On August 25, the CFPB, the FDIC, the NCUA, the OCC, HUD, DOJ, and the FHFA jointly rescinded the February 22, 2022, Interagency Statement on Special Purpose Credit Programs (SPCPs) under the ECOA and Regulation B (previously covered by InfoBytes here). The agencies stated that the rescission is necessary to ensure creditors do not rely on the statement to engage in discriminatory activities inconsistent with the ECOA, Regulation B, and the Fair Housing Act. The agencies noted that the 2022 statement referenced a provision of Regulation B that has since been amended (previously covered here) and that the assurances regarding conformity with the Fair Housing Act were based on HUD guidance that is no longer in effect.

The agencies stated that they acted pursuant to several executive orders addressing deregulation and nondiscrimination principles. They also stated that prior interpretations underlying the 2022 statement cannot be reconciled with the statutory text of the ECOA and the Fair Housing Act, which expressly prohibit discrimination based on protected characteristics. The notice referenced the Supreme Court’s holding that race-based policies are subject to heightened scrutiny and that a general desire to remedy societal discrimination does not satisfy that standard. The agencies noted they had already individually withdrawn related guidance, including HUD’s December 2021 guidance on SPCPs and the CFPB’s December 2020 advisory opinion on SPCPs under Regulation B (previously covered by InfoBytes here). The notice stated that federal law “does not authorize generalized remedial ‘equity’ initiatives absent specific cases of unlawful discrimination.”

Although the Fed did not participate in the interagency rescission, the Board subsequently withdrew its related guidance, stating that the withdrawal was “due to the rescission by other agencies of guidance referenced in the statement, and changes to a non-Board regulation implementing” the ECOA.