This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

30097 

Vol. 87, No. 96 

Wednesday, May 18, 2022 

1 85 FR 77987 (Dec. 3, 2020). 

2 15 U.S.C. 1691 et seq. 

3 12 CFR part 1002. 

4S. Rep. 94–589, 94th Cong., 2nd Sess., at 4, 

reprinted in 1976 U.S.C.C.A.N. 403, 406. 

5S. Rep. 93–278, 93rd Cong., 1st Sess., at 16 

(1973). 

6Public Law 93–495, sec. 503, 88 Stat. 1521, 1521 

(1974). 

7Public Law 93–495, sec. 503, 88 Stat. at 1522 

(codified at 15 U.S.C. 1691a(b)). 

8S. Rep. 93–278, at 27 (emphasis added). 

9S. Rep. 93–278, at 17. 

10 15 U.S.C. 1691e(a). 

11 15 U.S.C. 1691a(g) (‘‘Any reference to any 

requirement imposed under this subchapter . . . 

includes reference to the regulations of the Bureau 

under this subchapter . . . .’’). 

12Public Law 93–495, sec. 503, 88 Stat. at 1522. 

13See 40 FR 49298 (Oct. 22, 1975) (promulgating 

12 CFR part 202); 40 FR 42030 (Sept. 10, 1975); 40 

FR 18183 (Apr. 25, 1975). 

14 12 CFR 202.3(c) (1976); see also 40 FR 49306. 

15 40 FR 49298 (quoting 15 U.S.C. 1691(a)). 

16See ECOA Amendments of 1976, Public Law 

94–239, 90 Stat. 251. 

17ECOA Amendments of 1976, Public Law 94– 

239, sec. 2, 90 Stat. 251 (codified at 15 U.S.C. 

1691(a)). In 2021, the CFPB issued an interpretive 

rule to clarify that, with respect to any aspect of a 

credit transaction, the prohibition against sex 

discrimination in ECOA and Regulation B 

encompasses sexual orientation discrimination and 

gender identity discrimination, including 

discrimination based on actual or perceived 

nonconformity with sex-based or gender-based 

stereotypes and discrimination based on an 

applicant’s associations. 86 FR 14363 (Mar. 16, 

2021). 

18S. Rep. 94–589, 94th Cong., 2nd Sess., at 2, 

reprinted in 1976 U.S.C.C.A.N. 403, 404. 

19 15 U.S.C. 1691(d)(2); see also 15 U.S.C. 

1691(d)(3) (‘‘A statement of reasons meets the 

requirements of this section only if it contains the 

specific reasons for the adverse action taken.’’). In 

lieu of providing this statement of specific reasons, 

a creditor may instead disclose the applicant’s right 

Continued 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1002 

Equal Credit Opportunity (Regulation 

B); Revocations or Unfavorable 

Changes to the Terms of Existing 

Credit Arrangements 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Advisory opinion. 

SUMMARY: The Consumer Financial 

Protection Bureau (CFPB) is issuing this 

advisory opinion to affirm that the 

Equal Credit Opportunity Act and 

Regulation B protect not only those 

actively seeking credit but also those 

who sought and have received credit. 

DATES: This advisory opinion is 

applicable on May 18, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Davis, Attorney-Advisor; 

Office of Fair Lending and Equal 

Opportunity, at CFPB_FairLending@

cfpb.gov or 202–435–7000. If you 

require this document in an alternative 

electronic format, please contact CFPB_

Accessibility@cfpb.gov. 

SUPPLEMENTARY INFORMATION: The CFPB 

is issuing this advisory opinion through 

the procedures for its Advisory 

Opinions Policy.1 Refer to those 

procedures for more information. 

I. Advisory Opinion 

A. Background 

The Bureau is issuing this advisory 

opinion to affirm that the Equal Credit 

Opportunity Act (ECOA) 2 and 

Regulation B 3 protect both those 

actively seeking credit and those who 

sought and have received credit. ECOA 

is a landmark civil rights law that 

protects individuals and businesses 

against discrimination in accessing and 

using credit—‘‘a virtual necessity of 

life’’ for most people.4 Congress enacted 

ECOA in 1974, initially to address 

‘‘widespread discrimination . . . in the 

granting of credit to women.’’ 5

Accordingly, ECOA made it unlawful 

for ‘‘any creditor to discriminate against 

any applicant on the basis of sex or 

marital status with respect to any aspect 

of a credit transaction.’’ 6 From the 

beginning, this prohibition has 

protected both those actively seeking 

credit and those who sought and have 

received credit. 

