80_FR_48841 80 FR 48684 - Debit Card Interchange Fees and Routing

80 FR 48684 - Debit Card Interchange Fees and Routing

FEDERAL RESERVE SYSTEM

Federal Register Volume 80, Issue 157 (August 14, 2015)

Page Range48684-48686
FR Document2015-19979

The Board is publishing a clarification of Regulation II (Debit Card Interchange Fees and Routing). Regulation II implements, among other things, standards for assessing whether interchange transaction fees for electronic debit transactions are reasonable and proportional to the cost incurred by the issuer with respect to the transaction, as required by section 920 of the Electronic Fund Transfer Act. On March 21, 2014, the Court of Appeals for the District of Columbia Circuit upheld the Board's Final Rule. The Court also held that one aspect of the rule--the Board's treatment of transactions- monitoring costs--required further explanation from the Board, and remanded the matter for further proceedings. The Board is explaining its treatment of transactions-monitoring costs in this Clarification.

Federal Register, Volume 80 Issue 157 (Friday, August 14, 2015)
[Federal Register Volume 80, Number 157 (Friday, August 14, 2015)]
[Rules and Regulations]
[Pages 48684-48686]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-19979]


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FEDERAL RESERVE SYSTEM

12 CFR Part 235

[Regulation II; Docket No. R-1404]
RIN No. 7100-AD 63


Debit Card Interchange Fees and Routing

AGENCY: Board of Governors of the Federal Reserve System

ACTION: Clarification.

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SUMMARY: The Board is publishing a clarification of Regulation II 
(Debit Card Interchange Fees and Routing). Regulation II implements, 
among other things, standards for assessing whether interchange 
transaction fees for electronic debit transactions are reasonable and 
proportional to the cost incurred by the issuer with respect to the 
transaction, as required by section 920 of the Electronic Fund Transfer 
Act. On March 21, 2014, the Court of Appeals for the District of 
Columbia Circuit upheld the Board's Final Rule. The Court also held 
that one aspect of the rule--the Board's treatment of transactions-
monitoring costs--required further explanation from the Board, and 
remanded the matter for further proceedings. The Board is explaining 
its treatment of transactions-monitoring costs in this Clarification.

DATES: Effective August 14, 2015.

FOR FURTHER INFORMATION CONTACT: Stephanie Martin, Associate General 
Counsel (202-452-3198), or Clinton Chen, Attorney (202-452-3952), Legal 
Division; for users of Telecommunications Device for the Deaf (TDD) 
only, contact (202-263-4869); Board of Governors of the Federal Reserve 
System, 20th and C Streets NW., Washington, DC 20551.

SUPPLEMENTARY INFORMATION

I. Background

    The Dodd-Frank Wall Street Reform and Consumer-Protection Act (the 
``Dodd-Frank Act'') was enacted on July 21, 2010.\1\ Section 1075 of 
the Dodd-Frank Act amends the Electronic Fund Transfer Act (``EFTA'') 
(15 U.S.C. 1693 et seq.) to add a new section 920 regarding interchange 
transaction fees and rules for payment card transactions.\2\ EFTA 
section 920(a)(2) provides that the amount of any interchange 
transaction fee that an issuer receives or charges with respect to an 
electronic debit transaction must be reasonable and proportional to the 
cost incurred by the issuer with respect to the transaction.\3\ Section 
920(a)(3) requires the Board to establish standards for assessing 
whether an interchange transaction fee is reasonable and proportional 
to the cost incurred by the issuer with respect to the transaction. 
Without limiting the full range of costs that the Board may consider, 
section 920(a)(4)(B) requires the Board to distinguish between two 
types of costs

[[Page 48685]]

when establishing standards under section 920(a)(3). In particular, 
section 920(a)(4)(B) requires the Board to distinguish between ``the 
incremental cost incurred by an issuer for the role of the issuer in 
the authorization, clearance, or settlement of a particular electronic 
debit transaction,'' which the statute requires the Board to consider, 
and ``other costs incurred by an issuer which are not specific to a 
particular electronic debit transaction,'' which the statute prohibits 
the Board from considering.
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ EFTA section 920 is codified as 15 U.S.C. 1693o-2. EFTA 
section 920(c)(8) defines ``an interchange transaction fee'' (or 
``interchange fee'') as any fee established, charged, or received by 
a payment card network for the purpose of compensating an issuer for 
its involvement in an electronic debit transaction.
    \3\ Electronic debit transaction (or ``debit card transaction'') 
is defined in EFTA section 920(c)(5) as a transaction in which a 
person uses a debit card.
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    Under EFTA section 920(a)(5), the Board may allow for an adjustment 
to the amount of an interchange transaction fee received or charged by 
an issuer if (1) such adjustment is reasonably necessary to make 
allowance for costs incurred by the issuer in preventing fraud in 
relation to electronic debit card transactions involving that issuer, 
and (2) the issuer complies with fraud-prevention standards established 
by the Board. Those standards must, among other things, require issuers 
to take effective steps to reduce the occurrence of, and costs from, 
fraud in relation to electronic debit transactions, including through 
the development and implementation of cost-effective fraud-prevention 
technology.
    The Board promulgated its final rule implementing standards for 
assessing whether interchange transaction fees meet the requirements of 
section 920(a) in July 2011. (Regulation II, Debit Card Interchange 
Fees and Routing, ``Final Rule,'' codified at 12 CFR part 235).\4\ 
Among the provisions of the Final Rule was one relating to 
transactions-monitoring costs. Transactions-monitoring costs are costs 
incurred by the issuer during the authorization process to detect 
indications of fraud or other anomalies in order to assist in the 
issuer's decision to authorize or decline the transaction. The Board 
included transactions-monitoring costs as part of the interchange fee 
standard called for in section 920(a)(3)(A) (costs incurred by an 
issuer for the issuer's role in the authorization of a particular 
transaction) based on the Board's determination that these costs are 
incurred in the course of effecting a particular transaction and an 
integral part of the authorization of a specific electronic debit 
transaction.
---------------------------------------------------------------------------

