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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
would not be well received by the
industry at this time, and that the less
restrictive recommendation
subsequently made should adequately
solve the current marketing problem.
This rule does not impose any
additional reporting or recordkeeping
requirements on either small or large
sweet cherry handlers. As with all
Federal marketing order programs,
reports and forms are periodically
reviewed to reduce information
requirements and duplication by
industry and public sector agencies. In
addition, USDA has not identified any
relevant Federal rules that duplicate,
overlap or conflict with this rule.
AMS is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to government information and
services, and for other purposes.
In addition, the Committee meeting
was widely publicized throughout the
Washington cherry industry and all
interested persons were invited to
attend the meeting and participate in
the deliberations. Like all Committee
meetings, the May 14, 2009 meeting was
a public meeting and all entities, both
large and small, were able to express
their views on this issue.
A proposed rule concerning this
action was published in the Federal
Register on March, 8, 2010 (75 FR
10442). Copies of the rule were made
available to all Committee members and
sweet cherry handlers. The proposed
rule was also made available through
the Internet by USDA and the Office of
the Federal Register. A 60-day comment
period ending May 7, 2010, was
provided to allow interested persons to
respond to the proposal. No comments
were received.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: http://www.ams.usda.gov/
AMSv1.0/ams.fetchTemplateData.
do?template=Template
N&page=MarketingOrdersSmall
BusinessGuide. Any questions about the
compliance guide should be sent to
Antoinette Carter at the previously
mentioned address in the FOR FURTHER
INFORMATION CONTACT section.
After consideration of all relevant
matter presented, including the
information and recommendation
submitted by the Committee and other
available information, it is hereby found
that this rule, as hereinafter set forth,
will tend to effectuate the declared
policy of the Act.
It is further found that good cause
exists for not postponing the effective

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date of this rule until 30 days after
publication in the Federal Register (5
U.S.C. 553) because the 2010 cherry
harvest may start as early as the last
week in May and handlers will want to
take advantage of the potential
economic benefits of this rule. Further,
handlers are aware of this rule, which
was recommended at a public meeting.
Finally, a 60-day comment period was
provided for in the proposed rule.

Dated: May 28, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing
Service.

List of Subjects in 7 CFR Part 923

[Regulation E; Docket No. R–1343]

Cherries, Marketing agreements,
Reporting and recordkeeping
requirements.

Electronic Fund Transfers

For the reasons set forth in the
preamble, 7 CFR part 923 is amended as
follows:

■

PART 923—SWEET CHERRIES
GROWN IN DESIGNATED COUNTIES
IN WASHINGTON
1. The authority citation for 7 CFR
part 923 continues to read as follows:

■

Authority: 7 U.S.C. 601–674.

2. In § 923.322, redesignate paragraph
(e) as paragraph (d), add a new
paragraph (e), and revise the
introductory sentence of paragraph (g)
to read as follows:

■

§ 923.322 Washington cherry handling
regulation.

*

*
*
*
*
(e) Light sweet cherries marked as
premium. No handler shall handle,
except as otherwise provided in this
section, any package or container of
Rainier cherries or other varieties of
lightly colored sweet cherries marked as
premium except in accordance with the
following:
(1) Quality. 90 percent, by count, of
such cherries in any lot must exhibit a
pink-to-red surface blush and, for any
given sample, not more than 20 percent
of the cherries shall be absent a pink-tored surface blush.
(2) Pack. At least 90 percent, by
count, of the cherries in any lot shall
measure not less than 64⁄64 inch (101⁄2
row) in diameter and not more than 5
percent, by count, may be less than 61⁄64
inch (11-row) in diameter.
*
*
*
*
*
(g) Exceptions. Any individual
shipment of cherries which meets each
of the following requirements may be
handled without regard to the
provisions of paragraphs (a), (b), (c), (d),
and (e) of this section, and of §§ 923.41
and 923.55.
*
*
*
*
*

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[FR Doc. 2010–13408 Filed 6–3–10; 8:45 am]
BILLING CODE 3410–02–P

FEDERAL RESERVE SYSTEM
12 CFR Part 205

AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Final rule.
SUMMARY: On November 17, 2009, the
Board published a final rule amending
Regulation E, which implements the
Electronic Fund Transfer Act, and the
official staff commentary to the
regulation (Regulation E final rule). The
Regulation E final rule limited the
ability of financial institutions to assess
overdraft fees for paying automated
teller machine (ATM) and one-time
debit card transactions that overdraw a
consumer’s account, unless the
consumer affirmatively consents, or opts
in, to the institution’s payment of
overdrafts for those transactions. The
Board is amending Regulation E and the
official staff commentary to clarify
certain aspects of the Regulation E final
rule.
DATES: This rule is effective July 6,
2010.
FOR FURTHER INFORMATION CONTACT:
Dana E. Miller or Vivian W. Wong,
Senior Attorneys, or Ky Tran-Trong,
Counsel, Division of Consumer and
Community Affairs, at (202) 452–3667
or (202) 452–2412, Board of Governors
of the Federal Reserve System, 20th and
C Streets, NW., Washington, DC 20551.
For users of Telecommunications
Device for the Deaf (TDD) only, contact
(202) 263–4869.
SUPPLEMENTARY INFORMATION:

I. Background
In November 2009, the Board adopted
a final rule under Regulation E, which
implements the Electronic Fund
Transfer Act (EFTA), limiting a financial
institution’s ability to assess fees for
paying ATM and one-time debit card
transactions pursuant to the institution’s
overdraft service without the
consumer’s affirmative consent. The
rule was published in the Federal
Register in November 2009 and has a
mandatory compliance date of July 1,
2010. See 74 FR 59033 (November 17,
2009) (Regulation E final rule).

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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations

Since publication of the Regulation E
final rule, institutions have requested
clarification of particular aspects of the
rule and further guidance regarding
compliance with the rule. In addition,
certain technical corrections are
necessary. Accordingly, the Board
proposed to amend Regulation E and the
official staff commentary. See 75 FR
9120 (March 1, 2010).
The Board received approximately 90
comments on the proposal, including
from financial institutions and their
trade associations, as well as consumer
groups. As described in Part III of this
SUPPLEMENTARY INFORMATION, the final
rule adopts the proposal largely as
proposed, with additional commentary.
Separately, the Board is also amending
Regulation DD elsewhere in today’s
Federal Register to make certain
clarifications and conforming
amendments in light of provisions
adopted in the Regulation E final rule.
II. Statutory Authority
The EFTA, 15 U.S.C. 1693 et seq., is
implemented by the Board’s Regulation
E (12 CFR part 205). The purpose of the
act and regulation is to provide a
framework establishing the rights,
liabilities, and responsibilities of
participants in electronic fund transfer
systems. An official staff commentary
interprets the requirements of
Regulation E (12 CFR part 205 (Supp.
I)). In the SUPPLEMENTARY INFORMATION
to the Regulation E final rule, the Board
described its statutory authority and
applied that authority to the
requirements of the rule. For purposes
of this rulemaking, the Board continues
to rely on the description of its legal
authority and analysis in the Regulation
E final rule.
III. Section-by-Section Analysis

