Extension of Time and Required Disclosures for Notification of Nonpayment of Rent, 55693-55702 [2021-21960]
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Flexibility Act (5 U.S.C. 601 et seq.).
Nonetheless, the Department of State
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1532, generally
requires agencies to prepare a statement
before proposing any rule that may
result in an annual expenditure of $100
million or more by State, local, or tribal
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any such expenditure, nor will it
significantly or uniquely affect small
governments. This rule involves visas,
which involves foreign individuals, and
does not directly or substantially affect
state, local, or tribal governments, or
businesses.
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not result in an annual effect on the
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Executive Orders 13563 and 12866
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government and the States, or the
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Executive Order 13175—Consultation
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The Department of State has
determined that this rulemaking will
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The Form DS–2019, Certificate of
Eligibility for Exchange Visitor Status
(J–NONIMMIGRANT), is approved
under the PRA (OMB Control No. 1405–
0119).
initial admission or extension of stay,
provided that in the case of a qualified
F student or the accompanying spouse
or child of such student, is in
possession of a current Form I–20,
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endorsed by the issuing school official
to indicate the period of initial
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in the case of a qualified J exchange
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*
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Kevin E. Bryant,
Deputy Director, Office of Directives
Management, Department of State.
[FR Doc. 2021–21249 Filed 10–6–21; 8:45 am]
BILLING CODE 4710–06–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 247, 880, 882, 884, 966
[Docket No. FR–6286–I–01]
List of Subjects in 22 CFR Part 41
RIN 2501–AD99
Aliens, Cultural Exchange Program,
Nonimmigrant, Visas.
Accordingly, for the reasons set forth
in the preamble, 22 CFR Ppart 41 is
amended to read as follows:
Extension of Time and Required
Disclosures for Notification of
Nonpayment of Rent
PART 41—VISAS: DOCUMENTATION
OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY
ACT, AS AMENDED
1. The authority citation for part 41
continues to read as follows:
■
Authority: 8 U.S.C. 1101; 1102; 1104; 1182;
1184; 1185 note (section 7209 of Pub. L. 108–
458, as amended by section 546 of Pub. L.
109–295); 1323; 1361; 2651a.
2. In § 41.112, revise paragraph
(d)(2)(i) to read as follows:
■
§ 41.112
Validity of visa.
*
*
*
*
*
(d) * * *
(2) * * *
(i) Is in possession of a Form I–94,
Arrival-Departure Record, endorsed by
DHS to show an unexpired period of
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55693
Office of the Assistant
Secretary of Public and Indian Housing,
and Office of the Assistant Secretary for
Housing-Federal Housing
Commissioner, Department of Housing
and Urban Development (HUD).
ACTION: Interim final rule.
AGENCY:
This interim final rule applies
when, during emergencies such the
current COVID–19 pandemic, Federal
funding is available to assist tenants
with nonpayment of rent and tenants
facing eviction for nonpayment of rent
in public housing and properties with
project-based rental assistance (PBRA)
(for purposes of this rule, PBRA
includes projects in the following
programs: Section 8, Section 8 Moderate
Rehabilitation, Section 202/162 Project
Assistance Contract, Section 202 Project
Rental Assistance Contract (PRAC),
Section 811 PRAC, Section 236 Rental
SUMMARY:
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
Housing Assistance Program and Rent
Supplement) need sufficient time and
information to seek and receive such
emergency rent relief. This interim final
rule will allow the Secretary, upon
making the requisite findings and
providing the requisite notice, to require
housing providers participating in those
programs to provide tenants facing
eviction for non-payment of rent with
notification of and information about
the opportunity to secure emergency
funding and additional time to secure
such funding prior to eviction.
DATES:
Effective date: November 8, 2021.
Comment due date: November 8,
2021.
ADDRESSES: Interested persons are
invited to submit comments regarding
this interim final rule to the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW, Room
10276, Washington, DC 20410–0500.
Communications must refer to the above
docket number and title. There are two
methods for submitting public
comments. All submissions must refer
to the above docket number and title.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW, Room 10276,
Washington, DC 20410–0500.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly
encourages commenters to submit
comments electronically. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt by HUD, and enables HUD to
make them immediately available to the
public. Comments submitted
electronically through the
www.regulations.gov website can be
viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
Note: To receive consideration as
public comments, comments must be
submitted through one of the two
methods specified above. Again, all
submissions must refer to the docket
number and title of the rule.
No Facsimile Comments. Facsimile
(FAX) comments are not acceptable.
Public Inspection of Public
Comments. All properly submitted
comments and communications
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submitted to HUD will be available for
public inspection and copying between
8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an advance
appointment to review the public
comments must be scheduled by calling
the Regulations Division at 202–402–
3055 (this is not a toll-free number).
Individuals with speech or hearing
impairments may access this number
via TTY by calling the Federal
Information Relay Service, toll-free, at
800–877–8339. Copies of all comments
submitted are available for inspection
and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
Public and Indian Housing: Danielle
Bastarache, Deputy Assistant Secretary
for Public Housing and Voucher
Programs, 451 7th Street SW, Room
4204, Washington, DC 20410, telephone
number 202–402–1380 (this is not a tollfree number). For a quicker response,
email PIH-COVID@hud.gov. For
Multifamily: Robert Iber, Senior Advisor
for the Office of Multifamily Housing
Programs, 451 7th Street SW, Room
6106, Washington, DC 20410, telephone
number 202–708–3055 (this is not a tollfree number). For a quicker response,
email mfcommunications@hud.gov.
Persons with hearing or speech
impairments may access these numbers
via TTY by calling the Federal Relay
Service at 800–877–8339 (this is a tollfree number).
SUPPLEMENTARY INFORMATION: This rule
provides that, during the COVID–19
pandemic and other future emergencies,
the Secretary may require that public
housing authorities (PHAs) and PBRA
owners provide tenants with specified
information regarding any Federal
funding that is made available to
prevent eviction for nonpayment of rent
during such emergency. The Secretary
may also extend the time period before
lease termination for nonpayment of
rent to a minimum of 30 days after the
tenant has received such information.
This interim final rule will provide an
important opportunity for tenants who
face hardship due to emergencies, such
as those who have lost income during
the COVID–19 pandemic and are unable
to pay rent, to learn about emergency
funding opportunities and take steps to
secure emergency funding. This will in
turn prevent unnecessary evictions that
would negatively impact the efficacy of
HUD’s programs.
I. Background
Since the first case of coronavirus
disease 2019 (COVID–19) was
discovered in the United States in
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January 2020, the disease has infected
over 40 million Americans and killed
over 631,000.1 The disease significantly
impacted the economy, resulting in
millions of Americans losing their jobs
or working fewer hours. In April 2020,
the national unemployment rate reached
its highest level in over seventy years
following the most severe month-overmonth decline in employment on
record.2 Between March 15 and May 15,
2020, over 35 million Americans filed
initial jobless claims, and the
unemployment rate climbed to over 14
percent in April 2020—the highest
monthly level since 1948, when the U.S.
Bureau of Labor Statistics started
tracking this data.3 The loss of jobs
created by the COVID–19 pandemic
exacerbated an affordable housing crisis
that predated the pandemic. During this
time, many households have faced
housing insecurity.4 Amid this once-ina-century crisis, HUD and the Federal
Government began intense efforts to
provide support for affected families,
and State, territorial, Tribal, and local
governments (State, local, and Tribal
governments) have been called on to
respond to this crisis with emergency
assistance at an immense scale.
On January 31, 2020, the Secretary of
Health and Human Services (HHS)
issued a determination under section
319 of the Public Health Service Act,5
that a national public health emergency
existed as of January 27, 2020, because
of the COVID–19 pandemic.6 On March
1 Centers for Disease Control and Prevention
(CDC), COVID Data Tracker, https://
www.covid.cdc.gov/covid-data-tracker/
#datatracker-home (last visited Sept. 9, 2021).
2 Federal Reserve Bank of St. Louis,
Unemployment Rate [UNRATE], https://fred.
stlouisfed.org/series/UNRATE (last visited Sept. 9,
2021); Federal Reserve Bank of St. Louis,
Employment Level [LNU02000000], https://fred.
stlouisfed.org/series/LNU02000000 (last visited
Sept. 9, 2021).
3 U.S. Department of Labor, Unemployment
Insurance Weekly Claims Report, May 21, 2020,
https://www.dol.gov/sites/dolgov/files/OPA/
newsreleases/ui-claims/20201058.pdf.
4 Nirmita Panchal et al., The Implications of
COVID–19 for Mental Health and Substance Abuse,
Feb. 10, 2021, https://www.kff.org/coronaviruscovid-19/issue-brief/the-implications-of-covid-19for-mental-health-and-substance-use; U.S. Census
Bureau, Household Pulse Survey Data Tables,
https://www.census.gov/programs-surveys/
household-pulse-survey/datasets.html (last visited
Sep. 9, 2021); Rebecca T. Leeb et al., Mental HealthRelated Emergency Department Visits Among
Children Aged <18 Years During the COVID
Pandemic—US, Jan. 1–Oct. 17, 2020, Morb. Mortal.
Wkly. Rep. 69(45):1675–80 (Nov. 13, 2020), https://
www.cdc.gov/mmwr/volumes/69/wr/
mm6945a3.htm.
5 42 U.S.C. 247d.
6 The HHS Secretary renewed this determination
several times since then, most recently on July 19,
2021 (effective July 20, 2021). HHS, Renewal of
Determination That A Public Health Emergency
Exists, July 19, 2021, https://www.phe.gov/
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
13, 2020, the President declared a
nationwide emergency pursuant to
Section 501(b) of the Stafford Act.7 All
50 states, the District of Columbia, and
5 territories were approved for major
disaster declarations to assist with
additional needs identified under the
nationwide emergency declaration for
COVID–19. On February 21, 2021, the
President extended the national
emergency, stating that the COVID–19
pandemic remains a significant risk to
the United States.8
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Response to the COVID–19 Pandemic
and Related Housing Insecurity
In response to the national emergency
declaration, HUD and other Federal
agencies began efforts to support
families impacted financially by the
COVID–19 pandemic and at risk of
losing their housing.9 Additionally, the
Coronavirus Aid, Relief, and Economic
Security Act, 2020 ‘‘CARES Act,’’ a $2.2
trillion economic stimulus bill, was
signed into law on March 27, 2020.10
Included in the CARES Act were
provisions providing foreclosure and
eviction moratoriums and providing
additional financial relief for owners of
certain multifamily housing projects in
an effort to ensure continued stability of
the housing market.11
Also included in the CARES Act was
funding for several HUD programs to
prevent, prepare for, and respond to
COVID–19, including increased rental
subsidies in HUD-assisted housing to
pay for increased operating costs and
loss of rental income due to tenants’ loss
of income during the COVID–19
national emergency. This additional
funding was meant to help ensure that
HUD’s assisted housing programs
continued to operate as effectively as
possible and were not burdened by the
additional expenses associated with
preventable evictions.
Other efforts were also underway to
prevent an onslaught of evictions that
emergency/news/healthactions/phe/Pages/COVID19July2021.aspx.
7 42 U.S.C. 5121 et seq.
8 See The White House, A Letter on the
Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID19) Pandemic, Feb. 24, 2021, https://
www.whitehouse.gov/briefing-room/statementsreleases/2021/02/24/a-letter-on-the-continuation-ofthe-national-emergency-concerning-thecoronavirus-disease-2019-covid-19-pandemic/.
9 See, e.g., HUD, Mortgagee Letter 2020–04:
Foreclosure and Eviction Moratorium in Connection
with the Presidentially Declared COVID–19
National Emergency, Mar. 18, 2020, https://
www.hud.gov/sites/dfiles/OCHCO/documents/2004hsgml.pdf; U.S. Dep’t of Agriculture, Stakeholder
Announcement: USDA Announces Guaranteed
Housing Foreclosure and Eviction Relief, Mar. 19,
2020, https://www.rd.usda.gov/node/17107.
10 Public Law 116–136, 134 Stat. 281 (2020).
11 Id. at sections 4022–4024.
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would lead to an increase in
homelessness and cohabitation, which
according to the CDC, also create an
environment that would further spread
COVID–19.12 As a result, on September
4, 2020, the CDC Director issued an
Order temporarily halting evictions in
the United States due to the ongoing
public health crisis.13 That original CDC
Order expired on December 31, 2020,
subject to extension, modification, or
recission. The Consolidated
Appropriations Act, 2021,14 extended
that Order until January 31, 2021, and
the original CDC Order was extended
multiple times due to the continued
national emergency.
On August 3, 2021, following the
surge in COVID–19 infections due to the
highly contagious Delta variant, the CDC
Director issued a new order temporarily
halting evictions for persons in
jurisdictions experiencing substantial or
high rates of transmission. However, on
August 26, 2021, the Supreme Court of
the United States vacated the stay of a
district court decision invalidating the
original and new CDC Order, holding
that the applicants had a substantial
likelihood of success on the merits.15 In
considering the facts, the Court pointed
to the availability of rental-assistance
funds as, in its view, diminishing the
government’s ongoing interest in
maintaining an eviction moratorium.16
Therefore, without the CDC Order in
place, landlords may resume evictions
across the United States during the
national emergency, unless otherwise
precluded under state or local eviction
moratoriums.
Emergency Rental Assistance
In addition to trying to reduce
evictions through the CARES Act,
Congress created the Emergency Rental
Assistance (ERA) program, funded
through the Department of the Treasury,
to make funds available to assist
households that are unable to pay rent
or utilities and provide funds to
landlords to help cover tenants’ rent and
utilities payments.