    \4\ Regulation II also implemented a separate provision of 
section 920 relating to network exclusivity and routing.
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    The Board amended Regulation II on August 3, 2012 to implement the 
fraud-prevention cost adjustment permitted by EFTA section 
920(a)(5).\5\ Fraud-prevention costs included in that adjustment 
included costs associated with research and development of new fraud 
technologies, card reissuance due to fraudulent activity, data 
security, and card activation.\6\ These costs are not incurred during 
the transaction as part of the authorization process.
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    \5\ See 77 FR 46,258 (Aug. 3, 2012).
    \6\ See 77 FR at 46,264.
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    On March 21, 2014, the Court of Appeals for the District of 
Columbia Circuit upheld the Board's Final Rule relating to the 
interchange fee standard. NACS v. Board of Governors of the Federal 
Reserve System, 746 F.3d 474 (D.C. Cir. 2014).\7\ The Court of Appeals 
held, however, that one aspect of the rule--the Board's treatment of 
transactions-monitoring costs--required further explanation from the 
Board, and remanded the matter for further proceedings. The Court of 
Appeals agreed with the Board's position that ``transactions-monitoring 
costs can reasonably qualify both as costs `specific to a particular 
transaction' (section 920(a)(4)(B)) and as fraud-prevention costs 
(section 920(a)(5)).'' 746 F.3d at 492. The Court held, however, that 
the Board had not adequately articulated its reasons for including 
transactions-monitoring in the interchange fee standard rather than in 
the fraud-prevention adjustment.
---------------------------------------------------------------------------

    \7\ The U.S. Supreme Court denied the retailers' petition for a 
writ of certiorari on January 20, 2015. 135 S. Ct. 1170 (2015).
---------------------------------------------------------------------------

II. Rationale for Including Transactions-Monitoring Costs in the 
Interchange Fee Standard

    In the Final Rule, the Board identified the types of costs that 
could not be included in the interchange fee standard under section 
920(a)(4)(B)(ii) (other costs ``not specific to a particular 
transaction'') on the basis of whether those costs are ``incurred in 
the course of effecting'' transactions.\8\ Costs that were ``not 
incurred in the course of effecting any electronic debit transaction'' 
were determined to be outside of the allowable ambit of the interchange 
fee standard, but the standard could include ``any cost that is not 
prohibited--i.e., any cost that is incurred in effecting any electronic 
debit transaction.'' \9\ Thus, for example, the costs of equipment, 
hardware, software, and labor associated with transactions processing 
were properly included in the interchange fee standard because no 
particular transaction can occur without incurring these costs, and 
thus these costs are ``specific to a particular transaction.'' \10\ In 
upholding the rule, the Court of Appeals found this to be ``reasonable 
line-drawing.'' \11\
---------------------------------------------------------------------------

    \8\ 76 FR 43,394, 43,426 (July 20, 2011).
    \9\ Id.
    \10\ 76 FR at 43,430.
    \11\ 746 F.3d at 490.
---------------------------------------------------------------------------

    The same rationale supports including transactions-monitoring costs 
in the interchange fee standard. Transactions-monitoring systems, such 
as neural networks and fraud-risk scoring systems, assist in the 
authorization process by providing information needed by the issuer in 
deciding whether the issuer should authorize the transaction before the 
issuer decides to approve or decline the transaction. Like other 
authorization steps, such as confirming that a card is valid and 
authenticating the cardholder, transactions-monitoring is integral to 
an issuer's decision to authorize a specific transaction.\12\ In fact, 
most costs of the authorization process (which are costs Congress 
required to be considered in determining the interchange fee) assist in 
preventing some type of fraud. Steps in the authorization process may 
include ensuring that the transaction is not against an account that 
has been closed, checking to be sure the card has not been reported 
lost or stolen, checking that there is an adequate balance, and 
authenticating the cardholder. Like transactions-monitoring, these 
authorization steps are all ``specific to a particular transaction'' in 
the sense that they occur in connection with each transaction that is 
authorized or declined. Because the statute requires the Board to 
consider incremental authorization costs in setting the interchange fee 
standard, the Board concluded that that it should consider the costs of 
all activities that are integral to authorization, even if those costs 
are also incurred for the dual purpose of helping to prevent fraud.
---------------------------------------------------------------------------

