issued to the bank, the 
amount payable may be determined (i) by agreement of the sender and 
receiving bank, or (ii) by a funds-transfer system rule if the 
payment order is transmitted through a funds-transfer system.
    (b) If the amount of interest is not determined by an agreement 
or rule as stated in subsection (a), the amount is calculated by 
multiplying the applicable Federal Funds rate by the amount on which 
interest is payable, and then multiplying the product by the number 
of days for which interest is payable. The applicable Federal Funds 
rate is the average of the Federal Funds rates published by the 
Federal Reserve Bank of New York for each of the days for which 
interest is payable divided by 360. The Federal Funds rate for any 
day on which a published rate is not available is the same as the 
published rate for the next preceding day for which there is a 
published rate. If a receiving bank that accepted a payment order is 
required to refund payment to the sender of the order because the 
funds transfer was not completed, but the failure to complete was 
not due to any fault by the bank, the interest payable is reduced by 
a percentage equal to the reserve requirement on deposits of the 
receiving bank.

Section 4A-507. Choice of Law

    (a) The following rules apply unless the affected parties 
otherwise agree or paragraph (c) of this section applies:
    (1) The rights and obligations between the sender of a payment 
order and the receiving bank are governed by the law of the 
jurisdiction in which the receiving bank is located.
    (2) The rights and obligations between the beneficiary's bank 
and the beneficiary are governed by the law of the jurisdiction in 
which the beneficiary's bank is located.
    (3) The issue of when payment is made pursuant to a funds 
transfer by the originator to the beneficiary is governed by the law 
of the jurisdiction in which the beneficiary's bank is located.
    (b) If the parties described in each subsection of paragraph (a) 
of this section have made an agreement selecting the law of a 
particular jurisdiction to govern rights and obligations between 
each other, the law of that jurisdiction governs those rights and 
obligations, whether or not the payment order or the funds transfer 
bears a reasonable relation to that jurisdiction.
    (c) A funds-transfer system rule may select the law of a 
particular jurisdiction to govern (i) rights and obligations between 
participating banks with respect to payment orders transmitted or 
processed through the system, or (ii) the rights and obligations of 
some or all parties to a funds transfer any part of which is carried 
out by means of the system. A choice of law made pursuant to clause 
(i) is binding on participating banks. A choice of law made pursuant 
to clause (ii) is binding on the originator, other sender, or a 
receiving bank having notice that the funds-transfer system might be 
used in the funds transfer and of the choice of law by the system 
when the originator, other sender, or receiving bank issued or 
accepted a payment order. The beneficiary of a funds transfer is 
bound by the choice of law if, when the funds transfer is initiated, 
the beneficiary has notice that the funds-transfer system might be 
used in the funds transfer and of the choice of law by the system. 
The law of a jurisdiction selected pursuant to this subsection may 
govern, whether or not that law bears a reasonable relation to the 
matter in issue.
    (d) In the event of inconsistency between an agreement under 
paragraph (b) of this section and a choice-of-law rule under

[[Page 31402]]

paragraph (c) of this section, the agreement under paragraph (b) 
prevails.
    (e) If a funds transfer is made by use of more than one funds-
transfer system and there is inconsistency between choice-of-law 
rules of the systems, the matter in issue is governed by the law of 
the selected jurisdiction that has the most significant relationship 
to the matter in issue.

    By order of the Board of Governors of the Federal Reserve 
System.
Ann Misback,
Secretary of the Board.
[FR Doc. 2021-11759 Filed 6-10-21; 8:45 am]
BILLING CODE P

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