[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Proposed Rules]
[Pages 20558-20566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8613]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 69, No. 74 / Friday, April 16, 2004 / 
Proposed Rules  

[[Page 20558]]



FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 303

RIN 3064-AC80


Definition of ``Deposit''; Stored Value Cards

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The FDIC is publishing for notice and comment a proposed rule 
that would clarify the meaning of ``deposit'' as that term relates to 
funds at insured depository institutions underlying stored value cards. 
This proposed rule would add a new section to part 303 of title 12 of 
the Code of Federal Regulations and would replace General Counsel's 
Opinion No. 8, published by the FDIC in 1996. Since the publication of 
General Counsel's Opinion No. 8, the banking industry has developed new 
types of stored value card systems. As a result, this new section is 
necessary to provide guidance to the industry and the public as to when 
funds underlying stored value cards will satisfy the definition of 
``deposit'' at section 3(l) of the Federal Deposit Insurance Act. This 
new section would promote accuracy and consistency by insured 
depository institutions in reporting ``deposits.''

DATES: Written comments must be received by the FDIC no later than July 
15, 2004.

ADDRESSES: All comments should be addressed to Robert E. Feldman, 
Executive Secretary (Attention: Comments/Legal ESS), Federal Deposit 
Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. 
Comments may be hand-delivered to the guard station located at the rear 
of the 550 17th Street Building (located on F Street) on business days 
between 7 a.m. and 5 p.m. Also, comments may be sent by e-mail to 
[email protected]. Comments may be inspected and photocopied in the 
FDIC Public Information Center, Room 100, 801 17th Street, NW., 
Washington, DC, on business days between 9 a.m. and 4:30 p.m. The FDIC 
may post comments at its Internet site at the following address: http://www.fdic.gov/regulations/laws/federal/propose.html.

FOR FURTHER INFORMATION CONTACT: Christopher L. Hencke, Counsel, Legal 
Division, (202) 898-8839, Federal Deposit Insurance Corporation, 550 
17th Street, NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Introduction

    For purposes of the Federal Deposit Insurance Act (``FDI Act''), 
the term ``deposit'' is defined at section 3(l) (12 U.S.C. 1813(l)). In 
1996, the FDIC interpreted this term as it relates to funds at insured 
depository institutions underlying ``stored value cards.'' The FDIC's 
interpretation is set forth in General Counsel's Opinion No. 8 
(``GC8'') (discussed below in Section III). See 61 FR 40490 (August 2, 
1996).
    GC8 did not address all types of stored value card systems 
involving insured depository institutions. These systems were new in 
1996 and many of the systems currently offered by insured depository 
institutions were developed after the issuance of the FDIC's opinion. 
The development of new systems has created a need for additional 
guidance as to whether the underlying funds qualify as ``deposits.'' 
Although the proposed rule would provide such additional guidance, it 
would retain the basic principles set forth in GC8 and extend these 
principles to new types of stored value card systems.
    An example of a system not addressed in GC8 is where a company 
maintains an account at an insured depository institution for the 
purpose of making payments on stored value cards issued by that company 
(and not issued by the insured depository institution). For reasons 
explained below, the FDIC believes that the funds in such accounts are 
``deposits.''
    Another system not addressed in GC8 is one in which an insured 
depository institution--in connection with stored value cards issued by 
the insured depository institution (and not issued by another 
company)--maintains a pooled self-described ``reserve account'' 
(representing the institution's liabilities to multiple cardholders) 
but also maintains individual subaccounts (with each subaccount 
representing the institution's liability to a particular cardholder). 
For reasons discussed below, the FDIC proposes to add a new section to 
part 303 of title 12 of the Code of Federal Regulations that would 
classify the funds in such systems as ``deposits.'' The FDIC seeks 
comments on the proposed rule.
    GC8 also did not address the insurability of the funds underlying 
``payroll cards.'' As discussed below, the FDIC does not propose to 
adopt any rule dealing specifically with ``payroll cards.'' Rather, the 
FDIC proposes to apply the same rules governing the insurability of the 
funds underlying other types of stored value cards.
    As a preliminary matter, the meaning of certain terms must be 
clarified. In this notice of proposed rulemaking, companies that issue 
stored value cards--other than insured depository institutions--are 
referred to as ``sponsoring companies.'' This term is used in the 
proposed rule. In referring to the ``issuance'' of stored value cards 
by insured depository institutions or sponsoring companies, the FDIC 
means the distribution of cards to cardholders (directly or through an 
agent) and the making of a promise to the cardholder that the card may 
be used to transfer the underlying funds (i.e., the funds received by 
the issuer in exchange for the card's issuance) to one or more 
merchants at the merchants' point of sale terminals. Also, in using the 
term ``stored value card,'' the FDIC means a device that enables the 
user to effect such transfers of funds at merchants' point of sale 
terminals. The definition of ``stored value card'' is discussed in 
detail in Section VI.\1\
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    \1\ This proposed rulemaking does not apply to ``gift cards'' 
offered by retailers in ``closed systems.'' Although such cards may 
be referred to as ``stored value cards,'' a ``gift card'' offered by 
a retailer (in a ``closed system'') is different than a ``stored 
value card'' offered by a bank (in an ``open system'') because the 
former card--unlike the latter card--does not move through a 
``clearing'' process. In other words, the ``value'' on the card does 
not depend on whether a bank holds sufficient funds to back-up the 
card. Indeed, the retailer who accepts the card does not expect to 
receive payment through a bank. On the contrary, the retailer has 
been prepaid through the retailer's sale of the card. Through such 
sale, the ownership of the cardholder's funds passes from the 
cardholder to the retailer. Of course, the retailer might then place 
the collected funds into a deposit account at an FDIC-insured 
depository institution but any such placement of funds would have no 
effect on the ``value'' of the card or the cardholder's ability to 
use the card to collect the promised goods or services from the 
retailer. To the extent that the retailer places funds into an 
account at an FDIC-insured depository institution, the funds would 
be insurable to the retailer (not the cardholder) in accordance with 
the ordinary deposit insurance rules at 12 CFR part 330. See 12 CFR 
330.11(a) (providing that the deposit accounts of a corporation are 
added together and insured up to $100,000).