The first tranche of ERA funding,
ERA1, provides up to $25 billion under
the Consolidated Appropriations Act,
12 86 FR 34013 (The 2017 Census Bureau
American Housing Survey found that 32% of
renters reported that they would move in with
friends or family members upon an eviction.).
13 85 FR 55292 (pursuant to the CDC’s authority
under the Public Health Service Act, 42 U.S.C. 264).
14 Public Law 116–260 (2020).
15 Ala. Ass’n of Realtors v. Dep’t of Health and
Human Servs., 594 U.S. __(2021) at 5, https://www.
supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf.
16 Id. at 7–8 (‘‘Whatever interest the Government
had in maintaining the moratorium’s original end
date to ensure the orderly administration of those
programs has since diminished.’’).
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2021, and the second tranche, ERA2,
provides up to $21.55 billion under the
American Rescue Plan Act of 2021,
which was enacted on March 11,
2021.17 The funds are provided directly
to states, U.S. territories, local
governments, and, in the case of ERA1,
also to Indian tribes or Tribally
Designated Housing Entities, as
applicable, and the Department of
Hawaiian Home Lands. Grantees then
make these funds available to provide
rental assistance to eligible households
through existing or newly created rental
assistance programs. These funds may
be disbursed to either tenants or
landlords. Public Housing Authorities
(PHAs), Housing Choice Voucher (HCV)
landlords, other owners of HUD-assisted
properties, and utility providers may
accept funds from the ERA program for
rental and most utility arrearages for
HUD-assisted families. HUD-assisted
families are eligible for assistance from
the ERA program, provided that ERA
funds are not applied to costs that have
been or will be reimbursed under any
other Federal assistance, including
Housing Assistance Payments in the
HCV Program, Operating Fund
assistance in the Public Housing
program, or rental assistance in
Multifamily Housing programs.
The funding is designed to assist
households that demonstrate a risk of
experiencing homelessness or housing
instability. Eligible households for ERA
must have a household income at or
below 80 percent of area median
income, which corresponds with
income thresholds for HUD assistance.18
For both ERA1 and ERA2, other
expenses related to housing include
relocation expenses (including
prospective relocation expenses), such
as rental security deposits, and rental
fees, which may include application or
screening fees. Those expenses can also
include reasonable accrued late fees (if
not included in rental or utility arrears),
and internet service provided to the
rental unit.
The pace of distributing emergency
funds that could prevent evictions for
nonpayment of rent started slowly and
faces a number of obstacles but has
since picked up. From January to May
2021, only $1.45 billion was delivered
under ERA for rent, utilities, and arrears
out of a total of $25 billion.19 In June
17 Public
Law 117–2 (2021).
Rental Assistance limits eligibility
to households with income that does not exceed 80
percent of the median income for the area in which
the household is located, as determined by HUD.
Public Law 116–260, division N, section 501 (2020).
19 Congressional Research Service, Emergency
Rental Assistance through the Coronavirus Relief
18 Emergency
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2021, more than $1.5 billion from ERA
was paid directly to households, more
than in all previous months combined.20
July 2021 data demonstrates continued,
steady improvement in funds
distribution, particularly by States and
local agencies following the Department
of Treasury guidance.21
The application and approval process
for ERA funds and the time it takes to
access these funds vary by grantee.
While it may generally be expected to
take a few weeks for applications to be
processed, and funds to be disbursed,
some applicants have faced longer
delays.22
There are multiple causes for the slow
rollout of ERA assistance. Of particular
concern with respect to this rulemaking,
they include obstacles to tenants
knowing about and applying for
available funds, such as complexities in
the application processes, privacy
concerns, and a lack of understanding as
to funding availability.23 The bottom
line is that ERA funding still has not
reached many eligible tenants at risk of
eviction for nonpayment, creating an
increased risk that evictions will occur
simply because funding that is
specifically meant to help pay much or
all of the back rent in question is not
secured in time.
II. This Interim Final Rule
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Tenants’ Need for Greater Information
and Time
HUD is continuously evaluating how
best to help tenants and housing
providers mitigate the pandemic’s
impact and economic issues arising
during this national emergency, while
ensuring that the various resources that
are available to address the backlog of
Fund, (July 9, 2021) at 14, https://crsreports.
congress.gov/product/pdf/R/R46688.
20 U.S. Dep’t of the Treasury, Treasury Data:
Amount of June Emergency Rental Assistance
Resources to Households More Than All Previous
Months Combined, (July 21, 2021) https://home.
treasury.gov/news/press-releases/jy0284.
21 U.S. Dep’t of the Treasury, Treasury
Announces Seven Additional Policies to Encourage
State and Local Governments to Expedite
Emergency Rental Assistance, (Aug. 25, 2021)
https://home.treasury.gov/news/press-releases/
jy0333.
22 U.S. Dep’t of the Treasury, Emergency Rental
Assistance Data Shows Programs Ramping Up, but
States and Localities Must Do More to Accelerate
Aid, (July 2, 2021) https://home.treasury.gov/
system/files/136/2021-07-02-ERA-Data-Blog-PostvF.pdf.
23 See U.S. Dep’t of the Treasury, Emergency
Rental Assistance Fact Sheet, (May 7, 2021) https://
home.treasury.gov/system/files/136/FACT_SHEETEmergency-Rental-Assistance-Program_
May2021.pdf; Nat’l Low Income Hous. Coal.,
Treasury Emergency Rental Assistance Programs in
2021: Analysis of a National Survey, (June 22, 2021)
https://nlihc.org/sites/default/files/HIP_NLIHC_
Furman_2021_6-22_FINAL_v2.pdf.
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unpaid rent are fully utilized. HUD has
determined that, in the immediate
aftermath of the judicial vacatur of the
CDC eviction moratorium, it needs to
act to prevent a wave of preventable
evictions that will interfere with the
orderly operation of HUD’s programs
and the accomplishment of HUD’s
mission. Historically, 3.6 million
eviction cases are filed per year in the
United States, resulting in 1.5 million
annual eviction judgments.24 But now,
as more renters fell behind on their
rental payments during the COVID–19
pandemic, many more households are at
risk of eviction. As of July 2021, just
before the CDC moratorium on evictions
was vacated, 6.5 million households
nationwide were at risk of eviction.
This interim final rule follows and
complements earlier HUD actions, taken
while the CDC moratoriums were in
effect, aimed at assisting HUD-assisted
tenants and landlords with securing
available resources that assist with the
payment of back rent and avoid
unnecessary evictions for non-payment.
For example, HUD issued guidance
recommending that all PHAs make
tenants aware of ERA funding and
guidance about accepting ERA funding
in multifamily housing.25 Nonetheless,
the ERA program’s implementation
indicates that many tenants (including
in HUD-assisted properties) may remain
unaware of or do not understand how to
access ERA resources, have been unable
to access the funds in time, or have
incorrectly believed that they need not
apply for ERA because rental obligations
were suspended during the eviction
moratorium. Many of those tenants may
be eligible for ERA, yet they are not
benefiting from it, thus requiring HUD
to take this further, related action.26
HUD also issued guidance requesting
that PHAs and owners work with
tenants to recertify their rents for loss
income or job loss, thus effectively
lowering the rent payment HUDsupported tenants must make and
helping them avoid eviction. However,
24 Ashley Gromis, Eviction: Intersection of
Poverty, Inequality, and Housing, Princeton
University, Eviction Lab (2019) (measuring the
number of evictions from 2000 to 2016).
25 HUD, Questions on the U.S. Treasury’s
Emergency Rental Assistance (ERA) and Other
Rental Assistance Programs, May 12, 2021, https://
www.hud.gov/sites/dfiles/PIH/documents/ERAP_
PIH_ERAP_FAQs.pdf; HUD, Questions and Answers
for Office of Multifamily Housing Stakeholders,
Coronavirus Disease 2019 (COVID–19), (July 29,
2021) https://www.hud.gov/sites/dfiles/Housing/
documents/MF_COVID-19%20QA_7_29_21.pdf.
26 Recent Census Pulse survey data shows that
60% of renter households behind on rent have not
applied to ERA. See U.S. Census Bureau, Household
Pulse Survey Data Tables, https://www.census.gov/
programs-surveys/household-pulse-survey/
data.html (last visited Sep. 9, 2021).
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the possibility of recertification does not
replace access to ERA funding, for a
variety of reasons. This policy has been
helpful but has not fully solved the
problem. Not every tenant who could
benefit from recertification has, whether
because PHAs and owners have not
reached out offering recertifications or
because the tenants have chosen for a
variety of reasons not to seek
recertification. Additionally, PHAs and
owners might permit recertification for
rent going forward, but not recertify the
loss of income retroactively, meaning
that coverage of rent arrears by ERA
could still be necessary to help prevent
future evictions.
HUD now must take further action to
ensure that tenants in public housing
and PBRA 27 assisted units who are
eligible for funding during a national
emergency are afforded notice about the
funding and have the opportunity to
secure it before a lease termination for
nonpayment of rent occurs. Congress
specifically intended that ERA funds
would reduce what otherwise would be
an intolerably high number of evictions
due to financial issues caused by the
national emergency. While States and
localities continue to accelerate and
improve their programs to provide
funding to tenants, many tenants who
now face imminent eviction with the
moratorium gone still need additional
time and information to access the ERA
applications and complete the process.
This interim final rule will ensure that
HUD-assisted tenants who are facing
eviction for nonpayment of rent have
notice of available emergency funds and
are afforded more time to access that
assistance. A tenant who has been
previously made aware of eligibility for
emergency assistance may not think to
apply for it until they are facing
eviction, as many tenants now are
following judicial vacatur of the CDC’s
eviction moratorium. HUD believes that
getting tenants information about
accessing emergency funding at the
moment when they most need it and are
likely to take advantage of it is crucial
for fulfilling HUD’s mission.
Statutory and Regulatory Authority
HUD has general rulemaking
authority under 42 U.S.C. 3535 to
implement its statutory mission, which
27 HUD’s PBRA programs included in the scope
of this rule includes Section 8, Section 8 Moderate
Rehabilitation, Section 202/162 Project Assistance
Contract, Section 202 Project Rental Assistance
Contract (PRAC), Section 811 PRAC, Section 236
Rental Housing Assistance Program and Rent
Supplement. In addition, some housing developed
with subsidized financing through former programs
such as Section 221(d)(3) Below Market Interest
Rate, Section 236 and Section 202 Direct Loan are
part of HUD’s PBRA Program.
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
is to provide assistance for housing to
promote ‘‘the general welfare and
security of the Nation and the health
and living standards of [its] people.’’ 28
Each year, HUD provides States, local
governments, and housing providers
with billions of dollars in Federal
financial assistance, appropriated and
authorized by Congress. By taking the
actions described here, HUD will
prevent unnecessary evictions and the
costs associated with them for both
tenants and PHAs and owners, as
compelled by its mission. These actions
will promote the general welfare and
security of the Nation by avoiding the
societal ills exacerbated by the
dislocations wrought by evictions in the
time of a national emergency, such as
deterioration of public health through
disease transmission, extended
disruptions to children’s schooling after
the prolonged period of disruption that
many have already experienced during
the current national emergency and all
the other problems attendant to
increased homelessness.
In addition, increases in evictions
frustrates HUD’s programmatic
efficiency. It diverts resources to cover
the costs of unnecessary evictions.
Increased homelessness also makes it
more difficult for HUD to provide
services to the population that qualifies
for HUD’s programs. People
experiencing homelessness are less
likely to receive information about
HUD’s programs and to avail themselves
of those programs. Accordingly, by
reducing evictions, this rulemaking
advances HUD’s statutory purposes.
HUD also has specific statutory
authority under the U.S. Housing Act of
1937 to prescribe procedures and
requirements for PHAs to follow to
ensure sound management practices and
efficient operations.29 Even more
specifically, HUD has the authority to
establish ‘‘procedures designed to
assure the prompt payment and
collection of rents and the prompt
processing of evictions in the case of
nonpayment of rent.’’ 30 HUD also has
authority to specify procedures that
ensure tenants receive the elements of
due process, such as notice of relevant
information, before adverse action is
taken against them.31
In particular, the Secretary is
authorized to require public housing
authorities to provide certain specified
notice periods and other procedural
protections (that are, in turn,
incorporated into lease terms) before
28 42
U.S.C. 3531.
U.S.C. 1437d(c)(4).
30 42 U.S.C. 1437d(c)(4)(B).
31 42 U.S.C. 1437d(k).
29 42
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different types of eviction
proceedings.32 In exercising that
statutory authority, HUD’s regulations
provide that in the case of termination
for nonpayment of rent, a PHA shall
provide at least fourteen days’ written
notice. See 24 CFR 966.4.
The Secretary also has statutory
authority to establish requirements for
project-based rental assistance.33 This
statutory authority provides that during
the lease term, the owner must not
‘‘terminate the tenancy except for
serious or repeated violation of the
terms and conditions of the lease, for
violation of applicable Federal, State, or
local law, or for other good cause[.]’’ 34
The Secretary is also authorized to
provide additional terms and conditions
that must be incorporated into the
tenant’s lease.35 This rulemaking is
consistent with the statutory restrictions
placed on program participants under
this authority and HUD’s regulations
promulgated in this area.
