[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1799 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1799

 To amend the Truth in Lending Act, to establish fair and transparent 
practices related to the marketing and provision of overdraft coverage 
      programs at depository institutions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 19, 2009

Mr. Dodd (for himself, Mr. Schumer, Mr. Reed, Mr. Brown, Mr. Levin, Mr. 
  Merkley, Mr. Menendez, and Mr. Reid) introduced the following bill; 
which was read twice and referred to the Committee on Banking, Housing, 
                           and Urban Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend the Truth in Lending Act, to establish fair and transparent 
practices related to the marketing and provision of overdraft coverage 
      programs at depository institutions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness and Accountability in 
Receiving Overdraft Coverage Act of 2009'' or the ``FAIR Overdraft 
Coverage Act''.

SEC. 2. FINDINGS AND PURPOSE.

    Section 102 of the Truth in Lending Act (15 U.S.C. 1601) is amended 
by adding at the end the following:
    ``(c) Fairness and Accountability in Overdraft Coverage.--
            ``(1) Findings.--The Congress also finds that--
                    ``(A) overdraft coverage is a form of short-term 
                credit that depository institutions provide for 
                consumer transaction accounts. Historically, depository 
                institutions covered overdrafts for a fee on an ad hoc 
                basis;
                    ``(B) with the growth in specially designed 
                software programs and in consumer use of debit cards, 
                overdraft coverage for a fee has become more prevalent;
                    ``(C) most depository institutions do not notify 
                consumers when adding this feature to their transaction 
                accounts, and some do not permit consumers to eliminate 
                this feature from such accounts;
                    ``(D) most depository institutions collect a high 
                flat fee, including for small dollar transactions, each 
                time the institution covers an overdraft, in some cases 
                impose multiple overdraft coverage fees within a single 
                day, and many charge additional fees for each day 
                during which the account remains overdrawn; and
                    ``(E) such abusive and misleading practices in 
                connection with overdraft coverage fees have deprived 
                consumers of meaningful choices about their accounts 
                and placed significant financial burdens on low- and 
                moderate-income consumers.
            ``(2) Purpose.--It is the purpose of this title to protect 
        consumers by limiting abusive and misleading overdraft coverage 
        fees and practices, and by providing meaningful disclosures and 
        consumer choice in connection with overdraft coverage fees.''.

SEC. 3. DEFINITIONS.

    (a) Additional Definitions.--Section 103 of the Truth in Lending 
Act (15 U.S.C. 1602) is amended by adding at the end the following:
    ``(cc) Definitions Relating to Overdraft Coverage.--
            ``(1) Check.--The term `check' has the same meaning as in 
        section 3(6) of the Check Clearing for the 21st Century Act (12 
        U.S.C. 5001 et seq.), other than a travelers check.
            ``(2) Depository institution.--The term `depository 
        institution' has the same meaning as in clauses (i) through 
        (vi) of section 19(b)(1)(A) of the Federal Reserve Act (12 
        U.S.C. 461(b)(1)(A)).
            ``(3) Nonsufficient fund fee.--The term `nonsufficient fund 
        fee' means a fee or charge assessed in connection with an 
        overdraft for which a depository institution declines payment.
            ``(4) Overdraft.--The term `overdraft' means the amount of 
        a withdrawal by check or other debit from a transaction account 
        in which there are insufficient or unavailable funds in the 
        account to cover such check or debit.
            ``(5) Overdraft coverage.--The term `overdraft coverage' 
        means the payment of a check presented or other debit posted 
        against a transaction account by the depository institution in 
        which such account is held, even though there are insufficient 
        or unavailable funds in the account to cover such checks or 
        other debits.
            ``(6) Overdraft coverage fee.--The term `overdraft coverage 
        fee' means any fee or charge assessed in connection with 
        overdraft coverage, or in connection with any negative account 
        balance that results from overdraft coverage, excluding fees or 
        charges relating to overdraft lines of credit or transfers from 
        an account linked to another transaction account or line of 
        credit. Such fee shall be considered a `finance charge' for 
        purposes of section 106(a), but shall not be included in the 
        calculation of the rate of interest for purposes of section 
        107(5)(A)(vi) of the Federal Credit Union Act (12 U.S.C. 
        1757(5)(A)(vi)).
            ``(7) Overdraft coverage program.--The term `overdraft 
        coverage program' means a service under which a depository 
        institution assesses an overdraft coverage fee for overdraft 
        coverage.
            ``(8) Transaction account.--The term `transaction account' 
        has the same meaning as in section 19(b)(1)(C) of the Federal 
        Reserve Act (12 U.S.C. 461(b)(1)(C)).''.
    (b) Conforming Amendment.--Section 107(5)(A)(vi) of the Federal 
Credit Union Act (12 U.S.C. 1757(5)(A)(vi)) is amended by inserting ``, 
other than an overdraft coverage fee, as defined in section 103(cc) of 
the Truth in Lending Act (12 U.S.C. 1602(cc))'' after ``inclusive of 
all finance charges''.

