H. R. 1474
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
An Act
To facilitate check truncation by authorizing substitute checks, to foster innovation
in the check collection system without mandating receipt of checks in electronic
form, and to improve the overall efficiency of the Nation’s payments system,
and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Check Clearing
for the 21st Century Act’’ or the ‘‘Check 21 Act’’.
(b) TABLE OF CONTENTS.—The table of contents of this Act
is as follows:
Sec.
1. Short title; table of contents.
Sec.
2. Findings; purposes.
Sec.
3. Definitions.
Sec.
4. General provisions governing substitute checks.
Sec.
5. Substitute check warranties.
Sec.
6. Indemnity.
Sec.
7. Expedited recredit for consumers.
Sec.
8. Expedited recredit procedures for banks.
Sec.
9. Delays in an emergency.
Sec. 10. Measure of damages.
Sec. 11. Statute of limitations and notice of claim.
Sec. 12. Consumer awareness.
Sec. 13. Effect on other law.
Sec. 14. Variation by agreement.
Sec. 15. Regulations.
Sec. 16. Study and report on funds availability.
Sec. 17. Statistical reporting of costs and revenues for transporting checks between
Federal Reserve banks.
Sec. 18. Evaluation and report by the Comptroller General.
Sec. 19. Depositary services efficiency and cost reduction.
Sec. 20. Effective date.
SEC. 2. FINDINGS; PURPOSES.
(a) FINDINGS.—The Congress finds as follows:
(1) In the Expedited Funds Availability Act, enacted on
August 10, 1987, the Congress directed the Board of Governors
of the Federal Reserve System to consider establishing regula-
tions requiring Federal reserve banks and depository institu-
tions to provide for check truncation, in order to improve the
check processing system.
(2) In that same Act, the Congress—
(A) provided the Board of Governors of the Federal
Reserve System with full authority to regulate all aspects
of the payment system, including the receipt, payment,
collection, and clearing of checks, and related functions
of the payment system pertaining to checks; and
H. R. 1474—2
(B) directed that the exercise of such authority by
the Board superseded any State law, including the Uniform
Commercial Code, as in effect in any State.
(3) Check truncation is no less desirable in 2003 for both
financial service customers and the financial services industry,
to reduce costs, improve efficiency in check collections, and
expedite funds availability for customers than it was over 15
years ago when Congress first directed the Board to consider
establishing such a process.
(b) PURPOSES.—The purposes of this Act are as follows:
(1) To facilitate check truncation by authorizing substitute
checks.
(2) To foster innovation in the check collection system
without mandating receipt of checks in electronic form.
(3) To improve the overall efficiency of the Nation’s pay-
ments system.
SEC. 3. DEFINITIONS.
For purposes of this Act, the following definitions shall apply:
(1) ACCOUNT.—The term ‘‘account’’ means a deposit account
at a bank.
(2) BANK.—The term ‘‘bank’’ means any person that is
located in a State and engaged in the business of banking
and includes—
(A) any depository institution (as defined in section
19(b)(1)(A) of the Federal Reserve Act);
(B) any Federal reserve bank;
(C) any Federal home loan bank; or
(D) to the extent it acts as a payor—
(i) the Treasury of the United States;
(ii) the United States Postal Service;
(iii) a State government; or
(iv) a unit of general local government (as defined
in section 602(24) of the Expedited Funds Availability
Act).
(3) BANKING TERMS.—
(A) COLLECTING
BANK.—The term ‘‘collecting bank’’
means any bank handling a check for collection except
the paying bank.
(B) DEPOSITARY BANK.—The term ‘‘depositary bank’’
means—
(i) the first bank to which a check is transferred,
even if such bank is also the paying bank or the
payee; or
(ii) a bank to which a check is transferred for
deposit in an account at such bank, even if the check
is physically received and indorsed first by another
bank.
(C) PAYING BANK.—The term ‘‘paying bank’’ means—
(i) the bank by which a check is payable, unless
the check is payable at or through another bank and
is sent to the other bank for payment or collection;
or
(ii) the bank at or through which a check is payable
and to which the check is sent for payment or collec-
tion.
(D) RETURNING BANK.—
H. R. 1474—3
(i) IN GENERAL.—The term ‘‘returning bank’’ means
a bank (other than the paying or depositary bank)
handling a returned check or notice in lieu of return.
(ii) TREATMENT AS COLLECTING BANK.—No provi-
sion of this Act shall be construed as affecting the
treatment of a returning bank as a collecting bank
for purposes of section 4–202(b) of the Uniform
Commercial Code.
(4) BOARD.—The term ‘‘Board’’ means the Board of Gov-
ernors of the Federal Reserve System.
