Posted January, 13 2006
Please be advised that NACHA’s Voting Membership has approved an amendment to the NACHA Operating Rules. This amendment, which became effective on December 16, 2005, modified the NACHA Operating Rules to explicitly state that NACHA’s Board of Directors has the authority to issue binding, written interpretations of the Rules.
The types of ACH applications that the ACH Network supports have expanded over the past decade to include electronic check, internet and telephone applications. This expansion beyond the traditional ACH applications (e.g., direct deposit and direct debit) has led to many requests for clarifications of the Rules, as well as whether a specific business model is compliant with the Rules and, if so, which Standard Entry Class (SEC) Code is appropriate for that business model.
While NACHA has utilized the Guidelines to help provide amplification of the Rules, NACHA’s legal counsel recommended that NACHA’s authority to interpret the Rules be stipulated within the Rules and that a formal process be used to issue official written interpretations of the Rules where appropriate and necessary. Other rule-making bodies currently include similar language within their rules to formally recognize their authority to be the final interpreter of their rules. This rule amendment recognizes NACHA as the final interpreter of the Rules and enables NACHA to provide appropriate guidance about whether a potential use of the rule provisions is consistent or inconsistent with the Rules.
Modifications to the NACHA Operating Rules
This rule amendment adds a new section 13.3 (Interpretative Rule) to Article Thirteen, Amendment of the Rules. This new section states:
“Notwithstanding section 13.1 (Procedures for Amendment of the Rules), in order to promote the purposes of these rules, to clarify the provisions of these rules, or for such other purposes as it deems appropriate, from time to time the Board of Directors of the National Association may issue such written interpretations of these rules as are not inconsistent with the express language of these rules. Such written interpretations shall apply and shall be binding as if they were set forth in full in these rules and were adopted in accordance with section 13.1.”
Scope of Rule Amendment
This amendment addresses circumstances in which NACHA will provide a formal written interpretation of the Rules. NACHA staff anticipates that this process will be used in very limited situations to clarify the Rules or to address whether business processes are consistent with the intent of the Rules. Where oral interpretations from NACHA and information contained within the Guidelines are not binding on ACH participants, these official interpretations will be as binding as the Rules themselves.
Process for Submitting Request for Written Interpretation
The formal process for submitting requests for written interpretations will be included in the Guidelines. Requests for the issuance of an official, written interpretation of the NACHA Operating Rules may be submitted only by NACHA’s Direct Financial Institution (FI) Members, Regional Payment Associations (RPAs) on their own behalf or the behalf of financial institution members, ACH Operators, Board members, and NACHA staff. Such requests must be submitted in writing and require a document detailing the issue or business process, a legal and rules analysis of the issue or business process, and any other relevant information.
Process for Issuing Written Interpretations
The process for issuing formal written interpretations of the Rules begins when a Direct FI Member, RPA (on their own behalf or the behalf of their financial institution member), ACH Operator, Board member, or NACHA staff formally requests a written interpretation of the Rules. This written request will be reviewed by NACHA staff to ensure the necessary documents have been included and that the issue is not merely a misinterpretation of the Rules. The request will then be forwarded to NACHA’s Rules & Operations Committee for review. The Committee would determine whether:
- to issue a formal written interpretation of the Rules: The issue raised has broad implications Network-wide and a written interpretation is warranted.
- a rule amendment is necessary to address the issue: The issue raised will require a change to the Rules. Therefore, the Committee will request that the submitter provide a business case for a rule amendment that would then be addressed through the Rule Making Process.
- the request does not raise an issue of significance: The issue does not have broad implications or the Committee does not feel it has sufficient information to make a decision or decides for other reasons not to issue a written interpretation.
If the Rules & Operations Committee determines that a written interpretation should be issued, the Committee will develop a recommended interpretation (with appropriate legal review) and forward that written interpretation to the Board of Directors for their review and approval.
Process for Periodically Reviewing Written Interpretations
When a new rule amendment is approved, such an amendment may affect a section of the Rules that has been interpreted via a formal written interpretation. If this is so, the Rules & Operations Committee will review any written interpretations referenced to that section to determine whether the written interpretation is: (1) no longer necessary, as the rule amendment addresses the issue, or (2) still relevant and appropriate. The Committee will recommend to the Board of Directors whether the written interpretation should be removed or remain in effect. If the Board of Directors determines that a written interpretation is no longer appropriate, it will be removed from the ACH Rules Book.
Frequency of Issuance of Written Interpretations
NACHA anticipates that formal written interpretations will be issued infrequently. Submissions for such interpretations will be required to comply with defined procedures and will only be permitted to be submitted by Direct FI Members, Regional Payment Associations (on their own behalf or the behalf of their financial institution members), ACH Operators, Board members, and NACHA staff. For any submission not determined to merit a formal written interpretation, NACHA will respond to the submitter via a telephone call.
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Questions about this ACH Operations Bulletin should be submitted via firstname.lastname@example.org.