[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80315-80335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32117]
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DEPARTMENT OF THE TREASURY
Fiscal Service
31 CFR Part 208
RIN 1510-AB26
Management of Federal Agency Disbursements
AGENCY: Financial Management Service, Fiscal Service, Treasury.
ACTION: Final rule.
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SUMMARY: The Department of the Treasury (Treasury), Financial
Management Service (FMS), is amending its regulation to require
recipients of Federal nontax payments to receive payment by electronic
funds transfer (EFT), effective May 1, 2011. The effective date is
delayed until March 1, 2013, for individuals receiving Federal payments
by check on May 1, 2011; and for individuals who file claims for
Federal benefits before May 1, 2011, and request check payments when
they file. Individuals who do not choose direct deposit of their
payments to an account at a financial institution would be enrolled in
the Direct Express[supreg] Debit MasterCard[supreg] card program, a
prepaid card program established pursuant to terms and conditions
approved by FMS. Treasury waives the EFT requirement for recipients
born prior to May 1, 1921, who are receiving payments by paper check on
March 1, 2013; for payments not eligible for deposit to a Direct
Express[supreg] prepaid card account; and for recipients whose Direct
Express[supreg] card has been suspended or cancelled. In addition, this
rule establishes the criteria under which a payment recipient may
request a waiver if the
[[Page 80316]]
EFT requirement creates a hardship due to his or her mental impairment
or remote geographic location.
DATES: This rule is effective February 22, 2011.
ADDRESSES: You can download this rule at the following Web site: http://www.fms.treas.gov/eft. You may also inspect and copy this rule at:
Treasury Department Library, Room 1428, Main Treasury Building, 1500
Pennsylvania Avenue, NW., Washington, DC 20220. Before visiting, you
must call (202) 622-0990 for an appointment. In accordance with the
U.S. government's eRulemaking Initiative, FMS publishes rulemaking
information on http://www.regulations.gov. Regulations.gov offers the
public the ability to comment on, search, and view publicly available
rulemaking materials, including comments received on rules.
FOR FURTHER INFORMATION CONTACT: Walt Henderson, Director, EFT Strategy
Division; Natalie H. Diana, Senior Counsel; or Ronda Kent, Senior
Counsel, at [email protected] or (202) 874-6619.
SUPPLEMENTARY INFORMATION: On June 17, 2010, the Department of the
Treasury (Treasury), Financial Management Service (FMS), published a
notice of proposed rulemaking (NPRM) at 75 FR 34394, requesting comment
on a proposed amendment to 31 CFR part 208 (Part 208), which implements
the requirements of 31 U.S.C. 3332. Section 3332, title 31, United
States Code, as amended by subsection 31001(x)(1) of the Debt
Collection Improvement Act of 1996 (Pub. L. 104-134) (Section 3332),
generally requires that all Federal nontax payments be made by
electronic funds transfer (EFT), unless waived by the Secretary. The
Secretary must ensure that individuals required to receive Federal
payments by EFT have access to an account at a financial institution
``at a reasonable cost'' and with ``the same consumer protections with
respect to the account as other account holders at the same financial
institution.'' See 31 U.S.C. 3332(f), (i)(2). Direct deposit is the
primary method used to make EFT Federal payments.
The NPRM proposed to amend Part 208 to require all recipients of
Federal nontax payments to receive payments by EFT, effective March 1,
2011, with a delayed effective date of March 1, 2013 for individuals
receiving Federal payments by check on March 1, 2011, and for
individuals who file claims for Federal benefits before March 1, 2011
and request check payments when they file. Recipients receiving
payments by direct deposit prior to March 1, 2011, would continue to do
so under the proposed rule.
Treasury's proposed rule stated that a Federal payment recipient
could choose to have payments directly deposited to his or her own
account at the recipient's financial institution. The NPRM stated that
individuals who did not choose direct deposit of their payments to an
account at a financial institution would be enrolled in the Direct
Express[supreg] \1\ Debit MasterCard[supreg] card program, a prepaid
card program established pursuant to terms and conditions approved by
FMS. The proposed rule contemplated that, beginning on March 1, 2013,
all recipients of Federal benefit and other non-tax payments would
receive their payments by direct deposit, either to a bank account or
to a Direct Express[supreg] card account.
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\1\ Direct Express[supreg] is a registered service mark of the
Financial Management Service, U.S. Department of the Treasury. The
Direct Express[supreg] Debit MasterCard[supreg] card is issued by
Comerica Bank, pursuant to a license by MasterCard International
Incorporated. MasterCard[supreg] and the MasterCard[supreg] Brand
Mark are registered trademarks of MasterCard International
Incorporated.
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Treasury sought comment on all aspects of the proposed rule, and
specifically requested comments regarding (1) exceptional circumstances
where specific types of individual EFT waivers could be needed, (2) the
costs to recipients for accessing their benefit payments received by
paper check compared to those received by EFT, and (3) alternative
phase-in approaches.
Treasury is finalizing the proposal in the NPRM to require, in
general, that all Federal nontax payment recipients receive payments by
EFT. The March 1, 2011 effective date has been changed to May 1, 2011.
There remains a delayed effective date of March 1, 2013, for: (1)
individuals receiving Federal payments by check on May 1, 2011; and (2)
individuals who file claims for Federal benefits before May 1, 2011 and
request check payments when they file. In addition, after consideration
of the comments received, Treasury is modifying its proposed
elimination of all individual waivers from the EFT requirement.
Instead, Treasury will automatically waive the EFT requirement for: (1)
A recipient born prior to May 1, 1921, who is receiving Federal
payments by check on March 1, 2013; (2) a payment that is not eligible
for deposit to a Direct Express[supreg] prepaid card account; and (3) a
recipient whose Direct Express[supreg] card has been suspended or
cancelled. Also, the final rule establishes the criteria under which a
payment recipient may request a waiver if the EFT requirement creates a
hardship due to his or her mental impairment or remote geographic
location.
I. Background
Part 208 sets forth the general rule requiring Federal payments to
be made by EFT and the requirements for accounts to which Federal
payments may be sent by EFT. ``Federal payment'' means any nontax
payment made by an agency, including, but not limited to, Federal wage,
salary, and retirement payments; vendor and expense reimbursement
payments; benefit payments; and miscellaneous payments. See 31 CFR
208.2(g). Federal payments include payments made to representative
payees and other authorized payment agents. See 31 CFR 210.5(b)(1). For
Part 208 purposes, ``agency'' means any department, agency, or
instrumentality of the United States Government, or a corporation owned
or controlled by the Government of the United States. See 31 CFR
208.2(a).
As explained in the NPRM, Part 208 provides that any individual who
receives a Federal benefit, wage, salary, or retirement payment is
eligible to open an Electronic Transfer Account (ETA) at a financial
institution that offers such accounts, and establishes the
responsibilities of Federal agencies and recipients under the
regulation. Part 208 also sets forth a number of waivers to the general
requirement that Federal payments be delivered by EFT. See 31 CFR
208.4. Among the waivers previously included in the regulation were
waivers for situations in which an individual determined that payment
by EFT would impose a hardship due to a physical or mental disability
or a geographic, language or literacy barrier, or would impose a
financial hardship. See 31 CFR 208.4(a).
Treasury has reviewed the comments received in response to the
NPRM, and, as described in more detail below, modified its proposal to
eliminate all individual waivers from the EFT requirements. The
Secretary's waiver authority remains unchanged, and Federal agencies
continue to have the ability to waive payment by direct deposit or
other EFT method in the circumstances described in paragraphs (b)
through (g) of Sec. 208.4, namely, for situations where the
infrastructure in a foreign country does not support EFT, for certain
disaster or military situations, for situations in which there may be a
security threat or for valid law enforcement reasons, for non-recurring
payments, and for unusual and/or urgent situations where the Government
would be seriously injured unless payment is made by a method other
[[Page 80317]]
than EFT. The final rule revises the criteria for the agency waiver
related to non-recurring payments, as described below.
II. Summary of NPRM Comments
Treasury received 33 comment letters and 1,087 comments solicited
by and sent to a consumer advocate organization via its Web site. Of
the 33 comment letters, three were from consumer advocate groups. One
of the groups submitted its comments on behalf of its low-income
clients, another consumer advocate organization, and 23 national,
state, and local advocates for low and moderate income recipients of
Federal benefits. While the consumer advocate groups generally
acknowledged the benefits of EFT, all three groups opposed the complete
elimination of waivers for individuals for whom EFT might impose a
hardship and suggested improvements to the Direct Express[supreg] card
and changes to the Direct Express[supreg] card terms and conditions. In
addition, the three groups recommended that Treasury issue consumer
protection rules for individuals whose benefit payments are delivered
electronically to prohibit predatory loans, the unlawful freezing or
garnishing of benefit payments legally exempt from garnishment, and the
offsetting of overdraft and other bank fees against benefit payments.
Three comment letters were from associations that represent
financial institutions. One commenter supported Treasury's proposal,
provided that payments would be delivered, by default, to a recipient's
existing bank account and that recipients would be allowed to elect
direct deposit to reloadable prepaid cards issued by insured depositary
institutions. Another commenter supported Treasury's proposal,
including the alternative debit card option, because of the potential
cost savings to credit unions. The third association commenter also
supported Treasury's proposal and urged Treasury not to include
individual waivers in the final rule.
A national electronic payments association and one financial
institution submitted comment letters supporting Treasury's proposal.
The electronic payments association supported the Direct
Express[supreg] card as a safe, convenient, and reasonably priced
alternative for unbanked Federal benefit recipients. The financial
institution urged Treasury to consider expanding its regulations to
allow direct deposit of Federal payments to general purpose reloadable
prepaid debit cards.
Fourteen attorneys and an association that represents Social
Security claimants' representatives recommended that Treasury waive the
EFT requirements for attorneys and other representatives who receive
fee payments for representing Social Security claimants. The
association and the attorneys stated that, when fee monies are
electronically deposited into an attorney's account, the attorney does
not receive adequate information to determine which client the fee
payment is for. In addition, the association and the attorneys stated
that many attorneys and other representatives, as associates or
employees of a firm, are precluded from accepting direct deposit of
representative fees into their own personal bank account. These fee
payments must be deposited directly to accounts owned by their firms.
This is problematic because the Social Security Administration will
only make representative fee payments to individual attorneys or
representatives, most of whom are not the owners of their firm's bank
account, and therefore cannot accept or direct payments to them.
A national trade association representing neighborhood financial
service providers, such as check cashers, remittance servicers, short-
term lenders and bill payment providers, did not support Treasury's
proposal. It viewed the proposal as depriving Americans of the right of
choice with respect to the delivery of Federal nontax payments,
disproportionately affecting low- and moderate-income individuals.
Treasury received six comment letters from individual or
unidentified commenters with various concerns. One of these commenters,
a coordinator of a local Volunteer Income Tax Assistance program,
supported the proposed rule, encouraged Treasury to discontinue the ETA
program, and suggested modifying the Direct Express[supreg] card
program to provide at least one surcharge-free automated teller machine
(ATM) withdrawal at any ATM. Another commenter, a certified public
accountant, raised concerns about whether the proposed rule would
create problems if nursing homes are unable to clearly identify the
resident for whom a benefit payment has been directly deposited to the
nursing home's trust account. Another individual suggested that
Treasury clarify that it continues to support the ETA as an option for
receiving Federal benefit payments by direct deposit. Another
individual suggested that Treasury require financial institutions to
allow recipients of Federal funds to obtain the full amount of their
payment in one transaction with minimal charge. An individual attorney
raised a concern that direct deposit of Social Security disability or
SSI benefits could inadvertently lead to disqualification from Medicaid
whereas an individual receiving a paper check payment can control when
the payment is deposited into his or her account. An unidentified
individual opposed the proposed rule primarily because the commenter
believed that benefit recipients are entitled to choose to receive
their payments by paper check, and did not agree with Treasury's
underlying rationale for the proposed rule.
In addition to its own comment, one consumer advocate organization
sent Treasury 1,087 comments it solicited and received through its Web
site. Sixty-three of the Web site commenters expressed support for
Treasury's proposed rule, but most of the commenters opposed the
proposal for one or more of the following reasons: (1) 845 of the
commenters cited a preference for allowing those who wish to continue
to receive a paper check to do so (more than 140 of the commenters
already receive their payments electronically, but were concerned for
others who may choose not to do so); (2) 615 of the commenters cited an
objection to bank fees, including Direct Express[supreg] card fees,
with approximately 482 commenters objecting to requiring a benefit
recipient to pay fees to receive a monthly paper statement; (3) 558
commenters cited concerns about requiring benefit recipients to bank
online and/or discomfort with adapting to new payment technologies,
especially for older benefit recipients; (4) 475 commenters cited
concerns about whether electronic banking would lead to increased
identity theft; (5) 410 commenters cited concerns about providing bank
account information to the Social Security Administration or other
Federal agencies; and (6) 134 commenters were concerned about the
ability of elderly benefit recipients to change the way they receive
their benefit payments. Approximately 125 of the commenters simply
expressed general opposition to Treasury's proposal. Other
miscellaneous reasons for opposing Treasury's proposal included
preference for checks (65 commenters), concerns about EFT processing
(13 commenters) and improper garnishment (6 commenters), opposition to
prepaid cards (21 commenters), concerns about access to the banking
system (35 commenters), need for access to a free account (18
commenters), and hardship (10 commenters).
Finally, three Federal government agencies submitted comments for
Treasury's consideration. One agency
[[Page 80318]]
expressed uncertainty about whether recipients of payments from that
agency would qualify for the Direct Express[supreg] card. Two agencies
raised concerns about making payments to recipients who reside in
geographically remote areas with no access to electronic financial
services.
III. Treasury's Responses to NPRM Comments
In developing the final rule, Treasury has attempted to implement
the requirements of Section 3332 on balance with concerns expressed by
different commenters. The final rule essentially adopts the core
provisions of the proposed rule, and also makes available several
important waivers for individuals in circumstances in which Treasury
finds that requiring EFT could create a significant hardship for those
individuals. The final rule reflects the view of the commenters who
generally agree that receiving payments by EFT is beneficial to
recipients and taxpayers for the reasons described in the NPRM and this
final rule. Treasury has addressed the concerns raised by those opposed
to the EFT requirement, and will continue to monitor carefully whether
recipients are subject to additional hardships in the future because of
the requirements of this final rule. Treasury's responses to the NPRM
comments are as follows.