(5) BUSINESS DAY.—The term ‘‘business day’’ has the same
meaning as in section 602(3) of the Expedited Funds Avail-
ability Act.
(6) CHECK.—The term ‘‘check’’—
(A) means a draft, payable on demand and drawn
on or payable through or at an office of a bank, whether
or not negotiable, that is handled for forward collection
or return, including a substitute check and a travelers
check; and
(B) does not include a noncash item or an item payable
in a medium other than United States dollars.
(7) CONSUMER.—The term ‘‘consumer’’ means an individual
who—
(A) with respect to a check handled for forward collec-
tion, draws the check on a consumer account; or
(B) with respect to a check handled for return, deposits
the check into, or cashes the check against, a consumer
account.
(8) CONSUMER
ACCOUNT.—The term ‘‘consumer account’’
has the same meaning as in section 602(10) of the Expedited
Funds Availability Act.
(9) CUSTOMER.—The term ‘‘customer’’ means a person
having an account with a bank.
(10) FORWARD COLLECTION.—The term ‘‘forward collection’’
means the transfer by a bank of a check to a collecting bank
for settlement or the paying bank for payment.
(11) INDEMNIFYING BANK.—The term ‘‘indemnifying bank’’
means a bank that is providing an indemnity under section
6 with respect to a substitute check.
(12) MICR LINE.—The terms ‘‘MICR line’’ and ‘‘magnetic
ink character recognition line’’ mean the numbers, which may
include the bank routing number, account number, check
number, check amount, and other information, that are printed
near the bottom of a check in magnetic ink in accordance
with generally applicable industry standards.
(13) NONCASH ITEM.—The term ‘‘noncash item’’ has the
same meaning as in section 602(14) of the Expedited Funds
Availability Act.
(14) PERSON.—The term ‘‘person’’ means a natural person,
corporation, unincorporated company, partnership, government
unit or instrumentality, trust, or any other entity or organiza-
tion.
(15) RECONVERTING BANK.—The term ‘‘reconverting bank’’
means—
(A) the bank that creates a substitute check; or
H. R. 1474—4
(B) if a substitute check is created by a person other
than a bank, the first bank that transfers or presents
such substitute check.
(16) SUBSTITUTE
CHECK.—The term ‘‘substitute check’’
means a paper reproduction of the original check that—
(A) contains an image of the front and back of the
original check;
(B) bears a MICR line containing all the information
appearing on the MICR line of the original check, except
as provided under generally applicable industry standards
for substitute checks to facilitate the processing of sub-
stitute checks;
(C) conforms, in paper stock, dimension, and otherwise,
with generally applicable industry standards for substitute
checks; and
(D) is suitable for automated processing in the same
manner as the original check.
(17) STATE.—The term ‘‘State’’ has the same meaning as
in section 3(a) of the Federal Deposit Insurance Act.
(18) TRUNCATE.—The term ‘‘truncate’’ means to remove
an original paper check from the check collection or return
process and send to a recipient, in lieu of such original paper
check, a substitute check or, by agreement, information relating
to the original check (including data taken from the MICR
line of the original check or an electronic image of the original
check), whether with or without subsequent delivery of the
original paper check.
(19) UNIFORM
COMMERCIAL
CODE.—The term ‘‘Uniform
Commercial Code’’ means the Uniform Commercial Code in
effect in a State.
(20) OTHER TERMS.—Unless the context requires otherwise,
the terms not defined in this section shall have the same
meanings as in the Uniform Commercial Code.
SEC. 4. GENERAL PROVISIONS GOVERNING SUBSTITUTE CHECKS.
(a) NO AGREEMENT REQUIRED.—A person may deposit, present,
or send for collection or return a substitute check without an
agreement with the recipient, so long as a bank has made the
warranties in section 5 with respect to such substitute check.
(b) LEGAL EQUIVALENCE.—A substitute check shall be the legal
equivalent of the original check for all purposes, including any
provision of any Federal or State law, and for all persons if the
substitute check—
(1) accurately represents all of the information on the front
and back of the original check as of the time the original
check was truncated; and
(2) bears the legend: ‘‘This is a legal copy of your check.
You can use it the same way you would use the original
check.’’.
(c) ENDORSEMENTS.—A bank shall ensure that the substitute
check for which the bank is the reconverting bank bears all endorse-
ments applied by parties that previously handled the check (whether
in electronic form or in the form of the original paper check or
a substitute check) for forward collection or return.
(d) IDENTIFICATION
OF RECONVERTING BANK.—A bank shall
identify itself as a reconverting bank on any substitute check for
which the bank is a reconverting bank so as to preserve any
H. R. 1474—5
previous reconverting bank identifications in conformance with gen-
erally applicable industry standards.
