,,ii #aaith ,,congress #ast ,session ,s4 #dja ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,february #d1 #bjbe,mr4 ,cramer 7for himself1 ,mr4 ,banks1 ,mr4 ,barrasso1 ,mrs4 ,blackburn1 ,mr4 ,boozman1 ,mrs4 ,britt1 ,mr4 ,budd1 ,mrs4 ,capito1 ,mr4 ,cassidy1 ,mr4 ,cornyn1 ,mr4 ,cotton1 ,mr4 ,crapo1 ,mr4 ,cruz1 ,mr4 ,curtis1 ,mr4 ,daines1 ,ms4 ,ernst1 ,mrs4 ,fischer1 ,mr4 ,graham1 ,mr4 ,hagerty1 ,mr4 ,hoeven1 ,mrs4 ,hyde-,smith1 ,mr4 ,johnson1 ,mr4 ,justice1 ,mr4 ,kennedy1 ,mr4 ,lankford1 ,ms4 ,lummis1 ,mr4 ,marshall1 ,mr4 ,mc,cormick1 ,mr4 ,moran1 ,mr4 ,moreno1 ,mr4 ,mullin1 ,mr4 ,ricketts1 ,mr4 ,risch1 ,mr4 ,schmitt1 ,mr4 ,scott of ,florida1 ,mr4 ,scott of ,south ,carolina1 ,mr4 ,sheehy1 ,mr4 ,sullivan1 ,mr4 ,tillis1 ,mr4 ,tuberville1 and ,mr4 ,wicker7 introduced the following bill2 which was read twice and referred to the ,committee on ,banking1 ,housing1 and ,urban ,affairs ,a ,,bill ,to amend the ,federal ,reserve ,act to prohibit certain financial service providers who deny fair access to financial services from using taxpayer funded discount window lending programs1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,fair ,access to ,banking ,act4 #b4 ,findings ,congress finds that-- 7#a7 article ,i of the ,constitution of the ,united ,states guarantees the people of the ,united ,states the right to enact public policy through the free and fair election of representatives and through the actions of ,state legislatures and ,congress2 7#b7 banks rightly objected to the ,operation ,choke ,point initiative through which certain government agencies pressured banks to cut off access to financial services to lawful sectors of the economy2 7#c7 banks are now1 however1 increasingly employing subjective1 category-based evaluations to deny certain persons access to financial services in response to pressure from advocates from across the political spectrum whose policy objectives are served when banks deny certain customers access to financial services2 7#d7 the privatization of the discriminatory practices underlying ,operation ,choke ,point by banks represents as great a threat to the national economy1 national security1 and the soundness of banking and financial markets in the ,united ,states as ,operation ,choke ,point itself2 7#e7 banks are supported by the ,united ,states taxpayers and enjoy significant privileges in the financial system of the ,united ,states and should not be permitted to act as de facto regulators or unelected legislators by withholding financial services to otherwise credit worthy businesses based on subjective political reasons1 bias1 or prejudices2 7#f7 banks are not well-equipped to balance risks unrelated to financial exposures and the operations required to deliver financial services2 7#g7 the ,united ,states taxpayers came to the aid for large banks during the ,great ,recession of #bjjh because they were deemed too important to the national economy to be permitted to fail2 7#h7 when a bank predicates the access to financial services of a person on factors or information 7such as the lawful products a customer manufactures or sells or the services the customer provides7 other than quantitative1 impartial risk-based standards1 the bank has failed to act consistent with basic principles of sound risk management and failed to provide fair access to financial services2 7#i7 banks have a responsibility to make decisions about whether to provide a person with financial services on the basis of impartial criteria free from prejudice or favoritism2 7#aj7 while fair access to financial services does not obligate a bank to offer any particular financial service to the public1 to operate in any particular geographic area1 or to provide a service the bank offers to any particular person1 it is necessary that-- 7,a7 the financial services a bank chooses to offer in the geographic areas in which the bank operates be made available to all customers based on the quantitative1 impartial risk-based standards of the bank1 and not based on whether the customer is in a particular category of customers2 7,b7 banks assess the risks posed by individual customers on a case-by-case basis1 rather than category-based assessment2 and 7,c7 banks implement controls to manage relationships commensurate with these risks associated with each customer1 not a strategy of total avoidance of particular industries or categories of customers2 7#aa7 banks are free to provide or deny financial services to any individual customer1 but first1 the banks must rely on empirical data that are evaluated consistent with the established1 impartial risk-management standards of the bank2 and 7#ab7 anything less is not prudent risk management and may result in unsafe or unsound practices1 denial of fair access to financial services1 cancelling1 or eliminating certain businesses in society1 and have a deleterious effect on national security and the national economy4 #c4 ,purposes ,the purposes of this ,act are to-- 7#a7 ensure fair access to financial