    \12\ 76 FR at 43,430-31.
---------------------------------------------------------------------------

    By contrast, fraud-prevention costs that the Board used to 
calculate the separate fraud-prevention adjustment authorized under 
section 920(a)(5) were not necessary to effect a particular transaction 
and were not part of the authorization, clearing, or settlement 
process, and thus a particular electronic debit transaction could occur 
without the issuer incurring these costs. As the Board stated in the 
Final Rule, the types of fraud-prevention activities considered in 
connection with the fraud-prevention adjustment were those activities 
designed to prevent debit card fraud at times other than when the 
issuer is authorizing, settling, or clearing a transaction.\13\ For 
example, in setting the fraud-prevention adjustment, the Board 
considered costs associated with research and development of new

[[Page 48686]]

fraud prevention technologies, card reissuance due to fraudulent 
activity, data security, and card activation.\14\
---------------------------------------------------------------------------

    \13\ 76 FR at 43,431.
    \14\ 77 FR at 46,264.
---------------------------------------------------------------------------

    As noted above, section 920(a)(4)(B) specifically directs the Board 
to consider in establishing the interchange fee standard the costs 
``incurred by the issuer for the role of the issuer in the 
authorization, clearance or settlement of a particular transaction.'' 
Transactions monitoring is an integral part of the authorization 
process, so that the costs incurred in that process are part of the 
authorization costs that the Board is required by the statute to 
consider when establishing the interchange fee standard. In addition, 
the statutory language of section 920(a)(5), which differs in important 
respects from section 920(a)(4)(B), supports the Board's decision to 
include transactions-monitoring costs in the interchange fee standard 
rather than in the separate fraud prevention adjustment. The costs 
considered in section 920(a)(5)(A)(i) are those of preventing fraud 
``in relation to electronic debit transactions,'' rather than costs of 
``a particular electronic debit transaction'' referenced in section 
920(a)(4)(B). Congress's elimination of the word ``particular'' and its 
use of the more general phrase ``in relation to,'' along with its use 
of the plural ``transactions,'' indicates that the fraud-prevention 
adjustment may take into account an issuer's fraud prevention costs 
over a broad spectrum of transactions that are not linked to a 
particular transaction.
    Moreover, section 920(a)(5) permits the Board to adopt a separate 
adjustment ``to make allowance for costs incurred by the issuer in 
preventing fraud in relation to electronic debit transactions involving 
that issuer'' if certain standards are met, and directs that those 
standards include that the issuers take steps to ``reduce the 
occurrence of, and costs from, fraud in relation to electronic debit 
transactions,'' including ``development and implementation of cost-
effective fraud prevention technology.'' Section 920(a)(5)(A)(i), 
(A)(ii)(II) (emphasis supplied). The use of the general phrase ``fraud 
in relation to electronic debit transactions'' and the specific 
reference to developing fraud prevention technology suggest a 
Congressional intent to use the fraud prevention adjustment to 
encourage issuers to develop and adopt programmatic improvements to 
address fraud outside of the context of particular transactions that 
incur costs for authorization, clearance, or settlement. The types of 
costs the Board included in the separate fraud prevention adjustment 
are programmatic costs, such as researching and developing new fraud 
prevention technologies and data security, and other costs that 
encourage enhanced fraud prevention that are not necessary to effect 
particular transactions.
    The Board is publishing this explanation in accordance with the 
opinion of the Court of Appeals.

    By order of the Board of Governors of the Federal Reserve 
System, August 10, 2015.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2015-19979 Filed 8-13-15; 8:45 am]
BILLING CODE P



