New York Banking Law

Article 2-AA
ATM Safety Act.

                            
      Section 
        75-a.  Legislative intent.
        75-b.  Definitions.
        75-c.  Security measures.
        75-d.  List of facilities.
        75-e.  Consumer safety information.
        75-f.  Enforcement and statistics.
        75-g.  Report of compliance.
        75-h.  Compliance with local building code and all other
                 applicable provisions of law.
        75-i.  Facilities not subject to this article.
        75-j.  Civil penalties.
        75-k.  Collection of penalties.
        75-l.  Preemption.
        75-m.  Variances and exemptions from automated teller machine
                 security measures.
        75-n.  Rules and regulations.
        75-o.  Severability.

   S 75-a. Legislative intent. The legislature hereby finds that
automated teller machines are an integral part of consumers` lives and
that automated teller machines are used by millions of New Yorkers,
statewide, on a daily basis. It is the legislature`s intent to ensure
the convenience and safety of automated teller machine use by
establishing security measures for automated teller machine facilities.

   S 75-b. Definitions. For purposes of this article, the following
terms shall have the following meanings:  1. "Access device" means a
card, code, or other means of access to a consumer`s account, or any
combination thereof, that may be used by the consumer for the purpose of
initiating electronic fund transfers.
  2. "Automated teller machine" means a device which is linked to the
accounts and records of a banking institution and which enables
consumers to carry out banking transactions, including, but not limited
to, account transfers, deposits, cash withdrawals, balance inquiries,
and loan payments.
  3. "Automated teller machine facility" means an area within the
dominion and control of a banking institution comprised of one or more
automated teller machines and any adjacent space which is made available
to banking customers after regular banking hours.
  4. "Adequate lighting" means (a) with respect to an automated teller
machine facility located within the interior of a building, lighting, on
a twenty-four hour basis, which permits a person entering such facility
to readily and easily see all persons occupying such facility, and which
permits a person inside such facility to readily and easily see all
persons at the entry door of such facility.
 
  (b) with respect to an open and operating automated teller machine
facility open to the outdoor air, and any defined parking area, lighting
during nighttime hours according to the following standards:
  (i) a minimum illuminance of ten candlefoot power is maintained on a
horizontal plane at a point five feet outward from and five feet above
the ground surface from the automated teller machine;
  (ii) a minimum illuminance of two candlefoot power is maintained on a
horizontal plane at a point fifty feet in all unobstructed directions
from the automated teller machine, measured at a point five feet above
the ground surface; and
  (iii) if an outdoor automated teller machine is located within ten
feet of the corner of a building and the automated teller machine
facility is generally accessible from the adjacent side, there shall be
a minimum illuminance of two candlefoot power along the first forty
unobstructed feet of the adjacent side of the building.
  (c) with respect to a defined parking area, a minimum of two
candlefoot power in that portion of the parking area within sixty feet
of the automated teller machine facility.
  5. "Banking institution" means any state or federally chartered bank,
trust company, savings bank, savings and loan association, or credit
union, whether headquartered within or outside of the state, that
operates one or more automated teller machine facilities within the
state.
  6. "Candlefoot power" means the light intensity of candles measured on
a horizontal plane thirty-six inches above ground level and five feet in
front of the area to be measured.
  7. "Regular banking hours" means the time at which an office of a
banking institution is open to the banking public for normal transaction
of business.
  8. "Nighttime hours" means the period of time beginning thirty minutes
after sunset and ending thirty minutes before sunrise.
  9. (a) "Defined parking area" means that portion of any parking area
open for and accessible to customers of a banking institution which is:
  (1) contiguous to any paved walkway or sidewalk within fifty feet of
an automated teller machine facility;
  (2) regularly, principally and lawfully used for parking by users of
the automated teller machine facility while conducting transactions at
such automated teller machine facility; and
  (3) owned or leased by the operator of the automated teller machine
facility, or owned or otherwise controlled by the party leasing the
automated teller machine facility site to the banking institution.
  (b) The term "defined parking area" does not include any parking area
which is not open or regularly used for parking by the users of the
automated teller machine facility or the conduct of transactions during
nighttime hours. For this purpose, the parking area is not open if it is
physically closed to access or if conspicuous signs indicate that it is
closed.

