HUD Programs: Violence Against Women Act Conforming Amendments, 66246-66265 [2010-26914]
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Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Rules and Regulations
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 5, 91, 880, 882, 883, 884,
886, 891, 903, 960, 966, 982, and 983
[Docket No. FR–5056–F–02]
RIN 2577–AC65
HUD Programs: Violence Against
Women Act Conforming Amendments
Office of the Secretary, HUD.
Final rule.
AGENCY:
ACTION:
This final rule follows a
November 28, 2008, interim rule that
conformed HUD’s regulations to those
provisions of the Violence Against
Women Act (VAWA), as enacted in
January 2006, and subsequently
amended in August 2006, that were
determined to be self-implementing.
VAWA provides statutory protections
for victims of domestic violence, dating
violence, sexual assault, and stalking.
Such protections apply to families
receiving rental assistance under HUD’s
public housing and tenant-based and
project-based Section 8 programs. This
rule adopts as final the regulations in
the November 28, 2008, interim rule,
along with certain clarifying changes
made in response to public comment,
and with some restructuring of the
regulations to improve organization
within the Code of Federal Regulations.
DATES: Effective Date: November 26,
2010.
FOR FURTHER INFORMATION CONTACT: For
information about HUD’s Public
Housing program, please contact the
Director of the Public Housing
Management and Occupancy Division,
Office of Public and Indian Housing,
Room 4226, telephone number 202–
708–0744. For information about the
Office of Public and Indian Housing’s
Section 8 Tenant-Based program, please
contact Laure Rawson, Director,
Housing Voucher Management and
Operations Division, Office of Public
and Indian Housing, Room 4210,
telephone number 202–402–2425. For
information about the Office of
Housing’s Section 8 Project-Based
program, please contact Catherine
Brennan, Director, Housing Assistance
Policy Division, Office of Housing,
Room 6138, telephone number 202–
402–3000. The address for all of the
above offices is the Department of
Housing and Urban Development, 451
7th Street, SW., Washington, DC 20410–
0500. The above-listed telephone
numbers are not toll-free numbers.
Persons with hearing or speech
impairments may access the numbers
through TTY by calling the toll-free
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SUMMARY:
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Federal Information Relay Service at 1–
800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
The Violence Against Women Act of
1994 (VAWA 1994) was enacted as Title
IV of the Violent Crime Control and
Enforcement Act of 1994 (Pub. L. 103–
322, approved September 13, 1994),
codified at 42 U.S.C. 13931 et seq.
VAWA 1994 was not applicable to HUD
programs, but it was applicable to other
Federal agencies and authorized those
agencies to award grants to assist
victims of sexual assault, and included
provisions to maintain the
confidentiality of domestic violence
shelters and addresses of abused
persons. On January 5, 2006, the
Violence Against Women and
Department of Justice Reauthorization
Act of 2005 (Pub. L. 109–162) was
signed into law, and, on August 28,
2006, a bill that made technical
corrections to the Violence Against
Women and Department of Justice
Reauthorization Act of 2005 (Pub. L.
109–271) was signed into law. (Those
two public laws are collectively referred
to as ‘‘VAWA 2005’’). Except as provided
in Section 4 of the technical corrections
law, VAWA 2005 became effective upon
enactment of the law on January 5,
2006. Section 4 of the technical
corrections law delayed the
effectiveness of certain provisions to the
commencement of Fiscal Year (FY)
2007, none of which are directly
applicable to this rulemaking, which
commenced with the November 28,
2008, interim rule.
VAWA 2005 reauthorized and
substantially amended VAWA 1994 for
FYs 2007 through 2011, and, among
other things, consolidated major law
enforcement grant programs, made
amendments to criminal and
immigration laws, and made
amendments to other statutes, including
certain HUD statutes, to support and
strengthen efforts to combat domestic
violence and other forms of violence
against women. The provisions of
VAWA 2005, as amended in 2006, that
are applicable to HUD programs are
found in Title VI entitled ‘‘Housing
Opportunities and Safety for Battered
Women and Children.’’ Section 601 of
VAWA 2005 amended VAWA 1994 to
add a new Subtitle N to VAWA 1994
entitled ‘‘Addressing the Housing Needs
of Victims of Domestic Violence, Dating
Violence, Sexual Assault, and Stalking.’’
The VAWA 2005 amendments that
are applicable to HUD’s public housing
and tenant-based and project-based
Section 8 programs (covered programs)
were determined to be self-
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implementing. To ensure that housing
providers participating in the covered
programs were aware that the majority
of VAWA 2005 is self-implementing,
HUD’s Office of Public and Indian
Housing (PIH) issued, on June 23, 2006,
a notice (PIH 2006–23) on the subject of
VAWA 2005. In that notice, PIH advised
public housing agencies (PHAs) of the
VAWA 2005 provisions that were
effective, and implementable, on the
date of enactment—January 5, 2006.
This notice can be found at https://www.
hud.gov/offices/pih/publications/
notices/06/pih2006-23.pdf. PIH Notice
2006–23 was followed by PIH Notice
2006–42, which transmitted the
certification form for use by tenants
claiming protection under VAWA. That
notice can be found at https://www.hud.
gov/offices/adm/hudclips/notices/pih/
06pihnotices.cfm. In addition, PIH
notice 2007–5 addressed the VAWA
provisions that were incorporated into
the Housing Choice Voucher Housing
Assistance Payments (HAP) contract
and tenancy addendum. That notice can
be found at https://www.hud.gov/offices/
adm/hudclips/notices/pih/07pihnotices.
cfm.
HUD’s Office of Housing also has
provided guidance on the
implementation of VAWA 2005. On
September 30, 2008, it issued Notice H
08–07, which advised owners and
management agents on VAWA
provisions related to the administration
of project-based Section 8 properties.
That notice transmitted both the
certification form for victims’ use and a
lease addendum for owners and
management agents to use toward
integrating VAWA’s statutory provisions
into the HUD model lease for projectbased Section 8 properties. That notice,
which was extended and reissued as
Notice H 09–15 on October 1, 2009, can
be found at https://www.hud.gov/offices/
adm/hudclips/notices/hsg/09hsgnotices.
cfm.
In addition to these direct notices,
HUD issued a Federal Register notice
that addressed the applicability of
VAWA 2005 to all HUD programs. That
notice, which was published on March
16, 2007 (72 FR 12696), provided an
overview of the key VAWA provisions
that affect HUD programs, and advised
program participants concerning
compliance with VAWA. The notice
described those provisions of VAWA
determined to be self-implementing and
their effect on HUD programs. That
notice also advised that HUD would be
amending its regulations to conform
existing regulations to the VAWA
requirements. The November 28, 2008,
interim rule, found at 73 FR 72336,
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presented those conforming
amendments.
II. The November 28, 2008, Interim
Rule
The November 28, 2008, interim rule
(73 FR 72336) amended those
regulations for HUD’s covered programs
that required changes to conform to the
VAWA amendments made to the
authorizing statutes for these programs.
The November 2008 interim rule also
amended HUD’s Consolidated Plan
regulations at 24 CFR 91.205(b) and
91.305(b) to reflect the VAWA
amendment made to section 105(b)(1) of
the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C.
12705(b)(1)). The amendments made by
the November 2008 interim rule require
jurisdictions’ consolidated plans to
include, as a planning data, estimated
housing needs for victims of domestic
violence, dating violence, sexual
assault, and stalking.
The November 2008 interim rule also
amended HUD’s PHA plan regulations
at 24 CFR 903.6 and 903.7 to include the
additional information required by
VAWA 2005 in the annual and 5-year
PHA plans. VAWA 2005 amended
section 5A of the U.S. Housing Act of
1937, which requires the submission of
annual and 5-year plans by PHAs.
VAWA amended section 5A to require
PHAs to include, in their 5-year plans,
a statement about goals, activities,
objectives, policies, or programs that
will enable a PHA to serve the needs of
child and adult victims of domestic
violence, dating violence, sexual
assault, or stalking. VAWA also
amended section 5A to require PHAs to
include, in their annual plans, a
statement about any domestic violence,
dating violence, sexual assault, and
stalking prevention programs they make
available.
The November 2008 interim rule
amended HUD’s regulations in 24 CFR
part 5. The regulations in 24 CFR part
5 contain the requirements applicable to
one or more HUD programs (crosscutting requirements). VAWA 2005
amended the U.S. Housing Act of 1937
(1937 Act), specifically, section 6
(applicable to public housing) and
section 8 (applicable to voucher and
project-based programs) (42 U.S.C.
1437d and 1437f, respectively), by
making changes to admission,
occupancy, and termination of
assistance provisions of these statutory
sections to incorporate the VAWA
protections. The cross-cutting
admission, occupancy, and termination/
eviction requirements are codified in 24
CFR part 5. The November 2008 interim
rule codified the VAWA protections in
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a new subpart in 24 CFR part 5, which
is subpart L.
The November 2008 interim rule
provided, consistent with the VAWA
2005 amendments to the 1937 Act, that
being a victim of domestic violence,
dating violence, or stalking, as these
terms are defined in VAWA 2005, is not
a basis for denial of assistance or
admission to public or Section 8
assisted housing, if the applicant
otherwise qualifies for assistance or
admission. The statutory amendments
also provide that incidents or threats of
abuse will not be construed as serious
or repeated violations of the lease or as
other ‘‘good cause’’ for termination of the
assistance, tenancy, or occupancy rights
of a victim of abuse. The VAWA 2005
amendments also set forth the rights and
obligations of PHAs, owners, and
management agents regarding criminal
activity or acts of violence against
family members or others. The
regulations in new subpart L of part 5
contain the VAWA protections as
applicable to admission, occupancy,
termination, and eviction.
The November 2008 interim rule also
conformed HUD’s regulations to reflect
the VAWA 2005 certification and
confidentiality provisions. VAWA 2005
provides that owners, management
agents, and PHAs may request an
individual claiming VAWA protection
to document, by means of a HUDapproved certification form, that the
individual is a victim of abuse and that
the incidences of abuse are bona fide.
VAWA 2005 provides that the
individual’s certification must include
the name of the perpetrator. Forms
HUD–50066, for use by PHAs, and
HUD–91066, for use by owners and
management agents, were developed for
the purpose of this optional
certification.1 It is not mandatory that
the victim provide the HUD form, and
the PHA, owner, or management agent
may not require the victim to provide
the form. A victim may also provide
documentation from a third-party
source. Documentation from a thirdparty source may also satisfy the request
of an individual claiming VAWA
protections to document the abuse. With
respect to the third-party source, the
third-party may be an employee, agent,
or volunteer of a victim service
provider, an attorney, or a medical
professional, from whom the victim has
sought assistance in addressing
domestic violence, dating violence, or
stalking, or the effects of the abuse.
1 Forms HUD–50066 and HUD–91066 are
available on HUD’s Web site, respectively, at:
https://www.hud.gov/offices/adm/hudclips/forms/
files/50066.doc, and https://www.hud.gov/offices/
adm/hudclips/forms/files/91066.pdf.
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Pursuant to VAWA, other acceptable
forms of documentation from a thirdparty source include a Federal, state,
tribal, territorial, or local police or court
record.
The November 2008 interim rule also
amended 24 CFR 982.353(b) to reflect
VAWA 2005’s amendment to section
8(r) of the U.S. Housing Act of 1937 (42
U.S.C. 1437f(r)), which provides an
exception to the prohibition against a
family moving under the portability
provisions in violation of the lease.2
VAWA 2005 provides that the family
may receive a voucher and move in
violation of the lease under the
portability procedures, if the family has
complied with all other obligations of
the voucher program and has moved out
of the assisted dwelling unit in order to
protect the health or safety of an
individual who is or has been the victim
of domestic violence, dating violence, or
stalking and who reasonably believed he
or she was imminently threatened by
harm from further violence if he or she
remained in the assisted dwelling unit.
The November 2008 interim rule also
amended 24 CFR 5.2007(a)(3), by
incorporating the VAWA 2005
requirement imposed on PHAs to
provide notice to public housing
residents and tenants assisted under
section 8 of their rights, including their
rights to confidentiality, and notice to
owners and management agents of their
rights and obligations under VAWA
2005. In addition to the notice required
by PHAs, the November 2008 interim
rule also required owners and
management agents administering an
Office of Housing project-based Section
8 program to provide their tenants with
the notification as per the VAWA 2005
requirement.
The November 2008 interim rule also
added several new definitions to its new
regulations in 24 CFR part 5, subpart L,
to reflect terminology defined by VAWA
2005, including ‘‘domestic violence,’’
‘‘dating violence,’’ ‘‘stalking,’’ and
‘‘immediate family member.’’
The amendments made by the
November 2008 interim rule are
discussed in more detail in the
November 28, 2008, Federal Register
notice at 73 FR 72337 through 723339.
III. This Final Rule
As the preamble to the November
2008 interim rule explained and as
2 Portability refers to the right of voucher-holding
families to move outside the jurisdiction of a PHA
that issues the voucher into the jurisdiction of
another PHA that administers a tenant-based rental
assistance program. Section 8(r) of the U.S. Housing
Act of 1937 establishes the right to portability, and
HUD’s implementing amendments of this right are
found at 24 CFR 982.353.
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reiterated in the preamble to this final
rule, HUD’s initial rulemaking for
VAWA 2005, as commenced in
November 2008, and the notices that
preceded the November 2008 interim
rule, were issued to ensure that PHAs,
owners, and management agents
participating in HUD’s covered
programs were aware of the selfimplementing provisions of VAWA
2005, and of the need to immediately
implement the protections provided by
VAWA 2005 in situations covered by
VAWA 2005. That is, PHAs, owners,
and management agents were not to
delay their updating of policies
pertaining to admission, occupancy or
termination while waiting for HUD to
issue regulations on those subjects.
Because the regulations in HUD’s
November 2008 interim rule were
conforming regulations, generally
incorporating, almost verbatim, the
VAWA 2005 statutory language, HUD
anticipated no significant changes
would be made at this final rule stage,
and that is in fact the case. However,
commenters did identify certain areas
where the regulatory language would
increase comprehensibility if HUD
provided further explanation or
elaboration; this rule does provide that.
HUD also determined that the
organization of the regulations in 24
CFR part 5, subpart L, would be
enhanced by some reorganization, and
this rule reflects that reorganization.
Therefore, with respect to
reorganization, and in response to
public comments, the following changes
are made at this final rule stage:
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A. Reorganization Changes
Section 5.2005, formerly entitled
‘‘Protection of victims of domestic
violence, dating violence, and stalking
in public and Section 8 housing,’’ is now
entitled ‘‘VAWA protections,’’ and now
addresses only VAWA 2005 protections.
The provisions of § 5.2005 of the interim
rule that addressed lease bifurcation and
court orders are now in a new § 5.2009,
entitled ‘‘Remedies available to victims
of domestic violence, dating violence, or
stalking in HUD-assisted housing.’’
Section 5.2009 of the interim rule
entitled ‘‘Effect on other laws’’ has been
redesignated as § 5.2011.
B. Clarification Changes
In § 5.2003 (Definitions), HUD has
added a definition of VAWA.
In § 5.2005 (VAWA protections),
paragraph (a) that pertains to notice of
VAWA protections is amended to
include a new paragraph (a)(4), which
provides that the HUD required lease,
lease addendum, or tenancy addendum,
as used in programs covered by this
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rule, must include a description of
specific protections afforded to the
victims of domestic violence, dating
violence, or stalking.
In § 5.2005, paragraph (d)(1) of this
section, which addresses the limitation
of VAWA protections, and the authority
of PHAs, owners, and management
agents, now includes reference to
termination of assistance to clarify that
Section 8 vouchers are covered by
VAWA 2005 protections. The interim
rule merely addressed eviction,
termination of tenancy, and occupancy
rights.
In § 5.2005, HUD clarifies in
paragraph (d)(2) that the standard for
eviction, termination of tenancy, or
termination of assistance is both the
actual and imminent threat of violence,
not an actual or imminent threat of
violence. (Please see also HUD’s
response to the first comment under
Section IV.A.)
In § 5.2005, HUD adds a new
paragraph (d)(3), which addresses the
VAWA statutory language’s emphasis
that nothing in VAWA interferes with
the right of a PHA, owner, or
management agent to evict or terminate
assistance to any tenant or lawful
occupant if the PHA, owner, or
management agent can demonstrate an
actual and imminent threat to other
tenants or those employed at or
providing service to the public housing
or Section 8-assisted property, if that
tenant or lawful occupant is not
terminated from assistance. New
paragraph (d)(3) provides that any
eviction or termination of assistance
undertaken on this basis should be
utilized only by a PHA, owner, or
management agent when there are no
other actions that could be taken to
reduce or eliminate the threat,
including, but not limited to,
transferring the victim to a different
unit, barring the perpetrator from the
property, contacting law enforcement to
increase police presence, developing
other plans to keep the property safe, or
seeking other legal remedies to prevent
the perpetrator from acting on a threat.
Restrictions predicated on public safety
cannot be based on stereotypes, but
must be tailored to particularized
concerns about individual residents.
Further, in § 5.2005, HUD adds a new
paragraph (e) to address the meaning of
actual and imminent threat to better
guide what constitutes an ‘‘actual and
imminent threat’’ and how to determine
when one exists.
In § 5.2007 (Documenting the
occurrence of domestic violence, dating
violence, or stalking), HUD has revised
the title of this regulatory section to be
more clear regarding the issue to which
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this section is directed, which is simply
that the victim is required to submit
written evidence, if requested by a PHA,
owner, or management agent, that
verifies that the domestic violence,
dating violence, or stalking occurred.
This revision also clarifies that the
claim presented to the PHA, owner, or
management agent, as provided in this
regulatory section, may be a claim for
continued occupancy or initial tenancy
or assistance. The interim rule merely
referenced continued occupancy.
Commenters pointed out that reference
to continued occupancy would make
the documentation request applicable
only to terminations of public housing
tenants. Inclusion of ‘‘initial tenancy’’
and ‘‘assistance’’ clarifies that
terminations are also applicable to
Section 8 participants, and to denying
assistance to public housing and Section
8 applicants.
As will be seen by the discussion of
public comments, there appeared to be
confusion as to what was meant by
certification; that is, whether
certification referred to the use of a
HUD-approved form or whether it
referred to the process of verifying, in
writing, the occurrence of domestic
violence, dating violence, or stalking.
What the statute contemplates, and
what this regulation puts into place, is
that upon request, the victim will
provide evidence, which could be in the
form of the victim’s written statement
on a HUD-approved certification form.
The evidence could also consist of a
police or court record, or the written
statement of an employee, agent, or
volunteer of a victim service provider,
an attorney, or a medical professional,
from whom the victim has sought
assistance in addressing domestic
violence, dating violence, or stalking, or
in addressing the effects of abuse, in
which the professional attests under the
penalty of perjury to the professional’s
belief that the incident or incidents in
question are bona fide incidents of
abuse. In brief, a written document that
verifies that the violence occurred could
be requested by the PHA, owner, or
management agent. Therefore, HUD will
use ‘‘documentation’’ and ‘‘document’’ to
refer to the process of providing written
verification. HUD will apply the terms
‘‘certification’’ and ‘‘certify’’ to refer to
the HUD-approved form and its use by
the victim.
In addition, in § 5.2007, HUD
includes the phrase ‘‘dating violence or
stalking’’ along with ‘‘domestic
violence.’’ This section clarifies that if a
PHA, owner, or management agent
requests a tenant, alleging domestic
violence, dating violence, or stalking, to
document his or her claim of such
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violence, the request must be made in
writing. This section also clarifies that
at its discretion, a PHA, owner, or
management agent may provide benefits
to an individual based solely on the
individual’s verbal statement or other
corroborating evidence.
In § 5.2007(b)(4), HUD expands on the
responsibility of the PHA, owner, and
management agent to maintain the
confidentiality of information provided
by a victim of domestic violence, dating
violence, or stalking.
