Introduction
Signed into law July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act" or the "Act")1 required implementation of almost all of its provisions through regulations to be promulgated by various agencies over the ensuing 18 months. This article discusses regulations proposed by the Board of Governors of the Federal Reserve System (the "board") to implement the Remittance Transfer provisions of the Act.
Remittance transfers are addressed in Section 1073 of the Dodd-Frank Act, which added a new Section 919 to the Electronic Funds Transfer Act ("EFTA"). This amendment provides significant new protections at the federal level to consumers sending funds to recipients located outside the United States. The Act requires that certain disclosures must be given to senders of funds, including the exchange rate as well as the fees and taxes that will be applied to the specific funds transfer and the date when the funds will be available to the designated recipient. The Act provides limited exceptions when exchange rates, fees and taxes may be estimated. The Act also provides error resolution rights and requires the Board to set standards for resolving errors, to establish recordkeeping requirements and to define consumers' cancellation and refund rights.2 The Board has also proposed Official Commentary to provide guidance on compliance and model disclosure forms that would provide users a "safe harbor" for compliance purposes. The Board seeks comments on all aspects of the proposed regulations, commentary and model forms.
The Board's Notice of Proposed Rulemaking was issued on May 11, 2011.3 Rules must be finalized by January 21, 2012. The deadline for comments is July 20, 20114. The Board proposes that the new rules take effect one year after promulgation of the final rules, but requests comment on whether that date is appropriate.
Significant Provisions
Who is Required to Comply?
Any person or entity who makes international electronic remittance transfers for consumers in the normal course of business is covered. Covered parties are called "remittance transfer providers," who are defined as ''any person that provides remittance transfers for a consumer in the normal course of its business, whether or not the consumer holds an account with such person''5 The Act and proposed regulations cover both insured financial institutions that are presently covered by Regulation E with respect to transfers that are electronic funds transfers and non-bank money transmitters, which to now have not been covered because they do not hold consumer "accounts."
What Transactions are Covered?
A covered remittance transfer is defined as an electronic transfer of funds requested by a sender located in any state to a designated recipient that is sent by a remittance transfer provider. The sender must be a consumer and the recipient must be located in a foreign country; the recipient may be an individual or a business. The Act does not apply to business-to-consumer or business-to business transfers. Certain transactions that have traditionally been outside the scope of the EFTA would be covered, including cash-funded remittance transfers sent through a money transmitter as well as consumer wire transfers. Importantly, the transaction does not have to meet the technical definition of an electronic funds transfer that has defined coverage for other purposes of the EFTA as long as the funds are transferred electronically. The proposed commentary provides an important distinction based on whether the sender retains the ability to withdraw funds from an account to which funds are to be transferred; if the sender deposits funds into an account that can be accessed both by the sender and by another foreign person or entity, the deposit is not a covered transaction.6 However, a covered transaction occurs if the sender instructs the remittance transfer provider to send a prepaid card abroad and does not retain the ability to use or withdraw funds from the prepaid card. Online consumer bill payments to a foreign recipient are covered. Another proposed comment makes it clear however, that a consumer's use of a debit or credit card to purchase goods or services from a foreign merchant is not a covered remittance transfer and the payment network is not a "remittance transfer provider" within the Act7. (Debit card usage is covered by existing provisions of Regulation E; credit card usage is covered by existing Regulation Z.) Transactions under $15 are not covered.
The Board discusses in depth the relation of the new provisions of the EFTA and coverage of international consumer wire transfer transactions under state laws enacting Article 4A of the Uniform Commercial Code. UCC Article 4A will no longer govern consumer foreign wire transfers because they are now covered by the Dodd-Frank amendments to the EFTA.8
What Compliance Measures are Required?
Disclosures
The Act prescribes two sets of disclosures that must be provided to senders. The Board expands the required contents of those notices in its proposed rule. These disclosures may be combined into one disclosure. The first group of disclosures must be provided before the sender pays for the transfer. These "pre-payment" disclosures include:
(i) The amount that will be transferred to the recipient expressed in the "transfer currency;"
(ii) Fees and taxes that the provider will apply to the transfer;
(iii) The total amount of the total of items i and ii;
(iv) The exchange rate, rounded to 1/100th of a decimal9;
(v) The amount in (i) expressed in the recipient's currency, if fees and taxes will be applied by parties other than by the provider;
(vi) Any taxes and fees that will be applied to the transfer by intermediaries other than the provider; and
(vii) The net amount that will be received by the recipient expressed in the currency that will be received.