(e) APPLICABLE LAW.—A substitute check that is the legal
equivalent of the original check under subsection (b) shall be subject
to any provision, including any provision relating to the protection
of customers, of part 229 of title 12 of the Code of Federal Regula-
tions, the Uniform Commercial Code, and any other applicable
Federal or State law as if such substitute check were the original
check, to the extent such provision of law is not inconsistent with
this Act.
SEC. 5. SUBSTITUTE CHECK WARRANTIES.
A bank that transfers, presents, or returns a substitute check
and receives consideration for the check warrants, as a matter
of law, to the transferee, any subsequent collecting or returning
bank, the depositary bank, the drawee, the drawer, the payee,
the depositor, and any endorser (regardless of whether the war-
rantee receives the substitute check or another paper or electronic
form of the substitute check or original check) that—
(1) the substitute check meets all the requirements for
legal equivalence under section 4(b); and
(2) no depositary bank, drawee, drawer, or endorser will
receive presentment or return of the substitute check, the
original check, or a copy or other paper or electronic version
of the substitute check or original check such that the bank,
drawee, drawer, or endorser will be asked to make a payment
based on a check that the bank, drawee, drawer, or endorser
has already paid.
SEC. 6. INDEMNITY.
(a) INDEMNITY.—A reconverting bank and each bank that subse-
quently transfers, presents, or returns a substitute check in any
electronic or paper form, and receives consideration for such
transfer, presentment, or return shall indemnify the transferee,
any subsequent collecting or returning bank, the depositary bank,
the drawee, the drawer, the payee, the depositor, and any endorser,
up to the amount described in subsections (b) and (c), as applicable,
to the extent of any loss incurred by any recipient of a substitute
check if that loss occurred due to the receipt of a substitute check
instead of the original check.
(b) INDEMNITY AMOUNT.—
(1) AMOUNT
IN
EVENT
OF
BREACH
OF
WARRANTY.—The
amount of the indemnity under subsection (a) shall be the
amount of any loss (including costs and reasonable attorney’s
fees and other expenses of representation) proximately caused
by a breach of a warranty provided under section 5.
(2) AMOUNT
IN
ABSENCE
OF
BREACH
OF
WARRANTY.—In
the absence of a breach of a warranty provided under section
5, the amount of the indemnity under subsection (a) shall
be the sum of—
(A) the amount of any loss, up to the amount of the
substitute check; and
(B) interest and expenses (including costs and reason-
able attorney’s fees and other expenses of representation).
(c) COMPARATIVE NEGLIGENCE.—
(1) IN GENERAL.—If a loss described in subsection (a) results
in whole or in part from the negligence or failure to act in
good faith on the part of an indemnified party, then that
H. R. 1474—6
party’s indemnification under this section shall be reduced in
proportion to the amount of negligence or bad faith attributable
to that party.
(2) RULE OF CONSTRUCTION.—Nothing in this subsection
reduces the rights of a consumer or any other person under
the Uniform Commercial Code or other applicable provision
of Federal or State law.
(d) EFFECT OF PRODUCING ORIGINAL CHECK OR COPY.—
(1) IN GENERAL.—If the indemnifying bank produces the
original check or a copy of the original check (including an
image or a substitute check) that accurately represents all
of the information on the front and back of the original check
(as of the time the original check was truncated) or is otherwise
sufficient to determine whether or not a claim is valid, the
indemnifying bank shall—
(A) be liable under this section only for losses covered
by the indemnity that are incurred up to the time that
the original check or copy is provided to the indemnified
party; and
(B) have a right to the return of any funds it has
paid under the indemnity in excess of those losses.
(2) COORDINATION
OF
INDEMNITY
WITH
IMPLIED
WAR-
RANTY.—The production of the original check, a substitute
check, or a copy under paragraph (1) by an indemnifying bank
shall not absolve the bank from any liability on a warranty
established under this Act or any other provision of law.
(e) SUBROGATION OF RIGHTS.—
(1) IN GENERAL.—Each indemnifying bank shall be sub-
rogated to the rights of any indemnified party to the extent
of the indemnity.
(2) RECOVERY UNDER WARRANTY.—A bank that indemnifies
a party under this section may attempt to recover from another
party based on a warranty or other claim.
(3) DUTY OF INDEMNIFIED PARTY.—Each indemnified party
shall have a duty to comply with all reasonable requests for
assistance from an indemnifying bank in connection with any
claim the indemnifying bank brings against a warrantor or
other party related to a check that forms the basis for the
indemnification.
