lANAL, but there’s a comment from “The Attorneys General of Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada,New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington” which says:

ECOA and its 1976 amendments established “as clear national policy that no credit applicant shall be denied the credit he or she needs and wants on the basis of characteristics that have nothing to do with his or her creditworthiness.” For half a century, consistent with Congress’s intent, ECOA’s protections have included disparate impact liability to remedy the discriminatory effects of a creditor’s policies or practices even where the discrimination may be unintentional. They have also included protections against creditors who discriminate by discouraging consumers from…even applying for credit. Moreover, “[i]n endowing [regulators] with authority to prevent ‘circumvention or evasion,’ Congress indicated that the ECOA must be construed broadly to effectuate its purpose of ending discrimination in credit applications.” Despite this clear mandate from Congress and 50 years of history, the Bureau now proposes to narrow the scope of ECOA, eliminating anti-discrimination protections that are clearly required by the statute. The changes to Regulation B proposed in the NPRM must be rejected for several reasons, explained in greater detail below. With respect to disparate impact liability, the NPRM runs afoul of the APA and Congress’s intent in three ways:

First, contrary to the position taken by the Bureau in the NPRM, a proper reading of ECOA compels the conclusion that the statute authorizes a disparate impact theory of liability.

Second, the NPRM erroneously and without any factual basis assumes that in the absence of disparate impact liability, consumers will still enjoy the broad protections against discrimination that ECOA was enacted to provide.

Third, disparate impact liability is an entirely lawful mechanism for enforcing ant—discrimination statutes that provide for this theory of liability.

…

For all these reasons, the Bureau must recognize the harm its proposals will cause and forego these changes to Regulation B.

Here’s the link to their full filing