Interagency Guidance on Overdraft Protection Programs

Attachment

Office of the Comptroller of the Currency

Board of Governors of the Federal Reserve System

Federal Deposit Insurance Corporation

National Credit Union Administration

Joint Guidance on Overdraft Protection Programs

February 18,2005

The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal

Reserve System (Board), Federal Deposit Insurance Corporation (FDIC), and National

Credit Union Administration (NCUA), collectively “the Agencies,” are issuing this joint

guidance concerning a service offered by insured depository institutions that is

commonly referred to as “bounced-check protection” or “overdraft protection.” This

credit service is sometimes offered on both consumer and small business transaction

accounts as an alternative to traditional ways of covering overdrafts. This joint guidance

is intended to assist insured depository institutions in the responsible disclosure and

administration of overdraft protection services, particularly those that are marketed to

consumers.[See Footnote 1]

Introduction

To protect against account overdrafts some consumers obtain an overdraft line of credit

which is subject to the disclosure requirements of the Truth in Lending Act (TILA) If a

consumer does not have an overdraft line of credit the institution may accommodate the

consumer and pay overdrafts on a discretionary ad-hoc basis Regardless of whether the

overdraft is paid institutions typically have imposed a fee when an overdraft occurs

often referred to as a nonsufficient funds or "NSF" fee Over the years, this

accommodation has become automated by many institutions Historically institutions

have not promoted this accommodation This approach has not raised significant

Concerns..

More recently, some depository institutions have offered "overdraft

protection"

programs

that, unlike the discretionary accommodation traditionally provided to those lacking a

line of credit or other type of overdraft service (e.g

ation has become automated by many institutions Historically institutions

have not promoted this accommodation This approach has not raised significant

Concerns..

More recently, some depository institutions have offered "overdraft

protection"

programs

that, unlike the discretionary accommodation traditionally provided to those lacking a

line of credit or other type of overdraft service (e.g. linked accounts) are marketed to

Footnote 1 -- Federal credit unions are already subject to certain regulatory requirements governing the establishment

and maintenance of overdraft programs. 12 CFR § 701.21(c)(3). This regulation requires a federal credit

union offering an overdraft program to adopt a written policy specifying the dollar amount of overdrafts

that the credit union will honor (per member and overall); the time limits for a member to either deposit

funds or obtain a loan to cover an overdraft; and the amount of the fee and interest rate, if any, that the

credit union will charge for honoring overdrafts. This joint guidance supplements but does not change

these regulatory requirements for federal credit unions.[End of Footnote 1]

1

consumers essentially as short-term credit facilities. These marketed programs typically

provide consumers with an express overdraft “limit” that applies to their accounts.

While the specific details of overdraft protection programs vary from institution to

institution, and also vary over time, those currently offered by institutions incorporate

some or all of the following characteristics:

•

Institutions inform consumers that overdraft protection is a feature of their accounts

and promote the use of the service. Institutions also may inform consumers of their

aggregate dollar limit under the overdraft protection program.

•

Coverage is automatic for consumers who meet the institution’s criteria (e.g., account

has been open a certain number of days; deposits are made regularly). Typically, the

institution performs no credit underwriting

s a feature of their accounts

and promote the use of the service. Institutions also may inform consumers of their

aggregate dollar limit under the overdraft protection program.

•

Coverage is automatic for consumers who meet the institution’s criteria (e.g., account

has been open a certain number of days; deposits are made regularly). Typically, the

institution performs no credit underwriting.

•

Overdrafts generally are paid up to the aggregate limit set by the institution for the

specific class of accounts, typically $100 to $500.

•

Many program disclosures state that payment of an overdraft is discretionary on the

part of the institution, and may disclaim any legal obligation of the institution to pay

any overdraft.

•

The service may extend to check transactions as well as other transactions, such as

withdrawals at automated teller machines (ATMs), transactions using debit cards,

pre-authorized automatic debits from a consumer’s account, telephone-initiated funds

transfers, and on-line banking transactions.[See Footnote 2]

•

A flat fee is charged each time the service is triggered and an overdraft item is paid.

Commonly a fee in the same amount would be charged even if the overdraft item

was not paid A daily fee also may apply for each day the account remains

overdrawn.