1. Retain Paper Check as a Payment Option
Many commenters voiced a preference for Treasury to allow
recipients the choice of a paper check as a way to receive their
Federal payments. Treasury recognizes that the paper check has been an
important Federal payment instrument for at least 150 years. Treasury
also recognizes that choice, as expressed by many of the commenters, is
an important American value. While Congress mandated that all non-tax
payments be made electronically, Part 208 continues to offer payment
recipients the choice of how to receive their payments in an electronic
format. Payment recipients have many financial account options
available to them, and in fiscal year 2010, more than 80% of all non-
tax payment recipients selected their own accounts for the purpose of
receiving payments by EFT. Further, Congress conditioned its mandate on
Treasury making available to payment recipients an account at a
financial institution ``at a reasonable cost'' and with ``the same
consumer protections with respect to the account as other account
holders at the same financial institution.'' See 31 U.S.C. 3332(f),
(i)(2).
The Direct Express[supreg] card, which is now a nationwide option
for most Federal benefit recipients, meets these statutory account
requirements. There are no monthly fees and most services are free, so
it is possible for an individual to use the Direct Express[supreg] card
for free. There are no fees for cardholders to sign up for or activate
the card; receive deposits; make purchases at retail locations, online
or by telephone; get cash at retail locations and financial
institutions; or check the card's balance at an ATM, by telephone or
online. Transaction history and other account information are available
at no cost online or by telephone, but if desired, a cardholder may
receive a monthly paper statement for $ .75 per month. There are no
fees for declined transactions and, in rare instances when overdrafts
occur, there are no overdraft fees.
Cardholders can choose to receive free automated text, email or
telephone ``low balance'' alerts or ``deposit notifications'' when
money is deposited to their card account. Cardholders may close their
Direct Express[supreg] card account at any time without a fee. There
are no inactivity fees and there is no charge for bank teller cash
withdrawals at MasterCard[supreg] member banks. The free services and
minimal fees are fully disclosed on the Direct Express[supreg] Web site
(www.USDirectExpress.com), in materials available to interested
applicants, and in materials that are sent to new cardholders along
with the card. Fee and features information are also available by
calling the Direct Express[supreg] toll-free call center.
Cardholders may make purchases anywhere Debit MasterCard[supreg] is
accepted, including millions of retail locations worldwide, online, or
by telephone. The Direct Express[supreg] card provider does not impose
any limits on the number of transactions a cardholder may conduct with
a card. Similarly, cardholders may make cash withdrawals and check
their account balances at ATMs. A cardholder is allowed one free ATM
cash withdrawal for every Federal payment the cardholder receives,
valid until the end of the month following the month of receipt. For
subsequent ATM cash withdrawals, a cardholder pays a fee to the card
issuer of $.90 per ATM withdrawal in the United States. ATM owners
often charge ATM users additional fees, known as ``surcharge fees;''
however, a Direct Express[supreg] cardholder may make cash withdrawals
at more than 53,000 Direct Express[supreg] card surcharge-free network
ATMs without paying any surcharge fees. The Direct Express[supreg] card
surcharge-free ATM network consists of ATMs owned by a variety of
entities who have agreed to offer surcharge-free ATM access to Direct
Express[supreg] cardholders. Cardholders are provided with information
on how to recognize the various logos that identify a surcharge-free
ATM, the Direct Express[supreg] card Web site has an ATM locator
feature to assist cardholders in finding a surcharge-free ATM, and
cardholders may call the customer service department with any questions
on how to locate a surcharge-free ATM. The Direct Express[supreg] card
provider does not impose a daily limit for ATM withdrawals, although
many ATM owners do set limits on the maximum amount of cash that may be
withdrawn by any debit cardholder. ATM owners' daily ATM withdrawal
limits typically range from $200 to $1,000.
Direct Express[supreg] cardholders are protected by the Federal
Reserve Board's Regulation E (12 CFR part 205, which implements the
Electronic Funds Transfer Act (Regulation E)), which generally provides
certain protections to a cardholder whose card is lost or stolen,
subject to reporting requirements. In fact, Direct Express[supreg]
cardholders have 90 days to report unauthorized transactions rather
than the typical 60 days offered by most financial institutions. Card
balances are covered by deposit insurance by the Federal Deposit
Insurance Corporation (FDIC) to the extent allowed by law and Direct
Express[supreg] cardholders are not at risk for an improper garnishment
or the related freezing of funds in the card account. More information
about the Direct Express[supreg] card, including a list of all fees and
the terms and conditions of card use, can be found at
www.USDirectExpress.com.
In light of the choices available to payment recipients, as well as
the benefits of electronic payments to recipients and the Government,
Treasury believes it is appropriate to make all Federal nontax payments
electronically.
2. Provide Limited Waivers From EFT Requirement
a. Limited Waivers for Hardship Based on Mental Impairment and
Geographic Barriers
In its NPRM, Treasury requested comments about ``examples of
exceptional circumstances where specific types of individual EFT
waivers could be needed, even with the availability of the Direct
Express[supreg] card for Federal benefit recipients.'' See 75 FR 34394,
at 34395. After review and consideration of all of the comments,
[[Page 80319]]
Treasury agrees with those commenters who urged Treasury to reconsider
its proposed elimination of individual waivers from the EFT requirement
for claims of hardships due to mental disability or geographic
barriers. Treasury does not agree, however, that such reconsideration
should be extended to the elimination of waivers related to physical
disability, language or literacy barriers, or where payment by EFT
would impose a financial hardship. None of the commenters provided
specific examples of how physical disability or language or literacy
barriers would make receiving payments by EFT more difficult than
receiving payments by paper check and Treasury does not find any basis
for maintaining a waiver for such conditions. In addition, although
several commenters urged Treasury to consider that any fees charged for
use of the Direct Express[supreg] card could create a financial
hardship, the Direct Express[supreg] card is structured in such a way
that it may be used at no cost to the payment recipient, thus
minimizing a beneficiary's risk of incurring a financial hardship to
receive and use his or her benefits. Treasury recognizes that more
education regarding how to use the card for free is needed and is
expanding its program to provide such information to Direct
Express[supreg] cardholders in various ways, including direct mail,
informational pictorial brochures, online videos, and more.
One consumer advocate organization urged Treasury to retain a paper
check option for those who articulate a ``legitimate'' reason for
receiving payments by paper check, including physical or mental
disability that makes it difficult to use a debit card; difficulty
accessing funds without incurring fees, costs, or inconvenience;
availability of a less expensive and more beneficial alternative using
a paper check; dispute with the participating financial provider of the
debit card; concerns over privacy or financial security; literacy and
technology barriers; and need to accommodate assistance provided by a
representative payee or family member. This commenter proposed that
Treasury accept individuals' statements about the need for a paper
check without inquiry or review. Another consumer advocate organization
similarly urged Treasury to reconsider its proposal to eliminate
individual waivers with respect to people with mental disabilities,
emotional disorders, or other disabilities making the use of the Direct
Express[supreg] card difficult; people who live in rural areas, or even
inner city areas, where there is not ready access to banks and
automated teller machines (ATMs); and other hardships that make both a
bank account and the Direct Express[supreg] card unusable for the
payment recipient. This organization also suggested that Treasury not
review waiver requests because the costs of policing a waiver process
would far outweigh the costs associated with letting recipients who
would not qualify for a waiver receive a paper check. Another consumer
advocate organization also objected to the elimination of the provision
allowing recipients to determine on their own whether they qualify for
a waiver to obtain their Federal payments by paper check. Unlike the
other two consumer advocate organizations, this organization urged
Treasury to offer the broadest waiver possible to allow any individual
who wants his or her payments by paper check to receive them that way.
After reviewing the comments, Treasury has reconsidered its
proposed elimination of the waivers related to mental disability and
geographic barriers. A consumer advocate organization commented on the
need to provide a waiver for individuals who have mental or emotional
disabilities, for example, someone with an anxiety disorder that makes
it difficult to receive benefits electronically, but not by paper
check. Another commenter cited his parents with poor memories stating
that having their payments deposited electronically would simply add to
their confusion and problems in taking care of their own finances. In
recognition of individuals within the payment recipient population who
may have mental impairments that do not hinder their ability to manage
their financial transactions using checks or cash, but for whom EFT
would present a significant hardship, Treasury is retaining a waiver
from the EFT requirement for an individual payment recipient for whom
EFT would impose a hardship because of his or her inability to manage a
bank account or prepaid debit card due to a mental impairment. Treasury
notes that, in those cases where a beneficiary suffers from a mental
disability necessitating the appointment of a representative payee, the
representative payee is the ``recipient'' of a Federal payment under
this rule. In those cases, it is the condition of the representative
payee and not the beneficiary that is the determining factor as to
whether a waiver is appropriate.
Two Federal agencies cited the need to consider the inability of
payment recipients who live in remote and less developed areas of the
country to access their payments electronically. For example, according
to one agency, many recipients of Individual Indian Money payments live
in remote and less developed areas such as Alaska and on reservations
throughout Indian Country in an environment lacking many amenities
including public infrastructure such as roads and convenient access to
providers of goods and services. The other agency noted that Regional
Advisory Council members appointed under the Alaska National Interest
Lands Conservation Act (ANILCA) travel to council meetings held in off-
roadway bush villages where it is highly unusual for most village
merchants to have the infrastructure to accept charge cards. These
villages are cash economies with check cashing capabilities, but no
ability to process electronic financial transactions. In its comment,
one consumer advocate organization cited the lack of access to banks
and ATMs in the majority of Montana, rural parts of Alaska, and some
rural parts of Missouri. The fact that an area is rural or remote does
not necessarily preclude the use of electronic financial services. As
these examples demonstrate, it is the combination of being in an area
that is rural or remote plus being in an area lacking the
transportation or other infrastructure (for example, access to the
Internet and online banking) necessary to access electronic financial
services. Therefore, Treasury is including in the final rule a waiver
from the EFT requirement for an individual recipient who lives in a
remote area lacking the infrastructure to support electronic financial
transactions.
Under this final rule, to assert one of these two waivers based on
mental impairment or geographic barrier, a Federal payment recipient is
required to provide to Treasury a written certification supporting his
or her request, in such form as Treasury may prescribe. The individual
is required to sign the certification before a notary public, or
otherwise file the certification in such form that Treasury may
prescribe. Treasury will publish guidance describing the waiver
process.
b. Automatic Waivers for Recipients Born Prior to May 1, 1921 Who Are
Receiving Federal Payments by Check on March 1, 2013; for Payments Not
Eligible for the Direct Express[supreg] Card; and for Recipients Whose
Direct Express[supreg] Card Has Been Suspended or Cancelled
In addition to the limited waivers from the EFT requirement for
hardship claims due to mental impairment and geographic barriers,
Treasury has added automatic waivers for: (1) A recipient
[[Page 80320]]
born prior to May 1, 1921, who is receiving Federal payments by check
on March 1, 2013; (2) a payment that is not eligible for deposit to a
Direct Express[supreg] prepaid card account; and (3) a recipient whose
Direct Express[supreg] card has been suspended or cancelled.
Many commenters were concerned about the ability of elderly check
payment recipients to adapt to electronic money technologies. For
example, one consumer advocate organization explained that ``[p]eople
who are older are more likely to be unaccustomed to or uncomfortable
using the technology involved in electronic disbursements.'' An
individual commenter noted: ``Many of us older people do not understand
and get confused by this paperless society * * * '' On the other hand,
another commenter believed that paper checks cause problems for older
people noting that through her work as a coordinator of a Volunteer
Income Tax Assistance program in Missouri, she has ``witnessed
firsthand the hardships that * * * elderly * * * individuals face when
a Treasury Check is lost or misdirected through the mail.'' Many senior
citizens receive their benefit payments electronically, and are very
capable of managing their finances electronically.
In recognition of the concerns raised by the commenters about the
elderly, Treasury has established an automatic waiver from the EFT
requirement for recipients born prior to May 1, 1921, who are receiving
Federal payments by check on March 1, 2013. According to the Social
Security Administration, almost 80% of Social Security recipients who
will turn 80 years old in 2011 receive their payments electronically.
By comparison, fewer than 72% of Social Security recipients who will
turn 90 years old in 2011 receive their payments electronically.
Further, for most of the population of elderly benefit recipients, the
EFT requirement is not effective until March 2013, giving Treasury,
Federal agencies, community organizations, and others more than two
years to educate individuals so they may become comfortable with and
adapt to the requirement. Between the publication of the final rule and
the effective date for current check recipients, Treasury will work
with Federal agencies and various organizations to educate all affected
individuals, including the elderly and long-time check recipients,
about how to use direct deposit or the Direct Express[supreg] debit
card.
Treasury has also waived the EFT requirement for any payment that
is not eligible for a Direct Express[supreg] card account and for those
payment recipients whose Direct Express[supreg] card has been suspended
or cancelled by the card issuer due to improper, fraudulent, or
unauthorized use. The Direct Express[supreg] card program currently
accepts Social Security, SSI, and Veterans compensation and pension
benefit payments, as well as Railroad Retirement benefit, Black Lung
benefit, and civil service retirement benefit payments. If a recipient
receives a payment for which the Direct Express[supreg] card is
unavailable (for example, an Individual Indian Money payment or a
pension benefit payment), then the individual is automatically exempt
from the EFT requirement for that payment type. Once the card becomes
available for the payment type, then the recipient will be required to
switch to an EFT payment option. If the individual also receives other
types of Federal payments that are accepted by the Direct
Express[supreg] card, those payments remain subject to the EFT
requirement.
