OCC Proposes ‘Fair Access’ Rule

Monday, November 23, 2020

On Nov. 20, the Workplace of the Comptroller of the Forex (OCC) proposed a regulation that will enable nationwide banks and federal financial savings associations to refuse service to fossil gas firms and different companies in “politically controversial” industries provided that a particular firm failed to fulfill quantitative, risk-based requirements established upfront by the coated financial institution. If finalized, the proposed Honest Entry to Monetary Companies rule may affect monetary establishments’ method to Environmental, Social, and Governance (ESG) scores and Socially Accountable Investing (SRI).

Background

In June 2020, the Alaska congressional delegation despatched a letter to the OCC discussing choices by a number of of the nation’s largest banks to cease lending to new oil and gasoline tasks within the Arctic. The letter said that whereas the authors believed that the banks’ rationale was politically motivated, the banks had relied on claims of reputational threat to justify their choices.

In response to this letter, the OCC requested data from a number of giant banks. The responses obtained indicated that, over the previous two years, the banks had determined to stop offering monetary providers to a number of main trade classes, together with coal mining, coal-fired electrical energy technology, and oil exploration within the Arctic area. The terminated providers weren’t restricted to lending, but additionally advisory and different providers unrelated to credit score or operational threat. In a number of cases, the banks indicated that they solely intend to make exceptions when sure non-financial benchmarks are met, similar to whether or not the nation wherein a undertaking is positioned has dedicated to the Paris Settlement and whether or not the undertaking adequately controls carbon emissions.

Key Necessities of the Proposed Rule

The proposed rule would apply to any coated financial institution with a minimum of $100 billion in complete property with a possible nationwide market share threshold for banks not in any other case coated. A coated financial institution would want to have the ability to set up, by means of a evaluate of its operations and written procedures and insurance policies, that it:

Makes every monetary service it affords obtainable to all individuals within the geographic market served by the coated financial institution on proportionally equal phrases;

Doesn’t deny any particular person a monetary service the financial institution affords besides to the extent justified by such particular person’s quantified and documented failure to fulfill quantitative, risk-based requirements established upfront by the coated financial institution;

Doesn’t deny any particular person a monetary service the financial institution affords when the impact of the denial is to stop, restrict, or in any other case drawback the particular person from getting into or competing in a market or enterprise section or in such a means that advantages one other particular person or enterprise exercise wherein the coated financial institution has a monetary curiosity; and

Doesn’t deny, in coordination with others, any particular person a monetary service the coated financial institution affords.

If Finalized, Potential ESG Implications

ESG and SRI have been of accelerating curiosity to people, monetary establishments, and company purchasers throughout industries. Nonetheless, the present implementation of ESG and SRI is usually extra qualitative than quantitative, with quite a few frameworks, requirements, and scores informing distinctive company-by-company packages. If finalized, the Honest Entry to Monetary Companies rule may transfer the monetary providers trade in the direction of larger standardization.

The proposed rule cites a number of examples of the stress banks have confronted from for-profit and nonprofit sectors in recent times, together with stress to de-bank agribusiness, household planning organizations, producers of firearms, and house owners of privately owned correctional amenities. In its proposal, the OCC states that “it’s our understanding that in these cases, some banks have refused service based mostly on standards unrelated to secure and sound banking practices, together with: (1) private beliefs and opinions on issues of substantive coverage which can be extra appropriately the purview of state and Federal legislatures; (2) assessments ungrounded in quantitative, risk-based evaluation; and (3) assessments premised on assumptions about future authorized or political modifications.”

If the rule is finalized, monetary providers establishments might discover themselves trying to find frameworks that combine ESG components right into a valuation mannequin (e.g., ESG Quant) and/or that may be utilized throughout industries (e.g., Equator Rules 4) in order to not be accused of refusing service to a whole trade based mostly on “comfortable components” or political or qualitative bases.

What’s Subsequent?

Feedback on the proposed rule should be obtained by Jan. 4, 2021. After all, with solely two months left within the present Administration, it’s unclear what the trail ahead for this rule could be; the timing might elevate objections from Democrats. Whatever the end result, it might be a super time for monetary establishments to evaluate their present ESG and SRI insurance policies and procedures and contemplate whether or not these insurance policies embrace a standardized analysis throughout industries and combine ESG components into quantitative fashions.