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A. Section 205.17(a)—Definition
Section 205.17(a) of the Regulation E
final rule defines the term ‘‘overdraft
service’’ for purposes of § 205.17. In
particular, § 205.17(a)(3) of the final rule
explains that the term does not include
payments of overdrafts pursuant to,
among other things, credit exempt from
Regulation Z pursuant to 12 CFR
226.3(d), which is credit secured by
margin securities in brokerage accounts
extended by Securities and Exchange
Commission or Commodity Futures
Trading Commission-registered brokerdealers. Comment 17(a)–1 provided
further guidance on this exception.
However, comment 17(a)–1
inadvertently stated that ‘‘§ 205.17(a)(3)
does not apply’’ to margin credit
transactions. As adopted, this would
mean that the exception to the

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definition of ‘‘overdraft service’’ in
§ 205.17(a)(3) does not apply to margin
credit. The Board proposed to revise
comment 17(a)–1 to eliminate the
incorrect reference. The Board did not
receive comment on this provision,
which is adopted as proposed.
B. Section 205.17(b)—Opt-In
Requirement
17(b)(1), 17(b)(4)—General Rule and
Scope of Opt-In; Notice and Opt-In
Requirements
Section 205.17(b)(1) of the Regulation
E final rule prohibits an accountholding financial institution from
assessing a fee or charge on a
consumer’s account for paying an ATM
or one-time debit card transaction that
overdraws the account, unless the
institution satisfies several
requirements, including providing
consumers notice and obtaining the
consumer’s affirmative consent to the
overdraft service. Section 205.17(b)(4)
provides an exception from the notice
and opt-in requirements of
§ 205.17(b)(1) for institutions that have
a policy and practice of declining ATM
and one-time debit card transactions for
which authorization is requested, when
the institution has a reasonable belief
that the consumer’s account has
insufficient funds at the time of the
authorization request.
Since the issuance of the Regulation
E final rule, questions have been raised
as to whether the § 205.17(b)(4)
exception would permit institutions
with such a policy and practice to assess
an overdraft fee without the consumer’s
affirmative consent if a transaction,
authorized on the belief that there are
sufficient funds, settles on insufficient
funds. To clarify the intended scope of
this provision, the Board proposed to
amend §§ 205.17(b)(1), (b)(4), and the
related commentary to explain that the
fee prohibition in § 205.17(b)(1) applies
to all institutions, and that
§ 205.17(b)(4) provides relief only from
the requirements of §§ 205.17(b)(1)(i)–
(iv), including the notice and opt-in
requirements. The proposal thus
clarified the Board’s intent that
institutions cannot assess a fee for the
payment of ATM and one-time debit
card overdrafts if the consumer does not
opt in, even if the institution has a
policy and practice of declining ATM
and one-time debit card transactions
upon a reasonable belief that an account
has insufficient funds.
Many industry commenters argued
that the Board should interpret
§ 205.17(b)(4) to exempt institutions
with a policy and practice of declining
ATM and one-time debit card

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transactions upon a reasonable belief
that an account has insufficient funds
from the fee prohibition, as well as from
the notice and opt-in requirements of
the rule. These commenters argued that
for those institutions without formal
overdraft programs, overdrafts will
occur only in circumstances outside the
institution’s control, and that consumers
should retain the responsibility to
balance their checking accounts. For
example, an institution may authorize a
one-time debit card transaction on the
reasonable belief that there are sufficient
funds in the account, but intervening
transactions, such as checks, may
reduce the available funds in the
checking account before the transaction
is presented for settlement, causing an
overdraft. Thus, these commenters
stated that § 205.17(b)(4) should be
revised to permit such institutions to
charge overdraft fees without the
consumer’s affirmative consent. Other
industry commenters disagreed with the
Board’s position, but supported the
Board’s effort to clarify the scope of the
provision. For further clarity, these
commenters suggested revisions to the
language of § 205.17(b)(4), or removal of
that provision as superfluous. Consumer
group commenters strongly supported
the proposed clarification for the
reasons expressed by the Board in its
proposal.
The final rule does not provide any
exceptions for allowing overdraft fees
for ATM and one-time debit card
transactions to be imposed without
consumer consent. For clarity, however,
the Board is deleting § 205.17(b)(4) and
instead incorporating its content into a
revised comment to § 205.17(b)(1). For
the reasons explained in the
SUPPLEMENTARY INFORMATION to the
Regulation E final rule, as well as the
March 2010 proposed rule, the Board
believes that adopting exceptions to the
fee prohibition would undermine the
consumer’s ability to understand the
institution’s overdraft practices and to
make an informed choice. 74 FR 59045;
75 FR 9121. Moreover, permitting fees
on transactions that are authorized on
sufficient funds but settle on
insufficient funds would create a
disincentive to resolve inefficiencies in
payment systems and in processing
procedures, which would not benefit
consumers.
The final rule clarifies that the
prohibition on assessing overdraft fees
under § 205.17(b)(1) applies to all
institutions, including those institutions
that have a policy and practice of
declining to authorize and pay any ATM
or one-time debit card transactions
when they have a reasonable belief at
the time of the authorization request

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that the consumer does not have
sufficient funds available to cover the
transaction.1 Section 205.17(b)(4) of the
Regulation E final rule and the proposed
amendments to that section in the
March 2010 proposal were designed to
clarify the obligations of institutions
with such a policy and practice.
However, because § 205.17(b)(1)
contains a general prohibition on
charging overdraft fees unless certain
requirements are fulfilled, the Board
concludes that it is unnecessary to
include a separate section with respect
to those institutions. Accordingly, the
final rule deletes § 205.17(b)(4) and
instead addresses this issue by adding a
comment to § 205.17(b)(1). The
placement of this provision in new
comment 17(b)(1)–1.iv does not,
however, alter the substance of the rule.
The Regulation E final rule (and in a
slightly revised iteration, the March
2010 proposed rule) also included
language in § 205.17(b)(4), and related
comment 17(b)(4)–1, explaining the
application of § 205.17(b)(4) to accounts
on an account type-by-account type
basis. These provisions were designed
to provide guidance where institutions
may follow different practices for
different types of accounts. A few
commenters suggested that the Board
revise or delete these provisions as
unnecessary because, if a financial
institution does not charge overdraft
fees on a given account for ATM or onetime debit card transactions, there
should be no obligation to comply with
the requirements of § 205.17(b)(1)(i)–
(iv). The Board agrees, and for
simplicity has deleted the language and
accompanying comment.
17(b)(1)(iv)—Confirmation
Section 205.17(b)(1)(iv) states that an
institution must provide the consumer a
confirmation of his or her opt-in choice
in writing, or electronically if the
consumer agrees, before charging
overdraft fees. The confirmation helps
ensure that a consumer intended to opt
into an institution’s overdraft service,
particularly where a consumer has
opted in by telephone, by providing the
consumer with a record of that choice.
Some institutions have asked whether
the confirmation required by
§ 205.17(b)(1)(iv) must be provided to
the consumer before the institution may
assess overdraft fees.
The Board proposed to revise
comment 17(b)–7 to clarify that an
institution may not assess any overdraft
fees or charges on the consumer’s
account until the institution has sent the
1 The Board is also adopting conforming revisions
to § 205.17(b)(1).