Further, under the terms and conditions of the Direct
Express[supreg] card program, the card issuer reserves the right to
suspend or cancel the Direct Express[supreg] card for reasons such as
cardholder breach of the account terms and conditions, multiple
cardholder claims of unauthorized transactions, a card being used for
an unlawful purpose, or other similar reasons. Treasury agrees that the
card provider needs to retain the right to suspend or cancel an
individual's card account in these types of cases, and recognizes that
in the few instances where suspension or cancellation occurs, the
payment recipient may have no other way to receive his or her payment
except by a paper check.
c. Elimination of Waivers Based on Hardship Due to Physical Disability,
Language or Literacy Barriers, or Where Payment by EFT Would Impose a
Financial Hardship
Given the availability of the Direct Express[supreg] card and
Treasury's expansion of its public education campaign describing how to
use the Direct Express[supreg] card, physical disability, language or
literacy barriers, and fees no longer present hardships requiring
waivers from the EFT requirement.
i. Physical Disability. As noted above, Treasury requested specific
examples of the types of hardships that could make it difficult to use
EFT as compared to a paper check, but none were cited by the many
commenters. While Treasury recognizes that not all physical disability
barriers have been eliminated, the Americans With Disabilities Act of
1990, Public Law101-336 (Jul. 26, 1990), and the advent of many
services that benefit the physically disabled, such as accessible
transportation, public accommodations, and online banking, have
generally rendered receiving benefit payments by EFT no more difficult
than receiving payments by paper check. In some cases, EFT payments may
even be easier for the recipient. With the elimination of this waiver,
Treasury recognizes that for those who are physically disabled, the
ability to travel in remote and rural areas may be limited, but
considers this to be more a hardship due to a geographic barrier,
described above, than solely because of a physical disability. In
addition, as suggested by two commenters, Treasury is working with the
Direct Express[supreg] card provider to determine the feasibility of
providing cardholders with an additional convenience card that could be
loaded via the Internet or by telephone with a cardholder-determined
amount of funds for use by a caregiver or relative to make purchases on
behalf of the cardholder.
ii. Language Barriers. None of the commenters urged Treasury to
continue the waiver from the EFT requirements based on hardship due to
language barriers. All of the Direct Express[supreg] cardholder
materials are in English and Spanish, and the Direct Express[supreg]
card provider offers both English and Spanish support through its
automated telephone service and its customer service representatives.
Callers may choose to speak with a customer service representative in
either language. In addition, the Direct Express[supreg] card provider
offers real-time free interpreter services in virtually any language a
caller requires. For example, in September 2010, the Direct
Express[supreg] card provider handled customer service calls in 19
different languages in addition to English, including languages such as
Mandarin, Urdu, Tagalog, and Tigrinya.
iii. Literacy Barriers. None of the commenters specifically urged
Treasury to continue its waiver based on hardship due to literacy
barriers, although several commenters alluded to the difficulties
people have due to a lack of basic literacy skills. For example, one
commenter noted that the constituents she works with in a poor, rural
area of Georgia are often barely literate and deal with cash because
they understand it. Treasury recognizes that lack of basic literacy
skills hinders many in managing their financial affairs, and
understands the challenges associated with moving some individuals to
payment by EFT from payment by paper check. The delayed effective date
of the rule for those currently receiving paper checks to March 2013,
gives Treasury
[[Page 80321]]
additional time to expand its public education efforts related to EFT
options. Among other things, through its Go Direct [supreg] campaign,
Treasury will work with more than 1,800 partners who know their
communities best to help educate check recipients about the benefits of
direct deposit, the options for receiving payments electronically, and
how to safely and cost-effectively use the Direct Express[supreg] card.
With the assistance of its partners, Treasury is able to tailor its
education efforts to meet the differing needs of local communities.
Treasury especially recognizes the need for and importance of
expanded cardholder education for existing and new Direct
Express[supreg] cardholders. While Treasury recognizes that the current
pool of Direct Express[supreg] cardholders may not resemble future
Direct Express[supreg] cardholders in either demographic
characteristics or attitudinal variables, according to research
conducted in March 2009 (Direct Express--Cardholder Satisfaction and
Usage Survey, OMB Control No. 1510-0074), 95 percent of Direct
Express[supreg] cardholders are satisfied with the card.\2\ Eight in
ten satisfied cardholders cite convenience, safety or immediate access
to money as reasons for their satisfaction. Eighty-six percent of those
surveyed said they would recommend the card to a friend or family
member who receives Federal benefits. Despite this high satisfaction
rate, Treasury believes that many Direct Express[supreg] cardholders
may be unaware of important features that promote proper card usage and
reduce fees, such as the availability of free text message alerts on
their cell phones when a deposit is made or when their balance is low,
the surcharge free ATM network, the ability to get cash back at point-
of-sale (POS) locations for free, or even the ability to make purchases
at retail locations for free. Using its research, including recent
research conducted with respect to cardholder education materials sent
to approximately 7,000 newly enrolled Direct Express[supreg]
cardholders who receive Veterans compensation and pension benefit
payments, Treasury will develop materials, such as informational
pictorial brochures, and methods for further educating benefit
recipients as necessary, and as suggested by several commenters.
---------------------------------------------------------------------------
\2\ Summaries of all of the surveys conducted by or on behalf of
Treasury that are cited in this rulemaking may be found at http://www.fms.treas.gov/eft.
---------------------------------------------------------------------------
In addition, Treasury continues to work with its Go Direct[supreg]
partners to promote financial education. For example, through its
partnership with the Federal Deposit Insurance Corporation (FDIC), the
Go Direct[supreg] campaign is working to raise awareness of the value
of financial education through the FDIC's award-winning Money Smart
financial education program. The Money Smart program is a comprehensive
financial education curriculum designed to help individuals outside the
financial mainstream enhance their financial skills and create positive
banking relationships. Many Go Direct[supreg] campaign partners have
used the Money Smart curriculum in their financial education efforts,
including banks, credit unions, law enforcement and crime prevention
organizations, aging and senior organizations, library systems, and
community and disability organizations.
iv. Financial Hardship. Many commenters suggested that the cost of
receiving payments electronically is higher than receiving payments by
paper check for many benefit recipients, and expressed concern that
Treasury's EFT requirement will create a financial hardship for many of
America's most vulnerable population. Treasury's goal is to provide
Federal beneficiaries and other payment recipients with a low-cost
option for receipt of Federal payments, which goes beyond the
requirement in Section 3332 that Treasury make available an account at
a ``reasonable cost.'' See 31 U.S.C. 3332(i)(2)(a). In addition to low-
cost accounts available from financial institutions and other financial
service providers around the country, Federal payment recipients have
at least one low-cost option--the Direct Express[supreg] card--and many
recipients potentially have a second option--the Electronic Transfer
Account (ETA), an account developed by Treasury in 1999. Although the
ETA is not available on a nationwide basis and does not include some of
the more useful features that have become available with prepaid debit
cards in recent years (thus making the Direct Express[supreg] card a
more cost-effective and useful option in most cases), the ETA continues
to meet the needs of some benefit recipients and will continue to be
available.
The Direct Express[supreg] card offers a user-friendly low-cost
option for Federal benefit payment recipients (see Direct
Express[supreg] card fee tables below). The account fees are structured
so that even those cardholders without access to surcharge-free ATMs
can use their cards for free because they can access their funds
through free POS purchases either in-store or online, can get cash back
for free at retail locations, and can get cash for free at any
MasterCard[supreg] member financial institution. The Direct
Express[supreg] surcharge-free ATM network has more than 53,000
surcharge-free ATMs, and the Direct Express[supreg] card program
provider continues to identify opportunities to expand the network
further.
While many commenters expressed concern about having to pay fees to
the Direct Express[supreg] card provider, or pay fees to receive a
paper statement, Treasury believes that these fees are generally lower
than costs that could be imposed for cashing a Treasury check and
managing financial transactions on a cash basis. The Direct
Express[supreg] fee tables are as follows:
Standard Free Services
----------------------------------------------------------------------------------------------------------------
Service Fee
----------------------------------------------------------------------------------------------------------------
Purchases at U.S. merchant locations................ FREE
Cashback with purchase.............................. FREE
Cash from bank tellers.............................. FREE
Customer service calls.............................. FREE
Web account access.................................. FREE
Deposit notification................................ FREE
Low balance notification............................ FREE
Card replacement-One free per year.................. FREE
ATM balance inquiry................................. FREE
ATM denial of service............................... FREE
[[Page 80322]]
ATM cash withdrawal in the U.S. including the One free withdrawal with each deposit to your Direct
District of Columbia, Guam, Puerto Rico, and U.S. Express[supreg] Card Account.*
Virgin Islands. Surcharge by ATM owner may apply.
----------------------------------------------------------------------------------------------------------------
* For each Federal government deposit to your Card Account, Comerica Bank will waive the fee for one ATM cash
withdrawal in the U.S. The fee waiver earned for that deposit expires on the last day of the following month
in which the deposit was credited to the Card Account.
The ONLY Fees You Can Be Charged
----------------------------------------------------------------------------------------------------------------
Optional service Fee
----------------------------------------------------------------------------------------------------------------
ATM cash withdrawals after free transactions are $0.90 each withdrawal (after free transactions are used).
used in U.S. including the District of Columbia,
Guam, Puerto Rico, and U.S. Virgin Islands.
Surcharge by ATM owner may apply.
Monthly paper statement mailed to you............... $0.75 each month.
Funds transfer to a personal U.S. bank account...... $1.50 each time.
Card replacement after one free each year........... $4.00 after one (1) free each year.
Overnight delivery of replacement card.............. $13.50 each time.
ATM cash withdrawal outside of U.S. Surcharge by ATM $3.00 plus 3% of amount withdrawn.
owner may apply.
Purchase at Merchant Locations outside of U.S....... 3% of purchase amount.
----------------------------------------------------------------------------------------------------------------
The low fees and nationwide availability of the Direct
Express[supreg] card more than satisfy the statutory requirement of 31
U.S.C. 3332 for Treasury to make available an account at a financial
institution ``at a reasonable cost'' and with ``the same consumer
protections with respect to the account as other account holders at the
same financial institution.'' See 31 U.S.C. 3332(f), (i)(2).
A recent report comparing fees for general purpose reloadable
prepaid cards helps illustrate the low cost of using a Direct
Express[supreg] card. A consumer advocate organization conducted a case
study showing the wide variations in fee structures for four prepaid
card products. See, ``Prepaid Cards: Second-Tier Bank Account
Substitutes,'' Consumers Union (September 2010) (http://www.defendyourdollars.org/pdf/2010PrepaidWP.pdf). Using a sample
consumer scenario,\3\ the report stated that, for the four prepaid card
products studied, monthly fees ranged from $15.45 to $43.75 for the
first and second months of card use. In contrast, as shown in Figure 1,
below, a Direct Express[supreg] cardholder under the same scenario
would spend no more than $ .90 per month if using surcharge-free ATMs
(one free ATM withdrawal per deposit, with a $ .90 per ATM withdrawal
charge after that), and no more than $7.89 per month if no surcharge-
free ATMs were used, assuming the average $2.33 surcharge fee per
withdrawal cited in the 2010 checking study by bankrate.com (http://www.bankrate.com/finance/checking/banks-taking-a-bigger-bite-with-atm-fees.aspx).\4\ There is no online bill paying service currently offered
in the Direct Express[supreg] card program, so a cardholder would pay
his or her own bills directly to the vendor or retailer, with no fee
being charged by the provider. The Direct Express[supreg] card provider
does not impose charges for POS purchases, balance inquiries, or for
receiving a deposit.
---------------------------------------------------------------------------
\3\ The sample consumer scenario in the cited report consisted
of a cardholder making the following transactions in a month: Three
ATM withdrawals, three bill payments (rent, utilities, phone), eight
point-of-sale purchases (groceries and meals once a week), weekly
balance inquiry, and two deposits.
\4\ The consumer scenarios used in the cited report assumed that
the cardholder did not incur any ATM surcharge fees.
Fig. 1--Direct Express[supreg] Card Fees: Sample Scenario
------------------------------------------------------------------------
Fees (with
Fees (with ATM
Direct Express[supreg] Card transactions no ATM surcharge
surcharge) of $2.33)
------------------------------------------------------------------------
1st ATM withdrawal (free with 1st deposit).... FREE $2.33
2nd ATM withdrawal (free with 2nd deposit).... FREE 2.33
3rd ATM withdrawal............................ $ .90 3.23
Three bill payments........................... FREE FREE
Eight POS..................................... FREE FREE
Weekly Balance Inquiry........................ FREE FREE
Two Deposits.................................. FREE FREE
-------------------------
Total..................................... .90 7.89
------------------------------------------------------------------------
In addition, the Direct Express[supreg] card does not have any
monthly fees, fees for activating the card, or fees for customer
service calls, which can drive up costs of other prepaid card products.
By educating Direct Express[supreg] cardholders to learn how to avoid
multiple ATM withdrawals, cardholders can quickly learn how to incur no
monthly fees whatsoever.
The regulatory impact assessment, below, contains additional
scenarios describing the Direct Express[supreg] card fees based on card
usage.
Costs incurred to use the Direct Express[supreg] card can compare
favorably to the cost of cashing a check and conducting necessary cash
transactions. While some individuals may be able to cash government
checks at no cost, there are often fees of up to $20 or more for
cashing a check, according to Treasury's research in 2007 (SSA & SSI
Check Recipient Survey, OMB Control No. 1510-0074). Check recipients
may also incur money order and postage costs to pay bills that are not
incurred with the Direct Express[supreg] card.
3. Suggested Changes to Direct Express[supreg] Card Program. Various
Commenters Suggested a Number of Ways That the Direct Express[supreg]
Card Should Be Changed
a. ATM Cash Withdrawal Fees. A few commenters suggested a range of
ways to maximize a cardholder's ability to access his or her cash from
an ATM for free. Suggestions ranged from providing cardholders with at
least one surcharge-free ATM withdrawal to providing free unlimited ATM
withdrawals and expanding the current surcharge-free network.
Treasury's current Direct Express[supreg] card offers sufficient
opportunities for a cardholder to access his or her cash without
incurring a fee.
[[Page 80323]]
The Direct Express[supreg] card program offers one free ATM withdrawal
for each deposit received. The free withdrawal is valid until the last
day of the month following the month of receipt of the deposit. Thus,
if a cardholder receives two deposits in January 2011, the cardholder
is entitled to two free ATM cash withdrawals that are good until
February 28, 2011. In addition, cardholders may obtain cash at retail
locations and bank tellers without incurring a fee. The Direct
Express[supreg] card provider does not impose limits on the number of
cash back or teller transactions a cardholder may conduct, although
merchants may impose a limit on the amount of cash back a cardholder
may receive.