•

Some institutions offer closed-end loans to consumers who do not bring their

accounts to a positive balance within a specified time period. These repayment plans

allow consumers to repay their overdrafts and fees in installments.

Concerns

Aspects of the marketing, disclosure, and implementation of some overdraft protection

programs, intended essentially as short-term credit facilities, are of concern to the

Agencies

losed-end loans to consumers who do not bring their

accounts to a positive balance within a specified time period. These repayment plans

allow consumers to repay their overdrafts and fees in installments.

Concerns

Aspects of the marketing, disclosure, and implementation of some overdraft protection

programs, intended essentially as short-term credit facilities, are of concern to the

Agencies. For example, some institutions have promoted this credit service in a manner

that leads consumers to believe that it is a line of credit by informing consumers that their

account includes an overdraft protection limit of a specified dollar amount without clearly

Footnote 2 -- Transaction accounts at credit unions are called share draft accounts. For purposes of this joint guidance,

the use of the term "check" includes share drafts.[End of Footnote 2]

2

disclosing the terms and conditions of the service, including how fees reduce overdraft

protection dollar limits, and how the service differs from a line of credit.

In addition, some institutions have adopted marketing practices that appear to encourage

consumers to overdraw their accounts, such as by informing consumers that the service

may be used to take an advance on their next paycheck, thereby potentially increasing the

institutions’ credit exposure with little or no analysis of the consumer’s creditworthiness.

These overdraft protection programs may be promoted in a manner that leads consumers

to believe that overdrafts will always be paid when, in reality, the institution reserves the

right not to pay some overdrafts. Some institutions may advertise accounts with

overdraft protection coverage as “free” accounts, and thereby lead consumers to believe

that there are no fees associated with the account or the overdraft protection program.

Furthermore, institutions may not clearly disclose that the program may cover instances

when consumers overdraw their accounts by means other than check, such as at ATMs

and point-of-sale (POS) terminals

e accounts with

overdraft protection coverage as “free” accounts, and thereby lead consumers to believe

that there are no fees associated with the account or the overdraft protection program.

Furthermore, institutions may not clearly disclose that the program may cover instances

when consumers overdraw their accounts by means other than check, such as at ATMs

and point-of-sale (POS) terminals. Some institutions may include overdraft protection

amounts in the sum that they disclose as the consumer’s account “balance” (for example,

at an ATM) without clearly distinguishing the funds that are available for withdrawal

without overdrawing the account. Where the institution knows that the transaction will

trigger an overdraft fee, such as at a proprietary ATM, institutions also may not alert the

consumer prior to the completion of the transaction to allow the consumer to cancel the

transaction before the fee is triggered.

Institutions should weigh carefully the risks presented by the programs including the

credit, legal, reputation, safety and soundness, and other risks. Further, institutions

should carefully review their programs to ensure that marketing and other

communications concerning the programs do not mislead consumers to believe that the

program is a traditional line of credit or that payment of overdrafts is guaranteed, do not

mislead consumers about their account balance or the costs and scope of the overdraft

protection offered, and do not encourage irresponsible consumer financial behavior that

potentially may increase risk to the institution.

Safety & Soundness Considerations

When overdrafts are paid, credit is extended. Overdraft protection programs may expose

an institution to more credit risk (e.g., higher delinquencies and losses) than overdraft

lines of credit and other traditional overdraft protection options to the extent these

programs lack individual account underwriting

potentially may increase risk to the institution.

Safety & Soundness Considerations

When overdrafts are paid, credit is extended. Overdraft protection programs may expose

an institution to more credit risk (e.g., higher delinquencies and losses) than overdraft

lines of credit and other traditional overdraft protection options to the extent these

programs lack individual account underwriting. All overdrafts, whether or not subject to

an overdraft protection program, are subject to the safety and soundness considerations

contained in this section.

Institutions providing overdraft protection programs should adopt written policies and

procedures adequate to address the credit, operational, and other risks associated with

these types of programs. Prudent risk management practices include the establishment of

express account eligibility standards and well-defined and properly documented dollar

limit decision criteria. Institutions also should monitor these accounts on an ongoing

3

basis and be able to identify consumers who may represent an undue credit risk to the

institution. Overdraft protection programs should be administered and adjusted, as

needed, to ensure that credit risk remains in line with expectations. This may include,

where appropriate, disqualification of a consumer from future overdraft protection.

