Is this the case for a continuous overdraft fee too? If the transaction posts before 8/15, and the customer has not opted in, can you charge a continuous OD fee?
The prohibition against assessing an overdraft fee of any kind extends to continuous overdraft fees if the triggering transaction is an ATM or one-time debit card transaction that overdrew the account, regardless of when the transaction posted. For example, if the transaction hit the account on August 11 and your continuous OD fee kicks in if the overdraft isn't cured by the fifth business day, you would not be able to assess a continuing overdraft fee if the only reason for the OD balance is the ATM or one-time debit card transaction, because the fifth business day would be after the 8/15/10 deadline.
If the OD balance consists in part of an ATM or debit card transaction or transactions and in part on a check, ACH or other transaction that overdrew the account, you can assess a continuing overdraft fee, but count the elapsed days from the date of the ACH or check transaction, not from the date of the ATM or debit-card transaction (see Comment 17(b)-9 to Regulation E).