Letters to Regulators: Housing Joint Letter Opposing the OCC’s Notice of Proposed Rulemaking “Fair Access to Financial Services”

Americans for Financial Reform Education Fund signed onto a housing letter opposing the OCC’s Notice of Proposed Rulemaking “Fair Access to Financial Services.” The letter urged the OCC to withdraw the proposed rulemaking in its entirety, on the basis that it is a perversion of long-held anti-discrimination principles. The letter stated that the OCC appropriated civil rights language to protect market activities, drafted vague and unintelligible standards, undermined the ability of financial institutions to consider important facets of reputational risk in making investment and underwriting determinations, and provided a negligently inadequate 45-day comment period in the midst of the COVID crisis.

View or download a PDF of the letter here.

January 4, 2021

Acting Comptroller Brian P. Brooks
Office of the Comptroller of Currency
400 7th St. SW
Washington, DC 20219

Submitted electronically at http://www.regulations.gov
Re: Docket No. OCC-2020-0042
Notice of Proposed Rulemaking “Fair Access to Financial Services”

Dear Acting Comptroller Brooks,
The National Fair Housing Alliance (NFHA) and the 42 undersigned local and national civil
rights, consumer, housing and community development organizations submit these comments to
express our strong opposition to the Office of the Comptroller of Currency’s (OCC) Notice of
Proposed Rulemaking “Fair Access to Financial Services.” We urge the OCC to immediately
withdraw this proposed rule.
This proposal is a perversion of the long-held anti-discrimination principles upon which our
nation’s fair housing and fair lending laws stand and it grossly applies the language of civil rights
to potentially shield market activities that maintain the legacy of lending discrimination in the
United States. The proposed rule lacks clarity in drafting and proposes standards so vague as to
be unintelligible. This proposed rule would also improperly undermine the ability of financial
institutions to consider important facets of reputational risk in making investment and
underwriting determinations. Finally, given its broad implications, it is inappropriate and
negligent to propose this rule within a 45-day comment period at a time when the nation
continues to battle the dual COVID-19 pandemic and economic crises.
Our organizations have long advocated for fair and equitable access to financial services for
communities who have historically been shut out of mainstream financial services, particularly
communities of color. Such access is essential to address the legacy of government-sponsored
segregation, redlining, and community disinvestment and facilitate fair housing. The language
from the Dodd-Frank Wall Street Reform and Consumer Protection Act cited by the OCC as the
statutory basis for the proposed rulemaking describes in general terms the OCC’s mission,
including its role in assuring “fair access to financial services.”1 This statutory provision refers to
the important anti-discrimination principles, reflected in laws such as the Equal Credit
Opportunity Act (ECOA) and the Fair Housing Act (FHA), that are focused on ensuring that
protected characteristics like race, sex, religion, national origin and disability are not barriers to

1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111–203, § 314, 124 Stat. 1376, 1523
(codified at 12 U.S.C. § 1) (“Dodd-Frank Act”).

equal access to financial services. Indeed, the same act that generally referenced OCC’s role in
assuring “fair access to financial services” also reaffirmed the OCC’s role in enforcing ECOA
with respect to financial institutions within its jurisdiction.

Our legal and regulatory systems have long been premised on the understanding that
characteristics like those protected by ECOA are due special protections because they are
recognized as fundamental and immutable or deeply-held personal attributes, and because of the
history of discrimination and oppression that has accompanied them. This proposed rulemaking
threatens to undermine the significance and heightened care due these anti-discrimination
principles, by extending these important civil rights principles to activities—such as participation
in a particular industry or market sector—that do not share these fundamental attributes or
inequities. Safeguarding against racial, gender-based, and other forms of unlawful invidious
discrimination requires treating these characteristics as qualitatively different and requiring of

special protections not provided to other types of characteristics or activities. For example, anti-
discrimination laws recognize that characteristics such as race and gender cannot play any part in

credit determinations.

3 This is because Congress has determined that such factors are never
appropriate considerations in credit decisions. Congress has made no such determination
regarding the routine business activities the proposed rulemaking proports to protect, nor has it
delegated this determination to the OCC. Accordingly, the OCC does not have the statutory
authority to promulgate this proposed rule.
Furthermore, this proposed rule would improperly undermine the ability of financial institutions
to consider important facets of reputational risk in making investment and underwriting
determinations. It would also prevent civil and/or human rights and consumer protection
organizations such as ourselves from advocating with and to covered banks with the goal of
holding corporate bad actors, such as those engaging in racial, gender, or other forms of
prohibited discrimination, accountable.
Compounding these deficiencies, the proposed rule lacks clarity in drafting and proposes
standards so vague as to be unintelligible. For example, the proposed rule requires that covered
banks make credit available to all persons in the geographic market area on “proportionately
equal terms,” but fails to define what it means to offer proportionately equal credit terms or what
factors would be considered in a proportionality analysis. The proposed rulemaking also fails to
define what it means to “deny, in coordination with others, any person a financial service the
bank offers.” The proposed rule does not provide any indication of who would be considered an
“other” under this definition, nor what types of activity would qualify as coordination. The
broad, undefined language in the proposed rule thus raises a multitude of questions about the
rule’s true scope.