The second group of disclosures must be given on a receipt provided to the sender upon payment for the transfer and must include:
(i)The same disclosures as provided in the pre-payment disclosure;
(ii) The promised date of delivery;
(iii) The name of and, if provided by the sender, the contact information for the designated recipient;
(iv) Information regarding the sender's error resolution and cancellation rights;
(v) Contact information for the remittance transfer provider; and
(vi) Contact information for state regulators and the federal Bureau of Consumer Financial Protection.
The pre-payment and receipt disclosures may be combined into a single disclosure that is provided to the sender before the sender pays for the transfer. A receipt must also be given but does not require repetition of information given in the combined disclosure.
Disclosures must be accurate as of the date when payment is received from the sender. The disclosures must be provided in English and in either (i) the foreign languages principally used by the remittance transfer provider and its agents or (ii) the foreign language used with the specific sender. Disclosures must be "clear and conspicuous." The disclosures may be provided in written or electronic form. Pre-payment disclosures may be provided electronically without compliance with the E-Sign Act if the sender electronically requests the remittance transfer. Receipts provided electronically must comply with the requirements of the E-Sign Act.10 Oral pre-payment disclosures may be provided when the sender conducts the transaction entirely by telephone so long as the provider complies with the foreign language requirements. However written or electronic receipts must be mailed or delivered to the sender when the transaction is conducted by telephone.11 The regulations and commentary provide detailed guidance as to the required form, specific terminology and delivery of the disclosures. These requirements are also reflected in the model forms of disclosure proposed by the Board, as discussed below.
Two exceptions will allow providers to disclose estimates of fees, taxes and currency exchange rates instead of the exact amount and therefore to disclose an estimated amount of local currency proceeds that the recipient will receive. As noted above, disclosures must include the actual amounts of fees and taxes that will be imposed by parties in the transmission chain other than the remittance transfer provider and the actual exchange rate that will be used to convert the transmitted amount into the currency in which the funds will be disbursed to the recipient. These amounts often are not known or controlled by the remittance transfer provider (or agent) at the time of the sender's transaction.
First, an insured institution that is the remittance transfer provider may provide estimated amounts of fees, taxes, exchange rate and resulting local currency disbursement to the recipient if (i) the transfer is made from funds in the sender's account with the provider and (ii) the provider cannot determine the exact amounts for reasons beyond its control. This provision would expire on July 20, 2015, although the Board (or Bureau) is authorized to extend the deadline for an additional five years if the Board determines that expiration of the exception would negatively affect the ability of insured institutions to send remittances to foreign countries.12 The typical circumstance cited by the Board in the Official Commentary would occur when the insured remittance transfer provider does not have a correspondent relationship with downstream parties that determine fees in addition to the provider's fees and exchange rate that will be applied, such as for a wire transfer.13
Second, the Act provides a permanent exception on a country-by-country basis if the Board determines that the laws of a recipient country do not allow, or the method by which transactions are made in the recipient country do not allow, a remittance transfer provider to know the amount of currency that will be received by the designated recipient. For example, legal impediments that would qualify for the exception would occur where the government of the recipient's country sets an exchange rate on a periodic basis that will be determined after the sender's transaction but before the availability date or when laws require that the exchange rate be determined on the date of delivery to the recipient.14 The proposed regulations would apply the permanent exception because of the "method by which transaction are made in the recipient country" only when funds are transmitted through the international ACH and then only when the US government has entered into an agreement with the government of the recipient country that requires the exchange rate to be set on the day after the ACH transaction is initiated. The exception will not apply when the US government has negotiated the terms of ACH transfers with a private entity in the recipient country or when the government-to-government agreements for the country provide for the exchange rate to be set before the transfer is initiated by the provider.15
The proposed regulations prescribe specific methodologies for estimating exchange rates, fees and taxes and the resulting local currency amount to be disbursed to the recipient. The regulations also provide that remittance transfer providers may use other methods and will be considered in compliance so long as the amount of local currency received by the recipient is equal to or greater than the estimated amount that would have been disclosed to the sender using one of the specified methodologies.16
Neither the statute nor the proposed regulations provide similar exceptions to the disclosure rules for non-bank money transmitters and provide no explanation of this omission or analysis of the impact on the substantial volume of funds transmitted by the non-bank sector and their customers. The Board has decided not to implement the statutory provision that permitted the Board to require that model transactions illustrating exchange rates be posted on providers' storefronts and internet sites, based on the Board's finding that such model transactions would not help consumers and might be confusing.17
Error Resolution and Cancellation Rights
Remittance transfer providers will be required to extend error resolution rights to consumer senders similar to the error resolution rights currently applied to electronic funds transfers under Regulation E.18 Recipients do not have error resolution rights under the EFTA and a remittance provider's spontaneous discovery of an error does not trigger the error resolution procedure. Timing and content requirements for the sender's notice are prescribed. Generally, a sender's notice must be given to the provider or to the agent that conducted the transaction within 180 days of the availability date disclosed on the receipt. The provider will have 90 days from its receipt of the notice to investigate and resolve the asserted error. The sender must be notified of the results within 3 business days of the date after the provider completes its investigation and must alert the sender of the remedies available for any errors that appear from the investigation.