SEC. 7. EXPEDITED RECREDIT FOR CONSUMERS.
(a) RECREDIT CLAIMS.—
(1) IN GENERAL.—A consumer may make a claim for expe-
dited recredit from the bank that holds the account of the
consumer with respect to a substitute check, if the consumer
asserts in good faith that—
(A) the bank charged the consumer’s account for a
substitute check that was provided to the consumer;
(B) either—
(i) the check was not properly charged to the con-
sumer’s account; or
(ii) the consumer has a warranty claim with
respect to such substitute check;
(C) the consumer suffered a resulting loss; and
(D) the production of the original check or a better
copy of the original check is necessary to determine the
validity of any claim described in subparagraph (B).
H. R. 1474—7
(2) 40-DAY PERIOD.—Any claim under paragraph (1) with
respect to a consumer account may be submitted by a consumer
before the end of the 40-day period beginning on the later
of—
(A) the date on which the financial institution mails
or delivers, by a means agreed to by the consumer, the
periodic statement of account for such account which con-
tains information concerning the transaction giving rise
to the claim; or
(B) the date on which the substitute check is made
available to the consumer.
(3) EXTENSION
UNDER
EXTENUATING
CIRCUMSTANCES.—If
the ability of the consumer to submit the claim within the
40-day period under paragraph (2) is delayed due to extenuating
circumstances, including extended travel or the illness of the
consumer, the 40-day period shall be extended by a reasonable
amount of time.
(b) PROCEDURES FOR CLAIMS.—
(1) IN GENERAL.—To make a claim for an expedited recredit
under subsection (a) with respect to a substitute check, the
consumer shall provide to the bank that holds the account
of such consumer—
(A) a description of the claim, including an explanation
of—
(i) why the substitute check was not properly
charged to the consumer’s account; or
(ii) the warranty claim with respect to such check;
(B) a statement that the consumer suffered a loss
and an estimate of the amount of the loss;
(C) the reason why production of the original check
or a better copy of the original check is necessary to deter-
mine the validity of the charge to the consumer’s account
or the warranty claim; and
(D) sufficient information to identify the substitute
check and to investigate the claim.
(2) CLAIM IN WRITING.—
(A) IN
GENERAL.—The bank holding the consumer
account that is the subject of a claim by the consumer
under subsection (a) may, in the discretion of the bank,
require the consumer to submit the information required
under paragraph (1) in writing.
(B) MEANS OF SUBMISSION.—A bank that requires a
submission of information under subparagraph (A) may
permit the consumer to make the submission electronically,
if the consumer has agreed to communicate with the bank
in that manner.
(c) RECREDIT TO CONSUMER.—
(1) CONDITIONS FOR RECREDIT.—The bank shall recredit
a consumer account in accordance with paragraph (2) for the
amount of a substitute check that was charged against the
consumer account if—
(A) a consumer submits a claim to the bank with
respect to that substitute check that meets the requirement
of subsection (b); and
(B) the bank has not—
(i) provided to the consumer—
(I) the original check; or
H. R. 1474—8
(II) a copy of the original check (including
an image or a substitute check) that accurately
represents all of the information on the front and
back of the original check, as of the time at which
the original check was truncated; and
(ii) demonstrated to the consumer that the sub-
stitute check was properly charged to the consumer
account.
(2) TIMING OF RECREDIT.—
(A) IN
GENERAL.—The bank shall recredit the con-
sumer’s account for the amount described in paragraph
(1) no later than the end of the business day following
the business day on which the bank determines the con-
sumer’s claim is valid.
(B) RECREDIT
PENDING
INVESTIGATION.—If the bank
has not yet determined that the consumer’s claim is valid
before the end of the 10th business day after the business
day on which the consumer submitted the claim, the bank
shall recredit the consumer’s account for—
(i) the lesser of the amount of the substitute check
that was charged against the consumer account, or
$2,500, together with interest if the account is an
interest-bearing account, no later than the end of such
10th business day; and
(ii) the remaining amount of the substitute check
that was charged against the consumer account, if
any, together with interest if the account is an interest-
bearing account, not later than the 45th calendar day
following the business day on which the consumer
submits the claim.
(d) AVAILABILITY OF RECREDIT.—
(1) NEXT BUSINESS DAY AVAILABILITY.—Except as provided
in paragraph (2), a bank that provides a recredit to a consumer
account under subsection (c) shall make the recredited funds
available for withdrawal by the consumer by the start of the
next business day after the business day on which the bank
recredits the consumer’s account under subsection (c).
