If your regular overdrafts/NSF terms are less favorable to the consumer because they do not offer a fee cap, your program could be considered in violation. The Reg requires the "
Same Account Terms, Conditions, and Features" be offered to opt-out and opt-in customers.
Depending on your concerns from the exam in question, either do away with the fee cap or add the fee cap to the opt-out customers.
I can do all things through Him who gives me strength. (Phillipians 4:13)