Then as now, ECOA defined 

‘‘applicant’’ to mean ‘‘any person who 

applies to a creditor directly for an 

extension, renewal, or continuation of 

credit, or applies to a creditor indirectly 

by use of an existing credit plan for an 

amount exceeding a previously 

established credit limit.’’ 7 The drafters 

of these provisions emphasized that 

ECOA’s prohibition on discrimination 

‘‘applies to all credit transactions 

including the approval, denial, renewal, 

continuation, or revocation of any openend consumer credit account.’’ 8 Among 

other examples of the sort of 

discrimination against ‘‘applicants’’ that 

ECOA would bar, its drafters cited a 

scenario in which a lender required a 

‘‘newly married woman whose 

creditworthiness has otherwise 

remained the same’’ to reapply for her 

existing credit arrangement as a new 

applicant.9 The Act also created a 

private right of action under which 

aggrieved ‘‘applicant[s]’’ can hold liable 

a creditor that fails to comply with ‘‘any 

requirement imposed under [ECOA].’’ 10

And it provided that this private right 

of action extends to violations of any 

requirement imposed under ECOA’s 

implementing regulations.11

Congress originally tasked the Board 

of Governors of the Federal Reserve 

System (Board) with prescribing those 

regulations.12 The Board issued those 

rules, known as Regulation B, the year 

after ECOA was enacted and several 

days before the Act took effect.13 From 

the beginning, Regulation B made clear 

that the new law’s protections against 

credit discrimination cover both those 

currently applying to receive credit and 

those who have already received it. It 

did so by defining ‘‘applicant’’ to 

expressly include not only ‘‘any person 

who applies to a creditor directly for an 

extension, renewal or continuation of 

credit’’ but also, ‘‘[w]ith respect to any 

creditor[,] . . . any person to whom 

credit is or has been extended by that 

creditor.’’ 14 In explaining this 

provision, the Board noted that ECOA’s 

express terms and its legislative history 

‘‘demonstrate that Congress intended to 

reach discrimination . . . ‘in any aspect 

of a credit transaction.’ ’’ 15

Two years after enacting ECOA, 

Congress significantly broadened the 

Act to prohibit discrimination on bases 

in addition to sex and marital status.16

These bases now generally include 

‘‘race, color, religion, national origin, 

sex or marital status, or age’’ as well as 

the receipt of public-assistance 

income.17 In what the Senate drafters 

called ‘‘one of [the amendments’] most 

important provisions,’’ 18 the 

amendments also provided that ‘‘[e]ach 

applicant against whom adverse action 

is taken shall be entitled to a statement 

of reasons for such action from the 

creditor.’’ 19 The amendments defined 


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to receive such a statement. 15 U.S.C. 1691(d)(2)(B); 

see also 12 CFR 1002.9(a)(2)(ii). 20 15 U.S.C. 1691(d)(6). 21 Fischl v. Gen. Motors Acceptance Corp., 708 

F.2d 143, 146 (5th Cir. 1983); see also id. (calling 

these provisions ‘‘[p]erhaps the most significant of 

the 1976 amendments to the ECOA’’). 

22Treadway v. Gateway Chevrolet Oldsmobile 

Inc., 362 F.3d 971, 977–78 (7th Cir. 2004) (quoting 

Fischl, 708 F.2d at 146); see also S. Rep. 94–589, 

at 4 (calling the notice requirement ‘‘a strong and 

necessary adjunct to the antidiscrimination purpose 

of the legislation’’). 

23S. Rep. 94–589, at 4. 

24 Id. 

25 42 FR 1242 (Jan. 6, 1977); 41 FR 49123 (Nov. 

8, 1976); 41 FR 29870 (July 20, 1976). 

26 12 CFR 1002.2(c)(1)(ii). 

27 12 CFR 1002.9(b)(2). 

28 41 FR 29870, 29871 (July 20, 1976) (proposed 

rule). 

29 12 CFR 202.3(c) (1976). 

30 12 CFR 202.2(e) (1978) (emphasis added); see 

also 42 FR 1242, 1252 (Jan. 6, 1977) (final rule). 

31See 12 CFR 1002.2(e). 

32Public Law 111–203, sec. 1085, 124 Stat. 1376, 

2083–84. 

33See 76 FR 79442 (Dec. 21, 2011) (promulgating 

12 CFR part 1002 & supplement I). 

34CFPB Supervision and Examination Manual, at 

ECOA 7, https://files.consumerfinance.gov/f/ 

documents/201510_cfpb_ecoa-narrative-andprocedures.pdf (emphasis added); see also id. at 

ECOA 10 (‘‘[a] creditor must preserve any written 

or recorded information concerning adverse action 

on an existing account as well as any written 

statement submitted by the applicant alleging a 

violation of the ECOA or Regulation B.’’). 

35See 15 U.S.C. 1691a(e). 

36See 12 CFR 202.3(c) (1976) (expressly defining 

the term ‘‘applicant’’ to include ‘‘any person to 

whom credit is or has been extended’’). 

37See Brief of Amici Curiae Consumer Fin. Prot. 

Bureau, Dep’t of Justice, Bd. of Governors of the 

Fed. Reserve Sys., and Fed. Trade Comm’n in 

Support of Appellant and Reversal, Fralish v. Bank 

of Am., No. 21–2846 (7th Cir. filed Dec. 16, 2021), 

https://files.consumerfinance.gov/f/documents/ 

cfpb_fralish-v-bank-of-america_amicus-brief_2021- 

12.pdf; Brief of Amici Curiae Consumer Fin. Prot. 

