We believe that you must disclose the out-of-network ATM fees charged by your institution, but the fee disclosure can be included on a separate fee schedule that complies with Regulation E and Regulation DD’s disclosure requirements.

The initial account disclosures required by Regulation E must include “any fees imposed by the financial institution for electronic fund transfers or for the right to make transfers.” 12 CFR 1005.7(b)(5). As a result, we believe that you will have to disclose the fees that your institution charges for out-of-network ATM transactions in your initial disclosures. (As to ATM fees charged by other financial institutions, Regulation E requires that the initial disclosure include “a notice that a fee may be imposed by an automated teller machine operator . . . when the consumer initiates an electronic fund transfer or makes a balance inquiry, and by any network used to complete the transaction.” 12 CFR 1005.7(b)(11).)

However, Regulation E permits you to combine its disclosures with the Truth in Savings Act (TISA) disclosures. 12 CFR 1005.4(b). Similarly, the TISA disclosure requirements (in Regulation DD) permit you to combine its disclosures with the Regulation E disclosures. 12 CFR 1030.3(a). In addition, the model forms in Regulation DD include a separate fee schedule, and nothing in Regulation E would prevent you from using a fee schedule. Appendix B to Part 1030, Model B-4 (Fee Schedule Insert). As a result, we are not aware of any prohibition on disclosing your fees on a separate fee schedule, including any out-of-network ATM fees.

Also, both Regulation E and Regulation DD include model forms and clauses regarding ATM fees. Under Regulation DD, as mentioned above, the model forms include a form for a separate Fee Schedule, with language disclosing the existence of the Fee Schedule: “Additional disclosures for your account are included on the attached sheets.” Appendix B to Part 1030, Model B-4 (Fee Schedule Insert). The staff commentary states that the Regulation E model clauses should be used in disclosing ATM fees: “For disclosures covered by both this part and Regulation E (such as the amount of fees for ATM usage), institutions should consult Appendix A to Regulation E for appropriate model clauses.” Official Interpretations, Appendix B to Part 1030, Comment 4.

The Regulation E model clauses include two clauses for disclosing ATM fees. For ATM charged by your institution, you should disclose the dollar amount of the fee (and this disclosure could be adjusted to disclose fees charged using out-of-network ATMs): “We will charge you [insert dollar amount] for each transfer you make using our [automated teller machines].” Appendix A to Part 1005, Model A-2(e). Regulation E also includes a model clause for fees that may be charged by an out-of-network ATM operator: “When you use an ATM not owned by us, you may be charged a fee by the ATM operator [or any network used] (and you may be charged a fee for a balance inquiry even if you do not complete a fund transfer).” Appendix A to Part 1005, Model A-2(j).