DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the Currency 

12 CFR Part 55 

[Docket ID OCC-2020-0042]  

RIN 1557-AF05 

Fair Access to Financial Services 

AGENCY: Office of the Comptroller of the Currency, Treasury.  

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Office of the Comptroller of the Currency is proposing a regulation to ensure  that national banks and Federal savings associations offer and provide fair access to financial  services. 

DATES: Comments must be received on or before January 4, 2021. 

ADDRESSES: Commenters are encouraged to submit comments through the Federal  eRulemaking Portal, if possible. Please use the title “Fair Access to Financial Services” to  facilitate the organization and distribution of the comments. You may submit comments by any  of the following methods: 

• Federal eRulemaking Portal – Regulations.gov Classic or Regulations.gov Beta. Regulations.gov Classic: Go to https://www.regulations.gov/. Enter “Docket ID OCC-2020- 0042” in the Search Box and click “Search.” Click on “Comment Now” to submit public  comments. For help with submitting effective comments, please click on “View Commenter’s  Checklist.” Click on the “Help” tab on the Regulations.gov home page to get information on  using Regulations.gov, including instructions for submitting public comments. 

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Regulations.gov Beta: Go to https://beta.regulations.gov/ or click “Visit New Regulations.gov  Site” from the Regulations.gov classic homepage. Enter “Docket ID OCC-2020-0042” in the  Search Box and click “Search.” Public comments can be submitted (1) via the “Comment” box  located below the displayed document information or (2) by clicking on the document title and  then clicking on the “Comment” box on the top-left side of the screen. For help with submitting  effective comments, please click on “Commenter’s Checklist.” For assistance with the  Regulations.gov Beta site, please call (877) 378-5457 (toll free) or (703) 454-9859 Monday Friday, 9am-5pm ET. or e-mail regulations@erulemakinghelpdesk.com. 

• Mail: Chief Counsel’s Office, Attention: Comment Processing, Office of the  Comptroller of the Currency, 400 7th Street, SW., suite 3E-218, Washington, DC 20219.  • Hand Delivery/Courier: 400 7th Street, SW., suite 3E-218, Washington, DC 20219.  Instructions: You must include “OCC” as the agency name and “Docket ID OCC-2020-0042” in  your comment. In general, the OCC will enter all comments received into the docket and publish  the comments on the Regulations.gov website without change, including any  business or personal information provided such as name and address information, e-mail  addresses, and phone numbers. Comments, including attachments and other supporting  materials, are part of the public record and subject to public disclosure. Do not include any  information in your comment or supporting materials that you consider confidential or  inappropriate for public disclosure. 

You may review comments and other related materials that pertain to this rulemaking  action through Regulations.gov Classic or Regulations.gov Beta. 

Regulations.gov Classic: Go to https://www.regulations.gov/. Enter “Docket ID OCC-2020- 0042” in the Search box and click “Search.” Click on “Open Docket Folder” on the right side of 

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the screen. Comments and supporting materials can be viewed and filtered by clicking on “View  all documents and comments in this docket” and then using the filtering tools on the left side of  the screen. Click on the “Help” tab on the Regulations.gov home page to get information on  using Regulations.gov. The docket may be viewed after the close of the comment period in the  same manner as during the comment period.  

Regulations.gov Beta: Go to https://beta.regulations.gov/ or click “Visit New Regulations.gov  Site” from the Regulations.gov classic homepage. Enter “Docket ID OCC 2020-0042” in the  Search Box and click “Search.” Click on the “Comments” tab. Comments can be viewed and  filtered by clicking on the “Sort By” drop-down on the right side of the screen or the “Refine  

Results” options on the left side of the screen. Supporting materials can be viewed by clicking  on the “Documents” tab and filtered by clicking on the “Sort By” drop-down on the right side of  the screen or the “Refine Results” options on the left side of the screen. For assistance with the  Regulations.gov Beta site, please call (877) 378-5457 (toll free) or (703) 454-9859 Monday Friday, 9am-5pm ET or e-mail regulations@erulemakinghelpdesk.com. The docket may be  viewed after the close of the comment period in the same manner as during the comment period. FOR FURTHER INFORMATION CONTACT: 

Karen McSweeney, Special Counsel, or Emily Boyes, Counsel, Chief Counsel’s Office, (202)  649-5490, Office of the Comptroller of the Currency, 400 7th Street, SW., Washington, DC  20219. 