Bureau and Fed. Trade Comm’n, TeWinkle v. 

Capital One, N.A., No. 20–2049 (2d Cir. filed Oct. 

7, 2020), https://files.consumerfinance.gov/f/ 

documents/cfpb_amicus-brief_tewinkle-v-capitalone-na_2020-10.pdf. 

38Credit cards are one of the most commonly 

held and widely used financial products in 

America—over 175 million Americans hold at least 

one credit card. During the COVID–19 pandemic, 

credit cards played a vital role as both a source of 

credit in emergencies and a payment method as 

more transactions occurred online. According to the 

CFPB’s 2021 Credit Card Report, about 2%, or over 

10 million credit card accounts, were closed in 

2020 and consumers with low credit scores are two 

to three times more likely to have their accounts 

closed than those with a higher credit score. See 

Bureau of Consumer Fin. Prot., The Consumer 

Credit Card Market (Sept. 2021), https://files.

consumerfinance.gov/f/documents/cfpb_consumercredit-card-market-report_2021.pdf. Additionally, 

the same report shows that over 10 million accounts 

experienced a credit line decrease in 2020. See id.; 

see also 5 Reasons Credit Card Companies Close 

Accounts Without Notice—And How to Fix Them, 

USA TODAY (July 13, 2021), https://www.usatoday.

com/story/money/personalfinance/budget-andspending/2021/07/13/5-reasons-a-credit-cardcompany-can-close-your-account-with-no-notice/ 

‘‘adverse action’’ as ‘‘a denial or 

revocation of credit, a change in the 

terms of an existing credit arrangement, 

or a refusal to grant credit in 

substantially the amount or on 

substantially the terms requested.’’ 20

Thus, since 1976, ECOA has provided 

that ‘‘applicants’’ are entitled to an 

explanation when the terms of an 

existing credit arrangement are altered 

or the credit cancelled outright, among 

other circumstances. 

ECOA’s notice requirements ‘‘were 

designed to fulfill the twin goals of 

consumer protection and education.’’ 21

In terms of consumer protection, ‘‘the 

notice requirement is intended to 

prevent discrimination ex ante because 

‘if creditors know they must explain 

their decisions . . . they [will] 

effectively be discouraged’ from 

discriminatory practices.’’ 22 The notice 

requirement ‘‘fulfills a broader need’’ as 

well by educating consumers about the 

reasons for the creditor’s action.23 As a 

result of being informed of the specific 

reasons for the adverse action, 

consumers can take steps to try to 

improve their credit status or, in cases 

‘‘where the creditor may have acted on 

misinformation or inadequate 

information[,] . . . to rectify the 

mistake.’’ 24

Following the ECOA Amendments of 

1976, the Board amended Regulation B, 

including by adding new provisions to 

implement ECOA’s notice 

requirement.25 The amended rule 

defined ‘‘adverse action’’ to include ‘‘[a] 

termination of an account or an 

unfavorable change in the terms of an 

account that does not affect all or 

substantially all of a class of the 

creditor’s accounts.’’ 26 And it required 

that adverse action notices give a 

‘‘statement of reasons’’ for the action 

that is ‘‘specific’’ and ‘‘indicate[s] the 

principal reason(s) for the adverse 

action.’’ 27

Finally, the Board made a ‘‘minor 

editorial change’’ to Regulation B’s 

definition of ‘‘applicant’’ in order to 

‘‘express more succinctly the fact that 

the term includes both a person who 

requests credit and a debtor,’’ a debtor 

being one who has already requested 

and received credit.28 Whereas 

Regulation B originally defined 

‘‘applicant’’ to include one who 

‘‘applies to a creditor directly for an 

extension, renewal or continuation of 

credit’’ as well as, ‘‘[w]ith respect to any 

creditor[,] . . . any person to whom 

credit is or has been extended by that 

creditor,’’ 29 the revised definition 

simply stated that ‘‘applicant’’ includes 

‘‘any person who requests or who has 

received an extension of credit from a 

creditor.’’ 30 Although the Board revised 

other parts of the definition over the 

years, it never departed from the 

bedrock understanding of the term 

‘‘applicant’’ as including any person 

‘‘who has received’’ an extension of 

credit.31

The Dodd-Frank Wall Street Reform 

and Consumer Protection Act, enacted 

in 2010, revoked primary rulemaking 

responsibility under ECOA from the 

Board and transferred it to the newly 

created Bureau.32

Shortly thereafter, the Bureau 

republished the Board’s ECOA 

regulations, including the definition of 

‘‘applicant,’’ without material change.33

In addition, the Bureau’s Supervision 

and Examination Manual makes clear 

that creditors subject to the Bureau’s 

supervisory jurisdiction must comply 

with ECOA and Regulation B’s 

requirements with respect to existing 

accounts. For instance, the Examination 

Manual explains that ‘‘[n]otification of 

adverse action taken on an existing 

account must also be made within 30 

days.’’ 34

B. Coverage 

This advisory opinion applies to all 

‘‘creditors’’ as defined in section 702 of 

ECOA.35 As used in this advisory 

opinion, ‘‘existing account holder’’ 

refers to an applicant who has applied 

for and received an extension of credit. 

