Agencies issue regulatory agenda addressing overdraft, NSF fees, other issues

The Biden administration today issued its Fall 2022 Semiannual Regulatory Agenda—a semiannual listing of rulemakings that departments and agencies expect to initiate or continue during the next six months. The agenda is current as of Sept. 30, 2022.

In the agenda, the Consumer Financial Protection Bureau projected that it will commence “pre-rule activity” in November to examine whether overdraft fees are finance charges, which would subject the fees to the requirements of Regulation Z. The American Bankers Association has consistently opposed any suggestion that overdraft fees are subject to Regulation Z under the applicable statute. The CFPB also projected that it will commence pre-rule activity in November to “consider new rules regarding NSF fees.” The CFPB did not indicate what rules it may be contemplating.

Other projected issuances this month include a final rule to implement section 1071 of the Dodd-Frank Act, which concerns small business lending data collection, and a proposed rule to amend the rules implementing the CARD Act related to penalty fees levied by card issuers, including the safe harbors for those penalty fees. Additionally, the bureau projected that it will begin pre-rule activity in November for potential amendments to Regulation V, which implements the Fair Credit Reporting Act, and said it expects to issue proposed rules In December requiring certain nonbanks that are under public enforcement orders to register with the agency via a public registry.

The OCC, Federal Reserve and FDIC projected March for issuance of a “joint rule to modernize the Community Reinvestment Act Regulations.” The Department of Labor projected May for issuance of a proposed rule to “update” the salary level used to determine whether an employee is subject to federal minimum wage and overtime requirements. The Financial Crimes Enforcement Network projects that it will issue a proposed rule in November to revise Customer Due Diligence requirements for financial institutions, to account for changes created by the two other rulemakings FinCEN is required to undertake to create a beneficial ownership registry.

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