Consumer Financial Protection Circular 2024-05: Improper Overdraft Opt-In Practices

Publisher lists this guidance as withdrawn/rescinded: Consumer Financial Protection Circular 2024-05: Improper Overdraft Opt-In Practices, 89 FR 80075 (Oct. 02, 2024); withdrawn on May 12, 2025 .

80075 Federal Register/ Vol. 89, No. 191 / Wednesday, October 2, 2024 / Rules and Regulations
higher education for the purpose of
participation in internship programs for
graduate and undergraduate students in
support of the 1994 Tribal College
Program and carry out the related
authorities and responsibilities outlined
in 7 U.S.C. 2279c.
* * * * *
Subpart F—Delegations of Authority
by the Under Secretary for Farm
Production and Conservation
■5. Amend § 2.41 by adding paragraph
(a)(7) to read as follows:
§ 2.41 Chief Operating Officer, Farm
Production and Conservation Business
Center.
(a) * * *
(7) Establish programs with any
bureau of the U.S. Department of the
Interior (DOI), or with other agencies
within USDA, in support of the Service
First initiative for the purpose of
promoting customer service and
efficiency, including delegating to
employees of DOI and other USDA
agencies the authorities of the Farm
Production and Conservation Business
Center necessary to carry out projects on
behalf of USDA (43 U.S.C. 1703).
* * * * *
■6. Amend § 2.42 by adding paragraph
(a)(31) to read as follows:
§ 2.42 Administrator, Farm Service
Agency.
(a) * * *
(31) Establish programs with any
bureau of the U.S. Department of the
Interior (DOI), or with other agencies
within USDA, in support of the Service
First initiative for the purpose of
promoting customer service and
efficiency, including delegating to
employees of DOI and other USDA
agencies the authorities of the Farm
Service Agency necessary to carry out
projects on behalf of USDA (43 U.S.C.
1703).
* * * * *
■7. Amend § 2.43 by adding paragraph
(a)(5) to read as follows:
§ 2.43 Chief, Natural Resources and
Conservation Service.
(a) * * *
(5) Establish programs with any
bureau of the U.S. Department of the
Interior (DOI), or with other agencies
within USDA, in support of the Service
First initiative for the purpose of
promoting customer service and
efficiency, including delegating to
employees of DOI and other USDA
agencies the authorities of the Natural
Resources and Conservation Service
necessary to carry out projects on behalf
of USDA (43 U.S.C. 1703).
* * * * *
■8. Amend § 2.44 by adding paragraph
(a)(10) to read as follows:
§ 2.44 Administrator, Risk Management
Agency and Manager, Federal Crop
Insurance Corporation.
(a) * * *
(10) Establish programs with any
bureau of the U.S. Department of the
Interior (DOI), or with other agencies
within USDA, in support of the Service
First initiative for the purpose of
promoting customer service and
efficiency, including delegating to
employees of DOI and other USDA
agencies the authorities of the Risk
Management Agency to carry out
projects on behalf of USDA (43 U.S.C.
1703).
* * * * *
Subpart J—Delegations of Authority by
the Under Secretary for Natural
Resources and Environment
■9. Amend § 2.60 by revising paragraph
(a)(58) to read as follows:
§ 2.60 Chief, Forest Service.
(a) * * *
(58) Enter into reciprocal fire
agreements or contracts with domestic
entities. Administer reimbursements
received for fire suppression (42 U.S.C.
1856–1856e).
* * * * *
Signing Authority
The Secretary of Agriculture, Thomas
J. Vilsack, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Mary Beth Schultz,
Principal Deputy General Counsel, for
purposes of publication in the Federal
Register.
Mary Beth Schultz,
Principal Deputy General Counsel.
[FR Doc. 2024–22571 Filed 10–1–24; 8:45 am]
BILLING CODE 3410–90–P
FEDERAL RESERVE SYSTEM
12 CFR Part 201
[Docket No. R–1839]
RIN 7100 AG–80
Regulation A: Extensions of Credit by
Federal Reserve Banks
Correction
In rule document 2024–21908
beginning on page 78221 in the issue of
Wednesday, September 25, make the
following correction:
On page 78221, the Docket Number
should read as set forth above.
[FR Doc. C1–2024–21908 Filed 10–1–24; 8:45 am]
BILLING CODE 0099–10–D
CONSUMER FINANCIAL PROTECTION
BUREAU
12 CFR Chapter X
Consumer Financial Protection
Circular 2024–05: Improper Overdraft
Opt-In Practices
AGENCY: Consumer Financial Protection
Bureau.
ACTION: Consumer financial protection
circular.
