Wednesday, August 4, 2004 Part IV Federal Reserve System 12 CFR Part 229 Availability of Funds and Collection of Checks; Final Rule VerDate jul<14>2003 16:22 Aug 03, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\04AUR3.SGM 04AUR3 47290 Federal Register / Vol. 69, No. 149 / Wednesday, August 4, 2004 / Rules and Regulations FEDERAL RESERVE SYSTEM paying banks and the unwillingness of agreement to do so. The New York some paying banks to receive electronic collecting bank then could create a 12 CFR Part 229 presentment.2 The requirement that substitute check to present to the New [Regulation CC; Docket No. R–1176] banks present the original check absent York paying bank. The New York agreement to the contrary and the paying bank would be required to take Availability of Funds and Collection of difficulty of obtaining alternate presentment of a substitute check that Checks presentment agreements with all paying met all the legal equivalence banks impedes the ability of banks that requirements. Thus, instead of AGENCY: Board of Governors of the want to process checks electronically to processing and transporting the original Federal Reserve System. take full advantage of that technology. check across the country, the California ACTION: Final rule. As a result, the payment system as a bank could collect the substitute check whole has not achieved the efficiencies using only local New York SUMMARY: The Board of Governors is and potential cost savings associated transportation. publishing final amendments to with handling checks electronically. Regulation CC that add a new subpart D, By authorizing the use of a new II. How the Check 21 Act Affects Banks with commentary, to implement the negotiable instrument called a substitute A. In General Check Clearing for the 21st Century Act. check, the Check Clearing for the 21st These amendments set forth the Century Act (the Check 21 Act or the Although the Check 21 Act is requirements of the Act that apply to Act) facilitates the broader use of designed to enable more efficient use of banks, a model consumer awareness electronic check processing without electronic check processing by allowing disclosure and other model notices, and mandating that any bank change its use of one piece of paper in place of indorsement and identification current check collection practices.3 A another, the law does not require any requirements for substitute checks. The substitute check is a paper reproduction bank to use electronic check processing, final amendments also clarify some of an original check that contains an receive electronic presentment, or create existing provisions of the rule and image of the front and back of the a substitute check. The Check 21 Act commentary. original check, is suitable for automated also does not make electronic check images or electronic check information DATES: This rule is effective on October processing in the same manner as the the legal equivalent of an original check. 28, 2004, except for model form C–5A original check, and meets other Moreover, the Check 21 Act does not in appendix C, which is effective technical requirements. A bank that for alter existing arrangements under which August 4, 2004, and paragraph (4) of consideration transfers, presents, or banks agree to return paid paper checks appendix D, which is effective on returns a substitute check (or a paper or to account holders with periodic January 1, 2006. electronic representation of a substitute check) warrants that (1) the substitute account statements. However, after the FOR FURTHER INFORMATION CONTACT: Jack effective date of the Check 21 Act, K. Walton, II, Assistant Director ((202) check contains an accurate image of the front and back of the original check and account holders that receive paid checks 452–2660), or Joseph P. Baressi, Senior with their statements may receive a mix Financial Services Analyst ((202) 452– a legend stating that it is the legal equivalent of the original check, and (2) of original checks and substitute checks. 3959), Division of Reserve Bank The characteristics of a substitute Operations and Payment Systems; or no depositary bank, drawee, drawer, or indorser will be asked to pay a check check are such that a bank receiving a Stephanie Martin, Associate General substitute check would be able to Counsel ((202) 452–3198), or Adrianne that it already has paid. A substitute check that meets the Check 21 Act’s process that substitute check to the G. Threatt, Counsel ((202) 452–3554), same extent that it could process the Legal Division; for users of requirements regarding accuracy, bears the legend, and for which a bank has original check. As a result, banks would Telecommunication Devices for the Deaf made the substitute check warranties is not be required to change their check (TDD) only, contact (202) 263–4869. the legal equivalent of the original check processing equipment because of the SUPPLEMENTARY INFORMATION: for all purposes and all persons. Check 21 Act, and, except as described Background The use of legally equivalent in the next section, there would be no substitute checks should facilitate need for a bank to treat original checks I. The Need for and General Provisions collection and return of checks in and substitute checks differently during of the Check 21 Act electronic form. For example, a the check collection and return process. Under current law, a bank must depositary bank in California that Because a legally equivalent substitute present the original paper check for receives a check drawn on a bank in check contains an accurate payment unless the paying bank has New York now must send the original representation of the information on the agreed to accept presentment in some paper check for collection unless it, or original check and all indorsement other form.1 Sections 3–501(b)(2) and 4– an intermediary collecting bank that information associated with the check, 110 of the Uniform Commercial Code presents checks sent by it, has an drawers and other persons should be (U.C.C.) specifically authorize banks electronic presentment agreement with able to rely on a substitute check just as and other persons to agree to alternative the paying bank. Under the Check 21 they would an original check for other means of presentment, such as Act, by contrast, the California bank purposes, such as proof of payment. could transfer check information electronic presentment. However, to B. Provisions Affecting All Banks engage in broad-based electronic electronically to a collecting bank in presentment, a presenting bank would New York with which it had an Certain provisions of the Check 21 need electronic presentment agreements Act will affect all banks, even those that with each bank to which it presents 2 Some paying banks and bank customers prefer do not choose to create substitute checks. This has proven impracticable to receive checks in paper form for operational or checks. For example, any bank that other reasons. transfers, presents, or returns a because of both the large number of 3 Pub. L. 108–100, 117 Stat. 1177 (codified at 12 U.S.C. 5001–5018). The Check 21 Act was enacted substitute check (or a paper or 1 See, e.g., section 3–501(b) of the Uniform on October 28, 2003, and takes effect on October 28, electronic representation of a substitute Commercial Code. 2004. check) for consideration would make VerDate jul<14>2003 16:22 Aug 03, 2004 Jkt 203001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR3.SGM 04AUR3 Federal Register / Vol. 69, No. 149 / Wednesday, August 4, 2004 / Rules and Regulations 47291 the substitute check warranties and reconverting bank.6 The Check 21 Act sought general comment on several would be responsible for indemnifying also requires the reconverting bank to issues, including whether it should any person that suffered a loss due to identify itself as such and to preserve include in Regulation CC a new U.C.C. the receipt of a substitute check instead the indorsements of parties that warranty regarding the drawer’s of the original check. A bank that previously handled the check in any authorization of remotely-created transferred a substitute check to a form. demand drafts. consumer who incurred a loss III. Overview of the Board’s Proposed associated with the substitute check also Overview of Comments on the Proposed Rule might be required to provide an Rule expedited recredit to that consumer. A The Board in January 2004 proposed The Board received comments on the bank that provides paid checks to to implement the Check 21 Act by proposed rule from 168 commenters, consumer customers with periodic adding to Regulation CC a new subpart including 107 depository institutions account statements or that otherwise D that would incorporate the and organizations representing provides a substitute check to a requirements of the Act applicable to depository institutions, 35 consumers consumer customer must provide a banks that create, receive, or provide and consumer groups, 14 nonbank disclosure that describes substitute substitute checks or paper or electronic service providers, and 12 other 7 checks and substitute check rights. representations of substitute checks. organizations and persons (including Although the Check 21 Act does not The Board proposed that subpart D one United States Senator). The vast require banks to make processing would contain provisions concerning majority of these commenters generally changes to receive substitute checks, a requirements a substitute check must approved of the Check 21 Act and the bank will be required to qualify a meet to be the legal equivalent of an Board’s proposed rule but expressed substitute check for return differently original check, reconverting bank views about how the Board could than it does an original check.