CFPB Fall 2023 Rulemaking Agenda Indicates Imminent Issuance of Final Credit Card Late Fees Rule and Proposed Rules on Overdraft and NSF Fees

Editor's Note: This article, authored by John L. Culhane, Jr., Richard J. Andreano, Jr., Michael Gordon & Alan S. Kaplinsky of Ballard Spahr, previously appeared on Ballard Spahr’s Consumer Finance Monitor and is re-published here with permission. 

 

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The CFPB has released its Fall 2023 rulemaking agenda as part of the Fall 2023 Unified Agenda of Federal Regulatory and Deregulatory Actions.  The agenda’s preamble indicates that “[t]he Bureau reasonably anticipates having the regulatory matters identified [in the agenda] under consideration during the period from November 2023 to October 2024.”

Most notably, the new agenda indicates that the CFPB is expecting to release three major rulemaking items this month: a final rule on credit card late fees and proposed rules on overdraft and non-sufficient funds (NSF) fees.  (Although the agenda includes an estimated December 2024 date for issuance of a final rule on credit card late fees, in his recent testimony to Congress, Director Chopra stated that the final rule would be issued in January 2024.)  In May 2023, the CFPB proposed significant amendments to the Regulation Z rules on credit card late fees, including substantially reducing the safe harbor late fee amounts that card issuers can charge and eliminating annual inflation adjustments.  

The CFPB has acknowledged in recent reports and elsewhere that as a result of changes made by many banks to their overdraft and NSF fee practices, revenues from those fees have substantially declined.  Nevertheless, the CFPB apparently has decided to proceed with rulemaking.  (Although the agenda suggests that the overdraft fee rulemaking will be limited to the  question of when an overdraft fee constitutes a finance charge under the Truth in Lending Act and Regulation Z, many observers believe that the proposed rule will be much broader in scope.) 

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