SEC. 4. FAIR MARKETING AND PROVISION OF OVERDRAFT COVERAGE PROGRAMS.

    Chapter 2 of the Truth in Lending Act (15 U.S.C. 1631 et seq.) is 
amended by adding at the end the following new section:

``SEC. 140B. OVERDRAFT COVERAGE PROGRAM DISCLOSURES AND CONSUMER 
              PROTECTION.

    ``(a) Prohibitions.--No depository institution may engage in acts 
or practices in connection with the marketing of or the provision of 
overdraft coverage that are unfair, deceptive, or designed to evade the 
provisions of this section.
    ``(b) Marketing Disclosures.--Each depository institution that 
provides or offers to provide overdraft coverage with respect to 
transaction accounts held at that depository institution shall clearly 
and conspicuously disclose in all marketing materials for such 
overdraft coverage any overdraft coverage fees.
    ``(c) Consumer Consent Opt-In.--A depository institution may charge 
overdraft coverage fees with respect to withdrawals from automated 
teller machines or debit card transfers only if the consumer has 
consented in writing, in electronic form, or in such other form as is 
permitted under regulations of the Board.
    ``(d) Consumer Disclosures.--Each depository institution shall 
clearly disclose to each consumer covered by an overdraft protection 
program of that depository institution--
            ``(1) that--
                    ``(A) the consumer may be charged for not more than 
                one overdraft coverage fee in any single calendar month 
                and not more than 6 overdraft coverage fees in any 
                single calendar year, per transaction account; and
                    ``(B) the depository institution retains the 
                discretion to pay (without assessing an overdraft 
                coverage fee) or reject overdrafts incurred by the 
                consumer beyond the numbers described in subparagraph 
                (A);
            ``(2) information about any alternative overdraft products 
        that are available, including a clear explanation of how the 
        terms and fees for such alternative services and products 
        differ; and
            ``(3) such other information as the Board may require, by 
        rule.
    ``(e) Periodic Statements.--Each depository institution that offers 
an overdraft coverage program shall, in each periodic statement for any 
transaction account that has an overdraft coverage program feature, 
clearly disclose to the consumer the dollar amount of all overdraft 
coverage fees charged to the consumer for the relevant period and year 
to date.
    ``(f) Exclusion From Account Balance Information.--No depository 
institution may include the amount available under the overdraft 
coverage program of a consumer as part of the transaction account 
balance of that consumer.
    ``(g) Prompt Notification.--Each depository institution shall 
promptly notify consumers, through a reasonable means selected by the 
consumer, when overdraft coverage has been accessed with respect to the 
account of the consumer, not later than on the day on which such access 
occurs, including--
            ``(1) the date of the transaction;
            ``(2) the type of transaction;
            ``(3) the overdraft amount;
            ``(4) the overdraft coverage fee;
            ``(5) the amount necessary to return the account to a 
        positive balance; and
            ``(6) whether the participation of a consumer in an 
        overdraft coverage program will be terminated if the account is 
        not returned to a positive balance within a given time period.
    ``(h) Terminated or Suspended Coverage.--Each depository 
institution shall provide prompt notice to the consumer, using a 
reasonable means selected by the consumer, if the institution 
terminates or suspends access to an overdraft coverage program with 
respect to an account of the consumer, including a clear rationale for 
the action.
    ``(i) Notice and Opportunity To Cancel.--Each depository 
institution shall--
            ``(1) warn any consumer covered by an overdraft coverage 
        program who engages in a transaction through an automated 
        teller machine or a branch teller if completing the transaction 
        would trigger overdraft coverage fees, including the amount of 
        the fees; and
            ``(2) provide to the consumer the opportunity to cancel the 
        transaction before it is completed.
    ``(j) Overdraft Coverage Fee Limits.--
            ``(1) Frequency.--A depository institution may charge not 
        more than one overdraft coverage fee in any single calendar 
        month, and not more than 6 overdraft coverage fees in any 
        single calendar year, per transaction account.
            ``(2) Reasonable and proportional overdraft coverage 
        fees.--
                    ``(A) In general.--The amount of any overdraft 
                coverage fee that a depository institution may assess 
                for paying a transaction (including a check or other 
                debit) shall be reasonable and proportional to the cost 
                of processing the transaction.
                    ``(B) Safe harbor rule authorized.--The Board, in 
                consultation with the Comptroller of the Currency, the 
                Board of Directors of the Federal Deposit Insurance 
                Corporation, the Director of the Office of Thrift 
                Supervision, and the National Credit Union 
                Administration Board, may issue rules to provide an 
                amount for any overdraft coverage fee that is presumed 
                to be reasonable and proportional to the actual cost of 
                processing the transaction.
            ``(3) Posting order.--In order to minimize overdraft 
        coverage fees charged to consumers, each depository institution 
        shall post transactions with respect to transaction accounts in 
        such a manner that the consumer does not incur avoidable 
        overdraft coverage fees.
    ``(k) Debit Holds.--No depository institution may charge an 
overdraft coverage fee on any category of transaction, if the overdraft 
results solely from a debit hold amount placed on a transaction account 
that exceeds the actual dollar amount of the transaction.
    ``(l) Nondiscrimination for Not Opting In.--In implementing the 
requirements of this section, each depository institution shall provide 
to consumers who have not consented to participate in an overdraft 
coverage program, transaction accounts having the same terms, 
conditions, or other features as those that are provided to consumers 
who have consented to participate in such overdraft coverage program, 
except for features of such overdraft coverage.
    ``(m) Non-Sufficient Fund Fee Limits.--No depository institution 
may charge any non-sufficient fund fee with respect to--
            ``(1) any transaction at an automated teller machine; or
            ``(2) any debit card transaction.
    ``(n) Reports to Consumer Reporting Agencies.--No depository 
institution may report negative information regarding the use of 
overdraft coverage by a consumer to any consumer reporting agency (as 
that term is defined in section 603 of the Fair Credit Reporting Act 
(15 U.S.C. 1681a)) when the overdraft amounts and overdraft coverage 
fees are paid under the terms of an overdraft coverage program.
    ``(o) Rule of Construction.--No provision of this section may be 
construed as prohibiting a depository institution from retaining the 
discretion to pay, without assessing an overdraft coverage fee or 
charge, an overdraft incurred by a consumer.''.