Finally, in § 5.2007, a new paragraph
(e) is added to clarify the way in which
the PHA, owner, or management agent
may determine the true victim of
domestic violence in a situation of
conflicting certifications.
In § 5.2009 (Remedies available to
victims of domestic violence, dating
violence, or stalking in HUD-assisted
housing), HUD clarifies in paragraph (a),
which pertains to lease bifurcation, that
the programs covered by this provision
are the public housing, Section 8
Housing Choice Voucher (HCV), and
Section 8 project-based programs.
HUD has included an amendment to
24 CFR 966.4 (Lease requirements) to
include the VAWA 2005 protections as
a required provision of the public
housing lease, and to require the PHA
to consider lease bifurcation if
appropriate in a domestic violence
situation.
HUD has included amendments to 24
CFR 982.314 (move with continued
tenant-based assistance) to clarify that
PHA policies restricting timing and
number of moves do not apply when the
family or a member of the family is or
has been the victim of domestic
violence, dating violence, or stalking,
and the move is needed to protect the
health or safety of the family or family
member. New amendments to 24 CFR
982.314 also clarify that a PHA may not
terminate assistance if the family, with
or without prior notification to the PHA,
already moved out of a unit in violation
of the lease, if such move occurred to
protect the health or safety of a family
member who is or has been the victim
of domestic violence, dating violence, or
stalking and who reasonably believed he
or she was threatened with imminent
harm if he or she remained in the
dwelling unit. HUD has included an
amendment to 24 CFR 982.315 (Family
break-up) to address the same concerns
as provided in the amendment to 24
CFR 982.314.
IV. Public Comments and HUD’s
Responses
The public comment period on the
November 2008 interim rule closed on
January 27, 2009, and HUD received 13
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public comments. Commenters included
legal aid organizations, domestic
violence advocacy groups, housing
advocacy groups, and public housing
agencies.
Overall, commenters appeared
pleased to see the VAWA 2005
protections codified in regulations, but
some commenters said the November
2008 interim rule was more than a
conforming rule, while others said HUD
had failed to fully conform its
regulations to certain VAWA 2005
statutory provisions. Other commenters
stated that they understood that
regulations were not the appropriate
place for comprehensive guidance on
the VAWA 2005 protections, but
encouraged HUD to provide additional
guidance on the VAWA 2005
protections and provide examples on
the various situations in which the need
for such protections may occur. The
following presents key issues raised by
the commenters and HUD’s responses to
these issues.
A. Scope and Definition Issues
Comment: Interim rule’s language on
‘‘actual or imminent threat’’ departs
from the statutory language. Several
commenters stated that HUD’s
interpretation of ‘‘actual and imminent
threat’’ departs from the statutory
language in VAWA 2005. A commenter
stated that the statutory language of
VAWA 2005 refers to an actual and
imminent threat, and HUD’s interim
rule, by contrast, refers to actual or
imminent threat.
HUD Response: The interim rule
deviated from the statutory language of
VAWA 2005 by indicating that an
owner, management agent, or public
housing agency may evict or terminate
from assistance any tenant or lawful
occupant if the owner, management
agent, or public housing agency can
demonstrate an actual or imminent
threat to other tenants or those
employed at or providing service to the
property if that tenant is not evicted or
terminated from assistance. VAWA 2005
states that an owner, management agent,
or public housing agency may evict or
terminate from assistance any tenant or
lawful occupant if the owner,
management agent, or public housing
agency can demonstrate an actual and
imminent threat to other tenants or
those employed at or providing service
to the property if that tenant is not
evicted or terminated from assistance.
This deviation from the statutory
language resulted from the use of two
similar, but contextually distinct,
phrases within the statute. Both the
phrase ‘‘actual and imminent threat’’ and
‘‘actual or threatened domestic violence’’
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66249
appear in VAWA 2005, and are used to
refine proscribed protection and
prohibited activity in different potential
situations.
The phrase ‘‘actual or threatened
domestic violence’’ appears in section
606 and section 607 of VAWA 2005 in
the amendments made to section
8(c)(9)(B) and section 6(l)(5) of the U.S.
Housing Act of 1937 (42 U.S.C. 1437f(c)
and 42 U.S.C. 1437d(l)). The revision to
section 6(1)(5) of the U.S. Housing Act
states that an incident or incidents of
actual or threatened domestic violence,
dating violence, or stalking will not be
construed as a serious or repeated
violation of the lease by the victim or
threatened victim, and shall not be good
cause for terminating the assistance,
tenancy, or occupancy rights of such
victim.
In contrast, section 606 of VAWA
2005 (section 8(c)(9)(C) of the 1937 Act)
and section 607 of VAWA 2005 (section
6(l)(6) of the 1937 Act) provide that
criminal activity directly relating to
domestic violence, dating violence, or
stalking engaged in by a member of a
tenant’s household or any guest or other
person under the tenant’s control is not
cause for termination of assistance,
tenancy, or occupancy rights if the
tenant or a member of the tenant’s
immediate family is the victim of the
corresponding violence. This protection,
however, is limited by sections
8(c)(9)(C)(v) and 6(l)(6)(E), which
provide that a tenant, or other lawful
occupant, who is a victim of such
domestic violence, dating violence, or
stalking may be evicted or terminated
from assistance if the owner,
management agent, or public housing
agency can demonstrate that such an
action is required due to an actual and
imminent threat posed to other tenants
or to employees or service providers of
the property that will result if that
tenant or lawful occupant is not evicted
or terminated from assistance. In this
context, the phrase ‘‘actual and
imminent threat,’’ rather than ‘‘actual or
imminent threat,’’ narrows the use of
this limitation by the owner,
management agent, or public housing
agency, thereby, providing greater
protection for the victim. Accordingly,
HUD has clarified this distinction in 24
CFR 5.2005(d)(2).
Comment: Definition of ‘‘imminent
threat’’ requires revisions. Two
commenters questioned the interim
rule’s definition of ‘‘imminent threat’’ on
the basis that they found that it failed
to include the imminence of the threat;
that is, the likelihood that the threat
would become reality. Other
commenters recommended using the
standard of ‘‘serious bodily harm’’ to
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give meaning to ‘‘violent criminal
activity,’’ which is the term used in
VAWA 2005. Commenters stated that
the term ‘‘bodily harm’’ was too vague
and general.
HUD Response: Section 5.2005(e) of
HUD’s interim rule provides that words,
gestures, actions, or other indicators are
considered an imminent threat ‘‘if a
reasonable person, considering all of the
relevant circumstances, would have a
well-grounded fear of death or bodily
harm as a result.’’ HUD based its
definition of ‘‘imminent threat’’ in the
interim rule, in part, on the definition
of ‘‘stalking’’ in VAWA 2005. VAWA
2005 defines ‘‘stalking’’ to include acts
of pursuit or surveillance or repeatedly
committed acts that ‘‘place a person in
reasonable fear of the death of, or
serious bodily injury to, or to cause
substantial emotional harm to’’ that
person, a member of the immediate
family, or the spouse or intimate partner
of that person. The definition of
‘‘stalking’’ described the types of actions
that were actual and imminently
threatening in a domestic violence
situation.
However, in response to public
comments, HUD has reexamined the
interim rule guidance on actual and
imminent threat, and also reviewed case
law, as suggested by commenters in the
following comment. The case law
recommended by the commenters was
helpful in developing standards that
would better guide what actions
constitute actual and imminent threat.
Section 5.2005 of this final rule includes
a new paragraph (e) to help PHAs,
owners, and management agents
determine when actual and imminent
threat exists. This new paragraph (e) is
discussed more fully in HUD’s response
to the following comment.
Comment: Clarify standards for
determining actual and imminent
threat. Commenters stated that HUD’s
final rule needed to elaborate on the
meaning of ‘‘actual and imminent’’
threat in order to be more helpful to
housing providers in understanding
when they may be confronting an actual
and imminent threat situation. Two
commenters suggested that the
legislative history of, and similar
exceptions in, the Fair Housing Act and
the Americans with Disabilities Act
should be used as standards to elaborate
on the proper application of actual and
imminent threat to specific
circumstances encountered by PHAs,
owners, or management agents under
VAWA 2005. One commenter
recommended that HUD’s final rule
follow the Fair Housing Act and base
any specific determination of an actual
and imminent threat based on the
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consideration of four factors: (1) The
nature of the risk, (2) the duration of the
risk, (3) the severity of the risk or
potential harm to third parties, and (4)
the probability of harm. The commenter
claimed that the Fair Housing Act
codifies the factors of School Board of
Nassau County, Florida v. Arline, 480
U.S. 273, 107 S.Ct. 1123 (1987) in 42
U.S.C. 3604(f)(9). The commenter added
that HUD’s final rule should describe
the analysis of actual and imminent
threat with more specificity so that
PHAs, owners, or management agents
know they must have objective evidence
in order to find an exception to VAWA
2005. The commenter stated that
otherwise an exception may be based on
fear or conjecture rather than on an
objectively proven imminent threat.
The commenter recommended that
the factors be listed in HUD’s final rule,
as is done in two similar regulations
describing the direct threat exception
for the Americans with Disabilities Act
(ADA): The Department of Justice’s
ADA regulations and the Department of
Labor’s ADA regulations at 28 CFR
36.208 and 29 CFR 1630.2(r),
respectively. The commenter stated that,
as HUD’s interim rule reads, it fails to
emphasize the need for objectivity,
evidence, and the examination of
particular circumstances needed to
understand and implement this
exception.
HUD Response: HUD understands
that the need for elaboration on this
important terminology—actual and
imminent threat—as used in the statute,
and appreciates the commenters’
suggestions on standards or factors to
consider in determining whether there
is a situation of actual and imminent
threat. Although there appears to be an
absence of case law interpreting ‘‘actual
and imminent’’ threat, the commenters
are correct that cases involving housing
discrimination or violence in a direct
threat situation are instructive on
standards that should be considered.
More importantly, the commenters are
correct that any interpretation of these
terms should emphasize the need for
objective evidence that the actual and
imminent threat of physical danger is
real, not hypothetical or presumed;
would occur within an immediate time
frame, and thus not be remote or
speculative; could result in death or
serious bodily harm; and could not be
reduced or eliminated by reasonable
actions. Accordingly, HUD’s final rule
provides, in a new paragraph (e) to
§ 5.2005, that an actual and imminent
threat consists of a physical danger that
is real, would occur within an
immediate time frame, and could result
in death or serious bodily harm.
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Additionally, this paragraph provides
that in determining whether an
individual would pose an actual and
imminent threat, the factors to be
considered include: the duration of the
risk, the nature and severity of the
potential harm, the likelihood that the
potential harm will occur, and the
length of time before the potential harm
would occur. In addition to including
this language in the regulatory text,
HUD intends to issue further guidance
that may be helpful in determining and
dealing with actual and imminent
threat.
Comment: Commenters stated that the
rule omits reference to crimes of dating
violence and stalking. According to
commenters, HUD’s interim rule, in
several places, addresses domestic
violence, but fails to include the crimes
of dating violence and stalking. The
commenters recommended that the
provisions be amended to more closely
track VAWA 2005.
HUD Response: HUD’s interim rule
(in § 5.2003, as well as in § 5.2005 (the
title of § 5.2005, includes the phrase
dating violence and stalking), and
§ 5.2009) already includes reference to
the crimes of dating violence and
stalking. The final rule includes dating
violence or stalking in addition to
domestic violence at section 5.2007(d)
and section 5.2007(a). HUD has not
identified any other key provision of the
interim rule where such terminology
was omitted.
Comment: Clarify criminal activity
directly related to domestic violence,
dating violence, or stalking. A
commenter stated that the statute and
interim rule contain detailed definitions
of the terms ‘‘domestic violence, ‘‘dating
violence,’’ and ‘‘stalking,’’ but does not
clarify the meaning of ‘‘directly related’’
in the context of protecting a victim
from eviction due to such criminal
activity. The commenter stated that
Congress intended to limit the reach of
the provision so that activities distantly
related to domestic violence, dating
violence, or stalking would not bring
into play the statutory scheme.
HUD Response: As the commenter
notes, the interim rule mirrors the
statutory language, which provides that
criminal activity ‘‘directly related’’ to
domestic violence, dating violence, or
stalking, engaged in by a member of a
tenant’s household or any guest or other
person under the tenant’s control, shall
not be cause for termination of tenancy,
or of occupancy rights of, or assistance
to the victim, if the tenant or immediate
family member of the tenant is the
victim. HUD finds that in this context,
the meaning of ‘‘directly related’’ is clear
and does not require further elaboration.
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Comment: VAWA 2005 should apply
to men, Project Rental Assistance
Contracts (PRACs), and Section 8
properties. One commenter stated that
VAWA 2005 should protect men from
domestic violence and not only women.
The commenter added that VAWA 2005
should cover housing under PRACs, as
well as other Section 8 properties.
HUD Response: VAWA 2005 does
protect men. Although the name of the
statute references only women, the
substance of the statute makes it clear
that its protections are not exclusively
applicable to women. With respect to
broader coverage of VAWA 2005, HUD
notes that the scope of VAWA 2005
protections is limited to the 1937 Act.
Comment: Rule must address battered
immigrants’ eligibility. Commenters
stated that HUD’s interim rule omits
housing eligibility for battered
immigrant-qualified aliens. Battered
immigrant-qualified aliens are
statutorily eligible to receive public and
assisted housing as part of the Illegal
Immigration Reform and Immigration
Responsibility Act of 1996. In 2003,
according to the commenters, Congress
directed HUD and the Department of
Justice to interpret housing statutes
consistently with immigration and
public benefits statutes so that qualified
alien-battered immigrants would be
eligible for federally subsidized
housing. (See H. Rep. No. 108–10 at
1495). According to the commenters,
qualified alien-battered immigrants
continue to be denied housing benefits
they both need and are eligible to
receive, and HUD should revise its
VAWA rule, at the final rule stage, to
make it clear that battered alien
immigrants are eligible to receive
housing benefits.
HUD Response: The November 2008
interim rule and this final rule are
directed only to addressing the
provisions of the Violence Against
Women Act of 2005. This rule does not
address the categories of legal
immigrants eligible for housing under
Section 214 of the Housing and
Community Development Act of 1980.
However, VAWA 2005 protects victims
of domestic violence, dating violence, or
stalking residing in HUD public and
assisted housing covered by VAWA
2005, regardless of whether they are
citizens or eligible immigrants.
B. Certification and Verification
(Documentation of Abuse) Issues
Comment: Certification language in
interim rule is at odds with the statutory
language. One commenter stated that
the certification section of the rule is
confusing and must be revised to
include correct VAWA 2005 statutory
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language, which provides that a PHA,
owner, or management agent may ask a
victim of domestic violence, dating
violence, or stalking to document this
status in any one of the following forms:
a HUD-approved certification form
completed by the victim or
documentation signed by an employee,
agent, or volunteer of a victim service
provider; an attorney; or a medical
professional, or via a court or police
record.
HUD Response: As discussed in
Section III.B. of this preamble, HUD has
revised § 5.2007 to eliminate any
confusion about the ‘‘certification/or
verification’’ of abuse. As noted in
Section III.B. of this preamble, a PHA,
owner, or management agent may
request that a victim of domestic
violence, dating violence, or stalking
document or provide written evidence
to demonstrate that the violence
occurred. Accepted means of
documentation include providing the
PHA, owner, or management agent with
a completed HUD-approved certification
form, or other form of written
verification of the abuse, signed by a
third party. The PHA, owner or
management agent also may accept the
victim’s verbal statement or other
corroborating evidence as sufficient
verification of the abuse. Therefore, as
long as the victim provides a HUDapproved certification form, third-party
documentation, a verbal statement, or
other corroborating evidence, the victim
is statutorily entitled to VAWA 2005
protections. A tenant’s file should
document acceptance of an individual’s
verbal statement.
Comment: Clarify permissibility of
self-certification and third-party
verification. Some commenters stated
that the option to self-certify, despite
the request from a PHA, owner, or
management agent for certification on
the HUD form or another form of
certification, is at odds with VAWA
2005. Other commenters stated that the
November 2008 interim rule is unclear
as to when third-party verification can
be required instead of self-certification.
A commenter stated that third-party
verification should be allowed because
such verification provides a PHA,
owner, or management agent with a
comparatively higher level of protection
from potential abuse of VAWA 2005,
and would eliminate the need for an
independent judgment call.
Other commenters stated that VAWA
2005 indicates that a PHA or owner
does not have to require that a person
seeking VAWA 2005 protections
produce documentation of his or her
status as a victim of domestic violence,
dating violence, or stalking, and that
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VAWA 2005 protections may be
provided to individuals based solely on
their own statements or other
corroborating evidence. Another
commenter stated that, if a PHA, owner,
or management agent decides to obtain
verification of an individual’s status as
a victim, the tenant may satisfy the
requirement to document the abuse by
providing documentation signed by an
attorney or member of a victim service
provider or contained in a police or
court record.
HUD Response: With respect to selfcertification, VAWA 2005 allows, but
does not require, the victim to selfcertify, in order to be afforded
protection under VAWA 2005. Form
HUD–50066, for use by PHAs, and form
HUD–91066, for use by owners and
management agents, have been
developed for the purpose of the
optional certification. They are standard
forms and collect limited, relevant
information from the victim.
With respect to the issue of thirdparty verification, HUD has determined
that an individual requesting protection
cannot be required to provide thirdparty documentation. If a
documentation request is made to an
individual seeking protection under
VAWA 2005, the PHA, owner, or
management agent must accept the
standard HUD certification form as a
complete request for relief, without
insisting on additional documentation.
Additionally, third-party documentation
must be accepted in lieu of the HUD
standard certification form if such
documentation is produced by the
individual requesting relief.
Comment: Clarify whether a HUDapproved certification is always needed.
Certain commenters stated that the
certification provision of HUD’s interim
rule should be revised to clarify that a
HUD-approved certification form is not
always required. According to one
commenter, the interim rule improperly
combines the HUD certification form
with the option for the victim to submit
a police or court record or qualified
third-party documentation in lieu of the
certification form. Other commenters
stated that the regulatory text of the
interim rule should follow the statutory
language, which references a written
request for certification by the PHA or
owner.
HUD Response: HUD believes that the
changes made to § 5.2007 eliminate
confusion about what is required under
the statute, as implemented by HUD’s
regulation. However, in response to the
question raised by the commenters, a
PHA, owner, or management agent may,
but is not required to, request that the
individual complete a HUD-approved
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certification form documenting the
abuse. The victim may satisfy a request
to document the domestic violence,
dating violence, or stalking by
submitting the HUD-approved form. The
victim may satisfy the PHA’s, owner’s,
or management agent’s request for
documentation without providing the
HUD-approved form, by submitting
third-party documentation of the abuse
or other corroborating evidence. The
PHA, owner, or management agent must
accept the HUD-approved form as a
complete request for protection in the
absence of third-party documentation.
Third-party documentation may
include, among other things, court or
police records. In addition, the PHA,
owner, or management agent may
provide benefits based solely on the
individual’s verbal statement or other
corroborating evidence.
With respect to a written request for
certification, HUD acknowledges that
this language could be clearer, and
believes the changes made to § 5.2007
provide greater clarity. In order to deny
relief for protection under VAWA, a
PHA, owner, or management agent must
provide the individual with a written
request for documentation. If the
individual fails to provide the requested
documentation within 14 business days
of receiving a written request for
information, the relief may be denied.
The 14-business day window for
submission of documentation does not
begin until the individual receives the
written request. The PHA, owner, or
management agent has discretionary
authority to extend the statutory 14business day period. While HUD’s
interim rule covered these time frames,
the ‘‘request’’ by the PHA, owner, or
management agent was not phrased
specifically in terms of a ‘‘written
request.’’ However, the subject of request
for documentation is now addressed in
§ 5.2007(a) of the final rule.