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[[Page 20559]]

    This proposed rulemaking may not resolve all questions concerning 
the definition of ``deposit'' as that term relates to funds underlying 
stored value cards and other stored value products. Developments in the 
banking industry may lead to new questions. The process of defining 
``deposit''--in response to such developments--may be evolutionary. In 
any event, this rulemaking will resolve certain specific questions that 
have arisen since the publication of GC8. In the event that questions 
arise that are not resolved by this rulemaking, the FDIC may need to 
resolve such questions on a case-by-case basis.
    Also, this rulemaking is not intended to address any issue except 
the meaning of ``deposit'' under the FDI Act but the FDIC welcomes 
comments on any issues that may be related to the meaning of 
``deposit'' in the context of stored value cards.\2\
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    \2\ The meaning of ``deposit'' is relevant under the FDI Act for 
assessment and insurance purposes. There are a number of other 
issues, not addressed in this proposed rulemaking, which are of 
great importance to the FDIC and which the FDIC will continue to 
monitor as appropriate. Such issues include, but are not limited to, 
systemic risk, security, electronic fund transfer matters, reserve 
requirements, counterfeiting, monetary policy and money laundering.
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    The determination of whether certain funds are ``deposits'' 
requires an analysis of the statutory definition of ``deposit'' at 
section 3(l) of the FDI Act. The relevant portions of the statutory 
definition are quoted below. The recitation below of the relevant 
statutory language is followed by a detailed summary of the FDIC's 
interpretation of this language in GC8. This summary is followed by an 
analysis of the new types of stored value card systems.

II. The Statutory Definition

    The definition of ``deposit'' at section 3(l) of the FDI Act is a 
broad one. At paragraph 3(l)(1), the term ``deposit'' is defined in 
part as ``the unpaid balance of money or its equivalent received or 
held by a bank or savings association in the usual course of business 
and for which it has given or is obligated to give credit, either 
conditionally or unconditionally, to a commercial, checking, savings, 
time, or thrift account, or which is evidenced by its certificate of 
deposit, thrift certificate, investment certificate, certificate of 
indebtedness, or other similar name. * * *'' 12 U.S.C. 1813(l)(1).
    At paragraph 3(l)(3), the term ``deposit'' is defined in part as 
``money received or held by a bank or savings association, or the 
credit given for money or its equivalent received or held by a bank or 
savings association, in the usual course of business for a special or 
specific purpose, regardless of the legal relationship thereby 
established, including without being limited to, escrow funds, funds 
held as security for an obligation due to the bank or savings 
association or others (including funds held as dealers reserves) or for 
securities loaned by the bank or savings association, funds deposited 
by a debtor to meet maturing obligations, funds deposited as advance 
payment on subscriptions to United States Government securities, funds 
held for distribution or purchase of securities, funds held to meet its 
acceptances or letters of credit, and withheld taxes. * * *'' 12 U.S.C. 
1813(l)(3).
    In addition, paragraph 3(l)(5) provides that the FDIC may in 
consultation with other financial regulatory agencies define 
``deposit'' through regulation. Specifically, paragraph 3(l)(5) 
provides that the term ``deposit'' includes ``such other obligations of 
a bank or savings association as the Board of Directors [of the FDIC], 
after consultation with the Comptroller of the Currency, Director of 
the Office of Thrift Supervision, and the Board of Governors of the 
Federal Reserve System, shall find and prescribe by regulation to be 
deposit liabilities by general usage. * * *'' 12 U.S.C. 1813(l)(5). In 
accordance with paragraph 3(l)(5), the FDIC has invited comments from 
the other federal banking agencies in connection with this proposed 
rulemaking.
    In GC8, the FDIC relied in large part upon paragraphs 3(l)(1) and 
3(l)(3) (quoted above) in determining whether the funds underlying 
certain types of stored value cards qualified as ``deposits.'' A 
summary of GC8 is set forth below.

III. General Counsel's Opinion No. 8

    GC8 is an interpretation of the term ``deposit'' as that term 
relates to funds underlying stored value cards. In GC8, the FDIC 
identified several types of stored value card systems involving insured 
depository institutions. The FDIC made no attempt, however, to identify 
all types of systems. Moreover, the FDIC made no attempt to analyze 
systems offered by particular insured depository institutions. Rather, 
the FDIC described a mechanism or framework for determining when the 
funds underlying stored value cards may or may not qualify as 
``deposits.'' See 61 FR 40490. This framework was based upon 
information available to the FDIC in 1996. Since that time, the banking 
industry has developed new types of stored value cards.
    In GC8, the FDIC identified four types of stored value card 
systems: (1) A ``Bank Primary-Reserve System''; (2) a ``Bank Primary-
Customer Account System''; (3) a ``Bank Secondary-Advance System''; and 
(4) a ``Bank Secondary-Pre-Acquisition System.'' Each of these systems 
is summarized below.
    In a ``Bank Primary-Reserve System,'' the insured depository 
institution issues stored value cards in exchange for cash from the 
cardholders. The depository institution does not maintain an individual 
account for each cardholder; rather, the institution maintains a pooled 
``reserve account'' for all cardholders. In making payments to 
merchants or other payees (as the cardholders use their cards to 
purchase goods or services), the depository institution disburses funds 
from this ``reserve account.'' In GC8, the FDIC determined that such 
funds held by the insured depository institution do not satisfy the 
statutory definition of ``deposit'' at section 3(l) of the FDI Act. In 
making this determination, the FDIC specifically addressed the 
applicability of paragraphs 3(l)(1) and 3(l)(3) (quoted above). First, 
in finding that the funds do not satisfy paragraph 3(l)(1), the FDIC 
found that the stored value cards are not structured so that the 
institution credits a conventional commercial, checking, savings, time 
or thrift account. Rather, the institution credits the pooled ``reserve 
account.'' See 61 FR 40490. The FDIC noted that ``the sample agreements 
which the FDIC staff has reviewed clearly indicate that the parties to 
a stored value card agreement * * * do not intend that the funds be 
credited to one of the five enumerated accounts.'' Id. Second, in 
finding that the funds do not satisfy paragraph 3(l)(3), the FDIC 
determined that the purpose of the funds is not sufficiently ``special 
or specific'' because the funds might be disbursed to any number of 
merchants as the cardholders use their cards to engage in miscellaneous 
and unrelated transactions. See 61 FR 40490. The FDIC noted that the 
holding of funds by a depository institution to meet obligations to 
numerous transferees does not appear to be as specific a purpose as the 
examples in the statute and case law. See id. The FDIC concluded that 
the funds in this type of system are not ``deposits.'' See 61 FR 40490.