Reports sufficient to enable management to identify, measure, and manage overdraft

volume, profitability, and credit performance should be provided to management on a

regular basis.

Institutions also are expected to incorporate prudent risk management practices related to

account repayment and suspension of overdraft protection services. These include the

establishment of specific timeframes for when consumers must pay off their overdraft

balances

ure, and manage overdraft

volume, profitability, and credit performance should be provided to management on a

regular basis.

Institutions also are expected to incorporate prudent risk management practices related to

account repayment and suspension of overdraft protection services. These include the

establishment of specific timeframes for when consumers must pay off their overdraft

balances. For example, there should be established procedures for the suspension of

overdraft services when the account holder no longer meets the eligibility criteria (such

as when the account holder has declared bankruptcy or defaulted on another loan at the

bank) as well as for when there is a lack of repayment of an overdraft. In addition,

overdraft balances should generally be charged off when considered uncollectible, but no

later than 60 days from the date first overdrawn.[See Footnote 3] In some cases, an institution may allow

a consumer to cover an overdraft through an extended repayment plan when the

consumer is unable to bring the account to a positive balance within the required time

frames. The existence of the repayment plan, however, would not extend the charge-off

determination period beyond 60 days (or shorter period if applicable) as measured from

the date of the overdraft. Any payments received after the account is charged off (up to

the amount charged off against allowance) should be reported as a recovery.

Some overdrafts are rewritten as loan obligations in accordance with an institution's loan

policy and supported by a documented assessment of that consumer's ability to repay

days (or shorter period if applicable) as measured from

the date of the overdraft. Any payments received after the account is charged off (up to

the amount charged off against allowance) should be reported as a recovery.

Some overdrafts are rewritten as loan obligations in accordance with an institution's loan

policy and supported by a documented assessment of that consumer's ability to repay. In

those instances, the charge-off timeframes described in the Federal Financial Institutions

Examination Council (FFIEC) Uniform Retail Credit Classification and Account

Management Policy would apply.[See Footnote 4]

With respect to the reporting of income and loss recognition on overdraft protection

programs, institutions should follow generally accepted accounting principles (GAAP)

and the instructions tor the Reports of Condition and Income (Call Report), and NCUA

5300 Call Report. Overdraft balances should be reported on regulatory reports as loans.

Accordingly, overdraft losses should be charged off against the allowance for loan and

tease losses. The Agencies expect all institutions to adopt rigorous loss estimation

processes to ensure that overdraft fee income is accurately measured. Such methods man

include providing loss allowances for uncollectible fees or, alternatively, only

recognizing that portion of earned fees estimated to be collectible.[See Footnote 5] The procedures for

estimating an adequate allowance should be documented in accordance with the Policy

Footnote 3 -- Federal credit unions are required by regulation to establish a time limit not to exceed 45 calendar days

for a member to either deposit funds or obtain an approved loan from the credit union to cover each

overdraft. 12 CFR § 701.21(c)(3).[End of Footnote 3]

Footnote 4 -- For federally insured credit unions, charge-off policy for booked loans is described in NCUA Letter to

Credit Unions No

-- Federal credit unions are required by regulation to establish a time limit not to exceed 45 calendar days

for a member to either deposit funds or obtain an approved loan from the credit union to cover each

overdraft. 12 CFR § 701.21(c)(3).[End of Footnote 3]

Footnote 4 -- For federally insured credit unions, charge-off policy for booked loans is described in NCUA Letter to

Credit Unions No. 03-CU-01, "Loan Charge-off Guidance," dated January 2003.[End of Footnote 4]

Footnote 5 -- Institutions may charge off uncollected overdraft fees against the allowance for loan and lease losses if

such fees are recorded with overdraft balances as loans and estimated credit losses on the fees are provided

for in the allowance for loan and lease losses.[End of Footnote 5]

Statement on the Allowance for Loan and Lease Losses Methodologies and

Documentation for Banks and Savings Institutions.[See Footnote 6]

If an institution advises account holders of the available amount of overdraft protection,

for example, when accounts are opened or on depositors' account statements or ATM

receipts, the institution should report the available amount of overdraft protection with

legally binding commitments for Call Report and NCUA 5300 Call Report purposes.

These available amounts, therefore should be deported as "unused commitments" in

regulatory reports.