Specifically, for termination for
nonpayment of rent in HUD’s projectbased rental assistance programs, HUD’s
regulations generally provide that a
termination notice must be provided
with enough advance time to comply
with both the rental agreement or lease
and State laws.36 See 24 CFR 247.4(c);
24 CFR 880.607(c)(2). By contrast, for
termination of tenancy for ‘‘other good
cause,’’ HUD regulations require 30
days’ notice along with the provision of
specific information to the tenant. See
24 CFR 880.607(c)(2). HUD imposes
different notice requirements in specific
programs; in one program, five working
days’ notice are required before tenancy
termination while in another program
the regulations provide for 10 days. See
24 CFR 882.511; 24 CFR 884.216.
This interim final rule amends these
program regulations for public housing
and project-based rental assistance to
accommodate current and future
exigencies, based on HUD’s statutory
authority and policy discretion, in three
ways.
32 42
U.S.C. 1437d(l).
U.S.C. 1437f(g) (Section 8 low-income
housing assistance); 12 U.S.C. 1701q (Section 202
supportive housing for the elderly); 42 U.S.C. 8013
(Section 811 supportive housing for persons with
disabilities).
34 42 U.S.C. 1437f(d)(1)(B)(ii). See also 42 U.S.C.
8013(i)(2)(B) (Section 811).
35 42 U.S.C. 1437f(d)(1)(B)(iv).
36 The time period required by State laws can
vary from 0 days to 30 days depending on the
jurisdiction. See NOLO, State Laws on Termination
for Nonpayment of Rent, https://www.nolo.com/
legal-encyclopedia/state-laws-on-termination-fornonpayment-of-rent.html (last updated Dec. 10,
2020) (citing W.Va. Code Section 55–3A–1 (no
notification period), Fla. Stat. Ann. Section 83.56(3)
(3 days); Idaho Code Section 6–303(2) (3 days) and
D.C. Code Ann. Section 42–3505.01 (30 days)).
33 42
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55697
First, it provides that, when funding
is available to assist tenants with
nonpayment of rent during a national
emergency, such as the current COVID–
19 pandemic, the Secretary may
determine that tenants facing eviction
for nonpayment of rent must be
provided with adequate time and notice
to secure that funding. Upon that
determination, the PHA or owner
seeking to evict for non-payment must
provide the tenant with such
information as required by the Secretary
for accessing the funds that are being
made available related to the
emergency. HUD will publish a Notice
outlining the specific information to be
included in the lease termination
notification to assist eligible tenants in
obtaining funding during this
emergency. The Notice will explain the
requirements for PHAs and owners to
provide the information in a manner
that ensures effective communication
for individuals with disabilities, such as
by providing the information in
accessible electronic formats or in
Braille, and to provide meaningful
access for persons with limited English
proficiency (LEP).
Second, to ensure tenants facing
eviction for non-payment of rent are
provided an adequate opportunity to
access emergency funding, this interim
final rule also extends the lease
termination time period for such tenants
to at least 30 days following the abovedescribed notification. This 30-day
period is consistent with the longest of
the standard periods to which PHAs and
owners are already accustomed for
many evictions. For example, for
evictions for reasons other than
nonpayment of rent, health or safety
concerns, or criminal activity, 42 U.S.C.
1437d(l) and 24 CFR 966.4(l)(3) already
provide for a 30-day time period, unless
State or local law allows a shorter
period.
Similarly, HUD’s PBRA regulations at
24 CFR 247.4, 24 CFR 880.607, and 24
CFR 882.511, as well as 42 U.S.C.
8013(i)(2)(B), all provide that when
termination of the tenancy is based on
other good cause, the tenancy will not
terminate earlier than 30 days after the
tenant receives the notice. Further, some
state laws already provide for 30 days
more generally or specifically for the
current national emergency.37
Third, the interim final rule provides
that, for public housing, in addition to
requiring the provision of specified
information to tenants facing eviction
37 See, e.g., Colo. Executive Order No. D 2021–
122, (July 8, 2021) https://www.colorado.gov/
governor/sites/default/files/inline-files/D%202021
%20122.pdf.
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for failure to pay rent, the Secretary may
also require that all tenants be provided
immediate notice of the availability of
emergency funding. This notice may be
posted in a public area, emailed to all
tenants, or otherwise provided to groups
of tenants rather than individuals, if the
PHA so chooses.
HUD has chosen, based on its
statutory authority for the public
housing and PBRA programs,38 its
rulemaking authority,39 and its policy
discretion, to protect its assisted tenants
and ensure it is fulfilling its statutory
duties by promulgating this interim
final rule.
HUD notes that this rule does not
require PHAs or owners to modify
tenant leases, which provide
notification procedures and time
periods that may be more limited than
those provided in this rule. It would be
administratively infeasible to update all
public housing and PBRA leases to
incorporate these changes, which are
limited in the time they will be in effect,
and to update all leases quickly enough
to immediately protect families at-risk
of eviction. However, the rule requires
that PHAs and owners follow this rule
in place of the usual lease provisions at
times when its provisions are in effect,
and does not prevent PHAs and owners
from updating their leases if they so
choose.
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Administrative Procedure Act (APA)
In general, HUD publishes a rule for
public comment before issuing a rule for
effect, in accordance with both the APA,
5 U.S.C. 553, and its own regulations on
rulemaking, 24 CFR part 10. Both the
APA and Part 10, however, provide for
exceptions from that general rule where
HUD finds good cause to omit advance
notice and public participation, in
addition to the Secretary’s statutory and
regulatory authority to waive
regulations.40 The good cause
requirement is satisfied when the prior
public procedure is ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ 41 In order to publish a rule for
effect prior to receiving and responding
to public comments, the agency must
make a finding that at least one of these
‘‘good cause’’ exceptions applies.
HUD has determined that good cause
exists to promulgate this interim final
rule without prior notice and comment,
to ensure that tenants who are
38 42 U.S.C. 1437d(l); 42 U.S.C. 1437f(g) (Section
8 low-income housing assistance); 12 U.S.C. 1701q
(Section 202 supportive housing for the elderly); 42
U.S.C. 8013 (Section 811 supportive housing for
persons with disabilities).
39 42 U.S.C. 3535.
40 42 U.S.C. 3535(q).
41 5 U.S.C. 553(b)(B); 24 CFR 10.1.
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imminently facing eviction for
nonpayment of rent and are eligible for
ERA funding receive the benefit of this
rule’s requirement of notice and an
opportunity to access these funds. HUD
finds that prior notice and comment is
impracticable and would create undue
harm by delaying this rule’s
effectiveness.
Given the recent vacatur of the CDC
Order suspending evictions, which may
put HUD-assisted tenants at risk of
being abruptly evicted before they can
receive ERA funding, immediate action
is necessary to ensure that ERA funding
reaches its intended beneficiaries
quickly and efficiently. HUD is taking
this action to foster stability in its own
programs by preventing tenant turnover
and increased homelessness; preventing
unnecessary hardship for HUDsupported tenants; and promoting the
most efficient and effective use of ERA
funds.
HUD is also taking this action to
prevent harm to HUD- assisted tenants
and allow landlords and PHAs to avoid
the time and expense of unnecessary
evictions while simultaneously
providing those landlords with the
funds necessary to recoup arrearages
and other eligible costs through ERA
funding.
Good cause can be found when
circumstances outside the agency’s
control make compliance with notice
and comment impracticable.42 HUD’s
good-cause determination is based on,
among other things, the following
considerations.
First, delay to allow prior notice and
comment would effectively moot a
significant aspect of this rule. This
interim final rule is urgently needed
right now, because the CDC Moratorium
was abruptly enjoined prior to its
anticipated expiration and thus
evictions for nonpayment of rent are
likely to proceed imminently. As some
State and local grantees are only in the
beginning stages of distributing ERA
funds, many tenants may be unaware of
their eligibility for such assistance or
may be waiting for distribution of such
assistance rather than acting themselves.
Housing providers giving tenants
information about ERA funding as soon
as possible, and providing them with
time to apply for it before more
evictions occur, is crucial to ensuring
the program’s success and realizing
Congress’s intent in providing for ERA
funding in the first place. The change in
this interim final rule must be
42 5 U.S.C. 553(b)(B); see, e.g., Tri-Cty. Tel. Ass’n
v. FCC, 999 F.3d 714, 719–20 (D.C. Cir. 2021)
(providing funds in an ongoing emergency caused
by a natural disaster).
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undertaken with expedience to ensure
the maximum intended effects of ERA
funding. Such potential harm to the
public is increased right now, given the
recent vacatur of the CDC order and the
continued need for additional time for
ERA funding to reach eligible
beneficiaries, making it critical that this
rule go into effect when it is needed
most.
HUD’s Regulatory Impact Analysis
provides that an estimated 217,000
households could be protected under
this rulemaking when implemented.
Delaying this interim final rule’s
effective date for months would render
it useless and unavailable for a
significant fraction of the tenants and
landlords who would benefit from the
rule. That would result in unnecessary
evictions, preventable homelessness,
and increased cohabitation during a
pandemic.
Second, aside from mooting this
interim final rule’s purpose, delay due
to prior notice and comment would
result in evictions that could have been
prevented if tenants had received
adequate notification that assistance
was available, and the opportunity to
apply for and receive approval and
funding prior to being evicted.
Specifically, during an advanced notice
and comment period, it is likely that
individuals who could have benefited
from this rule would face eviction
before the rule goes into effect. That
includes tenants who are now in the
process of applying for ERA; tenants
who are eligible for ERA but do not
know of their eligibility or how to
apply; and those who have completed
applications but are waiting for receipt
of funds.
Third, increased evictions are harmful
not only to the individual families who
lose their housing, but to HUD’s mission
and society as a whole. This is
particularly the case when the
processing of unnecessary evictions
leads to increased cost and
administrative burden for program
participants as well as an increase in
homelessness and cohabitation in
particularly vulnerable populations. As
the Federal agency responsible for
housing assistance and community
development,43 HUD has responsibility
to promote housing stability and the
efficient and effective use of its
resources to secure housing for
vulnerable families. An increase in
evictions also leads to instability in
communities from tenant turnover,44
43 42
U.S.C. 3531.
Richard Ellis (CBRE), Apartment Turnover
Declines Amid COVID–19 Crisis, U.S. Multifamily
Research Brief (June 2020) https://www.cbre.us/
44 CB
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children needing to change schools,45
increased cohabitation,46 and increased
homelessness,47 which harms owners
and undercuts the effectiveness of
HUD’s work by increasing the strain on
its resources and programs. Reducing
evictions results in less costs and
resources that PHAs and owners have to
expend to process evictions; reduced
costs associated with unit turnover; and
reduction in burdens associated with
bringing on new tenants. Additionally,
there is potential benefit accruing to the
landlord from the tenant’s securing of
ERA funding through the repayment of
back rent using ERA funding. There is
also benefit to PHAs and owners to
maintain tenants who are otherwise
good tenants other than the impact of
the COVID–19 pandemic on their
income.
Delaying the rulemaking for prior
notice and comment would be
impracticable and contrary to the public
interest. HUD believes the public
interest is best served by ensuring that
all tenants can benefit from the
opportunity to access ERA funding and
stay in HUD-assisted housing than
limiting such benefit only to tenants
who would benefit from this rule after
notice and comment.
HUD values public input in its
rulemakings and believes that providing
the opportunity for comment enhances
its regulations. HUD’s regulations on
rulemaking at 24 CFR part 10, provide
for 60-days of public comment for
proposed rules and an exception for
good cause. Additionally, HUD often
solicits comments on its rules and
provides for a 60-day comment period
even when not required under the APA.
Due to the COVID–19 national
emergency, delaying this rule to accept
research-and-reports/US-Multifamily-ResearchBrief---Apartment-Turnover-Declines-in-COVID-19Crisis-June-2020.
45 U.S. Centers for Disease Control and
Prevention, COVID–19 pandemic: Helping young
children and parents transition back to school, U.S.
Centers for Disease Control and Prevention (Sept. 2,
2021) https://www.cdc.gov/childrensmentalhealth/
features/COVID-19-helping-children-transitionback-to-school.html.
46 See, e.g., L.E. D’Onofrio, Jr., F.D. Buono, and
M.A.R. Coopera, Cohabitation COVID–19
transmission rates in a United States suburban
community: A retrospective study of familial
infections, U.S. National Library of Medicine,
National Institutes of Health, (Jan. 16, 2021) https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC7816609/
(‘‘The cohabitation infection attack rate of SARS–
CoV–2 is significantly higher than previously
reported. Age of household contacts and spousal
relationship to the index case are risk factors for
transmission of SARS–CoV–2 within a
household.’’).
47 Robert Collinson and Davin Reed, The Effects
of Evictions on Low-Income Households, NY
Furman Center for Real Estate & Urban Policy
(February 2019) https://robcollinson.github.io/
Robwebsite/jmp_rcollinson.pdf.
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prior public comment would be
contrary to the public interest. The
provisions in this interim final rule are
designed specifically to be limited in
scope and apply only in a national
emergency period. For the reasons
explained above, HUD finds that there
is good cause consistent with the public
interest to issue the rule without
advance notice and comment.
HUD’s policy of providing 60 days for
public comment only applies to
proposed rules, not to interim final
rules. In this case, HUD does not believe
that 60 days is needed for public
comment, given the limited changes
being made in this interim final rule,
and also believes it is in the public
interest to secure comments quickly. In
providing for 30-days, HUD anticipates
reviewing any such comments on a
rolling basis as they are received and
acting quickly if it determines to adopt
any suggestions that may be made in the
public comments. For the reasons
above, HUD has determined that in this
case a 30-day public comment period is
appropriate.