SUMMARY: The Consumer Financial
Protection Bureau (CFPB) has issued
Consumer Financial Protection Circular
2024–05, titled ‘‘Improper Overdraft
Opt-In Practices.’’ In this circular, the
CFPB responds to the question, ‘‘Can a
financial institution violate the law if
there is no proof that it has obtained
consumers’ affirmative consent before
levying overdraft fees for ATM and one-
time debit card transactions?’’
DATES: The CFPB released this circular
on its website on September 17, 2024.
ADDRESSES: Enforcers, and the broader
public, can provide feedback and
comments to Circulars@cfpb.gov.
FOR FURTHER INFORMATION CONTACT:
George Karithanom, Regulatory
Implementation & Guidance Program
Analyst, Office of Regulations, at 202–
435–7700 or at: https://reginquiries.
consumerfinance.gov/. If you require
this document in an alternative
electronic format, please contact CFPB_
Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION:
Question Presented
Can a financial institution violate the
law if there is no proof that it has
obtained consumers’ affirmative consent
before levying overdraft fees for ATM
and one-time debit card transactions?
Response
Yes. A bank or credit union can be in
violation of the Electronic Fund
Transfer Act (EFTA) and Regulation E if
there is no proof that it obtained
affirmative consent to enrollment in
covered overdraft services. The form of
the records that demonstrate consumer
consent to enrollment may vary
according to the channel through which
the consumer opts into covered
overdraft services.
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80076 Federal Register/ Vol. 89, No. 191 / Wednesday, October 2, 2024 / Rules and Regulations
1
Depending on the circumstances, a financial
institution’s overdraft practices may also implicate
the CFPA’s prohibition on unfair, deceptive, or
abusive acts or practices. 12 U.S.C. 5531, 5536. See,
e.g., Consumer Financial Protection Circular 2022–
06, Unanticipated Overdraft Fee Assessment
Practices (Oct. 26, 2022).
2
12 CFR 1005.17(b)(1)(ii) & (iii).
3
12 CFR 1005.17(b)(1)(i) & (iv). 12 CFR
1005.13(b)(1) requires a person to retain evidence
of compliance with the requirements of EFTA and
Regulation E for a period of not less than two years
from the date disclosures are required to be made
or action is required to be taken. This is an
independent legal obligation, which does not
change the fact that the absence of records proving
that an opt-in occurred is suggestive that a
consumer did not opt in.
4
Electronic Fund Transfers, 74 FR 59033, 59038
(Nov. 17, 2009) (amending 12 CFR part 205).
5
See, e.g., CFPB Consent Order, In re Atlantic
Union Bank, No. 2023–CFPB–0017 (Dec. 7, 2023);
CFPB Consent Order, In re Regions Bank, No. 2015–
CFPB–0009 (Apr. 28, 2015); Supervisory Highlights,
Summer 2015 Edition, at 23, available at https://
files.consumerfinance.gov/f/201506_cfpb_
supervisory-highlights.pdf.
6
See, e.g., CFPB Consent Order, In re TD Bank,
N.A., No. 2020–BCFP–0007 (Aug. 20, 2020); CFPB
v. TCF National Bank, Stipulated Final Judgment
and Order, No. 17–cv–00166 (July 20, 2018).
Regulation E’s overdraft provisions
establish an opt-in regime, not an opt-
out regime, where the default condition
is that consumers are not enrolled in
covered overdraft services. Financial
institutions are prohibited from
charging fees for such services until
consumers affirmatively consent to
enrollment. Violations of 12 CFR
1005.17(b)(1) can be proven in part by
showing evidence that a consumer was
charged an overdraft fee on a covered
transaction where the available
evidence does not adequately validate
that the consumer opted in.
1

Regulatory Background
Regulation E implements the EFTA
and governs the assessment of certain
overdraft fees. Specifically, before a
financial institution may charge a
consumer a fee in connection with an
ATM or one-time debit transaction,
Regulation E requires the financial
institution to provide consumers with a
‘‘reasonable opportunity for the
consumer to affirmatively consent, or
opt in’’ to covered overdraft services,
and to obtain the consumer’s
‘‘affirmative consent, or opt in’’ to such
services.
2
Institutions are also required
to provide consumers with a written or
electronic notice describing the
institution’s overdraft services prior to
opt in, and to provide consumers with
confirmation of the consumer’s consent
to enrollment in writing or
electronically with a notice informing
the consumer of the right to revoke such
consent.
3
These rules do not apply to
overdraft fees charged on written
checks, recurring debit transactions, or
ACH transactions.