Comment: Content of certification
requires clarification. A commenter
stated that VAWA 2005 is ambiguous as
to whether the content of certification
should be left to the victim’s discretion
or to the discretion of the PHA, owner,
or management agent. Commenters
suggested that the housing providers be
given the discretion to specify the
content and types of information that
should be provided in the certification.
HUD Response: As noted earlier,
although VAWA 2005 speaks in terms of
a victim’s certification that the violence
occurred, HUD’s regulation is revised by
this final rule to speak in terms of
documentation of the violence.
Nevertheless, to the commenters’
question about the statute, the 1937 Act,
at both 42 U.S.C. 1437d(u)(1)(A) and
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1437f(ee)(1)(A), states that the PHA,
owner, or management agent may
request that an individual certify
through a HUD-approved certification
form that the individual is a victim of
domestic violence, dating violence, or
stalking, and that the incident or
incidents in question are bona fide
incidents of such actual or threatened
abuse and meet the requirements set
forth in the above-referenced statutory
provisions. Under VAWA 2005, the only
required content of the certification is
that such certification shall include the
name of the perpetrator. Certifications
are typically very brief documents by
which an individual who has provided
certain information attests that such
information is true. HUD finds that its
treatment of certification in its
regulations, which mirrors VAWA
2005’s treatment, is the correct
approach.
Comment: VAWA 2005 does not
require victims to sign certifications
under penalty of perjury. Commenters
stated that the interim rule requires
victims to sign certifications under
penalty of perjury, which is not required
by VAWA 2005 or HUD’s published
certification form, form-50066. One
commenter stated that HUD has the
discretionary authority to require
victims to certify their status under
penalty of perjury, and that HUD’s form
should provide for self-certification
under penalty of perjury, so long as the
form is amended to describe the
penalties associated with perjury. Other
commenters stated that HUD appears to
have the discretion to offer a
certification process through which
program sponsors could also require
third-party verification under penalty of
perjury, victims’ self-certification of
their status under penalty of perjury, or
‘‘victims’’ providing of police reports.
The commenters stated that these
alternatives would help to prevent
abuse of VAWA 2005 protections.
HUD Response: Given the possible
consequences to both the victim and the
alleged perpetrator of domestic
violence, dating violence, or stalking,
HUD’s position is that it is important
that any allegations made by one
individual against another are made
with the understanding that there are
consequences if the allegations are false.
In this regard, HUD’s VAWA forms,
HUD–50066 and HUD–91066, advise
that the submission of false information
may be a basis for termination of
assistance or for eviction. HUD
maintains that this language is a
sufficient deterrence from false
reporting and that the inclusion of the
language ‘‘under penalty of perjury’’ is
unnecessary.
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Comment: Additional guidance is
necessary to protect victims’
confidentiality and safety in the
documentation process. One commenter
stated that PHAs and owners could
benefit from guidance on how to
maintain confidentiality when a victim
seeks to port a voucher to a different
jurisdiction. Other commenters stated
that the rule should explicitly state that
any release of information for the
purpose of enforcing that person’s rights
under VAWA 2005 is limited in time
and scope. One commenter stated that
because of the sensitive nature of
domestic violence, HUD must include
safeguards to ensure that PHAs or
landlords do not require any
information beyond that required in a
HUD-approved form.
HUD Response: The release of
confidential information was addressed
in § 5.2007(a)(1)(v) of the interim rule
[§ 5.2007(b)(4) in the reorganized
regulation of this final rule]. This
section, which tracks the statutory
language in VAWA 2005 (at section
8(ee)(2) of the Housing Act of 1937 (42
U.S.C. 1437f(ee)(2))), has been expanded
in the final rule stage. This section now
states that information provided by the
victim of domestic violence, dating
violence, or stalking shall be kept
confidential and shall not be entered
into any shared database or provided to
any other entity except to the extent that
disclosure is requested by the tenant,
required for use in an eviction
proceeding, or required by applicable
law. Further, this section prohibits
employees of the PHA, owner, or
management agent, or individuals
within their employ (e.g., contract
workers) from having access to such
information, unless they are specifically
and explicitly authorized by the PHA,
owner, or management agent to access
this information because it is necessary
to their work for the PHA, owner, or
management agent. These employees or
individuals in the employ of the PHA,
owner, or management agent are equally
bound to maintain the confidentiality of
such information. Maintaining
confidentiality is essential to protect
victims from further harm. In addition
to expanding the confidentiality
requirements in § 5.2007(b)(4), HUD
will provide additional guidance to
PHAs, owners, and management agents
on confidentiality protocols that each
PHA, owner, and management agent
should maintain and enforce.
Further, HUD notes that the situations
mentioned by commenters are also
covered by the Privacy Act (5 U.S.C.
552a). The Privacy Act controls the
purposes for which information may be
released, and those purposes are
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supposed to be stated when the
information is collected.
Comment: Guidance needed for
processing VAWA 2005 certifications.
Several commenters sought guidance on
how to process a VAWA 2005
certification, including cases involving
the submission of certifications from
household members that are in conflict
with one another. In some instances,
where the perpetrator of domestic
violence is a member of the household
and faces eviction, the perpetrator may
claim to be a victim of domestic
violence and attempt to have the true
victim evicted instead.
HUD Response: As noted earlier in
this preamble, the process that is at
issue is not the processing of
certifications, but rather documenting
violence that has occurred. As also
discussed in this preamble, such
documentation may be provided in
several ways, including a certification,
but also a third-party statement or a
court or police record. Individuals
seeking protection under VAWA 2005
must notify the PHA, owner, or
management agent of their intent to
request protection. The PHA, owner, or
management agent may, but is not
required to request, that the individual
provide documentation of the abuse.
The individual may satisfy the
documentation requirement by
submitting the HUD-approved
certification form. The individual may
also satisfy a request for documentation
by submitting third-party
documentation of the abuse or other
corroborating evidence. Although the
victim has discretion as to the means of
documentation, the PHA, owner, or
management agent may request some
additional proof beyond a verbal
statement. If the requesting individual is
unable to produce documentation or
other corroborating evidence and is
unwilling to self-certify on the HUDapproved form, the individual may
request, and the PHA, owner, or
management agent must, in accordance
with the procedures established in the
applicable program regulations, provide
an opportunity for an informal review or
informal hearing prior to ultimate denial
of protection.
Third-party documentation may
include, among other things, court or
police records. The PHA, owner, or
management agent must accept the
certification form as a complete request
for protection, in the absence of thirdparty documentation. A PHA, owner, or
management agent also must accept
third-party documentation in lieu of the
HUD standard certification form if such
documentation is produced by the
individual requesting relief.
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The certification form and/or thirdparty documentation should be placed
in the tenant’s file, and the PHA, owner,
or management agent should explain to
the individual the remedies available.
Additional information on processing
the certification and/or third-party
documentation will be described in
HUD administrative guidance.
With respect to conflicting
certification from two members of a
household, HUD recognizes that PHAs,
owners, and management agents may
not be in a position to determine the
victim from the perpetrator. Trained
third parties (such as law enforcement
or a victim service provider, attorney, or
medical professional, as described in 42
U.S.C. 1437(f)(ee)(C)) are often better
equipped to make accurate judgments.
The statute also notes that the eviction
protections do not limit the authority of
a PHA, owner, or management agent,
when notified, to honor court orders
addressing rights of access to control of
the property, including civil protection
orders issued to protect the victim and
issued to address the distribution or
possession of property among the
household members in cases where a
family breaks up. Use of this third-party
documentation would enable PHAs,
owners, and management agents to
make a more accurate decision. It would
also discourage perpetrators from
attempting to abuse the system and
further harm their victims. A victim
may well have already sought assistance
in addressing the abuse and be able to
produce documentation relatively
quickly. Should any questions remain, a
court or another adjudication process,
such as a PHA grievance hearing,
informal hearing or informal review,
could be an appropriate venue to pursue
fact-finding and make a determination.
To assist PHAs, owners, and
management agents navigate such
conflicts, HUD has added a new
paragraph (e) to § 5.2007, to clarify the
ways in which the PHA, owner, or
management agent may determine the
true victim of domestic violence in a
situation of conflicting certifications.
HUD will also issue additional guidance
to assist PHAs, owners, or management
agents when confronted with conflicting
certifications.
C. Transfer Policies and Portability
Issues
Comment: Transfer policies to protect
victims. Commenters encouraged HUD
to go beyond merely conforming HUD’s
regulations to the VAWA 2005
provisions, by promulgating regulations
that mandate emergency transfers for
victims of domestic violence in public
housing and project-based Section 8
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housing. The commenters stated that
VAWA 2005 creates specific transfer
rights for victims of domestic violence
with HCVs, with one commenter
encouraging HUD to exercise its
rulemaking authority and create specific
rights for victims in public housing and
project-based Section 8 housing, in
addition to the rights provided for
voucher tenants. That commenter stated
that while there is no direct guidance on
the problems facing victims of domestic
violence who need to flee their projectbased Section 8 housing without
jeopardizing their subsidies, there is
general recognition of the problem by
HUD, owners, and advocates. One
commenter stated that HUD’s VAWA
2005 regulations should encourage
project-based Section 8 owners to allow
transfers to other project-based Section
8 developments they own or to
developments where they have
cooperative agreements with other
owners. Such a policy would not be a
violation of waiting list regulations.
HUD Response: HUD’s November
2008 interim rule was issued for the
purpose of conforming HUD’s
regulations to the self-implementing
provisions of VAWA 2005 and, as stated
earlier in this preamble, for the purpose
of ensuring there was no confusion on
the part of PHAs, owners, and
management agents that they should
immediately commence compliance
with VAWA 2005. With respect to the
request to HUD to undertake rulemaking
beyond this conforming rulemaking
process, for the purpose of establishing
specific rights to victims of domestic
violence, dating violence, or stalking in
HUD-subsidized housing, it is HUD’s
view that VAWA 2005 well establishes
those rights. HUD believes that this
view is consistent with the statutory
language of VAWA 2005, which was
made effective upon enactment, and
which did not direct HUD to undertake
rulemaking to implement the provisions
applicable to HUD programs.
With respect to transfer policies, HUD
will continue to encourage, rather than
require, PHAs to include protections for
victims of domestic violence, dating
violence, or stalking, within existing
transfer policies. While there are no
transfer policies for project-based
Section 8 properties, HUD Handbook
4350.3 REV–1, Occupancy
Requirements of Subsidized Multifamily
Housing Programs, already states that
owners may adopt a preference for
families that include victims of
domestic violence. HUD will be revising
the Handbook so that the language also
includes victims of dating violence and
stalking. HUD believes that the
responsibilities of PHAs, multifamily
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housing owners, and management
agents are clear under VAWA 2005 to
protect tenants who are victims of
domestic violence, dating violence, or
stalking and that PHAs, multifamily
housing owners, and management
agents also need the flexibility to
confront the various domestic violence,
dating violence, or stalking situations
that may occur.
Comment: Address possible problems
with moving and portability policies.
Certain commenters expressed concern
about moving and portability policies.
According to one commenter, HUD’s
November 2008 interim rule allows a
family to receive a voucher and to move
out of a unit in violation of the lease if
the family believes itself in immediate
danger. However, the commenter stated
that HUD has not provided guidance on
how to handle such situations with HCV
landlords. The commenter stated that
clarification of such procedures is
critical if HUD expects landlords to
continue to participate in the HCV
program.
A second commenter stated that all
parties would benefit from more
guidance on the portability issue. A
third commenter stated that if the
November 2008 interim rule is read in
conjunction with PIH Notice 2008–43, it
appears that a PHA can continue to
deny a victim’s request for portability if
the PHA has established a policy that
prohibits a move by the family during
the initial lease term, or more than one
move by the family during any one-year
period. In order to address this problem,
the commenter recommended that an
exception be recognized in § 982.314(c)
for voucher participants. The
commenter stated that PHAs need
guidance from HUD on how to handle
VAWA 2005-related absence from the
unit or the need to vacate the unit.
HUD Response: HUD agrees that
denying a request for portability in such
a situation would be contrary to the
intent of VAWA 2005. Therefore, HUD
has revised its regulation at § 982.314(b)
to clarify that a PHA may not refuse to
issue a voucher to an assisted family
due to the family’s failure to seek
approval prior to moving to a new unit
in violation of the original lease, if such
move occurred to protect the health or
safety of a family member who is or has
been the victim of domestic violence,
dating violence, or stalking and who
reasonably believed he or she was
threatened with imminent harm if he or
she remained in the dwelling unit. This
move, however, does not relieve the
family of any financial obligations on
the original lease. Additionally, HUD
has revised its regulation at § 982.314(c)
to clarify that PHA policies restricting
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the timing and number of moves do not
apply when the family or a member of
the family is or has been the victim of
domestic violence, dating violence, or
stalking, and the move is needed to
protect the health or safety of the family
or family member.
Comment: Clarification needed for
addressing family break-ups due to
domestic violence. Three commenters
asked HUD to clarify how PHAs should
respond when violence leads to family
break-up. The commenters suggested
that HUD issue guidance stating that
family break-up cannot result in an
eviction or termination in violation of
VAWA and that survivors of violence
can be treated as the highest priority in
determining continuation of housing
assistance. Another commenter
requested that HUD’s final rule revise
the regulatory text on the Section 8
voucher program’s approach to family
breakup. The commenter suggested that
the approach for the Section 8 voucher
program should be broadened, by a
cross reference, to include all types of
violence encompassed by VAWA,
including survivors of domestic
violence, dating violence, or stalking.
HUD Response: HUD is committed to
developing and providing guidance on
family break-up and lease bifurcation.
The guidance will include information
on how to add victims currently
residing with an abuser to the lease or
voucher. HUD agrees that its voucher
regulations in 24 CFR part 982 should
include domestic violence, dating
violence, or stalking as defined by
VAWA as an additional factor to
consider in determining which members
of an assisted family should continue
receiving assistance if the family breaks
up. This final rule has been revised at
§ 982.315 accordingly.
D. Lease Issues
Comment: Bifurcation of leases. One
commenter stated that the interim rule’s
definition of ‘‘bifurcate’’ is not lifted
directly from the statute. The
commenter stated that while the
regulatory definition goes beyond a
merely conforming amendment, that
doing so is in fact useful for
implementation of VAWA 2005
protections. The commenter stated that
the proposed definition makes it clear to
housing providers and Section 8 owners
that leases can be revised to permit
domestic violence survivors to retain
their housing assistance, while tenancy
rights of their abusers can be
extinguished.
Other commenters expressed concern
about the efficacy of bifurcation of
leases, because bifurcation is new and
yet to be tested at the state level.
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However, a commenter added that the
interim rule implements the relevant
statutory provision properly and
without adding any additional
constraints on lease enforcement. Other
commenters requested guidance on
bifurcation that is specifically addressed
to the voucher program. A commenter
asked whether two vouchers will be
issued when a lease is bifurcated and
other families need the voucher.
One commenter stated that because
Federal preemption is implicit in the
VAWA 2005 provisions on lease
bifurcation, HUD’s final rule should
articulate a Federal preemption to the
extent necessary to carry out VAWA
2005. Because bifurcation of leases is a
new concept, the commenter
recommended that the subject be
described in more detail in
nonregulatory guidance, to inform state
courts in eviction proceedings when
bifurcation is requested. The commenter
suggested that the rule include
conforming amendments reflecting the
bifurcation concept, in 24 CFR part 966,
which covers public housing leases and
grievance, as well as 24 CFR part 982,
governing the voucher program and
other regulations where appropriate.
HUD Response: HUD appreciates the
concerns raised about lease bifurcation
and preemption. With respect to
articulation of a justification of Federal
preemption doctrine, the preamble to
the interim rule specifically cites the
VAWA 2005 statutory language on this
issue, and states that VAWA 2005 does
not preempt an entire field of state law
and shall not be construed to supersede
any provisions of Federal, State, or local
laws that provide greater protection for
victims of abuse (section 8(c)(9)(C)(vi) of
the Housing Act of 1937). In the
‘‘Findings and Certifications’’ section of
the interim rule, there is a discussion of
Executive Order 13132, ‘‘Federalism,’’
which states that the November 2008
interim rule, in so far as it incorporates
the statutory language that provides for
bifurcation of leases to protect victims
of domestic violence, has only minor
effects on the states and does not meet
the definition of rules with ‘‘federalism
implications.’’ Any preemptive effect of
the bifurcation provision is limited to
Section 8 and public housing. Moreover,
the possible effect of the provision is
limited to only those eviction actions
where the tenant to be evicted has a
valid claim of protection as a victim of
domestic violence, dating violence, or
stalking or where lease bifurcation is
sought because of domestic violence,
dating violence, or stalking. HUD’s
November 2008 interim rule makes
solely minor adjustments to any existing
laws that do not offer greater protection
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to victims of domestic violence, dating
violence, or stalking and does not
preempt an entire field of state law as
is the case in circumstances in which
preemption occurs. For those reasons,
HUD does not believe this rule has a
preemptive effect, as defined by the
Executive Order on Federalism.
With respect to issuing nonregulatory
guidance on bifurcation of leases in
state courts, the PHA, owner, or
management agent bears the
responsibility to advise the court on the
PHA’s, owner’s, or management agent’s
obligations as a housing provider under
VAWA 2005 and HUD regulations. HUD
accepts the commenter’s suggestion
about cross-referencing 24 CFR parts
966 and 982 to part 5. HUD agrees that
lease bifurcation should work the same
way in HUD’s public housing and
voucher programs.
With respect to the issue of whether
two vouchers will be issued when a
lease is bifurcated, one voucher will be
issued to the victim. The perpetrator
will be removed from the original
voucher and will not receive a new
voucher.
Comment: VAWA protection
provisions are needed in public housing
leases. Commenters stated that VAWA
2005 requires that public housing leases
include VAWA protections regarding
evictions. The commenters stated that
HUD’s final rule needs to take account
of this requirement. One commenter
added that confidentiality language
should be added to public housing
leases. Commenters suggested that 24
CFR 966.4 of HUD’s regulations, which
pertains to lease requirements,
incorporates the public housing lease
requirements of VAWA 2005.
HUD Response: HUD currently
requires that lease provisions be
construed to contain these protections.
The absence of reference, in regulation
or in leases, to the VAWA 2005
protections does not render these
protections inapplicable. However,
since this rulemaking is a conforming
rulemaking, HUD has conformed the
regulations in 24 CFR part 5 and 24 CFR
part 966 that govern lease and tenancy
addendum provisions to reference the
VAWA 2005 protections.
Comment: Incorporate VAWA
protections in grievance procedures.
According to commenters, HUD’s final
rule should incorporate amendments to
24 CFR 966.51 that allow PHAs to
exclude a termination action from its
administrative grievance procedure if
violent criminal activity arising from an
incident of domestic violence, dating
violence, or stalking can be excluded
from the grievance process. The
commenter added that the final rule
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should ensure that PHAs properly
handle terminations involving VAWA
2005 through a PHA’s grievance
procedure, including proper crossreferences.
HUD Response: The grievance
procedures in 24 CFR 966.54 and 966.55
address the grievance process. These
regulations do not list or prescribe all
items or actions that can be grieved
under the lease. The absence of a
prescriptive list is to provide the tenants
with leeway as to what they choose to
grieve. Victims of domestic violence,
dating violence, or stalking have the
same access that other public housing
tenants have to the grievance process.
Accordingly, it is not necessary to
incorporate the VAWA 2005 protections
in these regulatory sections.
Comment: VAWA protections need to
be applicable to admissions and
voucher terminations. Commenters
stated that the portion of HUD’s interim
rule that prohibits, consistent with
VAWA, a PHA, owner, or management
agent from applying a ‘‘more demanding
standard’’ to evict or terminate tenancy
of a victim of domestic violence, than
that to which other tenants are
subjected, should be revised to cover
Section 8 voucher terminations. Other
commenters stated HUD’s rule
addresses VAWA protections regarding
termination of tenancy and evictions but
omits VAWA protections regarding
admissions and voucher terminations.