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written confirmation. To address
concerns about operational and
litigation risks related to tracking
compliance with the confirmation
requirement, the proposed comment
also stated that an institution complies
with § 205.17(b)(1)(iv) if it has adopted
reasonable procedures designed to
ensure that the written confirmation is
sent before fees are assessed.
Consumer group commenters argued
that fees should not be charged until
five business days after the institution
sends the customer the written
confirmation. This time frame, they
argued, would provide sufficient time
for a consumer to receive the
confirmation and to affirm his or her
choice. Industry commenters argued
that institutions should be permitted to
charge fees as soon as the consumer has
provided consent and before the written
confirmation is provided to the
consumer. These commenters also
stated that the rule should permit the
written confirmation to be provided
promptly or by the end of the business
day following the consumer’s opt-in.
The Board is adopting the comment
substantially as proposed, with
revisions designed to prevent evasion of
the confirmation requirement.
The rule does not require receipt of
the confirmation by the consumer before
an institution may impose a fee because
a consumer may not opt into an
institution’s overdraft service until the
time the service is needed. Requiring
receipt of the confirmation would delay
the consumer’s access to overdraft
funds. By contrast, permitting fees to be
charged once the confirmation is
provided allows institutions to pay the
transaction with minimal delay to the
consumer, in accordance with the
consumer’s direction. At the same time,
if fees cannot be charged until the
confirmation has been provided,
institutions would be incented to mail
or deliver the written confirmation
promptly. This would alert consumers
to their choice quickly and enable them
to revoke their choice if they did not
intend to opt in. The requirement to
provide the confirmation before
charging overdraft fees thus balances the
objective of ensuring that consumers
understand their choice with the
objective of providing consumers access
to overdraft services expeditiously when
requested.
Some industry commenters argued
that consumers may have an emergency
during non-bank hours, and need
immediate access to funds. Such
instances would presumably be rare.
Moreover, the rule does not prohibit
institutions from paying the overdraft,

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so long as an overdraft fee is not
charged.
Several commenters asked the Board
to clarify what is meant by ‘‘sent’’ when
a confirmation notice is provided in
person (for instance, at a branch). In
response, the final comment has been
revised to indicate that the confirmation
notice must be ‘‘mailed or delivered’’
(for example, by handing the consumer
the confirmation in a branch). In
addition, a few commenters suggested
that the Board revise the comment,
which references a written
confirmation, to recognize that the
confirmation may also be provided
electronically if the consumer agrees,
consistent with § 205.17(b)(1)(iv). The
final comment has been revised by
eliminating the references to ‘‘written
confirmation’’ and replacing them with
the more generic term ‘‘confirmation.’’
The Board has also received questions
as to whether the confirmation, as well
as the opt-in notice required by
§ 205.17(b)(1)(i), may be provided
orally. As specified in the Regulation E
final rule, these disclosures must be
provided in writing, or electronically if
the consumer agrees, before the
institution assesses any overdraft fees
for ATM and one-time debit card
transactions that overdraw the
consumer’s account. Further, § 205.4(a)
of Regulation E generally requires
disclosures to be clear and readily
understandable, and in a form the
consumer may keep. Oral disclosures
would not comply with the
requirements of §§ 205.17(b)(1)(i) or
(b)(1)(iv).
Upon further analysis, the Board is
concerned about possible circumvention
of the fee prohibition. The proposed
comment stated that the institution may
not assess overdraft fees until the
confirmation is sent, but it did not
expressly tie the mailing or delivery of
the confirmation to the payment of the
transaction. Therefore, the proposal
might arguably be read to permit
institutions to pay a transaction into
overdraft before the confirmation is sent
and simply wait to assess a fee on an
account until after the confirmation is
sent. As discussed below, final
comment 17(b)–7 has been revised to
clarify that fees or charges may
generally be assessed only on
transactions paid after the confirmation
has been mailed or delivered. An
interpretation tying the confirmation
with the payment of transactions is
consistent with comment 17(c)–2,
adopted in the Regulation E final rule,
which clarified that institutions may
only assess overdraft fees on

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Comment 17(b)–8—Outstanding
Negative Balance
While many institutions charge the
same per-item overdraft fee regardless of
the amount of the consumer’s negative
balance, some institutions impose tiered
fees based on the amount of the
consumer’s outstanding negative
balance at the end of the day. For
example, an institution may impose a
$10 per-item overdraft fee if the
consumer’s account is overdrawn by
less than $20, and a $25 per-item
overdraft fee if the account is overdrawn
by $20 or more. Questions have been
raised as to how overdraft fees may be
assessed in these circumstances if a
consumer has not opted into the
payment of ATM and one-time debit
card transactions, but if overdrafts may
be paid and fees assessed for other types
of transactions, such as checks and
ACH.
Proposed comment 17(b)–8 addressed
how institutions may impose tiered fees
based on the amount of the consumer’s
outstanding negative balance if a
consumer has not opted into the
payment of ATM or one-time debit card
overdrafts. In such circumstances, the
proposal stated that the fee or charge
must be based on the amount of the
negative balance attributable solely to
check, ACH, or other types of
transactions not subject to the fee
prohibition. An industry commenter
observed that the proposed treatment of
tiered fees under the comment was
inconsistent with the treatment of flat
per-item overdraft fees (that is, fees that
do not vary from transaction to

transaction) under the rule. For
example, if a consumer who has not
opted in has a beginning balance of $10,
and the institution pays a $30 point-ofsale transaction and a $20 check,
resulting in a negative balance of $40,
an institution would be permitted to
charge a flat per-item fee on the check
transaction without regard to the pointof-sale transaction. Under proposed
comment 17(b)–8, however, the
institution would be required to
disregard the $30 point-of-sale
transaction in determining the
applicable fee tier.
The commenter also argued that the
treatment of tiered fees under proposed
comment 17(b)–8 differed from the
treatment of daily or sustained, negative
balance, or other similar fees or charges
under proposed comment 17(b)–9.
Thus, the commenter argued that
proposed comment 17(b)–8 should be
revised, consistent with the treatment of
flat per-item overdraft fees and
sustained overdraft fees under comment
17(b)–9. By contrast, consumer group
commenters argued that comment
17(b)–9 should instead be modeled after
proposed comment 17(b)–8, such that
sustained overdraft fees could only be
charged if the negative balance was
attributable solely to a type of
transaction not subject to the opt-in
right.
Upon further analysis, the Board
believes that proposed comment 17(b)–
8, if adopted, could result in
unfavorable consequences for
consumers. Section 205.17(b)(1) does
not prohibit institutions from charging
flat per-item overdraft fees on checks,
ACH, and other types of transactions not
subject to the fee prohibition when a
negative balance is attributable in part
to such transactions, and in part to ATM
or one-time debit card transactions.
However, if a consumer does not opt in
and an institution charges tiered fees,
proposed comment 17(b)–8 would
require the institution to program its
systems to disregard any ATM or debit
card transaction that creates in part a
negative balance for purposes of
determining the appropriate fee tier.
There are significant operational costs
associated with disregarding amounts
overdrawn by ATM and one-time debit
card transactions under the proposed
approach to tiered fees. Therefore,
institutions may decide to charge a flat
per-item fee rather than a tiered fee.
Elimination of tiered-fee structures
could result in higher overall costs to
consumers.3 Under a tiered-fee