Other Justifications for the Interim Final
Rule
In taking this action, HUD is
protecting the efficient and effective
operation of its public housing and
project-based rental assistance
programs, the interests of the tenants
whose rent it subsidizes, and landlords’
business needs. This interim final rule
is narrowly tailored so that it will
require, during an emergency such as
this one, notification to be provided to
tenants regarding the availability of
emergency funds and a brief extension
of the time that must be provided before
lease termination for nonpayment of
rent, thus permitting the tenant to seek
to secure such emergency funds to cure
the deficiencies before commencement
of eviction. It will not change any other
eviction procedures. This interim final
rule does not require that PHAs or
owners immediately amend leases in
accordance with this rule, but it would
not prohibit PHAs and owners from
amending lease terms to be consistent
with this rule if they so choose.
HUD recognizes that some housing
providers are already supporting
tenants’ access to ERA funds and
delaying evictions for nonpayment of
rent. In fact, in HUD’s rental assistance
programs, households can recertify their
income in the case of a job loss or other
change in income so to avoid or reduce
the likelihood of failure to pay rent
delinquencies. Similarly, housing
providers can also work with tenants to
create repayment plans and to adjust
rent amounts. HUD believes these to be
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55699
sound management practices that are
aligned with this rule’s purposes.
However, not all housing providers may
be providing additional time for tenants
to access ERA funds, allowing
recertifications to be retroactive to cover
arrears, or actively encouraging tenants
to recertify their income.
This focused interim final rule does
not prevent evictions altogether, but
instead requires PHAs and owners to
provide information about accessing
ERA and additional time to do so when
there is an eviction for nonpayment of
rent, thus minimizing costs associated
with unit turnover from tenant to
tenant, preventing unnecessary
hardship for HUD-assisted tenants, and
ensuring that housing providers can
continue to operate effectively.
III. Alternatives Considered and Scope
This interim final rule’s scope is
limited to address only situations in
which federally assisted public housing
agencies and PBRA housing providers
may access federally appropriated
emergency funding to help tenants
satisfy rent obligations caused by a
national emergency, like the COVID–19
pandemic. It directly applies only in
instances where tenants in certain HUDsupported housing are facing eviction
due to nonpayment of rent during such
an emergency and places the burden on
HUD to provide the information
necessary to include in the notice
provided by PHAs and owners to
tenants.
The interim final rule also seeks to
balance the interest of tenants and the
reliance of PHAs and multifamily
owners in administering their program.
The interim final rule provides for a
modest period of additional time, 30days, for tenants to apply for emergency
financial assistance. HUD understands
that some tenants may be unable to
secure ERA funding, or future assistance
provided to address an emergency,
within a 30-day period. Administration
of ERA assistance differs between states
and localities and in some programs a
PHA, owner, or tenant would not
receive the ERA payment within 30days of application. However, in
considering what would be a reasonable
and practical extension of time to
require, HUD settled on 30 days
because, as discussed above, it is a timeperiod to which owners are already
accustomed, and it would have minimal
impact on program operations. HUD
also settled on at least 30 days because
it is a set time frame for which PHAs
and multifamily owners could rely for
implementation.
HUD strongly encourages PHAs and
owners to work with tenants who are
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eligible for ERA funding and to delay
lease terminations for any tenants
whose application for ERA assistance is
still pending after a 30-day period.
Additionally, HUD notes that the
Department of Justice issued guidance
encouraging courts to consider
postponing pending eviction cases to
allow tenants to apply for emergency
rental assistance.48 For tenants who
have already applied for such
assistance, HUD would expect that
courts may be even more inclined to
postpone eviction proceedings. Further,
a minimum 30-day time period may
provide tenants with an opportunity to
secure counsel to assist them in eviction
proceedings. Given these factors, HUD
believes that providing tenants with at
least 30-days from the date of
notification of lease termination and
notification of the availability of
emergency rental assistance will
sufficiently help most tenants who are
eligible for ERA to retain their housing,
while ensuring PHAs and PBRA owners
can operate effectively.
In determining that this interim final
rule’s requirement to provide the notice
in the time period described above was
the most appropriate means to achieve
the goals discussed, the agency
considered and rejected several other
changes to its program requirements.
For instance, HUD considered the
imposition of an eviction moratorium in
these programs, which would have
allowed extensive time for tenants to
seek ERA funding. HUD determined that
its statutory authorities do not clearly
provide the authority necessary to
impose such a broad moratorium. By
contrast, as noted above, HUD’s
authorities provide for the imposition of
terms and conditions on public housing
authorities and owners when those
entities are exercising the discretion
provided under the statute and their
respective contracts to seek to collect
rent and promptly take action for
nonpayment of rent. HUD believes this
more targeted action better accords with
the statutory scheme, which gives
landlords discretion to evict but
provides HUD authority to regulate the
prompt collection of rent and processing
of evictions.
Additionally, HUD considered
imposing a requirement on PHAs and
owners to apply for emergency funding
on behalf of tenants before proceeding
with eviction. HUD also considered the
use of required retroactive
recertifications and required repayment
plans for tenants who would qualify for
48 U.S. Dep’t. of Justice, Letter from Associate
Attorney General Gupta, June 24, 2021, https://
www.justice.gov/asg/page/file/1405886/download.
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ERA assistance. HUD also considered
tying the notification requirement on a
more limited scale to a particular
location, region or based on a specific
finding that a jurisdiction had a high
COVID rate. For all of these options,
HUD has already worked with PHA and
owners to encourage them to apply for
ERA, allow recertifications, create
repayment plans, and adjust to rents.
However, HUD believed implementing
these changes by regulation would be
overly burdensome and create multiple
challenges for implementation.
In deciding to act in the manner
described in this interim final rule, HUD
has based its actions on the enumerated
authorities granted to it by statute. This
interim final rule is consistent with
HUD’s statutory authority and is in
keeping with the types of requirements
imposed by HUD through its existing
regulations.
IV. Findings and Certifications
Executive Orders 12866 and 13563,
Regulatory Planning and Review
Pursuant to Executive Order 12866
(Regulatory Planning and Review), a
determination must be made whether a
regulatory action is significant and
therefore, subject to review by the Office
of Management and Budget (OMB) in
accordance with the requirements of the
Executive order. This interim final rule
has been determined to be a ‘‘significant
regulatory action,’’ as defined in section
3(f) of Executive Order 12866, but not
economically significant. HUD has
prepared a regulatory impact analysis
that addresses the costs and benefits of
the interim final rule. The analysis is
available at www.regulations.gov and is
part of the docket file for this rule.
Executive Order 13563 (Improving
Regulations and Regulatory Review)
directs executive agencies to analyze
regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned.’’ Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. HUD believes that
this interim final rule would provide
added protections for tenants and is
consistent with Executive Order 13563.
Executive Order 12612, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
implications if the rule either imposes
substantial direct compliance costs on
state and local governments and is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of Section 6 of the Executive order. This
interim final rule would not have
federalism implications and would not
impose substantial direct compliance
costs on state and local governments or
preempt state law within the meaning of
the Executive order.
Environmental Impact
This interim final rule does not direct,
provide for assistance or loan and
mortgage insurance for, or otherwise
govern or regulate, real property
acquisition, disposition, leasing (other
than tenant-based rental assistance),
rehabilitation, alteration, demolition, or
new construction, or establish, revise, or
provide for standards for construction or
construction materials, manufactured
housing, or occupancy. Accordingly,
under 24 CFR 50.19(c)(1), this interim
final rule is categorically excluded from
environmental review under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321, et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) (RFA) generally
requires an agency to conduct a
regulatory flexibility analysis of any rule
subject to notice and comment
rulemaking requirements, unless the
agency certifies that the interim final
rule will not have a significant
economic impact on a substantial
number of small entities. Because HUD
determined that good cause exists to
issue this rule without prior public
comment, this rule is not subject to the
requirement to publish an initial or final
regulatory flexibility analysis under the
RFA as part of such action.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520), an agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information,
unless the collection displays a
currently valid Office of Management
and Budget (OMB) control number.
HUD requested emergency approval to
OMB of the information collection
changes described in this rule. HUD has
published elsewhere in this issue of the
Federal Register a separate notice for
public comment informing the public of
the additional burden associated with
the existing collection for public
housing OMB Control No: 2577–0006
E:\FR\FM\07OCR1.SGM
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
§ 247.4
and for multifamily housing OMB
Control No: 2502–0178.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4;
approved March 22, 1995) (UMRA)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments, and on the private
sector. This rule does not impose any
Federal mandates on any state, local, or
tribal government, or on the private
sector, within the meaning of the
UMRA.
List of Subjects
24 CFR Part 247
*
*
*
*
(c) * * * In cases of nonpayment of
rent, if the Secretary determines that
tenants must be provided with adequate
notice to secure Federal funding that is
available due to a Presidential
declaration of a national emergency, the
termination notice shall be effective no
earlier than 30 days after receipt by the
tenant of the termination notice.
*
*
*
*
*
(e) * * * Where the Secretary has
made the determination in paragraph (c)
of this section, the termination notice
must provide such information as
required by the Secretary.
*
*
*
*
*
Grant programs—housing and
community development, Loan
programs—housing and community
development, Low and moderate
income housing, Rent subsidies.
PART 880—SECTION 8 HOUSING
ASSISTANCE PAYMENT PROGRAM
FOR NEW CONSTRUCTION
24 CFR Part 880
Authority: 42 U.S.C. 1437a, 1437c, 1437f,
3535(d), 12701, and 13611–13619.
3. The authority citation for part 880
continues to read as follows:
■
Grant programs—housing and
community development, Rent
subsidies, Reporting and recordkeeping
requirements.
24 CFR Part 882
Grant programs—housing and
community development, Homeless,
Lead poisoning, Manufactured homes,
Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 884
Grant programs—housing and
community development, Rent
subsidies, Reporting and recordkeeping
requirements, Rural areas.
24 CFR Part 966
Grant programs—housing and
community development, Public
housing, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in
the preamble, HUD amends 24 CFR
parts 247, 880, 882, 884, and 966 as
follows:
1. The authority citation for part 247
continues to read as follows:
■
Authority: 12 U.S.C. 1701q, 1701s, 1715b,
1715l, and 1715z–1; 42 U.S.C. 1437a, 1437c,
1437f, and 3535(d).
2. Amend § 247.4 by adding a
sentence to the end of paragraph (c) and
a sentence to the end of paragraph (e) to
read as follows:
■
VerDate Sep<11>2014
16:21 Oct 06, 2021
Jkt 256001
4. Amend § 880.607 by adding
paragraph (c)(6) to read as follows:
■
§ 880.607 Termination of tenancy and
modification of lease.
*
*
*
*
*
(c) * * *
(6) In the case of failure to pay rent,
if the Secretary determines that tenants
must be provided with adequate notice
to secure Federal funding that is
available due to a Presidential
declaration of a national emergency:
(i) The termination notice must
provide such information as required by
the Secretary; and
(ii) The notice must provide the
tenant with at least 30 days before
termination.
*
*
*
*
*
PART 882—SECTION 8 MODERATE
REHABILITATION PROGRAMS
5. The authority citation for part 882
continues to read as follows:
■
(1) * * *
(i) When termination is based on
failure to pay rent, the date of
termination must be not less than five
working days after the Family’s receipt
of the notice; or, if the Secretary
determines that tenants must be
provided with adequate notice to secure
Federal funding that is available due to
a Presidential declaration of a national
emergency, the date of termination must
be not less than 30 days after the
Family’s receipt of the notice.
*
*
*
*
*
(2) * * *
(iv) Include such information to
tenants during a national emergency, as
required by the Secretary.
*
*
*
*
*
PART 884—SECTION 8 HOUSING
ASSISTANCE PAYMENTS PROGRAM,
NEW CONSTRUCTION SET-ASIDE FOR
SECTION 515 RURAL RENTAL
HOUSING PROJECTS
7. The authority citation for part 884
continues to read as follows:
■
Authority: 42 U.S.C. 1437a, 1437c, 1437f,
3535(d), and 13611–13619.
8. Amend § 884.216 by adding
paragraph (d) to read as follows:
■
§ 884.216
Termination of tenancy.
*
*
*
*
*
(d) In the case of failure to pay rent,
if the Secretary determines that tenants
must be provided with adequate notice
to secure Federal funding that is
available due to a Presidential
declaration of a national emergency:
(1) The owner must provide the
tenant with written termination
notification that includes such
information as required by the
Secretary; and
(2) The written termination
notification described in paragraph
(d)(1) of this section must be provided
to the tenant at least 30 days before
termination.
PART 966—PUBLIC HOUSING LEASE
AND GRIEVANCE PROCEDURE
Authority: 42 U.S.C. 1437f and 3535(d).
6. Amend § 882.511 by:
a. Revising paragraph (d)(1)(i);
b. Adding paragraph (d)(2)(iv); and
c. In paragraph (d)(3), removing the
reference to ‘‘paragraph (c)(2)’’ and
adding the reference ‘‘paragraphs (d)(1)
and (2) of this section’’ in its place.
The revision and addition read as
follows:
■
■
■
■
PART 247—EVICTIONS FROM
CERTAIN SUBSIDIZED AND HUDOWNED PROJECTS
lotter on DSK11XQN23PROD with RULES1
Termination notice.
*
55701
§ 882.511
tenancy.
*
PO 00000
Lease and termination of
*
*
(d) * * *
Frm 00017
*
Fmt 4700
*
Sfmt 4700
9. The authority citation for part 966
continues to read as follows:
■
Authority: 42 U.S.C. 1437d and 3535(d).