SEC. 5. REGULATORY AUTHORITY OF THE BOARD.

    (a) In General.--Not later than 9 months after the date of 
enactment of this Act (except as provided in subsection (b)), the Board 
of Governors of the Federal Reserve System (in this Act referred to as 
the ``Board''), in consultation with the Comptroller of the Currency, 
the Board of Directors of the Federal Deposit Insurance Corporation, 
the Director of the Office of Thrift Supervision, and the National 
Credit Union Administration Board, shall issue such final rules and 
publish such model forms as necessary to carry out section 140B of the 
Truth in Lending Act, as added by this Act.
    (b) Board Authority Regarding Additional Warnings.--The Board may, 
by rule, after taking into account the findings of the Comptroller 
General of the United States under section 6, require warnings at 
locations such as point-of-sale transfer terminals or other locations, 
that are similar to those required under section 140B(i) of the Truth 
in Lending Act, as added by this Act, where feasible, and if the cost 
of providing such warnings does not outweigh the benefit to consumers.

SEC. 6. STUDY AND REPORT BY THE GAO.

    (a) Study.--
            (1) In general.--The Comptroller General of the United 
        States shall conduct a study regarding whether it is feasible 
        for a depository institution--
                    (A) to provide a warning to a consumer at a point-
                of-sale transfer terminal that completing a transfer 
                may trigger overdraft coverage fees; and
                    (B) to provide the consumer with the opportunity to 
                cancel the point-of-sale transfer before the 
                transaction is completed.
            (2) Considerations.--In conducting the study under this 
        subsection, the Comptroller General shall evaluate--
                    (A) the benefits to consumers of a point-of-sale 
                transfer overdraft warning and opportunity to cancel;
                    (B) the availability of technology to provide such 
                a warning and opportunity; and
                    (C) the cost of providing such warning and 
                opportunity.
    (b) Report to Congress.--Not later than 1 year after the date of 
enactment of this Act, the Comptroller General shall submit a report to 
Congress on the results of the study conducted under subsection (a).
    (c) Definitions.--As used in this section, the terms ``overdraft 
coverage program'', ``overdraft coverage fee'', and ``depository 
institution'' have the same meanings as in section 103(cc) of the Truth 
in Lending Act, as added by this Act.

SEC. 7. EFFECTIVE DATE.

    (a) In General.--This Act and the amendments made by this Act shall 
become effective 1 year after the date of enactment of this Act, 
whether or not the rules of the Board under this Act or such amendments 
are issued in final form.
    (b) Moratorium on Fee Increases.--
            (1) In general.--During the 1-year period beginning on the 
        date of enactment of this Act, no depository institution may 
        increase the overdraft coverage fees or charges assessed on 
        transaction accounts for paying a transaction (including a 
        check or other debit) in connection with an overdraft or for 
        non-sufficient funds.
            (2) Definitions.--As used in this section, the terms 
        ``depository institution'', ``overdraft'', ``overdraft coverage 
        fee'', ``transaction account'' and ``nonsufficient fund fee'' 
        have the same meanings as in section 103(cc) of the Truth in 
        Lending Act, as added by this Act.
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