2 For ease of reference, a cross-reference to
comment 17(b)–7 has been added to comment
17(c)–2.

3 Because § 205.17(b)(3) prohibits variations in
account terms, any increases in overdraft fees
resulting from the elimination of a tiered-fee

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transactions paid after obtaining the
consumer’s affirmative consent.2
The Board recognizes the operational
and litigation risks related to
compliance with the confirmation
requirement. Final comment 17(b)–7
therefore provides that an institution
complies with the confirmation
requirement if it has adopted reasonable
procedures designed to ensure that
overdraft fees are assessed only in
connection with transactions paid after
the confirmation has been mailed or
delivered to the consumer. Thus, an
institution that adopts and follows such
procedures complies with the rule even
if on rare occasion, notwithstanding
such procedures, it assesses a fee before
the confirmation is mailed or delivered.
For example, an institution complies
with the rule if a computer error results
in the confirmation being mailed after
an overdraft fee is assessed.

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approach that is based on the total
amount overdrawn, consumers who
overdraw their account by a small
amount are typically assessed a reduced
fee, or fees may be waived altogether.
For example, in a tiered-fee structure, an
$8 overdraft may result in a lower-tier
$5 or $10 fee—or no fee at all—instead
of a flat $25 or $30 per-item fee. In many
cases, the lower-tier fee is more
proportional to the amount overdrawn
than the flat per-item fee, which may
substantially exceed the amount
overdrawn. In such cases, consumers
benefit from the lower costs associated
with lower-tier fees.
Therefore, final comment 17(b)–8 has
been revised for consistency with the
treatment of flat per-item fees under the
rule. Comment 17(b)–8 states that if a
fee or charge is based on the amount of
the outstanding negative balance, the
rule prohibits the assessment of any
such fee if the negative balance is solely
attributable to an ATM or one-time debit
card transaction, unless the consumer
has opted into the institution’s overdraft
service for ATM or one-time debit card
transactions. However, the comment
explains that the rule does not prohibit
an institution from assessing such a fee
if the negative balance is attributable in
whole or in part to a check, ACH, or
other type of transaction not subject to
the fee prohibition in § 205.17(b)(1).
Comment 17(b)–9—Daily or Sustained
Overdraft, Negative Balance, or Similar
Fees or Charges
Some institutions assess daily or
sustained overdraft, negative balance, or
similar fees or charges when a consumer
has overdrawn an account and has not
repaid the amount overdrawn within a
specified period of time. For example, if
a consumer overdraws his or her
account by $30, the institution may
assess an overdraft fee of $20. If the
consumer does not repay the resulting
negative $50 balance by the fifth day,
the institution may assess an additional
$20 sustained overdraft fee.
In certain circumstances, as discussed
above, an ATM or one-time debit card
transaction may overdraw a consumer’s
account, even if the consumer has not
opted into the payment of such
overdrafts. The proposal addressed
whether the prohibition in
§ 205.17(b)(1) against assessing overdraft
fees on ATM and one-time debit card
transactions where the consumer has
not opted in applies to fees for daily or
sustained overdrafts or negative
balances.
structure would also apply to consumers who have
opted in.

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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
A consumer who has not opted into
the payment of ATM and one-time debit
card overdrafts may sometimes
overdraw his or her account as a
consequence of the payment both of
these transactions and of check, ACH, or
other types of transactions not subject to
the fee prohibition in § 205.17(b)(1). The
proposal also addressed whether a daily
or sustained overdraft, negative balance,
or similar fee or charge may be assessed
if an account is overdrawn based in part
on an ATM or one-time debit card
transaction and in part to a check, ACH,
or other type of transaction not subject
to the fee prohibition.
Proposed comment 17(b)–9 explained
that for consumers who do not opt into
the payment of ATM and one-time debit
card overdrafts, where a negative
balance is attributable solely to an ATM
or one-time debit card transaction, the
rule prohibits the assessment of such
sustained overdraft fees. However,
where the consumer’s negative balance
is attributable in part to a check, ACH,
or other type of transaction not subject
to the fee prohibition in § 205.17(b)(1),
and in part to an ATM or one-time debit
card transaction, the proposed comment
explained that an institution is not
prohibited from assessing a daily or
sustained overdraft, negative balance, or
similar fee or charge, even if the
consumer has not opted in. The
proposed comment included three
examples illustrating how fees may be
applied when a negative balance is
attributable in part to a check, ACH, or
other type of transaction not subject to
the fee prohibition. These examples
were based on certain assumptions,
including assumptions regarding the
posting order of debits from the account
and the allocation of subsequent
deposits to those debits.
Consumer group commenters objected
to the proposed comment, arguing that
sustained overdraft and negative
balance fees should be prohibited unless
the negative balance is attributable
solely to check, ACH or other
transactions not subject to the fee
prohibition. Industry commenters
supported the proposed clarification as
consistent with the final rule. However,
these commenters objected to the
proposed examples, arguing that
because institutions generally do not
have a posting order policy for deposits,
the examples should not address
deposit allocation.
The final rule adopts the proposed
clarification substantively as proposed.
However, the rule also adds a new
comment 17(b)–9.iii containing an
alternative approach for compliance
with the fee prohibition in § 205.17(b)(1)
that does not require the institution to

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consider allocation of deposits to debits.
This approach, discussed in more detail
below, facilitates compliance for
institutions that do not have deposit
allocation policies, while potentially
resulting in fewer fees for consumers.
Under the Regulation E final rule,
consumers who do not opt in may not
be assessed overdraft fees for paying
ATM or one-time debit card
transactions, including daily or
sustained overdraft, negative balance, or
similar fees or charges. Consumers who
do not opt in may reasonably expect not
to incur per-item overdraft fees for ATM
and one-time debit card transactions,
even if such transactions overdraw their
accounts. Similarly, such consumers
would reasonably expect not to incur
daily or sustained overdraft, negative
balance, or similar fees or charges due
to these transactions. Comment 17(b)–
9.i explains that if a consumer has not
opted into the institution’s overdraft
service for ATM and one-time debit card
transactions, the fee prohibition in
§ 205.17(b)(1) applies to all overdraft
fees or charges for paying those
transactions, including but not limited
to daily or sustained overdraft, negative
balance, or similar fees or charges. Thus,
where a consumer’s negative balance is
attributable solely to an ATM or onetime debit card transaction, the rule
prohibits the assessment of such
sustained overdraft fees if the consumer
has not opted in. For example, if a
consumer who has not opted in has a
$50 account balance, and the institution
nonetheless pays a $60 debit card
transaction (and no other transactions
occur), the institution may not charge
any overdraft fees, including a daily or
sustained overdraft, negative balance, or
similar fee or charge, for paying that
debit card transaction.
The Regulation E final rule applies
solely to overdraft fees imposed in
connection with ATM and one-time
debit card transactions. It does not
apply to overdraft fees imposed in
connection with other types of
transactions, including check, ACH, and
recurring debit card transactions. As a
result, the rule does not prohibit
institutions from imposing daily or
sustained overdraft, negative balance, or
similar fees or charges associated with
paying overdrafts for transactions not
covered by the final rule. For example,
where a consumer has a $50 account
balance, and the institution pays a $60
check, the rule does not prohibit the
institution from charging a per-item
overdraft fee, as well as a daily or
sustained, negative balance, or similar
fee or charge if a negative balance
remains outstanding.

