Vol. XLIII, No. 9

Vol. XLIII, No. 9
June 26, 2026

FDIC NSF Fees for Re-Presentment-Disclosure/ Look-Back Period - Supervisory Guidance Rescinded

The Federal Deposit Insurance Corporation (FDIC) has rescinded its previous supervisory guidance that cautioned banks against charging multiple non-sufficient funds (NSF) fees on a declined transaction.

In 2022, the FDIC issued an NSF guidance noting potential compliance and litigation risks tied to the practice of charging an NSF fee upon each re-presentment of the same unpaid transaction. The FDIC suggested that charging multiple NSF fees on re-presented transactions could be unfair or deceptive should a financial institution fail to provide proper disclosures regarding re-presentment practices and fees and encouraged institutions to review their practices and disclosures to reduce the risk of consumer harm and violations of law.

​In 2023, the FDIC and the Office of the Comptroller of the Currency (OCC) clarified its supervisory approach for corrective action when a violation of law is identified. The updated guidance stated that the FDIC would "not request an institution to conduct a lookback review" of past practices unless there was a "likelihood of substantial consumer harm."

In response to the revised guidance, the Minnesota Bankers Association (MBA) sued the FDIC and OCC in 2023, arguing that the guidance violated the Administrative Procedure Act (APA) because it failed to conduct a proper notice-and-comment rulemaking process. The suit was dismissed in April 2024, finding that the guidance was not a rule subject to APA requirements. On appeal to the Eight Circuit Court, the lower court ruling was affirmed in September 2025.

Notwithstanding its victory in the courts, the FDIC rescinded the guidance, noting it was too broad and raised questions around how disclosures may violate the prohibition on unfair or deceptive acts or practices.

The FDIC has stated that supervised institutions should still review their disclosures to confirm they accurately reflect their NSF and re-presentment practices and comply with applicable laws.

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The foregoing Compliance Update is for informational purposes only and does not constitute legal advice. As a reminder, the NBA general counsel is the attorney for the Nebraska Bankers Association, not its member banks. The general counsel is available to assist members with finding resources to help answer their questions. However, for specific legal advice about specific situations, members must consult and retain their own attorney.