‘‘Existing account’’ or ‘‘existing credit 

arrangement’’ refers to an extension of 

credit previously made by a creditor 

other than an extension of credit that is 

closed or inactive. This advisory 

opinion has no application to any other 

circumstance and does not offer a legal 

interpretation of any other provisions of 

law. 

C. Legal Analysis 

ECOA and Regulation B plainly 

protect applicants who have received 

credit and are existing account holders, 

not just those in the process of applying 

for credit. This has been the 

longstanding position of the Bureau, 

and the view of Federal agencies prior 

to the Bureau’s creation. Despite this 

well-established interpretation,36 the 

Bureau is aware that some creditors fail 

to acknowledge that ECOA and 

Regulation B plainly apply to 

circumstances that take place after an 

extension of credit has been granted, 

including a revocation of credit or an 

unfavorable change in the terms of a 

credit arrangement.37 In addition, the 

Bureau is aware that some creditors fail 

to provide applicants with required 

notifications that include a statement of 

the specific reasons for the adverse 

action taken or disclose an applicant’s 

right to such a statement.38 But ECOA’s 


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47470647/; ‘My Credit Card Just Got Canceled and 

I Don’t Know Why,’ THE CUT (Sept. 11, 2020), 

https://www.thecut.com/article/can-my-credit-cardcompany-cancel-my-card.html. 

39Nat’l Ass’n of Home Builders v. Defs. of 

Wildlife, 551 U.S. 644, 666 (2007) (quotation marks 

omitted). 

40 519 U.S. 337 (1997). 

41 Id. at 341. 

42 Id. 

43 Id. at 342. 

44 15 U.S.C. 1691(a) (emphasis added); see also 

Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218 

(2008) (‘‘[T]he word ‘any’ has an expansive meaning 

. . . .’’) (quoting United States v. Gonzales, 520 

U.S. 1, 5 (1997)). 45See, e.g., Black’s Law Dictionary 1668 (rev. 4th 

ed. 1968) (defining ‘‘transaction’’ to include the 

‘‘[a]ct of transacting or conducting any business’’ 

and defining ‘‘transact’’ as ‘‘equivalent to ‘carry on,’ 

when used with reference to business’’). 

46 12 CFR 1002.2(m) (defining ‘‘credit 

transaction’’ to include, among other things, the 

‘‘revocation, alteration, or termination of credit’’ 

and ‘‘collection procedures’’); 12 CFR 202.3(k) 

(1976) (defining ‘‘credit transaction’’ to include the 

‘‘furnishing of credit information and collection 

procedures’’). Accordingly, the Bureau interprets 

aspects of the credit transactions enumerated in 

Regulation B as including and encompassing the 

servicing of that credit, debt collection, loss 

mitigation, payment plans, settlements, co-signer 

release, and certain other services provided to 

existing accountholders. 

47S. Rep. 93–278, 93rd Cong., 1st Sess., at 27 

(1973). 

48 15 U.S.C. 1691(d)(2). 

49 15 U.S.C. 1691(d)(6). 

50 15 U.S.C. 1691e(a); see also id. 1691e(b) (a 

‘‘creditor, other than a government or governmental 

subdivision or agency,’’ shall be liable to the 

aggrieved ‘‘applicant’’ for punitive damages); id. 

1691e(c) (aggrieved ‘‘applicant’’ may seek relief in 

district court). 

51S. Rep. 94–589, at 13. 

52Cf. Robinson, 519 U.S. at 343 (similarly 

concluding that the reference to aggrieved 

‘‘employees’’ in Title VII’s private right of action 

shows that that term is not limited to current 

employees). 

53 12 CFR 202.3(c) (1976). 

54See S. Rep. 94–589, at 2 (citing the Board’s 

rules and noting that the amendments expanded the 

Board’s rulemaking authority). 

55See FDIC Improvement Act of 1991, Public Law 

102–242, sec. 223, 105 Stat. 2306–07; Dodd-Frank 

Act, Public Law 111–203, secs. 1071, 1474, 124 

Stat. 2056–57, 2199–2200. 

text, history, purpose, and judicial 

interpretation all point the same way: 

As used in ECOA, the term ‘‘applicant’’ 

includes persons who applied for and 

have received credit. Any uncertainty 

about ECOA’s protections for existing 

borrowers is dispelled by Regulation B. 

a. Statutory Text 

‘‘It is a fundamental canon of 

statutory construction that the words of 

a statute must be read in their context 

and with a view to their place in the 

overall statutory scheme.’’ 39 Reading 

together the relevant provisions of 

ECOA makes clear that the term 

‘‘applicant’’ is not limited to those who 

are in the process of applying for credit. 

