Comptroller of the Currency Issues Bulletin on Fair Lending – Interagency Statement on Special Purpose Credit Programs
Note for
This bulletin applies to all community banks./1
Highlights
This bulletin
* conveys the interagency statement, which
* reminds creditors, which include those that are banks, of the ability under the ECOA and Regulation B to establish SPCPs to meet the credit needs of specified classes of persons.
* calls attention to the recent HUD guidance concluding that SPCPs instituted in conformity with ECOA and Regulation B generally do not violate the Fair Housing Act./2
* provides additional information about SPCPs under ECOA and Regulation B.
* discusses the agency's role regarding SPCPs.
Additional Information About Special Purpose Credit Programs Under ECOA and Regulation B, and Recent HUD Guidance
ECOA and Regulation B
ECOA provides that "[i]t shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction" on a prohibited basis./3
Prohibited bases under ECOA are race, color, religion, national origin, sex, marital status, age (provided that the applicant has the capacity to contract), because all or part of the applicant's income derives from any public assistance program and because the applicant has in good faith exercised any right under the Consumer Credit Protection Act.
ECOA provides, however, that the prohibitions against discrimination are not violated when a for-profit creditor refuses to extend credit offered pursuant to an SPCP that meets the standards in Regulation B./4
For example, such programs may include initiatives for low-income minority borrowers, or small business lending programs providing credit to minority- or disabled-owned businesses./5
On
In addition, the Advisory Opinion clarifies the type of research and data that may be appropriate to inform a for-profit organization's determination to establish an SPCP to benefit a specified class of persons and provides examples./7
Recent HUD Guidance
On
The legal opinion concludes that a for-profit institution's SPCP designed and implemented in compliance with ECOA and Regulation B generally does not violate the Fair Housing Act.
On
Citing HUD's
The FHEO statement provides that "[s]uch programs, if constructed thoughtfully and in accordance with the
The
The OCC's Supervisory Role Regarding SPCPs
The OCC and other agencies that supervise for and enforce ECOA and Regulation B do not determine whether a program qualifies for SPCP status or whether a particular program benefits an "economically disadvantaged class of persons." Longstanding Official Staff Commentary to Regulation B provides that those determinations must be made by a creditor./12
The OCC has a long-standing practice of consulting with its regulated institutions that are considering introducing SPCPs. Although not required, such consultations may allow banks to benefit from the perspective of OCC experts familiar with other SPCPs. Additionally, such consultations benefit the OCC by giving the agency a broader perspective on the populations and the credit products or services that are the focus of the proposed SPCP./13
Further Information
Please contact
Senior Deputy Comptroller for Bank Supervision Policy
Related Link
* "Interagency Statement on Special Purpose Credit Programs Under the Equal Credit Opportunity Act and Regulation B" (PDF) (https://www.occ.gov/news-issuances/bulletins/2022/bulletin-2022-3a.pdf)
* * *
Footnotes:
1/ "Banks" refers collectively to national banks, federal savings associations, covered savings associations, and federal branches and agencies of foreign banking organizations.
2/ Refer to HUD's "
3/ Refer to 15
4/ Refer to 15
5/ Refer to 12 CFR 1002.8, Supplement I, Comment 8(a)-5; Equal Credit Opportunity (Regulation B); Special Purpose Credit Programs, 86 Fed. Reg. 3762, 3765 (
6/ Refer to 86 Fed. Reg. at 3762, 3764-65 (
7/ Refer to 86 Fed. Reg. at 3765-66.
8/ Refer to HUD's "
9/ Refer to "FHEO's Statement by
10/ Ibid.
11/ Ibid.
12/ Refer to
13/ For example, OCC Advisory Letter 2003-8, "Financing Minority Businesses," provides information on ways that banks can satisfy the financing needs of minority business entrepreneurs consistent with safe and sound banking practices, describes appropriate risk mitigation practices with respect to fair lending, references the availability of SPCPs, and states that the OCC encourages banks considering SPCPs to discuss their plans with their examiners.



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