CUNA Regulatory Comment Call


January 28, 2000

NEW PILOT TO TRUNCATE CHECKS TO ACH AT POINT-OF-PURCHASE

Major Rule

EXECUTIVE SUMMARY

NACHA-The Electronic Payments Association requests comments on a pilot to give merchants the ability to truncate checks into ACH items items at the point-of-purchase. In this pilot, the merchant collects a written authorization and a completed, signed check from the consumer. The merchant uses a MICR reader to obtain the consumer's routing and account numbers, the check is stamped void and an ACH item is created (POP check entries). Specific rules for this pilot are similar to other rules that allow for checks to be truncated into ACH items. This rule amendment would be effective from March 17, 2000 through March 16, 2001.

Comments are due by February 11, 2000. Please submit your comments to CUNA by February 7, 2000. Please feel free to fax your responses to CUNA at 202-371-8240; e-mail them to Associate General Counsel Mary Dunn at mdunn@cuna.com or to Assistant General Counsel Michelle Profit at mprofit@cuna.com or mail them to Mary or Michelle in c/o CUNA's Regulatory Advocacy Department, 805 15th Street, NW, Suite 300, Washington, DC 20005.

NACHA has prepared its own survey that it would like financial institutions to complete on the proposed rule change. Please forward any copy of this survey to CUNA as well.

LEGAL DISCUSSION

All POP check entries are subject to the Uniform Commercial Code (UCC) the Federal Reserve's Regulation CC, Clearing House Rules, and the NACHA Rules. The Electronic Funds Transfer Act and Federal Reserve's Regulation E do not apply because re-presented check entries started as checks, and fund transfers originated by a check are excluded from coverage under the Electronic Funds Transfer Act (see 15 U.S.C. 1693(a)(6)) and the Federal Reserve's Regulation E (see 12 C.F.R 205.3(c)(1)).

The NACHA Rules place guidelines on what types of checks are eligible to become a POP check entry. Checks are eligible for this program if they meet the requirements listed below:

The following guidelines apply to the re-presented check entries:

Ineligible Items

Items that are ineligible to be sent as POP check entries include, but are not limited to:

Additional ODFI Warranties & Responsibilities

In addition to general warranties that cover ODFI transmission of all ACH entries, ODFIs assume the following warranties related to POP check entries:

ODFIs should take actions to avoid the liability ODFIs become responsible for under these additional warranties. Specifically, an ODFI should modify its agreements with its merchants to share liability. In addition, ODFIs should establish procedures with their merchants for providing the original checks and copies of them when they are requested by RDFIs. ODFIs must also remember that for these ACH transactions, they are required to have a contractual agreement with NACHA. This agreement is supposed to ensure that the ODFI gathers and provides statistical data on this short-term rule.

ODFIS are also responsible for formatting. This includes, among other formatting requirements, (1) the need to include the specific description "KEPTCHECK" within the Company Entry Description Field, (2) the requirement to place the name of the original payee on the face of the check (i.e., the merchant) within the Company Name Field, and (3) the obligation to provide the check serial number of the truncated check within the Individual Identification Number Field. It should be noted that, although the RDFI will not be required to include the check serial number on the consumer's monthly bank statement, the Merchant must provide this information for reference purposes.

Original Item/Copy of Item

The proposal includes an ODFI warranty that the ODFI has entered into an agreement with the merchant to provide for the secure retention of the items and copies of the items (if the ODFI is not going to retain them).

An RDFI can send a written request to the ODFI to receive either the original item or a copy of the item to which the POP check entry relates:

If the item has been finally paid, the original item or a copy of the item must indicated this on its face.

In addition, the merchants must be able to provide a copy of the written authorization to the ODFI for two years, in case the ODFI requests it.

Item Endorsed

The items to which the POP check entry relates are deemed to have been endorsed prior to the transmission of the entries.