■
10. Add § 966.8 to read as follows:
§ 966.8 Providing opportunity to receive
emergency rent relief.
(a) If the Secretary determines that
tenants must be provided with adequate
notice to secure Federal funding that is
available due to a Presidential
declaration of a national emergency:
(1) The notice of lease termination
required in § 966.4(l)(3) for failure to
E:\FR\FM\07OCR1.SGM
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55702
Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
pay rent must provide such information
as required by the Secretary; and
(2) Notwithstanding § 966.4(l)(3)(i)(A),
the notice of lease termination for
failure to pay rent must provide for at
least 30 days from the date the tenant
receives the notice.
(b) Upon the Secretary’s
determination in paragraph (a) of this
section, the PHA must provide notice to
all tenants of the requirements in
paragraph (a) taking effect.
Dominique Blom,
General Deputy Assistant Secretary, Office
of Public and Indian Housing.
Lopa P. Kolluri,
Principal Deputy Assistant Secretary, Office
of Housing-Federal Housing Administration.
[FR Doc. 2021–21960 Filed 10–6–21; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2021–0748]
RIN 1625–AA08
Special Local Regulation; San Diego
Bay, San Diego, CA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a special local regulation
for the San Diego Sharkfest Swim
marine event that will be held on the
navigable waters of San Diego Bay, San
Diego, CA. This action is necessary to
provide for the safety of life on these
navigable waters of San Diego Bay
during a swim event on October 10,
2021. This rule would prohibit
spectators from anchoring, blocking,
loitering or transiting through the event
area unless authorized by the Captain of
the Port San Diego or a designated
representative.
SUMMARY:
This rule is effective from 8:30
a.m. to 10:30 a.m. on October 10, 2021.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0748 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
lotter on DSK11XQN23PROD with RULES1
DATES:
If
you have questions on this rule, call or
email Lieutenant Commander John
Santorum, Waterways Management,
FOR FURTHER INFORMATION CONTACT:
VerDate Sep<11>2014
16:21 Oct 06, 2021
Jkt 256001
U.S. Coast Guard Sector San Diego, CA;
telephone (619) 278–7656, email
D11MarineEventsSD@uscg.mil.
SUPPLEMENTARY INFORMATION:
This rule is needed to protect persons,
vessels, and the marine environment in
the navigable waters within San Diego
Bay while the event is occurring.
I. Table of Abbreviations
IV. Discussion of the Rule
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
This rule establishes a special local
regulation from 8:30 a.m. to 10:30 a.m.
on October 10, 2021. This special local
regulation will cover the navigable
waters of San Diego Bay encompassed
by a line connecting the following
coordinates beginning at 32°42′14″ N,
117°09′55″ W (Point A); thence running
southerly to 32°41′49″ N, 117°09′57″ W
(Point B); thence running south, along
the shoreline to 32°41′19″ N, 117°09′48″
W (Point C); thence running north
easterly to 32°41′23″ N, 117°09′41″ W
(Point D); thence running northerly to
32°42′00″ N, 117°09′38″ (Point E);
thence running northerly, along the
shoreline to the beginning point. The
duration of the zone is intended to
ensure the safety of vessels, event
participants, and these navigable waters
during the scheduled marine event. No
vessel or person would be permitted to
enter the regulated area without
obtaining permission from the COTP or
a designated representative. The
regulatory text appears at the end of this
document.
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because we
must establish this special local
regulation by October 10, 2021. The
Coast Guard was given short notice from
the event sponsor that the date of the
the event would differ from the existing
annual marine event as outlined in 33
CFR 100.1101, Table 1 to § 100.1101,
Item 7. As such, it is impracticable to
publish an NPRM because we lack
sufficient time to provide a reasonable
comment period and then consider
those comments before issuing the rule.
This regulation is necessary to ensure
the safety of life on the navigable waters
of San Diego Bay during the marine
event.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying the effective date of
this rule would be contrary to public
interest because immediate action is
needed to ensure the safety of life on the
navigable waters of San Diego Bay
during the marine event on October 10,
2021.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70041
(previously 33 U.S.C. 1236). The
Captain of the Port Sector San Diego
(COTP) has determined that a large
amount of swimmers in San Diego Bay
associated with the San Diego Sharkfest
Swim marine event on October 10,
2021, poses a potential safety concern.
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Fmt 4700
Sfmt 4700
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly,
this rule has not been reviewed by the
Office of Management and Budget
(OMB).
This regulatory action determination
is based on the size, location, duration,
and time-of-day of the regulated area.
The affected portion of the San Diego
Bay will be of very limited duration,
during morning hours when vessel
traffic is historically low and is
necessary for safety of life to
participants in the event. Moreover, the
Coast Guard would make a post in the
Local Notice to Mariners with details on
the regulated area, as well as, issue a
E:\FR\FM\07OCR1.SGM
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]]>Agencies
[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Rules and Regulations]
[Pages 55693-55702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21960]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 247, 880, 882, 884, 966
[Docket No. FR-6286-I-01]
RIN 2501-AD99
Extension of Time and Required Disclosures for Notification of
Nonpayment of Rent
AGENCY: Office of the Assistant Secretary of Public and Indian Housing,
and Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (HUD).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule applies when, during emergencies such
the current COVID-19 pandemic, Federal funding is available to assist
tenants with nonpayment of rent and tenants facing eviction for
nonpayment of rent in public housing and properties with project-based
rental assistance (PBRA) (for purposes of this rule, PBRA includes
projects in the following programs: Section 8, Section 8 Moderate
Rehabilitation, Section 202/162 Project Assistance Contract, Section
202 Project Rental Assistance Contract (PRAC), Section 811 PRAC,
Section 236 Rental
[[Page 55694]]
Housing Assistance Program and Rent Supplement) need sufficient time
and information to seek and receive such emergency rent relief. This
interim final rule will allow the Secretary, upon making the requisite
findings and providing the requisite notice, to require housing
providers participating in those programs to provide tenants facing
eviction for non-payment of rent with notification of and information
about the opportunity to secure emergency funding and additional time
to secure such funding prior to eviction.
DATES:
Effective date: November 8, 2021.
Comment due date: November 8, 2021.
ADDRESSES: Interested persons are invited to submit comments regarding
this interim final rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW, Room 10276, Washington, DC 20410-0500. Communications must refer to
the above docket number and title. There are two methods for submitting
public comments. All submissions must refer to the above docket number
and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must be
submitted through one of the two methods specified above. Again, all
submissions must refer to the docket number and title of the rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an advance appointment to review the public comments must be
scheduled by calling the Regulations Division at 202-402-3055 (this is
not a toll-free number). Individuals with speech or hearing impairments
may access this number via TTY by calling the Federal Information Relay
Service, toll-free, at 800-877-8339. Copies of all comments submitted
are available for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For Public and Indian Housing:
Danielle Bastarache, Deputy Assistant Secretary for Public Housing and
Voucher Programs, 451 7th Street SW, Room 4204, Washington, DC 20410,
telephone number 202-402-1380 (this is not a toll-free number). For a
quicker response, email [email protected]. For Multifamily: Robert
Iber, Senior Advisor for the Office of Multifamily Housing Programs,
451 7th Street SW, Room 6106, Washington, DC 20410, telephone number
202-708-3055 (this is not a toll-free number). For a quicker response,
email [email protected]. Persons with hearing or speech
impairments may access these numbers via TTY by calling the Federal
Relay Service at 800-877-8339 (this is a toll-free number).
SUPPLEMENTARY INFORMATION: This rule provides that, during the COVID-19
pandemic and other future emergencies, the Secretary may require that
public housing authorities (PHAs) and PBRA owners provide tenants with
specified information regarding any Federal funding that is made
available to prevent eviction for nonpayment of rent during such
emergency. The Secretary may also extend the time period before lease
termination for nonpayment of rent to a minimum of 30 days after the
tenant has received such information. This interim final rule will
provide an important opportunity for tenants who face hardship due to
emergencies, such as those who have lost income during the COVID-19
pandemic and are unable to pay rent, to learn about emergency funding
opportunities and take steps to secure emergency funding. This will in
turn prevent unnecessary evictions that would negatively impact the
efficacy of HUD's programs.
I. Background
Since the first case of coronavirus disease 2019 (COVID-19) was
discovered in the United States in January 2020, the disease has
infected over 40 million Americans and killed over 631,000.\1\ The
disease significantly impacted the economy, resulting in millions of
Americans losing their jobs or working fewer hours. In April 2020, the
national unemployment rate reached its highest level in over seventy
years following the most severe month-over-month decline in employment
on record.\2\ Between March 15 and May 15, 2020, over 35 million
Americans filed initial jobless claims, and the unemployment rate
climbed to over 14 percent in April 2020--the highest monthly level
since 1948, when the U.S. Bureau of Labor Statistics started tracking
this data.\3\ The loss of jobs created by the COVID-19 pandemic
exacerbated an affordable housing crisis that predated the pandemic.
During this time, many households have faced housing insecurity.\4\
Amid this once-in-a-century crisis, HUD and the Federal Government
began intense efforts to provide support for affected families, and
State, territorial, Tribal, and local governments (State, local, and
Tribal governments) have been called on to respond to this crisis with
emergency assistance at an immense scale.
---------------------------------------------------------------------------
\1\ Centers for Disease Control and Prevention (CDC), COVID Data
Tracker, https://www.covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Sept. 9, 2021).
\2\ Federal Reserve Bank of St. Louis, Unemployment Rate
[UNRATE], https://fred.stlouisfed.org/series/UNRATE (last visited
Sept. 9, 2021); Federal Reserve Bank of St. Louis, Employment Level
[LNU02000000], https://fred.stlouisfed.org/series/LNU02000000 (last
visited Sept. 9, 2021).
\3\ U.S. Department of Labor, Unemployment Insurance Weekly
Claims Report, May 21, 2020, https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/ui-claims/20201058.pdf.
\4\ Nirmita Panchal et al., The Implications of COVID-19 for
Mental Health and Substance Abuse, Feb. 10, 2021, https://www.kff.org/coronavirus-covid-19/issue-brief/the-implications-of-
covid-19-for-mental-health-and-substance-use; U.S. Census Bureau,
Household Pulse Survey Data Tables, https://www.census.gov/programs-surveys/household-pulse-survey/datasets.html (last visited Sep. 9,
2021); Rebecca T. Leeb et al., Mental Health-Related Emergency
Department Visits Among Children Aged <18 Years During the COVID
Pandemic--US, Jan. 1-Oct. 17, 2020, Morb. Mortal. Wkly. Rep.
69(45):1675-80 (Nov. 13, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
---------------------------------------------------------------------------
On January 31, 2020, the Secretary of Health and Human Services
(HHS) issued a determination under section 319 of the Public Health
Service Act,\5\ that a national public health emergency existed as of
January 27, 2020, because of the COVID-19 pandemic.\6\ On March
[[Page 55695]]
13, 2020, the President declared a nationwide emergency pursuant to
Section 501(b) of the Stafford Act.\7\ All 50 states, the District of
Columbia, and 5 territories were approved for major disaster
declarations to assist with additional needs identified under the
nationwide emergency declaration for COVID-19. On February 21, 2021,
the President extended the national emergency, stating that the COVID-
19 pandemic remains a significant risk to the United States.\8\
---------------------------------------------------------------------------
\5\ 42 U.S.C. 247d.
\6\ The HHS Secretary renewed this determination several times
since then, most recently on July 19, 2021 (effective July 20,
2021). HHS, Renewal of Determination That A Public Health Emergency
Exists, July 19, 2021, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx.
\7\ 42 U.S.C. 5121 et seq.
\8\ See The White House, A Letter on the Continuation of the
National Emergency Concerning the Coronavirus Disease 2019 (COVID-
19) Pandemic, Feb. 24, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/24/a-letter-on-the-continuation-of-the-national-emergency-concerning-the-coronavirus-disease-2019-covid-19-pandemic/.
---------------------------------------------------------------------------
Response to the COVID-19 Pandemic and Related Housing Insecurity
In response to the national emergency declaration, HUD and other
Federal agencies began efforts to support families impacted financially
by the COVID-19 pandemic and at risk of losing their housing.\9\
Additionally, the Coronavirus Aid, Relief, and Economic Security Act,
2020 ``CARES Act,'' a $2.2 trillion economic stimulus bill, was signed
into law on March 27, 2020.\10\ Included in the CARES Act were
provisions providing foreclosure and eviction moratoriums and providing
additional financial relief for owners of certain multifamily housing
projects in an effort to ensure continued stability of the housing
market.\11\
---------------------------------------------------------------------------
\9\ See, e.g., HUD, Mortgagee Letter 2020-04: Foreclosure and
Eviction Moratorium in Connection with the Presidentially Declared
COVID-19 National Emergency, Mar. 18, 2020, https://www.hud.gov/sites/dfiles/OCHCO/documents/20-04hsgml.pdf; U.S. Dep't of
Agriculture, Stakeholder Announcement: USDA Announces Guaranteed
Housing Foreclosure and Eviction Relief, Mar. 19, 2020, https://www.rd.usda.gov/node/17107.
\10\ Public Law 116-136, 134 Stat. 281 (2020).
\11\ Id. at sections 4022-4024.
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Also included in the CARES Act was funding for several HUD programs
to prevent, prepare for, and respond to COVID-19, including increased
rental subsidies in HUD-assisted housing to pay for increased operating
costs and loss of rental income due to tenants' loss of income during
the COVID-19 national emergency. This additional funding was meant to
help ensure that HUD's assisted housing programs continued to operate
as effectively as possible and were not burdened by the additional
expenses associated with preventable evictions.