The Agencies also expect proper ri,k-based capital treatment of outstanding overdrawn

balances and unused commitments.[See Footnote 7] Overdraft balances should be risk-weighted

according to the obligor Under the federal banking agencies' risk-based capital

guidelines the capital charge on the unused portion of commitments generally is based

on an off-balance sheet credit conversion factor and the risk weight appropriate to the

obligor

apital treatment of outstanding overdrawn

balances and unused commitments.[See Footnote 7] Overdraft balances should be risk-weighted

according to the obligor Under the federal banking agencies' risk-based capital

guidelines the capital charge on the unused portion of commitments generally is based

on an off-balance sheet credit conversion factor and the risk weight appropriate to the

obligor. In general, these guidelines provide that the unused portion of a commitment is

subject to a zero percent credit conversion factor if the commitment has an original

maturity of one year or less, or a 50 percent credit conversion factor if the commitment

has an original maturity over one year. Under these guidelines, a zero percent conversion

factor also applies to the unused portion of a "retail credit card line" or "related plan" if it

is unconditionally cancelable by the institution in accordance with applicable law.[See Footnote 8] The

phrase "related plans" in these guidelines includes overdraft checking plans. The

Agencies believe that the overdraft protection programs discussed in this joint guidance

fall within the meaning of "related plans" as a type of "overdraft checking plan" for the

purposes of the federal banking agencies' risk-based capital guidelines. Consequently,

overdraft protection programs that are unconditionally cancelable by the institution in

accordance with applicable law would qualify for a zero percent credit conversion factor.

Institutions entering into overdraft protection contracts with third-party vendors must

conduct thorough due diligence reviews prior to signing a contract. The interagency

guidance contained in the November 2000 Risk Management of Outsourced Technology

Services outlines the Agencies' expectations for prudent practices in this area

law would qualify for a zero percent credit conversion factor.

Institutions entering into overdraft protection contracts with third-party vendors must

conduct thorough due diligence reviews prior to signing a contract. The interagency

guidance contained in the November 2000 Risk Management of Outsourced Technology

Services outlines the Agencies' expectations for prudent practices in this area.

Legal Risks

Overdraft protection programs must comply with all applicable federal laws and

regulations some of which are outlined below State laws also may be applicable

including usury and criminal laws and laws on unfair or deceptive acts or practices It is

important that institutions have their overdraft protection programs reviewed by counsel

Footnote 6 --Issued by the Board, FDIC, OCC, and Office of Thrift Supervision. The NCUA provided similar

guidance to credit unions in Interpretive Ruling and Policy Statement 02-3 "Allowance for Loan and Lease

Losses Methodologies and Documentation for Federally Insured Credit Unions," 67 FR 37445, May 29,

2002.[End of Footnote 6]

Footnote 7 -- Federally insured credit unions should calculate risk-based net worth in accordance with the rules

contained in 12 CFR Part 702.[End of Footnote 7]

Footnote 8 -- See 12 CFR Part 3, Appendix A, Section 3 (b)(5) (OCC); 12 CFR Part 208, Appendix A, Section III.D.5

(Board); and 12 CFR Part 325, Appendix A, Section II.D.5(FDIC).[End of Footnote 8]

5

May 29,

2002.[End of Footnote 6]

Footnote 7 -- Federally insured credit unions should calculate risk-based net worth in accordance with the rules

contained in 12 CFR Part 702.[End of Footnote 7]

Footnote 8 -- See 12 CFR Part 3, Appendix A, Section 3 (b)(5) (OCC); 12 CFR Part 208, Appendix A, Section III.D.5

(Board); and 12 CFR Part 325, Appendix A, Section II.D.5(FDIC).[End of Footnote 8]

5

for compliance with all applicable laws prior to implementation. Further, although the

guidance below outlines federal laws and regulations as of the date this joint guidance is

published, applicable laws and regulations are subject to amendment. Accordingly,

institutions should monitor applicable laws and regulations for revisions and to ensure

that their overdraft protection programs are fully compliant.

