FDIC Rescinds Supervisory Guidance on Multiple Re-Presentment NSF Fees

Summary:

On June 16, 2023, the FDIC issued a Financial Institution Letter (FIL-32-2023) titled FDIC Clarifying Supervisory Approach Regarding Supervisory Guidance on Multiple Re-Presentment NSF Fees. This guidance described the FDIC's supervisory approach relating to supervised institutions assessing multiple non-sufficient funds (NSF) fees arising from the re-presentment of the same unpaid transaction. The FDIC is rescinding FIL-32-2023 effective immediately.

Statement of Applicability: The contents of, and material referenced in, this FIL apply to all FDIC-supervised financial institutions.

Highlights:

• On June 16, 2023, the FDIC issued FIL-32-2023, which rescinded and replaced FIL-40-2022, entitled "Supervisory Guidance on Multiple Re-Presentment NSF Fees."
• Based on a review and assessment of the guidance in FIL-32-2023, the FDIC concludes that the guidance is overly broad in scope and has raised uncertainty regarding when, for instance, disclosures regarding re-presentments may result in "unfairness" concerns under Section 5 of the Federal Trade Commission Act.
• As a result, the FDIC is rescinding FIL-32-2023 effective immediately.
• Supervised institutions should ensure their disclosures to consumers accurately reflect their practices and are provided in accordance with applicable laws, regulations, and other current legal requirements.