The Supreme Court’s analysis in 

Robinson v. Shell Oil Co.40 is 

instructive. In that case, the Court held 

that the term ‘‘employees’’ in Section 

704(a) of Title VII includes those who 

were former employees when the 

discrimination occurred. Writing for a 

unanimous Court, Justice Thomas 

explained that although ‘‘[a]t first blush, 

the term ‘employees’ . . . would seem 

to refer to those having an existing 

employment relationship with the 

employer in question,’’ that ‘‘initial 

impression . . . does not withstand 

scrutiny in the context of § 704(a).’’ 41

For one thing, the Court observed, 

there is ‘‘no temporal qualifier in the 

statute such as would make plain that 

§ 704(a) protects only persons still 

employed at the time of the 

retaliation.’’ 42 The same reasoning 

applies to the term ‘‘applicant’’ in 

ECOA, which is not expressly limited to 

those currently in the process of seeking 

credit. The Court further noted that ‘‘a 

number of other provisions in Title VII 

use the term ‘employees’ to mean 

something more inclusive or different 

than ‘current employees.’ ’’ 43 The same 

reasoning applies to the term 

‘‘applicant’’ used in ECOA. 

Reading ECOA’s definition of 

‘‘applicant’’ alongside the Act’s other 

provisions makes clear that the term 

includes applicants who have received 

credit and become existing borrowers. 

For example, ECOA’s core antidiscrimination provision protects 

‘‘applicant[s]’’ from discrimination 

‘‘with respect to any aspect of a credit 

transaction’’—not just during the 

application process itself.44 The phrase 

‘‘any aspect of a credit transaction’’ is 

most naturally read to include both the 

initial formation of a credit agreement as 

well as the performance of that 

agreement.45 Consistent with this 

ordinary meaning, Regulation B has 

always defined the term ‘‘credit 

transaction’’ to encompass ‘‘every aspect 

of an applicant’s dealings with a 

creditor,’’ including elements of the 

transaction that take place after credit 

has been extended.46 The expansive 

language of this provision shows an 

intent to sweep broadly, beyond just the 

initial process of requesting credit, to 

bar discrimination in all parts of a credit 

arrangement. Indeed, the main Senate 

report accompanying ECOA specifically 

noted that ‘‘[t]he prohibition applies to 

all credit transactions including . . . 

revocation of any open-end consumer 

credit account.’’ 47

Similarly, ECOA’s disclosure 

provision requires that creditors give a 

statement of reasons to ‘‘[e]ach 

applicant’’ against whom they take 

‘‘adverse action.’’ 48 ECOA defines 

‘‘adverse action’’ to include a 

‘‘revocation of credit’’ as well as a 

‘‘change in the terms of an existing 

credit arrangement.’’ 49 These are 

actions that can be taken only with 

respect to persons who have already 

received credit. 

ECOA’s private right of action points 

in the same direction. It allows an 

aggrieved ‘‘applicant’’ to bring suit 

against creditors who fail to comply 

with ECOA or Regulation B.50 These 

references to ‘‘applicant[s]’’ cannot be 

understood to refer only to those with 

pending credit applications. Otherwise, 

a person whose application was denied 

on a prohibited basis would have no 

recourse under ECOA’s private right of 

action, which Congress intended would 

be the Act’s ‘‘chief enforcement tool.’’ 51

Instead, these references further confirm 

that the term ‘‘applicant’’ is not limited 

to those currently applying for credit.52

b. Legislative History 

Congress’s history of amending the 

statute strongly supports reading the 

statute to include existing borrowers. As 

noted, the Board issued Regulation B in 

1975, through notice-and-comment 

rulemaking, shortly before ECOA took 

effect. The rule defined ‘‘applicant’’ to 

include ‘‘any person to whom credit is 

or has been extended.’’ 53 If Congress 

thought this definition an unreasonable 

departure from the statute it had just 

passed, it would surely have given some 

sign of that when it amended and 

expanded ECOA the following year. Nor 

is there any doubt that the drafters of 

those statutory amendments were 

generally aware of the new Regulation 

B, as they cited parts of it in explaining 

their bill.54

But the 1976 amendments did not 

limit the reasonable definition of 

‘‘applicant’’ that the Board had 

promulgated just months before. To the 

contrary, the 1976 amendments added 

new provisions—such as the ones 

entitling ‘‘applicants’’ to a statement of 

reasons when their credit is revoked or 

modified—that make sense only if 

‘‘applicant’’ is understood to include 

existing borrowers, as stated in 

Regulation B. Nor has Congress ever 

amended the statutory definition of 

‘‘applicant’’ or otherwise expressed 

disapproval of the understanding of that 

term in Regulation B, despite revising 

the statute multiple times since 1976.55

‘‘[W]hen,’’ as here, ‘‘Congress revisits 

a statute giving rise to a longstanding 

administrative interpretation without 

pertinent change, the ‘congressional 

failure to revise or repeal the agency’s 

interpretation is persuasive evidence 

that the interpretation is the one 


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56CFTC v. Schor, 478 U.S. 833, 846 (1986) 

(quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 

274–75 (1974)). 