  S 75-c. Security measures. Every banking institution shall maintain
the following security measures with respect to each of the automated
teller machine facilities within its dominion and control:
  1. A surveillance camera or cameras, which shall view and record all
persons entering an automated teller machine facility located within the
interior of a building, or which shall view and record all activity
occurring within a minimum of three feet in front of an automated teller
machine located outside a building and open to the outdoor air. Such
camera or cameras need not record banking transactions made at the
automated teller machines. The recordings made by such cameras shall be
preserved by the banking institution for at least forty-five days.
  2. Adequate lighting.
  3. With respect to an indoor automated teller machine facility: (a)
entry doors equipped with locking devices which permit entry to such
facility only to persons using a magnetic-strip plastic card or similar
access device.
  (b) To the extent practicable, as determined by an expert with
competence in such matters and as permitted by local building codes, at
least one exterior wall which provides an unobstructed view of the
interior of the automated teller machine facility.
  (c) A reflective mirror or mirrors, as necessary, placed in such a
manner as to permit a person entering an indoor automated teller machine
facility to view areas within such facility that are otherwise concealed
to plain view.
  (d) A clearly visible sign which, at a minimum, provides the following
information:
  (1) the activity of the automated teller machine facility is being
recorded by a surveillance camera or cameras;
  (2) customers should close the entry door completely upon entering and
exiting;
  (3) customers should not permit any unknown persons to enter after
regular banking hours;
  (4) customers should place withdrawn cash securely upon their person
before exiting the automated teller machine facility;
  (5) complaints concerning security in the automated teller machine
facility should be directed to the banking institution`s security
department or the banking department, together with telephone numbers
for such complaints, and that the nearest available public telephone
should be used to call the police if emergency assistance is needed.

   S 75-d. List of facilities. Any banking institution which operates an
automated teller machine facility shall file a list of such facilities
with the department, including the street addresses, intersecting
streets, hours of operation, and the telephone number of the banking
institution`s security department.  Such information shall also be filed
with the department with respect to each additional automated teller
machine facility within a reasonable time, as specified by the
superintendent, from the date upon which such facility commences
operation.  The department shall make such list available on request of
local law enforcement agencies and other local governmental entities.

S 75-e. Consumer safety information. Upon the original issuance or
reissuance of an automated teller machine facility access device, the
issuing banking institution shall provide its customers with written
information concerning safety precautions to be employed while using an
automated teller machine facility. Such written information shall
include, at a minimum, the information described in paragraph (d) of
subdivision three of section seventy-five-c of this article.

Article 2-AA, Continued . . .

   
   S 75-f. Enforcement and statistics. 1. The department is authorized
to enforce this article.
  2. Statistics of crimes associated with the use of automated teller
machine facilities compiled and maintained by any law enforcement agency
shall be made available upon the request of any banking institution or
the department.

   S 75-g. Report of compliance. 1. Within one year after the effective
date of this article, and each year thereafter, every banking
institution which has an automated teller machine facility which is in
operation on such date and such date every year thereafter shall submit
a written report to the department on a form prescribed by the
superintendent, certifying that such automated teller machine facility
is in compliance with the provisions of this article or any variance or
exemption that has been granted, or if such facility is not in
compliance with such provisions, such report shall state the manner in
which such facility fails to meet such requirements, the reasons for
such non-compliance and a plan to remedy any such non-compliance.
  2. The superintendent shall report to the legislature on or before the
fifteenth day of January and annually thereafter, with respect to
compliance with this article. Such report shall include, but not be
limited to:
  (a) the number of inspections undertaken by the department in the
previous year pursuant to this section;
  (b) the number and types of violations or other instances of
non-compliance identified through such inspections and measures
undertaken by the department and banking institutions to address such
instances; and
  (c) expenses of the department incurred exclusively for the purpose of
the implementation of this section, including the number of department
personnel assigned to such purpose.

   S 75-h. Compliance with local building code and all other applicable
provisions of law. Unless otherwise provided in this article, nothing
contained in this article shall be construed to exempt or relieve any
banking institution from complying with all relevant provisions of the
local building code and all other applicable provisions of law.

   S 75-i.  Facilities not subject to this article.  The provisions of
this article shall not apply to any unenclosed automated teller machine
located in any building, structure or space whose primary purpose or
function is unrelated to banking activities, including but not limited
to supermarkets, airports, school buildings, and public buildings,
provided that such automated teller machine shall be available for use
only during the regular hours of operation of the building, structure,
or space in which such machine is located.