[[Page 20560]]

    A ``Bank Primary-Customer Account System'' is similar to a ``Bank 
Primary-Reserve System'' in that the insured depository institution 
issues stored value cards in exchange for cash from the cardholders. 
The accounting techniques in the two systems, however, are different. 
In a ``Bank Primary-Customer Account System,'' the depository 
institution does not maintain a pooled ``reserve account'' for all 
cardholders. Rather, the institution maintains an individual account 
for each cardholder. Citing paragraph 3(l)(1) of the statutory 
definition (quoted above), the FDIC in GC8 determined that the funds in 
these individual accounts are ``deposits.'' See 61 FR 40490.
    In a ``Bank Secondary-Advance System,'' the insured depository 
institution acts as an intermediary in collecting funds from 
cardholders in exchange for stored value cards issued by a third party 
or sponsoring company. The funds are held by the depository institution 
for a short period of time, then forwarded to the third party. See 61 
FR 40490. Later, when the cardholder uses the stored value card to make 
a purchase from a merchant, the third party (and not the depository 
institution) sends the appropriate amount of money to the merchant. In 
GC8, the FDIC determined that the funds collected by the depository 
institution are ``deposits'' belonging to the third party for the brief 
period before the funds are forwarded to the third party. The funds are 
not ``deposits'' belonging to the cardholders because the institution's 
liability for these funds is owed to the third party for whom the 
institution is temporarily holding the funds. See 61 FR 40490.
    Similarly, in a ``Bank Secondary-Pre-Acquisition System,'' the 
insured depository institution provides cardholders with cards issued 
by a third party or sponsoring company. Prior to selling the cards to 
the cardholders, however, the depository institution purchases the 
cards from the third party. See 61 FR 40490. In this respect, the 
system is different than a ``Bank Secondary-Advance System.'' When the 
depository institution resells the cards to the cardholders, no money 
is owed to the third party. For this reason, the depository institution 
is free to retain the funds collected from the cardholders. Later, when 
a cardholder uses his/her stored value card to make a purchase from a 
merchant, the third party and not the depository institution sends the 
appropriate amount of funds to the merchant.
    In GC8, the FDIC determined that the funds collected by the 
depository institution in a ``Bank Secondary-Pre-Acquisition System'' 
are not ``deposits.'' See 61 FR 40490. This conclusion was based upon 
the fact that the depository institution, in collecting funds from 
cardholders, does not assume a responsibility to return or disburse the 
funds to the cardholders or the third party or any other party. Rather, 
the depository institution merely sells the right to collect funds from 
the third party (i.e., the issuer of the cards). Thus, the funds 
underlying the stored value cards are held by the third party, not the 
depository institution. Under these circumstances, no ``deposits'' 
exist at the depository institution. See 12 U.S.C. 1813(l)(1) (defining 
``deposit'' as an ``unpaid balance of money or its equivalent''); 12 
U.S.C. 1813(l)(3) (providing that the term ``deposit'' does not include 
``funds which are received by the bank or savings association for 
immediate application to the reduction of an indebtedness to the 
receiving bank or savings association, or under condition that the 
receipt thereof immediately reduces or extinguishes such an 
indebtedness'').

IV. New Types of Stored Value Cards

    As a result of developments in the banking industry, the 
classification scheme described in the previous section is at a minimum 
incomplete, and may be obsolete. That is, this classification scheme 
does not include all types of stored value card systems involving 
insured depository institutions. Examples of new types of systems are 
described below:
    Example A: A sponsoring company issues cards to cardholders in 
exchange for cash. The company then places the cash into an account at 
an insured depository institution. Through an agreement between the 
company and the depository institution, the account is designated as a 
``reserve account.'' The company uses the funds in the self-described 
``reserve account'' to make payments to merchants as the cardholders 
use their cards. In this manner, the company satisfies its obligations 
as the issuer of the cards.
    Example B: Through kiosks at retail stores, an insured depository 
institution issues cards to cardholders in exchange for cash. In 
connection with the issuance of these cards, the depository institution 
maintains a self-described ``reserve account.'' At the same time, the 
institution maintains an individual account or subaccount for each 
cardholder. When a cardholder uses his/her card to purchase goods or 
services from a merchant, the ``reserve account'' is debited and the 
individual account or subaccount also is debited. Account statements 
are made available to the cardholders so that they may check their 
balances.
    Example C: In paying wages to its employees, a company distributes 
``payroll cards'' in lieu of checks. Prior to the distribution of the 
cards, the company places funds at an insured depository institution. 
Briefly, the funds are held in a self-described ``funding account.'' 
After the distribution of the cards (on payday), however, the funds are 
transferred to individual accounts for the various employees. When an 
employee uses his/her card to purchase goods or services, funds are 
disbursed from the employee's individual account to the merchant.
    None of the cards or systems described above was addressed in GC8. 
In Example A, the system is similar to a ``Bank Primary-Reserve 
System'' in that the insured depository institution maintains a 
``reserve account.'' The system is different, however, in that the 
issuer of the cards is a sponsoring company and not the insured 
depository institution.
    In Example B, the system is similar to a ``Bank Primary-Reserve 
System'' in that the insured depository institution maintains a 
``reserve account.'' The system is different, however, in that the 
depository institution also maintains an account or subaccount for each 
cardholder. In this respect, the system is similar to a ``Bank Primary-
Customer Account System.''
    Finally, in Example C, the system is different than the systems 
described in GC8 because none of the systems in GC8 involved the 
payment of wages by an employer. The involvement of the employer raises 
questions as to (1) whether the issuer of the cards is the employer as 
opposed to the depository institution; and (2) whether the owner of the 
funds placed at the depository institution is the employer as opposed 
to the employees.
    The examples above may or may not be typical. Possibly, the stored 
value card systems offered by some banks differ from the systems above 
in a variety of ways. For instance, a ``payroll card'' system might 
exist in which the funds are not transferred to individual accounts. 
Rather, the system might be designed so that the funds are held in a 
pooled ``reserve account.'' This pooled account might or might not 
include individual subaccounts. The cardholders might or might not 
receive periodic statements. The cardholders might or might not possess 
the ability to reload their cards. The possibilities are numerous.
    In any event, GC8 did not address all types of stored value card 
systems involving insured depository

[[Page 20561]]

institutions. Additional guidance is needed as to whether the 
underlying funds held by depository institutions qualify as 
``deposits.'' Below, this issue is discussed in connection with the 
three types of systems described in the examples above.

