COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 137
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Originating in the Committee on Finance;
reported February 25, 1999.]
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A BILL to amend and reenact section twelve-b, article eight,
chapter thirty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto a new section,
designated section twelve-d, all relating to use of point of
sale terminals to access payments of public assistance
benefits and make cash withdrawals in excess of fifty
dollars during sales transactions.
Be it enacted by the Legislature of West Virginia:
That section twelve-b, article eight, chapter thirty-one-a
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; and that said article
be further amended by adding thereto a new section, designated
section twelve-d, all to read as follows:
ARTICLE 8. HEARINGS; ADMINISTRATIVE PROCEDURES; JUDICIAL REVIEW;
UNLAWFUL ACTS; PENALTIES.
31A-8-12b. Installation and operation of customer bank
communication terminals permitted.
(a) Any banking institution as defined in section two,
article one of this chapter, individually or jointly with one or
more other banking institutions or other federally insured
financial institutions having their principal offices in this
state, or any combination thereof, may upon ten days prior
written notice filed with the commissioner, install, operate and
engage in banking business by means of one or more customer bank
communication terminals. Any banking institution which installs
and operates a customer bank communication terminal:
(1) Shall make
such the customer bank communication terminal
available for use by other banking institutions; and
(2) May make
such the customer bank communication terminal
available for use by other federally insured financial
institutions, all in accordance with
regulations rules promulgated by the commissioner.
Such The customer bank
communication terminals shall not be considered to be branch
banks or branch offices, agencies or places of business or off- premises walk-in or drive-in banking facilities; nor shall the
operation of
such the customer bank communication terminals to
communicate with and permit financial transactions to be carried
out through a nonexclusive access interchange system be
considered to make any banking institution which is part of
such
a nonexclusive access interchange system to have illegal branch
banks or branch offices, agencies or places of business or off- premises walk-in or drive-in banking facilities.
(b) Notwithstanding the provisions of subdivision (1),
subsection (a) of this section, a customer bank communication
terminal located on the premises of the principal office or
branch bank of a banking institution or on the premises of an
authorized off-premises facility need not be made available for
use by any other banking institution or its customers.
(c) For purposes of this section, "customer bank
communication terminal" means any electronic device or machine
owned, leased, or operated by a bank, together with all
associated equipment, structures and systems, including, without limitation, point of sale terminals, through or by means of which
a customer and a banking institution may engage in any banking
transactions, whether transmitted to the banking institution
instantaneously or otherwise, including, without limitation, the
receipt of deposits of every kind, the receipt and dispensing of
cash, requests to withdraw money from an account or pursuant to
a previously authorized line of credit, receiving payments
payable at the bank or otherwise transmitting instructions to
receive, transfer or pay funds for a customer's benefit. Personal
computers, telephones and associated equipment which enable a
bank customer to conduct banking transactions at their home or
office through links to their bank's computer or telephone
network do not constitute a "customer bank communication
terminal" under this section. All transactions initiated through
a customer bank communication terminal shall be subject to
verification by the banking institution.
(d) No person, other than: (1) A banking institution
authorized to engage in the banking business in this state; or
(2) a credit union authorized to conduct business in this state;
may operate any automatic teller machine ("ATM") or automatic
loan machine ("ALM") located in this state:
Provided, That ATM terminals of out-of-state state banks not having branches in this
state
shall be allowed to may operate to the same extent as a
West Virginia bank if a national bank from that state not having
branches in West Virginia could do so through a federal
preemption of state law.
(e) For the purposes of this section, "point of sale
terminal" means a customer bank communication terminal used for
the primary purpose of either transferring funds to or from one
or more deposit accounts in a banking institution or segregating
funds in one or more deposit accounts in a banking institution
for future transfer, or both, in order to execute transactions
between a person and his
or her customers incident to sales,
including, without limitation, devices and machines which may be
used to implement and facilitate check guaranty and check
authorization programs.
(f) Nothing in this section prevents point of sale terminals
and associated equipment from being owned, leased or operated by
nonbanking entities:
Provided, That
such those persons may not
engage in the business of banking by using point of sale devices.
The use of a point of sale terminal to enable a customer or other
person to withdraw and obtain cash of more than fifty dollars in excess of the sales transaction purchase amount will be presumed
to constitute engaging in the business of banking:
Provided,
however, That cash withdrawals through a point of sale terminal
in excess of fifty dollars shall not constitute engaging in the
business of banking if the sales transaction is made with the use
of an electronic benefits transfer card issued by the West
Virginia department of health and human resources to transmit
payments of food benefits, temporary assistance to needy
families, or other similar assistance programs mandated by
federal or state government: Provided, further, That any
retailer, agency or person providing cash withdrawals through a
point of sale terminal shall be limited to charging may charge a
fee for the service in the amount of the higher of one dollar or
one percent of the amount of cash withdrawn.
(g) Except for customer bank communication terminals located
on the premises of the principal office or a branch bank of the
banking institution or on the premises of an authorized off- premises walk-in or drive-in banking facility, a customer bank
communication terminal shall be unattended or attended by persons
not employed by any banking institution utilizing the terminal:
Provided, That:
(1) Employees of the banking institution may be present at
such a terminal not located on the premises of an authorized off-
premises facility solely for the purposes of installing,
maintaining, repairing and servicing
same the terminal; and
(2) A banking institution may provide an employee to
instruct and assist customers in the operation
thereof of the
terminal:
Provided, That
such the employee shall not engage in
any other banking activity.
(h) The commissioner shall prescribe by
regulation rule the
procedures and standards regarding the installation and operation
of customer bank communication terminals, including, without
limitation, the procedure for the sharing
thereof of the
terminals.
31A-8-12d. Limited establishment and use of point of sale
terminals for special purposes and circumstances
relating to
certain public assistance payments.
(a) The West Virginia department of health and human
resources, or its successor agency, may establish and own point
of sale terminals as defined in section twelve-b of this article
for banking institutions. The terminals and associated equipment
may be placed at any location within this state where the department determines the terminals are needed to provide
reasonable access to recipients of state or federal cash and food
or other benefits through electronic means. The terminals
established pursuant to this section may be used to provide any
amount of cash payment or allowable purchase of retail items or
other benefits as determined by the department of health and
human resources pursuant to state law and rules and, where
necessary, in cooperation with the United States department of
agriculture or other federal agencies.
(b) Point of sale terminals established pursuant to this
section are not required to be shared with private sector
financial institutions and may be established for the sole
purpose of providing access to electronically transmitted
government benefits for clients of the West Virginia department
of health and human resources.
(c) Any retailer, agency or other person which provides cash
withdrawal services from its own funds through point of sale
terminals established pursuant to this section may charge a fee
for the service in the amount of the higher of one dollar or one
percent of the amount of cash withdrawn.
(d) The department of health and human resources shall not compete with private sector providers of point of sale terminals
or for profit, and shall remove its equipment from any location
at which it can reasonably be determined that the terminals will
be provided by private sector sources in the normal course of
business.
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