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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
eligible for ERA funding and to delay lease terminations for any tenants whose application for ERA assistance is still pending after a 30-day period.
Additionally, HUD notes that the Department of Justice issued guidance encouraging courts to consider postponing pending eviction cases to allow tenants to apply for emergency rental assistance.48 For tenants who have already applied for such assistance, HUD would expect that courts may be even more inclined to postpone eviction proceedings. Further, a minimum 30-day time period may provide tenants with an opportunity to secure counsel to assist them in eviction proceedings. Given these factors, HUD
believes that providing tenants with at least 30-days from the date of notification of lease termination and notification of the availability of emergency rental assistance will sufficiently help most tenants who are eligible for ERA to retain their housing, while ensuring PHAs and PBRA owners can operate effectively.
In determining that this interim final rules 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, HUDs authorities provide for the imposition of terms and conditions on public housing authorities and owners when those entities are exercising the discretion provided under the statute and their respective contracts to seek to collect rent and promptly take action for nonpayment of rent. HUD believes this more targeted action better accords with the statutory scheme, which gives landlords discretion to evict but provides HUD authority to regulate the prompt collection of rent and processing of evictions.
Additionally, HUD considered imposing a requirement on PHAs and owners to apply for emergency funding on behalf of tenants before proceeding with eviction. HUD also considered the use of required retroactive recertifications and required repayment plans for tenants who would qualify for 48 U.S. Dept. of Justice, Letter from Associate Attorney General Gupta, June 24, 2021, https
www.justice.gov/asg/page/file/1405886/download.

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ERA assistance. HUD also considered tying the notification requirement on a more limited scale to a particular location, region or based on a specific finding that a jurisdiction had a high COVID rate. For all of these options, HUD has already worked with PHA and owners to encourage them to apply for ERA, allow recertifications, create repayment plans, and adjust to rents.
However, HUD believed implementing these changes by regulation would be overly burdensome and create multiple challenges for implementation.
In deciding to act in the manner described in this interim final rule, HUD
has based its actions on the enumerated authorities granted to it by statute. This interim final rule is consistent with HUDs 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 3f of Executive Order 12866, but not economically significant. HUD has prepared a regulatory impact analysis that addresses the costs and benefits of the interim final rule. The analysis is available at www.regulations.gov and is part of the docket file for this rule.
Executive Order 13563 Improving Regulations and Regulatory Review directs executive agencies to analyze regulations that are outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. HUD believes that this interim final rule would provide added protections for tenants and is consistent with Executive Order 13563.
Executive Order 12612, Federalism Executive Order 13132 entitled Federalism prohibits an agency from publishing any rule that has federalism
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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 50.19c1, 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: 25770006

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