A. Accounts Funded by Sponsoring Companies

    A type of system not addressed in GC8 is a system in which (1) 
Consumers place funds with a sponsoring company in exchange for stored 
value cards; and (2) in order to make payments on the stored value 
cards, the sponsoring company maintains an account at an insured 
depository institution. In this system, the issuer of the cards is the 
sponsoring company (as in the ``Bank Secondary-Advance System'' and the 
``Bank Secondary-Pre-Acquisition System'') and not the depository 
institution.
    The question is whether the funds placed at the insured depository 
institution, in this type of system, are ``deposits'' as defined at 
section 3(1) of the FDI Act. For the reasons explained below, the FDIC 
believes that the funds are ``deposits'' under paragraph 3(1)(1) and 
paragraph 3(1)(3).
    Paragraph 3(1)(1). As previously quoted, paragraph 3(1)(1) defines 
``deposit'' as ``[t]he unpaid balance of money or its equivalent 
received or held by a bank or savings association in the usual course 
of business and for which it has given or is obligated to give credit, 
either conditionally or unconditionally, to a commercial, checking, 
savings, time, or thrift account. * * *'' 12 U.S.C. 1813(1)(1). In the 
case of an account funded by a sponsoring company for the purpose of 
making payments on stored value cards, the account is a ``commercial 
account'' under this paragraph because the account is owned for a 
commercial purpose by a commercial enterprise (i.e., the sponsoring 
company). The account is not a non-deposit ``general liability 
account'' maintained by the depository institution. See 61 FR 40490 
(recognizing a distinction between a ``commercial, checking, savings, 
time, or thrift account'' under paragraph 3(1)(1) and a ``general 
liability account'').
    Paragraph 3(1)(3). As previously quoted, paragraph 3(1)(3) provides 
that the term ``deposit'' includes ``money received or held by a bank 
or savings association, or the credit given for money or its equivalent 
received or held by a bank or savings association, in the usual course 
of business for a special or specific purpose, regardless of the legal 
relationship thereby established, including without being limited to * 
* * funds deposited by a debtor to meet maturing obligations. * * * '' 
12 U.S.C. 1813(1)(3). In GC8, the FDIC found that this paragraph is not 
satisfied by a pooled ``reserve account'' funded by multiple 
cardholders for the purpose of engaging in miscellaneous unrelated 
transactions. See 61 FR 40490. In the case of an account funded by a 
sponsoring company, however, paragraph 3(1)(3) is satisfied because the 
single intended purpose is to hold the funds for the sponsoring 
company. Under paragraph 3(1)(3), this ``special or specific purpose'' 
means that the liabilities represented by the account at the insured 
depository institution (whether or not the account is described as a 
``reserve account'') are ``deposits.''
    The conclusion above is supported by the case law. The purpose of 
funding stored value cards is no less ``special or specific'' than the 
purposes recognized by the courts as ``special or specific.'' See 
Seattle-First National Bank v. FDIC, 619 F. Supp. 1351 (W.D. Okla. 
1985) (funding a participated loan is a ``special or specific 
purpose''); FDIC v. European American Bank & Trust Co., 576 F. Supp. 
950 (S.D.N.Y. 1983) (funding an interbank clearinghouse payment is a 
``special or specific purpose''). The conclusion above is supported by 
GC8 as well. See 61 FR 40490 (even in the case of a ``reserve account'' 
funded by cardholders, the funds are ``deposits'' if each cardholder's 
``ultimate payee can only be one predetermined party''). Finally, the 
conclusion above is supported by one of the examples of a ``deposit'' 
specifically mentioned in paragraph 3(l)(3): ``funds deposited by a 
debtor to meet maturing obligations.'' In the case of an account funded 
by a sponsoring company, the funds are equivalent to ``funds deposited 
by a debtor to meet maturing obligations'' because the funds are 
deposited by the sponsoring company to meet that company's obligations 
to the cardholders as the cardholders use their cards.
    In conclusion, the FDIC believes that funds placed at an insured 
depository institution by a sponsoring company for the purpose of 
making payments on stored value cards are ``deposits.'' This conclusion 
is incorporated in the proposed rule.
    A separate question is whether the ``deposits'' in such a system 
can be insured on a ``pass-through'' basis to the cardholders (as 
opposed to being insured to the sponsoring company). Under the FDIC's 
insurance regulations, funds deposited by an agent or custodian on 
behalf of a principal or principals are insured not to the agent but to 
the principal(s) (in aggregation with any other deposits owned by the 
principal(s) at the same insured depository institution). See 12 CFR 
330.7(a). In other words, the insurance coverage ``passes through'' the 
agent to the principal(s). Such ``pass-through'' coverage is not 
available, however, unless certain requirements are satisfied. First, 
the fiduciary status of the nominal accountholder must be disclosed in 
the deposit account records of the insured depository institution. See 
12 CFR 330.5(b)(1). Second, the interests of the principals or actual 
owners must be ascertainable either from the account records of the 
insured depository institution or records maintained in good faith by 
the agent or other party. See 12 CFR 330.5(b)(2). Third, the agency or 
custodial relationship must be genuine. Through this relationship, the 
deposit actually must belong not to the nominal agent but to the 
alleged owners. See 12 CFR 330.3(h); 12 CFR 330.5(a)(1).
    Under the rules summarized above, an account funded by a sponsoring 
company for the purpose of making payments to cardholders cannot be 
insured on a ``pass-through'' basis to the cardholders unless (1) the 
account records reflect a custodial relationship between the sponsoring 
company and the cardholders (e.g., ``Sponsoring Company as Custodian 
for Cardholders''); (2) the depository institution or the sponsoring 
company or some other party maintains records reflecting the interest 
of each cardholder; and (3) the deposit is owned in fact by the 
cardholders.
    Satisfaction of the third requirement will depend upon the 
agreements between the sponsoring company and the cardholders. One 
factor would be whether the sponsoring company retains the right to 
recover the funds under certain circumstances (e.g., upon the 
expiration of a card). Such a right would indicate that the funds in 
the account actually belong to the sponsoring company, not the 
cardholders. If the funds belong to the sponsoring company, ``pass-
through'' coverage will be unavailable.