Federal Trade Commission Act / Advertising Rules

Section 5 of the Federal Trade Commission Act (FTC Act) prohibits unfair or deceptive

acts or practices.[See Footnote 9] The banking agencies enforce this section pursuant to their authority

en section 8 of the Federal Deposit Insurance Act, 12 U.S.C § 1818.[See Footnote 10] An act or practice

is unfair if it causes or is likely to cause substantial injury to consumers that is hot

reasonably avoidable by consumers themselves and not outweighed by countervailing

benefits to consumers or to competition. An act or practice is deceptive if, in general, it is

a representation, omission, or practice that is likely to mislead a consumer acting

reasonably under the circumstances, and the representation, omission, or practice is

material.

In addition, the NCUA has promulgated similar rules that prohibit federally insured credit

unions from using advertisements or other representations that are inaccurate or

misrepresent the services on contracts offered.[See Footnote 11] These regulations are broad enough to

prohibit federally insured credit unions from making any false representations to the

public regarding their deposit accounts

ddition, the NCUA has promulgated similar rules that prohibit federally insured credit

unions from using advertisements or other representations that are inaccurate or

misrepresent the services on contracts offered.[See Footnote 11] These regulations are broad enough to

prohibit federally insured credit unions from making any false representations to the

public regarding their deposit accounts.

Overdraft protection programs may raise issues under either the FTC Act or in

connection with federally insured credit unions, the NCUA's advertising rules, depending

upon how the programs are marketed and implemented. To avoid engaging in deceptive,

inaccurate, misrepresentative, or unfair practices institutions should closely review all

aspects of their overdraft protection programs especially any materials that inform

consumers about the programs

Truth in Lending Act

TILA and Regulation Z require creditors to give cost disclosures for extensions of

consumer credit[See Footnote 12] TILA and the regulation apply to creditors that regularly extend

consumer credit that is subject to a finance charge or is payable by written tgreement in

more than four installments.[See Footnote 13]

Under Regulation Z, fees for paying overdraft items currently are not considered finance

charges if the institution has not agreed in writing to pay overdrafts.[See Footnote 14] Even where the

Footnote 9 -- 15 U.S.C. § 45.[End of Footnote 9]

Footnote 10 -- See OCC Advisory Letter 2002-3 (March 2002), and joint Board and FDIC Guidance on Unfair or

Deceptive Acts or Practices by State-Chartered Banks (March 11, 2004).[End of Footnote 10]

Footnote 11 -- 12CFR § 740.2.[End of Footnote 11]

Footnote 12 -- 15 U.S.C §§ 1601 et seq TILA is implemented by Regulation Z. 12 CFR Part 226. [End of Footnote 12]

Footnote 13 -- See 15 U.S.C. § 1602(f) and 12 CFR 226.2(a)(17). Institutions should be aware that whether a written

agreement exists is a matter of state law

r Practices by State-Chartered Banks (March 11, 2004).[End of Footnote 10]

Footnote 11 -- 12CFR § 740.2.[End of Footnote 11]

Footnote 12 -- 15 U.S.C §§ 1601 et seq TILA is implemented by Regulation Z. 12 CFR Part 226. [End of Footnote 12]

Footnote 13 -- See 15 U.S.C. § 1602(f) and 12 CFR 226.2(a)(17). Institutions should be aware that whether a written

agreement exists is a matter of state law. See, e.g., 12 CFR § 226.5.[End of Footnote 13]

Footnote 14 -- See 12 CFR 226.4(c)(3). Traditional lines of credit, which generally are subject to a written agreement,

do not fall under this exception.[End of Footnote 14]

6

institution agrees in writing to pay overdrafts as part of the deposit account agreement,

fees assessed against a transaction account for overdraft protection services are finance

charges only to the extent the fees exceed the charges imposed for paying or returning

overdrafts on a similar transaction account that does not have overdraft protection.

Some financial institutions also offer overdraft repayment loans to consumers who are

unable to repay their overdrafts and bring their accounts to a positive balance within a

specified time period.[See Footnote 15] These closed-end loans will trigger Regulation Z disclosures, tor

example, if the loan is payable by written agreement in more than four installments.

