Rule2021-21960
Extension of Time and Required Disclosures for Notification of Nonpayment of Rent
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 7, 2021
Effective
November 8, 2021
Issuing agencies
Housing and Urban Development Department
Abstract
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 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.
Full Text
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<title>Federal Register, Volume 86 Issue 192 (Thursday, October 7, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21960]
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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.
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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
<a href="http://www.regulations.gov">www.regulations.gov</a>. 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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 <a href="/cdn-cgi/l/email-protection#e4b4adacc9a7abb2ada0a48c9180ca838b92"><span class="__cf_email__" data-cfemail="712138395c323e273835311904155f161e07">[email protected]</span></a>. 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 <a href="/cdn-cgi/l/email-protection#ec818a8f8381819982858f8d988583829fac849988c28b839a"><span class="__cf_email__" data-cfemail="caa7aca9a5a7a7bfa4a3a9abbea3a5a4b98aa2bfaee4ada5bc">[email protected]</span></a>. 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.
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\1\ Centers for Disease Control and Prevention (CDC), COVID Data
Tracker, <a href="http://www.covid.cdc.gov/covid-data-tracker/#datatracker-home">http://www.covid.cdc.gov/covid-data-tracker/#datatracker-home</a> (last visited Sept. 9, 2021).
\2\ Federal Reserve Bank of St. Louis, Unemployment Rate
[UNRATE], <a href="https://fred.stlouisfed.org/series/">https://fred.stlouisfed.org/series/</a>UNRATE (last visited
Sept. 9, 2021); Federal Reserve Bank of St. Louis, Employment Level
[LNU02000000], <a href="https://fred.stlouisfed.org/series/">https://fred.stlouisfed.org/series/</a>LNU02000000 (last
visited Sept. 9, 2021).
\3\ U.S. Department of Labor, Unemployment Insurance Weekly
Claims Report, May 21, 2020, <a href="https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/ui-claims/20201058.pdf">https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/ui-claims/20201058.pdf</a>.
\4\ Nirmita Panchal et al., The Implications of COVID-19 for
Mental Health and Substance Abuse, Feb. 10, 2021, <a href="https://www.kff.org/coronavirus-covid-19/issue-brief/">https://www.kff.org/coronavirus-covid-19/issue-brief/</a>the-implications-of-
covid-19-for-mental-health-and-substance-use; U.S. Census Bureau,
Household Pulse Survey Data Tables, <a href="https://www.census.gov/programs-surveys/household-pulse-survey/datasets.html">https://www.census.gov/programs-surveys/household-pulse-survey/datasets.html</a> (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), <a href="https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm">https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm</a>.
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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\
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\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, <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx</a>.
\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, <a href="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/">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/</a>.
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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\
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\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, <a href="https://www.hud.gov/sites/dfiles/OCHCO/documents/20-04hsgml.pdf">https://www.hud.gov/sites/dfiles/OCHCO/documents/20-04hsgml.pdf</a>; U.S. Dep't of
Agriculture, Stakeholder Announcement: USDA Announces Guaranteed
Housing Foreclosure and Eviction Relief, Mar. 19, 2020, <a href="https://www.rd.usda.gov/node/17107">https://www.rd.usda.gov/node/17107</a>.
\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, <a href="https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf">https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf</a>.
\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
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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\
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\19\ Congressional Research Service, Emergency Rental Assistance
through the Coronavirus Relief Fund, (July 9, 2021) at 14, <a href="https://crsreports.congress.gov/product/pdf/R/R46688">https://crsreports.congress.gov/product/pdf/R/R46688</a>.
\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) <a href="https://home.treasury.gov/news/press-releases/jy0284">https://home.treasury.gov/news/press-releases/jy0284</a>.
\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) <a href="https://home.treasury.gov/news/press-releases/jy0333">https://home.treasury.gov/news/press-releases/jy0333</a>.
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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) <a href="https://home.treasury.gov/system/files/136/2021-07-02-ERA-Data-Blog-Post-vF.pdf">https://home.treasury.gov/system/files/136/2021-07-02-ERA-Data-Blog-Post-vF.pdf</a>.
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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) <a href="https://home.treasury.gov/system/files/136/FACT_SHEET-Emergency-Rental-Assistance-Program_May2021.pdf">https://home.treasury.gov/system/files/136/FACT_SHEET-Emergency-Rental-Assistance-Program_May2021.pdf</a>;
Nat'l Low Income Hous. Coal., Treasury Emergency Rental Assistance
Programs in 2021: Analysis of a National Survey, (June 22, 2021)
<a href="https://nlihc.org/sites/default/files/HIP_NLIHC_Furman_2021_6-22_FINAL_v2.pdf">https://nlihc.org/sites/default/files/HIP_NLIHC_Furman_2021_6-22_FINAL_v2.pdf</a>.
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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,
<a href="https://www.hud.gov/sites/dfiles/PIH/documents/ERAP_PIH_ERAP_FAQs.pdf">https://www.hud.gov/sites/dfiles/PIH/documents/ERAP_PIH_ERAP_FAQs.pdf</a>; HUD, Questions and Answers for Office of
Multifamily Housing Stakeholders, Coronavirus Disease 2019 (COVID-
19), (July 29, 2021) <a href="https://www.hud.gov/sites/dfiles/Housing/documents/MF_COVID-19%20QA_7_29_21.pdf">https://www.hud.gov/sites/dfiles/Housing/documents/MF_COVID-19%20QA_7_29_21.pdf</a>.
\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, <a href="https://www.census.gov/programs-surveys/household-pulse-survey/data.html">https://www.census.gov/programs-surveys/household-pulse-survey/data.html</a> (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.
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\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, <a href="https://www.nolo.com/legal-encyclopedia/state-laws-on-termination-for-nonpayment-of-rent.html">https://www.nolo.com/legal-encyclopedia/state-laws-on-termination-for-nonpayment-of-rent.html</a>
(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) <a href="https://www.colorado.gov/governor/sites/default/files/inline-files/D%202021%20122.pdf">https://www.colorado.gov/governor/sites/default/files/inline-files/D%202021%20122.pdf</a>.
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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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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) <a href="https://www.cbre.us/research-and-reports/US-Multifamily-Research-Brief---Apartment-Turnover-Declines-in-COVID-19-Crisis-June-2020">https://www.cbre.us/research-and-reports/US-Multifamily-Research-Brief---Apartment-Turnover-Declines-in-COVID-19-Crisis-June-2020</a>.
\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) <a href="https://www.cdc.gov/childrensmentalhealth/features/COVID-19-helping-children-transition-back-to-school.html">https://www.cdc.gov/childrensmentalhealth/features/COVID-19-helping-children-transition-back-to-school.html</a>.
\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) <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7816609/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7816609/</a> (``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) <a href="https://robcollinson.github.io/Robwebsite/jmp_rcollinson.pdf">https://robcollinson.github.io/Robwebsite/jmp_rcollinson.pdf</a>.
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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, <a href="https://www.justice.gov/asg/page/file/1405886/download">https://www.justice.gov/asg/page/file/1405886/download</a>.
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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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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
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</html>Indexed from Federal Register on October 7, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.