B. Pooled ``Reserve Accounts'' With Individual Subaccounts

    As previously discussed, the FDIC in GC8 identified two types of 
systems in which the stored value cards are issued by an insured 
depository institution. These systems are the ``Bank Primary-Reserve 
System'' and the ``Bank Primary-Customer Account System.'' In the 
former system, the insured depository institution maintains a pooled 
``reserve account'' for all cardholders. In the latter system, the

[[Page 20562]]

insured depository institution maintains an individual account for each 
cardholder. Under GC8, only the funds in the latter system are 
``deposits.''
    The FDIC has learned that some insured depository institutions have 
combined the two systems in issuing stored value cards. The hybrid 
system used by these depository institutions is similar to a ``Bank 
Primary-Reserve System'' in that the institution maintains a pooled 
self-described ``reserve account'' for all cardholders. On the other 
hand, the system also is similar to a ``Bank Primary-Customer Account 
System'' in that the institution maintains a subaccount for each 
cardholder. In some cases, the depository institution maintains the 
subaccounts through a processing agent. In this notice of proposed 
rulemaking, the term ``subaccount'' is used to mean any supplemental 
records maintained by the insured depository institution (directly or 
through an agent) that enable the institution to determine the amounts 
of money owed to particular persons (i.e., that enable the institution 
to calculate a balance for each of the persons who holds a card).
    Through this notice of proposed rulemaking, the FDIC is proposing 
to treat the funds in a hybrid system (i.e., a system in which a 
``reserve account'' is supplemented by subaccounts) as ``deposits.''
    An argument could be made that the funds in a hybrid system should 
not be treated as ``deposits'' because neither the pooled ``reserve 
account'' nor any of the individual subaccounts in a hybrid system is a 
conventional ``commercial, checking, savings, time, or thrift account'' 
as those terms are interpreted in GC8. Therefore, under the reasoning 
in GC8, it could be argued that the funds are not ``deposits'' under 
paragraph 3(l)(1) of the statutory definition. See 61 FR 40490. 
Moreover, the funds are used by the bank customers to engage in 
miscellaneous and unrelated transactions. Under the logic set forth in 
GC8, it could be argued that the funds are not ``deposits'' under 
paragraph 3(l)(3). See 61 FR 40490.
    On the other hand, the FDIC in GC8 applied paragraph 3(l)(3) to 
pooled ``reserve accounts'' but never applied paragraph 3(l)(3) to 
individual accounts or subaccounts. In the case of a ``Bank Primary-
Customer Account System,'' the FDIC did not apply paragraph 3(l)(3) to 
the individual accounts because the FDIC assumed that the individual 
accounts would be conventional ``commercial, checking, savings, time, 
or thrift accounts'' and therefore ``deposits'' under paragraph 
3(l)(1). See 61 FR 40490. Even if the individual accounts in a ``Bank 
Primary-Customer Account System'' or hybrid system are not conventional 
``commercial, checking, savings, time, or thrift accounts'' as those 
terms are interpreted in GC8, an argument can be made that the funds in 
each of these accounts or subaccounts are ``deposits'' under paragraph 
3(l)(3) because they are held by the insured depository institution for 
the ``special or specific purpose'' of satisfying the institution's 
obligations to a specific customer, i.e., the cardholder. In fact, the 
FDIC staff has endorsed this legal analysis in a published advisory 
opinion involving a stored value product. See FDIC Advisory Opinion No. 
97-4 (May 12, 1997).
    Moreover, in a hybrid system, the fact that the pooled self-
described ``reserve account'' may not qualify as a ``commercial, 
checking, savings, time, or thrift account'' under paragraph 3(l)(1) 
does not mean that the individual subaccounts do not qualify as 
``commercial, checking, savings, time, or thrift accounts'' under 
paragraph 3(l)(1).
    In summary, the funds in a hybrid system qualify as ``deposits'' 
under paragraph 3(l)(3) and paragraph 3(l)(1). Accordingly, the FDIC is 
proposing to treat the funds in a hybrid system as ``deposits.'' 
Comments are requested.

C. ``Payroll Cards''

    Another new type of stored value card is the ``payroll card.'' In 
paying wages, some employers are distributing ``payroll cards'' to 
their employees in lieu of checks.
    Prior to the distribution of the cards, the employer places funds 
at an insured depository institution. After the distribution of the 
cards, the employees may withdraw the funds by using their cards. 
Specifically, the employees may withdraw the funds at automated teller 
machines or transfer the funds to merchants through the merchants' 
point of sale terminals.
    The FDIC's staff position with respect to ``payroll cards'' is set 
forth in FDIC Advisory Opinion No. 02-03 (August 16, 2002). In that 
opinion, the staff addressed the question of whether the funds placed 
at the insured depository institution by the employer are insurable on 
a ``pass-through'' to the employees. As explained in that opinion, the 
issue depends upon the actual ownership of the funds. If the funds 
belong to the employer (as in the case of a traditional corporate 
payroll account), the funds are insurable to the employer. In other 
words, in the event of the failure of the insured depository 
institution, the funds would be aggregated with the employer's other 
funds (if any) at the same insured depository institution and insured 
up to $100,000. See 12 CFR 330.11(a) (providing that the deposit 
accounts of a corporation are added together and insured up to 
$100,000). On the other hand, the funds would be insurable on a ``pass-
through'' basis to the employees (assuming the satisfaction of the 
FDIC's requirements for ``pass-through'' insurance coverage as 
previously explained) if ownership of the funds has passed to the 
employees (as in the case of direct deposits made by an employer on 
behalf of employees) prior to the failure of the insured depository 
institution.
    The actual ownership of the funds would depend upon the agreement 
between the parties. One factor would be whether the employer retains a 
reversionary interest in the funds (e.g., in the event of the 
expiration of a card). The retention of a reversionary interest would 
indicate that the funds actually belong to the employer and not the 
employees.
    As explained above, the issue addressed in FDIC Advisory Opinion 
No. 02-03 was whether deposits underlying certain ``payroll cards'' 
were eligible for ``pass-through'' insurance coverage to the employees. 
In contrast, the issue addressed by this proposed rulemaking is whether 
certain funds qualify as ``deposits.'' The two issues are distinct. The 
former issue (whether coverage is limited to $100,000 in aggregation 
with the employer's other deposits) may be moot depending upon the 
resolution of the latter issue (whether the funds qualify as 
``deposits'').
    In regard to the former issue as to the insurance coverage of 
deposits underlying ``payroll cards,'' this proposed rulemaking does 
not conflict with FDIC Advisory Opinion No. 02-03. In fact, the 
proposed rule includes no special provisions dealing with ``payroll 
cards.'' Likewise, the proposed rule includes no special provisions 
dealing with ``prepaid cards'' or ``debit cards'' or ``check cards.'' 
Rather, the proposed rule would apply equally to all types of stored 
value bank cards. Under the proposed rule, the funds underlying all 
such types of cards--including ``payroll cards''--would be ``deposits'' 
except under the following circumstances: (1) The issuer of the cards 
(i.e., the party that promises to make payments on the cards) is the 
insured depository institution (and not the employer or other 
sponsoring company); and (2) the depository institution maintains a 
pooled ``reserve account'' but maintains no subaccounts or other 
supplemental records reflecting the amount of money owed to particular 
cardholders.