                                            48684              Federal Register / Vol. 80, No. 157 / Friday, August 14, 2015 / Rules and Regulations

                                            require action by any person or entity                  Government Paperwork Elimination Act sec.             things, standards for assessing whether
                                            regulated by the NRC. Also, the final                   1704 (44 U.S.C. 3504 note); Energy Policy Act         interchange transaction fees for
                                            rule does not change the substantive                    of 2005, Pub. L. 109–58, 119 Stat. 594 (2005).        electronic debit transactions are
                                            responsibilities of any person or entity                  Section 71.97 also issued under sec. 301,           reasonable and proportional to the cost
                                                                                                    Pub. L. 96–295, 94 Stat. 789–790.
                                            regulated by the NRC. Accordingly, for                                                                        incurred by the issuer with respect to
                                            the reasons stated, the NRC finds,                      ■2. In § 71.4, revise the definition of               the transaction, as required by section
                                            pursuant to 5 U.S.C. 553(d)(3), that good               Contamination to read as follows:                     920 of the Electronic Fund Transfer Act.
                                            cause exists to make this rule effective                                                                      On March 21, 2014, the Court of
                                                                                                    § 71.4    Definitions.
                                            upon publication.                                                                                             Appeals for the District of Columbia
                                                                                                    *      *    *      *     *                            Circuit upheld the Board’s Final Rule.
                                            Correction to the Preamble                                 Contamination means the presence of                The Court also held that one aspect of
                                               In FR Doc. 2015–14212 appearing on                   a radioactive substance on a surface in               the rule—the Board’s treatment of
                                            page 33987 in the Federal Register of                   quantities in excess of 0.4 Bq/cm2 (1 ×               transactions-monitoring costs—required
                                            Friday, June 12, 2015, the following                    10¥5 mCi/cm2) for beta and gamma                      further explanation from the Board, and
                                            corrections to the preamble are made:                   emitters and low toxicity alpha emitters,             remanded the matter for further
                                               1. On page 33988, in the second                      or 0.04 Bq/cm2 (1 × 10¥6 mCi/cm2) for                 proceedings. The Board is explaining its
                                            column, the FOR FURTHER INFORMATION                     all other alpha emitters.                             treatment of transactions-monitoring
                                            CONTACT section is corrected to read as                    (1) Fixed contamination means                      costs in this Clarification.
                                            follows:                                                contamination that cannot be removed
                                                                                                                                                          DATES: Effective August 14, 2015.
                                               FOR FURTHER INFORMATION CONTACT:                     from a surface during normal conditions
                                                                                                                                                          FOR FURTHER INFORMATION CONTACT:
                                            Solomon Sahle, Office of Nuclear                        of transport.
                                                                                                       (2) Non-fixed contamination means                  Stephanie Martin, Associate General
                                            Material Safety and Safeguards, U.S.                                                                          Counsel (202–452–3198), or Clinton
                                            Nuclear Regulatory Commission,                          contamination that can be removed from
                                                                                                    a surface during normal conditions of                 Chen, Attorney (202–452–3952), Legal
                                            Washington, DC 20555–0001, telephone:                                                                         Division; for users of
                                            301–415–3781; email: Solomon.Sahle@                     transport.
                                                                                                                                                          Telecommunications Device for the Deaf
                                            nrc.gov.                                                *      *    *      *     *
                                                                                                                                                          (TDD) only, contact (202–263–4869);
                                               2. On page 34010, in the third                       ■ 3. In § 71.70, revise paragraph (a), fifth          Board of Governors of the Federal
                                            column, last paragraph, in Section XVII,                sentence, to read as follows:                         Reserve System, 20th and C Streets
                                            Incorporation by Reference under 1 CFR                                                                        NW., Washington, DC 20551.
                                                                                                    § 71.70    Incorporations by reference.
                                            part 51—Reasonable Availability to                                                                            SUPPLEMENTARY INFORMATION
                                            Interested Parties, the first sentence is                  (a) * * * The materials can be
                                            corrected to read as follows:                           examined, by appointment, at the NRC’s                I. Background
                                               The two ISO standards incorporated                   Technical Library, which is located at
                                                                                                                                                             The Dodd-Frank Wall Street Reform
                                            by reference into 10 CFR 71.75 may be                   Two White Flint North, 11545 Rockville
                                                                                                                                                          and Consumer-Protection Act (the
                                            examined, by appointment, at the NRC’s                  Pike, Rockville, Maryland 20852;
                                                                                                                                                          ‘‘Dodd-Frank Act’’) was enacted on July
                                            Technical Library, which is located at                  telephone: 301–415–7000; email:
                                                                                                                                                          21, 2010.1 Section 1075 of the Dodd-
                                            Two White Flint North, 11545 Rockville                  Library.Resource@nrc.gov. The materials
                                                                                                                                                          Frank Act amends the Electronic Fund
                                            Pike, Rockville, Maryland 20852;                        are also available from the sources listed
                                                                                                                                                          Transfer Act (‘‘EFTA’’) (15 U.S.C. 1693
                                            telephone: 301–415–7000; email:                         below. * * *
                                                                                                                                                          et seq.) to add a new section 920
                                            Library.Resource@nrc.gov.                               *      *    *    *     *                              regarding interchange transaction fees
                                            List of Subjects in 10 CFR Part 71                        Dated at Rockville, Maryland, this 7th day          and rules for payment card
                                                                                                    of August, 2015.                                      transactions.2 EFTA section 920(a)(2)
                                              Criminal penalties, Hazardous                           For the Nuclear Regulatory Commission.              provides that the amount of any
                                            materials transportation, Incorporation                 Helen Chang,                                          interchange transaction fee that an
                                            by reference, Nuclear materials,                                                                              issuer receives or charges with respect
                                                                                                    Acting Chief, Rules, Announcements, and
                                            Packaging and containers, Reporting                     Directives Branch, Division of Administrative         to an electronic debit transaction must
                                            and recordkeeping requirements.                         Services, Office of Administration.                   be reasonable and proportional to the
                                              For the reasons set out in the                        [FR Doc. 2015–20027 Filed 8–13–15; 8:45 am]           cost incurred by the issuer with respect
                                            preamble and under the authority of the                 BILLING CODE 7590–01–P                                to the transaction.3 Section 920(a)(3)
                                            Atomic Energy Act of 1954, as amended;                                                                        requires the Board to establish standards
                                            the Energy Reorganization Act of 1974,                                                                        for assessing whether an interchange
                                            as amended; and 5 U.S.C. 552 and 553,                   FEDERAL RESERVE SYSTEM                                transaction fee is reasonable and
                                            the NRC is adopting the following                                                                             proportional to the cost incurred by the
                                            correcting amendments to 10 CFR part                    12 CFR Part 235                                       issuer with respect to the transaction.
                                            71:                                                                                                           Without limiting the full range of costs
                                                                                                    [Regulation II; Docket No. R–1404]
                                                                                                                                                          that the Board may consider, section
                                            PART 71—PACKAGING AND                                   RIN No. 7100–AD 63                                    920(a)(4)(B) requires the Board to
                                            TRANSPORTATION OF RADIOACTIVE                                                                                 distinguish between two types of costs
                                            MATERIAL                                                Debit Card Interchange Fees and
                                                                                                    Routing                                                 1 Public  Law 111–203, 124 Stat. 1376 (2010).
                                            ■ 1. The authority citation for part 71                                                                         2 EFTA   section 920 is codified as 15 U.S.C.
                                            continues to read as follows:                           AGENCY:  Board of Governors of the                    1693o–2. EFTA section 920(c)(8) defines ‘‘an
                                                                                                    Federal Reserve System
tkelley on DSK3SPTVN1PROD with RULES