Analysis
As noted above, Regulation E sets
forth an opt-in, rather than opt-out,
process before financial institutions are
permitted to assess fees for covered
overdraft services. The opt-in provisions
provide that, absent affirmative
enrollment by consumers, consumers’
default status is to not be enrolled in
covered overdraft services. Regulation
E’s opt-in provisions were established
after the Federal Reserve Board found
that consumers who were automatically
enrolled in overdraft services may prefer
to ‘‘avoid fees for a service they did not
request.’’
4
Therefore, consistent with
this opt-in design, when determining
compliance with Regulation E’s opt-in
provisions, regulators and enforcers
should inspect the financial institutions’
records to determine whether there is
evidence of affirmative consent to
enrollment in covered overdraft
services.
In the CFPB’s supervisory work,
examinations have found that some
institutions have been unable to provide
evidence that consumers had opted into
overdraft coverage before they were
charged fees for ATM and one-time
debit transactions. While some
institutions maintained policies and
procedures relating to Regulation E’s
overdraft opt-in requirements,
supervisory examinations found that the
institutions were unable to show that
these policies and procedures were
actually followed with respect to
individual consumers. In response to
examination findings, institutions began
maintaining records to prove the
consumer’s affirmative consent to
enrollment in covered overdraft
services.
In supervisory and enforcement work,
the CFPB has also identified numerous
other violations of law relating to
Regulation E’s overdraft opt-in
requirements over the years. These
violations have included, for example:
the failure of institutions to obtain
consumers’ affirmative consent to
enrollment in covered overdraft
services,
5
and obtaining consumers’ opt-
in to covered overdraft services through
deceptive and abusive acts or practices.
6

The prevalence of violations related to
overdraft opt in underscores the need
for effective supervision and
enforcement of Regulation E’s overdraft
opt-in provisions.
Form of Records Evidencing Opt-In
The form of the records that
demonstrate consumer consent to
enrollment may vary according to the
channel through which the consumer
opts into covered overdraft services. For
example:
•For consumers who opt into
covered overdraft services in person or
by postal mail, a copy of a form signed
or initialed by the consumer indicating
the consumer’s affirmative consent to
opting into covered overdraft services
would constitute evidence of consumer
consent to enrollment.
•For consumers who opt into
covered overdraft services over the
phone, a recording of the phone call in
which the consumer elected to opt into
covered overdraft services would
constitute evidence of consumer
consent to enrollment.
•For consumers who opt into
covered overdraft services online or
through a mobile app, a securely stored
and unalterable ‘‘electronic signature’’
as defined in the E-Sign Act (15 U.S.C.
7006(5)) conclusively demonstrating the
specific consumer’s action to
affirmatively opt in and the date that the
consumer opted in would constitute
evidence of consumer consent to
enrollment.
About Consumer Financial Protection
Circulars
Consumer Financial Protection
Circulars are issued to all parties with
authority to enforce Federal consumer
financial law. The CFPB is the principal
Federal regulator responsible for
administering Federal consumer
financial law, see 12 U.S.C. 5511,
including the Consumer Financial
Protection Act’s prohibition on unfair,
deceptive, and abusive acts or practices,
12 U.S.C. 5536(a)(1)(B), and 18 other
‘‘enumerated consumer laws,’’ 12 U.S.C.
5481(12). However, these laws are also
enforced by State attorneys general and
State regulators, 12 U.S.C. 5552, and
prudential regulators including the
Federal Deposit Insurance Corporation,
the Office of the Comptroller of the
Currency, the Board of Governors of the
Federal Reserve System, and the
National Credit Union Administration.
See, e.g., 12 U.S.C. 5516(d), 5581(c)(2)
(exclusive enforcement authority for
banks and credit unions with $10
billion or less in assets). Some Federal
consumer financial laws are also
enforceable by other Federal agencies,
including the Department of Justice and
the Federal Trade Commission, the
Farm Credit Administration, the
Department of Transportation, and the
Department of Agriculture. In addition,
some of these laws provide for private
enforcement.
Consumer Financial Protection
Circulars are intended to promote
consistency in approach across the
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80077 Federal Register/ Vol. 89, No. 191 / Wednesday, October 2, 2024 / Rules and Regulations
various enforcement agencies and
parties, pursuant to the CFPB’s statutory
objective to ensure Federal consumer
financial law is enforced consistently.
12 U.S.C. 5511(b)(4).
Consumer Financial Protection
Circulars are also intended to provide
transparency to partner agencies
regarding the CFPB’s intended approach
when cooperating in enforcement
actions. See, e.g., 12 U.S.C. 5552(b)
(consultation with CFPB by State
attorneys general and regulators); 12
U.S.C. 5562(a) (joint investigatory work
between CFPB and other agencies).