SUPPLEMENTARY INFORMATION: 

1. Introduction  

Title III of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd– Frank Act) included a revised statement of the mission of the Office of the Comptroller of the 

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Currency (OCC or agency).1 Codified at 12 U.S.C. 1, it charged the OCC with assuring the  safety and soundness of, and compliance with laws and regulations, fair access to financial  services, and fair treatment of customers by, the institutions and other persons subject to its  

jurisdiction. Title III also enhanced the supervision of national banks and Federal savings  associations and transferred primary supervisory and regulatory authority for Federal savings  associations to the OCC. In addition, Title III reaffirmed the agency’s authority to establish  regulations governing the operations of national banks and granted additional authority to do the  same for Federal savings associations. 

In one respect, the Dodd–Frank Act’s amendments to 12 U.S.C. 1 recognized a broad and  longstanding anti-discrimination principle that individuals are entitled to be treated fairly by national banks and Federal savings associations (banks). That principle is reinforced by specific laws such as the Equal Credit Opportunity Act, Fair Housing Act, and Community Reinvestment  Act, among others. In another respect, the Dodd–Frank Act’s articulation of “fair access” as a  distinct concept implies a right of individual bank customers, whether natural persons or  organizations, to have access to financial services based on their individual characteristics and  not on their membership in a particular category of customers.2 

Consistent with the Dodd–Frank Act’s mandate of fair access to financial services and  since at least 2014, the OCC has repeatedly stated that while banks are not obligated to offer any  particular financial service to their customers, they must make the services they do offer  available to all customers except to the extent that risk factors particular to an individual  customer dictate otherwise. As the OCC’s then-Comptroller stated in a 2014 speech: 

No matter what type of business you are dealing with, you have to  

exercise some sound judgment, conduct your due diligence, and  

1 Pub. L. 111–203, 124 Stat. 1376, 1520-1528 (July 21, 2010). 

2 For purposes of this rulemaking, the term financial services includes financial products and services. 

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evaluate customers individually. Even in areas that traditionally  

have been viewed as inherently risky, you should be able to  

appropriately manage the risk. This is basic risk management, and  

that’s a business that the institutions we at the OCC supervise  

excel at. You shouldn’t feel that you can’t bank a customer just  

because they fall into a category that on its face appears to carry an 

elevated level of risk. Higher-risk categories of customers call for  

stronger risk management and controls, not a strategy of total  

avoidance. Obviously, if the risk posed by a business or an  

individual is too great to be managed successfully, then you have  

to turn that customer away. But you should only make those  

decisions after appropriate due diligence.3 

This principle of individual, rather than category-based, customer risk evaluation has since been  reinforced in numerous OCC reports, the testimony of OCC officials, and other agency releases.4 On at least two occasions, the OCC has issued guidance to specifically address reports of  

banks refusing to provide access to financial services to entire industry categories engaged in  lawful business activities without regard to the risk factors of the individual customers in these  industry categories. In 2014, amid reports of banks refusing to provide financial services to the  entire category of money services businesses (MSBs), the OCC issued a clarification of its  

3 Remarks by Thomas J. Curry, Comptroller of the Currency, before the Association of Certified Anti Money Laundering Specialists (Mar. 17, 2014), available at https://occ.gov/news-issuances/speeches/2014/pub speech-2014-39.pdf. 

4 See, e.g., OCC Bulletin 2014-58, “Banking Money Services Businesses: Statement on Risk Management”  (Nov. 19, 2014); OCC 2015 Annual Report, available at https://www.occ.gov/publications-and resources/publications/annual-report/files/2015-annual-report.pdf; Testimony of Daniel P. Stipano, Deputy Chief  Counsel, OCC (July 15, 2014) (Stipano Testimony), before the U.S. House of Representatives, Subcommittee on  Oversight and Investigations, available at https://occ.gov/news-issuances/congressional-testimony/2014/pub-test 2014-101-written.pdf; OCC Spring 2015 Semiannual Risk Perspective From the National Risk Committee,  available at https://www.occ.gov/publications-and-resources/publications/semiannual-risk-perspective/files/pub semiannual-risk-perspective-spring-2015.pdf; Remarks by Thomas J. Curry, Comptroller of the Currency, before the  Association of Certified Anti-Money Laundering Specialists 15th Annual Anti-Money Laundering and Financial  Crime Conference (Sept. 28, 2016), available at https://www.occ.gov/news-issuances/speeches/2016/pub-speech 2016-117.pdf; and GAO Report 20-46, “Bank Secrecy Act, Examiners Need More Information on How to Assess  Banks’ Compliance Controls for Money Transmitter Accounts” (Dec. 2019).