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Comment 17(b)–9.i clarifies that
where the consumer’s negative balance
is attributable in part to a check, ACH,
or other type of transaction not subject
to the fee prohibition in § 205.17(b)(1),
and in part to an ATM or one-time debit
card transaction, an institution is not
prohibited from assessing a daily or
sustained overdraft, negative balance, or
similar fee or charge, even if a consumer
has not opted in.
The Board believes this result is
consistent with the general scope of the
Regulation E final rule, which prohibits
fees only with respect to ATM and onetime debit card transactions. For
example, if a consumer has a $50
account balance, and the institution
posts a one-time debit card transaction
of $60 and a check transaction of $40
that same day, the institution may
charge a per-item fee for the check
overdraft (but cannot assess any
overdraft fees for the debit card
transaction if the consumer has not
opted in). Using the same example, the
Board believes the institution may also
charge a sustained overdraft fee when
permitted by the account agreement
because the consumer’s negative
balance is attributable in part to the $40
check, assuming no other transactions
occur or deposits are made to the
account.
The comment also provides guidance
on the date on which such a fee may be
assessed. Specifically, comment 17(b)–
9.i states that the date is based on the
date on which the check, ACH, or other
type of transaction not subject to the fee
prohibition is paid into overdraft.
Because the rule does not cover checks,
ACH, or recurring debit card
transactions, the Board believes
institutions may charge per-item
overdraft fees, or sustained or other
similar fees. Nonetheless, the Board
believes it is appropriate to base the
date on which fees may be charged on
the date that the transaction not subject
to the rule is paid.
Proposed comment 17(b)–9.ii
included three examples illustrating
how fees may be applied when a
negative balance is attributable in part
to a check, ACH, or other type of
transaction not subject to the fee
prohibition in § 205.17(b)(1). The first
example demonstrated the general
application of the rule. The second
example addressed the circumstance
where a consumer with an outstanding
negative balance makes a deposit that
reduces the amount of the negative
balance, but does not bring the account
current. The third example
demonstrated how to determine the date
when fees may apply when the check,
ACH, or other type of transaction is paid

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on a different date than the ATM or onetime debit card transaction that
overdraws the account.
The proposed examples set out
certain assumptions in order to provide
clear guidance. Among the assumptions
made were that the institution posts
ATM and debit card transactions before
it posts other transactions, and that it
allocates deposits to debits in the same
order in which it posts debits. Thus, the
examples assumed that deposits made
to the account are allocated first to debit
card transactions, then to checks.
However, the rule does not require
transactions to be posted or deposits to
be allocated in the manner set forth in
the example. Institutions may post
transactions or allocate deposits as
permitted by applicable law.
As noted above, industry commenters
argued that the assumption relating to
deposit allocation order, as well as the
example in proposed comment 17(b)–
9.ii(b) that takes the allocation of
deposits into account, should be
eliminated. These commenters argued
that institutions generally do not have a
posting order policy for deposits.
Instead, commenters stated that the
examples should permit sustained fees
to be charged once the consumer has
overdrawn the account (when permitted
by the account agreement), until such
time the account is brought current.
The final rule prohibits overdraft fees
with respect to ATM and one-time debit
card transactions if the consumer has
not opted in. Therefore, institutions
must be able to determine whether a
negative balance is attributable solely to
these types of transactions, or to
transactions on which overdraft fees are
permitted. This inquiry is not a static
one, however; when the amount of the
negative balance is reduced by a deposit
but not eliminated, institutions must be
able to determine whether they can
continue charging fees and still comply
with the fee prohibition. Otherwise, if a
small-dollar check overdraft occurs at
the same time as a larger ATM or onetime debit card overdraft, a consumer
would potentially be subject to
sustained overdraft fees on the smalldollar check for an extended period of
time, even where a deposit would have
been sufficient to pay off the amount of
the check. The examples demonstrate
how an institution can make a
determination about the permissibility
of charging overdraft fees on an ongoing
basis, and are adopted generally as
proposed.
The Board recognizes, however, that
many institutions do not have specific
deposit allocation policies or practices.
Accordingly, the commentary to the
final rule includes an alternative

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approach that institutions may use to
comply with the fee prohibition in
§ 205.17(b)(1) that does not require an
institution to consider the allocation of
deposits. Specifically, comment 17(b)–
9.iii provides that, where a consumer
has not opted into the payment of ATM
or one-time debit card transaction
overdrafts, an institution may comply
with § 205.17(b)(1) by not assessing
daily or sustained overdraft, negative
balance, or similar fees or charges
unless a consumer’s negative balance is
attributable solely to checks, ACH or
other types of transactions not subject to
the fee prohibition, while that negative
balance remains outstanding. Under this
approach, the institution would not
have to consider how to allocate
subsequent deposits that reduce but do
not eliminate the negative balance. For
example, if a consumer has a negative
balance of $30, of which $10 is
attributable to a one-time debit card
transaction, an institution complies
with § 205.17(b)(1) if it does not assess
a sustained overdraft fee while that
negative balance remains outstanding.
The Board believes such an approach
will facilitate compliance for
institutions. In addition, this approach
may result in fewer fees for consumers,
because institutions would not assess
fees while that negative balance is
outstanding even if they would
otherwise be permitted to under the
examples in comment 17(b)–9.ii.
Some industry commenters requested
additional time to implement the
clarifications in proposed comment
17(b)–9. The Board recognizes that
programming systems to conform to the
final rule may raise operational and cost
concerns, and could be challenging to
implement by July 1, 2010. However,
the Board believes that by adopting the
alternative approach set forth in
comment 17(b)–9.iii, many institutions
will be able to comply by July 1, 2010.
As explained above, the final rule only
permits daily or sustained, negative
balance, or similar overdraft fees or
charges where the negative balance is
attributable in whole or in part to a type
of transaction not subject to the fee
prohibition.
17(b)(3)—Same Account Terms,
Conditions, and Features
Comment 17(b)(3)–2 provides
guidance on limited-feature deposit
account products in light of the
requirement under § 205.17(b)(3) to offer
consumers the same account terms,
conditions, and features regardless of
their opt-in choice. This comment
inadvertently included an incorrect
cross-reference. The proposal revises the
comment to omit the cross-reference. No