2 See Dodd-Frank Act, Pub. L. No. 110-203, § 1085(4) (amending 15 U.S.C. § 1691c to allocate ECOA enforcement

authority among various federal agencies, including OCC); 15 U.S.C. § 1691c(a)(1)(A) (giving OCC, through cross-
reference to section 8 of the Federal Deposit Insurance Act, authority to enforce ECOA respect to national banks,

Federal savings associations, and Federal branches and Federal agencies of foreign banks). 3 The exception here is the use of Special Purpose Credit Programs which help meet the goals of the

Fair Housing Act. See https://nationalfairhousing.org/wp-

For example, would coordinating the denial of financial services with third-party vendors,
investors, or independent rating companies or market analysts violate this prohibition? Would
the prohibition on coordination with others prevent a covered bank from denying credit any time
an outside organization or advocacy group has publicly indicated it opposes the provision of
credit to a particular applicant or industry? The question of coordination is of particular
importance to advocacy organizations such as ours, as any attempt to draw public attention to
corporate bad actors would be undermined if such efforts would have the counterproductive
result of forcing covered banks to lend to such entities. The proposed rule leaves these important
questions, as well as many others, unanswered, and therefore presents an unworkably vague
standard that will inevitably result in arbitrary and capricious agency actions if enforced.
Finally, the limited time frame provided for comments on the proposed rule—a 45-day period
during a major national health pandemic and economic crisis and which includes multiple major
federal holiday periods—is far too short to permit the necessary public comment and feedback
on a proposed rulemaking of this import. In fact, the OCC itself has recognized that a comment
period of at least 60 days is recommended.4 Without additional time for review, interested
parties such as advocacy groups, industry stakeholders, and the public at large are deprived of
their right to participate in the rulemaking through submission of comments. We and others
cannot possibly provide the level of meaningful feedback that would be necessary to capture all
concerns with and possible unintended consequences of the proposed rulemaking, particularly
given the ambiguities and questions raised by the proposal.
For the foregoing reasons, we urge the OCC to withdraw the proposed rulemaking in its entirety.
Please contact Jorge Andres Soto, Associate Vice President of Policy and Advocacy at the
National Fair Housing Alliance, at JSoto@nationalfairhousing.org or 202-898-1661 should you
have any questions.

Multi-State and National Organizations
Americans for Financial Reform Education Fund
Center for Disability Rights
Center for Responsible Lending
Consumer Action
Equal Rights Center
Local Initiatives Support Corporation (LISC)
National Community Reinvestment Coalition
National Disability Rights Network (NDRN)
National Fair Housing Alliance
Poverty & Race Research Action Council
4 See OCC, Bull. 2020-100 (Nov. 16, 2020) (“the generally recommended time for comment is 60 days”).


The Leadership Conference on Civil and Human Rights
Woodstock Institute
Local and State Organizations
Organization City State
Fair Housing Center of Northern Alabama Birmingham AL
Southwest Fair Housing Council Tucson AZ
California Reinvestment Coalition San Francisco CA
Fair Housing Advocates of Northern California San Rafael CA
Project Sentinel Santa Clara CA
Connecticut Fair Housing Center Hartford CT
Fair Housing Center of the Greater Palm Beaches Lantana FL
Housing Opportunities Project for Excellence (HOPE), Inc. Miami FL
Metro Fair Housing Services, Inc. Atlanta GA
Savannah-Chatham County Fair Housing Council Savannah GA
Intermountain Fair Housing Council, Inc. Boise ID
Northside Community Resources Chicago – Fair Housing Program Chicago IL
South Suburban Housing Center Homewood IL
Louisiana Fair Housing Action Center New Orleans LA
Massachusetts Fair Housing Center, Inc. Holyoke MA
Fair Housing Center of West Michigan Grand Rapids MI
High Plains Fair Housing Center Grand Forks ND
Long Island Housing Services Bohemia NY
Fair Housing Justice Center, Inc. Long Island City NY
ERASE Racism Syosset NY
CNY Fair Housing, Inc. Syracuse NY
Westchester Residential Opportunities White Plains NY
Fair Housing Advocates Association Akron OH
Miami Valley Fair Housing Center, Inc. Dayton OH
The Fair Housing Center Toledo OH
North Texas Fair Housing Center Dallas TX
Greater Houston Fair Housing Center Houston TX
Fair Housing Council of Greater San Antonio San Antonio TX
Piedmont Housing Alliance Charlottesville VA
Fair Housing Center of Washington Tacoma WA