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supervisory expectations with regard to banks offering financial services to MSBs.5 The  guidance emphasized that banks should not “engage in the termination of entire categories of  customers” and stated that “banks are expected to assess the risks posed by an individual MSB  customer on a case-by-case basis and to implement controls to manage the relationship  commensurate with the risk associated with each customer.”6 

In 2016, the OCC addressed a similar issue in the context of foreign correspondent  banking. In guidance issued that year, the OCC made clear that refusing to service the entire  category of foreign correspondent banking was inconsistent with supervisory expectations and  that banks must decide whether to serve individual firms “based on analysis of the risks  presented by individual foreign financial institutions and the bank’s ability to manage those  risks.”7 

Despite the OCC’s statements and guidance over the years about the importance of  assessing and managing risk on an individual customer basis, some banks continue to employ  category-based risk evaluations to deny customers access to financial services. This happens  even when an individual customer would qualify for the financial service if evaluated under an  objective, quantifiable risk-based analysis. These banks are often reacting to pressure from  advocates from across the political spectrum whose policy objectives are served when banks deny  certain categories of customers access to financial services. 

5 OCC Bulletin 2014-58, “Banking Money Services Businesses: Statement on Risk Management” (Nov.  19, 2014).

6 Id. (emphasis added); see also Stipano Testimony. 

7 OCC Bulletin 2016-32, “Risk Management Guidance on Foreign Correspondent Banking: Risk  Management Guidance on Periodic Risk Reevaluation of Foreign Correspondent Banking” (Oct. 5, 2016) (emphasis  added), available at https://www.occ.gov/news-issuances/bulletins/2016/bulletin-2016-32.html; see also News  Release 2016-123, “OCC Releases Risk Reevaluation Guidance for Foreign Correspondent Banking” (Oct. 5, 2016).

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The pressure on banks has come from both the for-profit and nonprofit sectors of the  economy and targeted a wide and varied range of individuals, companies, organizations, and  industries. For example, there have been calls for boycotts of banks that support certain health  care and social service providers, including family planning organizations, and some banks have  reportedly denied financial services to customers in these industries.8 Some banks have  reportedly ceased to provide financial services to owners of privately owned correctional facilities  that operate under contracts with the Federal government and various state governments.9  Makers of shotguns and hunting rifles have reportedly been debanked in recent years.10  Independent, nonbank automated teller machine operators that provide access to cash settlement  and other operational accounts, particularly in low-income communities and thinly-populated  rural areas, have been affected.11 Globally, there have been calls to de-bank large farming  operations and other agricultural business.12 And companies that operate in industries important  to local economies and the national economy have been cut off from access to financial services,  including those that operate in sectors of the nation’s infrastructure “so vital to the United States  

8 American Banker, “BankThink JPMorgan, Condoms and the Problem of Reputational Risk” (Mar. 26,  2014); Bloomberg Businessweek, “The Most Difficult Business You Could Run: Why It’s So Hard to Run an  Abortion Clinic” (Feb. 24, 2016); Association of Mature Citizens, “You May Not Support Planned Parenthood…But  Your Favorite Companies Do” (Oct. 12, 2017). 

9 Reuters, “JPMorgan backs away from private prison finance” (Mar. 5, 2019); Forbes Magazine, “GEO  Group Running Out of Banks as 100% of Known Banking Partners Say ‘No’ to the Private Prison Sector” (Sept. 30,  2019). 