After using available free withdrawals, Direct Express[supreg]
cardholders who choose to withdraw additional cash from an ATM are
charged a fee by the Direct Express[supreg] card provider of $ .90 per
withdrawal. The card provider does not impose any limits on ATM
withdrawals. If the cardholder withdraws cash from an ATM that is not
in the Direct Express[supreg] network, the ATM owner may charge the
cardholder an additional fee, known as a ``surcharge,'' which can range
from $1.00 to $3.50 or more. If the cardholder uses one of the more
than 53,000 Direct Express[supreg] surcharge-free ATMs, the cardholder
can avoid a surcharge fee. The Direct Express[supreg] card provider
continues to look for ways to expand the network, and Treasury will
continue to educate current and new cardholders about alternative ways
to get cash without paying a fee and how to use their card to pay for
goods and services.
b. Free Monthly Paper Statements. Several commenters stated a
preference for paper statements at no cost to the cardholder.
Currently, Direct Express[supreg] cardholders may obtain transaction
and balance information for free by calling a customer service number
or visiting the Direct Express[supreg] secure Web site. Upon request,
the Direct Express[supreg] card provider will send a cardholder a paper
transaction history at no cost. In addition, cardholders may sign up
for free text message, phone call, or email alerts when they receive a
deposit or reach a low balance amount pre-determined by the cardholder.
If a cardholder prefers a monthly paper statement, the provider charges
a fee of $ .75 per month. Because not every cardholder desires or would
use a paper statement, and because transaction and balance information
is available via different mechanisms, Treasury has determined that the
cost of paper statements should be borne by those who want them. While
other bank accounts may offer free monthly paper statements, as one
commenter noted, these bank accounts generally also require credit
checks and minimum balances, and have other requirements that hinder
the ability of recipients to obtain accounts, none of which are
required to open a Direct Express[supreg] card account. Two commenters
suggested that the Direct Express[supreg] card program at a minimum
offer a free annual paper statement for those who do not elect to
receive electronic or monthly paper statements. The Direct
Express[supreg] card provider currently makes available a cardholder's
complete transaction history, upon request and at no cost. Therefore,
Treasury believes that it has adequately addressed concerns related to
free monthly statements.
c. Encourage Opt In Election at Enrollment Time of Method for
Receiving Transaction Information. One commenter suggested that
cardholders who sign up for a Direct Express[supreg] card be given the
opportunity at enrollment to elect to receive paper statements, text
messages, or electronic mail messages with transactions and balance
information. Treasury explored this suggestion, but determined that it
is not feasible at this time given that many of the Direct
Express[supreg] card enrollments are handled by the respective Federal
benefit agency when the beneficiary is applying for his or her benefit.
Treasury is exploring the use of additional mailings to cardholders to
ensure that cardholders are aware of their options for receiving
transaction and balance information.
d. Provide Additional Convenience Card. Two commenters suggested
that the Direct Express[supreg] card program provide cardholders with
the option of allocating a discrete amount of their funds to a second
convenience card. The cardholder could then give this card to a
caregiver or relative who could use it to make purchases for the
cardholder. In this way, the cardholder would not have to turn over his
or her primary card to the caregiver or relative and trust the
caregiver or relative not to use all of the funds. Treasury supports
this suggestion as a way to mitigate a cardholder's risks and is
working with the Direct Express[supreg] card provider to determine the
feasibility and cost of providing this option.
e. Provide Access to Checks. Two commenters suggested that the
Direct Express[supreg] card program provide cardholders with the
ability to write checks. Treasury has explored this suggestion, but is
concerned that adding such an option could potentially increase fraud
opportunities, add complexity to the card program, and increase costs
to the cardholder. Instead, Treasury will educate cardholders on how to
avoid the need to use checks by making purchases with the debit card,
and if checks are necessary, where to find low-cost money orders. In
addition, MasterCard has an initiative aimed at increasing acceptance
of its card products by property managers. As part of this initiative,
Treasury and MasterCard are working together to emphasize to property
managers the importance of accepting the Direct Express[supreg] card
for rent payments.
f. Ability to Reload Cards With Non-Federal Funds. Two commenters
suggested that the Direct Express[supreg] card program be expanded to
allow cardholders to deposit funds other than Federal payments to their
card account. Treasury does not plan to implement this suggestion at
this time because of the increased cost to the Direct Express[supreg]
card program, increased opportunity for fraud, and added complexity for
cardholders. Treasury has plans to expand the card program to include
as many Federal payments as possible.
With respect to the broader need for more safe, low-cost financial
account options, Treasury is exploring the feasibility of offering
general purpose accounts to low- and moderate-income tax refund
recipients and encouraging initiatives for financial products and
services that are appropriate and accessible for millions of Americans
who are not fully incorporated into the financial mainstream, as
authorized by the ``Improving Access to Mainstream Financial
Institutions Act of 2010,'' enacted as Title XII of the Dodd-Frank Wall
Street Reform and Consumer Protection Act (Pub. L. 111-203, Jul. 21,
2010). The FDIC also is encouraging the banking industry to offer safe,
low-cost transaction and basic savings account products for low- and
moderate-income customers with its Model Safe Accounts Pilot (http://www.fdic.gov/consumers/template/).
g. Changes to Terms and Conditions of the Direct Express[supreg]
Card Program. Three commenters suggested changing some of the terms and
conditions of the Direct Express[supreg] card program. One suggestion
was to change the title of the Direct Express[supreg] card program
provider's terms and conditions document to ``Notice of Rights and
Obligations.'' Other suggestions were to prohibit terms that waive a
cardholder's right to a jury trial or to bring a class action lawsuit;
to allow disputes to be governed by the laws of the state in which the
cardholder resides, rather than the State of Michigan, which is where
the Direct Express[supreg] card provider is located; not to require
that the recipient contact the
[[Page 80324]]
merchant prior to cancelling a preauthorized transfer; to make clearer
when the time to dispute a charge begins; make clearer that
garnishments are not permitted, except as authorized by law (for
example, to collect delinquent taxes or child support); and to improve
the protections under Regulation E. Treasury will review the terms and
conditions and, at a minimum, will ask the Direct Express[supreg] card
provider to clarify the language regarding dispute time frames and
garnishments. At this time, Treasury does not plan to implement the
remaining suggestions, which would result in additional costs to the
Direct Express[supreg] card program, and perhaps even preclude Treasury
from offering a valuable low-cost account option for those
beneficiaries who prefer a prepaid debit card over a bank account. For
example, allowing lawsuits involving the Direct Express[supreg] card
program to be based on various choice-of-law provisions would increase
costs for the program to an unacceptable level, leaving a large number
of Federal benefit recipients without any cost-effective option for
enjoying the safety and convenience of direct deposit. Requiring the
Direct Express[supreg] provider to cancel a preauthorized debit before
the cardholder has contacted the merchant could leave cardholders
vulnerable to cancellation of needed goods or services because of a
lack of understanding about the need to make alternative payment
arrangements for necessary services, such as utilities. The Direct
Express[supreg] card provider follows standard industry practices,
except that with respect to the protections afforded under Regulation
E, the Direct Express[supreg] card provider offers an extended time
period within which to dispute a transaction from the industry standard
of 60 days to 90 days. Treasury believes it has obtained the best
possible terms and conditions for an account that provides the most
cost-effective, consumer-friendly terms available. Treasury will,
however, continue to work closely with the Direct Express[supreg] card
provider to identify and suggest improvements to the program. Even
though satisfaction with the Direct Express[supreg] card program among
current cardholders remains very high at 95% (Direct Express[supreg]--
Cardholder Satisfaction and Usage Survey, March 2009, OMB Control No.
1510-0074), Treasury is committed to taking all feasible and cost-
effective steps to improve the program because the agency recognizes
that current users may be different than future users in their
demographic characteristics or attitudes towards the use of prepaid
debit cards. In addition, it should be noted that, at any time, benefit
recipients may choose direct deposit to their bank account rather than
the Direct Express[supreg] card.
h. Cardholder Education. Several commenters suggested that Treasury
should do more to educate beneficiaries about their payment options,
and specifically about the Direct Express[supreg] card features, fees,
and terms. One commenter suggested that the Direct Express[supreg] card
program customer service be improved to make it easier to reach an
operator. Another commenter suggested that cardholders should be
provided with a wallet size information card, noting that ``[t]hough
the information on the Direct Express[supreg] card is generally quite
good, it could be improved.'' As mentioned previously, Treasury will be
launching its expanded cardholder education campaign immediately to
ensure that information about the Direct Express[supreg] card and how
to use it are easily accessible to the beneficiary population for whom
the card is intended. As part of its education effort, Treasury is in
the process of working with the Direct Express[supreg] card provider to
develop a wallet size information card for cardholders and pictorial
brochure with information on how to use the card. In addition, Treasury
works continuously with the Direct Express[supreg] card provider to
maximize and improve customer service. For example, when Treasury and
the provider learned of the difficulties cardholders were having in
reaching a live customer service representative, the provider modified
its telephone system and automated messages to make contact with a live
representative easier from a cardholder's perspective. Among other
things, Treasury's plans for cardholder education include direct mail
and other communications explaining how to use the card to make
purchases, pay bills, get cash back, as well as information about how
to check balances and transaction history. As appropriate, Treasury
will work with its 1,800 Go Direct[supreg] partners to further enhance
its cardholder education efforts.
4. Regulation of the Banking Industry and Prepaid Cards. Several
commenters suggested that Treasury take steps to improve consumer
protections associated with financial services products. One commenter
suggested that Section 3332 requires Treasury to take steps to ensure
that any account established by an individual to comply with the EFT
requirement is available at a ``reasonable cost'' and stated that
Treasury is not complying with the statutory mandate by providing
access to one account at a reasonable cost. Treasury disagrees. The
statute does not require Treasury to ensure than any account chosen by
a Federal payment recipient's must comply with the Section 3332(i)
requirements. The provision requires that Treasury regulations ensure
that individuals ``required * * * to have an account'' have ``access to
such an account at a reasonable cost'' and with ``the same consumer
protections with respect to the account as other account holders at the
same financial institution'' (emphasis added). The Direct
Express[supreg] card account is an account that meets the statutory
requirements.
Nonetheless, Treasury is committed to taking steps to resolve
several concerns raised by commenters. With respect to protecting
Federal beneficiaries from unlawful freezing and garnishment of
protected benefits, Treasury and the four major benefit paying
agencies--Office of Personnel Management, Railroad Retirement Board,
Social Security Administration, and Department of Veterans Affairs--
will soon publish a joint rule. See, Notice of Proposed Rulemaking,
Garnishment of Accounts Containing Federal Benefit Payments, 75 FR
20299, Apr. 19, 2010. The rule will help ensure that garnishment-exempt
benefit payments in an account are not improperly seized, by requiring
financial institutions to exempt from freezing or seizure a defined
amount equivalent to benefit payments deposited to an account prior to
a financial institution's receipt of a garnishment order. This new rule
will protect benefit recipients where benefit payments are directly
deposited to an account at a financial institution.
In response to comments related to allowing Federal payments to be
delivered to ``safe'' prepaid card accounts, Treasury is publishing, on
this date, an interim rule amending 31 CFR part 210 (Part 210 Interim
Rule), which generally requires that a Federal direct deposit payment
be delivered to a deposit account at a financial institution in the
name of the recipient, subject to certain exceptions. The Part 210
Interim Rule allows Federal payments to be deposited to an account
accessed through a prepaid card or similar card that meets the
following requirements, as more fully described in the interim rule:
The account funds are insured by the Federal Deposit Insurance
Corporation or National Credit Union Share Insurance Fund to the extent
permitted by law, the account does not have an attached line of credit
or loan feature that triggers automatic repayment from the card
account, and
[[Page 80325]]
the issuer of the card account provides the cardholder with the same
protections under Regulation E required to be provided for payroll card
accounts (12 CFR 205.18).
Several other concerns raised by commenters relating to the
regulation of bank overdraft fees, account advances offered by
financial institutions, and setoff of fees owed by account holders are
outside the scope of this rule.
5. Delay Effective Dates. Two commenters urged Treasury to delay
the proposed effective dates for EFT payments under the NPRM. One
consumer advocate organization suggested a delay ``until there is a
greater confidence that people are prepared to switch to electronic
disbursements,'' but did not specify a date for implementation. This
commenter urged more time for education noting that some people
shifting to electronic payments will need far more education or
counseling than others. Another commenter suggested a delay to 2020. As
explained in the NPRM, Treasury has accounted for the unique issues
raised for converting current check recipients to electronic payments
by delaying the implementation date for those individuals to March 1,
2013. Between now and 2013, Treasury plans a robust campaign to educate
people about the EFT requirement, EFT options and costs, how to use
EFT, and more. Treasury agrees with commenters who recommend a strong
education campaign, and as noted above, plans to utilize and expand its
existing network of Go Direct[supreg] partners in order to provide
outreach and sufficient information to all affected beneficiaries.
Therefore, Treasury does not believe that there is a need to further
extend the effective dates proposed in the NPRM, except that Treasury
is delaying the initial effective date from March 1 to May 1, 2011.
6. Provide Waiver for Attorney Fees for Social Security Cases. An
organization that represents Social Security claimants' representatives
and a number of attorneys who represent Social Security claimants
recommended that Treasury exempt attorneys' fee payments from the EFT
requirements for two main reasons. First, the individual attorneys or
representatives receiving the fee payment are not the ``owners'' of
their firm's bank account, and in some cases, are therefore precluded
from electronically depositing their fee payment to the firm's account.
This is problematic in these cases because the Social Security
Administration does not currently make representative fee payments
directly to the firm's account, nor does it currently recognize firms
as representatives. Secondly, many attorneys state that their banks are
unwilling or unable to provide all of the information needed to
identify the client on whose account the deposit was made. This second
point is also raised by an individual concerned that nursing homes
would similarly be unable to identify the resident to whom a direct
deposit payment belongs.