services and fair treatment of customers by financial service providers1 including national and ,state banks1 ,federal savings associations1 and ,state and ,federal credit unions2 7#b7 ensure banks conduct themselves in a safe and sound manner1 comply with laws and regulations1 treat their customers fairly1 and provide fair access to financial services2 7#c7 protect against banks being able to impede otherwise lawful commerce and thereby achieving certain public policy goals2 7#d7 ensure that persons involved in politically unpopular businesses but that are lawful under ,federal law receive fair access to financial services under the law2 and 7#e7 ensure banks operate in a safe and sound manner by making judgments and decisions about whether to provide a customer with financial services on an impartial1 individualized risk-based analysis using empirical data evaluated under quantifiable standards4 #d4 ,advances to individual member banks 7a7 ,member banks ,section #aj;,b of the ,federal ,reserve ,act 7#ab ,u4,s4,c4 #cdg;b7 is amended by adding at the end the following3 7c7 ,prohibition on use of discount window lending programs ,no member bank with more than #aj1jjj1jjj1jjj in total consolidated assets1 or subsidiary of the member bank1 may use a discount window lending program if the member bank or subsidiary refuses to do business with any person who is in compliance with the law1 including section #h of the ,fair ,access to ,banking ,act4 4 7b7 ,insured depository institutions ,section #h7;a77#b77;,a7 of the ,federal ,deposit ,insurance ,act 7#ab ,u4,s4,c4 #ahah7;a77#b77;,a77 is amended-- 7#a7 in clause 7ii71 by striking or at the end2 7#b7 in clause 7iii71 by striking the comma at the end and inserting 2 or2 and 7#c7 by adding at the end the following3 7iv7 an insured depository institution with more than #aj1jjj1jjj1jjj in total consolidated assets1 or subsidiary of the insured depository institution1 that refuses to do business with any person who is in compliance with the law1 including section #h of the ,fair ,access to ,banking ,act1 4 7c7 ,nonmember banks1 trust companies1 and other depository institutions ,section #ac of the ,federal ,reserve ,act 7#ab ,u4,s4,c4 #cdb7 is amended by inserting ,provided further1 ,that no such nonmember bank or trust company or other depository institution with more than #aj1jjj1jjj1jjj in total consolidated assets1 or subsidiary of such nonmember bank or trust company or other depository institution1 may refuse to do business with any person who is in compliance with the law1 including 1 including section #h of the ,fair ,access to ,banking ,act3 after appropriate34 #e4 ,payment card network 7a7 ,definition ,in this section1 the term payment card network has the meaning given the term in section #iba7;c7 of the ,electronic ,fund ,transfer ,act 7#ae ,u4,s4,c4 #afico-#b7;c774 7b7 ,prohibition ,no payment card network1 including a subsidiary of a payment card network1 may1 directly or through any agent1 processor1 or licensed member of the network1 by contract1 requirement1 condition1 penalty1 or otherwise1 prohibit or inhibit the ability of any person who is in compliance with the law1 including section #h of this ,act1 to obtain access to services or products of the payment card network because of political or reputational risk considerations4 7c7 ,civil penalty ,any payment card network that violates subsection 7b7 shall be assessed a civil penalty by the ,comptroller of the ,currency of not more than #aj percent of the value of the services or products described in that subsection1 not to exceed #aj1jjj per violation4 #f4 ,credit unions ,section #bjf7;b77#a7 of the ,federal ,credit ,union ,act 7#ab ,u4,s4,c4 #aghf7 is amended by inserting or is refusing or has refused1 or has a subsidiary that is refusing or has refused1 to do business with any person who is in compliance with the law1 including section #h of the ,fair ,access to ,banking ,act1 after as an insured credit union14 #g4 ,use of automated clearing house network 7a7 ,definitions ,in this section3 7#a7 ,covered credit union ,the term covered credit union means-- 7,a7 any insured credit union1 as defined in section #aja of the ,federal ,credit ,union ,act 7#ab ,u4,s4,c4 #ageb72 or 7,b7 any credit union that is eligible to make application to become an insured credit union under section #bja of the ,federal ,credit ,union ,act 7#ab ,u4,s4,c4 #agha74 7#b7 ,member bank ,the term member bank has the meaning given the term in the third undesignated paragraph of the first section of the ,federal ,reserve ,act 7#ab ,u4,s4,c4 #bba74 7b7 ,prohibition ,no covered credit union1 member bank1 or ,state-chartered non-member bank with more than #aj1jjj1jjj1jjj in total consolidated assets1 or a subsidiary of the covered credit union1 member bank1 or ,state-chartered non-member bank1 may use the ,automated ,clearing ,house ,network if that member bank1 credit union1 or subsidiary of the member bank or credit union1 refuses to do business with