Sec. 6.8. Overdraft protection charges

(a) The superintendent hereby finds that the promulgation of this section is consistent with the policy of the State of New York as declared in section 10 of the New York Banking Law and thereby protects the public interest, including the interests of depositors, creditors, shareholders, stockholders and consumers and is necessary to achieve or maintain parity between banks and trust companies and national banks, and between savings banks and savings and loan associations and Federal savings associations, with respect to rights, powers, privileges, benefits, activities, loans, investments or transactions.

(b) The superintendent hereby finds that title 12, United States Code, section 24 (seventh) permits national banks to lend money. Title 12, United States Code, section 1464 permits Federal savings associations to accept deposits.

(c) The superintendent hereby finds that title 12, Code of Federal Regulations, section 7.4002 provides that national banks may impose charges and fees on their customers, and title 12, Code of Federal Regulations, section 557.12(f) allows Federal savings associations to impose charges and fees regardless of any State laws. The Office of the Comptroller of the Currency and the Office of Thrift Supervision, in interpreting these sections, permit national banks and Federal savings associations, respectively, to impose greater daily charges in connection with overdraft protection programs than is otherwise allowed under New York Banking Law for banks and trust companies, savings banks and savings and loan associations. (See Joint Guidance on Overdraft Protection Programs, 70 Federal Register 9127 [February 24, 2005], applicable to banks and trust companies and Guidance on Overdraft Protection Programs, 70 Federal Register 8428 [February 18, 2005], applicable to savings banks and savings and loan associations.)

(d) Notwithstanding any other provision of law or regulation, State-chartered banks and trust companies, and savings banks and savings and loan associations may impose charges, in addition to the charge provided for in section 32.1(a) of this Title, for paying or accepting checks or other written orders drawn on, or effectuating electronic transactions from, accounts containing insufficient funds in cases in which the drawer of the check or other written order, or the account holder seeking to effectuate the electronic transaction, does not have a written agreement for an overdraft line of credit pursuant to section 108(5), 235(8-b) or 380(2) of the Banking Law to the same extent, and subject to the same conditions, as national banks and Federal savings associations, respectively.

(e) Commencing no later than 90 days after the effective date of this subdivision, State-chartered banks and trust companies, savings banks, and savings and loan associations shall provide a separate clear and conspicuous notice to a customer at the time he or she opens an account or to a current accountholder at least once if such account will be subject to charges for covering overdrafts as described in subdivision (d) of this section. Such notice shall provide clear disclosure and explanation of the parameters, costs and limitations of overdraft protection, including the charges which may be incurred by the customer and how such charges would be calculated.