The Social Security Administration recently announced that it will
include an ``addenda record'' to display identifying information with
all direct deposit fee payments sent to representatives. See, Social
Security Administration letter at http://fms.treas.gov/greenbook/ssarep.pdf. The Social Security Administration encourages receiving
financial institutions to pass through to their account holders, as
quickly as possible, pertinent information. In this way, attorneys and
other representatives of Social Security claimants will be able to
identify the purpose of the payments. In addition, the Social Security
Administration may, in the future, recognize firms which might help
address the difficulties in using EFT for representative fee payments.
In order to mitigate these difficulties, and until these issues are
more fully addressed, Treasury recognizes the need to modify one of the
waivers that may be exercised by a paying agency, rather than Treasury,
in Sec. 208.4(f) regarding non-recurring payments. As the commenters
pointed out, some attorneys and representatives may receive multiple
payments in a given year for the multiple clients they represent before
the Social Security Administration, and thus do not meet the technical
definition of a recipient of a non-recurring payment in Sec. 208.4(f)
(``Where the agency does not expect to make more than one payment to
the same recipient within a one-year period, i.e., the payment is non-
recurring''). To address this, Treasury is modifying Sec. 208.4(f) to
allow Federal paying agencies to waive the EFT requirement for payments
made to the same recipient in a single year when these payments are not
made on a regular, recurring basis and remittance data explaining the
purpose of the payments is not readily available from the recipient's
financial institution receiving the payment by EFT.
Treasury encourages paying agencies to contact Treasury, before
invoking this waiver, to discuss various ways that remittance data can
be made available to payment recipients, which may negate the need for
a waiver. Treasury discourages the use of this waiver by agencies, and
expects the waiver to be employed on an exception basis and only until
expanded remittance data is more widely available to attorneys and
other representatives. In addition, Treasury notes that there are many
options for receipt of remittance data for vendors, and therefore does
not expect agencies to use this waiver to exempt vendor payments from
the EFT requirements.
Treasury is removing the requirement that agencies determine that
the cost of making an EFT payment exceeds the cost of making a payment
by check, as it may not be possible for an agency to make this
determination.
7. Privacy and Identity Theft Concerns. Many commenters raised
concerns about electronic banking leading to an increased risk of
identity theft. Typically, the comments expressed concern about
identity theft through online banking. This rule does not mandate any
requirement to bank online. Many financial institutions, including the
Direct Express[supreg] card provider, offer online banking services as
a convenience, but account holders are not required to use these
services.
None of the comments specifically articulated exactly how this rule
would increase a payment recipient's risk of identity theft. Based on
Treasury's experience with paper checks and electronic payments,
receiving payments by direct deposit decreases rather than increases
the risk of identity theft. As noted in the NPRM, in fiscal year 2009,
more than 670,000 Social Security and SSI checks were reported lost or
stolen. In fiscal year 2010, more than 540,000 checks were reported as
lost or stolen. In fiscal year 2009, Treasury investigated more than
70,000 cases of altered or fraudulently endorsed checks, totaling $64
million in estimated value, and in fiscal year 2010, Treasury
investigated almost 50,000 cases totaling $93 million in estimated
value. People intent on committing fraud can use a stolen Treasury
check, along with other stolen or fake identification documents, to
open an account in the recipient's name or otherwise impersonate a
check payee. A Treasury check that has been endorsed, but not cashed,
offers further opportunities for identity theft.
In addition to identity theft concerns, many commenters expressed
concern about their privacy and were opposed to having to disclose
their banking information to the Federal Government. Federal agencies
are subject to the Privacy Act of 1972, 5 U.S.C. 552a, which strictly
governs the collection of personal information from individuals, as
well as the maintenance and
[[Page 80326]]
disclosure of the information. Among other things, Federal agencies are
restricted in how they may use personal information, such as bank
account information, and must ensure that the information is not
disclosed in an unauthorized way. Except in limited circumstances or
with proper consent, bank account information provided by individuals
to agencies for the purpose of receiving payment by direct deposit may
be used and disclosed only for that purpose. For an example of agency
regulations implementing the Privacy Act of 1972, see Treasury's
regulations at 31 CFR part 1, subpart C.
With respect to customer account information held by a financial
institution, including Direct Express[supreg] card account information,
the Government is precluded from receiving any customer-specific
account information from a financial institution, and the financial
institution is precluded from providing any customer-specific account
information to the Government, without the account holder's consent or
without first following a process that provides the account holder with
an opportunity to object to any disclosure, generally for law
enforcement purposes. See, Right to Financial Privacy Act, 12 U.S.C.
3401, et seq.
8. Continue to Offer the ETA. A couple of commenters urged Treasury
to continue to offer the ETA option for those beneficiaries who opt for
this account to receive their benefit payments by direct deposit.
Treasury continues to offer the ETA as an alternative to the Direct
Express[supreg] card. It is also an option for unbanked Federal benefit
recipient seeking a safe, affordable banking relationship. Currently,
the ETA is offered by 392 financial institutions with over 53,000
branch locations. The ETA program has over 121,000 account holders who
receive Federal benefit payments. Although the ETA is not available on
a nationwide basis and does not include some of the more useful
features that have become available with prepaid debit cards in recent
years, it continues to meet the needs of some benefit recipients in
certain regions of the country. Treasury has no plans to eliminate the
ETA option and continues to support the ETA through its call center and
Web site. It should be noted, however, that Treasury is directing more
of its resources to educating beneficiaries about the Direct
Express[supreg] card since the card is available nationwide, provides
more useful features than the ETA, and may be used more cost-
effectively than an ETA. Information about ETAs may be found at http://www.eta-find.gov.
9. Require EFT to Existing Bank Accounts. An association that
represents financial institutions suggested that when a recipient has
an established banking relationship, the default election should be to
convert the benefit payment to a direct deposit to that established
bank account. Through its Go Direct[supreg] campaign, Treasury
encourages financial institutions to work with their own customers who
receive Federal benefit and other payments by paper check on converting
to payment by direct deposit. The Go Direct[supreg] campaign
communicates the many benefits to financial institutions that encourage
their customers to convert to direct deposit, which include increasing
a financial institution's customer base and customer loyalty,
operational and transaction-based cost savings, and reduction of check
fraud. See www.godirect.org. Absent clear instructions from a payment
recipient, Treasury is unable to ascertain with certainty whether a
payment recipient has a current bank account to which payments should
be directed. Therefore, Treasury allows each recipient to have payments
electronically delivered to an account at a financial institution of
his or her choice since the recipient is in the best position to
determine the most cost-effective and desirable account option for
receipt of his or her Federal payments.
IV. Final Rule
As explained above and in the regulatory impact assessment below,
Treasury is revising its NPRM proposal to address the comments we
received regarding elimination of all individual waivers from the EFT
requirement. Under the final rule, the EFT requirement will not apply
to (1) payment recipients born prior to May 1, 1921, who are receiving
Federal payments by check on March 1, 2013; (2) payments that are not
eligible for deposit to a Direct Express[supreg] prepaid card account
established pursuant to terms and conditions approved by FMS; and (3)
payment recipients whose Direct Express[supreg] card has been suspended
or cancelled. In addition, an individual payment recipient may request
a waiver from the EFT requirement if the EFT requirement would impose a
hardship because of the inability of a recipient to manage an account
at a financial institution or a Direct Express[supreg] card account due
to a mental impairment or because a recipient lives in a remote
geographic location lacking the infrastructure to support electronic
financial transactions. Payment recipients requesting a waiver are
required to provide to Treasury a written certification supporting
their request, in such form as Treasury may prescribe. The
certification requires a recipient to identify the basis for his or her
request and provide a brief explanation of how the exception applies to
his or her situation. The recipient shall sign the certification before
a notary public.
V. Section-by-Section Analysis
New Sec. 208.2(c) adds a definition for ``Direct Express[supreg]
card'' as meaning the debit prepaid card issued to recipients of
Federal benefits by Treasury's financial agent pursuant to requirements
established by Treasury. The Direct Express[supreg] card features are
explained in the NPRM, in this rulemaking, and on the Direct
Express[supreg] card Web site at http://www.USDirectExpress.com.
Redesignated Sec. 208.2(e) (formerly Sec. 208.2(d)) clarifies
that the definition of ``electronic benefits transfer'' includes
disbursement through a Direct Express[supreg] card account. As has been
the case, ``electronic benefits transfer'' (EBT) continues to include,
but is not limited to, disbursement through an ETASM and a
Federal/State EBT program.
Section 208.4(a) is divided into two paragraphs (a)(1) and (a)(2).
It is noted that, in cases where a representative payee has been
designated by the benefit paying agency and is receiving payments on
behalf of a beneficiary, the representative payee is the ``individual''
for purposes of Sec. 208.4(a). Redesignated Sec. 208.4(a)(1) is
revised to allow waivers where an individual:
(i) Is receiving a Federal payment by check prior to May 1, 2011.
In such cases, the individual may continue to receive those payments by
check through February 28, 2013;
(ii) Files a claim for a Federal payment prior to May 1, 2011, and
requests payment by check at the time he or she files the claim. In
such cases, the individual may receive those payments by check through
February 28, 2013;
(iii) Was born prior to May 1, 1921, and is receiving Federal
payments by check on March 1, 2013;
(iv) Receives payments that are not eligible for deposit to a
Direct Express[supreg] card account. In such cases, those payments are
not required to be made by electronic funds transfer, unless and until
such payments become eligible for deposit to a Direct Express[supreg]
card account;
(v) Is ineligible for a Direct Express[supreg] card because of
suspension or cancellation of the individual's card by the Financial
Agent;
[[Page 80327]]
(vi) Has filed a waiver request with Treasury certifying that
payment by electronic funds transfer would impose a hardship because of
the individual's inability to manage an account at a financial
institution or a Direct Express[supreg] card account due to a mental
impairment, and Treasury has not rejected the request;
(vii) Has filed a waiver request with Treasury certifying that
payment by electronic funds transfer would impose a hardship because of
the individual's inability to manage an account at a financial
institution or a Direct Express[supreg] card account due to the
individual living in a remote geographic location lacking the
infrastructure to support electronic financial transactions, and
Treasury has not rejected the request.
New Sec. 208.4(b) requires payment recipients requesting a waiver
from the EFT requirement because of a mental impairment or remote
geographic location to provide Treasury with a certification, in
writing, supporting their request in such form that Treasury may
prescribe. The individual shall attest to the certification before a
notary public or otherwise file the certification in such form that
Treasury may prescribe. A payment recipient requesting these types of
waivers will be required to provide identifying information, such as
name, address, and Social Security number, as well as a short statement
supporting the reason for the waiver request. Unless Treasury rejects
the request, the recipient will not be required to comply with the EFT
requirement. As noted above, in cases where a representative payee
receives payments on behalf of a beneficiary, the representative payee
is the individual requesting the claim based on the representative
payee's circumstances. Treasury will be publishing additional guidance
regarding the waiver process.
The Secretary's waiver authority remains unchanged, and Federal
agencies continue to have the flexibility to waive payment by direct
deposit or other EFT method in the circumstances described in
redesignated paragraphs (a)(2) through (a)(7) of Sec. 208.4 (formerly
paragraphs (b) through (g)), namely, for certain payments to payees in
a foreign country where the infrastructure does not support EFT, for
certain disaster or military situations, for situations in which there
may be a security threat or for valid law enforcement reasons, for non-
recurring payments, and for unusual and/or urgent situations where the
Government would be seriously injured unless payment is made by a
method other than EFT.
Treasury is revising redesignated paragraph (a)(6) of Sec. 208.4
(formerly paragraph (f)) which previously allowed Federal paying
agencies, rather than Treasury, to waive the EFT requirement for
payments that are non-recurring, i.e., no more than one payment to the
same recipient within a one-year period. Under the revised rule, the
waiver exists for payments made to the same recipient in a single year
when these payments are not made on a regular, recurring basis and
remittance data explaining the purpose of the payments is not readily
available from the recipient's financial institution receiving the
payment by electronic funds transfer. As mentioned above, agencies
should make limited use of this waiver and should use this waiver only
after discussions with Treasury to rule out other ways in which
remittance data can be made available.
Section 208.6 is revised to remove the provisions for the general
account requirements for Federal payments made electronically to an
account at a financial institution. These requirements are contained in
31 CFR 210.5 and do not need to be duplicated in Part 208. Revised
Sec. 208.6 states that any individual who receives a Federal benefit,
wage, salary, or retirement payment will be eligible for a Direct
Express[supreg] card account.
Section 208.7 is revised to state that agencies shall put into
place procedures that allow recipients to provide the information
necessary: (i) For the delivery of their payments by EFT to an account
at a financial institution, or (ii) to enroll for a Direct
Express[supreg] card account. Agencies no longer need to notify
individuals about their right to invoke a hardship waiver. FMS will
provide guidance and work with agencies to ensure that they have the
information they need to effectively explain the rule, available
waivers, direct deposit, and features and fees of the Direct
Express[supreg] card.
Section 208.8 is revised to state that payment recipients are
required to provide a Federal agency with the necessary information to
receive payments electronically. To receive a payment by direct deposit
to an account at a financial institution, a recipient will need to
provide his or her account information. To enroll for a Direct
Express[supreg] card account, a recipient will need to provide
sufficient demographic information to allow for an account to be
established, including information needed for identity verification
purposes.
Section 208.11 is revised to conform to the technical revision and
delete the reference to Sec. 208.6.
Appendices A and B containing Model ETASM Disclosure
Notices are removed because they no longer apply. ETASM
accounts remain available from financial institutions that continue to
offer them. For more information about ETASM accounts, visit
http://www.eta-find.gov.
VI. Procedural Analysis
Regulatory Planning and Review
It has been determined that this regulation is a significant
regulatory action as defined in Executive Order 12866 in that this rule
would have an annual effect on the economy of $100 million or more, and
this rule raises novel policy issues arising out of the legal mandate
in 31 U.S.C. 3332. Accordingly, this final rule has been reviewed by
the Office of Management and Budget. The Regulatory Impact Assessment
prepared by Treasury for this regulation is provided below.
