Yes, your bank may charge overdraft fees to business customers for debit card overdrafts, and they are not subject to the opt-in requirements in Regulation E.

Regulation E, including its overdraft and opt-in provisions, does not apply to business accounts. We also are not aware of any other law or regulation that would impose restrictions or opt-in requirements for overdrafts of business accounts. Of course, it would be prudent to list these fees in your business account agreements or fee schedules, and to provide your business customers with written notice before implementing new overdraft policies and fees.

We should note that for consumer accounts, Regulation E does require financial institutions to take certain steps before charging a fee for paying an overdraft on an ATM or on a one-time debit card transaction, including obtaining the consumer’s affirmative consent (an opt-in). These requirements would apply to an account established by a sole proprietor who is a natural person, but only if the account was established primarily for personal, family, or household purposes.

For resources related to our guidance, please see:

• Regulation E, 12 CFR 1005.3(a) (“This part applies to any electronic fund transfer that authorizes a financial institution to debit or credit a consumer’s account.”)

• Regulation E, 12 CFR 1005.2(b)(1) (The term “account” is defined as “a demand deposit (checking), savings, or other consumer asset account . . . established primarily for personal, family, or household purposes.”)

• Regulation E, 12 CFR 1005.2(e) (“‘Consumer’ means a natural person.”)

• Regulation E, 12 CFR 1005.17(b)(1) (“Except as provided under paragraph (c) of this section, a financial institution holding a consumer’s account shall not assess a fee or charge on a consumer’s account for paying an ATM or one-time debit card transaction pursuant to the institution’s overdraft service, unless the institution: (i) Provides the consumer with a notice in writing, or if the consumer agrees, electronically, segregated from all other information, describing the institution’s overdraft service; (ii) Provides a reasonable opportunity for the consumer to affirmatively consent, or opt in, to the service for ATM and one-time debit card transactions; (iii) Obtains the consumer’s affirmative consent, or opt-in, to the institution’s payment of ATM or one-time debit card transactions; and (iv) Provides the consumer with confirmation of the consumer’s consent in writing, or if the consumer agrees, electronically, which includes a statement informing the consumer of the right to revoke such consent.”)