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comments were received on the
revision, which is adopted as proposed.
17(d)—Content and Format
The Board did not propose revisions
to § 205.17(d) and the related
commentary regarding content and
format of the opt-in notice. However,
many industry commenters asked the
Board to add commentary to clarify
certain aspects of Model Form A–9,
particularly because § 205.17(d) requires
institutions to use an opt-in notice that
is substantially similar to the model
form and that contains any applicable
content required by § 205.17(d). The
Board is adding new comments 17(d)–
3 through 17(d)–5 to address a number
of these questions. In particular, several
commenters had questions about
modifications to the tear-off form on
Model Form A–9.
Section 205.17(d)(4) requires that the
opt-in notice include the methods by
which the consumer may consent to the
overdraft service for ATM and one-time
debit card transactions. New comment
17(d)–3 explains that institutions may
tailor Model Form A–9 to the methods
offered by the institution. The comment
explains that an institution need not
provide the tear-off portion of Model
Form A–9, for example, if it is only
permitting consumers to opt in
telephonically or electronically.
In the SUPPLEMENTARY INFORMATION to
the Regulation E final rule, the Board
stated that institutions may, but are not
required, to provide a signature line or
check box where the consumer can
indicate that they decline to opt in (as
shown in the model form). Several
industry commenters requested that the
Board include this statement as a
comment. For clarity, the statement has
been included in comment 17(d)–3.
New comment 17(d)–4 states an
institution may use any reasonable
method to identify the account for
which the consumer submits the opt-in
notice. For example, the institution may
include a line for a printed name and an
account number, as shown in Model
Form A–9. Or, the institution may print
a bar code or use other tracking
information. (The comment crossreferences comment 17(b)–6, which
describes how an institution obtains a
consumer’s affirmative consent.)
Section § 205.17(d)(5) requires
institutions that offer a line of credit
subject to the Board’s Regulation Z or a
service that transfers funds from another
account of the consumer held at the
institution to cover overdrafts to state
that fact in the opt-in notice. Because
Model Form A–9 includes only a
reference to a transfer from a savings
account, two commenters suggested that

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the Board clarify the § 205.17(d)(5)
requirement. Section 205.17(d) states
that the notice required by
§ 205.17(b)(1)(i) must ‘‘include all
applicable items in this paragraph.’’
Thus, if an institution offers both a line
of credit subject to the Board’s
Regulation Z and a service that transfers
funds from another account of the
consumer held at the institution to
cover overdrafts, the institution must
state in its opt-in notice that both
alternative plans are offered. If the
institution offers one, but not the other,
it must state in its opt-in notice the
alternative plan that it offers. If the
institution does not offer either plan, it
should omit the reference to the
alternative plans. For clarity, the Board
is addressing the issue in a new
comment 17(d)–5.

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Marketing of Opt-Ins
Commenters also raised questions
about how institutions may
communicate with their customers
about consumers’ opt-in choices. Some
institutions have asked whether they
may provide supplemental materials
with the opt-in notices that describe
their overdraft services. In footnote 39 to
the Regulation E final rule, the Board
explained that institutions may provide
consumers other information about their
overdraft services and other overdraft
protection plans in a separate document
outside of the opt-in notice. See 74 FR
at 59047. However, to the extent such
additional materials promote the
payment of overdrafts under Regulation
DD, they may be subject to additional
disclosure requirements under 12 CFR
230.11(b). The Board also notes that the
opt-in notice may be combined with
other materials (e.g., in the same
mailing), but that the rule requires the
notice to be segregated from all other
information. See § 205.17(b)(1)(i).
Industry commenters also asked
whether opt-ins for multiple accounts
may be obtained on one consent form
(or in the course of obtaining opt-ins
through any other method, such as over
the phone or on-line). Any
determination as to whether an opt-in
has been obtained from a consumer in
compliance with the rule depends on
the facts and circumstances. However,
whether or not a single form is used to
obtain consumers’ opt-ins, a separate
opt-in decision must be made for each
account, and the choices must be
presented in a clear and readily
understandable manner. Thus, a
statement on the form that the
consumer’s signature acts as an opt-in
for all of the consumer’s accounts is not
permissible under the final rule.

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In addition, consumer group
commenters expressed concern
regarding certain marketing tactics that
may be used by institutions to provide
the required opt-in notices and to obtain
consumers’ opt-ins. For example, one
commenter raised concerns that
institutions may be using Short Message
Service (‘‘SMS’’) text messages as a
means to provide the opt-in notice.
Under the Regulation E final rule, the
opt-in notice must be in a form
substantially similar to Model Form A–
9 and include all of the information
specified in the rule. The notice must
also be clear and readily
understandable, and in a form the
consumer may keep. The font size,
screen size and character limitations
inherent in SMS text messaging raise
significant doubts about the ability of
SMS text messages to satisfy the
Regulation E disclosure requirements.
The Board shares commenters’
concerns about the marketing of
overdraft services, and is continuing to
monitor how institutions are marketing
opt-ins. The Board notes that under
Regulation DD, advertisements may not
be misleading or inaccurate. See 12 CFR
230.8(a). Similarly, institutions must not
market their overdraft services in a
manner that constitutes an unfair or
deceptive practice within the meaning
of the Federal Trade Commission Act,
15 U.S.C. 41 et seq.
The Board also reminds institutions
that the 2005 Joint Guidance on
Overdraft Protection Programs,4
discussed in the Regulation E final rule,
provides guidance on marketing and
communication of overdraft services, as
well as guidance regarding the
disclosure and operation of program
features. In addition to these best
practices, the Joint Guidance addresses
safety and soundness considerations
and legal risks related to offering
overdraft services to consumers. While
certain aspects of the Joint Guidance
have been superseded by subsequent
regulatory changes, institutions should
consider other aspects of the Joint
Guidance that have not been addressed
in regulations.
IV. Regulatory Analysis
Sections VII and VIII of the
SUPPLEMENTARY INFORMATION to the
Regulation E final rule set forth the
Board’s analyses under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and
the Paperwork Reduction Act of 1995
(44 U.S.C. 3506; 5 CFR part 1320
Appendix A.1). See 74 FR 59050–59052.
Because the final amendments are
4 See Interagency Guidance on Overdraft
Protection Programs, 70 FR 9127, Feb. 24, 2005.

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31671

clarifications and do not alter the
substance of the analyses and
determinations accompanying the
Regulation E final rule, the Board
continues to rely on those analyses and
determinations for purposes of this
rulemaking.
List of Subjects in 12 CFR Part 205
Consumer protection, Electronic fund
transfers, Federal Reserve System,
Reporting and recordkeeping
requirements.
Authority and Issuance
For the reasons set forth above, the
Board amends 12 CFR part 205 and the
Official Staff Commentary, as follows:

■

PART 205—ELECTRONIC FUND
TRANSFERS (REGULATION E)
1. The authority citation for part 205
continues to read as follows:

■

Authority: 15 U.S.C. 1693b.

2. Section 205.17 is amended by
revising paragraph (b)(1) and removing
paragraph (b)(4) to read as follows:

■

§ 205.17 Requirements for overdraft
services.