Alternative remedies for various types of errors are prescribed and the sender is allowed to choose among the available remedies. For example, the prescribed remedy for failing to deliver funds on time is a refund of all funds, fees and taxes paid by the sender. The remedy must be made available within one business day or as soon as practicable after receiving the sender's choice. The remittance transfer provider may not impose any charges to the sender with respect to any aspect of the error resolution procedure. The provider must establish written policies and procedures to ensure that agents adhere to the error resolution procedures. Providers and agents must retain specified records relating to error resolution matters as well as records of transactions sufficient to respond for requests for documentation of particular transactions. Records must be retained for 2 years.19
The regulations acknowledge that for transactions funded by a card or other revocable payment, the sender may assert remedies against the card issuer as well as the remittance provider. The regulations state that a sender may not have duplicate remedies, but do not necessarily allow the provider to delay a remedy past the time when it might receive a chargeback of the funding transaction initiated by the issuer through the card system. The Official Commentary states that nothing in this regulation prevents the card issuer from reversing a credit to the sender's account, but does not discuss how that entity would know that the sender also received relief from the remittance transfer provider.20
The proposed regulations define what constitutes an error and give examples of types of inquiries that are not considered errors that would require compliance with the resolution procedures. Errors include discrepancies in amounts paid by the sender or in the amount delivered, including applications of fees, taxes and exchange rates, inclusion of fees or taxes that were not disclosed or were miscalculated. However, discrepancies in the amount disbursed to the recipient that result from differences between permitted estimates and the actual fees, taxes and exchange rates imposed on a transaction are not "errors." Failure to make funds available on the disclosed availability date constitutes an error, unless the failure resulted from circumstances outside the remittance transfer provider's control (force majeure) or resulted from the sender's providing incorrect information. Where the delay was caused by misinformation provided by the sender, the provider can avoid the error resolution procedures by allowing the sender to correct the information and to resend the funds without additional charge. An error also occurs if a person other than the designated recipient fraudulently picks up the funds. It is therefore the responsibility of the remittance transfer provider and its disbursing agent to implement policies and procedures to ensure that the identity of the recipient is verified. Requests for documentation or clarifying information are also treated as errors. A request for documentation for recordkeeping or tax purposes is not an error. A request by the sender as to whether a remittance has been delivered is not an error (unless the remittance was delivered late).
A sender may submit a cancellation notice orally or in writing within one business day of when the sender paid for the transfer and if such notice is given before the transferred amount is picked up or deposited to the recipient's account. The sender's notice must contain sender's name and telephone number or address and identify the specific transfer that is to be canceled. Upon receipt of a valid and timely request for cancellation, a remittance transfer provider must refund, at no additional cost to the sender, the total amount of funds paid by the sender in connection with the remittance transfer, including any fees imposed in connection with the requested transfer, within three business days21.
What are the Remittance Transfer Provider's Responsibilities for its Agents' Actions?
The Dodd-Frank Act makes a provider responsible for its agent's compliance with the Act and regulations when the agent is acting in connection with the provider's transfers, whether called agents, authorized delegates or other affiliated parties performing functions of the provider.22 The Board has proposed alternative conditions on the provider's liability: Alternative A would hold the provider strictly liable for any non-compliant behavior by an agent when acting for that provider. This alternative would hold the provider fully responsible for all compliance requirements and remedies when the transfer transaction is conducted through an agent as if with the provider directly. Thus any violation by an agent would be considered a violation by the provider. Alternative B would provide instead that the remittance transfer provider would not be liable for an agent's violation of the Act if (i) the provider maintains adequate procedures to ensure that agents fully comply with the law and (ii) the provider corrects the violation to the extent appropriate, including complying with the error resolution procedures and providing the sender the prescribed remedies. The Board seeks comments on which alternative should be adopted in the final rule.
Why Use the Model Forms?