Other efforts were also underway to prevent an onslaught of
evictions that would lead to an increase in homelessness and
cohabitation, which according to the CDC, also create an environment
that would further spread COVID-19.\12\ As a result, on September 4,
2020, the CDC Director issued an Order temporarily halting evictions in
the United States due to the ongoing public health crisis.\13\ That
original CDC Order expired on December 31, 2020, subject to extension,
modification, or recission. The Consolidated Appropriations Act,
2021,\14\ extended that Order until January 31, 2021, and the original
CDC Order was extended multiple times due to the continued national
emergency.
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\12\ 86 FR 34013 (The 2017 Census Bureau American Housing Survey
found that 32% of renters reported that they would move in with
friends or family members upon an eviction.).
\13\ 85 FR 55292 (pursuant to the CDC's authority under the
Public Health Service Act, 42 U.S.C. 264).
\14\ Public Law 116-260 (2020).
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On August 3, 2021, following the surge in COVID-19 infections due
to the highly contagious Delta variant, the CDC Director issued a new
order temporarily halting evictions for persons in jurisdictions
experiencing substantial or high rates of transmission. However, on
August 26, 2021, the Supreme Court of the United States vacated the
stay of a district court decision invalidating the original and new CDC
Order, holding that the applicants had a substantial likelihood of
success on the merits.\15\ In considering the facts, the Court pointed
to the availability of rental-assistance funds as, in its view,
diminishing the government's ongoing interest in maintaining an
eviction moratorium.\16\ Therefore, without the CDC Order in place,
landlords may resume evictions across the United States during the
national emergency, unless otherwise precluded under state or local
eviction moratoriums.
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\15\ Ala. Ass'n of Realtors v. Dep't of Health and Human Servs.,
594 U.S. __(2021) at 5, https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf.
\16\ Id. at 7-8 (``Whatever interest the Government had in
maintaining the moratorium's original end date to ensure the orderly
administration of those programs has since diminished.'').
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Emergency Rental Assistance
In addition to trying to reduce evictions through the CARES Act,
Congress created the Emergency Rental Assistance (ERA) program, funded
through the Department of the Treasury, to make funds available to
assist households that are unable to pay rent or utilities and provide
funds to landlords to help cover tenants' rent and utilities payments.
The first tranche of ERA funding, ERA1, provides up to $25 billion
under the Consolidated Appropriations Act, 2021, and the second
tranche, ERA2, provides up to $21.55 billion under the American Rescue
Plan Act of 2021, which was enacted on March 11, 2021.\17\ The funds
are provided directly to states, U.S. territories, local governments,
and, in the case of ERA1, also to Indian tribes or Tribally Designated
Housing Entities, as applicable, and the Department of Hawaiian Home
Lands. Grantees then make these funds available to provide rental
assistance to eligible households through existing or newly created
rental assistance programs. These funds may be disbursed to either
tenants or landlords. Public Housing Authorities (PHAs), Housing Choice
Voucher (HCV) landlords, other owners of HUD-assisted properties, and
utility providers may accept funds from the ERA program for rental and
most utility arrearages for HUD-assisted families. HUD-assisted
families are eligible for assistance from the ERA program, provided
that ERA funds are not applied to costs that have been or will be
reimbursed under any other Federal assistance, including Housing
Assistance Payments in the HCV Program, Operating Fund assistance in
the Public Housing program, or rental assistance in Multifamily Housing
programs.
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\17\ Public Law 117-2 (2021).
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The funding is designed to assist households that demonstrate a
risk of experiencing homelessness or housing instability. Eligible
households for ERA must have a household income at or below 80 percent
of area median income, which corresponds with income thresholds for HUD
assistance.\18\ For both ERA1 and ERA2, other expenses related to
housing include relocation expenses (including prospective relocation
expenses), such as rental security deposits, and rental fees, which may
include application or screening fees. Those expenses can also include
reasonable accrued late fees (if not included in rental or utility
arrears), and internet service provided to the rental unit.
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\18\ Emergency Rental Assistance limits eligibility to
households with income that does not exceed 80 percent of the median
income for the area in which the household is located, as determined
by HUD. Public Law 116-260, division N, section 501 (2020).
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The pace of distributing emergency funds that could prevent
evictions for nonpayment of rent started slowly and faces a number of
obstacles but has since picked up. From January to May 2021, only $1.45
billion was delivered under ERA for rent, utilities, and arrears out of
a total of $25 billion.\19\ In June
[[Page 55696]]
2021, more than $1.5 billion from ERA was paid directly to households,
more than in all previous months combined.\20\ July 2021 data
demonstrates continued, steady improvement in funds distribution,
particularly by States and local agencies following the Department of
Treasury guidance.\21\
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\19\ Congressional Research Service, Emergency Rental Assistance
through the Coronavirus Relief Fund, (July 9, 2021) at 14, https://crsreports.congress.gov/product/pdf/R/R46688.
\20\ U.S. Dep't of the Treasury, Treasury Data: Amount of June
Emergency Rental Assistance Resources to Households More Than All
Previous Months Combined, (July 21, 2021) https://home.treasury.gov/news/press-releases/jy0284.
\21\ U.S. Dep't of the Treasury, Treasury Announces Seven
Additional Policies to Encourage State and Local Governments to
Expedite Emergency Rental Assistance, (Aug. 25, 2021) https://home.treasury.gov/news/press-releases/jy0333.
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The application and approval process for ERA funds and the time it
takes to access these funds vary by grantee. While it may generally be
expected to take a few weeks for applications to be processed, and
funds to be disbursed, some applicants have faced longer delays.\22\
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\22\ U.S. Dep't of the Treasury, Emergency Rental Assistance
Data Shows Programs Ramping Up, but States and Localities Must Do
More to Accelerate Aid, (July 2, 2021) https://home.treasury.gov/system/files/136/2021-07-02-ERA-Data-Blog-Post-vF.pdf.
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There are multiple causes for the slow rollout of ERA assistance.
Of particular concern with respect to this rulemaking, they include
obstacles to tenants knowing about and applying for available funds,
such as complexities in the application processes, privacy concerns,
and a lack of understanding as to funding availability.\23\ The bottom
line is that ERA funding still has not reached many eligible tenants at
risk of eviction for nonpayment, creating an increased risk that
evictions will occur simply because funding that is specifically meant
to help pay much or all of the back rent in question is not secured in
time.
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\23\ See U.S. Dep't of the Treasury, Emergency Rental Assistance
Fact Sheet, (May 7, 2021) https://home.treasury.gov/system/files/136/FACT_SHEET-Emergency-Rental-Assistance-Program_May2021.pdf;
Nat'l Low Income Hous. Coal., Treasury Emergency Rental Assistance
Programs in 2021: Analysis of a National Survey, (June 22, 2021)
https://nlihc.org/sites/default/files/HIP_NLIHC_Furman_2021_6-22_FINAL_v2.pdf.
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II. This Interim Final Rule
Tenants' Need for Greater Information and Time
HUD is continuously evaluating how best to help tenants and housing
providers mitigate the pandemic's impact and economic issues arising
during this national emergency, while ensuring that the various
resources that are available to address the backlog of unpaid rent are
fully utilized. HUD has determined that, in the immediate aftermath of
the judicial vacatur of the CDC eviction moratorium, it needs to act to
prevent a wave of preventable evictions that will interfere with the
orderly operation of HUD's programs and the accomplishment of HUD's
mission. Historically, 3.6 million eviction cases are filed per year in
the United States, resulting in 1.5 million annual eviction
judgments.\24\ But now, as more renters fell behind on their rental
payments during the COVID-19 pandemic, many more households are at risk
of eviction. As of July 2021, just before the CDC moratorium on
evictions was vacated, 6.5 million households nationwide were at risk
of eviction.
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\24\ Ashley Gromis, Eviction: Intersection of Poverty,
Inequality, and Housing, Princeton University, Eviction Lab (2019)
(measuring the number of evictions from 2000 to 2016).
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This interim final rule follows and complements earlier HUD
actions, taken while the CDC moratoriums were in effect, aimed at
assisting HUD-assisted tenants and landlords with securing available
resources that assist with the payment of back rent and avoid
unnecessary evictions for non-payment. For example, HUD issued guidance
recommending that all PHAs make tenants aware of ERA funding and
guidance about accepting ERA funding in multifamily housing.\25\
Nonetheless, the ERA program's implementation indicates that many
tenants (including in HUD-assisted properties) may remain unaware of or
do not understand how to access ERA resources, have been unable to
access the funds in time, or have incorrectly believed that they need
not apply for ERA because rental obligations were suspended during the
eviction moratorium. Many of those tenants may be eligible for ERA, yet
they are not benefiting from it, thus requiring HUD to take this
further, related action.\26\
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\25\ HUD, Questions on the U.S. Treasury's Emergency Rental
Assistance (ERA) and Other Rental Assistance Programs, May 12, 2021,
https://www.hud.gov/sites/dfiles/PIH/documents/ERAP_PIH_ERAP_FAQs.pdf; HUD, Questions and Answers for Office of
Multifamily Housing Stakeholders, Coronavirus Disease 2019 (COVID-
19), (July 29, 2021) https://www.hud.gov/sites/dfiles/Housing/documents/MF_COVID-19%20QA_7_29_21.pdf.
\26\ Recent Census Pulse survey data shows that 60% of renter
households behind on rent have not applied to ERA. See U.S. Census
Bureau, Household Pulse Survey Data Tables, https://www.census.gov/programs-surveys/household-pulse-survey/data.html (last visited Sep.
9, 2021).
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HUD also issued guidance requesting that PHAs and owners work with
tenants to recertify their rents for loss income or job loss, thus
effectively lowering the rent payment HUD-supported tenants must make
and helping them avoid eviction. However, the possibility of
recertification does not replace access to ERA funding, for a variety
of reasons. This policy has been helpful but has not fully solved the
problem. Not every tenant who could benefit from recertification has,
whether because PHAs and owners have not reached out offering
recertifications or because the tenants have chosen for a variety of
reasons not to seek recertification. Additionally, PHAs and owners
might permit recertification for rent going forward, but not recertify
the loss of income retroactively, meaning that coverage of rent arrears
by ERA could still be necessary to help prevent future evictions.
HUD now must take further action to ensure that tenants in public
housing and PBRA \27\ assisted units who are eligible for funding
during a national emergency are afforded notice about the funding and
have the opportunity to secure it before a lease termination for
nonpayment of rent occurs. Congress specifically intended that ERA
funds would reduce what otherwise would be an intolerably high number
of evictions due to financial issues caused by the national emergency.
While States and localities continue to accelerate and improve their
programs to provide funding to tenants, many tenants who now face
imminent eviction with the moratorium gone still need additional time
and information to access the ERA applications and complete the
process. This interim final rule will ensure that HUD-assisted tenants
who are facing eviction for nonpayment of rent have notice of available
emergency funds and are afforded more time to access that assistance. A
tenant who has been previously made aware of eligibility for emergency
assistance may not think to apply for it until they are facing
eviction, as many tenants now are following judicial vacatur of the
CDC's eviction moratorium. HUD believes that getting tenants
information about accessing emergency funding at the moment when they
most need it and are likely to take advantage of it is crucial for
fulfilling HUD's mission.
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\27\ HUD's PBRA programs included in the scope of this rule
includes Section 8, Section 8 Moderate Rehabilitation, Section 202/
162 Project Assistance Contract, Section 202 Project Rental
Assistance Contract (PRAC), Section 811 PRAC, Section 236 Rental
Housing Assistance Program and Rent Supplement. In addition, some
housing developed with subsidized financing through former programs
such as Section 221(d)(3) Below Market Interest Rate, Section 236
and Section 202 Direct Loan are part of HUD's PBRA Program.
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Statutory and Regulatory Authority
HUD has general rulemaking authority under 42 U.S.C. 3535 to
implement its statutory mission, which
[[Page 55697]]
is to provide assistance for housing to promote ``the general welfare
and security of the Nation and the health and living standards of [its]
people.'' \28\ Each year, HUD provides States, local governments, and
housing providers with billions of dollars in Federal financial
assistance, appropriated and authorized by Congress. By taking the
actions described here, HUD will prevent unnecessary evictions and the
costs associated with them for both tenants and PHAs and owners, as
compelled by its mission. These actions will promote the general
welfare and security of the Nation by avoiding the societal ills
exacerbated by the dislocations wrought by evictions in the time of a
national emergency, such as deterioration of public health through
disease transmission, extended disruptions to children's schooling
after the prolonged period of disruption that many have already
experienced during the current national emergency and all the other
problems attendant to increased homelessness.
---------------------------------------------------------------------------
\28\ 42 U.S.C. 3531.
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In addition, increases in evictions frustrates HUD's programmatic
efficiency. It diverts resources to cover the costs of unnecessary
evictions. Increased homelessness also makes it more difficult for HUD
to provide services to the population that qualifies for HUD's
programs. People experiencing homelessness are less likely to receive
information about HUD's programs and to avail themselves of those
programs. Accordingly, by reducing evictions, this rulemaking advances
HUD's statutory purposes.
HUD also has specific statutory authority under the U.S. Housing
Act of 1937 to prescribe procedures and requirements for PHAs to follow
to ensure sound management practices and efficient operations.\29\ Even
more specifically, HUD has the authority to establish ``procedures
designed to assure the prompt payment and collection of rents and the
prompt processing of evictions in the case of nonpayment of rent.''