(2) SAFEGUARD EXCEPTIONS.—A bank may delay availability
to a consumer of a recredit provided under subsection (c)(2)(B)(i)
until the start of either the business day following the business
day on which the bank determines that the consumer’s claim
is valid or the 45th calendar day following the business day
on which the consumer submits a claim for such recredit in
accordance with subsection (b), whichever is earlier, in any
of the following circumstances:
(A) NEW ACCOUNTS.—The claim is made during the
30-day period beginning on the business day the consumer
account was established.
(B) REPEATED
OVERDRAFTS.—Without regard to the
charge that is the subject of the claim for which the recredit
was made—
(i) on 6 or more business days during the 6-month
period ending on the date on which the consumer sub-
mits the claim, the balance in the consumer account
was negative or would have become negative if checks
or other charges to the account had been paid; or
H. R. 1474—9
(ii) on 2 or more business days during such 6-
month period, the balance in the consumer account
was negative or would have become negative in the
amount of $5,000 or more if checks or other charges
to the account had been paid.
(C) PREVENTION
OF
FRAUD
LOSSES.—The bank has
reasonable cause to believe that the claim is fraudulent,
based on facts (other than the fact that the check in ques-
tion or the consumer is of a particular class) that would
cause a well-grounded belief in the mind of a reasonable
person that the claim is fraudulent.
(3) OVERDRAFT FEES.—No bank that, in accordance with
paragraph (2), delays the availability of a recredit under sub-
section (c) to any consumer account may impose any overdraft
fees with respect to drafts drawn by the consumer on such
recredited amount before the end of the 5-day period beginning
on the date notice of the delay in the availability of such
amount is sent by the bank to the consumer.
(e) REVERSAL OF RECREDIT.—A bank may reverse a recredit
to a consumer account if the bank—
(1) determines that a substitute check for which the bank
recredited a consumer account under subsection (c) was in
fact properly charged to the consumer account; and
(2) notifies the consumer in accordance with subsection
(f)(3).
(f) NOTICE TO CONSUMER.—
(1) NOTICE
IF
CONSUMER
CLAIM
NOT
VALID.—If a bank
determines that a substitute check subject to the consumer’s
claim was in fact properly charged to the consumer’s account,
the bank shall send to the consumer, no later than the business
day following the business day on which the bank makes a
determination—
(A) the original check or a copy of the original check
(including an image or a substitute check) that—
(i) accurately represents all of the information on
the front and back of the original check (as of the
time the original check was truncated); or
(ii) is otherwise sufficient to determine whether
or not the consumer’s claim is valid; and
(B) an explanation of the basis for the determination
by the bank that the substitute check was properly charged,
including a statement that the consumer may request
copies of any information or documents on which the bank
relied in making the determination.
(2) NOTICE OF RECREDIT.—If a bank recredits a consumer
account under subsection (c), the bank shall send to the con-
sumer, no later than the business day following the business
day on which the bank makes the recredit, a notice of—
(A) the amount of the recredit; and
(B) the date the recredited funds will be available
for withdrawal.
(3) NOTICE OF REVERSAL OF RECREDIT.—In addition to the
notice required under paragraph (1), if a bank reverses a recred-
ited amount under subsection (e), the bank shall send to the
consumer, no later than the business day following the business
day on which the bank reverses the recredit, a notice of—
(A) the amount of the reversal; and
H. R. 1474—10
(B) the date the recredit was reversed.
(4) MODE OF DELIVERY.—A notice described in this sub-
section shall be delivered by United States mail or by any
other means through which the consumer has agreed to receive
account information.
(g) OTHER CLAIMS NOT AFFECTED.—Providing a recredit in
accordance with this section shall not absolve the bank from liability
for a claim made under any other law, such as a claim for wrongful
dishonor under the Uniform Commercial Code, or from liability
for additional damages under section 6 or 10.
(h) CLARIFICATION CONCERNING CONSUMER POSSESSION.—A
consumer who was provided a substitute check may make a claim
for an expedited recredit under this section with regard to a trans-
action involving the substitute check whether or not the consumer
is in possession of the substitute check.
(i) SCOPE OF APPLICATION.—This section shall only apply to
customers who are consumers.
SEC. 8. EXPEDITED RECREDIT PROCEDURES FOR BANKS.
(a) RECREDIT CLAIMS.—
(1) IN GENERAL.—A bank may make a claim against an
indemnifying bank for expedited recredit for which that bank
is indemnified if—
(A) the claimant bank (or a bank that the claimant
bank has indemnified) has received a claim for expedited
recredit from a consumer under section 7 with respect
to a substitute check or would have been subject to such
a claim had the consumer’s account been charged;
(B) the claimant bank has suffered a resulting loss
or is obligated to recredit a consumer account under section
7 with respect to such substitute check; and
(C) production of the original check, another substitute
check, or a better copy of the original check is necessary
to determine the validity of the charge to the customer
account or any warranty claim connected with such sub-
stitute check.