10 American Banker, “Florida gun maker told to find new bank, CEO claims” (Oct. 09, 2018); New York  Times, “Citigroup Sets Restrictions on Gun Sales by Business Partners” (Mar. 22, 2018); New York Times, “How  Banks Could Control Gun Sales if Washington Won’t” (Feb. 19, 2018). 

11 Letter dated November 11, 2020, from Rep. Rose (R-TN) et al. to Acting Comptroller B. Brooks, OCC;  Vice Chair of Supervision R. Quarles et al., Board of Governors of the Federal Reserve System (Federal Reserve);  and Chair J. McWilliams, Federal Deposit Insurance Corporation (FDIC). 

12 See, e.g., Plant Based News, “Banks Facing Calls To ‘Stop Funding Factory Farming’ To Protect  Animals, The Planet, And Public Health” (Nov. 10, 2020), available at 

https://plantbasednews.org/news/environment/banks-told-stop-funding-factory-farming; Change.org, “Development  banks: Stop investing in industrial animal agriculture,” available at https://www.change.org/p/world-bank development-banks-stop-investing-in-industrial-animal-agriculture. 

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that their incapacitation or destruction would have a debilitating effect on security, national  economic security, national public health or safety, or any combination thereof.”13  It is our understanding that some banks have taken these actions based on criteria  unrelated to safe and sound banking practices, including (1) personal beliefs and opinions on  matters of substantive policy that are more appropriately the purview of state and Federal  legislatures; (2) assessments ungrounded in quantitative, risk-based analysis; and (3) assessments  premised on assumptions about future legal or political changes. In some cases, banks appear to  have denied persons access to financial services without even attempting to price the financial  services to reflect the perceived risk. Particularly in light of the now-discredited Operation Choke  Point, in which certain government agencies (but not the OCC) were revealed to have pressured  banks to cut off access to financial services to disfavored (but not unlawful) sectors of the  economy, the OCC believes these criteria are not, and cannot serve as, a legitimate basis for  refusing to grant a person or entity access to financial services. Bank actions based on these criteria are inconsistent with a bank’s legal responsibility to provide fair access to financial  services. 

In June 2020, the Alaska Congressional delegation sent a letter to the OCC discussing decisions by several of the nation’s largest banks to stop lending to new oil and gas projects in the  Arctic.14 The letter noted the critical importance of the energy sector to the U.S. economy, as  well as the jobs, state revenue, and diplomatic and national security benefits attributable to the oil  

13 See Letter dated June 16, 2020, from Sen. Sullivan (R-AK), Sen. Murkowski (R-AK), and Rep. Young  (R-AK) to Acting Comptroller B. Brooks, OCC; Chair J. Powell et al., Federal Reserve; and Chair J. McWilliams,  FDI; see also U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency, “Critical  Infrastructure Sectors,” available at https://www.cisa.gov/critical-infrastructure-sectors; Presidential Policy  Directive 21 (PPD-21), “Critical Infrastructure Security and Resilience” (Feb. 12, 2013). 

14 See Letter dated June 16, 2020, from Sen. Sullivan (R-AK), Sen. Murkowski (R-AK), and Rep. Young  (R-AK) to Acting Comptroller B. Brooks, OCC; Chair J. Powell et al., Federal Reserve; and Chair J. McWilliams,  FDIC.

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and gas industries targeted by the banks’ actions.15 In the letter, the authors described as unfair  the effects of this decreased lending on Alaska Native communities on the state’s North Slope, as  well as on the population of the state as a whole. The letter also stated that, although the authors  believed that the banks’ rationale was political in nature, the banks had ostensibly relied on claims  of reputation risk to justify their decisions. 

In response to this letter, the OCC requested information from several large banks to better  understand their decisionmaking. The responses received indicate that, over the course of 2019 and  2020, these banks had decided to cease providing financial services to one or more major energy  industry categories, including coal mining, coal-fired electricity generation, and/or oil exploration in  the Arctic region. The terminated services were not limited to lending, where risk factors might  justify not serving a particular client (e.g., when a bank lacked the expertise to evaluate the collateral  value of mineral rights in a particular region or because of a bank’s concern about commodity price  volatility). Instead, certain banks indicated that they were also terminating advisory and other  services that are unconnected to credit or operational risk. In several instances, the banks indicated  that they intend only to make exceptions when benchmarks unrelated to financial risk are met, such as  whether the country in which a project is located has committed to international climate agreements and whether the project controls carbon emissions sufficiently.  

