CFPB planning rulemaking on overdraft, NSF fees

The Consumer Financial Protection Bureau projects that it will issue a proposed rule this month to consider whether fees charged for overdraft services are finance charges, which would subject the fees to the requirements of Regulation Z, or the Truth in Lending Act, according to the fall agency rulemaking issued by the Office of Management and Budget. The agenda outlines possible rulemaking and regulatory priorities for federal agencies in the coming months. It also shows that the bureau plans to issue a proposed rule this month that would “preliminarily identify the assessment of [nonsufficient fund]fees in certain circumstances as an unfair, deceptive, or abusive act or practice” under the Dodd-Frank Act “and impose requirements to prevent such UDAAPs.” The bureau also plans to issue a final rule to limit credit card late fees this month.

In terms of overdraft fees, the CFPB originally projected that it would commence “pre-rule” activities this fall—not issue a proposed rule, as stated in the agenda. ABA has opposed any suggestion that overdraft fees should be subject to Regulation Z. The CFPB had also previously indicated that it planned to pursue pre-rule activities with NSF fees, but the agenda shows it plans to move forward with a proposed rule. The agency didn’t provide further details on either rule.

Outside the CFPB, the Department of Labor projects April 2024 for issuance of a final rule to “update” the salary level used to determine whether an employee is subject to federal minimum wage and overtime requirements. ABA joined with 243 national, state, and local industry trade associations in September to urge the DOL to withdraw its overtime proposed rule. The Financial Crimes Enforcement Network also announced several upcoming proposed rulemakings. For the beneficial ownership information access rule, FinCEN stated that it expected the rule to be released by the end of this month.

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