(2) 120-DAY PERIOD.—Any claim under paragraph (1) may
be submitted by the claimant bank to an indemnifying bank
before the end of the 120-day period beginning on the date
of the transaction that gave rise to the claim.
(b) PROCEDURES FOR CLAIMS.—
(1) IN GENERAL.—To make a claim under subsection (a)
for an expedited recredit relating to a substitute check, the
claimant bank shall send to the indemnifying bank—
(A) a description of—
(i) the claim, including an explanation of why the
substitute check cannot be properly charged to the
consumer account; or
(ii) the warranty claim;
(B) a statement that the claimant bank has suffered
a loss or is obligated to recredit the consumer’s account
under section 7, together with an estimate of the amount
of the loss or recredit;
(C) the reason why production of the original check,
another substitute check, or a better copy of the original
check is necessary to determine the validity of the charge
to the consumer account or the warranty claim; and
H. R. 1474—11
(D) information sufficient for the indemnifying bank
to identify the substitute check and to investigate the claim.
(2) REQUIREMENTS
RELATING
TO
COPIES
OF
SUBSTITUTE
CHECKS.—If the information submitted by a claimant bank
pursuant to paragraph (1) in connection with a claim for an
expedited recredit includes a copy of any substitute check for
which any such claim is made, the claimant bank shall take
reasonable steps to ensure that any such copy cannot be—
(A) mistaken for the legal equivalent of the check under
section 4(b); or
(B) sent or handled by any bank, including the indem-
nifying bank, as a forward collection or returned check.
(3) CLAIM IN WRITING.—
(A) IN GENERAL.—An indemnifying bank may, in the
discretion of the bank, require the claimant bank to submit
the information required by paragraph (1) in writing,
including a copy of the written or electronically submitted
claim, if any, that the consumer provided in accordance
with section 7(b).
(B) MEANS
OF
SUBMISSION.—An indemnifying bank
that requires a submission of information under subpara-
graph (A) may permit the claimant bank to make the
submission electronically, if the claimant bank has agreed
to communicate with the indemnifying bank in that
manner.
(c) RECREDIT BY INDEMNIFYING BANK.—
(1) PROMPT ACTION REQUIRED.—No later than 10 business
days after the business day on which an indemnifying bank
receives a claim under subsection (a) from a claimant bank
with respect to a substitute check, the indemnifying bank
shall—
(A) provide, to the claimant bank, the original check
(with respect to such substitute check) or a copy of the
original check (including an image or a substitute check)
that—
(i) accurately represents all of the information on
the front and back of the original check (as of the
time the original check was truncated); or
(ii) is otherwise sufficient to determine the bank’s
claim is not valid; and
(B) recredit the claimant bank for the amount of the
claim up to the amount of the substitute check, plus
interest if applicable; or
(C) provide information to the claimant bank as to
why the indemnifying bank is not obligated to comply
with subparagraph (A) or (B).
(2) RECREDIT
DOES
NOT
ABROGATE
OTHER
LIABILITIES.—
Providing a recredit under this subsection to a claimant bank
with respect to a substitute check shall not absolve the indem-
nifying bank from liability for claims brought under any other
law or from additional damages under section 6 or 10 with
respect to such check.
(3) REFUND TO INDEMNIFYING BANK.—If a claimant bank
reverses, in accordance with section 7(e), a recredit previously
made to a consumer account under section 7(c), or otherwise
receives a credit or recredit with regard to such substitute
H. R. 1474—12
check, the claimant bank shall promptly refund to any indem-
nifying bank any amount previously advanced by the indem-
nifying bank in connection with such substitute check.
(d) PRODUCTION OF ORIGINAL CHECK OR A SUFFICIENT COPY
GOVERNED BY SECTION 6(d).—If the indemnifying bank provides
the claimant bank with the original check or a copy of the original
check (including an image or a substitute check) under subsection
(c)(1)(A), section 6(d) shall govern any right of the indemnifying
bank to any repayment of any funds the indemnifying bank has
recredited to the claimant bank pursuant to subsection (c).
SEC. 9. DELAYS IN AN EMERGENCY.
A delay by a bank beyond the time limits prescribed or per-
mitted by this Act shall be excused if the delay is caused by
interruption of communication or computer facilities, suspension
of payments by another bank, war, emergency conditions, failure
of equipment, or other circumstances beyond the control of a bank
and if the bank uses such diligence as the circumstances require.