Summary of Estimated Benefits and Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
Benefit................................. $117 million.
Cost.................................... Not estimated.
Net Benefits............................ Not estimated.
------------------------------------------------------------------------
The analysis used nominal dollars in 2010.
1. Description of Need for the Regulatory Action
a. Statutory and Regulatory History
As discussed in the Regulatory Impact Assessment in the NPRM, this
rulemaking is necessary to expand compliance with the electronic funds
transfer (EFT) provisions of section 3332, title 31 United States Code
(Section 3332). In 1996, Congress enacted subsection 31001(x)(1) of the
Debt Collection Improvement Act of 1996 (Pub. L. 104-134) (DCIA), which
amended Section 3332 to generally require that all nontax Federal
payments be made by EFT, unless waived by the Secretary of the Treasury
(Secretary). The Secretary must ensure that individuals required to
receive Federal payments by EFT have access to an account at a
financial institution ``at a reasonable cost'' and with ``the same
consumer protections with respect to the account as other account
holders at the same financial institution.'' See 31 U.S.C. 3332(f),
(i)(2).
To implement Section 3332 as Congress intended, Treasury
promulgated 31 CFR part 208 (Part 208). Part 208 sets forth
requirements for accounts to which Federal payments may be sent by EFT;
provides that any individual who receives a Federal benefit, wage,
salary, or retirement payment is eligible to open an Electronic
Transfer Account (ETA) at a financial institution that offers such
[[Page 80328]]
accounts; and establishes the responsibilities of Federal agencies and
recipients under the regulation. Part 208 also sets forth a number of
waivers to the general requirement that Federal payments be delivered
by EFT. See 31 CFR 208.4.
In conjunction with the initial publication of Part 208, Treasury
developed the ETA, a low-cost account offered by participating
financial institutions for those individuals who wish to receive their
Federal payments by direct deposit. The ETA was established with the
intention that it would eventually become available nationwide, and
thereby comply with the statutory mandate that any person required to
receive payment by EFT have access to an account at a financial
institution at a reasonable cost and with standard consumer
protections. However, the ETA is not available nationwide, and, as a
result, does not meet the statutory requirement related to account
access.
Any financial institution that wishes to offer the ETA may do so by
entering into a financial agency agreement agreeing to offer the ETA in
accordance with the terms and conditions established by Treasury. See
Notice of Electronic Transfer Account Features, 64 FR 38510 (July 16,
1999). A participating financial institution must open an ETA for any
individual who requests one, with some limited exceptions, provided
that the individual authorizes the direct deposit of his or her Federal
benefit, wage, salary or retirement payments. A financial institution
may charge an account fee of up to $3.00 per month, and may charge
other account-related fees as usually and customarily charged to other
retail customers. ETA cardholders must be allowed to withdraw funds at
least four times per month without incurring fees. Checks are not
offered with ETAs. Account holders access their funds through online
debit at ATMs, commonly referred to as ``PIN debit,'' and through POS
networks. Offline (signature) debit is not permitted. Treasury pays a
participating financial institution a fee of $12.60 for each ETA
account established.
The hardship waivers in Part 208 prior to this rulemaking were
necessary because the ETA was not (and is not) available to all benefit
recipients across the country. In addition, because the ETA does not
permit signature debit and does not include bill payment capability as
a required feature, the ETA cardholders have limited options in paying
for goods and services with an ETA. They cannot use the ETA, for
example, to make online and telephone purchases. The limited payment
capability of the ETA resulted in a need for hardship exceptions for
geographic, financial, and physical disability reasons, since
individuals might not have convenient or feasible access to physical
POS or ATM locations. Moreover, the ETA allows monthly and other fees
which, although limited, could still pose a financial hardship for some
benefit recipients. This meant that a waiver for financial hardship was
also necessary.
Since its inception in 1999 through September 2010, only 251,941
ETA accounts have been opened, and, as of September 2010, there are
only 121,191 active ETA accounts. Anecdotal evidence suggests that,
with some exceptions, the ETA is not a cost-effective product for
financial institutions. According to a 2002 report by the Government
Accountability Office (GAO), although many financial institutions
believed that the ETA was a good product for the target market, the
financial institutions were reluctant to offer the account because they
did not see the product as profitable. See, ``Electronic Transfers: Use
by Federal Payment Recipients Has Increased but Obstacles to Greater
Participation Remain,'' GAO-02-913, page 31 (Sept. 12, 2002)
(www.gao.gov/new.items/d02913.pdf). From the consumer perspective,
reasons for lack of interest include the inability to write checks,
limited availability of ETAs, lack of awareness of ETAs, a difficult
enrollment process, and a personal preference for doing business
without a bank account. Id., at 35-36.
GAO has issued at least two reports on the Federal Government's
efforts to increase the use of electronic payments rather than checks.
See, for example, 2002 GAO report cited above, and ``Electronic
Payments: Many Programs Electronically Disburse Federal Benefits, and
More Outreach Could Increase Use,'' GAO-08-645 (June 23, 2008) (http://www.gao.gov/new.items/d08645.pdf). In these referenced reports, GAO
recognizes the advantages of electronic payments, but also recognizes
the two major historical obstacles to removing the Part 208 individual
waivers. First, there are a high number of check recipients who do not
have a bank account or who lack convenient access to an account at a
reasonable cost with appropriate consumer protections. GAO-02-913,
pages 16-24 (Sept. 12, 2002); GAO-08-645, pages 19-20, 33 (June 23,
2008). Second, consumer concerns about the improper freezing and
seizure of Federal benefit funds typically exempt from garnishment has
led to resistance to Treasury's efforts to remove the Part 208
individual waivers to EFT requirements. GAO-08-645, pages 20-22.
b. Technology Changes in the Banking Industry
As discussed in the Regulatory Impact Assessment in the NPRM, the
technological developments and widespread acceptance of debit and
prepaid card products during the last decade have made it feasible and
advantageous for Treasury to revise its existing implementing
regulation to expand the scope of individuals subject to the EFT
requirements. Specifically, the development and implementation of the
Direct Express[supreg] card, a MasterCard [supreg] prepaid debit card
developed by Treasury exclusively for Federal benefit recipients, means
that Treasury can now comply with the requirement of Section 3332 to
ensure that individuals required to receive Federal payments by EFT
have access to an account at a financial institution that is reasonably
priced and subject to standard consumer protections.
Reloadable prepaid debit cards, which were a small specialty
product in the 1990s, are now widely available and can be used at a
vast number of merchant locations across the country, not only to
purchase goods and services, but also to obtain cash through cashback
transactions at POS locations. With the expansion of the Internet and
other technological advances, consumers have the ability to make online
purchases with a debit card, as well as the ability to pay for goods
and services over the telephone, resulting in the mitigation of some
past obstacles to electronic payment acceptance. Even for those without
access to the Internet, or who buy goods and use services from vendors
who do not accept debit card payments, debit cards can be used to
purchase money orders, thereby eliminating the step of having to cash a
check or carry large amounts of cash to complete necessary financial
transactions.
The ``2007 Federal Reserve Payments Study, Noncash Payment Trends
in the United States: 2003-2006,'' sponsored by the Federal Reserve
System (released December 10, 2007) (http://www.frbservices.org/files/communications/pdf/research/2007_payments_study.pdf), highlights the
growing acceptance of debit cards in the United States. According to
the study, debit cards now surpass credit cards as the most frequently
used payment type. The Federal Reserve noted that the highest rate of
growth was in automated clearing house (ACH) payments, which grew about
19 percent
[[Page 80329]]
per year, followed closely by debit card payments. The annual use of
debit cards increased by about 10 billion payments over the survey
period to 25.3 billion payments in 2006, an annual growth rate of
transactions of 17.5% from 2003 to 2006. Many financial service
providers offer general prepaid branded reloadable cards intended for
recipients of wages, incentive or bonus payments, state benefits and
child support payments, and other types of high volume or regularly
recurring payments. Many states offer or require the use of electronic
payment cards for those who receive state benefits, such as temporary
assistance to needy families.
Treasury's experience with offering electronic payment card
products dates back to 1989, and illustrates how Treasury's products
have evolved and how acceptance of these products has grown. In 1989,
Treasury offered a debit card product, known as the SecureCard, on a
pilot basis in Baltimore, Maryland, at no cost to SSI recipients. The
undeveloped nature of the POS system at that time presented the primary
challenge in that pilot. To make the card useful, Treasury installed
POS equipment at various local merchants, at a substantial cost to the
Government. In 1992, Treasury initiated the Direct Payment Card pilot
for Social Security and SSI recipients in Texas, which had a better
developed POS infrastructure, and subsequently extended the pilot to
Social Security recipients in Argentina. From 1992 through 1997,
approximately 46,000 recipients enrolled, and the program was well-
received by recipients. Building on the success of the Direct Payment
Card pilot, in 1996, Treasury joined a Federal-State electronic
benefits transfer (EBT) program known as the Benefit Security Card
program. The Benefit Security Card was offered to Federal and/or state
benefit recipients in eight southeastern states, known as the Southern
Alliance of States, which included Alabama, Arkansas, Florida, Georgia,
Kentucky, Missouri, North Carolina, and Tennessee. Treasury's Benefit
Security Card program allowed benefit recipients to access their
Federal and/or state benefits via a single debit card. When Treasury
terminated the card program in January 2003, approximately 51,000
Federal benefit recipients were enrolled in the program. Although
customers were pleased with the product, Treasury and most states were
concerned about cardholder costs, which were scheduled to increase at
the time Treasury terminated the program. At the end of 2006, Treasury
initiated a small Direct Express[supreg] card program to gauge the
market for a branded debit card, reloadable only with Federal benefit
payments. As part of the pilot, Treasury sent letters to 35,000 Social
Security and SSI check recipients in Chicago and southern Illinois,
offering them the opportunity to sign up for a Direct Express[supreg]
card to receive their Federal benefit payments electronically. In
addition, Treasury included information about the program in check
envelopes mailed to all Illinois Social Security and SSI check
recipients. The card features offered for the pilot program were
similar to the current Direct Express[supreg] card product, although
the fees were slightly higher.
2. Provision
Treasury is implementing this rule in two phases. The first phase
would require all new benefit recipients to sign up for direct deposit
to a bank account of the recipients' choice or to a Direct
Express[supreg] card account, beginning May 1, 2011. The second phase
would begin on March 1, 2013, at which time all recipients of Federal
benefit and other nontax payments would receive their payments by
direct deposit, either to a bank account or to a Direct Express[supreg]
card account.
Those receiving their benefit payments by check before May 1, 2011,
could continue to do so through February 28, 2013, after which those
recipients would convert to direct deposit. For Federal benefit
recipients, this means that individuals who file claims for Federal
benefits before May 1, 2011, and who request check payments when they
file, would be permitted to receive payments by check through February
28, 2013. Individuals who file claims for benefits on or after May 1,
2011, would receive their payments by direct deposit. Individuals
receiving their payments by direct deposit prior to May 1, 2011, would
continue to do so.
In this final rule, Treasury waives the EFT requirement for
recipients born prior to May 1, 1921 who are receiving Federal payments
by check on March 1, 2013, for payments that are not eligible for
deposit to a Direct Express[supreg] card account, and for recipients
whose Direct Express[supreg] card has been suspended or cancelled. In
addition, this rule allows a recipient to request a waiver from the EFT
requirement on the basis that EFT would impose a hardship because of
the recipient's inability to manage an account at a financial
institution or a Direct Express[supreg] card account due to a mental
impairment, or because the recipient lives in a remote geographic
location lacking the infrastructure to support electronic financial
transactions. The waiver request is considered effective unless
Treasury rejects the request.
3. Baseline
a. Amount of Federal Disbursement
The baseline amount of Federal disbursement described in the NPRM
is updated as follows. In fiscal year 2010, Treasury disbursed almost
85% of its nontax payments electronically, or more than 793 million
payments. Despite the general requirement that Federal payments be made
electronically, and Treasury's efforts to persuade check recipients to
convert to direct deposit, Treasury nevertheless continues to print and
mail many millions of checks each year, at a substantially higher cost
to the Government than if those payments were delivered by EFT. For
example, of the approximately 143 million checks disbursed for nontax
payments, in fiscal year 2010, more than 130 million of them were
Federal benefit checks mailed to almost 11 million benefit recipients,
causing avoidable payment-related problems for many check recipients,
and resulting in extra costs to taxpayers of more than $117 million
that would not have been incurred had those payments been made by EFT.
Social Security (retirement, disability, and survivors benefits) and
SSI payments represent more than 92 percent, or approximately 120
million, of those benefit check payments. The remaining 10 million
benefit check payments are made to recipients of civil service
retirement, railroad retirement, Black Lung, and Veterans benefits.
Although the direct deposit payments rate has increased since 1996,
when it was 58%, the rate has climbed only slowly since fiscal year
2005 when it first reached 80%.
b. Affected Population
As noted above, in fiscal year 2010, Treasury disbursed 130 million
checks to almost 11 million benefit recipients. Treasury estimates that
approximately 4 million of those recipients do not have bank accounts.
Treasury recognizes the demographic differences between payment
recipients who are more willing to accept direct deposit and those who
are not. Treasury also recognizes that there are a variety of reasons
why check recipients do not switch to direct deposit. Because the
majority of its check payments are made to Social Security and SSI
recipients, Treasury's research focuses on this population. During
implementation of its rule, Treasury will continue its research efforts
to ensure that the needs of all check recipients are adequately
addressed and take appropriate action.
[[Page 80330]]
While recognizing that the results of the study is not
generalizable to the U.S. population, Treasury's study, ``Understanding
the Dependence on Paper Checks--A Study of Federal Benefit Check
Recipients and the Barriers to Boosting Direct Deposit'' (2004), sheds
some insight on individuals who choose to receive Federal benefits
through paper checks (OMB Control No. 1510-0074). The average age of a
Social Security check recipient was 66 years old. Sixty-one percent of
the Social Security check recipients were female; 39% were male.
Thirty-five percent of the Social Security check recipients had not
completed high school, while 26% had some college education or beyond.
Sixty percent of Social Security recipients were retired; 27% did not
have bank accounts; 12% received some other form of government
assistance; and, 27% had a disability.