Regulation Z will also be triggered where ,such closed-end loans

subject

to a finance

charge.[See Footnote 16]

Equal Credit Opportunity Act

Under the Equal Credit Opportunity Act (ECOA) and Regulation B, creditors are

prohibited from discriminating against an applicant on a prohibited basis in any aspect of

a credit transaction.[See Footnote 17] This prohibition applies to overdraft protection programs. Thus

steering or targeting certain consumers on a prohibited basis for everdraft protection

programs while offering other consumers overdraft lines of credit or other more favorable

credit products or overdraft services, will raise concerns under the ECOA

ant on a prohibited basis in any aspect of

a credit transaction.[See Footnote 17] This prohibition applies to overdraft protection programs. Thus

steering or targeting certain consumers on a prohibited basis for everdraft protection

programs while offering other consumers overdraft lines of credit or other more favorable

credit products or overdraft services, will raise concerns under the ECOA.

In addiction to the general prohibition against discrimination, the ECOA and Regulation B

contain specific rules concerning procedures and notices for credit denials and other

adverse action. Regulation B defines the term "adverse action,p and generally requires a

creditor who takes adverse action to send a notice to the consumer providing, among

other things, the reasons for the adverse action.[See Footnote 18] Some actions taken by creditors under

overdraft protection programs might constitute adverse action but would not require

notice to the consumer if the credit is deemed to be "incidental credit" as defined in

Regulation B "Incidental credit" includes consumer credit that is not subject to a finance

charge is not payable by agreement in more than four installments and is not made

pursuant to the terms of a credit card account.[See Footnote 19] Overdraft protection programs that are

not covered by TILA would generally qualify as incidental credit under Regulation B

Truth in Savings Act

Under the Truth in Savin's Act (TISA) deposit account disclosures must include the

amount of any fee that may be imposed in connection with the account and the conditions

Footnote 15 -- For federal credit unions, this time period may not exceed 45 calendar days. 12 CFR § 701.21(c)(3).[E

Footnote 15]

Footnote 16 -- See 12 CFR 226.4.[End of Footnote 16]

Footnote 17 -- 15 U.S.C. §§ 1691 et seq. The ECOA is implemented by Regulation B, 12 CFR Part 202

isclosures must include the

amount of any fee that may be imposed in connection with the account and the conditions

Footnote 15 -- For federal credit unions, this time period may not exceed 45 calendar days. 12 CFR § 701.21(c)(3).[E

Footnote 15]

Footnote 16 -- See 12 CFR 226.4.[End of Footnote 16]

Footnote 17 -- 15 U.S.C. §§ 1691 et seq. The ECOA is implemented by Regulation B, 12 CFR Part 202. The ECOA

prohibits discrimination on the basis of race, color, religion, national origin, sex, marital status, age

(provided the applicant has the capacity to contract), the fact that all or part of the applicant's income

derives from a public assistance program, and the fact that the applicant has in good faith exercised any

right under the Consumer Credit Protection Act.[End of Footnote 17]

Footnote 18 -- See 12 CFR §§ 202.2(c) and 9.[End of Footnote 18]

Footnote 19 -- See 12 CFR § 202.3(c).[End of Footnote 19]

7

20

under which the fee may be imposed.[See Footnote 20] In addition, institutions must give advance

notice to affected consumers of any change in a term that was required to be disclosed if

the change may reduce the annual percentage yield or adversely affect the consumer..

When overdraft protection services are added to an existing deposit account, advance

notice to the account holder may be required, for example, is the fee for the service

exceeds the fee for accounts that do not have the service.[See Footnote 21] In addition, TISA prohibits

institutions from making any advertisement, announcement, or solicitation relating to a

deposit account that is inaccurate or misleading re that mi,rephesentf their deposit

contracts

posit account, advance

notice to the account holder may be required, for example, is the fee for the service

exceeds the fee for accounts that do not have the service.[See Footnote 21] In addition, TISA prohibits

institutions from making any advertisement, announcement, or solicitation relating to a

deposit account that is inaccurate or misleading re that mi,rephesentf their deposit

contracts.

Since these automated and marketed overdraft protection programs did not exist when

most of the implementing regulations were issued the regulations may be reevaluated

Electronic Fund Transfer Act

The Electronic Fund Transfer Act (EFTA) and Regulation E require an institution to

provide consumers with account-opening disclosures and to send a periodic statement for

each monthly cycle in which an electronic fund transfer (EFT) has occurred and at least

quarterly if no transfer has occurred.[See Footnote 22] If under an overdraft protection program a

consumer could overdraw an account by means of an ATM withdrawal or POS debit card

transaction both are EFTs subject to EFTA and Regulation E As such periodic

statements must be readily understandable and accurate regarding debits made current

balances, and fees charged. Terminal receipts also must be readily understandable and

accurate regarding the amount of the transfer. Moreover, readily understandable and

accurate statements and receipts will help reduce the number of alleged errors that the

institution must investigate under Regulation E, which can be time-consuming and costly

to institutions.