Neither the OCC nor banks are well-equipped to balance risks unrelated to financial exposures  and the operations required to deliver financial services. For example, climate change is a real risk,  

15 The energy sector (which includes the interrelated segments of electricity, oil, and natural gas) is one of  the nation’s 16 critical infrastructure sectors. See U.S. Department of Homeland Security, Cybersecurity &  Infrastructure Security Agency, “Critical Infrastructure Sectors,” Energy Sector, available at  https://www.cisa.gov/energy-sector (“The U.S. energy infrastructure fuels the economy of the 21st century. Without  a stable energy supply, health and welfare are threatened, and the U.S. economy cannot function. [PPD-21]  identifies the Energy Sector as uniquely critical because it provides an ‘enabling function’ across all critical  infrastructure sectors. More than 80 percent of the country’s energy infrastructure is owned by the private sector,  supplying fuels to the transportation industry, electricity to households and businesses, and other sources of energy  that are integral to growth and production across the nation.”).

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but so is the risk of foreign wars caused in part by U.S. energy dependence and the risk of blackouts  caused by energy shortages. Furthermore, balancing these risks is the purview of Congress and  Federal energy and environmental regulators. It is one thing for a bank not to lend to oil companies  because it lacks the expertise to value or manage the associated collateral rights; it is another for a  bank to make that decision because it believes the United States should abide by the standards set in  an international climate treaty. Organizations involved in politically controversial but lawful  businesses – whether family planning organizations, energy companies, or otherwise – are entitled to  fair access to financial services under the law. In order to ensure that banks provide customers with  fair access to financial services, and consistent with longstanding OCC policy, a bank’s decision not  to serve a particular customer must be based on an individual risk management decision about that  individual customer, not on the fact that the customer operates in an industry subject to a broad  categorical exclusion created by the bank.16 

While all banks have the responsibility to provide fair access to financial services, it is  particularly important that the nation’s largest banks fulfill this obligation. Large banks exercise  sufficient market power to influence the price of financial services, and only the largest banks have  the diversified balance sheets and sophisticated risk management systems to serve certain industries.  It is also fair to place particular responsibilities on the largest banks because their systemic  importance often results in their receiving assistance and favorable treatment from the government  during periods of financial distress. In addition, these banks have positioned themselves to provide  

16 Other Federal agencies have taken similar actions to ensure that private institutions do not use their  market position to make public policy. See e.g., News Release, U.S. Department of Labor Announces Final Rule To  Protect Americans’ Retirement Investments (Oct. 30, 2020) available at  

https://www.dol.gov/newsroom/releases/ebsa/ebsa20201030, discussing U.S. Department of Labor Final Rule,  “Financial Factors in Selecting Plan Investments,” 85 FR 72846 (Nov. 13, 2020). 

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services to all sectors of the economy by virtue of the scale and breadth of their technical expertise.  In contrast, smaller banks generally are not in a position to influence the price of services, are not  systemically significant, may lack comprehensive technical expertise across the full range of banking  services, and have limited capacity to bear overhead costs (e.g., salaries of loan officers and industry specific subject-matter experts and the cost of maintaining extensive physical offices and branch  locations)—all of which limit the number of sectors of the economy they can serve.  

 The dominant market position of the large bank population is clear when all OCC regulated institutions with assets of $100 billion or more are considered. Together, these banks  account for approximately 55 percent of the total assets and deposits of all U.S. banks and hold  approximately 50 percent of the dollar value of outstanding loans and leases in the United  States.17 In light of this market position, a decision by one or more of these banks not to provide  a person with fair access to financial services could have a significant effect on that person, the  nation’s financial and economic systems, and the global economy. This effect is all the more  likely if the financial service at issue is not available on reasonable terms elsewhere. 