The commenters urged that 24 CFR
5.2005(b) be revised to include VAWA
protections regarding admissions and
voucher terminations. Commenters also
urged HUD to amend 24 CFR 5.2005(c),
because it fails to reflect that vouchers
can be bifurcated.
HUD Response: HUD has considered
the comments and agrees to revise 24
CFR 5.2005(b) [§ 5.2005(d) in the
reorganized regulation of this final rule]
to clarify the prohibition regarding the
use of a ‘‘more demanding standard’’
with respect to Section 8 voucher
terminations. To that end, § 5.2005(d)
has been revised to include the phrase
‘‘terminate assistance’’ after the phrase
‘‘evict a tenant,’’ in order to clarify
coverage of tenants with Section 8
vouchers. HUD has also revised 24 CFR
5.2005(c) [§ 5.2009(a) in the reorganized
regulation of this final rule], pertaining
to lease bifurcation, to clarify that the
range of HUD programs covered by the
VAWA 2005 protections are the public
housing, Section 8 HCV, and Section 8
project-based programs.
Comment: Permit termination of a
household member who commits
criminal acts of violence, while
continuing Section 8 assistance to the
victim. One commenter stated that
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HUD’s rule does not include the
language of VAWA 2005 that allows for
termination of a household member
who commits criminal acts of violence,
while the victim of the violence
continues to receive Section 8
assistance. According to the commenter,
the preamble to HUD’s interim rule was
clear on the issue, but the regulatory
text is not clear. Another commenter
stated that HUD’s rule omits VAWA
2005 provisions regarding termination
of voucher assistance for household
members who commit criminal acts of
violence.
HUD Response: HUD believes its rule
satisfactorily addresses the issues raised
by the commenters pertaining to VAWA
protection in the case of family breakup due to violence. Specifically, in
§ 982.553, the rule dictates that the
victim protections under 24 CFR part 5,
subpart L apply to cases of criminal
activity related to domestic violence,
dating violence, or stalking. In the
reorganized regulation, 24 CFR
5.2005(c)(2) provides that victims of
domestic violence, dating violence, or
stalking shall not be terminated from
assistance due to criminal activity
directly related to domestic violence,
dating violence, or stalking engaged in
by a member of the victim’s household,
guest, or other person under the victim’s
control. Section 982.315 has also been
amended to explicitly reflect the
protections available under VAWA
pertaining to retention of assistance by
the victim in cases of family break-up
resulting from domestic violence, dating
violence, or stalking. In such a family
break-up, the victim protected under
VAWA must retain voucher assistance.
Comment: Denial of assistance for
criminal activity. According to a
commenter, HUD’s final rule must
include the amendment to 24 CFR
982.553 that addresses denial of
assistance for criminal activity.
According to the commenter, applicants
who have survived domestic violence,
dating violence, or stalking should not
be denied assistance in cases of criminal
history where that history is related to
self-defense or coercion or mutual
arrests that are common in domestic
violence situations.
HUD Response: HUD agrees that
victims of domestic violence, dating
violence, or stalking must not be denied
assistance or terminated from programs
based solely on a criminal history
related to domestic violence, dating
violence, or stalking, and believes its
regulation is clear on this issue. HUD’s
interim rule provides in paragraph (e) of
§ 982.553, which pertains to denial of
admission and termination of assistance
for criminals and alcohol abusers, that
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the protections for victims covered by
the regulations in 24 CFR part 5, subpart
L apply in cases of criminal activity
related to domestic violence, dating
violence, or stalking.
Comment: Guidance is needed on
termination of assistance in HCV
program. One commenter stated that
PHAs should have the authority to
terminate assistance to abusers, while
protecting victims. The commenter
urged HUD to provide more guidance on
how to administer such terminations.
The commenter raised several questions
seeking HUD’s input through guidance,
including whether HUD will expect
PHAs to complete a household
recertification if the family loses one of
its members; procedures a PHA should
follow if, as a result of termination, a
family becomes over-housed; and
whether a PHA may wait until the next
recertification to determine a new
standard payment amount if the family
loses one of its members due to a
termination under VAWA 2005. The
commenter encouraged HUD to issue
guidance on how to handle the loss of
a family member under the VAWA 2005
provisions.
HUD Response: HUD is developing
guidance on this and other issues. Until
such guidance is issued, PHAs should
continue to follow existing regulations
and the written PHA policies in place
for managing moves, terminations, and
changes in family size due to
implementation of VAWA 2005.
E. Enforcement and Oversight
Comment: Guidelines needed for
VAWA enforcement and oversight. Two
commenters offered guidelines for the
enforcement of VAWA 2005 protections,
including delegations of authority to
HUD’s Office of Fair Housing and Equal
Opportunity (FHEO) to receive and
investigate complaints, and the holding
of informal hearings. Another
commenter stated that explicit
guidelines for enforcement of VAWA
2005 provisions should be established.
HUD Response: HUD appreciates the
interest in ensuring the effective
enforcement of VAWA 2005, but HUD
has the requisite authority to enforce the
VAWA 2005 protections.
Comment: Guidelines needed for the
content of notices pertaining to VAWA
rights and obligations. Commenters
stated that HUD’s interim rule, like
VAWA 2005, requires that housing
providers give notice to tenants of rights
under VAWA 2005, but that HUD’s rule
fails to instruct PHAs, owners, or
management agents on compliance with
the notice requirement. The commenters
stated that victims of domestic violence
cannot ask for protections they do not
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know about. The commenters stated that
HUD’s final rule must not only require
notice, but must explain how to give
notice. Commenters asked HUD, in
elaborating on this statutory
requirement, to clarify the frequency of
notifications and specify how often
residents and landlords be notified of
their rights and obligations. One
commenter stated that any guidance
HUD provides on this issue should
include guidelines for making notices
accessible to tenants with disabilities
and to those with limited English
proficiency. Another commenter added
that consistency is important and that
HUD should provide a standard
notification to be sent to all parties
rather than ask PHAs, owners, or
management agents to interpret the
requirements. In contrast to these
comments, one commenter stated that
HUD’s restraint in elaborating on this
statutory requirement is appropriate
because PHAs and other housing
providers have procedures in place to
notify applicants and residents of
regulatory changes.
HUD Response: HUD agrees with the
commenters that consistency is
important on this issue. While HUD
does not want to limit any flexibility
that housing providers have with
respect to this issue, HUD believes this
is an area in which further guidance
from HUD, outlining the core content of
the notice, among other things, would
be helpful to housing providers and
ensure their compliance with this
notification requirement. Providers
must also ensure that various notices
and other communications comply with
the applicable requirements of 24 CFR
8.6 with regard to persons with
disabilities, and provide meaningful
access to persons with limited English
Proficiency; see Executive Order 13166,
‘‘Improving Access to Services for
Persons with Limited English
Proficiency (LEP)’’ and HUD’s Final
Guidance to Federal Financial
Assistance Recipients Regarding Title VI
Prohibition Against National Origin
Discrimination Affecting Limited
English Proficient Persons (72 FR 2732).
HUD notes that PIH Notice 2006–42
suggested that PHAs make the
certification form available to all eligible
families at the time of admission. Also,
in the event of a termination or start of
an eviction proceeding, PHAs may
enclose the form with the appropriate
notice and direct the family to complete,
sign, and return the form (if applicable)
by a specified date. PHAs could also
include language discussing the VAWA
protections in the termination/eviction
notice and request that a tenant come
into the office to pick up the form, or
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request another means to receive the
form if needed as a reasonable
accommodation for a person with a
disability, if the tenant believes the
VAWA protections apply.
In addition, Notice H 08–07, which
has been extended by Notice H 09–15,
suggests that owners and management
agents of project-based Section 8
properties integrate VAWA policies and
protections into their Tenant Selection
Plans and/or House Rules. This notice
also encourages owners and
management agents to establish policies
that support or assist affected families
and prevent the loss of HUD-assisted
housing as a consequence of domestic
violence, dating violence, or stalking.
This notice suggests that owners and
management agents make the
certification form available to all eligible
families at the time of admission, and/
or they may enclose the certification in
the appropriate notice to the family in
the event of a termination or start of an
eviction. Finally, this notice requires
owners and management agents to
attach the HUD-approved Lease
Addendum, form HUD–91067, which
includes the VAWA provisions, to each
existing or new lease.
Comment: Compliance with VAWA
should be included in the annual, 5year, and consolidated plan. One
commenter asked if PHAs are required
to offer the activities, services, or
programs described in the new annual
plan requirements for PHAs. Another
commenter asked if PHAs have any
affirmative obligations to victims of
domestic violence under VAWA 2005.
One commenter stated support for how
HUD’s rule appears to bring the PHA
annual and 5-year plan requirements
into conformance with VAWA 2005,
while not imposing any additional
requirements. Two commenters stated
that the provision for inclusion of
VAWA 2005 implementation and all
related activities in the annual, 5-year,
and consolidated plans should be
explicit.
HUD Response: HUD is currently
reviewing PHA planning requirements
and will take these issues into
consideration in the context of that
review.
V. Findings and Certifications
Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) reviewed this proposed rule
under Executive Order 12866 (entitled
‘‘Regulatory Planning and Review’’). A
determination was made that this
proposed rule is a ‘‘significant regulatory
action,’’ as defined in section 3(f) of the
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Order (although not economically
significant, as provided in section 3(f)(1)
of the Order). The docket file is
available for public inspection in the
Regulations Division, Office of General
Counsel, Department of Housing and
Urban Development, 451 7th Street,
SW., Room 10276 Washington, DC
20410–0500. Due to security measures
at the HUD Headquarters building,
please schedule an appointment to
review the docket file by calling the
Regulation 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 at 800–877–
8339.
Paperwork Reduction Act
The information collection
requirements contained in 24 CFR part
5, subpart L that are applicable to PHAs
have been approved by OMB in
accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520) and assigned OMB Control
Number 2577–0249. The information
collection requirements contained in 24
CFR part 5, subpart L that are applicable
to owners and management agents have
been approved by OMB in accordance
with the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3520) and
assigned OMB Control Number 2502–
0204. 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 control number.
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Impact on Small Entities
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) 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 rule will not have a significant
economic impact on a substantial
number of small entities. This final rule,
which reaffirms and makes minor
changes to the November 28, 2008,
interim rule, applies to PHAs, owners,
and management agents. This VAWA
rulemaking has been limited to
amending HUD’s regulations, by
incorporating statutory requirements
that are already applicable to PHAs,
owners, and management agents, due to
their being self-implementing statutory
provisions. Accordingly, this rule will
not have a significant economic effect
on a substantial number of small
entities.
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Environmental Impact
This rule involves a policy document
that, with the exception of the
amendments to 24 CFR part 903, sets
out nondiscrimination standards. The
amendments to 24 CFR part 903 do not
direct, provide for assistance or loan
and mortgage insurance for, or
otherwise govern or regulate, real
property acquisition, disposition,
leasing, 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)(3) and (1),
respectively, this rule is categorically
excluded from environmental review
under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132, Federalism
Section 6(c) of Executive Order 13132
(entitled ‘‘Federalism’’) requires an
agency that is publishing a regulation
that has federalism implications and
that preempts state law to follow certain
procedures. Regulations that have
federalism implications, according to
section 1(a) of the Order, are those that
have ‘‘substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.’’
This final rule, which reaffirms the
November 28, 2008, interim rule and
makes only minor changes to the
interim rule, incorporates the statutory
language that provides for bifurcation of
leases to protect victims of domestic
violence, dating violence, or stalking,
notwithstanding state law. In addition,
the final rule, consistent with statute,
provides that incidents of, or criminal
acts connected to domestic violence,
dating violence, or stalking cannot be
the basis for termination of assistance or
tenancy.
As stated in the interim rule, HUD
finds that this statutory provision has
only minor effects on the states and,
therefore, this rule, by incorporating this
provision in HUD’s regulations, does
not meet the definition of rules with
‘‘federalism implications.’’ First, any
preemptive effect of this provision is
limited to Section 8 and public housing,
which together represent only a small
portion of the total housing market.
Second, the possible effect appears
limited to only those eviction actions
where the tenant to be evicted has a
valid claim of protection as a victim of
domestic violence, dating violence, or
stalking, or where lease bifurcation is
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66257
sought because of domestic violence,
dating violence, or stalking. The rule
does not, for example, involve the
preemption of a whole field of state law
as is the case in other situations in
which preemption occurs, but rather
merely requires a small adjustment to
any existing laws that do not already
offer greater protection to victims of
domestic violence, dating violence, or
stalking. Therefore, HUD has
determined that this rule, by directly
incorporating the statutory provision on
bifurcation of lease, will not have
substantial direct effects on states or
their political subdivisions, on the
relationship between the Federal
Government and the states, or on the
distribution of power and
responsibilities among the various
levels of government, and would not
impose substantial direct compliance
costs on state and local governments or
preempt state law within the meaning of
the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 U.S.C.
1531–1538) establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on state, local,
and tribal governments, and the private
sector. This interim rule does not
impose any Federal mandates on any
state, local, or tribal government, or the
private sector within the meaning of
UMRA.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers applicable to the
programs that would be affected by this
rule are: 14.195, 14.850, 14.856, and
14.871.
List of Subjects
24 CFR Part 5
Administrative practice and
procedure, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs—
housing and community development,
Grant programs—Indians, Individuals
with disabilities, Loan programs—
housing and community development,
Low and moderate income housing,
Mortgage insurance, Pets, Public
housing, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 91
Grant programs—housing and
community development, Low- and
moderate-income housing, Reporting
and recordkeeping requirements.
24 CFR Part 880
Grant programs—housing and
community development, Loan
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programs—housing and community
development, Low and moderate
income housing, Rent subsidies.
Accordingly, for the reasons stated in
the preamble, HUD amends 24 CFR
parts 5, 880, 882, 883, 884, 886, 891,
903, 960, 966, 982, and 983, as follows.
■
24 CFR Part 882
PART 5—GENERAL HUD PROGRAM
REQUIREMENTS; WAIVERS
Grant programs—housing and
community development, Housing,
Homeless, Lead poisoning,
Manufactured homes, Rent subsidies,
Reporting and recordkeeping
requirements.
1. The authority citation for part 5 is
revised to read as follows:
■
24 CFR Part 883
Grant programs—housing and
community development, Rent
subsidies, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 1437a, 1437c, 1437d,
1437f, 1437n, 3535(d), Sec. 327, Pub. L. 109–
115, 119 Stat. 2936, and Sec. 607, Pub. L.
109–162, 119 Stat. 3051.
■
24 CFR Part 884
Grant programs—housing and
community development, Rent
subsidies, Reporting and recordkeeping
requirements, rural areas.
24 CFR Part 886
Grant programs—housing and
community development, Lead
poisoning, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 891
Aged, Capital advance programs, Civil
rights, Grant programs—housing and
community development, Individuals
with disabilities, Loan programs—
housing and community development,
Low- and moderate-income housing,
Mental health programs, Rent subsidies,
Reporting and recordkeeping
requirements.
24 CFR Part 903
Grant programs, Civil rights, Public
housing agency plans, Public housing.
24 CFR Part 960
Aged, Grant programs—housing and
community development, Individuals
with disabilities, Pets, Public housing.
24 CFR Part 966
Grant programs—housing and
community development, public
housing, Reporting and recordkeeping
requirements.
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24 CFR Part 982
Grant programs—housing and
community development, Housing,
Low- and moderate-income housing,
Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 983
Grant programs—housing and
community development, Housing,
Low- and moderate-income housing,
Rent subsidies, Reporting and
recordkeeping requirements.
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2. Revise subpart L to read as follows:
Subpart L—Protection for Victims of
Domestic Violence, Dating Violence, or
Stalking in Public and Section 8 Housing
Sec.
5.2001 Applicability.
5.2003 Definitions.
5.2005 VAWA protections.
5.2007 Documenting the occurrence of
domestic violence, dating violence, or
stalking.
5.2009 Remedies available to victims of
domestic violence, dating violence, or
stalking in HUD-assisted housing.
5.20011 Effect on other laws.
Subpart L—Protection for Victims of
Domestic Violence, Dating Violence, or
Stalking in Public and Section 8
Housing
§ 5.2001
Applicability.
This subpart addresses the protections
for victims of domestic violence, dating
violence, or stalking residing in public
and Section 8 housing, as provided in
the 1937 Act, as amended by the
Violence Against Women Act (VAWA)
(42 U.S.C. 1437f and 42 U.S.C. 1437d).
This subpart applies to the Housing
Choice Voucher program under 24 CFR
part 982, the project-based voucher and
certificate programs under 24 CFR part
983, the public housing admission and
occupancy requirements under 24 CFR
part 960, and renewed funding or leases
of the Section 8 project-based program
under 24 CFR parts 880, 882, 883, 884,
886, and 891.
§ 5.2003
Definitions.
The definitions of 1937 Act, PHA,
HUD, household, responsible entity, and
other person under the tenant’s control
are defined in subpart A of this part. As
used in this subpart L:
Bifurcate means, with respect to a
public housing or a Section 8 lease, to
divide a lease as a matter of law such
that certain tenants can be evicted or
removed while the remaining family
members’ lease and occupancy rights
are allowed to remain intact.
Dating violence means violence
committed by a person:
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(1) Who is or has been in a social
relationship of a romantic or intimate
nature with the victim; and
(2) Where the existence of such a
relationship shall be determined based
on a consideration of the following
factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction
between the persons involved in the
relationship.
Domestic violence includes felony or
misdemeanor crimes of violence
committed by a current or former
spouse of the victim, by a person with
whom the victim shares a child in
common, by a person who is
cohabitating with or has cohabitated
with the victim as a spouse, by a person
similarly situated to a spouse of the
victim under the domestic or family
violence laws of the jurisdiction
receiving grant monies, or by any other
person against an adult or youth victim
who is protected from that person’s acts
under the domestic or family violence
laws of the jurisdiction.
Immediate family member means,
with respect to a person:
(1) A spouse, parent, brother, or sister,
or child of that person, or an individual
to whom that person stands in loco
parentis; or
(2) Any other person living in the
household of that person and related to
that person by blood or marriage.
Stalking means:
(1)(i) To follow, pursue, or repeatedly
commit acts with the intent to kill,
injure, harass, or intimidate another
person; or
(ii) To place under surveillance with
the intent to kill, injure, harass, or
intimidate another person; and
(2) In the course of, or as a result of,
such following, pursuit, surveillance, or
repeatedly committed acts, to place a
person in reasonable fear of the death of,
or serious bodily injury to, or to cause
substantial emotional harm to
(i) That person,
(ii) A member of the immediate family
of that person, or
(iii) The spouse or intimate partner of
that person.
VAWA means the Violence Against
Women and Department of Justice
Reauthorization Act of 2005 (Pub. L.
109–162, approved August 28, 2006), as
amended by the U.S. Housing Act of
1937 (42 U.S.C. 1437d and 42 U.S.
1437f).
§ 5.2005
VAWA protections.
(a) Notice of VAWA protections. (1)
PHAs must provide notice to public
housing and Section 8 tenants of their
rights under VAWA and this subpart,
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including the right to confidentiality
and the exceptions; and
(2) PHAs must provide notice to
owners and management agents of
assisted housing, of their rights and
obligations under VAWA and this
subpart; and
(3) Owners and management agents of
assisted housing administering an Office
of Housing project-based Section 8
program must provide notice to Section
8 tenants of their rights and obligations
under VAWA and this subpart.
(4) The HUD-required lease, lease
addendum, or tenancy addendum, as
applicable, must include a description
of specific protections afforded to the
victims of domestic violence, dating
violence, or stalking, as provided in this
subpart.
