The OCC is adopting an interim final rule to clarify that national banks’ power to charge non-interest charges and fees includes the power to assess, collect, impose, levy, receive,reserve, take, or otherwise obtain non-interest charges and fees, including interchange fees from credit and debit card operations.
The interim final rule further explains that national banks may charge non-interest charges or fees, even when such charges and fees are set by or in consultation with third parties.
The interim final rule becomes effective June 30, 2026.
In the National Bank Act (NBA), Congress granted national banks enumerated powers, including to “loan[ ] money on personal security” and to “receiv[e] deposits,” as well as “all such incidental powers as shall be necessary to carry on the business of banking.”
The OCC and courts have long recognized that national banks thus have broad powers to engage in activities that are part of, or incidental to, the business of banking, including issuing debit cards and credit cards (payment cards) and processing payments.
National banks also have the authority to receive compensation for the products and services they provide, including to charge and receive interchange fees for processing payment card transactions.
Specifically, 12 CFR 7.4002, which implements the NBA, sets out national banks’ broad authority to impose non-interest charges and fees and provides each national bank with the discretion to make business decisions about how to impose these charges and fees.
Recently, a Federal district court in the Northern District of Illinois created ambiguity about the scope of § 7.4002, asserting that national banks do not “set” interchange fees and finding that ''[t]he thrust of 12 CFR 7.4002 is not to protect fees centrally established by a third-party company.'' Such a finding is, however, inapposite to the OCC and courts’ longstanding interpretation of § 7.4002 and fails to recognize the reality of the payment card systems and the modern economy. The OCC is issuing this interim final rule to clarify the scope of this national bank power.
The final rule provides that decisions regarding charging non-interest charges and fees, including their amounts, the method of calculating them, whether to enter into business relationships or lines of business, and whether they are set by or in consultation with third parties, are business decisions to be made by each national bank, in its discretion, according to sound banking judgment and safe and sound banking principles. A national bank establishes non-interest charges and fees in accordance with safe and sound banking principles if it employs a decision-making process through which it considers the following factors, among others:
(1) The cost incurred by the national bank in providing the service;
(2) The deterrence of misuse by customers of banking services;
(3) The enhancement of the competitive position of the national bank in accordance with its business plan and marketing strategy;
(4) The use of third parties to provide or facilitate the provision of a product or service; and
(5) The maintenance of the safety and soundness of the national bank.