NEW YORK ( TheStreet) -- U.S. retailers are bracing themselves for a less-than-stellar year, with consumer spending expected to check in at a rate lower than in 2011. But merchants, online and offline, could be getting a nice shot in the arm from an arcane rule that gives them a bigger slice of the pie from credit card sales. The National Retail Federation says retail industry sales will rise by 3.4% this year, less than the 4.2% expected at this time last year. The NRF points to a mediocre holiday shopping season as a big reason growth is down. Despite widespread agreement among U.S. economists that the economy is improving, consumers haven't gone "all in" on their own household financial forecasts -- they are holding back just enough to vex those economists and U.S. retailers. "What we witnessed during the holiday season is an indication of what we are likely to see in 2013," NRF President Matthew Shay says. "Consumers read troubling economic headlines every day and look at their bottom lines at the end of the month, and they don't like what they see. Pushing fiscal policy decisions down the road will lead to even greater uncertainty, and will continue to impact consumers' desire and ability to spend on discretionary items. The administration and congress need to pursue and enact policies that lead to growth and economic expansion, or it could be another challenging year for retailers and consumers alike." But retailers can still benefit from higher point-of-sale credit card fees -- surcharges put in place after a legal settlement between credit card carriers and U.S. retailers. So-called credit card "checkout fees" could climb as high as 4% of total consumer transactions after a deal between the nation's merchants and big card companies such as MasterCard ( MA) and Visa ( V). In a $7.3 billion settlement, retailers earned the right to charge those checkout fees to compensate for higher card swipe fees from credit card issuers. Previously, credit card firms didn't allow merchants to charge "checkout fees" to credit card consumers. The deal does not affect debit card or cash payments for purchases.
For now, big retailers and service providers say they won't add credit card surcharges to purchases, including big-name U.S. brands such as McDonald's ( MCD), Target ( TGT) and Wal-Mart ( WMT). In addition, 10 U.S. states -- California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas -- don't allow retailers to impose credit card surcharges on consumer purchases. The NRF says the deal between merchants and credit card carriers mandates that all stores in a chain must charge extra for credit card purchases, so retailers may not be able to put surcharges in place because if they're banned in the 10 states that bar them. Other industry groups, including the Electronic Payments Coalition, say the deal is evolving and there is, or will soon be, no reason why a store in Baton Rouge, La., won't add those surcharges even if a store in the same chain can't charge them in Boston. There is some history here, and it doesn't favor consumers. A similar surcharge ruling in Australia in 2003 showed consumers have reason to worry. While few retailers chose to add card charges shortly after the Aussie rule was handed down, data show that more than 30% are now charging consumers more to use credit cards. What can consumers do to fight back, or at least avoid new fees? For one, vote with your feet. It might be worth sending a note to retailers who charge such a fee (you can tell by looking at your receipt, where the card charge is a separate line item cost from your purchase) to say you're taking your business to a non-surcharging retailer. If enough consumers take a stand, retailers may back off. Otherwise, use a debit card or cash for purchase and avoid any fees altogether. In reality, the smoke is just starting to clear from the legal settlement between card providers and U.S. merchants. As the situation evolves, consumers will see which retailers charge the credit card fee and which will not. With potentially 4% of the total purchase price on the line, it's well worth keeping an eye on the issue