The Board has proposed twelve model forms for providers' use in performing duties under the Act. These include model disclosures in English and Spanish. The forms may be translated into other languages. Use of the proposed model forms in making disclosures would protect a remittance transfer provider from civil and criminal liability for violations relating to disclosures under sections 916 and 917 of the EFTA if they accurately reflect the provider's remittance transfer services.23 The forms are intended to be flexible and the instructions clarify how the forms may be modified without losing protection against liability.
Conclusion
These proposals may require substantial revisions of covered parties' documentation and business procedures to ensure compliance. Stakeholders' participation, by submitting comments directly to the Board or by working with trade groups to do so, provides an important means for achieving legislative and regulatory objectives without undue disruption of markets and services. While the Board has made impressive efforts to reach out to a broad range of parties in the industry, they cannot have surveyed entirely the vast variety of methods, practices and cultural nuances that characterize the global services offered by remittance transfer providers. Each stakeholder should review the proposal in detail and take the opportunity to provide useful information and potential solutions to the Board's specific requests for comments on proposals that affect them, as well as take the opportunity to identify additional concerns that may not have been addressed. In particular, stakeholders should point out practical problems that will arise in making necessary changes for compliance purposes.
Footnotes
1. Paul Hastings published a series of articles on the many areas of the banking and financial services industries affected by the Dodd-Frank Act, including a previous article on the Durbin Amendment, which are available at http://www.paulhastings.com/GlobalFinancialResources.aspx. Our client alert regarding the remittance transfer provisions of the Act is available at http://www.paulhastings.com/assets/publications/1671.pdf?wt.mc_ID=1671.pdf
2. The new regulations will be codified at 12 C.F.R. § 205.30 et seq.
3. 76 Fed Reg 29902 (May 23, 2011)
4. Due to this timing, the regulation will be finalized and issued by the Bureau of Consumer Financial Protection, to which administration of the Electronic Funds Transfer Act (among other federal consumer protection laws) passes on July 21, 2011. See Dodd-Frank Act, §1061, 12 USC 5581.
5. EFTA §919(g)(3); 12 CFR §205.30(e)
6. Proposed Comments 30(d)-2 and 30(d)-3. See 76 Fed Reg 29907
7. Proposed Comment 30(d)-4
8. See 76 Fed Reg 29908-9. This result is based on Article 4A–108 of the UCC, which exempts from UCC 4A coverage a funds transfer that is governed by the EFTA. The Board states that any remaining ambiguities of applicable law should be resolved by state legislation or by amendments to the rules of the wire transfer systems.
9. Proposed comment 31(b)(1)(iv)–2. See discussion at 76 Fed. Reg 29912. The Board expressly declines to permit disclosure of a "floating rate," i.e., an exchange rate that would be set by the paying institution at the time the funds are claimed by the recipient.
10. 12 CFR §205.31(b)(2); Proposed comment 31(a)(2)–1. See 76 Fed. Reg. 29910. The reference to the "E-Sign Act" means the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7007 et seq.
11. Oral reports also may be given to senders in response to a notice of error when the provider determines that an error was committed; foreign language requirements must be met.
12. CFR 205.31(a)(4) 12 EFTA §919(a)(4)(B); 76 Fed Reg 29921. However, the Board makes it clear that it expects insured institutions to use this time period to modify agreements and systems so that exact amounts can be disclosed. See 76 Fed. Reg. 29922.
13. 12 CFR 205.32(a)(1); Proposed Comment 32(a)(1)-1,2. See 76 Fed. Reg. 29921
14. 12 CFR 205.32(b)(1); Official Commentary 32(b)(1)-1; See76 Fed Reg 29923.
15. 12 CFR 205.32(b)(2); Official Commentary 32(b)(2)-1,2. See 76 Fed Reg 29923
16. 12 CFR 205.32(c).
17. See 76 Fed Reg 29924-7.
18. 12 CFR §205.33; See 12 CFR §205.11.
19. 12 CFR §205.33(g); Official Comment 33(g)-1. See 76 Fed Reg 29932-33.
20. 12 CFR §205.33(f); Official Commentary 33(f)-2. See 76 Fed Reg. 29932.
21. 12 CFR §205.34(b).
22. EFTA §919(f)(1).
23. Regulation E, Appendix A, Forms A-30 through A-41, Instruction 2. The liability sections of the EFTA are re-numbered, with former Sections 915 and 916 now numbered Sections 916 and 917 respectively. Section 916 provides for civil liability for disclosure violations of actual damages or from $100 to$1,000 for individuals and in a class action damages up to the lesser of $500,000 or 1% of the defendant's net worth and costs and attorneys fees. Section 917 provides for criminal liability for knowing and willful violations of a $5,000 fine or one year imprisonment.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