\30\ HUD also has authority to specify procedures that ensure tenants
receive the elements of due process, such as notice of relevant
information, before adverse action is taken against them.\31\
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\29\ 42 U.S.C. 1437d(c)(4).
\30\ 42 U.S.C. 1437d(c)(4)(B).
\31\ 42 U.S.C. 1437d(k).
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In particular, the Secretary is authorized to require public
housing authorities to provide certain specified notice periods and
other procedural protections (that are, in turn, incorporated into
lease terms) before different types of eviction proceedings.\32\ In
exercising that statutory authority, HUD's regulations provide that in
the case of termination for nonpayment of rent, a PHA shall provide at
least fourteen days' written notice. See 24 CFR 966.4.
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\32\ 42 U.S.C. 1437d(l).
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The Secretary also has statutory authority to establish
requirements for project-based rental assistance.\33\ This statutory
authority provides that during the lease term, the owner must not
``terminate the tenancy except for serious or repeated violation of the
terms and conditions of the lease, for violation of applicable Federal,
State, or local law, or for other good cause[.]'' \34\ The Secretary is
also authorized to provide additional terms and conditions that must be
incorporated into the tenant's lease.\35\ This rulemaking is consistent
with the statutory restrictions placed on program participants under
this authority and HUD's regulations promulgated in this area.
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\33\ 42 U.S.C. 1437f(g) (Section 8 low-income housing
assistance); 12 U.S.C. 1701q (Section 202 supportive housing for the
elderly); 42 U.S.C. 8013 (Section 811 supportive housing for persons
with disabilities).
\34\ 42 U.S.C. 1437f(d)(1)(B)(ii). See also 42 U.S.C.
8013(i)(2)(B) (Section 811).
\35\ 42 U.S.C. 1437f(d)(1)(B)(iv).
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Specifically, for termination for nonpayment of rent in HUD's
project-based rental assistance programs, HUD's regulations generally
provide that a termination notice must be provided with enough advance
time to comply with both the rental agreement or lease and State
laws.\36\ See 24 CFR 247.4(c); 24 CFR 880.607(c)(2). By contrast, for
termination of tenancy for ``other good cause,'' HUD regulations
require 30 days' notice along with the provision of specific
information to the tenant. See 24 CFR 880.607(c)(2). HUD imposes
different notice requirements in specific programs; in one program,
five working days' notice are required before tenancy termination while
in another program the regulations provide for 10 days. See 24 CFR
882.511; 24 CFR 884.216.
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\36\ The time period required by State laws can vary from 0 days
to 30 days depending on the jurisdiction. See NOLO, State Laws on
Termination for Nonpayment of Rent, https://www.nolo.com/legal-encyclopedia/state-laws-on-termination-for-nonpayment-of-rent.html
(last updated Dec. 10, 2020) (citing W.Va. Code Section 55-3A-1 (no
notification period), Fla. Stat. Ann. Section 83.56(3) (3 days);
Idaho Code Section 6-303(2) (3 days) and D.C. Code Ann. Section 42-
3505.01 (30 days)).
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This interim final rule amends these program regulations for public
housing and project-based rental assistance to accommodate current and
future exigencies, based on HUD's statutory authority and policy
discretion, in three ways.
First, it provides that, when funding is available to assist
tenants with nonpayment of rent during a national emergency, such as
the current COVID-19 pandemic, the Secretary may determine that tenants
facing eviction for nonpayment of rent must be provided with adequate
time and notice to secure that funding. Upon that determination, the
PHA or owner seeking to evict for non-payment must provide the tenant
with such information as required by the Secretary for accessing the
funds that are being made available related to the emergency. HUD will
publish a Notice outlining the specific information to be included in
the lease termination notification to assist eligible tenants in
obtaining funding during this emergency. The Notice will explain the
requirements for PHAs and owners to provide the information in a manner
that ensures effective communication for individuals with disabilities,
such as by providing the information in accessible electronic formats
or in Braille, and to provide meaningful access for persons with
limited English proficiency (LEP).
Second, to ensure tenants facing eviction for non-payment of rent
are provided an adequate opportunity to access emergency funding, this
interim final rule also extends the lease termination time period for
such tenants to at least 30 days following the above-described
notification. This 30-day period is consistent with the longest of the
standard periods to which PHAs and owners are already accustomed for
many evictions. For example, for evictions for reasons other than
nonpayment of rent, health or safety concerns, or criminal activity, 42
U.S.C. 1437d(l) and 24 CFR 966.4(l)(3) already provide for a 30-day
time period, unless State or local law allows a shorter period.
Similarly, HUD's PBRA regulations at 24 CFR 247.4, 24 CFR 880.607,
and 24 CFR 882.511, as well as 42 U.S.C. 8013(i)(2)(B), all provide
that when termination of the tenancy is based on other good cause, the
tenancy will not terminate earlier than 30 days after the tenant
receives the notice. Further, some state laws already provide for 30
days more generally or specifically for the current national
emergency.\37\
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\37\ See, e.g., Colo. Executive Order No. D 2021-122, (July 8,
2021) https://www.colorado.gov/governor/sites/default/files/inline-files/D%202021%20122.pdf.
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Third, the interim final rule provides that, for public housing, in
addition to requiring the provision of specified information to tenants
facing eviction
[[Page 55698]]
for failure to pay rent, the Secretary may also require that all
tenants be provided immediate notice of the availability of emergency
funding. This notice may be posted in a public area, emailed to all
tenants, or otherwise provided to groups of tenants rather than
individuals, if the PHA so chooses.
HUD has chosen, based on its statutory authority for the public
housing and PBRA programs,\38\ its rulemaking authority,\39\ and its
policy discretion, to protect its assisted tenants and ensure it is
fulfilling its statutory duties by promulgating this interim final
rule.
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\38\ 42 U.S.C. 1437d(l); 42 U.S.C. 1437f(g) (Section 8 low-
income housing assistance); 12 U.S.C. 1701q (Section 202 supportive
housing for the elderly); 42 U.S.C. 8013 (Section 811 supportive
housing for persons with disabilities).
\39\ 42 U.S.C. 3535.
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HUD notes that this rule does not require PHAs or owners to modify
tenant leases, which provide notification procedures and time periods
that may be more limited than those provided in this rule. It would be
administratively infeasible to update all public housing and PBRA
leases to incorporate these changes, which are limited in the time they
will be in effect, and to update all leases quickly enough to
immediately protect families at-risk of eviction. However, the rule
requires that PHAs and owners follow this rule in place of the usual
lease provisions at times when its provisions are in effect, and does
not prevent PHAs and owners from updating their leases if they so
choose.
Administrative Procedure Act (APA)
In general, HUD publishes a rule for public comment before issuing
a rule for effect, in accordance with both the APA, 5 U.S.C. 553, and
its own regulations on rulemaking, 24 CFR part 10. Both the APA and
Part 10, however, provide for exceptions from that general rule where
HUD finds good cause to omit advance notice and public participation,
in addition to the Secretary's statutory and regulatory authority to
waive regulations.\40\ The good cause requirement is satisfied when the
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest.'' \41\ In order to publish a rule for effect prior
to receiving and responding to public comments, the agency must make a
finding that at least one of these ``good cause'' exceptions applies.
---------------------------------------------------------------------------
\40\ 42 U.S.C. 3535(q).
\41\ 5 U.S.C. 553(b)(B); 24 CFR 10.1.
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HUD has determined that good cause exists to promulgate this
interim final rule without prior notice and comment, to ensure that
tenants who are imminently facing eviction for nonpayment of rent and
are eligible for ERA funding receive the benefit of this rule's
requirement of notice and an opportunity to access these funds. HUD
finds that prior notice and comment is impracticable and would create
undue harm by delaying this rule's effectiveness.
Given the recent vacatur of the CDC Order suspending evictions,
which may put HUD-assisted tenants at risk of being abruptly evicted
before they can receive ERA funding, immediate action is necessary to
ensure that ERA funding reaches its intended beneficiaries quickly and
efficiently. HUD is taking this action to foster stability in its own
programs by preventing tenant turnover and increased homelessness;
preventing unnecessary hardship for HUD-supported tenants; and
promoting the most efficient and effective use of ERA funds.
HUD is also taking this action to prevent harm to HUD- assisted
tenants and allow landlords and PHAs to avoid the time and expense of
unnecessary evictions while simultaneously providing those landlords
with the funds necessary to recoup arrearages and other eligible costs
through ERA funding.
Good cause can be found when circumstances outside the agency's
control make compliance with notice and comment impracticable.\42\
HUD's good-cause determination is based on, among other things, the
following considerations.
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\42\ 5 U.S.C. 553(b)(B); see, e.g., Tri-Cty. Tel. Ass'n v. FCC,
999 F.3d 714, 719-20 (D.C. Cir. 2021) (providing funds in an ongoing
emergency caused by a natural disaster).
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First, delay to allow prior notice and comment would effectively
moot a significant aspect of this rule. This interim final rule is
urgently needed right now, because the CDC Moratorium was abruptly
enjoined prior to its anticipated expiration and thus evictions for
nonpayment of rent are likely to proceed imminently. As some State and
local grantees are only in the beginning stages of distributing ERA
funds, many tenants may be unaware of their eligibility for such
assistance or may be waiting for distribution of such assistance rather
than acting themselves. Housing providers giving tenants information
about ERA funding as soon as possible, and providing them with time to
apply for it before more evictions occur, is crucial to ensuring the
program's success and realizing Congress's intent in providing for ERA
funding in the first place. The change in this interim final rule must
be undertaken with expedience to ensure the maximum intended effects of
ERA funding. Such potential harm to the public is increased right now,
given the recent vacatur of the CDC order and the continued need for
additional time for ERA funding to reach eligible beneficiaries, making
it critical that this rule go into effect when it is needed most.
HUD's Regulatory Impact Analysis provides that an estimated 217,000
households could be protected under this rulemaking when implemented.
Delaying this interim final rule's effective date for months would
render it useless and unavailable for a significant fraction of the
tenants and landlords who would benefit from the rule. That would
result in unnecessary evictions, preventable homelessness, and
increased cohabitation during a pandemic.
Second, aside from mooting this interim final rule's purpose, delay
due to prior notice and comment would result in evictions that could
have been prevented if tenants had received adequate notification that
assistance was available, and the opportunity to apply for and receive
approval and funding prior to being evicted. Specifically, during an
advanced notice and comment period, it is likely that individuals who
could have benefited from this rule would face eviction before the rule
goes into effect. That includes tenants who are now in the process of
applying for ERA; tenants who are eligible for ERA but do not know of
their eligibility or how to apply; and those who have completed
applications but are waiting for receipt of funds.
Third, increased evictions are harmful not only to the individual
families who lose their housing, but to HUD's mission and society as a
whole. This is particularly the case when the processing of unnecessary
evictions leads to increased cost and administrative burden for program
participants as well as an increase in homelessness and cohabitation in
particularly vulnerable populations. As the Federal agency responsible
for housing assistance and community development,\43\ HUD has
responsibility to promote housing stability and the efficient and
effective use of its resources to secure housing for vulnerable
families. An increase in evictions also leads to instability in
communities from tenant turnover,\44\
[[Page 55699]]
children needing to change schools,\45\ increased cohabitation,\46\ and
increased homelessness,\47\ which harms owners and undercuts the
effectiveness of HUD's work by increasing the strain on its resources
and programs. Reducing evictions results in less costs and resources
that PHAs and owners have to expend to process evictions; reduced costs
associated with unit turnover; and reduction in burdens associated with
bringing on new tenants. Additionally, there is potential benefit
accruing to the landlord from the tenant's securing of ERA funding
through the repayment of back rent using ERA funding. There is also
benefit to PHAs and owners to maintain tenants who are otherwise good
tenants other than the impact of the COVID-19 pandemic on their income.
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\43\ 42 U.S.C. 3531.
\44\ CB Richard Ellis (CBRE), Apartment Turnover Declines Amid
COVID-19 Crisis, U.S. Multifamily Research Brief (June 2020) https://www.cbre.us/research-and-reports/US-Multifamily-Research-Brief---Apartment-Turnover-Declines-in-COVID-19-Crisis-June-2020.
\45\ U.S. Centers for Disease Control and Prevention, COVID-19
pandemic: Helping young children and parents transition back to
school, U.S. Centers for Disease Control and Prevention (Sept. 2,
2021) https://www.cdc.gov/childrensmentalhealth/features/COVID-19-helping-children-transition-back-to-school.html.
\46\ See, e.g., L.E. D'Onofrio, Jr., F.D. Buono, and M.A.R.
Coopera, Cohabitation COVID-19 transmission rates in a United States
suburban community: A retrospective study of familial infections,
U.S. National Library of Medicine, National Institutes of Health,
(Jan. 16, 2021) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7816609/ (``The cohabitation infection attack rate of SARS-CoV-2
is significantly higher than previously reported. Age of household
contacts and spousal relationship to the index case are risk factors
for transmission of SARS-CoV-2 within a household.'').
\47\ Robert Collinson and Davin Reed, The Effects of Evictions
on Low-Income Households, NY Furman Center for Real Estate & Urban
Policy (February 2019) https://robcollinson.github.io/Robwebsite/jmp_rcollinson.pdf.
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Delaying the rulemaking for prior notice and comment would be
impracticable and contrary to the public interest. HUD believes the
public interest is best served by ensuring that all tenants can benefit
from the opportunity to access ERA funding and stay in HUD-assisted
housing than limiting such benefit only to tenants who would benefit
from this rule after notice and comment.