57Cf. S. Rep. 93–278, at 17 (citing this very 

scenario as an example of the discrimination 

against ‘‘applicants’’ that ECOA prohibits). 

58 77 F.3d 492 (10th Cir. 1996) (unpublished table 

decision). 

59 Id. at *2. 

60 Id. (quoting 15 U.S.C. 1691(a)). 

61 Id. (emphasis added) (quoting Miller v. 

American Express Co., 688 F.2d 1235, 1239 (9th Cir. 

1982)). 

62 Id. 

63 Id. 

64No. 10–cv–785, 2010 WL 3732195 (N.D. Ill. 

Sept. 17, 2010). 

65 Id. at *4–5. 

66 Id. at *4. 

67 Id. at *4 n.2. 

68See, e.g., TeWinkle v. Capital One, N.A., No. 

1:19–cv–01002, 2019 WL 8918731, at *4–5 

(W.D.N.Y. Dec. 11, 2019); Kalisz v. Bank of 

America, N.A., No. 1:18–cv–00516, 2018 WL 

4356768, at *2–3 (E.D. Va. Sept. 11, 2018). 

69See 12 CFR 1002.2(e) (including in the 

definition ‘‘any person . . . who has received an 

extension of credit from a creditor’’); see also 12 

CFR 202.3(c) (1976) (including in the definition 

‘‘any person to whom credit is or has been extended 

by [a] creditor’’). 

70See, e.g., 12 CFR 1002.2(m) (defining ‘‘credit 

transaction’’ to mean ‘‘every aspect of an 

applicant’s dealings with a creditor regarding an 

application for credit or an existing extension of 

credit’’) (emphasis added). 

71 15 U.S.C. 1691b(a). 

72 Id. 

intended by Congress.’ ’’ 56 That maxim 

applies with particular force here: The 

first time Congress revisited the statute 

after the Board defined ‘‘applicant’’ to 

include existing borrowers, Congress 

enacted new provisions that implicitly 

approved the Board’s interpretation by 

requiring that creditors provide an 

explanation for adverse actions that can 

be taken only with respect to existing 

borrowers. 

c. Statutory Purpose 

Reading ‘‘applicant’’ to protect 

individuals and businesses from 

discrimination both during the process 

of requesting credit and once credit has 

been extended furthers ECOA’s purpose. 

It prevents a creditor from canceling an 

existing account because of a borrower’s 

race. It bars a creditor from unfavorably 

modifying the terms of an existing 

account—perhaps by lowering the 

amount available on a line of credit— 

because of a borrower’s national origin. 

It stops a creditor from requiring women 

with existing accounts to reapply for 

their credit upon getting married.57 And 

it ensures that a creditor would be 

required to provide a statement of 

reasons to the applicant in any of these 

situations. This is the most plausible 

interpretation of ECOA. 

Finally, reading ‘‘applicant’’ in this 

way—i.e., ECOA protects applicants 

from discrimination both during the 

process of requesting credit and once 

credit has been extended—precludes 

obvious paths to evasion. A creditor that 

wished to deny credit applications on a 

prohibited basis, or to offer credit on 

inferior terms for the same prohibited 

reason, cannot do so by simply 

extending credit on the terms requested 

and later revoking or amending the 

terms of the credit arrangement. Nor can 

a creditor use similar means to avoid 

ever having to explain to an applicant 

the reasons for an adverse action. This 

interpretation of ECOA, therefore, 

forecloses a potential loophole that 

could effectively swallow much of the 

Act. Such a loophole would be plainly 

inconsistent with ECOA. 

d. Judicial Precedent 

Those courts that have properly read 

the term ‘‘applicant’’ in its statutory 

context, including the only court of 

appeals to have addressed the issue, 

have agreed that the statute protects 

existing borrowers. In Kinnell v. 

Convenient Loan Co.,58 the Tenth 

Circuit considered a claim that a 

creditor discriminated in violation of 

ECOA when it refused to accept a late 

payment on an existing loan and instead 

accelerated the remaining balance due. 

The court rejected the argument that the 

plaintiff was not an ‘‘applicant’’ under 

ECOA because he was no longer actively 

seeking credit.59 ECOA, the court 

explained, prohibits discrimination 

‘‘with respect to any aspect of a credit 

transaction,’’ 60 and was meant ‘‘to 

protect people from the ‘denial or 

termination of credit’ ’’ on a prohibited 

basis.61 The lender’s reading of 

‘‘applicant’’ would mean that ‘‘any sua 

sponte action on the part of the creditor 

. . . would not be actionable. Such an 

interpretation improperly narrows the 

scope of the ECOA.’’ 62 The court noted 

that its reading of ‘‘applicant’’ was 

directly supported by Regulation B.63

At least one district court has reached 

the same conclusion. In Powell v. 

