CDIA filed a comment with the Department of Housing and Urban Development in response to a notice published a notice in the Federal Register announcing that the Department is “reviewing its existing regulations to assess their compliance costs and reduce regulatory burden.” This review is in response to several recent executive orders. HUD is soliciting “public comments to assist in identifying existing regulations that may be outdated, ineffective, or excessively burdensome. HUD’s goal in conducting the review is to make the Department’s regulations more effective and less burdensome in achieving HUD’s mission to create strong, sustainable, inclusive communities, and quality affordable homes for all.” CDIA’s comment looked back to the 2016 HUD guidance on the use of criminal records by providers of housing and real estate-related transactions. In our comment, we pointed out that the 2016 Guidance is problematic, and requires modification for a number of reasons. The guidance categorically prohibits the use of arrest history information, and appears to imply that landlords and property managers should not consider conviction history beyond six or seven years. Both of these positions conflict with the FCRA and with agency guidance. Our comment also address the guidance on criminal convictions and note that HUD’s reliance on its sources for finding a point of redemption is misplaced and counter to law.
CDIA’s comment did not address HUD’s 2013 final rule on disparate impact, supplemented by a second Federal Register notice in 2016. The disparate impact rule remains under challenge in the Northern District of Illinois in Property Casualty Insurers Association of America v. Donovan and in the District of Columbia in American Insurance Association et al. v. Department of Housing and Urban Development.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More