1/26/11 N.Y. St. Reg. BNK-37-10-00003-A
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 301.6 of Title 3 NYCRR.
Statutory authority:
Banking Law, sections 12 and 75-n
Subject:
Security Measures at Automated Teller Machine (ATM) Facilities - Report of Compliance.
Purpose:
To improve required reporting on security at automated teller facilities and to require follow up corrective actions.
Text or summary was published
in the September 15, 2010 issue of the Register, I.D. No. BNK-37-10-00003-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Sam L. Abram, Secretary of the Banking Board, New York State Banking Department, One State Street, New York, NY 10004-1417, (212) 709-1658, email:
sam.abram@banking.state.ny.usAssessment of Public Comment
The Department received one comment regarding the proposed amendment. The commenter, an industry association for banking institutions, expressed the view that the requirement that submissions must be made under penalty of perjury requirement is unwarranted and excessive. The commenter also suggested that institutions be permitted to provide the required reports electronically.
There is ample authority and precedent for requiring reports to the Department to be made under penalty of perjury. Section 125(2) of the Banking Law gives the superintendent the power to require that specific reports by banks and trust companies be so made. Moreover, various provisions of the Banking Law specifically impose such a requirement in the case of particular reports (see, e.g., Sections 329, 404(1) and 513; see also Section 204).
The Department believes that the applying the penalty of perjury requirement to annual compliance reports under the ATM Safety Act is appropriate because such reports involve self certification by reporting institutions on a matter of public safety.
The Department strongly believes that electronic filing of reports by the entities it regulates benefits both such entities and the Department. For that reason, the Department has repeatedly proposed legislation which would affirmatively require electronic filing of reports to the Department by its regulated entities, unless such requirement is waived by the Superintendent. Under Section 309 of the State Technology Law, such affirmative legislation is necessary in order for the Department to require an entity to use an electronic record. Although the Legislature has not heretofore seen fit to enact the proposed legislation, the Department expects to continue seeking such legislative relief.