*

*
*
*
*
(b) Opt-in requirement. (1) General.
Except as provided under paragraph (c)
of this section, a financial institution
holding a consumer’s account shall not
assess a fee or charge on a consumer’s
account for paying an ATM or one-time
debit card transaction pursuant to the
institution’s overdraft service, unless
the institution:
*
*
*
*
*
■ 3. In Supplement I to part 205,
■ a. In Section 205.17(a), paragraph 1. is
revised.
■ b. In Section 205.17(b), paragraph 7. is
revised.
■ c. In Section 205.17(b), new
paragraphs 1.iv., 8. and 9. are added.
■ d. In Section 205.17(b)(3), paragraph
2. is revised.
■ e. In Section 205.17(b)(4), paragraph
1. is removed.
■ f. In Section 205.17(c), paragraph 2. is
revised.
■ g. In Section 205.17(d), new
paragraphs 3. through 5. are added.
Supplement I to Part 205—Official Staff
Interpretations
*

*

*

*

*

Section 205.17(a)—Requirements for
Overdraft Services
17(a) Definition
1. Exempt securities- and commoditiesrelated lines of credit. The definition of
‘‘overdraft service’’ does not include the
payment of transactions in a securities or

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commodities account pursuant to which
credit is extended by a broker-dealer
registered with the Securities and Exchange
Commission or the Commodity Futures
Trading Commission.
17(b) Opt-in Requirement

*

*

*

*

*

*

*

*

1. Scope.

*

*

iv. Application of fee prohibition. The
prohibition on assessing overdraft fees under
§ 205.17(b)(1) applies to all institutions. For
example, the prohibition applies to an
institution that has a policy and practice of
declining to authorize and pay any ATM or
one-time debit card transactions when the
institution has a reasonable belief at the time
of the authorization request that the
consumer does not have sufficient funds
available to cover the transaction. However,
the institution is not required to comply with
§§ 205.17(b)(1)(i)–(iv), including the notice
and opt-in requirements, if it does not assess
overdraft fees for paying ATM or one-time
debit card transactions that overdraw the
consumer’s account. Assume an institution
does not provide an opt-in notice, but
authorizes an ATM or one-time debit card
transaction on the reasonable belief that the
consumer has sufficient funds in the account
to cover the transaction. If, at settlement, the
consumer has insufficient funds in the
account (for example, due to intervening
transactions that post to the consumer’s
account), the institution is not permitted to
assess an overdraft fee or charge for paying
that transaction.

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*

*

*

*

*

7. Confirmation. A financial institution
may comply with the requirement in
§ 205.17(b)(1)(iv) to provide confirmation of
the consumer’s affirmative consent by
mailing or delivering to the consumer a copy
of the consumer’s completed opt-in notice, or
by mailing or delivering a letter or notice to
the consumer acknowledging that the
consumer has elected to opt into the
institution’s service. The confirmation,
which must be provided in writing, or
electronically if the consumer agrees, must
include a statement informing the consumer
of the right to revoke the opt-in at any time.
See § 205.17(d)(6), which permits institutions
to include the revocation statement on the
initial opt-in notice. An institution complies
with the confirmation requirement if it has
adopted reasonable procedures designed to
ensure that overdraft fees are assessed only
in connection with transactions paid after the
confirmation has been mailed or delivered to
the consumer.
8. Outstanding Negative Balance. If a fee or
charge is based on the amount of the
outstanding negative balance, an institution
is prohibited from assessing any such fee if
the negative balance is solely attributable to
an ATM or one-time debit card transaction,
unless the consumer has opted into the
institution’s overdraft service for ATM or
one-time debit card transactions. However,
the rule does not prohibit an institution from
assessing such a fee if the negative balance
is attributable in whole or in part to a check,
ACH, or other type of transaction not subject

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to the prohibition on assessing overdraft fees
in § 205.17(b)(1).
9. Daily or Sustained Overdraft, Negative
Balance, or Similar Fee or Charge
i. Daily or sustained overdraft, negative
balance, or similar fees or charges. If a
consumer has not opted into the institution’s
overdraft service for ATM or one-time debit
card transactions, the fee prohibition in
§ 205.17(b)(1) applies to all overdraft fees or
charges for paying those transactions,
including but not limited to daily or
sustained overdraft, negative balance, or
similar fees or charges. Thus, where a
consumer’s negative balance is solely
attributable to an ATM or one-time debit card
transaction, the rule prohibits the assessment
of such fees unless the consumer has opted
in. However, the rule does not prohibit an
institution from assessing daily or sustained
overdraft, negative balance, or similar fees or
charges if a negative balance is attributable in
whole or in part to a check, ACH, or other
type of transaction not subject to the fee
prohibition. When the negative balance is
attributable in part to an ATM or one-time
debit card transaction, and in part to a check,
ACH, or other type of transaction not subject
to the fee prohibition, the date on which such
a fee may be assessed is based on the date
on which the check, ACH, or other type of
transaction is paid into overdraft.
ii. Examples. The following examples
illustrate how an institution complies with
the fee prohibition. For each example,
assume the following: (a) The consumer has
not opted into the payment of ATM or onetime debit card overdrafts; (b) these
transactions are paid into overdraft because
the amount of the transaction at settlement
exceeded the amount authorized or the
amount was not submitted for authorization;
(c) under the account agreement, the
institution may charge a per-item fee of $20
for each overdraft, and a one-time sustained
overdraft fee of $20 on the fifth consecutive
day the consumer’s account remains
overdrawn; (d) the institution posts ATM and
debit card transactions before other
transactions; and (e) the institution allocates
deposits to account debits in the same order
in which it posts debits.
a. Assume that a consumer has a $50
account balance on March 1. That day, the
institution posts a one-time debit card
transaction of $60 and a check transaction of
$40. The institution charges an overdraft fee
of $20 for the check overdraft but cannot
assess an overdraft fee for the debit card
transaction. At the end of the day, the
consumer has an account balance of negative
$70. The consumer does not make any
deposits to the account, and no other
transactions occur between March 2 and
March 6. Because the consumer’s negative
balance is attributable in part to the $40
check (and associated overdraft fee), the
institution may charge a sustained overdraft
fee on March 6 in connection with the check.
b. Same facts as in a., except that on March
3, the consumer deposits $40 in the account.
The institution allocates the $40 to the debit
card transaction first, consistent with its
posting order policy. At the end of the day
on March 3, the consumer has an account
balance of negative $30, which is attributable

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to the check transaction (and associated
overdraft fee). The consumer does not make
any further deposits to the account, and no
other transactions occur between March 4
and March 6. Because the remaining negative
balance is attributable to the March 1 check
transaction, the institution may charge a
sustained overdraft fee on March 6 in
connection with the check.
c. Assume that a consumer has a $50
account balance on March 1. That day, the
institution posts a one-time debit card
transaction of $60. At the end of that day, the
consumer has an account balance of negative
$10. The institution may not assess an
overdraft fee for the debit card transaction.
On March 3, the institution pays a check
transaction of $100 and charges an overdraft
fee of $20. At the end of that day, the
consumer has an account balance of negative
$130. The consumer does not make any
deposits to the account, and no other
transactions occur between March 4 and
March 8. Because the consumer’s negative
balance is attributable in part to the check,
the institution may assess a $20 sustained
overdraft fee. However, because the check
was paid on March 3, the institution must
use March 3 as the start date for determining
the date on which the sustained overdraft fee
may be assessed. Thus, the institution may
charge a $20 sustained overdraft fee on
March 8.
iii. Alternative approach. For a consumer
who does not opt into the institution’s
overdraft service for ATM and one-time debit
card transactions, an institution may also
comply with the fee prohibition in
§ 205.17(b)(1) by not assessing daily or
sustained overdraft, negative balance, or
similar fees or charges unless a consumer’s
negative balance is attributable solely to
check, ACH or other types of transactions not
subject to the fee prohibition while that
negative balance remains outstanding. In
such case, the institution would not have to
determine how to allocate subsequent
deposits that reduce but do not eliminate the
negative balance. For example, if a consumer
has a negative balance of $30, of which $10
is attributable to a one-time debit card
transaction, an institution complies with the
fee prohibition if it does not assess a
sustained overdraft fee while that negative
balance remains outstanding.