Best Practices

Clear disclosures and explanations ,c consumers of the operation, costs, and limitations

of an overdraft protection program and appropriate management oversight of the program

are fundamental to enabling responsible use of overdraft protection

ber of alleged errors that the

institution must investigate under Regulation E, which can be time-consuming and costly

to institutions.

Best Practices

Clear disclosures and explanations ,c consumers of the operation, costs, and limitations

of an overdraft protection program and appropriate management oversight of the program

are fundamental to enabling responsible use of overdraft protection. Such disclosures

and oversight can also minimize potential consumer confusion and complaints, foster

good customer relations, and reduce credit, legal and other potential risks to the

institution Institutions that establish overdraft protection programs should as applicable

take into consideration the following best practices many of which have been

recommended or implemented by financial institutions and others as well as practices

that may otherwise be required by applicable law While the Agencies are concerned

about promoted overdraft protection programs the best practices may also be useful for

Footnote 20 -- 12 U.S.C. §§ 4301 et seq. TISA is implemented by Regulation DD at 12 CFR hart e30 for banks and

savings associations, and by NCUA's TISA regulation at 12 CFR Part 707 for federally insured credit

unions.[End of Footnote 20]

Footnote 21 -- advance change in terms notice would not be required if the consumer's account disclosures stated

that their overdraft check may or may not be paid and the same fee would apply.[End of Footnote 21]

Footnote 22 -- 15 U.S.C. §§ 1693 et seq. The EFTA is implemented by Regulation E, 12 CFR Part 205.[End of Footnote 22]

8

707 for federally insured credit

unions.[End of Footnote 20]

Footnote 21 -- advance change in terms notice would not be required if the consumer's account disclosures stated

that their overdraft check may or may not be paid and the same fee would apply.[End of Footnote 21]

Footnote 22 -- 15 U.S.C. §§ 1693 et seq. The EFTA is implemented by Regulation E, 12 CFR Part 205.[End of Footnote 22]

8

other methods of covering overdrafts. These best practices currently observed in or

recommended by the industry include:

Marketing and Communications with Consumers

•

Avoid promoting poor account management. Institutions should not market the

program in a manner that encourages routine or intentional overdrafts. Institutions

should instead present the program as a customer service that may cover inadvertent

consumer overdrafts.

•

Fairly represent overdraft protection programs and alternatives. When

informing consumers about an overdraft protection program, inform consumers

generally of other overdraft services and credit products, if any, that are available at

the institution and how the terms, including fees, for these services and products

differ. Identify for consumers the consequences of extensively using the overdraft

protection program.

•

Train staff to explain program features and other choices. Train customer service

or consumer complaint processing staff to explain their overdraft protection

program’s features, costs, and terms, including how to opt out of the service. Staff

also should be able to explain other available overdraft products offered by the

institution and how consumers may qualify for them.

•

Clearly explain discretionary nature of program. If payment of an overdraft is

discretionary, make this clear. Institutions should not represent that the payment of

overdrafts is guaranteed or assured if the institution retains discretion not to pay an

overdraft.

•

Distinguish overdraft protection services from “free” account features

e

institution and how consumers may qualify for them.

•

Clearly explain discretionary nature of program. If payment of an overdraft is

discretionary, make this clear. Institutions should not represent that the payment of

overdrafts is guaranteed or assured if the institution retains discretion not to pay an

overdraft.

•

Distinguish overdraft protection services from “free” account features.

Institutions should not promote “free” accounts and overdraft protection programs in

the same advertisement in a manner that suggests the overdraft protection program is

free of charges.

•

Clearly disclose program fees. In communications about overdraft protection

programs, clearly disclose the dollar amount of the fee for each overdraft and any

interest rate or other fees that may apply. For example, rather than merely stating that

the institution’s standard NSF fee will apply, institutions should restate the dollar

amount of any applicable fee or interest charge.

•

Clarify that fees count against the disclosed overdraft protection dollar limit.

Consumers should be alerted that the fees charged for covering overdrafts, as well as

the amount of the overdraft item, will be subtracted from any overdraft protection

limit disclosed.