(b) Applicants. Admission to the
program shall not be denied on the basis
that the applicant is or has been a victim
of domestic violence, dating violence, or
stalking, if the applicant otherwise
qualifies for assistance or admission.
(c) Tenants—(1) Domestic violence,
dating violence, or stalking. An incident
or incidents of actual or threatened
domestic violence, dating violence, or
stalking will not be construed as a
serious or repeated lease violation by
the victim or threatened victim of the
domestic violence, dating violence, or
stalking, or as good cause to terminate
the tenancy of, occupancy rights of, or
assistance to the victim.
(2) Criminal activity related to
domestic violence, dating violence, or
stalking. Criminal activity directly
related to domestic violence, dating
violence, or stalking, engaged in by a
member of a tenant’s household or any
guest or other person under the tenant’s
control, shall not be cause for
termination of tenancy of, occupancy
rights of, or assistance to the victim, if
the tenant or immediate family member
of the tenant is the victim.
(d) Limitations of VAWA protections.
(1) Nothing in this section limits the
authority of the PHA, owner, or
management agent to evict a tenant or
terminate assistance for a lease violation
unrelated to domestic violence, dating
violence, or stalking, provided that the
PHA, owner, or management agent does
not subject such a tenant to a more
demanding standard than other tenants
in making the determination whether to
evict, or to terminate assistance or
occupancy rights;
(2) Nothing in this section may be
construed to limit the authority of a
PHA, owner, or management agent to
evict or terminate assistance to any
tenant or lawful occupant if the PHA,
owner, or management agent can
demonstrate an actual and imminent
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threat to other tenants or those
employed at or providing service to the
public housing or Section 8 assisted
property if that tenant or lawful
occupant is not terminated from
assistance. In this context, words,
gestures, actions, or other indicators
will be considered an ‘‘actual imminent
threat’’ if they meet the standards
provided in paragraph (e) of this
section.
(3) Any eviction or termination of
assistance, as provided in paragraph
(d)(3) of this section, should be utilized
by a PHA, owner, or management agent
only when there are no other actions
that could be taken to reduce or
eliminate the threat, including, but not
limited to, transferring the victim to a
different unit, barring the perpetrator
from the property, contacting law
enforcement to increase police presence
or develop other plans to keep the
property safe, or seeking other legal
remedies to prevent the perpetrator from
acting on a threat. Restrictions
predicated on public safety cannot be
based on stereotypes, but must be
tailored to particularized concerns about
individual residents.
(e) Actual and imminent threat. An
actual and imminent threat consists of
a physical danger that is real, would
occur within an immediate time frame,
and could result in death or serious
bodily harm. In determining whether an
individual would pose an actual an
imminent threat, the factors to be
considered include: The duration of the
risk, the nature and severity of the
potential harm, the likelihood that the
potential harm will occur, and the
length of time before the potential harm
would occur.
§ 5.2007 Documenting the occurrence of
domestic violence, dating violence, or
stalking.
(a) Request for documentation. A
PHA, owner, or management agent
presented with a claim for continued or
initial tenancy or assistance based on
status as a victim of domestic violence,
dating violence, stalking, or criminal
activity related to domestic violence,
dating violence, or stalking may request
that the individual making the claim
document the abuse. The request for
documentation must be in writing. The
PHA, owner, or management agent may
require submission of documentation
within 14 business days after the date
that the individual received the request
for documentation. However, the PHA,
owner, or management agent may
extend this time period at its discretion.
(b) Forms of documentation. The
documentation required under this
section:
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66259
(1) May consist of a HUD-approved
certification form indicating that the
individual is a victim of domestic
violence, dating violence, or stalking,
and that the incident or incidents in
question are bona fide incidents of such
actual or threatened abuse. Such
certification must include the name of
the perpetrator, and may be based solely
on the personal signed attestation of the
victim; or
(2) May consist of a Federal, State,
tribal, territorial, or local police report
or court record; or
(3) May consist of documentation
signed by an employee, agent, or
volunteer of a victim service provider,
an attorney, or medical professional,
from whom the victim has sought
assistance in addressing domestic
violence, dating violence, or stalking, or
the effects of abuse, in which the
professional attests under penalty of
perjury under 28 U.S.C. 1746 to the
professional’s belief that the incident or
incidents in question are bona fide
incidents of abuse, and the victim of
domestic violence, dating violence, or
stalking has signed or attested to the
documentation; and
(4) Shall be kept confidential by the
PHA, owner, or management agent. The
PHA, owner, or management agent shall
not:
(i) Enter the information contained in
the documentation into any shared
database;
(ii) Allow employees of the PHA,
owner, or management agent, or those
within their employ (e.g., contractors) to
have access to such information unless
explicitly authorized by the PHA,
owner, or management agent for reasons
that specifically call for these employees
or those within their employ to have
access to this information; and
(iii) Disclose this information to any
other entity or individual, except to the
extent that disclosure is:
(A) Requested or consented to by the
individual making the documentation,
in writing;
(B) Required for use in an eviction
proceeding, or
(C) Otherwise required by applicable
law.
(c) Failure to provide documentation.
In order to deny relief for protection
under VAWA, a PHA, owner, or
management agent must provide the
individual with a written request for
documentation of the abuse. If the
individual fails to provide the
documentation within 14 business days
from the date of receipt of the PHA’s,
owner’s, or management agent’s written
request, or such longer time as the PHA,
owner, or management agent at their
discretion may allow, VAWA
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protections do not limit the authority of
the PHA, owner, or management agent
to evict or terminate assistance of the
tenant or a family member for violations
of the lease or family obligations that
otherwise would constitute good cause
to evict or grounds for termination. The
14-business day window for submission
of documentation does not begin until
the individual receives the written
request. The PHA, owner, or
management agency has discretionary
authority to extend the statutory 14-day
period.
(d) Discretion to provide relief. At its
discretion, a PHA, owner, or
management agent may provide benefits
to an individual based solely on the
individual’s verbal statement or other
corroborating evidence. A PHA’s,
owner’s, or management agent’s
compliance with this section, whether
based solely on the individual’s verbal
statements or other corroborating
evidence, shall not alone be sufficient to
constitute evidence of an unreasonable
act or omission by a PHA, PHA
employee, owner, or employee or agent
of the owner. Nothing in this
subparagraph shall be construed to limit
liability for failure to comply with the
requirements of 24 CFR part 5.
(e) Response to conflicting
certification. In cases where the PHA,
owner, or management agent receives
conflicting certification documents from
two or more members of a household,
each claiming to be a victim and naming
one or more of the other petitioning
household members as the perpetrator,
a PHA, owner, or management agent
may determine which is the true victim
by requiring third-party documentation
as described in this section and in
accordance with any HUD guidance as
to how such determinations will be
made. A PHA, owner, or management
agent shall honor any court orders
addressing rights of access or control of
the property, including civil protection
orders issued to protect the victim and
issued to address the distribution or
possession of property among the
household.
srobinson on DSKHWCL6B1PROD with RULES3
§ 5.2009 Remedies available to victims of
domestic violence, dating violence, or
stalking in HUD-assisted housing.
(a) Lease bifurcation. Notwithstanding
any Federal, State, or local law to the
contrary, a PHA, owner, or management
agent may bifurcate a lease, or remove
a household member from a lease
without regard to whether the
household member is a signatory to the
lease, in order to evict, remove,
terminate occupancy rights, or terminate
assistance to any tenant or lawful
occupant who engages in criminal acts
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of physical violence against family
members or others, without evicting,
removing, terminating assistance to, or
otherwise penalizing the victim of such
violence who is a tenant or lawful
occupant. Such eviction, removal,
termination of occupancy rights, or
termination of assistance shall be
effected in accordance with the
procedures prescribed by Federal, State,
or local law for termination of assistance
or leases under the relevant public
housing, Section 8 Housing Choice
Voucher, and Section 8 project-based
programs.
(b) Court orders. Nothing in this
subpart may be construed to limit the
authority of a PHA, owner, or
management agent, when notified, to
honor court orders addressing rights of
access to or control of the property,
including civil protection orders issued
to protect the victim and to address the
distribution of property among
household members in a case where a
family breaks up.
§ 5.2011 Effect on other laws.
Nothing in this subpart shall be
construed to supersede any provision of
any Federal, State, or local law that
provides greater protection than this
section for victims of domestic violence,
dating violence, or stalking.
■
PART 91—CONSOLIDATED
SUBMISSIONS FOR COMMUNITY
PLANNING AND DEVELOPMENT
PROGRAMS
*
3. The authority citation for part 91
continues to read as follows:
■
Authority: 42 U.S.C. 3535(d), 3601–3619,
5301–5315, 11331–11388, 12701–12711,
12741–12756, and 12901–12912.
4. Amend § 91.205 to revise the first
sentence of paragraph (b)(1) to read as
follows:
■
§ 91.205 Housing and homeless needs
assessment.
*
*
*
*
*
(b) * * *
(1) The plan shall estimate the
number and type of families in need of
housing assistance for extremely lowincome, low-income, moderate-income,
and middle-income families, for renters
and owners, for elderly persons, for
single persons, for large families, for
public housing residents, for families on
the public housing and section 8 tenantbased waiting lists, for persons with
HIV/AIDS and their families, for victims
of domestic violence, dating violence,
sexual assault, and stalking, and for
persons with disabilities. * * *
*
*
*
*
*
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5. Amend § 91.305 to revise the first
sentence of paragraph (b)(1) to read as
follows:
§ 91.305 Housing and homeless needs
assessment.
*
*
*
*
*
(b) * * *
(1) The plan shall estimate the
number and type of families in need of
housing assistance for extremely lowincome, low-income, moderate-income,
and middle-income families, for renters
and owners, for elderly persons, for
single persons, for large families, for
persons with HIV/AIDS and their
families, for victims of domestic
violence, dating violence, sexual
assault, and stalking, and for persons
with disabilities. * * *
*
*
*
*
*
PART 880–SECTION 8 HOUSING
ASSISTANCE PAYMENT PROGRAM
FOR NEW CONSTRUCTION
6. 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.
7. Amend § 880.504 to revise
paragraph (f) to read as follows:
■
§ 880.504
Leasing to eligible families.
*
*
*
*
(f) Subpart L of 24 CFR part 5 applies
to selection of tenants and occupancy
requirements in cases where there is
involved or claimed to be involved
incidents of, or criminal activity related
to, domestic violence, dating violence,
or stalking.
8. Amend § 880.607 to revise
paragraph (c)(5) to read as follows:
■
§ 880.607 Termination of tenancy and
modification of lease.
*
*
*
*
*
(c) * * *
(5) In actions or potential actions to
terminate tenancy, the Owner shall
follow 24 CFR part 5, subpart L, in all
cases where domestic violence, dating
violence, stalking, or criminal activity
directly related to domestic violence,
dating violence, or stalking is involved
or claimed to be involved.
*
*
*
*
*
PART 882—SECTION 8 MODERATE
REHABILITATION PROGRAMS
9. The authority citation for part 882
continues to read as follows:
■
Authority: 42 U.S.C. 1437f and 3535d.
10. Revise § 882.407 to read as
follows:
■
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§ 882.407
Other Federal requirements.
The moderate rehabilitation program
is subject to applicable Federal
requirements in 24 CFR 5.105 and to the
requirements for protection for victims
of domestic violence, dating violence, or
stalking in 24 CFR part 5, subpart L.
16. Amend § 884.216 to revise
paragraph (c) to read as follows:
■
Lease and termination of
*
*
*
*
*
(g) In actions or potential actions to
terminate tenancy, the Owner shall
follow 24 CFR part 5, subpart L, in all
cases where domestic violence, dating
violence, or stalking, or criminal activity
directly related to domestic violence,
dating violence, or stalking is involved
or claimed to be involved.
12. Amend § 882.514 by removing the
third sentence of paragraph (c) and
adding two sentences in its place to read
as follows:
■
§ 882.514
*
*
*
*
(c) Owner selection of families. * * *
Since the Owner is responsible for
tenant selection, the Owner may refuse
any family, provided that the Owner
does not unlawfully discriminate.
However, the Owner must not deny
program assistance or admission to an
applicant based on the fact that the
applicant is or has been a victim of
domestic violence, dating violence, or
stalking, if the applicant otherwise
qualifies for assistance or admission.
*
*
*
*
*
PART 883—SECTION 8 HOUSING
ASSISTANCE PAYMENTS
PROGRAMS—STATE HOUSING
AGENCIES
14. Revise § 883.605 to read as
follows:
■
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17. Amend § 884.223 to revise
paragraph (f) to read as follows:
■
§ 884.223
Leasing to eligible families.
*
*
*
*
(f) Subpart L of 24 CFR part 5 applies
to selection of tenants and occupancy
requirements in cases where there is
involved or claimed to be involved
incidents of, or criminal activity related
to, domestic violence, dating violence,
or stalking.
PART 886—SECTION 8 HOUSING
ASSISTANCE PAYMENTS
PROGRAM—SPECIAL ALLOCATIONS
18. The authority citation for part 886
continues to read as follows:
■
Authority: 42 U.S.C. 1437a, 1437c, 1437f,
3535(d), and 13611–13619.
§ 886.128
Authority: 42 U.S.C. 1437a, 1437c, 1437f,
3535(d), and 13611–13619.
Leasing to eligible families.
The provisions of 24 CFR 880.504,
including subpart L of 24 CFR part 5
pertaining to the selection of tenants
and occupancy requirements in cases
where there is involved or claimed to be
involved incidents of, or criminal
activity related to, domestic violence,
dating violence, or stalking apply,
subject to the requirements of § 883.105.
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*
*
*
*
(c) In actions or potential actions to
terminate tenancy, the Owner shall
follow 24 CFR part 5, subpart L in all
cases where domestic violence, dating
violence, stalking, or criminal activity
directly related to domestic violence,
dating violence, or stalking is involved
or claimed to be involved.
19. Revise § 886.128 to read as
follows:
13. The authority citation for part 883
continues to read as follows:
18:34 Oct 26, 2010
Termination of tenancy.
*
■
■
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§ 884.216
*
Family participation.
*
§ 883.605
15. The authority citation for part 884
continues to read as follows:
■
Authority: 42 U.S.C. 1437a, 1437c, 1437f,
3535(d), and 13611–13619.
11. Amend § 882.511 to revise
paragraph (g) to read as follows:
■
§ 882.511
tenancy.
PART 884—SECTION 8 HOUSING
ASSISTANCE PAYMENTS PROGRAM,
NEW CONSTRUCTION SET-ASIDE FOR
SECTION 515 RURAL RENTAL
HOUSING PROJECTS
Termination of tenancy.
Part 247 of this title (24 CFR part 247)
applies to the termination of tenancy
and eviction of a family assisted under
this subpart. For cases involving
termination of tenancy because of a
failure to establish citizenship or
eligible immigration status, the
procedures of 24 CFR parts 247 and 5
shall apply. For cases involving, or
allegedly involving, domestic violence,
dating violence, stalking, or criminal
activity directly relating to such
violence, the provisions of 24 CFR part
5, subpart L, apply. The provisions of 24
CFR part 5, subpart E, of this title
concerning certain assistance for mixed
families (families whose members
include those with eligible immigration
status, and those without eligible
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66261
immigration status) in lieu of
termination of assistance, and
concerning deferral of termination of
assistance also shall apply.
20. Revise § 886.132 to read as
follows:
■
§ 886.132
Tenant selection.
Subpart F of 24 CFR part 5 governs
selection of tenants and occupancy
requirements applicable under this
subpart A of part 886. Subpart L of 24
CFR part 5 applies to selection of
tenants and occupancy requirements in
cases where there is involved or claimed
to be involved incidents of, or criminal
activity related to, domestic violence,
dating violence, or stalking.
21. Revise § 886.328 to read as
follows:
■
§ 886.328
Termination of tenancy.
Part 247 of this title (24 CFR part 247)
applies to the termination of tenancy
and eviction of a family assisted under
this subpart. For cases involving
termination of tenancy because of a
failure to establish citizenship or
eligible immigration status, the
procedures of 24 CFR part 247 and 24
CFR part 5 shall apply. For cases
involving, or allegedly involving,
domestic violence, dating violence,
stalking, or criminal activity directly
relating to such violence, the provisions
of 24 CFR part 5, subpart L, apply. The
provisions of 24 CFR part 5, subpart E,
concerning certain assistance for mixed
families (families whose members
include those with eligible immigration
status, and those without eligible
immigration status) in lieu of
termination of assistance, and
concerning deferral of termination of
assistance, also shall apply.
22. Amend § 886.329 to revise
paragraph (f) to read as follows:
■
§ 886.329
Leasing to eligible families.
*
*
*
*
*
(f) Subpart L of 24 CFR part 5 applies
to selection of tenants and occupancy
requirements in cases where there is
involved or claimed to be involved
incidents of, or criminal activity related
to, domestic violence, dating violence,
or stalking.
PART 891—SUPPORTIVE HOUSING
FOR THE ELDERLY AND PERSONS
WITH DISABILITIES
23. The authority citation for part 891
continues to read as follows:
■
Authority: 12 U.S.C. 1701q; 42 U.S.C.
1437f, 3535(d), and 8013.
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24. Amend § 891.575 to revise
paragraph (f) to read as follows:
■
28. Amend § 903.6 to revise paragraph
(a)(3) to read as follows:
■
§ 891.575
§ 903.6 What information must a PHA
provide in the 5–Year Plan?
§ 960.200
■
Leasing to eligible families.
*
*
*
*
*
(f) Subpart L of 24 CFR part 5 applies
to selection of tenants and occupancy
requirements in cases where there is
involved or claimed to be involved
incidents of, or criminal activity related
to, domestic violence, dating violence,
or stalking.
25. Revise § 891.610(c) to read as
follows:
■
§ 891.610
tenants.
29. Amend § 903.7 to revise paragraph
(m)(5) to read as follows:
■
Selection and admission of
*
*
*
*
*
(c) Determination of eligibility and
selection of tenants. The Borrower is
responsible for determining whether
applicants are eligible for admission and
for selection of families. To be eligible
for admission, an applicant must be an
elderly or handicapped family as
defined in § 891.505; meet any project
occupancy requirements approved by
HUD; meet the disclosure and
verification requirement for Social
Security Numbers and sign and submit
consent forms for obtaining of wage and
claim information from State Wage
Information Collection Agencies, as
provided by 24 CFR part 5, subpart B;
and, if applying for an assisted unit, be
eligible for admission under subpart F
of 24 CFR part 5, which governs
selection of tenants and occupancy
requirements. For cases involving, or
allegedly involving, domestic violence,
dating violence, stalking, or criminal
activity directly relating to such
violence, the provisions of 24 CFR part
5, subpart L, apply.
*
*
*
*
*
26. Amend § 891.630 to revise
paragraph (c) to read as follows:
■
*
*
*
*
*
(c) In actions or potential actions to
terminate tenancy, the Owner shall
follow 24 CFR part 5, subpart L, in all
cases where domestic violence, dating
violence, stalking, or criminal activity
directly related to domestic violence,
dating violence, or stalking is involved
or claimed to be involved.
PART 903—PUBLIC HOUSING
AGENCY PLANS
27. The authority citation for part 903
continues to read as follows:
■
Authority: 42 U.S.C. 1437c; 42 U.S.C.
3535(d).
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§ 903.7 What information must a PHA
provide in an annual plan?
*
*
*
*
*
(m) * * *
(5) A statement of any domestic
violence, dating violence, sexual
assault, and stalking prevention
programs:
(i) A description of any activities,
services, or programs provided or
offered by an agency, either directly or
in partnership with other service
providers, to child or adult victims of
domestic violence, dating violence,
sexual assault, or stalking;
(ii) Any activities, services, or
programs provided or offered by a PHA
that help child and adult victims of
domestic violence, dating violence,
sexual assault, or stalking to obtain or
maintain housing; and
(iii) Any activities, services, or
programs provided or offered by a PHA
to prevent domestic violence, dating
violence, sexual assault, or stalking, or
to enhance victim safety in assisted
families.