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Paragraph 17(b)(3)—Same Account Terms,
Conditions, and Features

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2. Limited-feature bank accounts. Section
205.17(b)(3) does not prohibit institutions
from offering deposit account products with
limited features, provided that a consumer is
not required to open such an account because
the consumer did not opt in. For example,
§ 205.17(b)(3) does not prohibit an institution
from offering a checking account designed to
comply with state basic banking laws, or
designed for consumers who are not eligible
for a checking account because of their credit
or checking account history, which may
include features limiting the payment of
overdrafts. However, a consumer who
applies, and is otherwise eligible, for a fullservice or other particular deposit account

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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
product may not be provided instead with
the account with more limited features
because the consumer has declined to opt in.

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FEDERAL RESERVE SYSTEM
12 CFR Part 230
[Regulation DD; Docket No. R–1315]

Paragraph 17(c) Timing

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Truth in Savings

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2. Permitted fees or charges. Fees or
charges for ATM and one-time debit card
overdrafts may be assessed only for
overdrafts paid on or after the date the
financial institution receives the consumer’s
affirmative consent to the institution’s
overdraft service. See also comment 17(b)–7.
Paragraph 17(d) Content and Format

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erowe on DSK5CLS3C1PROD with RULES

3. Opt-in methods. The opt-in notice must
include the methods by which the consumer
may consent to the overdraft service for ATM
and one-time debit card transactions.
Institutions may tailor Model Form A–9 to
the methods offered to consumers for
affirmatively consenting to the service. For
example, an institution need not provide the
tear-off portion of Model Form A–9 if it is
only permitting consumers to opt-in
telephonically or electronically. Institutions
may, but are not required, to provide a
signature line or check box where the
consumer can indicate that he or she declines
to opt in.
4. Identification of consumer’s account. An
institution may use any reasonable method to
identify the account for which the consumer
submits the opt-in notice. For example, the
institution may include a line for a printed
name and an account number, as shown in
Model Form A–9. Or, the institution may
print a bar code or use other tracking
information. See also comment 17(b)–6,
which describes how an institution obtains a
consumer’s affirmative consent.
5. Alternative plans for covering overdrafts.
If the institution offers both a line of credit
subject to the Board’s Regulation Z (12 CFR
part 226) and a service that transfers funds
from another account of the consumer held
at the institution to cover overdrafts, the
institution must state in its opt-in notice that
both alternative plans are offered. For
example, the notice might state ‘‘We also offer
overdraft protection plans, such as a link to
a savings account or to an overdraft line of
credit, which may be less expensive than our
standard overdraft practices.’’ If the
institution offers one, but not the other, it
must state in its opt-in notice the alternative
plan that it offers. If the institution does not
offer either plan, it should omit the reference
to the alternative plans.
By order of the Board of Governors of the
Federal Reserve System, May 27, 2010.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 2010–13280 Filed 6–3–10; 8:45 am]
BILLING CODE 6210–01–P

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AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Final rule.
SUMMARY: On January 29, 2009, the
Board published final rules amending
Regulation DD, which implements the
Truth in Savings Act, and the official
staff commentary to the regulation. The
final rule addressed depository
institutions’ disclosure practices related
to overdraft services, including balances
disclosed to consumers through
automated systems. The Board is
amending Regulation DD and the
official staff commentary to address the
application of the rule to retail sweep
programs and the terminology for
overdraft fee disclosures, and to make
amendments that conform to the Board’s
final Regulation E amendments
addressing overdraft services, adopted
in November 2009.
DATES: The final rule is effective July 6,
2010, except for § 230.11(a)(1)(i), which
is effective October 1, 2010.
FOR FURTHER INFORMATION CONTACT:
Dana E. Miller or Vivian W. Wong,
Senior Attorneys, or Ky Tran-Trong,
Counsel, Division of Consumer and
Community Affairs, at (202) 452–3667
or (202) 452–2412, Board of Governors
of the Federal Reserve System, 20th and
C Streets, NW., Washington, DC 20551.
For users of Telecommunications
Device for the Deaf (TDD) only, contact
(202) 263–4869.
SUPPLEMENTARY INFORMATION:

I. Background
In December 2008, the Board adopted
a final rule amending Regulation DD,
which implements the Truth in Savings
Act, and the official staff commentary to
the regulation. The final rule addressed
depository institutions’ disclosure
practices related to overdraft services,
including balances disclosed to
consumers through automated systems.
The rule was published in the Federal
Register on January 29, 2009 and
became effective January 1, 2010. See 74
FR 5584 (Regulation DD final rule).1
1 The Board published a technical amendment in
April 2009 correcting a printing error with respect
to Sample Form B–10. Depository institutions must
use Sample Form B–10, or a substantially similar
form, including the box and gridlines, to provide
totals for overdraft fees and returned item fees for
the statement cycle and year-to-date. 74 FR 17768
(April 17, 2009). See § 230.11(a).

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In November 2009, the Board adopted
a final rule under Regulation E, which
implements the Electronic Fund
Transfer Act, limiting a financial
institution’s ability to assess fees for
paying ATM and one-time debit card
transactions pursuant to the institution’s
discretionary overdraft service without
the consumer’s affirmative consent to
such payment. The rule was published
in the Federal Register on November 17,
2009 and has a mandatory compliance
date of July 1, 2010. See 74 FR 59033
(Regulation E final rule).
Since publication of the two rules,
institutions and others have requested
clarification of particular aspects of the
rule and further guidance regarding
compliance with the rule. In addition,
conforming amendments to the
Regulation DD final rule are necessary
in light of certain provisions
subsequently adopted in the Regulation
E final rule. Accordingly, the Board
proposed to amend Regulation DD and
the official staff commentary. 75 FR
9126 (March 1, 2010).
The Board received twelve comments
on the proposed rule, including from
financial institutions and their trade
associations, as well as from a
consortium of consumer groups. The
final rule adopts the proposed rule
substantially as proposed, with certain
clarifications. Similarly, elsewhere in
today’s Federal Register, the Board is
amending certain aspects of the
Regulation E final rule.
II. Statutory Authority
The Truth in Savings Act, 12 U.S.C.
4301 et seq., is implemented by the
Board’s Regulation DD (12 CFR part
230). The purpose of the act and
regulation is to assist consumers in
comparing deposit accounts offered by
depository institutions, principally
through the disclosure of fees, the
annual percentage yield, the interest
rate, and other account terms. An
official staff commentary interprets the
requirements of Regulation DD (12 CFR
part 230 (Supp. I)). Credit unions are
governed by a substantially similar
regulation issued by the National Credit
Union Administration. In the
SUPPLEMENTARY INFORMATION to the
Regulation DD final rule, the Board
described its statutory authority and
applied that authority to the
requirements of the rule. For purposes
of this rulemaking, the Board continues
to rely on that legal authority and
analysis.

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