                                              Authority: Atomic Energy Act secs. 53, 57,                                                                  interchange transaction fee’’ (or ‘‘interchange fee’’)
                                                                                                    ACTION: Clarification.                                as any fee established, charged, or received by a
                                            62, 63, 81, 161, 182, 183, 223, 234, 1701 (42                                                                 payment card network for the purpose of
                                            U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,                                                                    compensating an issuer for its involvement in an
                                            2232, 2233, 2273, 2282, 2297f); Energy                  SUMMARY:    The Board is publishing a
                                                                                                                                                          electronic debit transaction.
                                            Reorganization Act secs. 201, 202, 206, 211             clarification of Regulation II (Debit Card               3 Electronic debit transaction (or ‘‘debit card
                                            (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear             Interchange Fees and Routing).                        transaction’’) is defined in EFTA section 920(c)(5)
                                            Waste Policy Act sec. 180 (42 U.S.C. 10175);            Regulation II implements, among other                 as a transaction in which a person uses a debit card.



                                       VerDate Sep<11>2014   20:18 Aug 13, 2015   Jkt 235001   PO 00000   Frm 00002   Fmt 4700   Sfmt 4700   E:\FR\FM\14AUR1.SGM   14AUR1


                                                               Federal Register / Vol. 80, No. 157 / Friday, August 14, 2015 / Rules and Regulations                                           48685

