OCC finalizes controversial ‘Fair Access’ rule as acting head departs

The rule, which was published in the Federal Register, applies to the nation’s largest banks—those with at least $100 billion in assets. Under the rule, banks are still free to determine their product lines and geographic markets and make legitimate business decisions about what and whom to serve, but those decisions must be “based on consideration of quantitative, impartial, risk-based standards established by the bank,” the OCC said.

“[B]anks should not terminate services to entire categories of customers without conducting individual risk assessments,” said Acting Comptroller of the Currency Brian Brooks in a press release. “It is inconsistent with basic principles of prudent risk management to make decisions based solely on conclusory or categorical assertions of risk without actual analysis.”

In considering more than 35,000 stakeholder comments, the final rule excluded a section of the initial proposal that would have required that a covered bank not deny any person a financial service “when the effect of the denial is to prevent, limit, or otherwise disadvantage the person: (1) from entering or competing in a market or business segment; or (2) in such a way that benefits another person or business activity in which the covered bank has a financial interest.” The OCC said it determined the requirement “would have resulted in regulatory burden without contributing to the primary objective of the rule.”

The OCC said the remainder of the rule is “substantially unchanged from the proposal.” The rule takes effect April 1.

Controversial move: From a risk and compliance standpoint, the rule has garnered criticism from many in the financial services industry, because it is essentially intended to stop banks from refusing to do business with high-risk customers—such as gun manufacturers, oil drillers, and other controversial industries—based on personal beliefs or politically motivated or legal reasons alone, which banks increasingly have come under pressure from shareholders and advocacy groups to do.

Further drawing criticism is that the OCC finalized the rule on Brooks’ last day. With President-elect Joe Biden’s inauguration around the corner, and a new administration expected to overhaul the leadership structure at many government agencies, Chief Operating Officer Blake Paulson will take over as acting comptroller of the currency

“We are disappointed the Acting Comptroller chose to fast-track the final approval of this hastily conceived and poorly constructed rule on his last day in office,” Greg Baer, president and CEO of the Bank Policy Institute, said in a statement. “The rule lacks both logic and legal basis, it ignores basic facts about how banking works, and it will undermine the safety and soundness of the banks to which it applies. Its substantive problems are outweighed only by the egregious procedural failings of the rulemaking process, and for these reasons it is unlikely to withstand scrutiny.”