*
*
*
*
*
PART 960—ADMISSION TO, AND
OCCUPANCY OF, PUBLIC HOUSING
30. The authority citation for part 960
continues to read as follows:
■
§ 891.630 Denial of admission, termination
of tenancy, and modification of lease.
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(a) * * *
(3) A statement about goals, activities,
objectives, policies, or programs that
will enable a PHA to serve the needs of
child and adult victims of domestic
violence, dating violence, sexual
assault, or stalking.
*
*
*
*
*
Authority: 42 U.S.C. 1437a, 1437c, 1437d,
1437n, 1437z–3, and 3535(d).
31. Amend § 960.103 to revise the
section heading and paragraph (d) to
read as follows:
■
§ 960.103 Equal opportunity requirements
and protection for victims of domestic
violence, dating violence, or stalking.
*
*
*
*
*
(d) Protection for victims of domestic
violence, dating violence, or stalking.
The PHA must apply 24 CFR part 5,
subpart L in all applicable cases where
there is involved or claimed to be
involved incidents of, or criminal
activity related to, domestic violence,
dating violence, or stalking.
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32. Amend § 960.200 to revise
paragraph (b)(8) to read as follows:
Purpose.
*
*
*
*
*
(b) * * *
(8) Protection for victims of domestic
violence, dating violence, or stalking, 24
CFR part 5, subpart L.
33. Amend § 960.203 to revise
paragraph (c)(4) to read as follows:
■
§ 960.203 Standards for PHA tenant
selection criteria.
*
*
*
*
*
(c) * * *
(4) PHA tenant selection criteria are
subject to 24 CFR part 5, subpart L,
protections for victims of domestic
violence, dating violence, or stalking.
*
*
*
*
*
PART 966—PUBLIC HOUSING LEASE
AND GRIEVANCE PROCEDURE
34. The authority citation for part 966
continues to read as follows:
■
Authority: 42 U.S.C. 1437d and 3535(d).
35. In § 966.4, revise paragraph (a)(1)
and paragraph (e) to read as follows:
■
§ 966.4
Lease requirements.
*
*
*
*
*
(a) Parties, dwelling unit and term. (1)
The lease shall state:
(i) The names of the PHA and the
tenant;
(ii) The unit rented (address,
apartment number, and any other
information needed to identify the
dwelling unit);
(iii) The term of the lease (lease term
and renewal in accordance with
paragraph (a)(2) of this section);
(iv) A statement of what utilities,
services, and equipment are to be
supplied by the PHA without additional
cost, and what utilities and appliances
are to be paid for by the tenant;
(v) The composition of the household
as approved by the PHA (family
members and any PHA-approved live-in
aide). The family must promptly inform
the PHA of the birth, adoption, or courtawarded custody of a child. The family
must request PHA approval to add any
other family member as an occupant of
the unit;
(vi) HUD’s regulations in 24 CFR part
5, subpart L, apply, if a current or future
tenant is or becomes a victim of
domestic violence, dating violence, or
stalking, as provided in 24 CFR part 5,
subpart L.* * *
(e) The PHA’s obligations. The lease
shall set forth the PHA’s obligations
under the lease, which shall include the
following:
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(1) To maintain the dwelling unit and
the project in decent, safe, and sanitary
condition;
(2) To comply with requirements of
applicable building codes, housing
codes, and HUD regulations materially
affecting health and safety;
(3) To make necessary repairs to the
dwelling unit;
(4) To keep project buildings,
facilities, and common areas, not
otherwise assigned to the tenant for
maintenance and upkeep, in a clean and
safe condition;
(5) To maintain in good and safe
working order and condition electrical,
plumbing, sanitary, heating, ventilating,
and other facilities and appliances,
including elevators, supplied or
required to be supplied by the PHA;
(6) To provide and maintain
appropriate receptacles and facilities
(except containers for the exclusive use
of an individual tenant family) for the
deposit of ashes, garbage, rubbish, and
other waste removed from the dwelling
unit by the tenant in accordance with
paragraph (f)(7) of this section;
(7) To supply running water and
reasonable amounts of hot water and
reasonable amounts of heat at
appropriate times of the year (according
to local custom and usage), except
where the building that includes the
dwelling unit is not required by law to
be equipped for that purpose, or where
heat or hot water is generated by an
installation within the exclusive control
of the tenant and supplied by a direct
utility connection; and
(8)(i) To notify the tenant of the
specific grounds for any proposed
adverse action by the PHA. (Such
adverse action includes, but is not
limited to, a proposed lease termination,
transfer of the tenant to another unit, or
imposition of charges for maintenance
and repair, or for excess consumption of
utilities.)
(ii) When the PHA is required to
afford the tenant the opportunity for a
hearing under the PHA grievance
procedure for a grievance concerning a
proposed adverse action:
(A) The notice of proposed adverse
action shall inform the tenant of the
right to request such hearing. In the case
of a lease termination, a notice of lease
termination, in accordance with
paragraph (l)(3) of this section, shall
constitute adequate notice of proposed
adverse action.
(B) In the case of a proposed adverse
action other than a proposed lease
termination, the PHA shall not take the
proposed action until the time for the
tenant to request a grievance hearing has
expired, and (if a hearing was timely
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requested by the tenant) the grievance
process has been completed.
(9) To consider lease bifurcation, as
provided in 24 CFR 5.2009, in
circumstances involving domestic
violence, dating violence, or stalking
addressed in 24 CFR part 5, subpart L.
*
*
*
*
*
PART 982—SECTION 8 TENANTBASED ASSISTANCE: HOUSING
CHOICE VOUCHER PROGRAM
36. The authority citation for part 982
continues to read as follows:
■
Authority: 42 U.S.C. 1437f and 3535d.
37. Amend § 982.53 to revise the
section heading and paragraph (e) to
read as follows:
■
§ 982.53 Equal opportunity requirements
and protection for victims of domestic
violence, dating violence, or stalking.
*
*
*
*
*
(e) Protection for victims of domestic
violence, dating violence, or stalking.
The PHA must apply 24 CFR part 5,
subpart L, in all applicable cases where
there is involved incidents of, or
criminal activity related to, domestic
violence, dating violence, or stalking.
■ 38. Amend § 982.201 to revise
paragraph (a) to read as follows:
§ 982.201
Eligibility and targeting.
(a) When applicant is eligible: general.
The PHA may admit only eligible
families to the program. To be eligible,
an applicant must be a ‘‘family;’’ must be
income-eligible in accordance with
paragraph (b) of this section and 24 CFR
part 5, subpart F; and must be a citizen
or a noncitizen who has eligible
immigration status as determined in
accordance with 24 CFR part 5, subpart
E. If the applicant is a victim of
domestic violence, dating violence, or
stalking, 24 CFR part 5, subpart L,
applies.
*
*
*
*
*
■ 39. Revise § 982.202(d) to read as
follows:
§ 982.202 How applicants are selected:
General requirements.
*
*
*
*
*
(d) Admission policy. The PHA must
admit applicants for participation in
accordance with HUD regulations and
other requirements, including, but not
limited to, 24 CFR part 5, subpart L,
protection for victims of domestic
violence, dating violence, or stalking,
and with PHA policies stated in the
PHA administrative plan and the PHA
plan. The PHA admission policy must
state the system of admission
preferences that the PHA uses to select
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66263
applicants from the waiting list,
including any residency preference or
other local preference.
*
*
*
*
*
■ 40. Amend § 982.307 to revise
paragraph (b)(4) to read as follows:
§ 982.307
Tenant screening.
*
*
*
*
*
(b) * * *
(4) In cases involving a victim of
domestic violence, dating violence, or
stalking, 24 CFR part 5, subpart L,
applies.
■ 41. Revise § 982.310(h)(4) to read as
follows:
§ 982.310
Owner termination of tenancy.
*
*
*
*
*
(h) * * *
(4) Nondiscrimination limitation and
protection for victims of domestic
violence, dating violence, or stalking.
The owner’s termination of tenancy
actions must be consistent with fair
housing and equal opportunity
provisions of 24 CFR 5.105, and with
the provisions for protection of victims
of domestic violence, dating violence, or
stalking in 24 CFR part 5, subpart L.
■ 42. In § 982.314, revise paragraphs (b)
and (c)(2) to read as follows:
§ 982.314 Move with continued tenantbased assistance.
*
*
*
*
*
(b) When family may move. A family
may move to a new unit if:
(1) The assisted lease for the old unit
has terminated. This includes a
termination because:
(i) The PHA has terminated the HAP
contract for the owner’s breach; or
(ii) The lease has terminated by
mutual agreement of the owner and the
tenant.
(2) The owner has given the tenant a
notice to vacate, or has commenced an
action to evict the tenant, or has
obtained a court judgment or other
process allowing the owner to evict the
tenant.
(3) The tenant has given notice of
lease termination (if the tenant has a
right to terminate the lease on notice to
the owner, for owner breach, or
otherwise).
(4) The family or a member of the
family is or has been the victim of
domestic violence, dating violence, or
stalking, as provided in 24 CFR part 5,
subpart L, and the move is needed to
protect the health or safety of the family
or family member. A PHA may not
terminate assistance if the family, with
or without prior notification to the PHA,
already moved out of a unit in violation
of the lease, if such move occurred to
protect the health or safety of a family
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member who is or has been the victim
of domestic violence, dating violence, or
stalking and who reasonably believed he
or she was imminently threatened by
harm from further violence if he or she
remained in the dwelling unit.
(c) * * *
(2) The PHA may establish:
(i) Policies that prohibit any move by
the family during the initial lease term;
and
(ii) Policies that prohibit more than
one move by the family during any oneyear period.
(iii) The above policies do not apply
when the family or a member of the
family is or has been the victim of
domestic violence, dating violence, or
stalking, as provided in 24 CFR part 5,
subpart L, and the move is needed to
protect the health or safety of the family
or family member.
*
*
*
*
*
■ 43. In § 982.315, redesignate
paragraph (a) as paragraph (a)(1) and
add a new paragraph (a)(2), and revise
paragraph (b) to read as follows:
§ 982.315
Family break-up.
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*
*
*
*
*
(a) * * *
(2) If the family break-up results from
an occurrence of domestic violence,
dating violence, or stalking as provided
in 24 CFR part 5, subpart L, the PHA
must ensure that the victim retains
assistance.
(b) The factors to be considered in
making this decision under the PHA
policy may include:
(1) Whether the assistance should
remain with family members remaining
in the original assisted unit.
(2) The interest of minor children or
of ill, elderly, or disabled family
members.
(3) Whether family members are
forced to leave the unit as a result or
actual or threatened domestic violence,
dating violence, or stalking.
(4) Whether any of the family
members are receiving protection as
victims of domestic violence, dating
violence, or stalking, as provided in 24
CFR part 5, subpart L, and whether the
abuser is still in the household.
(5) Other factors specified by the
PHA.
*
*
*
*
*
■ 44. Revise the last sentence of
§ 982.353(b) to read as follows:
§ 982.353 Where family can lease a unit
with tenant-based assistance.
*
*
*
*
*
(b) * * * The initial PHA must not
provide such portable assistance for a
participant if the family has moved out
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of the assisted unit in violation of the
lease, except that if the family moves
out in violation of the lease in order to
protect the health or safety of a person
who is or has been the victim of
domestic violence, dating violence, or
stalking and who reasonably believed he
or she was imminently threatened by
harm from further violence if he or she
remained in the dwelling unit, and has
otherwise complied with all other
obligations under the Section 8
program, the family may receive a
voucher from the PHA and move to
another jurisdiction under the Housing
Choice Voucher Program.
*
*
*
*
*
■ 45. Amend § 982.452(b)(1) to revise
the second sentence to read as follows:
§ 982.452
Owner responsibilities.
*
*
*
*
*
(b) * * *
(1) * * * The fact that an applicant is
or has been a victim of domestic
violence, dating violence, or stalking is
not an appropriate basis for denial of
tenancy if the applicant otherwise
qualifies for tenancy.
*
*
*
*
*
■ 46. Revise §§ 982.551(e) and
982.551(l) to read as follows:
§ 982.551
Obligations of participant.
*
*
*
*
*
(e) Violation of lease. The family may
not commit any serious or repeated
violation of the lease. Under 24 CFR
5.2005(c)(1), an incident or incidents of
actual or threatened domestic violence,
dating violence, or stalking will not be
construed as a serious or repeated lease
violation by the victim or threatened
victim of the domestic violence, dating
violence, or stalking, or as good cause to
terminate the tenancy, occupancy rights,
or assistance of the victim.
*
*
*
*
*
(l) Crime by household members. The
members of the household may not
engage in drug-related criminal activity
or violent criminal activity or other
criminal activity that threatens the
health, safety, or right to peaceful
enjoyment of other residents and
persons residing in the immediate
vicinity of the premises (see § 982.553).
Under 24 CFR 5.2005(c)(2), criminal
activity directly related to domestic
violence, dating violence, or stalking,
engaged in by a member of a tenant’s
household or any guest or other person
under the tenant’s control, shall not be
cause for termination of tenancy,
occupancy rights, or assistance of the
victim, if the tenant or immediate family
member of the tenant is the victim.
*
*
*
*
*
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47. Revise § 982.552(c)(2)(v) to read as
follows:
■
§ 982.552 PHA denial or termination of
assistance for the family.
*
*
*
*
*
(c) * * *
(2) * * *
(v) Nondiscrimination limitation and
protection for victims of domestic
violence, dating violence, or stalking.
The PHA’s admission and termination
actions must be consistent with fair
housing and equal opportunity
provisions of § 5.105 of this title, and
with the requirements of 24 CFR part 5,
subpart L, protection for victims of
domestic violence, dating violence, or
stalking.
*
*
*
*
*
■ 48. Amend § 982.553 to revise
paragraph (e), to read as follows:
§ 982.553 Denial of admission and
termination of assistance for criminals and
alcohol abusers.
*
*
*
*
*
(e) In cases of criminal activity related
to domestic violence, dating violence, or
stalking, the victim protections of 24
CFR part 5, subpart L, apply.
PART 983—PROJECT-BASED
VOUCHER (PBV) PROGRAM
49. The authority citation for part 983
continues to read as follows:
■
Authority: 42 U.S.C. 1437f and 3535(d).
50. Amend § 983.4 to add a new
proviso in alphabetical order, as
follows:
■
§ 983.4 Cross-reference to other Federal
requirements.
*
*
*
*
*
Protection for victims of domestic
violence, dating violence, or stalking.
See 24 CFR part 5, subpart L.
*
*
*
*
*
51. Amend § 983.251 to revise
paragraph (a)(3) to read as follows:
■
§ 983.251
How participants are selected.
(a) * * *
(3) The protections for victims of
domestic violence, dating violence, or
stalking in 24 CFR part 5, subpart L,
apply to admission to the project-based
program.
*
*
*
*
*
52. Amend § 983.255 to revise
paragraph (d) to read as follows:
■
§ 983.255
Tenant screening.
*
*
*
*
*
(d) The protections for victims of
domestic violence, dating violence, or
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§ 983.257 Owner termination of tenancy
and eviction.
stalking in 24 CFR part 5, subpart L,
apply to tenant screening.
53. Amend § 983.257 to revise the last
sentence of paragraph (a) to read as
follows:
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■
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(a) * * * Part 5, subpart L of 24 CFR,
on protection for victims of domestic
violence, dating violence, or stalking
applies to this part.
*
*
*
*
*
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Dated: October 20, 2010.
Shaun Donovan,
Secretary.
[FR Doc. 2010–26914 Filed 10–26–10; 8:45 am]
BILLING CODE 4210–67–P
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Agencies
[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Rules and Regulations]
[Pages 66246-66265]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26914]
[[Page 66245]]
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Part IV
Department of Housing and Urban Development
-----------------------------------------------------------------------
24 CFR Parts 5, 91, 880, et al.
HUD Programs: Violence Against Women Act Conforming Amendments; Final
Rule
Federal Register / Vol. 75 , No. 207 / Wednesday, October 27, 2010 /
Rules and Regulations
[[Page 66246]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 91, 880, 882, 883, 884, 886, 891, 903, 960, 966,
982, and 983
[Docket No. FR-5056-F-02]
RIN 2577-AC65
HUD Programs: Violence Against Women Act Conforming Amendments
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule follows a November 28, 2008, interim rule that
conformed HUD's regulations to those provisions of the Violence Against
Women Act (VAWA), as enacted in January 2006, and subsequently amended
in August 2006, that were determined to be self-implementing. VAWA
provides statutory protections for victims of domestic violence, dating
violence, sexual assault, and stalking. Such protections apply to
families receiving rental assistance under HUD's public housing and
tenant-based and project-based Section 8 programs. This rule adopts as
final the regulations in the November 28, 2008, interim rule, along
with certain clarifying changes made in response to public comment, and
with some restructuring of the regulations to improve organization
within the Code of Federal Regulations.
DATES: Effective Date: November 26, 2010.
FOR FURTHER INFORMATION CONTACT: For information about HUD's Public
Housing program, please contact the Director of the Public Housing
Management and Occupancy Division, Office of Public and Indian Housing,
Room 4226, telephone number 202-708-0744. For information about the
Office of Public and Indian Housing's Section 8 Tenant-Based program,
please contact Laure Rawson, Director, Housing Voucher Management and
Operations Division, Office of Public and Indian Housing, Room 4210,
telephone number 202-402-2425. For information about the Office of
Housing's Section 8 Project-Based program, please contact Catherine
Brennan, Director, Housing Assistance Policy Division, Office of
Housing, Room 6138, telephone number 202-402-3000. The address for all
of the above offices is the Department of Housing and Urban
Development, 451 7th Street, SW., Washington, DC 20410-0500. The above-
listed telephone numbers are not toll-free numbers. Persons with
hearing or speech impairments may access the numbers through TTY by
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.
SUPPLEMENTARY INFORMATION:
I. Background
The Violence Against Women Act of 1994 (VAWA 1994) was enacted as
Title IV of the Violent Crime Control and Enforcement Act of 1994 (Pub.
L. 103-322, approved September 13, 1994), codified at 42 U.S.C. 13931
et seq. VAWA 1994 was not applicable to HUD programs, but it was
applicable to other Federal agencies and authorized those agencies to
award grants to assist victims of sexual assault, and included
provisions to maintain the confidentiality of domestic violence
shelters and addresses of abused persons. On January 5, 2006, the
Violence Against Women and Department of Justice Reauthorization Act of
2005 (Pub. L. 109-162) was signed into law, and, on August 28, 2006, a
bill that made technical corrections to the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (Pub. L. 109-271) was
signed into law. (Those two public laws are collectively referred to as
``VAWA 2005''). Except as provided in Section 4 of the technical
corrections law, VAWA 2005 became effective upon enactment of the law
on January 5, 2006. Section 4 of the technical corrections law delayed
the effectiveness of certain provisions to the commencement of Fiscal
Year (FY) 2007, none of which are directly applicable to this
rulemaking, which commenced with the November 28, 2008, interim rule.
VAWA 2005 reauthorized and substantially amended VAWA 1994 for FYs
2007 through 2011, and, among other things, consolidated major law
enforcement grant programs, made amendments to criminal and immigration
laws, and made amendments to other statutes, including certain HUD
statutes, to support and strengthen efforts to combat domestic violence
and other forms of violence against women. The provisions of VAWA 2005,
as amended in 2006, that are applicable to HUD programs are found in
Title VI entitled ``Housing Opportunities and Safety for Battered Women
and Children.'' Section 601 of VAWA 2005 amended VAWA 1994 to add a new
Subtitle N to VAWA 1994 entitled ``Addressing the Housing Needs of
Victims of Domestic Violence, Dating Violence, Sexual Assault, and
Stalking.''