Comparatively, the average age of a SSI check recipient was 50.
Seventy percent of the SSI check recipients were female; 30% were male.
Fifty-one percent of the SSI recipients had not completed high school,
while 15% had some college education or beyond. Only 21% of SSI
recipients were retired; 68% did not have a bank account; 42% received
some other form of government assistance, and 42% had a disability.
According to Treasury research in 2007 (SSA & SSI Check Recipient
Survey, OMB Control No. 1510-0074), the check recipient population
demographics had not changed significantly. The 2007 survey found that
28% of Social Security check recipients did not have a bank account,
but that 9% more SSI recipients had bank accounts than in 2004 (in
2007, 59% of SSI recipients did not have a bank account).
The above-referenced Treasury research shows that younger benefit
recipients convert to direct deposit at a faster rate than older
benefit recipients. Younger benefit recipients who have had their
payments for less than a year are signing up for direct deposit at
rates that far exceed their proportions in the population. Close to 50%
of those Social Security and SSI check recipients who converted to
direct deposit had been receiving their benefits for less than one
year. Conversely, only 16% of Social Security check recipients and 15%
of SSI recipients who had been receiving their payments nine (9) years
or longer signed up for direct deposit.
Treasury and the Social Security Administration found that, in
fiscal year 2010, 79.1% of new Social Security enrollees signed up for
direct deposit either to an existing bank account or to a Direct
Express[supreg] card account. Since September 2008, the Social Security
Administration has been offering new Social Security and SSI recipients
the option of signing up for a Direct Express[supreg] card, in addition
to direct deposit at a financial institution, at the time they enroll
for benefits. Social Security is also allowing individuals to sign up
at local offices and by telephone. The Direct Express[supreg] card has
been a major contributor in the decline of Social Security and SSI
check payments over the last two years, but has had an especially
significant impact on the SSI check payment volume. The average monthly
payment amount for an SSI check recipient is $545, whereas the average
monthly payment amount for a Social Security check recipient is $808
for beneficiaries who receive their payment on the third of the month,
and $915 for all other Social Security check recipients. There has been
a year-over-year decrease in SSI checks of 6.91% in March 2010,
compared to March 2009, which is significantly greater than the 3.81%
decline in March 2009, compared to March 2008. The number of all nontax
checks decreased from 148 million in fiscal year 2009 to 143 million in
fiscal year 2010.
4. Assessment of Potential Costs and Benefits
a. Potential Costs
There are potential short-term costs associated with the
rulemaking. First, there are intangible emotional costs for individuals
who are fearful or resistant to direct deposit. In its 2004 research,
Treasury learned that there are some key differences among Social
Security check recipients, SSI check recipients, and those that receive
their benefit payments by direct deposit. Although these differences do
not necessarily explain why certain individuals are more resistant than
others to receiving payments by direct deposit, the data helps Treasury
properly target its public education campaign. For example, because the
data described below shows that Social Security check recipients are
more likely than SSI check recipients to have a bank account, Treasury
can direct its resources to informing Social Security check recipients
about the benefits of directly depositing payments to an existing bank
account. For SSI recipients who are less likely to have a bank account,
Treasury can focus its Direct Express[supreg] card information to that
population.
Compared to SSI check recipients, Social Security check recipients
are older (average age 66), more likely to have a bank account, more
likely to be male and retired, less likely to have a disability, less
likely to receive some other form of government assistance, less likely
to depend on their benefit as their sole source of income, and more
likely to be Caucasian. SSI recipients are likely to be younger
(average age 50), less likely to have a bank account, more likely to
have a representative payee acting on their behalf, more likely to be
African-American, more likely to be female, more likely to live in a
city, more likely to receive some other form of benefit payment, and
more likely to depend on others for assistance with daily chores and
errands. Direct deposit recipients are more technologically savvy than
either Social Security or SSI check recipients. They are more likely to
own a cell phone or to use a personal computer and the Internet.
Compared with check recipients, direct deposit beneficiaries responding
to the survey were more likely to have confidence in banks, to believe
that computers are secure, and to feel that ATMs are safe.
Despite these demographic differences, Treasury has found that the
reasons for resistance to direct deposit among check recipients have
remained fairly constant over the years. Many people express a desire
to see the physical payment in check form. Others feel a greater sense
of control when handling checks, and many, especially those receiving
SSI, believe that receiving checks helps them to better manage their
money and maintain their standard of living. Barriers that need to be
overcome can be grouped into four general categories: informational
(those who do not understand how direct deposit works); emotional
(those who just prefer to receive checks); inertia (those who are
receptive to electronic payments, but need to be motivated to sign up);
and mechanical (those who do not have bank accounts, and in some cases,
do not want bank accounts).
Treasury expects most recipients to pay less for EFT payments than
for check payments. While some individuals may be able to cash
government checks at no cost, there are often fees of up to $20 or more
for cashing a check, according to Treasury's research in 2007 (SSA &
SSI Check Recipient Survey, OMB Control No. 1510-0074). The Direct
Express[supreg] card program is structured so that there are several
ways for cardholders to access their funds and use their card without
paying any fees. The Direct Express[supreg] card account fees compare
favorably to those charged by financial service providers offering
general purpose reloadable cards, which often charge fees for sign-up,
monthly maintenance, ATM withdrawals, balance inquiries,
[[Page 80331]]
and customer service calls. Cardholders may use their card to make
purchases and get cash back at a POS location without paying a fee;
obtain cash from any MasterCard[supreg] member bank teller window
without paying a fee; and make one free ATM cash withdrawal for each
benefit payment deposited to the card account (the free ATM cash
withdrawal is available until the end of the month following the month
of deposit). If the cardholder makes a withdrawal using an ATM within
the Direct Express[supreg] surcharge-free ATM network, the cardholder
will not pay a surcharge fee to an ATM owner. In addition, there are
many other features that cardholders can access without paying a fee,
including unlimited customer service calls (with or without live
operators); optional automated low balance alerts or deposit
notifications; and online or telephone transaction history and other
account information. There is no fee to sign up for the card, close the
account, or to obtain one replacement card per year. Importantly, there
are no overdrafts, minimum balance requirements, or credit requirements
to sign up for the card. The few fees that are charged for the card
include $.90 for ATM transactions after free ATM transactions are used,
$.75 per month for optional paper statements, fees for using the card
outside the United States, and replacement cards beyond the free
replacement card. By way of illustration, sample Direct Express[supreg]
cardholder scenarios follow:
---------------------------------------------------------------------------
\5\ The bankrate.com 2010 checking study cited an average $2.33
surcharge fee per withdrawal (http://www.bankrate.com/finance/checking/banks-taking-a-bigger-bite-with-atm-fees.aspx).
Fig. 2--Direct Express[supreg] Card Fees: Sample Scenario 1
------------------------------------------------------------------------
Fees (with ATM
Direct Express[supreg] Card Fees (with no ATM surcharge of
transactions surcharge) $2.33) \5\
------------------------------------------------------------------------
1st ATM withdrawal (free with 1st FREE................ $2.33
deposit).
Three bill payments............... FREE................ FREE
Eight POS transactions............ FREE................ FREE
Weekly Balance Inquiry............ FREE................ FREE
One Deposit....................... FREE................ FREE
-------------------------------------
Total Monthly Fee............. FREE................ 2.33
------------------------------------------------------------------------
Fig. 3--Direct Express[supreg] Card Fees: Sample Scenario 2
------------------------------------------------------------------------
Fees (with ATM
Direct Express[supreg] Card transactions Fees (with no surcharge of
ATM surcharge) $2.33)
------------------------------------------------------------------------
1st ATM withdrawal (free with 1st FREE $2.33
deposit)...............................
2nd ATM withdrawal...................... $.90 3.23
Eight POS transactions.................. FREE FREE
Weekly Balance Inquiry.................. FREE FREE
One Deposit............................. FREE FREE
-------------------------------
Total Monthly Fee................... .90 5.56
------------------------------------------------------------------------
Fig. 4--Direct Express[supreg] Card Fees: Sample Scenario 3
------------------------------------------------------------------------
Fees (with ATM
Direct Express[supreg] Card Fees (with no ATM surcharge of
transactions surcharge) $2.33)
------------------------------------------------------------------------
1st ATM withdrawal (free with 1st FREE................ $2.33
deposit).
Bank Teller Cash Withdrawal....... FREE................ FREE
Eight POS transactions............ FREE................ FREE
Weekly Balance Inquiry............ FREE................ FREE
One Deposit....................... FREE................ FREE
-------------------------------------
Total Monthly Fee............. FREE................ 2.33
------------------------------------------------------------------------
Fig. 5--Direct Express[supreg] Card Fees: Sample Scenario 4
------------------------------------------------------------------------
Direct Express[supreg] Card Fees (with no ATM Fees (with ATM
transactions surcharge) surcharge $2.33)
------------------------------------------------------------------------
1st ATM withdrawal (free with FREE............. $2.33.
1st deposit).
Purchase Money Order for $700 $1.50 (to USPS).. 1.50 (to USPS).
at US Post Office (USPS) to
pay rent.
Eight POS transactions........ FREE............. FREE.
Weekly Balance Inquiry........ FREE............. FREE.
[[Page 80332]]
One Deposit................... FREE............. FREE.
-----------------------------------------
Total Monthly Fee......... $1.50............ $3.83.
------------------------------------------------------------------------
Fig. 6--Direct Express[supreg] Card Fees: Sample Scenario 5
------------------------------------------------------------------------
Fees (with ATM
Direct Express[supreg] Card transactions Fees (with no surcharge of
ATM surcharge) $2.33)
------------------------------------------------------------------------
1st ATM withdrawal (free with 1st FREE $2.33
deposit)...............................
5 additional ATM withdrawals............ $4.50 16.15
One POS transaction..................... FREE FREE
Weekly Balance Inquiry.................. FREE FREE
One Deposit............................. FREE FREE
-------------------------------
Total Monthly Fee................... 4.50 18.48
------------------------------------------------------------------------
Even in Scenario 5, which is not the recommended way to use the
Direct Express[supreg] card, a cardholder incurs less expense than what
some beneficiaries pay to cash their Treasury checks. Treasury expects
that, with its expanded cardholder education, fees incurred under
Scenarios 1 through 4 would be more typical.
Treasury expects to continue to incur expenditures for the public
education related to the implementation of the new rule and to
temporarily expand its telephone and online direct deposit enrollment
center to accommodate those converting from check payments to direct
deposit to comply with the new rule, whether the conversion is to an
account at a financial institution or to a Direct Express[supreg] card
account. However, such expenditures will taper off after the new rule
is fully implemented, since direct deposit enrollment in the future
will occur at the time of benefit enrollment. Federal benefit agencies
may incur costs to temporarily expand customer service centers to
accommodate recipients' questions and enrollments until the new rules
are fully implemented.
Treasury expects increased costs for its call center and Web site
used to enroll check recipients into direct deposit, although these
costs are expected to drop off after 2013, when the rule would be fully
implemented. The education costs, estimated at $10 million over the
next three years, are costs that Treasury would have incurred even
without the rule, and for potentially longer than the next three to
five years. Similarly, Treasury expects benefit paying agencies to
incur some initial costs for customer service training for customer
service representatives responsible for educating new enrollees and
current check recipients about the new rules, but these costs are
expected to be more than offset by the cost savings expected once
customer service centers no longer have to respond to individual
inquiries related to check problems. The one-time costs to increase
customer service capacity at the Treasury enrollment center (both
telephone and online) could total as high as $20 million from the
effective date of the final rule through 2013. These costs include
Treasury's costs for processing waiver requests. After 2013, Treasury
expects these costs to drop off significantly.
The Go Direct[supreg] campaign, sponsored by Treasury and the
Federal Reserve Banks, highlights the need for this educational
program. Despite the success of the campaign with more than five
million direct deposit enrollments achieved since 2005 as a result of
the campaign's activities, an estimated 11 million Federal benefit
recipients still receive checks each month. Treasury research shows
that the likelihood of current check recipients switching to direct
deposit remained generally unchanged from 2004 to 2007, with 55% of
banked Social Security check recipients surveyed in 2007 being very
unlikely to change to direct deposit, down from 59% in 2004. The
percentage of banked Social Security check recipients likely to switch
to direct deposit went from 27% in 2004 to 28% in 2007. Comparatively,
40% of banked SSI check recipients were likely to switch to direct
deposit in 2007, up only one percentage point since 2004. While
Treasury research shows that direct deposit education has a positive
impact on the likelihood of a check recipient to switch to direct
deposit, the effort is time consuming, administratively burdensome,
costly, and resource-intensive. During the period July 2009 through
June 2010, Treasury spent $4.5 million on its Go Direct[supreg]
campaign, and expects to spend another $4 million during the period
July 2010 through June 2011. Prior years' costs have ranged from $5
million to $10 million for Treasury to establish and sustain its
presence in target markets to promote and encourage check recipients to
convert to direct deposit.
Finally, and less directly, financial institutions may experience
some costs associated with converting their check recipient customers
to direct deposit, but Treasury does not expect this to be a
significant burden since financial institutions already enroll a
significant number of direct deposit recipients through Treasury's Go
Direct[supreg] campaign.
b. Potential Benefits
The potential benefits of the rule to the Government and taxpayers
are significant. As noted above, in fiscal year 2010, Treasury mailed
more than 130 million Federal benefit checks to approximately 11
million benefit recipients, resulting in extra costs to taxpayers of
more than $117 million that would not have been incurred had those
payments been made by EFT. Without the rule change and given the
current trends, the number of checks
[[Page 80333]]
that Treasury prints and mails each year is expected to increase
significantly over the coming years, primarily as a result of the aging
of the baby boomer generation. Beginning in 2008, the first wave of 78
million baby boomers became eligible for Social Security benefits. Even
as the more technologically-savvy baby boomers enter the rolls, while
improving, the direct deposit rate for fiscal year 2010 climbed no
higher than 79.1% for new Social Security enrollees. With the increase
in retiring baby boomers, Treasury expects to issue approximately 60
million new payments each year to approximately 5 million newly
enrolled recipients (based on Social Security Administration actuarial
data). Of those 60 million payments, an estimated 9 million would be
made by check based on the current overall direct deposit/check ratio
(85 percent/15 percent) for Social Security payments. By 2020, the
Social Security Administration projects there will be 18.6 million more
Social Security beneficiaries than in fiscal year 2009, which would
result in more than 223 million additional payments each year. At the
current direct deposit/check ratio, this would mean 33.5 million
additional checks each year beginning in 2020, at a cost of $31 million
each year, leading to a total annual cost of more than $156 million
more than if those payments were made by direct deposit.