To address the concerns identified above, the OCC is proposing a regulation to clarify (1)  the obligation of large banks to provide fair access to financial services, consistent with the  Dodd–Frank Act’s mandate18 and (2) the parameters of this requirement. Unlike prior  articulations of the fair access principle discussed above, this OCC action would have the force  

17 Reports of Condition and Income, June 30, 2020. 

18 As previously noted, the OCC’s responsibility to ensure that banks provide fair access to financial  services originated with the Dodd–Frank Act. The OCC has the responsibility to interpret this ambiguous language  and provide the necessary clarity for the banks it supervises. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council,  Inc., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question  for the court is whether the agency’s answer is based on a permissible construction of the statute.”); see also 12  U.S.C. 93a (authorizing the OCC to prescribe rules and regulations to carry out the responsibilities of the office).  This proposal is not intended to affect in any way the applicability of antitrust laws to any bank action, including any  unlawful anticompetitive agreement. See, e.g., 15 U.S.C. 1 et seq.

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and effect of law and enable the agency to take supervisory or enforcement action, when  appropriate.19  

1. Description of the Proposal 

The proposed rule would create a new part 55 to address fair access to financial services,  drawing both on principles of long-established antitrust law and on the OCC guidance and other  statements referenced above. It would apply to any “covered bank,” which is defined in  proposed paragraph 55.1(a)(1)(i) as an entity for which the OCC is the appropriate Federal  banking agency under 12 U.S.C. 1813(q)(1) that has the ability to (1) raise the price a person has  to pay to obtain an offered financial service from the bank or from a competitor or (2)  significantly impede a person, or a person’s business activities, in favor of or to the advantage of  another person. Under proposed paragraph 55.1(a)(1)(ii), a bank would be presumed not to meet  the definition of covered bank if it has less than $100 billion in total assets.20 Under proposed  paragraph 55.1(a)(1)(iii), however, a bank is presumed to meet the definition of covered bank if  it has $100 billion. A bank that meets the criteria in paragraph (a)(1)(iii) can seek to rebut the  presumption that it is a covered bank under this rule by submitting to the OCC written materials  that, in the agency’s judgment, demonstrate the bank does not meet the definition of a covered bank.  

19 See Notice of Proposed Rulemaking: “Role of Supervisory Guidance,” 85 FR 70512 (Nov. 5, 2020) for a  discussion of the difference between agency guidance and regulations. 

20 The $100 billion threshold is a commonly used threshold for large banks. See, e.g., Changes to  Applicability Thresholds for Regulatory Capital and Liquidity Requirements, 84 FR 59230 (Nov. 1, 2019)  (establishing risk-based categories for determining applicability under the agencies’ regulatory capital rule and  liquidity coverage ratio rule and stating that the “rule seeks to better align the regulatory requirements for large  banking organizations with their risk profiles, taking into account the size and complexity of these banking  organizations as well as their potential systemic risks. The final rule is consistent with considerations and factors set  forth under section 165 of the [Dodd–Frank Act], as amended by the Economic Growth, Regulatory Relief, and  Consumer Protection Act” (citations omitted)). 

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In addition to the proposed $100 billion asset threshold, the OCC contemplated including  a separate threshold, linked to national market share of any financial service, as an alternative for  a bank to be presumed to meet the definition of a covered bank. A national market share  threshold would recognize that some banks have less significant on-balance sheet assets but  nonetheless have a market position that provides them with the ability to (1) raise the price a  person has to pay to obtain a financial service offered by the bank from the bank or from a  competitor or (2) significantly impede a person, or a person’s business activities, in favor of or to  the advantage of another person. The OCC invites public comment on whether the agency  should include a percent of national market share threshold as another reason for a bank to be  presumed to meet the definition of covered bank and, if so, whether a 10 percent, 20 percent, or  other percent of the national market share would be the appropriate threshold. The OCC also  invites public comment on whether a presumption different than the $100 billion asset threshold presumption proposed in paragraphs 55.1(a)(1)(ii) and (iii) would be more effective to capture  banks that meet the definition of covered bank in paragraph 55.1(a)(1)(i) and to exclude banks  that do not meet these standards.  

Paragraph 55.1(a)(2) would define “financial service” to mean a financial product or  service. Paragraph 55.1(a)(3) would define “person” to mean any natural person or any  partnership, corporation, or other business or legal entity.  