any person who is in compliance with the law1 including section #h of this ,act4 #h4 ,fair access to financial services 7a7 ,definitions ,in this section3 7#a7 ,bank ,the term bank-- 7,a7 means an entity for which the ,office of the ,comptroller of the ,currency is the appropriate ,federal banking agency1 as defined in section #c of the ,federal ,deposit ,insurance ,act 7#ab ,u4,s4,c4 #ahac72 and 7,b7 includes-- 7i7 member banks2 7ii7 non-member banks2 7iii7 covered credit unions2 7iv7 ,state-chartered non-member banks2 and 7v7 trust companies4 7#b7 ,covered bank 7,a7 ,in general ,the term covered bank means a bank that has the ability to-- 7i7 raise the price a person has to pay to obtain an offered financial service from the bank or from a competitor2 or 7ii7 significantly impede a person1 or the business activities of a person1 in favor of or to the advantage of another person4 7,b7 ,presumption 7i7 ,in general ,a bank shall not be presumed to be a covered bank if the bank has less than #aj1jjj1jjj1jjj in total assets4 7ii7 ,rebuttable presumption 7,i7 ,in general ,a bank is presumed to be a covered bank if the bank has #aj1jjj1jjj1jjj or more in total assets4 7,,ii7 ,rebuttal ,a bank that meets the criteria under subclause 7,i7 can seek to rebut this presumption by submitting to the ,office of the ,comptroller of the ,currency written materials that1 in the judgement of the agency1 demonstrate the bank does not meet the definition of covered bank4 7#c7 ,covered credit union ,the term covered credit union means-- 7,a7 any insured credit union1 as defined in section #aja of the ,federal ,credit ,union ,act 7#ab ,u4,s4,c4 #ageb72 or 7,b7 any credit union that is eligible to make application to become an insured credit union under section #bja of the ,federal ,credit ,union ,act 7#ab ,u4,s4,c4 #agha74 7#d7 ,deny ,the term deny means to deny or refuse to enter into or terminate an existing financial services relationship with a person4 7#e7 ,fair access to financial services ,the term fair access to financial services means persons engaged in activities lawful under ,federal law are able to obtain financial services at banks without impediments caused by a prejudice against or dislike for a person or the business of the customer1 products or services sold by the person1 or favoritism for market alternatives to the business of the person4 7#f7 ,financial service ,the term financial service means a financial product or service1 including-- 7,a7 commercial and merchant banking2 7,b7 lending2 7,c7 financing2 7,d7 leasing2 7,e7 cash1 asset1 and investment management and advisory services2 7,f7 credit card services2 7,g7 payment processing2 7,h7 security and foreign exchange trading and brokerage services2 and 7,i7 insurance products4 7#g7 ,member bank ,the term member bank has the meaning given the term in the third undesignated paragraph of the first section of the ,federal ,reserve ,act 7#ab ,u4,s4,c4 #bba74 7#h7 ,person ,the term person-- 7,a7 means-- 7i7 any natural person2 or 7ii7 any partnership1 corporation1 or other business or legal entity2 and 7,b7 includes a customer4 7b7 ,requirements 7#a7 ,in general ,to provide fair access to financial services1 a covered bank1 including a subsidiary of a covered bank1 shall1 except as necessary to comply with another provision of law-- 7,a7 make each financial service the covered bank offers available to all persons in the geographic market served by the covered bank on proportionally equal terms2 7,b7 not deny any person a financial service the covered bank offers unless the denial is justified by such quantified and documented failure of the person to meet quantitative1 impartial risk-based standards established in advance by the covered bank2 7,c7 not deny1 in coordination with or at the request of others1 any person a financial service the covered bank offers2 and 7,d7 when denying any person financial services the covered bank offers1 provide written justification to the person explaining the basis for the denial1 including any specific laws or regulations the covered bank believes are being violated by the person or customer4 7#b7 ,justification requirement ,a justification described in paragraph 7#a77;,d7 may not be based solely on the reputational risk to the covered bank4 7c7 ,cause of action for violations of this section 7#a7 ,in general ,notwithstanding any other provision of law1 a person may commence a civil action in the appropriate district court of the ,united ,states against any covered bank or covered credit union that violates or fails to comply with the requirements under this section1 for harm that person suffered as a result of such violation4 7#b7 ,no exhaustion ,it shall not be necessary for a person to exhaust its administrative remedies before commencing a civil action under this section4 7#c7 ,damages ,if a person prevails in a civil action under this section1 a court shall award the person-- 7,a7 reasonable attorney's fees and costs2 and 7,b7 treble damages4