SEC. 10. MEASURE OF DAMAGES.
(a) LIABILITY.—
(1) IN
GENERAL.—Except as provided in section 6, any
person who, in connection with a substitute check, breaches
any warranty under this Act or fails to comply with any require-
ment imposed by, or regulation prescribed pursuant to, this
Act with respect to any other person shall be liable to such
person in an amount equal to the sum of—
(A) the lesser of—
(i) the amount of the loss suffered by the other
person as a result of the breach or failure; or
(ii) the amount of the substitute check; and
(B) interest and expenses (including costs and reason-
able attorney’s fees and other expenses of representation)
related to the substitute check.
(2) OFFSET OF RECREDITS.—The amount of damages any
person receives under paragraph (1), if any, shall be reduced
by the amount, if any, that the claimant receives and retains
as a recredit under section 7 or 8.
(b) COMPARATIVE NEGLIGENCE.—
(1) IN GENERAL.—If a person incurs damages that resulted
in whole or in part from the negligence or failure of that
person to act in good faith, then the amount of any liability
due to that person under subsection (a) shall be reduced in
proportion to the amount of negligence or bad faith attributable
to that person.
(2) RULE OF CONSTRUCTION.—Nothing in this subsection
reduces the rights of a consumer or any other person under
the Uniform Commercial Code or other applicable provision
of Federal or State law.
SEC. 11. STATUTE OF LIMITATIONS AND NOTICE OF CLAIM.
(a) ACTIONS UNDER THIS ACT.—
(1) IN GENERAL.—An action to enforce a claim under this
Act may be brought in any United States district court, or
in any other court of competent jurisdiction, before the end
of the 1-year period beginning on the date the cause of action
accrues.
H. R. 1474—13
(2) ACCRUAL.—A cause of action accrues as of the date
the injured party first learns, or by which such person reason-
ably should have learned, of the facts and circumstances giving
rise to the cause of action.
(b) DISCHARGE OF CLAIMS.—Except as provided in subsection
(c), unless a person gives notice of a claim to the indemnifying
or warranting bank within 30 days after the person has reason
to know of the claim and the identity of the indemnifying or war-
ranting bank, the indemnifying or warranting bank is discharged
from liability in an action to enforce a claim under this Act to
the extent of any loss caused by the delay in giving notice of
the claim.
(c) NOTICE
OF CLAIM
BY CONSUMER.—A timely claim by a
consumer under section 7 for expedited recredit constitutes timely
notice of a claim by the consumer for purposes of subsection (b).
SEC. 12. CONSUMER AWARENESS.
(a) IN GENERAL.—Each bank shall provide, in accordance with
subsection (b), a brief notice about substitute checks that
describes—
(1) how a substitute check is the legal equivalent of an
original check for all purposes, including any provision of any
Federal or State law, and for all persons, if the substitute
check—
(A) accurately represents all of the information on the
front and back of the original check as of the time at
which the original check was truncated; and
(B) bears the legend: ‘‘This is a legal copy of your
check. You can use it in the same way you would use
the original check.’’; and
(2) the consumer recredit rights established under section
7 when a consumer believes in good faith that a substitute
check was not properly charged to the account of the consumer.
(b) DISTRIBUTION.—
(1) EXISTING CUSTOMERS.—With respect to consumers who
are customers of a bank on the effective date of this Act
and who receive original checks or substitute checks, a bank
shall provide the notice described in subsection (a) to each
such consumer no later than the first regularly scheduled
communication with the consumer after the effective date of
this Act.
(2) NEW
ACCOUNT
HOLDERS.—A bank shall provide the
notice described in subsection (a) to each consumer who will
receive original checks or substitute checks, other than existing
customers referred to in paragraph (1), at the time at which
the customer relationship is initiated.
(3) MODE
OF
DELIVERY.—A bank may send the notices
required by this subsection by United States mail or by any
other means through which the consumer has agreed to receive
account information.
(4) CONSUMERS WHO REQUEST COPIES OF CHECKS.—Notice
shall be provided to each consumer of the bank that requests
a copy of a check and receives a substitute check, at the
time of the request.
(c) MODEL LANGUAGE.—
(1) IN GENERAL.—Before the end of the 9-month period
beginning on the date of the enactment of this Act, the Board
H. R. 1474—14
shall publish model forms and clauses that a bank may use
to describe each of the elements required by subsection (a).
(2) SAFE HARBOR.—
(A) IN GENERAL.—A bank shall be treated as being
in compliance with the requirements of subsection (a) if
the bank’s substitute check notice uses a model form or
clause published by the Board and such model form or
clause accurately describes the bank’s policies and prac-
tices.