For a covered bank’s board and its management to carry out their core risk management  responsibilities, the rule would require that a covered bank provide fair access to its financial  services with relevant risks quantified and managed, including through pricing, as needed. The  covered bank’s board and management would ultimately be responsible for ensuring that the  bank’s operations are consistent with its obligation to provide fair access to financial services, 

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including through established written policies and procedures. Upon review of a covered bank’s operations, including its written policies and procedures, it should be clear whether the bank is  providing persons access to financial services based on quantitative, impartial risk-based  standards or on a basis that is not tied to individual risk assessment and risk management.  

Specifically, proposed paragraph 55.1(b) states that to provide fair access to financial  services, a covered bank shall (1) make each financial service it offers available to all persons in  the geographic market served by the covered bank on proportionally equal terms;21 (2) not deny  any person a financial service the bank offers except to the extent justified by such person’s  quantified and documented failure to meet quantitative, risk-based standards established in  advance by the covered bank; (3) not deny any person a financial service the bank offers when  the effect of the denial is to prevent, limit, or otherwise disadvantage the person from entering or  competing in a market or business segment or in such a way that benefits another person or  business activity in which the covered bank has a financial interest; and (4) not deny, in  coordination with others, any person a financial service the covered bank offers. 

Under this proposed rule, if a covered bank offers cash management services or  commercial lending and specifically provides such services to a large retailer, the bank would be  required to offer such services to any other lawful business (e.g., an electric utility or a family  planning organization) on proportionally equal terms. The covered bank’s decision to deny one  of these services to a person could not include consideration of the bank’s opinion (or the  opinion of its employees or customers) of the person, the person’s legal business endeavors, or  

21 Providing financial services on proportionally equal terms includes, at a minimum, ensuring that pricing  and denial decisions are commensurate with measurable risks based on quantitative and qualitative characteristics.  Additionally, this provision would prohibit a bank from engaging in geography-based redlining, for example, by  refusing to provide financial services to customers solely based on where the customer or the customer’s business  activity is located when the customer or business activity is within the geographic market served by the covered  bank.

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any lawful activity in which the person is engaging or has engaged. However, the covered bank  must consider factors such as compliance with laws and regulations and safety and soundness, in  deciding whether to provide services to the person.22 

Furthermore, under the proposal, a covered bank could deny a person access to a  financial service without violating its obligation to provide fair access to financial services if the  bank’s decision is justified by the quantified and documented failure of the person to meet  quantitative, impartial risk-based standards established by the bank in advance (e.g., the person’s  inability to pay for the service or creditworthiness or an objective assessment of the person’s  collateral). Nothing in the proposal would require a bank to offer a particular service; the  proposal requires only that the financial services offered by a bank to some customers are offered  on proportionally equal terms to all customers engaged in lawful activities. 

A covered bank should also consider whether it has the expertise or knowledge to offer a  service in a given market. For example, while the rule would not require a covered bank to  provide asset-based lending services collateralized by accounts receivable, if the bank provides  this service to some customers, then it would be impermissible for the bank to categorically deny  access to this service to firms in a particular sector, given that the risks attendant to this type of  lending reflect the risks of the firm’s customers’ accounts payable and would not change based  on the sector in which the firm operates. A covered bank that operates consistent with this  proposal would satisfy its obligation to provide fair access to financial services. The OCC invites comments on all aspects of this proposal. 

III. Regulatory Analyses 

22 This includes, for example, the Bank Secrecy Act, anti-money laundering regulations, and applicable  consumer protection laws, such as fair lending and anti-discrimination laws. 

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Paperwork Reduction Act. In accordance with the requirements of the Paperwork  Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., the OCC may not conduct or sponsor, and  respondents are not required to respond to, an information collection unless it displays a  currently valid Office of Management and Budget (OMB) control number. The proposed rule  contains no information collection requirements under the PRA. Therefore, no filings will be  made with OMB. 

Regulatory Flexibility Act. The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,  requires an agency, in connection with a proposed rule, to prepare an Initial Regulatory  Flexibility Analysis describing the impact of the rule on small entities (defined by the Small  Business Administration (SBA) for purposes of the RFA to include commercial banks and  savings institutions with total assets of $600 million or less and trust companies with total assets  of $41.5 million or less) or to certify that the proposed rule would not have a significant  economic impact on a substantial number of small entities. The OCC currently supervises  approximately 745 small entities. Because the proposed rule would apply generally to OCC supervised banks that have $100 billion or more in total assets, the proposed rule would not  affect any small OCC-supervised entities. Therefore, the OCC certifies that the proposed rule  would not have a significant economic impact on a substantial number of small entities. 