These projected cost savings do not take into account future
increased costs in postage, paper, and salaries; the cost of issuing
benefit checks other than Social Security and SSI; or the costs
agencies incur in handling inquiries and authorizing replacement
checks. For example, the Social Security Administration expects
administrative savings resulting from a drop in non-receipt and lost
check actions. The Social Security Administration also expects to save
money by eliminating the ``Payment Delivery Alert System,'' which is a
joint effort among the Social Security Administration, Treasury, and
the U.S. Postal Service to locate and deliver delayed Social Security
and SSI checks.
Those who receive their payments by direct deposit do not have to
worry about a lost or stolen check, or carrying around large amounts of
cash that can be easily lost or stolen. Each year, approximately half a
million individuals call Treasury to request claims packages related to
problems with check payments. For example, in fiscal year 2009, more
than 670,000 Social Security and SSI checks were reported lost or
stolen, and in fiscal year 2010, more than 540,000 checks were reported
lost or stolen. In fiscal year 2009, Treasury investigated more than
70,000 cases of altered or fraudulently endorsed checks, totaling $64
million, and in fiscal year 2010, Treasury investigated almost 50,000
cases, totaling $93 million. When checks are misrouted, lost in the
mail, stolen, or fraudulently signed, Treasury must send replacement
checks to the recipient. This can result in a delay in payment,
especially if fraud or counterfeiting is involved, thereby creating a
hardship for benefit recipients who rely on these payments for basic
necessities such as food, rent, or medication. In contrast, individuals
receiving Federal payments electronically rarely have any delays or
problems with their payments. Nine out of ten problems with Treasury-
disbursed payments are related to paper checks even though checks
constitute only 19 percent of all Treasury-disbursed payments made by
the Government.
These projected savings also do not account for the costs that
would no longer be incurred by banks and credit unions for cashing
checks and reimbursing the Government when there are alterations,
forgeries, or unauthorized indorsements of Federal benefit checks. In
fiscal year 2009, it cost the banking industry $69.3 million to
reimburse the Treasury for checks that had been fraudulently altered or
counterfeited, or contained a forged or unauthorized indorsement. In
fiscal year 2010, these costs increased to $88 million.
5. Alternative Approaches Considered
Treasury considered three alternative approaches to achieving the
benefits of direct deposit other than the approach described in this
rulemaking notice.
First, Treasury could have eliminated the individual EFT waivers
sooner for everyone, i.e., eliminate the waivers for all benefit
recipients on the same effective date, but Treasury was concerned about
the impact of such a rule on payment recipients if the amount of time
to educate the public about the rule's requirements and benefits was
inadequate. It is important for Treasury and benefit agencies to be
prepared to respond to recipients' inquiries about the new rules, which
requires sufficient time to train agency customer service
representatives, educate those affected by the new rules, and to
implement any process changes that may be required. Treasury will work
closely with the agencies to ensure that implementation requirements
are understood and can be addressed in the time frame in the rule.
Second, Treasury also considered phasing in the elimination of the
individual EFT waivers over a longer period of time. Treasury is
concerned that such a delay results in additional costs to individuals
who will be delayed in realizing the benefits of direct deposit.
Treasury intends to begin its public education campaign immediately
upon the promulgation of this final rule. Treasury will monitor the
progress of its campaign, and adjust the campaign as necessary to
ensure maximum effectiveness. In addition, a delayed implementation
results in additional costs to the Government and taxpayers. For every
year that Treasury delays full implementation of the EFT rule, the
Government spends at least $117 million more for check payments than it
would otherwise spend if recipients were receiving EFT payments.
Finally, Treasury considered eliminating all EFT waivers, and
whether to institute a formal application process for individuals
seeking to invoke a waiver to the EFT requirement. Treasury is
concerned that such an approach would require the unnecessary
development of a new bureaucratic infrastructure to process the
applications, and would impose administrative burdens on both
Government agencies and benefit recipients. After reviewing comments
received in response to the NPRM, Treasury retained waivers for
recipients born prior to May 1, 1921 who are receiving Federal payments
by check on March 1, 2013, for payments that are not eligible for
deposit to a Direct Express[supreg] card account, and for recipients
whose Direct Express[supreg] card has been suspended or cancelled. In
addition, this rule allows a payment recipient to request a waiver from
the EFT requirement on the basis that EFT would impose a hardship
because of the recipient's inability to manage an account at a
financial institution or a Direct Express[supreg] card account due to a
mental impairment, or because the recipient lives in a remote
geographic area lacking the infrastructure to support electronic
financial transactions. Recipients requesting waivers are required to
submit a certification with a short statement explaining why they need
a waiver. The certification will be signed by the individual requesting
the waiver before a notary public, or in such form that Treasury may
prescribe. The waiver request is considered effective unless Treasury
rejects the request.
The availability of the Direct Express[supreg] card negates the
need for other individual waivers. Agencies retain the ability to waive
EFT requirements for
[[Page 80334]]
classes of payments for various reasons. Finally, in an unusual or
exceptional circumstance, the Secretary has the authority to waive the
EFT requirement, but Treasury does not anticipate invoking this
authority except in rare situations.
6. Other Issues
a. Financial Agent
Building on the ``lessons learned'' in previous programs and the
Direct Express[supreg] card program pilot, Treasury issued an
announcement in 2007 seeking a financial institution qualified to act
as a Treasury-designated financial agent to provide debit card services
for Federal benefit recipients nationwide, through the Direct
Express[supreg] card program. Treasury has unique legal authority to
designate a financial institution as its financial agent to disburse
Federal benefit payments electronically, which includes the
establishment of an account meeting certain requirements, maintenance
of an account, the receipt of Federal payments electronically, and the
provision of access to funds in the account on the terms specified by
Treasury. See 12 U.S.C. 90; 31 CFR 208.2. Fifteen financial
institutions responded, and after careful review of the applications,
Treasury selected Comerica Bank as its agent based on various criteria,
including the proposed cardholder fees. Treasury considered, but
rejected, selecting multiple financial agents (although it has the
option to do so in the future) primarily to ensure that the selected
financial agent would be able to maintain a sufficient volume of active
accounts in order to cost-effectively sustain a program with the lowest
possible cardholder fees. The financial agent selection process used by
Treasury enabled Treasury to obtain debit card services with the most
value for benefit recipients, including, among other things, better
consumer protections than those offered by most prepaid card products,
a surcharge-free ATM network of more than 53,000 surcharge-free ATMs,
free low balance alerts and deposit notification, unlimited free
customer service calls, and the ability to use the debit card product
to access Federal benefit payments without incurring a fee. Treasury
provides oversight to confirm that its financial agent operates the
Direct Express[supreg] card program to provide maximum value at a
reasonable cost to cardholders. The card program is now available to
recipients of Social Security, SSI, Veterans compensation and pension,
civil service retirement, and railroad retirement benefit payments.
This allows Federal payment recipients to receive multiple types of
Federal payments to a single Direct Express[supreg] card account.
b. Garnishment
Treasury has also addressed the concerns about the improper
freezing and seizure of benefit funds exempt from garnishment. Treasury
and the four major benefit paying agencies--Office of Personnel
Management, Railroad Retirement Board, Social Security Administration,
and Department of Veterans Affairs--published a notice of proposed
rulemaking and will soon publish a joint rule. The rule will help
ensure that garnishment-exempt benefit payments in an account are not
improperly seized, and will protect benefit recipients where benefit
payments are directly deposited to an account at a financial
institution.
Regulatory Flexibility Act Analysis
It is hereby certified that the rule will not have a significant
economic impact on a substantial number of small entities. The rule
applies to individuals who receive Federal payments, and does not
directly impact small entities. Accordingly, a regulatory flexibility
analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is
not required.
Unfunded Mandates Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532 (Unfunded Mandates Act), requires that the agency prepare a
budgetary impact statement before promulgating any rule likely to
result in a Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. If a budgetary
impact statement is required, section 205 of the Unfunded Mandates Act
also requires the agency to identify and consider a reasonable number
of regulatory alternatives before promulgating the rule. We have
determined that the rule will not result in expenditures by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year. Accordingly, we have
not prepared a budgetary impact statement or specifically addressed any
regulatory alternatives.
List of Subjects in 31 CFR Part 208
Accounting, Automated Clearing House, Banks, Banking, Electronic
funds transfer, Financial institutions, Government payments.
0
For the reasons set out in the preamble, 31 CFR part 208 is amended to
read as follows:
PART 208--MANAGEMENT OF FEDERAL AGENCY DISBURSEMENTS
0
1. The authority citation for part 208 continues to read as follows:
Authority: 5 U.S.C. 301; 12 U.S.C. 90, 265, 266, 1767, 1789a;
31 U.S.C. 321, 3122, 3301, 3302, 3303, 3321, 3325, 3327, 3328, 3332,
3335, 3336, 6503; Pub. L. 104-208, 110 Stat. 3009.
0
2. In Sec. 208.2, redesignate paragraphs (c) through (o) as paragraphs
(d) through (p), respectively, add new paragraph (c), and revise
redesignated paragraph (e) to read as follows:
Sec. 208.2 Definitions.
* * * * *
(c) Direct Express[supreg] card means the prepaid debit card issued
to recipients of Federal benefits by a Financial Agent pursuant to
requirements established by Treasury.
* * * * *
(e) Electronic benefits transfer (EBT) means the provision of
Federal benefit, wage, salary, and retirement payments electronically,
through disbursement by a financial institution acting as a Financial
Agent. For purposes of this part, EBT includes, but is not limited to,
disbursement through an ETA\sm\, a Federal/State EBT program, or a
Direct Express[supreg] card account.
* * * * *
0
3. Amend Sec. 208.4 as follows:
0
a. Remove the introductory text;
0
b. Revise paragraph (a);
0
c. Add paragraph (a)(1);
0
d. Redesignate paragraphs (b) through (g) as paragraphs (a)(2) through
(a)(7).
0
e. In redesignated paragraph (a)(4), further redesignate paragraphs (1)
and (2) as paragraphs (a)(4)(i) and (ii);
0
f. Revise redesignated paragraph (a)(6); and
0
g. Add new paragraph (b).
The revisions and additions read as follows:
Sec. 208.4 Waivers.
(a) Payment by electronic funds transfer is not required in the
following cases:
(1) Where an individual:
(i) Is receiving a Federal payment by check prior to May 1, 2011.
In such cases, the individual may continue to receive those payments by
check through February 28, 2013;
(ii) Files a claim for a Federal payment prior to May 1, 2011, and
requests payment by check at the time he or she files the claim. In
such cases, the individual may receive those
[[Page 80335]]
payments by check through February 28, 2013;
(iii) Was born prior to May 1, 1921, and is receiving payment by
check on March 1, 2013;
(iv) Receives a type of payment that is not eligible for deposit to
a Direct Express[supreg] card account. In such cases, those payments
are not required to be made by electronic funds transfer, unless and
until such payments become eligible for deposit to a Direct
Express[supreg] card account;
(v) Is ineligible for a Direct Express[supreg] card because of
suspension or cancellation of the individual's card by the Financial
Agent;
(vi) Has filed a waiver request with Treasury certifying that
payment by electronic funds transfer would impose a hardship because of
the individual's inability to manage an account at a financial
institution or a Direct Express[supreg] card account due to a mental
impairment, and Treasury has not rejected the request; or
(vii) Has filed a waiver request with Treasury certifying that
payment by electronic funds transfer would impose a hardship because of
the individual's inability to manage an account at a financial
institution or a Direct Express[supreg] card account due to the
individual living in a remote geographic location lacking the
infrastructure to support electronic financial transactions, and
Treasury has not rejected the request.
* * * * *
(6) Where the agency does not expect to make payments to the same
recipient within a one-year period on a regular, recurring basis and
remittance data explaining the purpose of the payment is not readily
available from the recipient's financial institution receiving the
payment by electronic funds transfer; and
* * * * *
(b) An individual who requests a waiver under paragraphs (a)(1)(vi)
and (vii) of this section shall provide, in writing, to Treasury a
certification supporting that request, in such form that Treasury may
prescribe. The individual shall attest to the certification before a
notary public, or otherwise file the certification in such form that
Treasury may prescribe.
0
4. Revise Sec. 208.6 to read as follows:
Sec. 208.6 Availability of the Direct Express[supreg] Card.
An individual who receives a Federal benefit, wage, salary, or
retirement payment shall be eligible to open a Direct Express[supreg]
card account. The offering of a Direct Express[supreg] card account
shall constitute the provision of EBT services within the meaning of
Public Law 104-208.
0
5. Revise Sec. 208.7 to read as follows:
Sec. 208.7 Agency responsibilities.
An agency shall put into place procedures that allow recipients to
provide the information necessary for the delivery of payments to the
recipient by electronic funds transfer to an account at the recipient's
financial institution or a Direct Express[supreg] card account.
0
6. Revise Sec. 208.8 to read as follows:
Sec. 208.8 Recipient responsibilities.
Each recipient who is required to receive payment by electronic
funds transfer shall provide the information necessary to effect
payment by electronic funds transfer.
0
7. Revise the third sentence in Sec. 208.11 to read as follows:
Sec. 208.11 Accounts for disaster victims.
* * * Treasury may deliver payments to these accounts
notwithstanding any other payment instructions from the recipient and
without regard to the requirements of Sec. Sec. 208.4 and 208.7 of
this part and Sec. 210.5 of this chapter. * * *
0
8. Remove Appendix A and Appendix B to Part 208.
Dated: December 16, 2010.
Richard L. Gregg,
Fiscal Assistant Secretary.
[FR Doc. 2010-32117 Filed 12-21-10; 8:45 am]
BILLING CODE 4810-35-P