(B) DELETION OR REARRANGEMENT.—A bank may delete
any information in the model form or clause that is not
required by this Act or rearrange the format.
(3) USE OF MODEL LANGUAGE NOT REQUIRED.—This section
shall not be construed as requiring any bank to use a model
form or clause that the Board prepares under this subsection.
SEC. 13. EFFECT ON OTHER LAW.
This Act shall supersede any provision of Federal or State
law, including the Uniform Commercial Code, that is inconsistent
with this Act, but only to the extent of the inconsistency.
SEC. 14. VARIATION BY AGREEMENT.
(a) SECTION 8.—Any provision of section 8 may be varied by
agreement of the banks involved.
(b) NO OTHER PROVISIONS MAY BE VARIED.—Except as provided
in subsection (a), no provision of this Act may be varied by agree-
ment of any person or persons.
SEC. 15. REGULATIONS.
The Board may prescribe such regulations as the Board deter-
mines to be necessary to implement, prevent circumvention or eva-
sion of, or facilitate compliance with the provisions of this Act.
SEC. 16. STUDY AND REPORT ON FUNDS AVAILABILITY.
(a) STUDY.—In order to evaluate the implementation and the
impact of this Act, the Board shall conduct a study of—
(1) the percentage of total checks cleared in which the
paper check is not returned to the paying bank;
(2) the extent to which banks make funds available to
consumers for local and nonlocal checks prior to the expiration
of maximum hold periods;
(3) the length of time within which depositary banks learn
of the nonpayment of local and nonlocal checks;
(4) the increase or decrease in check-related losses over
the study period; and
(5) the appropriateness of the time periods and amount
limits applicable under sections 603 and 604 of the Expedited
Funds Availability Act, as in effect on the date of enactment
of this Act.
(b) REPORT TO CONGRESS.—Before the end of the 30-month
period beginning on the effective date of this Act, the Board shall
submit a report to the Congress containing the results of the study
conducted under this section, together with recommendations for
legislative action.
H. R. 1474—15
SEC. 17. STATISTICAL REPORTING OF COSTS AND REVENUES FOR
TRANSPORTING CHECKS BETWEEN RESERVE BANKS.
In the annual report prepared by the Board for the first full
calendar year after the date of enactment of this Act and in each
of the 9 subsequent annual reports by the Board, the Board shall
include the amount of operating costs attributable to, and an esti-
mate of the Federal Reserve banks’ imputed revenues derived from,
the transportation of commercial checks between Federal Reserve
bank check processing centers.
SEC. 18. EVALUATION AND REPORT BY THE COMPTROLLER GENERAL.
(a) STUDY.—During the 5-year period beginning on the date
of the enactment of this Act, the Comptroller General of the United
States shall evaluate the implementation and administration of
this Act, including—
(1) an estimate of the gains in economic efficiency made
possible from check truncation;
(2) an evaluation of the benefits accruing to consumers
and financial institutions from reduced transportation costs,
longer hours for accepting deposits for credit within 1 business
day, the impact of fraud losses, and an estimate of consumers’
share of the total benefits derived from this Act; and
(3) an assessment of consumer acceptance of the check
truncation process resulting from this Act, as well as any
new costs incurred by consumers who had their original checks
returned with their regular monthly statements prior to the
date of enactment of this Act.
(b) REPORT TO CONGRESS.—Before the end of the 5-year period
referred to in subsection (a), the Comptroller General shall submit
a report to the Congress containing the findings and conclusions
of the Comptroller General in connection with the evaluation con-
ducted pursuant to subsection (a), together with such recommenda-
tions for legislative and administrative action as the Comptroller
General may determine to be appropriate.
SEC. 19. DEPOSITARY SERVICES EFFICIENCY AND COST REDUCTION.
(a) FINDINGS.—The Congress finds as follows:
(1) The Secretary of the Treasury has long compensated
financial institutions for various critical depositary and finan-
cial agency services provided for or on behalf of the United
States by—
(A) placing large balances, commonly referred to as
‘‘compensating balances’’, on deposit at such institutions;
and
(B) using imputed interest on such funds to offset
charges for the various depositary and financial agency
services provided to or on behalf of the Government.
(2) As a result of sharp declines in interest rates over
the last few years to record low levels, or the public debt
outstanding reaching the statutory debt limit, the Department
of the Treasury often has had to dramatically increase or
decrease the size of the compensating balances on deposit at
these financial institutions.
(3) The fluctuation of the compensating balances, and the
necessary pledging of collateral by financial institutions to
secure the value of compensating balances placed with those
institutions, have created unintended financial uncertainty for