The VAWA 2005 amendments that are applicable to HUD's public
housing and tenant-based and project-based Section 8 programs (covered
programs) were determined to be self-implementing. To ensure that
housing providers participating in the covered programs were aware that
the majority of VAWA 2005 is self-implementing, HUD's Office of Public
and Indian Housing (PIH) issued, on June 23, 2006, a notice (PIH 2006-
23) on the subject of VAWA 2005. In that notice, PIH advised public
housing agencies (PHAs) of the VAWA 2005 provisions that were
effective, and implementable, on the date of enactment--January 5,
2006. This notice can be found at https://www.hud.gov/offices/pih/publications/notices/06/pih2006-23.pdf. PIH Notice 2006-23 was followed
by PIH Notice 2006-42, which transmitted the certification form for use
by tenants claiming protection under VAWA. That notice can be found at
https://www.hud.gov/offices/adm/hudclips/notices/pih/06pihnotices.cfm.
In addition, PIH notice 2007-5 addressed the VAWA provisions that were
incorporated into the Housing Choice Voucher Housing Assistance
Payments (HAP) contract and tenancy addendum. That notice can be found
at https://www.hud.gov/offices/adm/hudclips/notices/pih/07pihnotices.cfm.
HUD's Office of Housing also has provided guidance on the
implementation of VAWA 2005. On September 30, 2008, it issued Notice H
08-07, which advised owners and management agents on VAWA provisions
related to the administration of project-based Section 8 properties.
That notice transmitted both the certification form for victims' use
and a lease addendum for owners and management agents to use toward
integrating VAWA's statutory provisions into the HUD model lease for
project-based Section 8 properties. That notice, which was extended and
reissued as Notice H 09-15 on October 1, 2009, can be found at https://www.hud.gov/offices/adm/hudclips/notices/hsg/09hsgnotices.cfm.
In addition to these direct notices, HUD issued a Federal Register
notice that addressed the applicability of VAWA 2005 to all HUD
programs. That notice, which was published on March 16, 2007 (72 FR
12696), provided an overview of the key VAWA provisions that affect HUD
programs, and advised program participants concerning compliance with
VAWA. The notice described those provisions of VAWA determined to be
self-implementing and their effect on HUD programs. That notice also
advised that HUD would be amending its regulations to conform existing
regulations to the VAWA requirements. The November 28, 2008, interim
rule, found at 73 FR 72336,
[[Page 66247]]
presented those conforming amendments.
II. The November 28, 2008, Interim Rule
The November 28, 2008, interim rule (73 FR 72336) amended those
regulations for HUD's covered programs that required changes to conform
to the VAWA amendments made to the authorizing statutes for these
programs.
The November 2008 interim rule also amended HUD's Consolidated Plan
regulations at 24 CFR 91.205(b) and 91.305(b) to reflect the VAWA
amendment made to section 105(b)(1) of the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C. 12705(b)(1)). The amendments made by
the November 2008 interim rule require jurisdictions' consolidated
plans to include, as a planning data, estimated housing needs for
victims of domestic violence, dating violence, sexual assault, and
stalking.
The November 2008 interim rule also amended HUD's PHA plan
regulations at 24 CFR 903.6 and 903.7 to include the additional
information required by VAWA 2005 in the annual and 5-year PHA plans.
VAWA 2005 amended section 5A of the U.S. Housing Act of 1937, which
requires the submission of annual and 5-year plans by PHAs. VAWA
amended section 5A to require PHAs to include, in their 5-year plans, a
statement about goals, activities, objectives, policies, or programs
that will enable a PHA to serve the needs of child and adult victims of
domestic violence, dating violence, sexual assault, or stalking. VAWA
also amended section 5A to require PHAs to include, in their annual
plans, a statement about any domestic violence, dating violence, sexual
assault, and stalking prevention programs they make available.
The November 2008 interim rule amended HUD's regulations in 24 CFR
part 5. The regulations in 24 CFR part 5 contain the requirements
applicable to one or more HUD programs (cross-cutting requirements).
VAWA 2005 amended the U.S. Housing Act of 1937 (1937 Act),
specifically, section 6 (applicable to public housing) and section 8
(applicable to voucher and project-based programs) (42 U.S.C. 1437d and
1437f, respectively), by making changes to admission, occupancy, and
termination of assistance provisions of these statutory sections to
incorporate the VAWA protections. The cross-cutting admission,
occupancy, and termination/eviction requirements are codified in 24 CFR
part 5. The November 2008 interim rule codified the VAWA protections in
a new subpart in 24 CFR part 5, which is subpart L.
The November 2008 interim rule provided, consistent with the VAWA
2005 amendments to the 1937 Act, that being a victim of domestic
violence, dating violence, or stalking, as these terms are defined in
VAWA 2005, is not a basis for denial of assistance or admission to
public or Section 8 assisted housing, if the applicant otherwise
qualifies for assistance or admission. The statutory amendments also
provide that incidents or threats of abuse will not be construed as
serious or repeated violations of the lease or as other ``good cause''
for termination of the assistance, tenancy, or occupancy rights of a
victim of abuse. The VAWA 2005 amendments also set forth the rights and
obligations of PHAs, owners, and management agents regarding criminal
activity or acts of violence against family members or others. The
regulations in new subpart L of part 5 contain the VAWA protections as
applicable to admission, occupancy, termination, and eviction.
The November 2008 interim rule also conformed HUD's regulations to
reflect the VAWA 2005 certification and confidentiality provisions.
VAWA 2005 provides that owners, management agents, and PHAs may request
an individual claiming VAWA protection to document, by means of a HUD-
approved certification form, that the individual is a victim of abuse
and that the incidences of abuse are bona fide. VAWA 2005 provides that
the individual's certification must include the name of the
perpetrator. Forms HUD-50066, for use by PHAs, and HUD-91066, for use
by owners and management agents, were developed for the purpose of this
optional certification.\1\ It is not mandatory that the victim provide
the HUD form, and the PHA, owner, or management agent may not require
the victim to provide the form. A victim may also provide documentation
from a third-party source. Documentation from a third-party source may
also satisfy the request of an individual claiming VAWA protections to
document the abuse. With respect to the third-party source, the third-
party may be an employee, agent, or volunteer of a victim service
provider, an attorney, or a medical professional, from whom the victim
has sought assistance in addressing domestic violence, dating violence,
or stalking, or the effects of the abuse. Pursuant to VAWA, other
acceptable forms of documentation from a third-party source include a
Federal, state, tribal, territorial, or local police or court record.
---------------------------------------------------------------------------
\1\ Forms HUD-50066 and HUD-91066 are available on HUD's Web
site, respectively, at: https://www.hud.gov/offices/adm/hudclips/forms/files/50066.doc, and https://www.hud.gov/offices/adm/hudclips/forms/files/91066.pdf.
---------------------------------------------------------------------------
The November 2008 interim rule also amended 24 CFR 982.353(b) to
reflect VAWA 2005's amendment to section 8(r) of the U.S. Housing Act
of 1937 (42 U.S.C. 1437f(r)), which provides an exception to the
prohibition against a family moving under the portability provisions in
violation of the lease.\2\ VAWA 2005 provides that the family may
receive a voucher and move in violation of the lease under the
portability procedures, if the family has complied with all other
obligations of the voucher program and has moved out of the assisted
dwelling unit in order to protect the health or safety of an individual
who is or has been the victim of domestic violence, dating violence, or
stalking and who reasonably believed he or she was imminently
threatened by harm from further violence if he or she remained in the
assisted dwelling unit.
---------------------------------------------------------------------------
\2\ Portability refers to the right of voucher-holding families
to move outside the jurisdiction of a PHA that issues the voucher
into the jurisdiction of another PHA that administers a tenant-based
rental assistance program. Section 8(r) of the U.S. Housing Act of
1937 establishes the right to portability, and HUD's implementing
amendments of this right are found at 24 CFR 982.353.
---------------------------------------------------------------------------
The November 2008 interim rule also amended 24 CFR 5.2007(a)(3), by
incorporating the VAWA 2005 requirement imposed on PHAs to provide
notice to public housing residents and tenants assisted under section 8
of their rights, including their rights to confidentiality, and notice
to owners and management agents of their rights and obligations under
VAWA 2005. In addition to the notice required by PHAs, the November
2008 interim rule also required owners and management agents
administering an Office of Housing project-based Section 8 program to
provide their tenants with the notification as per the VAWA 2005
requirement.
The November 2008 interim rule also added several new definitions
to its new regulations in 24 CFR part 5, subpart L, to reflect
terminology defined by VAWA 2005, including ``domestic violence,''
``dating violence,'' ``stalking,'' and ``immediate family member.''
The amendments made by the November 2008 interim rule are discussed
in more detail in the November 28, 2008, Federal Register notice at 73
FR 72337 through 723339.
III. This Final Rule
As the preamble to the November 2008 interim rule explained and as
[[Page 66248]]
reiterated in the preamble to this final rule, HUD's initial rulemaking
for VAWA 2005, as commenced in November 2008, and the notices that
preceded the November 2008 interim rule, were issued to ensure that
PHAs, owners, and management agents participating in HUD's covered
programs were aware of the self-implementing provisions of VAWA 2005,
and of the need to immediately implement the protections provided by
VAWA 2005 in situations covered by VAWA 2005. That is, PHAs, owners,
and management agents were not to delay their updating of policies
pertaining to admission, occupancy or termination while waiting for HUD
to issue regulations on those subjects. Because the regulations in
HUD's November 2008 interim rule were conforming regulations, generally
incorporating, almost verbatim, the VAWA 2005 statutory language, HUD
anticipated no significant changes would be made at this final rule
stage, and that is in fact the case. However, commenters did identify
certain areas where the regulatory language would increase
comprehensibility if HUD provided further explanation or elaboration;
this rule does provide that. HUD also determined that the organization
of the regulations in 24 CFR part 5, subpart L, would be enhanced by
some reorganization, and this rule reflects that reorganization.
Therefore, with respect to reorganization, and in response to
public comments, the following changes are made at this final rule
stage:
A. Reorganization Changes
Section 5.2005, formerly entitled ``Protection of victims of
domestic violence, dating violence, and stalking in public and Section
8 housing,'' is now entitled ``VAWA protections,'' and now addresses
only VAWA 2005 protections. The provisions of Sec. 5.2005 of the
interim rule that addressed lease bifurcation and court orders are now
in a new Sec. 5.2009, entitled ``Remedies available to victims of
domestic violence, dating violence, or stalking in HUD-assisted
housing.'' Section 5.2009 of the interim rule entitled ``Effect on
other laws'' has been redesignated as Sec. 5.2011.
B. Clarification Changes
In Sec. 5.2003 (Definitions), HUD has added a definition of VAWA.
In Sec. 5.2005 (VAWA protections), paragraph (a) that pertains to
notice of VAWA protections is amended to include a new paragraph
(a)(4), which provides that the HUD required lease, lease addendum, or
tenancy addendum, as used in programs covered by this rule, must
include a description of specific protections afforded to the victims
of domestic violence, dating violence, or stalking.
In Sec. 5.2005, paragraph (d)(1) of this section, which addresses
the limitation of VAWA protections, and the authority of PHAs, owners,
and management agents, now includes reference to termination of
assistance to clarify that Section 8 vouchers are covered by VAWA 2005
protections. The interim rule merely addressed eviction, termination of
tenancy, and occupancy rights.
In Sec. 5.2005, HUD clarifies in paragraph (d)(2) that the
standard for eviction, termination of tenancy, or termination of
assistance is both the actual and imminent threat of violence, not an
actual or imminent threat of violence. (Please see also HUD's response
to the first comment under Section IV.A.)
In Sec. 5.2005, HUD adds a new paragraph (d)(3), which addresses
the VAWA statutory language's emphasis that nothing in VAWA interferes
with the right of a PHA, owner, or management agent to evict or
terminate assistance to any tenant or lawful occupant if the PHA,
owner, or management agent can demonstrate an actual and imminent
threat to other tenants or those employed at or providing service to
the public housing or Section 8-assisted property, if that tenant or
lawful occupant is not terminated from assistance. New paragraph (d)(3)
provides that any eviction or termination of assistance undertaken on
this basis should be utilized only by a PHA, owner, or management agent
when there are no other actions that could be taken to reduce or
eliminate the threat, including, but not limited to, transferring the
victim to a different unit, barring the perpetrator from the property,
contacting law enforcement to increase police presence, developing
other plans to keep the property safe, or seeking other legal remedies
to prevent the perpetrator from acting on a threat. Restrictions
predicated on public safety cannot be based on stereotypes, but must be
tailored to particularized concerns about individual residents.
Further, in Sec. 5.2005, HUD adds a new paragraph (e) to address
the meaning of actual and imminent threat to better guide what
constitutes an ``actual and imminent threat'' and how to determine when
one exists.
In Sec. 5.2007 (Documenting the occurrence of domestic violence,
dating violence, or stalking), HUD has revised the title of this
regulatory section to be more clear regarding the issue to which this
section is directed, which is simply that the victim is required to
submit written evidence, if requested by a PHA, owner, or management
agent, that verifies that the domestic violence, dating violence, or
stalking occurred. This revision also clarifies that the claim
presented to the PHA, owner, or management agent, as provided in this
regulatory section, may be a claim for continued occupancy or initial
tenancy or assistance. The interim rule merely referenced continued
occupancy. Commenters pointed out that reference to continued occupancy
would make the documentation request applicable only to terminations of
public housing tenants. Inclusion of ``initial tenancy'' and
``assistance'' clarifies that terminations are also applicable to
Section 8 participants, and to denying assistance to public housing and
Section 8 applicants.
As will be seen by the discussion of public comments, there
appeared to be confusion as to what was meant by certification; that
is, whether certification referred to the use of a HUD-approved form or
whether it referred to the process of verifying, in writing, the
occurrence of domestic violence, dating violence, or stalking. What the
statute contemplates, and what this regulation puts into place, is that
upon request, the victim will provide evidence, which could be in the
form of the victim's written statement on a HUD-approved certification
form. The evidence could also consist of a police or court record, or
the written statement of an employee, agent, or volunteer of a victim
service provider, an attorney, or a medical professional, from whom the
victim has sought assistance in addressing domestic violence, dating
violence, or stalking, or in addressing the effects of abuse, in which
the professional attests under the penalty of perjury to the
professional's belief that the incident or incidents in question are
bona fide incidents of abuse. In brief, a written document that
verifies that the violence occurred could be requested by the PHA,
owner, or management agent. Therefore, HUD will use ``documentation''
and ``document'' to refer to the process of providing written
verification. HUD will apply the terms ``certification'' and
``certify'' to refer to the HUD-approved form and its use by the
victim.
In addition, in Sec. 5.2007, HUD includes the phrase ``dating
violence or stalking'' along with ``domestic violence.'' This section
clarifies that if a PHA, owner, or management agent requests a tenant,
alleging domestic violence, dating violence, or stalking, to document
his or her claim of such
[[Page 66249]]
violence, the request must be made in writing. This section also
clarifies that at its discretion, a PHA, owner, or management agent may
provide benefits to an individual based solely on the individual's
verbal statement or other corroborating evidence.
In Sec. 5.2007(b)(4), HUD expands on the responsibility of the
PHA, owner, and management agent to maintain the confidentiality of
information provided by a victim of domestic violence, dating violence,
or stalking.
Finally, in Sec. 5.2007, a new paragraph (e) is added to clarify
the way in which the PHA, owner, or management agent may determine the
true victim of domestic violence in a situation of conflicting
certifications.
In Sec. 5.2009 (Remedies available to victims of domestic
violence, dating violence, or stalking in HUD-assisted housing), HUD
clarifies in paragraph (a), which pertains to lease bifurcation, that
the programs covered by this provision are the public housing, Section
8 Housing Choice Voucher (HCV), and Section 8 project-based programs.
HUD has included an amendment to 24 CFR 966.4 (Lease requirements)
to include the VAWA 2005 protections as a required provision of the
public housing lease, and to require the PHA to consider lease
bifurcation if appropriate in a domestic violence situation.
HUD has included amendments to 24 CFR 982.314 (move with continued
tenant-based assistance) to clarify that PHA policies restricting
timing and number of moves do not apply when the family or a member of
the family is or has been the victim of domestic violence, dating
violence, or stalking, and the move is needed to protect the health or
safety of the family or family member. New amendments to 24 CFR 982.314
also clarify that a PHA may not terminate assistance if the family,
with or without prior notification to the PHA, already moved out of a
unit in violation of the lease, if such move occurred to protect the
health or safety of a family member who is or has been the victim of
domestic violence, dating violence, or stalking and who reasonably
believed he or she was threatened with imminent harm if he or she
remained in the dwelling unit. HUD has included an amendment to 24 CFR
982.315 (Family break-up) to address the same concerns as provided in
the amendment to 24 CFR 982.314.
IV. Public Comments and HUD's Responses
The public comment period on the November 2008 interim rule closed
on January 27, 2009, and HUD received 13 public comments. Commenters
included legal aid organizations, domestic violence advocacy groups,
housing advocacy groups, and public housing agencies.
Overall, commenters appeared pleased to see the VAWA 2005
protections codified in regulations, but some commenters said the
November 2008 interim rule was more than a conforming rule, while
others said HUD had failed to fully conform its regulations to certain
VAWA 2005 statutory provisions. Other commenters stated that they
understood that regulations were not the appropriate place for
comprehensive guidance on the VAWA 2005 protections, but encouraged HUD
to provide additional guidance on the VAWA 2005 protections and provide
examples on the various situations in which the need for such
protections may occur. The following presents key issues raised by the
commenters and HUD's responses to these issues.
A. Scope and Definition Issues
Comment: Interim rule's language on ``actual or imminent threat''
departs from the statutory language. Several commenters stated that
HUD's interpretation of ``actual and imminent threat'' departs from the
statutory language in VAWA 2005. A commenter stated that the statutory
language of VAWA 2005 refers to an actual and imminent threat, and
HUD's interim rule, by contrast, refers to actual or imminent threat.
HUD Response: The interim rule deviated from the statutory language
of VAWA 2005 by indicating that an owner, management agent, or public
housing agency may evict or terminate from assistance any tenant or
lawful occupant if the owner, management agent, or public housing
agency can demonstrate an actual or imminent threat to other tenants or
those employed at or providing service to the property if that tenant
is not evicted or terminated from assistance. VAWA 2005 states that an
owner, management agent, or public housing agency may evict or
terminate from assistance any tenant or lawful occupant if the owner,
management agent, or public housing agency can demonstrate an actual
and imminent threat to other tenants or those employed at or providing
service to the property if that tenant is not evicted or terminated
from assistance. This deviation from the statutory language resulted
from the use of two similar, but contextually distinct, phrases within
the statute. Both the phrase ``actual and imminent threat'' and
``actual or threatened domestic violence'' appear in VAWA 2005, and are
used to refine proscribed protection and prohibited activity in
different potential situations.
The phrase ``actual or threatened domestic violence'' appears in
section 606 and section 607 of VAWA 2005 in the amendments made to
section 8(c)(9)(B) and section 6(l)(5) of the U.S. Housing Act of 1937
(42 U.S.C. 1437f(c) and 42 U.S.C. 1437d(l)). The revision to section
6(1)(5) of the U.S. Housing Act states that an incident or incidents of
actual or threatened domestic violence, dating violence, or stalking
will not be construed as a serious or repeated violation of the lease
by the victim or threatened victim, and shall not be good cause for
terminating the assistance, tenancy, or occupancy rights of such
victim.