Pentagon Fed. Credit Union,64 the court 

held that the plaintiff, who alleged that 

his existing credit plan was terminated 

on a prohibited basis, was an 

‘‘applicant’’ under ECOA. The court 

relied on ECOA’s requirement that 

‘‘applicants’’ receive notice when their 

credit is revoked and on the 

longstanding definition in Regulation 

B.65 The court observed that the 

contrary interpretation would be wholly 

at odds with ECOA’s purposes because 

it ‘‘would preclude a plaintiff with an 

existing account from bringing a claim 

for the discriminatory revocation of that 

account.’’ 66 The court found nothing to 

‘‘suggest[ ] that Congress’ intent to 

discourage discrimination against 

applicants somehow ceases when the 

alleged discrimination is against 

existing credit customers.’’ 67

The Bureau acknowledges that a few 

other district court decisions have 

interpreted ‘‘applicant’’ to include only 

persons actively seeking credit, but the 

Bureau does not believe this 

interpretation is persuasive.68 No court 

of appeals has endorsed these district 

courts’ narrow reading. These district 

court decisions read ‘‘applicant’’ in 

isolation instead of reading this 

statutory term in context, as required by 

the Supreme Court. For example, these 

decisions did not attempt to square their 

interpretation with ECOA’s requirement 

that ‘‘applicants’’ receive an explanation 

when their existing credit is terminated 

or modified. Nor did they grapple with 

the clear loophole their interpretation 

would create or the degree to which it 

would frustrate the Act’s remedial 

purposes. 

e. Regulation B 

Regulation B has always defined the 

term ‘‘applicant’’ to include those who 

applied for and have received credit.69

Other provisions reflect the same 

interpretation.70 Neither the Board nor 

the Bureau has ever amended the rule 

to reflect a contrary understanding of 

the term. 

As described above, the best 

interpretation of ECOA is that the term 

‘‘applicant’’ includes existing 

borrowers. It was thus reasonable for the 

Board and then the Bureau to adopt that 

interpretation in Regulation B. Adopting 

the contrary reading would have led to 

the serious textual inconsistencies 

described above and run directly 

contrary to the statute’s purposes. 

Regulation B’s definition avoids those 

difficulties and, in the process, serves to 

‘‘carry out’’ and ‘‘effectuate’’ the 

purposes of ECOA.71 And because the 

contrary interpretation would open a 

glaring loophole in ECOA, Regulation 

B’s definition is ‘‘necessary or proper 

. . . to prevent circumvention or 

evasion’’ of the Act.72

Notably, Regulation B has expressly 

included existing borrowers as 

applicants since the rule was first 

promulgated through notice-andcomment rulemaking in 1975. Indeed, 

the interpretation of ‘‘applicant’’ 

discussed here has been confirmed by 

numerous Federal agencies for decades. 

For example, nine separate agencies or 

offices, including the Department of 

Justice, Federal Trade Commission, and 


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Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 30101 

73Policy Statement on Discrimination in Lending, 

59 FR 18266, 18268 (Apr. 15, 1994). 

74See Interagency Fair Lending Examination 

Procedures, at ii (Aug. 2009), available at https:// 

go.usa.gov/xeY37. 

75Bureau of Consumer Fin. Prot., Equal Credit 

Opportunity Act Examination Procedures, at 1 (Oct. 

2015), available at https://go.usa.gov/xekcN. 

76See, e.g., In re American Express Centurion 

Bank and American Express Bank, FSB, No. 2017– 

CFPB–0016, 2017 WL 7520638 (Aug. 23, 2017) 

(consent order resolving claims that creditors 

discriminated against existing borrowers on the 

basis of race and national origin by, for example, 

subjecting certain borrowers to more aggressive 

collection practices). 

77 12 U.S.C. 5512(b)(1). The relevant provisions of 

ECOA and Regulation B form part of Federal 

consumer financial law. 12 U.S.C. 5481(12)(D), (14). 

78 15 U.S.C. 1691e(e). 

79 5 U.S.C. 553(b). 

80 5 U.S.C. 603(a), 604(a). 

81 44 U.S.C. 3501–3521. 

82 5 U.S.C. 801 et seq. 

the Board, previously published a 

statement confirming their view that 

ECOA prohibits discrimination in the 

treatment of existing borrowers, such as 

by ‘‘[t]reat[ing] a borrower differently in 

servicing a loan or invoking default 

remedies’’ or ‘‘[using] different 

standards for pooling or packaging a 

loan in the secondary market.’’ 73 The 

same view is reflected in the manual 

used by the Federal Deposit Insurance 

Corporation, Office of the Comptroller 

of the Currency, and other financial 

regulators to conduct examinations of 

financial institutions for compliance 

with fair lending laws.74 The Bureau has 

consistently taken the same view of 

‘‘applicant,’’ including by reissuing the 

Board’s original definition; issuing 

guidance that Regulation B ‘‘covers 

creditor activities before, during, and 

after the extension of credit’’; 75 and 

taking enforcement action to address 

violations of ECOA against existing 

borrowers.76 In short, the Bureau’s 

interpretation is longstanding and well 

established. 