Consumer Financial Protection
Circulars are general statements of
policy under the Administrative
Procedure Act. 5 U.S.C. 553(b). They
provide background information about
applicable law, articulate considerations
relevant to the Bureau’s exercise of its
authorities, and, in the interest of
maintaining consistency, advise other
parties with authority to enforce Federal
consumer financial law. They do not
restrict the Bureau’s exercise of its
authorities, impose any legal
requirements on external parties, or
create or confer any rights on external
parties that could be enforceable in any
administrative or civil proceeding. The
CFPB Director is instructing CFPB staff
as described herein, and the CFPB will
then make final decisions on individual
matters based on an assessment of the
factual record, applicable law, and
factors relevant to prosecutorial
discretion.
Rohit Chopra,
Director, Consumer Financial Protection
Bureau.
[FR Doc. 2024–22551 Filed 10–1–24; 8:45 am]
BILLING CODE 4810–AM–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2024–2317; Project
Identifier AD–2024–00468–T; Amendment
39–22856; AD 2024–19–14]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Airplanes
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for certain
The Boeing Company Model 777–200,
777–200LR, 777–300ER, and 777F series
airplanes. This AD was prompted by a
report of potential latent failures of the
lightning protection features for the
engine fuel feed system. This AD
requires repetitive inspections and bond
resistance measurement of the bonding
jumpers on the first fuel feed tube
installed immediately forward of the
wing front spar at each of the two
engine locations, and applicable
corrective actions. The FAA is issuing
this AD to address the unsafe condition
on these products.
DATES: This AD is effective October 17,
2024.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of October 17, 2024.
The FAA must receive comments on
this AD by November 18, 2024.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
•Federal eRulemaking Portal: Go to
regulations.gov. Follow the instructions
for submitting comments.
•Fax: 202–493–2251.
•Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
•Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
AD Docket: You may examine the AD
docket at regulations.gov by searching
for and locating Docket No. FAA–2024–
2317; or in person at Docket Operations
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
The AD docket contains this final rule,
any comments received, and other
information. The street address for
Docket Operations is listed above.
Material Incorporated by Reference:
•For Boeing material identified in
this AD, contact Boeing Commercial
Airplanes, Attention: Contractual & Data
Services (C&DS), 2600 Westminster
Blvd., MC 110–SK57, Seal Beach, CA
90740–5600; telephone 562–797–1717;
website myboeingfleet.com.
•You may view this material at the
FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
It is also available at regulations.gov
under Docket No. FAA–2024–2317.
FOR FURTHER INFORMATION CONTACT:
Samuel Dorsey, Aviation Safety
Engineer, FAA, 2200 South 216th St,
Des Moines, WA 98198; phone: 206–
231–3415; email: Samuel.J.Dorsey@
faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites you to send any
written data, views, or arguments about
this final rule. Send your comments to
an address listed under the
ADDRESSES
section. Include Docket No. FAA–2024–
2317 and Project Identifier AD–2024–
00468–T at the beginning of your
comments. The most helpful comments
reference a specific portion of the final
rule, explain the reason for any
recommended change, and include
supporting data. The FAA will consider
all comments received by the closing
date and may amend this final rule
because of those comments.
Except for Confidential Business
Information (CBI) as described in the
following paragraph, and other
information as described in 14 CFR
11.35, the FAA will post all comments
received, without change, to
regulations.gov, including any personal
information you provide. The agency
will also post a report summarizing each
substantive verbal contact received
about this final rule.
Confidential Business Information
CBI is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
(FOIA) (5 U.S.C. 552), CBI is exempt
from public disclosure. If your
comments responsive to this AD contain
commercial or financial information
that is customarily treated as private,
that you actually treat as private, and
that is relevant or responsive to this AD,
it is important that you clearly designate
the submitted comments as CBI. Please
mark each page of your submission
containing CBI as ‘‘PROPIN.’’ The FAA
will treat such marked submissions as
confidential under the FOIA, and they
will not be placed in the public docket
of this AD. Submissions containing CBI
should be sent to Samuel Dorsey,
Aviation Safety Engineer, FAA, 2200
South 216th St, Des Moines, WA 98198;
phone: 206–231–3415; email:
Samuel.J.Dorsey@faa.gov. Any
commentary that the FAA receives that
is not specifically designated as CBI will
be placed in the public docket for this
rulemaking.
Background
In 2023, the FAA received reports of
latent failures of the lightning protection
features for the engine fuel feed system
on Boeing Model 747 airplanes.
Subsequent analysis has shown that
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