The OCC adopted a rule that codifies existing guidance to ensure that national banks and federal savings associations offer fair access to financial services. New OCC Rule 55.1 ("Fair Access to Financial Services") requires, among other things, that each U.S. bank regulated by the OCC with at least $100 billion in total assets offer its financial services (including financial products) on "proportionally equal terms" to all persons in the geographic location it serves. Additionally, the rule prohibits a "covered bank" from denying any person a financial service that it offers, if:
- the denial is not justified by such person's documented failure to meet "quantitative, impartial risk-based standards" that are set in advance by the bank; or
- the denial is in coordination with other covered banks.
After consideration of more than 35,000 stakeholder comments on the proposal, the OCC stated that the final rule will not include the restriction of a covered bank from denying any person a financial service that it offers, where the denial (i) would prevent, limit or disadvantage the person from participating in a market or business segment, or (ii) would work to the advantage of another person or business activity. The OCC determined the requirement to have been overly burdensome without adequately "contributing to the primary objective of the rule."
The final rule will go into effect on April 1, 2021.
Commentary
The seeming intent of this rule is to discourage banks from withholding credit from businesses that are legal, but may be politically disfavored. It has been criticized both by banks (the American Bankers Association described it as "arbitrary and capricious," inconsistent with accepted risk management, and imposing significant compliance costs, that made the proposal "untenable") and by Democratic legislators, such as Maxine Waters, Chair of the House Committee on Financial Services, who argue there is social benefit in discouraging credit to certain businesses such as gun manufacturers and energy companies. Accordingly, the incoming administration may seek to undo this rulemaking. See House Financial Services Committee Urges OCC to Rescind Proposed "Fair Access to Financial Services" Rulemaking.
Primary Sources
- OCC Press Release: OCC Finalizes Rule Requiring Large Banks to Provide Fair Access to Bank Services, Capital and Credit
- OCC Final Rule: Fair Access to Financial Services
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