[[Page 20563]]

    In a case involving ``payroll cards,'' the FDIC would apply the 
proposed rule in determining whether the underlying funds qualify as 
``deposits.'' If a determination is made that the funds are 
``deposits,'' the FDIC then would apply the principles set forth in 
FDIC Advisory Opinion No. 02-03 in determining whether the deposits are 
entitled to ``pass-through'' insurance coverage.
    Comments are requested as to whether the treatment outlined above 
is the appropriate treatment of funds underlying ``payroll cards'' and 
other types of stored value bank cards.
    Whether funds underlying stored value bank cards are ``deposits'' 
has implications in a number of areas, including but not limited to 
those discussed below.

V. Acquisitions and Mergers

    Section 3(d) of the Bank Holding Company Act (``BHC Act'') and 
section 44(b) of the FDI Act allow the appropriate federal banking 
agency to approve an interstate bank acquisition or merger only if, 
among other things, the resulting organization and its affiliates, upon 
consummation, would not control more than 10 percent of the total 
amount of ``deposits'' of insured depository institutions in the United 
States. See 12 U.S.C. 1831u(b); 12 U.S.C. 1842(d). For purposes of this 
restriction, the term ``deposit'' is defined by reference to section 
3(l) of the FDI Act. See 12 U.S.C. 1842(d)(2)(E). Comments are 
requested on whether this rulemaking could materially affect the 
operation of the deposit limit on interstate acquisitions or mergers 
under section 3(d) of the BHC Act or section 44(b) of the FDI Act.

VI. The Definition of ``Stored Value Card''

    In GC8, the FDIC described a ``stored value card'' as follows: ``A 
stored value card stores information electronically on a magnetic 
stripe or computer chip and can be used to purchase goods or services. 
The balance recorded on the card is debited at a merchant's point of 
sale terminal when the consumer makes a purchase.'' 61 FR 40490.
    Some stored value card systems may be designed in such a manner 
that a balance is not recorded on the card itself through a magnetic 
stripe or computer chip. Rather, the system might be designed so that 
the cardholder or merchant must contact the bank to determine the 
cardholder's balance. In any event, a stored value card is a device 
that enables the cardholder to transfer the underlying funds (i.e., the 
funds received by the issuer of the card in exchange for the issuance 
of the card) to a merchant at the merchant's point of sale terminal.
    As explained in GC8, stored value cards may be ``loaded'' in a 
variety of ways. If the cards are issued by a sponsoring company, a 
card will be ``loaded'' when the cardholder gives cash to the 
sponsoring company (directly or through the sponsoring company's 
receiving agent) in exchange for the card. If the cards are issued by 
an insured depository institution, a card will be ``loaded'' when (1) 
The cardholder gives cash to the depository institution in exchange for 
the card; or (2) the cardholder directs the depository institution to 
draw funds from a pre-existing account in exchange for the card. Some 
cards are ``reloadable''; others are not. See id.
    A stored value card is not cash. Rather, a stored value card is a 
device that stores information electronically (e.g., on a magnetic 
stripe or computer chip). A stored value card enables a consumer to 
transfer the underlying funds (i.e., the funds received by the issuer 
of the card in exchange for the issuance of the card) to a merchant at 
the merchant's point of sale terminal. When used by a consumer, a 
stored value card (or the information on the card) moves through a 
``clearing'' process. In GC8, the FDIC explained this point as follows: 
``Although it may not be apparent to the consumer, a stored value card 
transaction must typically move through a complex payment system before 
a payment is completed. Moreover, what is actually stored on stored 
value cards is information that, through the use of programmed 
terminals, advises a prospective payee that rights to a sum of money 
can be transferred to the payee, who in turn can exercise such right 
and be paid.'' 61 FR 40490.
    Different types of stored value cards function in different ways. 
For example, a stored value card transaction may be ``on-line'' in that 
the card may provide direct access to a database for the purpose of 
obtaining payment authorization. On the other hand, the transaction may 
be ``off-line'' in that the card may not provide direct access to a 
database. Rather, information concerning the transaction may be 
captured at the merchant's point of sale terminal and then 
transmitted--after some delay--to a data facility. See 61 FR 19696 (May 
2, 1996). In either case, ``clearing'' will occur when payment is made 
to the merchant by the insured depository institution.
    For purposes of this proposed rulemaking, the distinction between 
``on-line'' transactions and ``off-line'' transactions is unimportant. 
The distinction that matters to the FDIC is whether the stored value 
card provides access (directly or indirectly) to money received and 
held by an insured depository institution. Assuming that money is held 
by an insured bank, the proposed rule would govern the question of 
whether the money qualifies as ``deposits.'' In the absence of any such 
money, however, the existence of ``deposits'' is impossible. See FDIC 
v. Philadelphia Gear Corporation, 106 S. Ct. 1931 (1986). Thus, the 
proposed rule would not apply to a ``closed'' stored value card system 
(such as a ``gift card'' system sponsored by a retailer) in which the 
merchant receives prepayment from the cardholder and does not receive 
payment through a bank. See footnote 1, supra.\3\
---------------------------------------------------------------------------

    \3\ In a ``closed'' system sponsored by a retailer, the 
possibility may exist that data-processing is provided by an insured 
depository institution. This circumstances would not affect the 
conclusion above that the funds are not ``deposits'' provided that 
the funds are not received or held by the insured depository 
institution.
---------------------------------------------------------------------------

    The description of a ``stored value card'' in GC8 has been used in 
defining ``stored value card'' in the proposed rule. Comments are 
requested on the proposed definition.

VII. Insurance Coverage

    The proposed regulation does not set forth any special rules 
regarding the insurance coverage of any ``deposits'' underlying stored 
value cards. Rather, the proposed regulation merely states that the 
insurance coverage of any such ``deposits'' shall be governed by the 
FDIC's insurance regulations at 12 CFR part 330.
    Under the FDI Act and the insurance regulations, the FDIC must 
aggregate all ``deposits'' owned by a particular depositor in a 
particular ownership capacity in applying the $100,000 insurance limit. 
See 12 U.S.C. 1821(a)(1)(C); 12 CFR 330.3(a). In identifying the owners 
of ``deposits'' for insurance purposes, the FDIC is entitled to rely 
upon the account records of the failed insured depository institution. 
See 12 U.S.C. 1822(c); 12 CFR 330.5. The application of these basic 
principles may be difficult in the case of ``deposits'' underlying 
certain stored value cards. For example, an insured depository 
institution might offer a type of stored value card that can be 
transferred from the original purchaser to some other person. Assuming 
the existence of such transferable cards, the depository institution 
might keep records as to the identities of the original purchasers but 
no records as to the ultimate cardholders. In the absence of such

[[Page 20564]]

records, the FDIC may be unable to identify the ultimate cardholder in 
the event of the failure of the institution. In light of such 
possibilities, comments are requested as to whether the FDIC should 
adopt any special rules governing the insurance coverage of any 
``deposits'' underlying stored value cards or other stored value 
products.
    Of course, insurance coverage will not be an issue if the funds do 
not qualify as ``deposits'' under the proposed rule. As previously 
explained, the funds will not be ``deposits'' if (1) the issuer of the 
cards is the insured depository institution (and not a sponsoring 
company); and (2) the depository institution maintains a pooled 
``reserve account'' but maintains no subaccounts or supplemental 
records reflecting the amount of money owed to particular cardholders 
(i.e., the institution maintains no supplemental records reflecting the 
amount of money owed to the original cardholder or any subsequent 
cardholder in the case of a transferable card).