•

Demonstrate when multiple fees will be charged. If promoting an overdraft

protection program, clearly disclose, where applicable, that more than one overdraft

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fee may be charged against the account per day, depending on the number of checks

presented on, and other withdrawals made from, the consumer’s account.

•

Explain impact of transaction clearing policies. Clearly explain to consumers that

transactions may not be processed in the order in which they occurred, and that the

order in which transactions are received by the institution and processed can affect

the total amount of overdraft fees incurred by the consumer.

•

Illustrate the type of transactions covered

de from, the consumer’s account.

•

Explain impact of transaction clearing policies. Clearly explain to consumers that

transactions may not be processed in the order in which they occurred, and that the

order in which transactions are received by the institution and processed can affect

the total amount of overdraft fees incurred by the consumer.

•

Illustrate the type of transactions covered. Clearly disclose that overdraft fees may

be imposed on transactions such as ATM withdrawals, debit card transactions,

preauthorized automatic debits, telephone-initiated transfers or other electronic

transfers, if applicable, to avoid implying that check transactions are the only

transactions covered.

Program Features and Operation

•

Provide election or opt-out of service. Obtain affirmative consent of consumers to

receive overdraft protection. Alternatively, where overdraft protection is

automatically provided, permit consumers to “opt out” of the overdraft program and

provide a clear consumer disclosure of this option.

•

Alert consumers before a transaction triggers any fees. When consumers attempt

to withdraw or transfer funds made available through an overdraft protection

program, provide a specific consumer notice, where feasible, that completing the

withdrawal may trigger the overdraft fees (for example, it presently may be feasible at

a branch teller window). This notice should be presented in a manner that permits

consumers to cancel the attempted withdrawal or transfer after receiving the notice.

If this is not feasible, then post notices (e.g., on proprietary ATMs) explaining that

transactions may be approved that overdraw the account and fees may be incurred.

Institutions should consider making access to the overdraft protection program

unavailable through means other than check transactions, if feasible.

•

Prominently distinguish balances from overdraft protection funds availability

f this is not feasible, then post notices (e.g., on proprietary ATMs) explaining that

transactions may be approved that overdraw the account and fees may be incurred.

Institutions should consider making access to the overdraft protection program

unavailable through means other than check transactions, if feasible.

•

Prominently distinguish balances from overdraft protection funds availability.

When disclosing a single balance for an account by any means, institutions should not

include overdraft protection funds in that account balance. The disclosure should

instead represent the consumer’s own funds available without the overdraft protection

funds included. If more than one balance is provided, separately (and prominently)

identify the balance without the inclusion of overdraft protection.

•

Promptly notify consumers of overdraft protection program usage each time

used. Promptly notify consumers when overdraft protection has been accessed, for

example, by sending a notice to consumers the day the overdraft protection program

has been accessed. The notification should identify the date of the transaction, the

type of transaction, the overdraft amount, the fee associated with the overdraft, the

amount necessary to return the account to a positive balance, the amount of time

consumers have to return their accounts to a positive balance, and the consequences

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of not returning the account to a positive balance within the given timeframe. Notify

consumers if the institution terminates or suspends the consumer’s access to the

service, for example, if the consumer is no longer in good standing.

•

Consider daily limits on the consumer’s costs. Consider imposing a cap on

consumers’ potential daily costs from the overdraft program. For example, consider

limiting daily costs from the program by providing a numerical limit on the total

overdraft transactions that will be subject to a fee per day or by providing a dollar

limit on the total fees that will be imposed per day

good standing.

•

Consider daily limits on the consumer’s costs. Consider imposing a cap on

consumers’ potential daily costs from the overdraft program. For example, consider

limiting daily costs from the program by providing a numerical limit on the total

overdraft transactions that will be subject to a fee per day or by providing a dollar

limit on the total fees that will be imposed per day.

•

Monitor overdraft protection program usage. Monitor excessive consumer usage,

which may indicate a need for alternative credit arrangements or other services, and

inform consumers of these available options.

•

Fairly report program usage. Institutions should not report negative information to

consumer reporting agencies when the overdrafts are paid under the terms of

overdraft protection programs that have been promoted by the institutions.

This concludes the text of the final Joint Guidance on Overdraft Protection Programs.

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