                                            when establishing standards under                       prevention costs included in that                        the rule, the Court of Appeals found this
                                            section 920(a)(3). In particular, section               adjustment included costs associated                     to be ‘‘reasonable line-drawing.’’ 11
                                            920(a)(4)(B) requires the Board to                      with research and development of new                        The same rationale supports
                                            distinguish between ‘‘the incremental                   fraud technologies, card reissuance due                  including transactions-monitoring costs
                                            cost incurred by an issuer for the role of              to fraudulent activity, data security, and               in the interchange fee standard.
                                            the issuer in the authorization,                        card activation.6 These costs are not                    Transactions-monitoring systems, such
                                            clearance, or settlement of a particular                incurred during the transaction as part                  as neural networks and fraud-risk
                                            electronic debit transaction,’’ which the               of the authorization process.                            scoring systems, assist in the
                                            statute requires the Board to consider,                    On March 21, 2014, the Court of                       authorization process by providing
                                            and ‘‘other costs incurred by an issuer                 Appeals for the District of Columbia                     information needed by the issuer in
                                            which are not specific to a particular                  Circuit upheld the Board’s Final Rule                    deciding whether the issuer should
                                            electronic debit transaction,’’ which the               relating to the interchange fee standard.                authorize the transaction before the
                                            statute prohibits the Board from                        NACS v. Board of Governors of the                        issuer decides to approve or decline the
                                            considering.                                            Federal Reserve System, 746 F.3d 474                     transaction. Like other authorization
                                               Under EFTA section 920(a)(5), the                    (D.C. Cir. 2014).7 The Court of Appeals                  steps, such as confirming that a card is
                                            Board may allow for an adjustment to                    held, however, that one aspect of the                    valid and authenticating the cardholder,
                                            the amount of an interchange                            rule—the Board’s treatment of                            transactions-monitoring is integral to an
                                            transaction fee received or charged by                  transactions-monitoring costs—required                   issuer’s decision to authorize a specific
                                            an issuer if (1) such adjustment is                     further explanation from the Board, and                  transaction.12 In fact, most costs of the
                                            reasonably necessary to make allowance                  remanded the matter for further                          authorization process (which are costs
                                            for costs incurred by the issuer in                     proceedings. The Court of Appeals                        Congress required to be considered in
                                            preventing fraud in relation to                         agreed with the Board’s position that                    determining the interchange fee) assist
                                            electronic debit card transactions                      ‘‘transactions-monitoring costs can                      in preventing some type of fraud. Steps
                                            involving that issuer, and (2) the issuer               reasonably qualify both as costs ‘specific               in the authorization process may
                                            complies with fraud-prevention                          to a particular transaction’ (section                    include ensuring that the transaction is
                                            standards established by the Board.                     920(a)(4)(B)) and as fraud-prevention                    not against an account that has been
                                            Those standards must, among other                       costs (section 920(a)(5)).’’ 746 F.3d at                 closed, checking to be sure the card has
                                            things, require issuers to take effective               492. The Court held, however, that the                   not been reported lost or stolen,
                                            steps to reduce the occurrence of, and                  Board had not adequately articulated its                 checking that there is an adequate
                                            costs from, fraud in relation to                        reasons for including transactions-                      balance, and authenticating the
                                            electronic debit transactions, including                monitoring in the interchange fee                        cardholder. Like transactions-
                                            through the development and                             standard rather than in the fraud-                       monitoring, these authorization steps
                                            implementation of cost-effective fraud-                 prevention adjustment.                                   are all ‘‘specific to a particular
                                            prevention technology.                                                                                           transaction’’ in the sense that they occur
                                                                                                    II. Rationale for Including
                                               The Board promulgated its final rule                                                                          in connection with each transaction that
                                                                                                    Transactions-Monitoring Costs in the
                                            implementing standards for assessing                                                                             is authorized or declined. Because the
                                                                                                    Interchange Fee Standard
                                            whether interchange transaction fees                                                                             statute requires the Board to consider
                                            meet the requirements of section 920(a)                    In the Final Rule, the Board identified               incremental authorization costs in
                                            in July 2011. (Regulation II, Debit Card                the types of costs that could not be                     setting the interchange fee standard, the
                                                                                                    included in the interchange fee standard                 Board concluded that that it should
                                            Interchange Fees and Routing, ‘‘Final
                                                                                                    under section 920(a)(4)(B)(ii) (other                    consider the costs of all activities that
                                            Rule,’’ codified at 12 CFR part 235).4
                                                                                                    costs ‘‘not specific to a particular                     are integral to authorization, even if
                                            Among the provisions of the Final Rule
                                                                                                    transaction’’) on the basis of whether                   those costs are also incurred for the dual
                                            was one relating to transactions-
                                                                                                    those costs are ‘‘incurred in the course                 purpose of helping to prevent fraud.
                                            monitoring costs. Transactions-
                                                                                                    of effecting’’ transactions.8 Costs that                    By contrast, fraud-prevention costs
                                            monitoring costs are costs incurred by
                                                                                                    were ‘‘not incurred in the course of                     that the Board used to calculate the
                                            the issuer during the authorization
                                                                                                    effecting any electronic debit                           separate fraud-prevention adjustment
                                            process to detect indications of fraud or
                                                                                                    transaction’’ were determined to be                      authorized under section 920(a)(5) were
                                            other anomalies in order to assist in the
                                                                                                    outside of the allowable ambit of the                    not necessary to effect a particular
                                            issuer’s decision to authorize or decline               interchange fee standard, but the
                                            the transaction. The Board included                                                                              transaction and were not part of the
                                                                                                    standard could include ‘‘any cost that is                authorization, clearing, or settlement
                                            transactions-monitoring costs as part of                not prohibited—i.e., any cost that is
                                            the interchange fee standard called for                                                                          process, and thus a particular electronic
                                                                                                    incurred in effecting any electronic                     debit transaction could occur without
                                            in section 920(a)(3)(A) (costs incurred                 debit transaction.’’ 9 Thus, for example,
                                            by an issuer for the issuer’s role in the                                                                        the issuer incurring these costs. As the
                                                                                                    the costs of equipment, hardware,                        Board stated in the Final Rule, the types
                                            authorization of a particular transaction)              software, and labor associated with
                                            based on the Board’s determination that                                                                          of fraud-prevention activities
                                                                                                    transactions processing were properly                    considered in connection with the
                                            these costs are incurred in the course of               included in the interchange fee standard
                                            effecting a particular transaction and an                                                                        fraud-prevention adjustment were those
                                                                                                    because no particular transaction can                    activities designed to prevent debit card
                                            integral part of the authorization of a                 occur without incurring these costs, and
                                            specific electronic debit transaction.                                                                           fraud at times other than when the
                                                                                                    thus these costs are ‘‘specific to a                     issuer is authorizing, settling, or
                                               The Board amended Regulation II on                   particular transaction.’’ 10 In upholding
                                            August 3, 2012 to implement the fraud-                                                                           clearing a transaction.13 For example, in
                                                                                                                                                             setting the fraud-prevention adjustment,
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                                            prevention cost adjustment permitted by                   6 See 77 FR at 46,264.
                                            EFTA section 920(a)(5).5 Fraud-                           7 The
                                                                                                                                                             the Board considered costs associated
                                                                                                            U.S. Supreme Court denied the retailers’
                                                                                                    petition for a writ of certiorari on January 20, 2015.   with research and development of new
                                              4 Regulation II also implemented a separate           135 S. Ct. 1170 (2015).
                                                                                                      8 76 FR 43,394, 43,426 (July 20, 2011).                 11 746 F.3d at 490.
                                            provision of section 920 relating to network
                                            exclusivity and routing.                                  9 Id.                                                   12 76 FR at 43,430–31.
                                              5 See 77 FR 46,258 (Aug. 3, 2012).                      10 76 FR at 43,430.                                     13 76 FR at 43,431.