VIII. Required Disclosures

    In a press release dated June 24, 1997 (PR-44-97), subsequent to 
the issuance of GC8, the FDIC stated that it ``expects insured 
depository institutions to clearly and conspicuously disclose to 
customers the insured or non-insured status of the stored-value cards 
they offer to the public.''
    The FDIC continues to be concerned that some purchasers of stored 
value cards may not understand whether the funds given to an insured 
depository institution in exchange for such cards are covered by 
federal deposit insurance. In order to avoid confusion on the part of 
customers, depository institutions must accurately disclose the 
insurability of the funds underlying any stored value product in a 
manner that is clear and conspicuous. For example, in cases in which 
the funds qualify as ``deposits,'' the cards might include the 
following statement: ``Member FDIC--Funds accessible by this card are 
insured by the Federal Deposit Insurance Corporation.'' On the other 
hand, in cases in which the funds do not qualify as ``deposits,'' the 
cards might include this statement: ``NOT FDIC INSURED--Funds 
accessible by this card are NOT insured by the Federal Deposit 
Insurance Corporation.'' In addition, any advertisements for the stored 
value product (including written materials provided by the depository 
institution when a card is delivered to a consumer) must state whether 
the underlying funds are insured by the FDIC. Also, any advertisements 
for insured ``deposit'' products must comply with the membership 
advertisement requirements of 12 CFR 328.3.
    In the case of cards issued by sponsoring companies (and not issued 
by an insured depository institution), the company should not suggest 
that the customer will be protected by the FDIC. Even if the sponsoring 
company maintains an account at an FDIC-insured depository institution 
for the purpose of making payments on its cards, the company should 
make no representations about FDIC insurance to the customer because 
the insured depositor will be the company and not the customer (unless 
the FDIC's requirements for ``pass-through'' insurance coverage have 
been satisfied as previously explained). False representations about 
FDIC insurance could be subject to criminal penalties. See 18 U.S.C. 
709.
    Although the proposed regulation does not set forth any new 
specific disclosure requirements, the FDIC seeks comments on this 
subject. Specifically, the FDIC requests comments as to whether the 
proposed rule ought to mandate the disclosures detailed above (or 
similar disclosures).

Request for Comments

    The FDIC is seeking comments on whether the agency should adopt a 
regulation to clarify the meaning of the term ``deposit'' as that term 
relates to funds at insured depository institutions underlying stored 
value cards. Under the proposed regulation, the funds would be 
``deposits'' unless (1) the institution itself has issued the cards 
against a pooled ``reserve account'' representing multiple cardholders; 
and (2) the institution maintains no supplemental records or 
subaccounts reflecting the amount owed to each cardholder.
    Comments are requested on the proposed rule. Commenters may wish to 
address each of the following specific questions:
    1. Should the FDIC promulgate a new section to part 303 to clarify 
the meaning of ``deposit'' as that term relates to funds at insured 
depository institutions underlying stored value cards?
    2. If so, should the FDIC adopt the proposed rule? Why?
    3. In the alternative, should the FDIC adopt some other rule? Under 
what circumstances should funds received by an insured depository 
institution not be insurable as ``deposits''?
    4. What should be the treatment of funds underlying ``payroll 
cards''?
    5. Will the proposed rule affect the operation of the deposit 
limitations in section 3(d) of the Bank Holding Company Act or section 
44(b) of the FDI Act?
    6. Should the FDIC adopt the proposed definition of ``stored value 
card''? Can this definition be improved? What are the differences (if 
any) between ``stored value cards'' and other types of bank cards such 
as ``prepaid cards,'' ``debit cards,'' ``check cards'' and ``payroll 
cards''?
    7. Should the FDIC adopt specific disclosure requirements? If so, 
do the disclosures provided as examples in the preamble adequately 
address consumer confusion about the insurability of funds underlying 
stored value products? Are there ways to reduce the costs or burdens 
associated with providing disclosures about the insurability of such 
funds?
    8. Should the FDIC adopt any special rules governing the insurance 
coverage of any ``deposits'' underlying stored value cards?
    9. Are insured depository institutions offering stored value 
products or systems that are not addressed in this notice of proposed 
rulemaking? Please explain.
    10. In the case of a stored value card system in which the cards 
are issued by an insured depository institution, and the depository 
institution maintains a pooled ``reserve account'' reflecting its 
liabilities for all cards but does not maintain individual accounts or 
subaccounts reflecting its liabilities to individual cardholders, how 
does the institution keep track of its liabilities? What technology is 
used? How does the institution know when and whether to make payments 
to merchants?

Paperwork Reduction Act

    The FDIC believes that insured depository institutions--in issuing 
stored value cards--must make clear and accurate disclosures as to 
whether the underlying funds are insured. The subject of disclosures is 
discussed in Section VIII.
    Requiring the disclosure of information to the public may qualify 
as a ``collection of information'' for purposes of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). See 5 CFR 1320.3(c). In this 
case, however, the required disclosure is not a ``collection of 
information'' because the FDIC (in Section VIII) is providing specific 
language that insured depository institutions may use in disclosing 
information to the public. See 5 CFR 1320.3(c)(2). Moreover, insured 
depository institutions must ascertain the information in question--
whether funds underlying stored value cards qualify as ``deposits''--in 
completing

[[Page 20565]]

their Call Reports. Thus, nothing in this notice of proposed rulemaking 
requires an insured depository institution to collect information that 
the institution otherwise would not collect.
    In summary, no collections of information pursuant to the Paperwork 
Reduction Act are contained in the proposed rule. Consequently, no 
information has been submitted to the Office of Management and Budget 
for review.