Written Authorization Requirement

The consumer's written authorization is required before the merchant can originate a POP entry. The authorization must (1) be in writing, signed or similarly authenticated by the consumer, (2) be readily identifiable as an ACH debit authorization, and (3) clearly and conspicuously state its terms. The merchant must provide a copy of the authorization to the consumer. The written authorization and the receipt can be provided to the consumer on the same document or on separate documents, as the merchant prefers.

Receipt Requirement

The proposed rule requires the Merchant to provide the Consumer with a receipt, at the point-of-purchase, that contains the following minimum amount of information:

The Rules Work Group has suggested that the NACHA Operating Rules recommend, but do not require, that the Merchant also provide the following information on the receipt provided to the Consumer:

* Note: The merchant cannot place the consumer's complete account number and complete identification number on the receipt.

Return of a PPD Point-of-Purchase Truncated Check Debit Entry

Unless the POP entry falls within a specific exception, the RDFI must transmit a return entry to the RDFI's ACH Operator by midnight of the second banking day following the banking day of receipt of the presentment notice (e.g., the PPD Point- of-Purchase Truncated Check Debit Entry). The presentment notice is deemed to be received when the ACH Operator makes the POP check entry available to the RDFI.

If a financial institution currently initiates all returns by midnight (RDFI's local time) of the banking day following the settlement date, then this difference in return time frames should not affect the institution's processing of return entries. If the RDFI initiates returns after midnight of the banking day following the settlement date, then the RDFI needs to initiate PPD Point-of-Purchase Truncated Check Debit Entry return entries by the midnight deadline.

The midnight deadline for transmitting return entries is also the applicable return time frame for RDFIs that are returning these entries because they: (1) are located in a state that has not adopted Revised Article 4 of the Uniform Commercial Code (1990 Official Text)1 and that have not revised their customer agreements to allow for electronic presentments, and 2) are located in a state that has a statute that requires the RDFI to return all cancelled checks to the Consumer in the periodic statement for a specific type of account.

For the following specific reasons, the RDFI will be able to transmit returns for POP check entries by transmitting them to its ACH Operator by its deposit deadline for the return entry to be made available to the ODFI no later than the opening of business on the banking day following the sixtieth calendar day following the settlement date of the entry. These reasons are:

  1. The consumer had placed a stop payment order on the check (item) to which the PPD Point-of-Purchase Truncated Check Debit Entry relates. The RDFI will be able to return the item if the Consumer notifies the RDFI that an item was not stopped as requested.
  2. The consumer claims that he did not authorize the Merchant to transmit the PPD Point-of-POP check entry or that the consumer revoked the authorization prior to the debit posting to the account.
  3. The consumer claims that the item to which the POP check entry relates was ineligible;
  4. The consumer claims that all signatures on the item to which the POP check entry relates are not authentic or authorized or the item has been altered.

In circumstances in which (1) the entry was not authorized or the authorization was revoked, (2) the item was ineligible, or (3) all signatures on the item are not authentic or authorized or the item has been altered, the consumer would be required to sign an affidavit in order for the RDFI to recredit the consumer's account and return the entry. Any subsequent dispute regarding an unpaid debt must be addressed directly between the merchant and the consumer. An affidavit is not required for the RDFI to return the ACH entry for a stop payment having been placed on the item (check).

Stop Payment of a PPD Point-of-Purchase Truncated Check Debit Entry

For stop payments on PPD Point-of-Purchase Truncated Check Debit Entries to consumer accounts, a minor variation from current NACHA Operating Rule provisions is included, stating that in order for a consumer to place a stop payment, the RDFI must have a reasonable opportunity to act upon the stop payment order prior to acting on the debit entry. This is in order to be consistent with the UCC and follows the requirements for re-presented check entries, point-of-purchase entries, and PPD Accounts Receivable Truncated Check Debit Entries.


QUESTIONS TO CONSIDER REGARDING THE NOTICE

Leagues and credit unions should feel free to fax their responses to CUNA at 202-371-8240 or e-mail them to Michelle Profit at mprofit@cuna.com. Thank you!!