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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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 Secretarys 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. 1437dl; 42 U.S.C. 1437fg 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. 3535q.
41 5 U.S.C. 553bB; 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 rules 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 rules 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 HUDassisted 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 agencys control make compliance with notice and comment impracticable.42 HUDs 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 programs success and realizing Congresss intent in providing for ERA
funding in the first place. The change in this interim final rule must be 42 5 U.S.C. 553bB; see, e.g., Tri-Cty. Tel. Assn v. FCC, 999 F.3d 714, 71920 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.
HUDs Regulatory Impact Analysis provides that an estimated 217,000
households could be protected under this rulemaking when implemented.
Delaying this interim final rules 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 rules 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 HUDs 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 COVID19 Crisis, U.S. Multifamily Research Brief June 2020 https www.cbre.us/
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