II. Regulatory Matters 

This advisory opinion is an 

interpretive rule issued under the 

Bureau’s authority to interpret ECOA 

and Regulation B, including under 

section 1022(b)(1) of the Dodd-Frank 

Wall Street Reform and Consumer 

Protection Act, which authorized 

guidance as may be necessary or 

appropriate to enable the Bureau to 

administer and carry out the purposes 

and objectives of Federal consumer 

financial laws.77

By operation of ECOA section 706(e), 

no provision of ECOA imposing any 

liability applies to any act done or 

omitted in good faith in conformity with 

this interpretive rule, notwithstanding 

that after such act or omission has 

occurred, the interpretive rule is 

amended, rescinded, or determined by 

judicial or other authority to be invalid 

for any reason.78

As an interpretive rule, this rule is 

exempt from the notice-and-comment 

rulemaking requirements of the 

Administrative Procedure Act.79

Because no notice of proposed 

rulemaking is required, the Regulatory 

Flexibility Act does not require an 

initial or final regulatory flexibility 

analysis.80 The Bureau also has 

determined that this interpretive rule 

does not impose any new or revise any 

existing recordkeeping, reporting, or 

disclosure requirements on covered 

entities or members of the public that 

would be collections of information 

requiring approval by the Office of 

Management and Budget under the 

Paperwork Reduction Act.81

Pursuant to the Congressional Review 

Act,82 the Bureau will submit a report 

containing this interpretive rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to the 

rule’s published effective date. The 

Office of Information and Regulatory 

Affairs has designated this interpretive 

rule as not a ‘‘major rule’’ as defined by 

5 U.S.C. 804(2). 

Rohit Chopra, 

Director, Consumer Financial Protection 

Bureau. 

[FR Doc. 2022–10453 Filed 5–17–22; 8:45 am] 

BILLING CODE 4810–AM–P 

POSTAL SERVICE 

39 CFR Part 111 

Domestic Competitive Products 

Pricing and Mailing Standards 

Changes 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service is 

amending Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual (DMM®), to reflect changes 

to pricing and mailing standards for 

certain competitive products. 

DATES: Effective: July 10, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Steven Jarboe at (202) 268–7690, 

Margaret Pepe (202) 268–3078, or Garry 

Rodriguez at (202) 268–7281. 

SUPPLEMENTARY INFORMATION: This final 

rule describes new price and product 

features for competitive products, by 

class of mail, established by the 

Governors of the United States Postal 

Service®. New prices are available 

under Docket Number CP2022–62 on 

the Postal Regulatory Commission (PRC) 

website at https://www.prc.gov, and on 

the Postal Explorer® website at https:// 

pe.usps.com. 

The Postal Service will revise Mailing 

Standards of the United States Postal 

Service, Domestic Mail Manual (DMM), 

to reflect changes to certain pricing and 

mailing standards for the following 

competitive products: 

• Priority Mail®. 

• Parcel Select®. 

• Return Services. 

• Other. 

Competitive price and product 

changes are identified by product as 

follows: 

Priority Mail 

Priority Mail Commercial Plus Cubic 

Currently, Commercial Plus cubic 

prices are available to Priority Mail 

customers whose account volumes 

exceeded 50,000 pieces in the previous 

calendar year and have a customer 

commitment agreement with the Postal 

Service. 

The Postal Service is revising the 

DMM to remove the volume 

requirements for Priority Mail 

Commercial Plus Cubic prices. The 

Postal Service will also eliminate the 

requirement to have a customer 

commitment agreement for cubic 

pricing. Priority Mail cubic prices will 

now be available to all commercial 

customers. 

Priority Mail Maximum Insurance 

Indemnity 

The Postal Service is proposing to 

make the maximum insurance 

indemnity included with retail and 

commercial priced Priority Mail limited 

to a maximum liability of $100.00. See 

Federal Register document, New 

Mailing Standards for Domestic Mailing 

Services Products (87 FR 21601–21603), 

for additional information. 

Parcel Select 

Parcel Select Ground Cubic 

The Postal Service is implementing 

cubic pricing under the Parcel Select 

Ground price category. Parcel Select 

Ground cubic pricing will be available 

to eligible Parcel Select Ground 

customers for rectangular, 

nonrectangular, and soft pack 

mailpieces. Each mailpiece must 

measure 1 cubic foot or less, weigh 20 

pounds or less, and the longest 

dimension may not exceed 18 inches. 

Cubic-priced mailpieces may not be 

rolls or tubes. Parcel Select Ground 


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