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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 501b 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 COVID19. On February 21, 2021, the President extended the national emergency, stating that the COVID19
pandemic remains a significant risk to the United States.8

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Response to the COVID19 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 COVID19 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 COVID19, 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 COVID19
national emergency. This additional funding was meant to help ensure that HUDs 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 202004:
Foreclosure and Eviction Moratorium in Connection with the Presidentially Declared COVID19
National Emergency, Mar. 18, 2020, https
www.hud.gov/sites/dfiles/OCHCO/documents/2004hsgml.pdf; U.S. Dept 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 116136, 134 Stat. 281 2020.
11 Id. at sections 40224024.

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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 COVID19.12 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 COVID19 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 governments 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 CDCs authority under the Public Health Service Act, 42 U.S.C. 264.
14 Public Law 116260 2020.
15 Ala. Assn of Realtors v. Dept of Health and Human Servs., 594 U.S. __2021 at 5, https www.
supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf.
16 Id. at 78 Whatever interest the Government had in maintaining the moratoriums 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 1172 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 116260, division N, section 501 2020.
19 Congressional Research Service, Emergency Rental Assistance through the Coronavirus Relief 18 Emergency
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