   S 75-j. Civil penalties.  1. Any banking institution found to be in
violation of any provision of section seventy-five-c of this article
shall correct the violation within ten business days after such finding.
Where a banking institution fails to correct said violation within such
period of time, the superintendent may in a proceeding after notice and
a hearing, require any banking institution to pay a civil penalty in a
sum not to exceed two thousand five hundred dollars for each and every
offense, provided, however, that the aggregate penalty for all offenses
with respect to any one automated teller machine facility in any one
proceeding shall not exceed ten thousand dollars. For the purposes of
this article, each violation of section seventy-five-c of this article
shall be considered a separate and distinct violation.
  2. Any banking institution found to be in violation of the provisions
of section seventy-five-g of this article shall be liable for a civil
penalty of not more than one thousand dollars for each automated teller
machine facility for which a report has not been filed. Any banking
institution which makes a material false statement or material omission
in any report filed pursuant to section seventy-five-g of this article
shall be liable for a civil penalty of not more than five thousand
dollars for each such report.
  3. Whenever payment of a civil penalty is required under this article,
the superintendent shall execute a written order to that effect. A copy
of such order shall be filed in the office of the department and a
second copy shall, within three days of execution, be served upon such
banking institution either personally or by registered or certified
mail, return receipt requested, directed to the banking institution`s
principal place of business. Such order may be reviewed in the manner
provided by article seventy-eight of the civil practice law and rules.
Such special proceedings for review as authorized by such section must
be commenced within thirty days from the service of such order. Such
section shall in no way limit any of the powers granted to the
superintendent under any provision of this chapter.

   S 75-k. Collection of penalties. The superintendent shall have the
discretion to report to the attorney general any failure, after due
notice, to make payments of penalties incurred under this article. The
attorney general shall, thereupon, in the name of the superintendent, or
of the people of the state, institute such actions or proceedings as the
facts may warrant.

   S 75-l. Preemption. 1. Except as provided in subdivision two of this
section, this article shall supersede and preempt all rules,
regulations, codes, statutes or ordinances of all cities, counties,
municipalities, and local agencies regarding customer safety at
automated teller machine facilities.
   2. To the extent that any security measures inconsistent with or in
addition to the provisions of section seventy-five-c of this article are
in effect, on the date on which this article becomes a law, in any city
having a population of one million or more, pursuant to any rules,
regulations, codes, statutes or ordinances regarding customer safety at
automated teller machine facilities duly enacted by such city on or
before the date on which this article becomes a law, such security
measures shall continue to be required within such city; provided,
however, that the enforcement of any such security measures shall be
enforced by the superintendent.

   S 75-m. Variances and exemptions from automated teller machine
security measures. 1. Except in cities having a population of one
million or more, and in accordance with the guidelines set forth in this
article, the superintendent, pursuant to rules and regulations
promulgated by the superintendent, and upon written request of a banking
institution, may approve variances which provide substitute security
measures that are substantially as safe as the requirements of any of
the security measures contained in this article, or exemptions from such
measures, with respect to an automated teller machine facility or
facilities operated by such banking institution;
  2. In no event, however, shall the superintendent vary or exempt any
such measures unless he or she shall have received the following items,
in form and substance satisfactory to him or her:
  (a) a resolution or declaration of the governing body of the city,
village, or town in which such automated teller machine facility is
located consenting to any such variance or exemption; and
  (b) written certification from the banking institution`s security
officer, appointed in accordance with federal law, that, in his or her
professional judgment, either the variance will provide security
measures which are substantially as safe as those which are otherwise
required by this article or the exemption is warranted, as applicable;
and
  (c) in the event the request for any such variance or exemption is
premised upon the impracticability or burdensome expense that would
result from compliance with the security provisions contained in this
article, and such impracticability or expense is attributable to the
manner in which the building in which such automated teller machine
facility is, or is to be, located, constructed, configured or otherwise
situated, written certification to such effect from an expert with
competence in the areas of renovation and/or design, as may be
appropriate; and
  (d) such other evidence or information as the superintendent may, in
his or her sole discretion, deem appropriate or necessary.

   S 75-n. Rules and regulations. The superintendent shall promulgate
such rules and regulations as necessary to define and implement the
provisions of this article.

   S 75-o. Severability. If any word, phrase, clause, sentence,
paragraph, section or part of this article shall be adjudged by any
court of competent jurisdiction to be invalid, such judgment shall not
affect, impair or invalidate the remainder thereof, but shall be
confined in its operation to the word, phrase, clause, sentence,
paragraph, section or part thereof directly involved in the controversy
in which judgment shall have been rendered.