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                                            48686                 Federal Register / Vol. 80, No. 157 / Friday, August 14, 2015 / Rules and Regulations

                                            fraud prevention technologies, card                       costs the Board included in the separate              7400.9 and publication of conforming
                                            reissuance due to fraudulent activity,                    fraud prevention adjustment are                       amendments.
                                            data security, and card activation.14                     programmatic costs, such as researching               ADDRESSES: FAA Order 7400.9Y,
                                               As noted above, section 920(a)(4)(B)                   and developing new fraud prevention                   Airspace Designations and Reporting
                                            specifically directs the Board to                         technologies and data security, and                   Points, and subsequent amendments can
                                            consider in establishing the interchange                  other costs that encourage enhanced                   be viewed online at http://www.faa.gov/
                                            fee standard the costs ‘‘incurred by the                  fraud prevention that are not necessary               airtraffic/publications/. The Order is
                                            issuer for the role of the issuer in the                  to effect particular transactions.                    also available for inspection at the
                                            authorization, clearance or settlement of                    The Board is publishing this                       National Archives and Records
                                            a particular transaction.’’ Transactions                  explanation in accordance with the                    Administration (NARA). For
                                            monitoring is an integral part of the                     opinion of the Court of Appeals.                      information on the availability of this
                                            authorization process, so that the costs
                                                                                                        By order of the Board of Governors of the           material at NARA, call (202) 741–6030,
                                            incurred in that process are part of the                  Federal Reserve System, August 10, 2015.              or go to http://www.archives.gov/
                                            authorization costs that the Board is
                                                                                                      Robert deV. Frierson,                                 federal_register/code_of_federal-
                                            required by the statute to consider when
                                            establishing the interchange fee                          Secretary of the Board.                               regulations/ibr_locations.html.
                                                                                                      [FR Doc. 2015–19979 Filed 8–13–15; 8:45 am]             FAA Order 7400.9, Airspace
                                            standard. In addition, the statutory
                                                                                                                                                            Designations and Reporting Points, is
                                            language of section 920(a)(5), which                      BILLING CODE P
                                                                                                                                                            published yearly and effective on
                                            differs in important respects from
                                                                                                                                                            September 15. For further information,
                                            section 920(a)(4)(B), supports the
                                                                                                                                                            you can contact the Airspace Policy and
                                            Board’s decision to include                               DEPARTMENT OF TRANSPORTATION
                                            transactions-monitoring costs in the                                                                            ATC Regulations Group, Federal
                                            interchange fee standard rather than in                   Federal Aviation Administration                       Aviation Administration, 800
                                            the separate fraud prevention                                                                                   Independence Avenue SW., Washington
                                            adjustment. The costs considered in                       14 CFR Part 1                                         DC 29591; Telephone: (202) 267–8783.
                                            section 920(a)(5)(A)(i) are those of                                                                            FOR FURTHER INFORMATION CONTACT: Rob
                                            preventing fraud ‘‘in relation to                         Definitions and Abbreviations                         Riedl, Federal Aviation Administration,
                                            electronic debit transactions,’’ rather                                                                         Operations Support Group, Western
                                                                                                      CFR Correction
                                            than costs of ‘‘a particular electronic                                                                         Service Center, 1601 Lind Avenue SW.,
                                            debit transaction’’ referenced in section                   In Title 14 of the Code of Federal                  Renton, WA, 98057; Telephone (425)
                                            920(a)(4)(B). Congress’s elimination of                   Regulations, Parts 1 to 59, revised as of             203–4534.
                                            the word ‘‘particular’’ and its use of the                January 1, 2015, on pages 12 and 13, in               SUPPLEMENTARY INFORMATION:
                                            more general phrase ‘‘in relation to,’’                   § 1.1, the definitions beginning with VA
                                                                                                      and ending with VS are removed.                       Authority for this Rulemaking