Unfunded Mandates Reform Act. Consistent with the Unfunded Mandates Reform Act of  1995 (UMRA), 2 U.S.C. 1532, the OCC considers whether the proposed rule includes a Federal  mandate that may result in the expenditure by state, local, and tribal governments, in the  aggregate, or by the private sector, of $100 million adjusted for inflation (currently $157 million)  in any one year. If any covered banks have risk-based standards that include criteria that would  not be allowed under the proposed rule, the elimination of the prohibited criteria would impose 

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little, if any, burden on covered banks. Therefore, the proposed rule would not result in an  expenditure of $157 million or more annually by state, local, and tribal governments, or by the  private sector. 

Riegle Community Development and Regulatory Improvement Act. Pursuant to section  302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994  (RCDRIA), 12 U.S.C. 4802(a), in determining the effective date and administrative compliance  requirements for new regulations that impose additional reporting, disclosure, or other  requirements on insured depository institutions, the OCC must consider, consistent with  principles of safety and soundness and the public interest, any administrative burdens that such  regulations would place on depository institutions, including small depository institutions, and  customers of depository institutions, as well as the benefits of such regulations. In addition,  section 302(b) of RCDRIA, 12 U.S.C. 4802(b), requires new regulations and amendments to  regulations that impose additional reporting, disclosures, or other new requirements on insured  depository institutions generally to take effect on the first day of a calendar quarter that begins on  or after the date on which the regulations are published in final form. The OCC invites  comments that will inform its consideration of the administrative burdens and the benefits of its  proposal, as well as the effective date of the final rule. 

List of Subjects in 12 CFR Part 55 

Banks and banking, Definitions, Federal savings associations, National banks, Risk, Safety and  soundness 

For the reasons set out in the preamble, the OCC proposes to add a new 12 CFR part 55 to read as follows:

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PART 55 – FAIR ACCESS TO FINANCIAL SERVICES 

Sec. 55.1 Fair Access to Financial Services. 

Authority: 12 U.S.C. 1 et seq. and 12 U.S.C. 93a. 

• 55.1 Fair Access to Financial Services. 

(a) For purposes of this section:  

(1) (i) Covered bank means an entity for which the Office of the Comptroller of the  Currency is the appropriate Federal banking agency as defined in 12 U.S.C. 1813(q)(1) that has the ability to: 

(A) Raise the price a person has to pay to obtain an offered financial service  from the bank or from a competitor; or 

(B) Significantly impede a person, or a person’s business activities, in favor of or to the advantage of another person. 

(ii) A bank is presumed not to meet the definition of covered bank in paragraph (a)(1)(i)  if it has less than $100 billion in total assets. 

(iii) A bank is presumed to meet the definition of covered bank in paragraph (a)(1)(i) if  it has $100 billion or more in total assets. A bank that meets the criteria in this  paragraph (a)(1)(iii) can seek to rebut this presumption by submitting to the Office of the  Comptroller of the Currency written materials that, in the agency’s judgment,  demonstrate the bank does not meet the definition of covered bank in (a)(1)(i). (2) Financial service means a financial product or service.  

(3) Person means:  

(i) Any natural person; or  

(ii) Any partnership, corporation, or other business or legal entity.

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(b) To provide fair access to financial services, a covered bank shall: 

(1) Make each financial service it offers available to all persons in the geographic market  served by the covered bank on proportionally equal terms; 

(2) Not deny any person a financial service the bank offers except to the extent justified  by such person’s quantified and documented failure to meet quantitative, impartial  risk-based standards established in advance by the covered bank;  

(3) Not deny any person a financial service the bank offers when the effect of the denial  is to prevent, limit, or otherwise disadvantage the person:  

(i) From entering or competing in a market or business segment; or  

(ii) In such a way that benefits another person or business activity in which the covered bank has a financial interest; and 

(4) Not deny, in coordination with others, any person a financial service the bank offers.  

Brian P. Brooks 

Acting Comptroller of the Currency

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