Regulatory Flexibility Act

Request for Comments
    In accordance with section 3(a) of the Regulatory Flexibility Act 
(5 U.S.C. 603(a)), the FDIC must publish an initial regulatory 
flexibility analysis with this proposed rulemaking or certify that the 
proposed rule, if adopted, will not have a significant economic impact 
on a substantial number of small entities. For purposes of the required 
analysis or certification, depository institutions with total assets of 
$150 million or less are considered to be ``small entities.''
    For the reasons set forth below, the FDIC hereby certifies pursuant 
to 5 U.S.C. 605(b) that the proposed rule, if adopted, will not have a 
significant economic impact on a substantial number of small entities.

Economic Impact

    This proposed rulemaking is not intended to apply to any issue 
except the meaning of ``deposit'' under the FDI Act. Though this 
rulemaking may affect the manner in which some insured depository 
institutions report ``deposits'' in their Call Reports, the rulemaking 
generally will not impose new obligations on insured depository 
institutions because such institutions--irrespective of this 
rulemaking--must file Call Reports.
    Notwithstanding the above, the FDIC may be imposing new obligations 
on insured depository institutions in directing such institutions--when 
issuing stored value cards--to make clear and conspicuous disclosures 
as to whether the underlying funds are insured. The subject of 
disclosures is discussed in Section VIII. The FDIC believes that clear, 
conspicuous disclosures are necessary in order to prevent confusion on 
the part of the public. See 12 U.S.C. 1819 (investing the FDIC with 
general rulemaking authority with respect to deposit insurance). In any 
event, the FDIC believes that the cost of adding clear and conspicuous 
disclosures to stored value cards will not result in a significant 
economic impact on a substantial number of small entities. This 
conclusion is based upon the fact that the cost will involve the design 
of a depository institution's stored value cards, not the production of 
such cards. Adding a one-sentence disclosure to a card should involve 
at most only a minimal cost. Indeed, the addition of a clear and 
conspicuous disclosure about insurance coverage may reduce the 
institution's costs in answering questions from the public about FDIC 
insurance coverage.
    Although this proposed rulemaking should not create a significant 
adverse economic impact on an insured depository institution, and may 
even result in a modest net benefit, the FDIC believes that insured 
depository institutions should be given an opportunity to provide 
comments on the subject. Accordingly, comments are requested (see 
below).
    The FDIC is not aware of any Federal rules that would duplicate, 
overlap or conflict with a requirement that stored value cards issued 
by insured depository institutions must include clear and conspicuous 
disclosures about insurance coverage.

Request for Comments

    The FDIC requests comments as to the cost of adding a clear and 
conspicuous disclosure about insurance coverage to stored value cards 
issued by insured depository institutions. Commenters may wish to 
address the following: (1) The number of small entities that are 
issuing stored value cards or may issue stored value cards; (2) the 
manner and impact of adding a clear and conspicuous disclosure about 
insurance coverage to stored value cards; and (3) alternative methods 
of preventing confusion on the part of the public.

Impact on Families

    The proposed rule would not affect family well-being within the 
meaning of section 654 of the Treasury and General Government 
Appropriations Act, enacted as part of the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 
Stat. 2681).

List of Subjects in 12 CFR Part 303

    Administrative practice and procedures, Authority delegations 
(Government agencies), Banks, Banking, Bank merger, Branching, Foreign 
investments, Golden parachute payments, Insured branches, Interstate 
branching, Reporting and recordkeeping requirements, Savings 
associations.
    For the reasons set forth in the preamble, the Board of Directors 
of the Federal Deposit Insurance Corporation proposes to amend part 303 
of Title 12 of the Code of Federal Regulations as follows:

PART 303--FILING PROCEDURES

    1. The authority citation for part 303 continues to read as 
follows:

    Authority: 12 U.S.C. 378, 1813, 1815, 1816, 1817, 1818, 1819 
(Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 
1835a, 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.

    2. New Sec.  303.16 is added to read as follows:


Sec.  303.16  The definition of ``deposit'' as that term relates to 
funds underlying stored value cards

    (a) Purpose. The term ``deposit'' is defined in section 3(l) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(l)). The purpose of this 
section is to clarify the meaning of ``deposit'' as that term relates 
to funds at insured depository institutions underlying stored value 
cards.
    (b) Funds received from cardholders, or funds received from others 
on behalf of cardholders or for payment to cardholders, in exchange for 
stored value cards issued by the insured depository institution. In the 
case of funds received by an insured depository institution from 
cardholders, or funds received from others on behalf of cardholders or 
for payment to cardholders, in exchange for stored value cards issued 
by the depository institution, the funds are ``deposits'' unless:
    (1) The depository institution records its liabilities for such 
funds in an account representing multiple cardholders; and
    (2) The depository institution (directly or through an agent) 
maintains no supplemental records or subaccounts reflecting the amount 
owed to each cardholder. Nothing in this subparagraph (b)(2) is 
intended to suggest that an insured depository institution may ignore 
any law or regulation that may otherwise require the depository 
institution to maintain records reflecting the amount owed to each 
cardholder.
    (c) Funds received from cardholders in exchange for stored value 
cards issued by a sponsoring company. In the case of funds received by 
an insured depository institution from cardholders in exchange for 
stored value cards issued by a company (``sponsoring company'') and not 
issued by the insured depository institution (i.e., the insured 
depository institution serves as an agent of the sponsoring company in 
collecting funds and distributing cards), the funds shall be classified 
as follows:

[[Page 20566]]

    (1) The funds are ``deposits'' if the depository institution bears 
an obligation to forward the funds to the sponsoring company or to hold 
the funds for the sponsoring company. After the forwarding of such 
funds to the sponsoring company, or the withdrawal of such funds by the 
sponsoring company from the depository institution, the funds shall 
cease to be ``deposits'' at the depository institution.
    (2) The funds are not ``deposits'' if the depository institution 
bears no obligation to forward or hold the funds (e.g., the depository 
institution purchases the cards from the sponsoring company and then 
resells the cards to the cardholders).
    (d) Funds placed by sponsoring companies. In the case of funds 
placed at an insured depository institution by a sponsoring company for 
the purpose of making payments on stored value cards issued by that 
company, the funds are ``deposits.''
    (e) Insurance coverage. In the case of any funds that qualify as 
``deposits'' under this section, the insurance coverage of such funds 
shall be governed by the rules set forth in part 330 of this chapter.
    (f) Definition of ``stored value card.'' For the purposes of this 
section, the term ``stored value card'' means a device that enables the 
cardholder to transfer the underlying funds (i.e., the funds received 
by the issuer of the card in exchange for the issuance or reloading of 
the card) to a merchant at the merchant's point of sale terminal.

    Dated at Washington, DC, this 6th day of April, 2004.

    Authorized to be published in the Federal Register by Order of 
the Board of Directors of the Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 04-8613 Filed 4-15-04; 8:45 am]
BILLING CODE 6714-01-P