                                            along with its use of the plural
                                            ‘‘transactions,’’ indicates that the fraud-               [FR Doc. 2015–20045 Filed 8–13–15; 8:45 am]             The FAA’s authority to issue rules
                                            prevention adjustment may take into                       BILLING CODE 1505–01–D                                regarding aviation safety is found in
                                            account an issuer’s fraud prevention                                                                            Title 49 of the United States Code.
                                            costs over a broad spectrum of                                                                                  Subtitle I, Section 106, describes the
                                            transactions that are not linked to a                     DEPARTMENT OF TRANSPORTATION                          authority of the FAA Administrator.
                                            particular transaction.                                                                                         Subtitle VII, Aviation Programs,
                                               Moreover, section 920(a)(5) permits                    Federal Aviation Administration                       describes in more detail the scope of the
                                            the Board to adopt a separate                                                                                   agency’s authority. This rulemaking is
                                            adjustment ‘‘to make allowance for costs                  14 CFR Part 71                                        promulgated under the authority
                                            incurred by the issuer in preventing                      [Docket No. FAA–2015–3325; Airspace                   described in Subtitle VII, Part A,
                                            fraud in relation to electronic debit                     Docket No. 15–AWP–15]                                 Subpart I, Section 40103. Under that
                                            transactions involving that issuer’’ if                                                                         section, the FAA is charged with
                                            certain standards are met, and directs                    Amendment of Class D and E                            prescribing regulations to assign the use
                                            that those standards include that the                     Airspace; Santa Rosa, CA                              of airspace necessary to ensure the
                                            issuers take steps to ‘‘reduce the                                                                              safety of aircraft and the efficient use of
                                            occurrence of, and costs from, fraud in                   AGENCY:  Federal Aviation                             airspace. This regulation is within the
                                            relation to electronic debit                              Administration (FAA), DOT.                            scope of that authority as it amends
                                            transactions,’’ including ‘‘development                   ACTION: Final rule, technical                         Class D and Class E airspace at Santa
                                            and implementation of cost-effective                      amendment.                                            Rosa, CA.
                                            fraud prevention technology.’’ Section
                                            920(a)(5)(A)(i), (A)(ii)(II) (emphasis                    SUMMARY:   This action amends Class D                 History
                                            supplied). The use of the general phrase                  airspace and Class E airspace designated                The FAAs Aeronautical Information
                                            ‘‘fraud in relation to electronic debit                   as an extension at Santa Rosa, CA, by                 Services identified that the airport
                                            transactions’’ and the specific reference                 updating the geographic coordinates of                reference point (ARP) was not
                                            to developing fraud prevention                            Charles M. Schulz-Sonoma County                       coincidental with the FAA’s
                                            technology suggest a Congressional                        Airport to coincide with the FAAs                     aeronautical database. This action
                                            intent to use the fraud prevention                        database. This action does not involve a              makes these corrections. Accordingly,
                                            adjustment to encourage issuers to                        change in the dimensions or operating                 since this action merely adjusts the
                                            develop and adopt programmatic                            requirements of the airspace.                         geographic coordinates of the airport,
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                                            improvements to address fraud outside                     DATES: Effective 0901 UTC, October 15,                notice and public procedure under
                                            of the context of particular transactions                 2015. The Director of the Federal                     553(b) are unnecessary.
                                            that incur costs for authorization,                       Register approves this incorporation by                 Class D and E airspace designations
                                            clearance, or settlement. The types of                    reference action under title 1, Code of               are published in paragraphs 5000 and
                                                                                                      Federal Regulations, part 51, subject to              6004, respectively, of FAA Order
                                              14 77   FR at 46,264.                                   the annual revision of FAA Order                      7400.9Y, dated August 6, 2014, and


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Document Created: 2018-02-23 10:58:42
Document Modified: 2018-02-23 10:58:42
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionClarification.
DatesEffective August 14, 2015.
ContactStephanie Martin, Associate General Counsel (202-452-3198), or Clinton Chen, Attorney (202-452-3952), Legal Division; for users of Telecommunications Device for the Deaf (TDD) only, contact (202-263-4869); Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551.
FR Citation80 FR 48684 

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