FDIC Chairman Jelena McWilliams recently stated that the FDIC is not contemplating a rulemaking “at this time” similar to the OCC’s proposed fair access rule issued last month.

Chairman McWilliams made this statement in response to a question asked during the FDIC’s presentation of third quarter 2020 results for FDIC-insured institutions. Ms. McWilliams was asked whether the FDIC supported the OCC’s proposal and was contemplating issuing a similar proposal.  In perhaps a veiled reference to Operation ChokePoint, Ms. McWilliams noted that the FDIC has an “interesting history” on similar issues.  She indicated that the FDIC has been careful to articulate the position that financial institutions should not exclude entire whole categories of businesses or customers when offering services and that while it has not put this position in a rule, the FDIC has stated “something similar” to the OCC over the years.

She stated that the FDIC will make sure its examination instructions are clear and its examiners are appropriately trained and that banks understand that they should assess risk profiles and manage that risk with individual customers and not whole categories of customers or businesses.  Ms. McWilliams also stated that the FDIC has found this approach to be very effective and plans to continue on this path for the foreseeable future.

Leonard Chanin, Deputy to the FDIC Chairman, confirmed that the FDIC has no current plans to engage in a fair access rulemaking in his remarks last week at PLI’s 25th Annual Consumer Financial Services Institute, which I co-chaired.  Leonard participated as the FDIC’s representative in a panel discussion titled “Federal Regulators Speak.”