HUD values public input in its rulemakings and believes that
providing the opportunity for comment enhances its regulations. HUD's
regulations on rulemaking at 24 CFR part 10, provide for 60-days of
public comment for proposed rules and an exception for good cause.
Additionally, HUD often solicits comments on its rules and provides for
a 60-day comment period even when not required under the APA. Due to
the COVID-19 national emergency, delaying this rule to accept prior
public comment would be contrary to the public interest. The provisions
in this interim final rule are designed specifically to be limited in
scope and apply only in a national emergency period. For the reasons
explained above, HUD finds that there is good cause consistent with the
public interest to issue the rule without advance notice and comment.
HUD's policy of providing 60 days for public comment only applies
to proposed rules, not to interim final rules. In this case, HUD does
not believe that 60 days is needed for public comment, given the
limited changes being made in this interim final rule, and also
believes it is in the public interest to secure comments quickly. In
providing for 30-days, HUD anticipates reviewing any such comments on a
rolling basis as they are received and acting quickly if it determines
to adopt any suggestions that may be made in the public comments. For
the reasons above, HUD has determined that in this case a 30-day public
comment period is appropriate.
Other Justifications for the Interim Final Rule
In taking this action, HUD is protecting the efficient and
effective operation of its public housing and project-based rental
assistance programs, the interests of the tenants whose rent it
subsidizes, and landlords' business needs. This interim final rule is
narrowly tailored so that it will require, during an emergency such as
this one, notification to be provided to tenants regarding the
availability of emergency funds and a brief extension of the time that
must be provided before lease termination for nonpayment of rent, thus
permitting the tenant to seek to secure such emergency funds to cure
the deficiencies before commencement of eviction. It will not change
any other eviction procedures. This interim final rule does not require
that PHAs or owners immediately amend leases in accordance with this
rule, but it would not prohibit PHAs and owners from amending lease
terms to be consistent with this rule if they so choose.
HUD recognizes that some housing providers are already supporting
tenants' access to ERA funds and delaying evictions for nonpayment of
rent. In fact, in HUD's rental assistance programs, households can
recertify their income in the case of a job loss or other change in
income so to avoid or reduce the likelihood of failure to pay rent
delinquencies. Similarly, housing providers can also work with tenants
to create repayment plans and to adjust rent amounts. HUD believes
these to be sound management practices that are aligned with this
rule's purposes. However, not all housing providers may be providing
additional time for tenants to access ERA funds, allowing
recertifications to be retroactive to cover arrears, or actively
encouraging tenants to recertify their income.
This focused interim final rule does not prevent evictions
altogether, but instead requires PHAs and owners to provide information
about accessing ERA and additional time to do so when there is an
eviction for nonpayment of rent, thus minimizing costs associated with
unit turnover from tenant to tenant, preventing unnecessary hardship
for HUD-assisted tenants, and ensuring that housing providers can
continue to operate effectively.
III. Alternatives Considered and Scope
This interim final rule's scope is limited to address only
situations in which federally assisted public housing agencies and PBRA
housing providers may access federally appropriated emergency funding
to help tenants satisfy rent obligations caused by a national
emergency, like the COVID-19 pandemic. It directly applies only in
instances where tenants in certain HUD-supported housing are facing
eviction due to nonpayment of rent during such an emergency and places
the burden on HUD to provide the information necessary to include in
the notice provided by PHAs and owners to tenants.
The interim final rule also seeks to balance the interest of
tenants and the reliance of PHAs and multifamily owners in
administering their program. The interim final rule provides for a
modest period of additional time, 30-days, for tenants to apply for
emergency financial assistance. HUD understands that some tenants may
be unable to secure ERA funding, or future assistance provided to
address an emergency, within a 30-day period. Administration of ERA
assistance differs between states and localities and in some programs a
PHA, owner, or tenant would not receive the ERA payment within 30-days
of application. However, in considering what would be a reasonable and
practical extension of time to require, HUD settled on 30 days because,
as discussed above, it is a time-period to which owners are already
accustomed, and it would have minimal impact on program operations. HUD
also settled on at least 30 days because it is a set time frame for
which PHAs and multifamily owners could rely for implementation.
HUD strongly encourages PHAs and owners to work with tenants who
are
[[Page 55700]]
eligible for ERA funding and to delay lease terminations for any
tenants whose application for ERA assistance is still pending after a
30-day period. Additionally, HUD notes that the Department of Justice
issued guidance encouraging courts to consider postponing pending
eviction cases to allow tenants to apply for emergency rental
assistance.\48\ For tenants who have already applied for such
assistance, HUD would expect that courts may be even more inclined to
postpone eviction proceedings. Further, a minimum 30-day time period
may provide tenants with an opportunity to secure counsel to assist
them in eviction proceedings. Given these factors, HUD believes that
providing tenants with at least 30-days from the date of notification
of lease termination and notification of the availability of emergency
rental assistance will sufficiently help most tenants who are eligible
for ERA to retain their housing, while ensuring PHAs and PBRA owners
can operate effectively.
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\48\ U.S. Dep't. of Justice, Letter from Associate Attorney
General Gupta, June 24, 2021, https://www.justice.gov/asg/page/file/1405886/download.
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In determining that this interim final rule's requirement to
provide the notice in the time period described above was the most
appropriate means to achieve the goals discussed, the agency considered
and rejected several other changes to its program requirements. For
instance, HUD considered the imposition of an eviction moratorium in
these programs, which would have allowed extensive time for tenants to
seek ERA funding. HUD determined that its statutory authorities do not
clearly provide the authority necessary to impose such a broad
moratorium. By contrast, as noted above, HUD's authorities provide for
the imposition of terms and conditions on public housing authorities
and owners when those entities are exercising the discretion provided
under the statute and their respective contracts to seek to collect
rent and promptly take action for nonpayment of rent. HUD believes this
more targeted action better accords with the statutory scheme, which
gives landlords discretion to evict but provides HUD authority to
regulate the prompt collection of rent and processing of evictions.
Additionally, HUD considered imposing a requirement on PHAs and
owners to apply for emergency funding on behalf of tenants before
proceeding with eviction. HUD also considered the use of required
retroactive recertifications and required repayment plans for tenants
who would qualify for ERA assistance. HUD also considered tying the
notification requirement on a more limited scale to a particular
location, region or based on a specific finding that a jurisdiction had
a high COVID rate. For all of these options, HUD has already worked
with PHA and owners to encourage them to apply for ERA, allow
recertifications, create repayment plans, and adjust to rents. However,
HUD believed implementing these changes by regulation would be overly
burdensome and create multiple challenges for implementation.
In deciding to act in the manner described in this interim final
rule, HUD has based its actions on the enumerated authorities granted
to it by statute. This interim final rule is consistent with HUD's
statutory authority and is in keeping with the types of requirements
imposed by HUD through its existing regulations.
IV. Findings and Certifications
Executive Orders 12866 and 13563, Regulatory Planning and Review
Pursuant to Executive Order 12866 (Regulatory Planning and Review),
a determination must be made whether a regulatory action is significant
and therefore, subject to review by the Office of Management and Budget
(OMB) in accordance with the requirements of the Executive order. This
interim final rule has been determined to be a ``significant regulatory
action,'' as defined in section 3(f) of Executive Order 12866, but not
economically significant. HUD has prepared a regulatory impact analysis
that addresses the costs and benefits of the interim final rule. The
analysis is available at www.regulations.gov and is part of the docket
file for this rule.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. HUD believes that this interim final rule would
provide added protections for tenants and is consistent with Executive
Order 13563.
Executive Order 12612, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of Section 6 of the Executive order. This interim final rule would not
have federalism implications and would not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive order.
Environmental Impact
This interim final rule does not direct, provide for assistance or
loan and mortgage insurance for, or otherwise govern or regulate, real
property acquisition, disposition, leasing (other than tenant-based
rental assistance), rehabilitation, alteration, demolition, or new
construction, or establish, revise, or provide for standards for
construction or construction materials, manufactured housing, or
occupancy. Accordingly, under 24 CFR 50.19(c)(1), this interim final
rule is categorically excluded from environmental review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the interim final rule
will not have a significant economic impact on a substantial number of
small entities. Because HUD determined that good cause exists to issue
this rule without prior public comment, this rule is not subject to the
requirement to publish an initial or final regulatory flexibility
analysis under the RFA as part of such action.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless the
collection displays a currently valid Office of Management and Budget
(OMB) control number. HUD requested emergency approval to OMB of the
information collection changes described in this rule. HUD has
published elsewhere in this issue of the Federal Register a separate
notice for public comment informing the public of the additional burden
associated with the existing collection for public housing OMB Control
No: 2577-0006
[[Page 55701]]
and for multifamily housing OMB Control No: 2502-0178.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on state,
local, and tribal governments, and on the private sector. This rule
does not impose any Federal mandates on any state, local, or tribal
government, or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 247
Grant programs--housing and community development, Loan programs--
housing and community development, Low and moderate income housing,
Rent subsidies.
24 CFR Part 880
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 884
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, Rural areas.
24 CFR Part 966
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the preamble, HUD amends 24
CFR parts 247, 880, 882, 884, and 966 as follows:
PART 247--EVICTIONS FROM CERTAIN SUBSIDIZED AND HUD-OWNED PROJECTS
0
1. The authority citation for part 247 continues to read as follows:
Authority: 12 U.S.C. 1701q, 1701s, 1715b, 1715l, and 1715z-1; 42
U.S.C. 1437a, 1437c, 1437f, and 3535(d).
0
2. Amend Sec. 247.4 by adding a sentence to the end of paragraph (c)
and a sentence to the end of paragraph (e) to read as follows:
Sec. 247.4 Termination notice.
* * * * *
(c) * * * In cases of nonpayment of rent, if the Secretary
determines that tenants must be provided with adequate notice to secure
Federal funding that is available due to a Presidential declaration of
a national emergency, the termination notice shall be effective no
earlier than 30 days after receipt by the tenant of the termination
notice.
* * * * *
(e) * * * Where the Secretary has made the determination in
paragraph (c) of this section, the termination notice must provide such
information as required by the Secretary.
* * * * *
PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENT PROGRAM FOR NEW
CONSTRUCTION
0
3. The authority citation for part 880 continues to read as follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
0
4. Amend Sec. 880.607 by adding paragraph (c)(6) to read as follows:
Sec. 880.607 Termination of tenancy and modification of lease.
* * * * *
(c) * * *
(6) In the case of failure to pay rent, if the Secretary determines
that tenants must be provided with adequate notice to secure Federal
funding that is available due to a Presidential declaration of a
national emergency:
(i) The termination notice must provide such information as
required by the Secretary; and
(ii) The notice must provide the tenant with at least 30 days
before termination.
* * * * *
PART 882--SECTION 8 MODERATE REHABILITATION PROGRAMS
0
5. The authority citation for part 882 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535(d).
0
6. Amend Sec. 882.511 by:
0
a. Revising paragraph (d)(1)(i);
0
b. Adding paragraph (d)(2)(iv); and
0
c. In paragraph (d)(3), removing the reference to ``paragraph (c)(2)''
and adding the reference ``paragraphs (d)(1) and (2) of this section''
in its place.
The revision and addition read as follows:
Sec. 882.511 Lease and termination of tenancy.
* * * * *
(d) * * *
(1) * * *
(i) When termination is based on failure to pay rent, the date of
termination must be not less than five working days after the Family's
receipt of the notice; or, if the Secretary determines that tenants
must be provided with adequate notice to secure Federal funding that is
available due to a Presidential declaration of a national emergency,
the date of termination must be not less than 30 days after the
Family's receipt of the notice.
* * * * *
(2) * * *
(iv) Include such information to tenants during a national
emergency, as required by the Secretary.
* * * * *
PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS
0
7. The authority citation for part 884 continues to read as follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
0
8. Amend Sec. 884.216 by adding paragraph (d) to read as follows:
Sec. 884.216 Termination of tenancy.
* * * * *
(d) In the case of failure to pay rent, if the Secretary determines
that tenants must be provided with adequate notice to secure Federal
funding that is available due to a Presidential declaration of a
national emergency:
(1) The owner must provide the tenant with written termination
notification that includes such information as required by the
Secretary; and
(2) The written termination notification described in paragraph
(d)(1) of this section must be provided to the tenant at least 30 days
before termination.
PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE
0
9. The authority citation for part 966 continues to read as follows:
Authority: 42 U.S.C. 1437d and 3535(d).
0
10. Add Sec. 966.8 to read as follows:
Sec. 966.8 Providing opportunity to receive emergency rent relief.
(a) If the Secretary determines that tenants must be provided with
adequate notice to secure Federal funding that is available due to a
Presidential declaration of a national emergency:
(1) The notice of lease termination required in Sec. 966.4(l)(3)
for failure to
[[Page 55702]]
pay rent must provide such information as required by the Secretary;
and
(2) Notwithstanding Sec. 966.4(l)(3)(i)(A), the notice of lease
termination for failure to pay rent must provide for at least 30 days
from the date the tenant receives the notice.
(b) Upon the Secretary's determination in paragraph (a) of this
section, the PHA must provide notice to all tenants of the requirements
in paragraph (a) taking effect.
Dominique Blom,
General Deputy Assistant Secretary, Office of Public and Indian
Housing.
Lopa P. Kolluri,
Principal Deputy Assistant Secretary, Office of Housing-Federal Housing
Administration.
[FR Doc. 2021-21960 Filed 10-6-21; 8:45 am]
BILLING CODE 4210-67-P
