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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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 pandemics 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. Dept 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. Dept 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. Dept 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. Dept 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; Natl 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 HUDs programs and the accomplishment of HUDs 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 COVID19
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 programs 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. Treasurys 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 COVID19, 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 CDCs 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 HUDs mission.
Statutory and Regulatory Authority HUD has general rulemaking authority under 42 U.S.C. 3535 to implement its statutory mission, which 27 HUDs 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 221d3 Below Market Interest Rate, Section 236 and Section 202 Direct Loan are part of HUDs PBRA Program.

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