In contrast, section 606 of VAWA 2005 (section 8(c)(9)(C) of the
1937 Act) and section 607 of VAWA 2005 (section 6(l)(6) of the 1937
Act) provide that criminal activity directly relating to domestic
violence, dating violence, or stalking engaged in by a member of a
tenant's household or any guest or other person under the tenant's
control is not cause for termination of assistance, tenancy, or
occupancy rights if the tenant or a member of the tenant's immediate
family is the victim of the corresponding violence. This protection,
however, is limited by sections 8(c)(9)(C)(v) and 6(l)(6)(E), which
provide that a tenant, or other lawful occupant, who is a victim of
such domestic violence, dating violence, or stalking may be evicted or
terminated from assistance if the owner, management agent, or public
housing agency can demonstrate that such an action is required due to
an actual and imminent threat posed to other tenants or to employees or
service providers of the property that will result if that tenant or
lawful occupant is not evicted or terminated from assistance. In this
context, the phrase ``actual and imminent threat,'' rather than
``actual or imminent threat,'' narrows the use of this limitation by
the owner, management agent, or public housing agency, thereby,
providing greater protection for the victim. Accordingly, HUD has
clarified this distinction in 24 CFR 5.2005(d)(2).
Comment: Definition of ``imminent threat'' requires revisions. Two
commenters questioned the interim rule's definition of ``imminent
threat'' on the basis that they found that it failed to include the
imminence of the threat; that is, the likelihood that the threat would
become reality. Other commenters recommended using the standard of
``serious bodily harm'' to
[[Page 66250]]
give meaning to ``violent criminal activity,'' which is the term used
in VAWA 2005. Commenters stated that the term ``bodily harm'' was too
vague and general.
HUD Response: Section 5.2005(e) of HUD's interim rule provides that
words, gestures, actions, or other indicators are considered an
imminent threat ``if a reasonable person, considering all of the
relevant circumstances, would have a well-grounded fear of death or
bodily harm as a result.'' HUD based its definition of ``imminent
threat'' in the interim rule, in part, on the definition of
``stalking'' in VAWA 2005. VAWA 2005 defines ``stalking'' to include
acts of pursuit or surveillance or repeatedly committed acts that
``place a person in reasonable fear of the death of, or serious bodily
injury to, or to cause substantial emotional harm to'' that person, a
member of the immediate family, or the spouse or intimate partner of
that person. The definition of ``stalking'' described the types of
actions that were actual and imminently threatening in a domestic
violence situation.
However, in response to public comments, HUD has reexamined the
interim rule guidance on actual and imminent threat, and also reviewed
case law, as suggested by commenters in the following comment. The case
law recommended by the commenters was helpful in developing standards
that would better guide what actions constitute actual and imminent
threat. Section 5.2005 of this final rule includes a new paragraph (e)
to help PHAs, owners, and management agents determine when actual and
imminent threat exists. This new paragraph (e) is discussed more fully
in HUD's response to the following comment.
Comment: Clarify standards for determining actual and imminent
threat. Commenters stated that HUD's final rule needed to elaborate on
the meaning of ``actual and imminent'' threat in order to be more
helpful to housing providers in understanding when they may be
confronting an actual and imminent threat situation. Two commenters
suggested that the legislative history of, and similar exceptions in,
the Fair Housing Act and the Americans with Disabilities Act should be
used as standards to elaborate on the proper application of actual and
imminent threat to specific circumstances encountered by PHAs, owners,
or management agents under VAWA 2005. One commenter recommended that
HUD's final rule follow the Fair Housing Act and base any specific
determination of an actual and imminent threat based on the
consideration of four factors: (1) The nature of the risk, (2) the
duration of the risk, (3) the severity of the risk or potential harm to
third parties, and (4) the probability of harm. The commenter claimed
that the Fair Housing Act codifies the factors of School Board of
Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123 (1987)
in 42 U.S.C. 3604(f)(9). The commenter added that HUD's final rule
should describe the analysis of actual and imminent threat with more
specificity so that PHAs, owners, or management agents know they must
have objective evidence in order to find an exception to VAWA 2005. The
commenter stated that otherwise an exception may be based on fear or
conjecture rather than on an objectively proven imminent threat.
The commenter recommended that the factors be listed in HUD's final
rule, as is done in two similar regulations describing the direct
threat exception for the Americans with Disabilities Act (ADA): The
Department of Justice's ADA regulations and the Department of Labor's
ADA regulations at 28 CFR 36.208 and 29 CFR 1630.2(r), respectively.
The commenter stated that, as HUD's interim rule reads, it fails to
emphasize the need for objectivity, evidence, and the examination of
particular circumstances needed to understand and implement this
exception.
HUD Response: HUD understands that the need for elaboration on this
important terminology--actual and imminent threat--as used in the
statute, and appreciates the commenters' suggestions on standards or
factors to consider in determining whether there is a situation of
actual and imminent threat. Although there appears to be an absence of
case law interpreting ``actual and imminent'' threat, the commenters
are correct that cases involving housing discrimination or violence in
a direct threat situation are instructive on standards that should be
considered. More importantly, the commenters are correct that any
interpretation of these terms should emphasize the need for objective
evidence that the actual and imminent threat of physical danger is
real, not hypothetical or presumed; would occur within an immediate
time frame, and thus not be remote or speculative; could result in
death or serious bodily harm; and could not be reduced or eliminated by
reasonable actions. Accordingly, HUD's final rule provides, in a new
paragraph (e) to Sec. 5.2005, that an actual and imminent threat
consists of a physical danger that is real, would occur within an
immediate time frame, and could result in death or serious bodily harm.
Additionally, this paragraph provides that in determining whether an
individual would pose an actual and imminent threat, the factors to be
considered include: the duration of the risk, the nature and severity
of the potential harm, the likelihood that the potential harm will
occur, and the length of time before the potential harm would occur. In
addition to including this language in the regulatory text, HUD intends
to issue further guidance that may be helpful in determining and
dealing with actual and imminent threat.
Comment: Commenters stated that the rule omits reference to crimes
of dating violence and stalking. According to commenters, HUD's interim
rule, in several places, addresses domestic violence, but fails to
include the crimes of dating violence and stalking. The commenters
recommended that the provisions be amended to more closely track VAWA
2005.
HUD Response: HUD's interim rule (in Sec. 5.2003, as well as in
Sec. 5.2005 (the title of Sec. 5.2005, includes the phrase dating
violence and stalking), and Sec. 5.2009) already includes reference to
the crimes of dating violence and stalking. The final rule includes
dating violence or stalking in addition to domestic violence at section
5.2007(d) and section 5.2007(a). HUD has not identified any other key
provision of the interim rule where such terminology was omitted.
Comment: Clarify criminal activity directly related to domestic
violence, dating violence, or stalking. A commenter stated that the
statute and interim rule contain detailed definitions of the terms
``domestic violence, ``dating violence,'' and ``stalking,'' but does
not clarify the meaning of ``directly related'' in the context of
protecting a victim from eviction due to such criminal activity. The
commenter stated that Congress intended to limit the reach of the
provision so that activities distantly related to domestic violence,
dating violence, or stalking would not bring into play the statutory
scheme.
HUD Response: As the commenter notes, the interim rule mirrors the
statutory language, which provides that criminal activity ``directly
related'' to domestic violence, dating violence, or stalking, engaged
in by a member of a tenant's household or any guest or other person
under the tenant's control, shall not be cause for termination of
tenancy, or of occupancy rights of, or assistance to the victim, if the
tenant or immediate family member of the tenant is the victim. HUD
finds that in this context, the meaning of ``directly related'' is
clear and does not require further elaboration.
[[Page 66251]]
Comment: VAWA 2005 should apply to men, Project Rental Assistance
Contracts (PRACs), and Section 8 properties. One commenter stated that
VAWA 2005 should protect men from domestic violence and not only women.
The commenter added that VAWA 2005 should cover housing under PRACs, as
well as other Section 8 properties.
HUD Response: VAWA 2005 does protect men. Although the name of the
statute references only women, the substance of the statute makes it
clear that its protections are not exclusively applicable to women.
With respect to broader coverage of VAWA 2005, HUD notes that the scope
of VAWA 2005 protections is limited to the 1937 Act.
Comment: Rule must address battered immigrants' eligibility.
Commenters stated that HUD's interim rule omits housing eligibility for
battered immigrant-qualified aliens. Battered immigrant-qualified
aliens are statutorily eligible to receive public and assisted housing
as part of the Illegal Immigration Reform and Immigration
Responsibility Act of 1996. In 2003, according to the commenters,
Congress directed HUD and the Department of Justice to interpret
housing statutes consistently with immigration and public benefits
statutes so that qualified alien-battered immigrants would be eligible
for federally subsidized housing. (See H. Rep. No. 108-10 at 1495).
According to the commenters, qualified alien-battered immigrants
continue to be denied housing benefits they both need and are eligible
to receive, and HUD should revise its VAWA rule, at the final rule
stage, to make it clear that battered alien immigrants are eligible to
receive housing benefits.
HUD Response: The November 2008 interim rule and this final rule
are directed only to addressing the provisions of the Violence Against
Women Act of 2005. This rule does not address the categories of legal
immigrants eligible for housing under Section 214 of the Housing and
Community Development Act of 1980. However, VAWA 2005 protects victims
of domestic violence, dating violence, or stalking residing in HUD
public and assisted housing covered by VAWA 2005, regardless of whether
they are citizens or eligible immigrants.
B. Certification and Verification (Documentation of Abuse) Issues
Comment: Certification language in interim rule is at odds with the
statutory language. One commenter stated that the certification section
of the rule is confusing and must be revised to include correct VAWA
2005 statutory language, which provides that a PHA, owner, or
management agent may ask a victim of domestic violence, dating
violence, or stalking to document this status in any one of the
following forms: a HUD-approved certification form completed by the
victim or documentation signed by an employee, agent, or volunteer of a
victim service provider; an attorney; or a medical professional, or via
a court or police record.
HUD Response: As discussed in Section III.B. of this preamble, HUD
has revised Sec. 5.2007 to eliminate any confusion about the
``certification/or verification'' of abuse. As noted in Section III.B.
of this preamble, a PHA, owner, or management agent may request that a
victim of domestic violence, dating violence, or stalking document or
provide written evidence to demonstrate that the violence occurred.
Accepted means of documentation include providing the PHA, owner, or
management agent with a completed HUD-approved certification form, or
other form of written verification of the abuse, signed by a third
party. The PHA, owner or management agent also may accept the victim's
verbal statement or other corroborating evidence as sufficient
verification of the abuse. Therefore, as long as the victim provides a
HUD-approved certification form, third-party documentation, a verbal
statement, or other corroborating evidence, the victim is statutorily
entitled to VAWA 2005 protections. A tenant's file should document
acceptance of an individual's verbal statement.
Comment: Clarify permissibility of self-certification and third-
party verification. Some commenters stated that the option to self-
certify, despite the request from a PHA, owner, or management agent for
certification on the HUD form or another form of certification, is at
odds with VAWA 2005. Other commenters stated that the November 2008
interim rule is unclear as to when third-party verification can be
required instead of self-certification. A commenter stated that third-
party verification should be allowed because such verification provides
a PHA, owner, or management agent with a comparatively higher level of
protection from potential abuse of VAWA 2005, and would eliminate the
need for an independent judgment call.
Other commenters stated that VAWA 2005 indicates that a PHA or
owner does not have to require that a person seeking VAWA 2005
protections produce documentation of his or her status as a victim of
domestic violence, dating violence, or stalking, and that VAWA 2005
protections may be provided to individuals based solely on their own
statements or other corroborating evidence. Another commenter stated
that, if a PHA, owner, or management agent decides to obtain
verification of an individual's status as a victim, the tenant may
satisfy the requirement to document the abuse by providing
documentation signed by an attorney or member of a victim service
provider or contained in a police or court record.
HUD Response: With respect to self-certification, VAWA 2005 allows,
but does not require, the victim to self-certify, in order to be
afforded protection under VAWA 2005. Form HUD-50066, for use by PHAs,
and form HUD-91066, for use by owners and management agents, have been
developed for the purpose of the optional certification. They are
standard forms and collect limited, relevant information from the
victim.
With respect to the issue of third-party verification, HUD has
determined that an individual requesting protection cannot be required
to provide third-party documentation. If a documentation request is
made to an individual seeking protection under VAWA 2005, the PHA,
owner, or management agent must accept the standard HUD certification
form as a complete request for relief, without insisting on additional
documentation. Additionally, third-party documentation must be accepted
in lieu of the HUD standard certification form if such documentation is
produced by the individual requesting relief.
Comment: Clarify whether a HUD-approved certification is always
needed. Certain commenters stated that the certification provision of
HUD's interim rule should be revised to clarify that a HUD-approved
certification form is not always required. According to one commenter,
the interim rule improperly combines the HUD certification form with
the option for the victim to submit a police or court record or
qualified third-party documentation in lieu of the certification form.
Other commenters stated that the regulatory text of the interim rule
should follow the statutory language, which references a written
request for certification by the PHA or owner.
HUD Response: HUD believes that the changes made to Sec. 5.2007
eliminate confusion about what is required under the statute, as
implemented by HUD's regulation. However, in response to the question
raised by the commenters, a PHA, owner, or management agent may, but is
not required to, request that the individual complete a HUD-approved
[[Page 66252]]
certification form documenting the abuse. The victim may satisfy a
request to document the domestic violence, dating violence, or stalking
by submitting the HUD-approved form. The victim may satisfy the PHA's,
owner's, or management agent's request for documentation without
providing the HUD-approved form, by submitting third-party
documentation of the abuse or other corroborating evidence. The PHA,
owner, or management agent must accept the HUD-approved form as a
complete request for protection in the absence of third-party
documentation. Third-party documentation may include, among other
things, court or police records. In addition, the PHA, owner, or
management agent may provide benefits based solely on the individual's
verbal statement or other corroborating evidence.
With respect to a written request for certification, HUD
acknowledges that this language could be clearer, and believes the
changes made to Sec. 5.2007 provide greater clarity. In order to deny
relief for protection under VAWA, a PHA, owner, or management agent
must provide the individual with a written request for documentation.
If the individual fails to provide the requested documentation within
14 business days of receiving a written request for information, the
relief may be denied. The 14-business day window for submission of
documentation does not begin until the individual receives the written
request. The PHA, owner, or management agent has discretionary
authority to extend the statutory 14-business day period. While HUD's
interim rule covered these time frames, the ``request'' by the PHA,
owner, or management agent was not phrased specifically in terms of a
``written request.'' However, the subject of request for documentation
is now addressed in Sec. 5.2007(a) of the final rule.
Comment: Content of certification requires clarification. A
commenter stated that VAWA 2005 is ambiguous as to whether the content
of certification should be left to the victim's discretion or to the
discretion of the PHA, owner, or management agent. Commenters suggested
that the housing providers be given the discretion to specify the
content and types of information that should be provided in the
certification.
HUD Response: As noted earlier, although VAWA 2005 speaks in terms
of a victim's certification that the violence occurred, HUD's
regulation is revised by this final rule to speak in terms of
documentation of the violence. Nevertheless, to the commenters'
question about the statute, the 1937 Act, at both 42 U.S.C.
1437d(u)(1)(A) and 1437f(ee)(1)(A), states that the PHA, owner, or
management agent may request that an individual certify through a HUD-
approved certification form that the individual is a victim of domestic
violence, dating violence, or stalking, and that the incident or
incidents in question are bona fide incidents of such actual or
threatened abuse and meet the requirements set forth in the above-
referenced statutory provisions. Under VAWA 2005, the only required
content of the certification is that such certification shall include
the name of the perpetrator. Certifications are typically very brief
documents by which an individual who has provided certain information
attests that such information is true. HUD finds that its treatment of
certification in its regulations, which mirrors VAWA 2005's treatment,
is the correct approach.
Comment: VAWA 2005 does not require victims to sign certifications
under penalty of perjury. Commenters stated that the interim rule
requires victims to sign certifications under penalty of perjury, which
is not required by VAWA 2005 or HUD's published certification form,
form-50066. One commenter stated that HUD has the discretionary
authority to require victims to certify their status under penalty of
perjury, and that HUD's form should provide for self-certification
under penalty of perjury, so long as the form is amended to describe
the penalties associated with perjury. Other commenters stated that HUD
appears to have the discretion to offer a certification process through
which program sponsors could also require third-party verification
under penalty of perjury, victims' self-certification of their status
under penalty of perjury, or ``victims'' providing of police reports.
The commenters stated that these alternatives would help to prevent
abuse of VAWA 2005 protections.
HUD Response: Given the possible consequences to both the victim
and the alleged perpetrator of domestic violence, dating violence, or
stalking, HUD's position is that it is important that any allegations
made by one individual against another are made with the understanding
that there are consequences if the allegations are false. In this
regard, HUD's VAWA forms, HUD-50066 and HUD-91066, advise that the
submission of false information may be a basis for termination of
assistance or for eviction. HUD maintains that this language is a
sufficient deterrence from false reporting and that the inclusion of
the language ``under penalty of perjury'' is unnecessary.
Comment: Additional guidance is necessary to protect victims'
confidentiality and safety in the documentation process. One commenter
stated that PHAs and owners could benefit from guidance on how to
maintain confidentiality when a victim seeks to port a voucher to a
different jurisdiction. Other commenters stated that the rule should
explicitly state that any release of information for the purpose of
enforcing that person's rights under VAWA 2005 is limited in time and
scope. One commenter stated that because of the sensitive nature of
domestic violence, HUD must include safeguards to ensure that PHAs or
landlords do not require any information beyond that required in a HUD-
approved form.
HUD Response: The release of confidential information was addressed
in Sec. 5.2007(a)(1)(v) of the interim rule [Sec. 5.2007(b)(4) in the
reorganized regulation of this final rule]. This section, which tracks
the statutory language in VAWA 2005 (at section 8(ee)(2) of the Housing
Act of 1937 (42 U.S.C. 1437f(ee)(2))), has been expanded in the final
rule stage. This section now states that information provided by the
victim of domestic violence, dating violence, or stalking shall be kept
confidential and shall not be entered into any shared database or
provided to any other entity except to the extent that disclosure is
requested by the tenant, required for use in an eviction proceeding, or
required by applicable law. Further, this section prohibits employees
of the PHA, owner, or management agent, or individuals within their
employ (e.g., contract workers) from having access to such information,
unless they are specifically and explicitly authorized by the PHA,
owner, or management agent to access this information because it is
necessary to their work for the PHA, owner, or management agent. These
employees or individuals in the employ of the PHA, owner, or management
agent are equally bound to maintain the confidentiality of such
information. Maintaining confidentiality is essential to protect
victims from further harm. In addition to expanding the confidentiality
requirements in Sec. 5.2007(b)(4), HUD will provide additional
guidance to PHAs, owners, and management agents on confidentiality
protocols that each PHA, owner, and management agent should maintain
and enforce.
Further, HUD notes that the situations mentioned by commenters are
also covered by the Privacy Act (5 U.S.C. 552a). The Privacy Act
controls the purposes for which information may be released, and those
purposes are
[[Page 66253]]
supposed to be stated when the information is collected.
Comment: Guidance needed for processing VAWA 2005 certifications.
Several commenters sought guidance on how to process a VAWA 2005
certification, including cases involving the submission of
certifications from household members that are in conflict with one
another. In some instances, where the perpetrator of domestic violence
is a member of the household and faces eviction, the perpetrator may
claim to be a victim of domestic violence and attempt to have the true
victim evicted instead.
HUD Response: As noted earlier in this preamble, the process that
is at issue is not the processing of certifications, but rather
documenting violence that has occurred. As also discussed in this
preamble, such documentation may be provided in several ways, including
a certification, but also a third-party statement or a court or police
record. Individuals seeking protection under VAWA 2005 must notify the
PHA, owner, or management agent of their intent to request protection.
The PHA, owner, or management agent may, but is not required to
request, that the individual provide documentation of the abuse. The
individual may satisfy the documentation requirement by submitting the
HUD-approved certification form. The individual may also satisfy a
request for documentation by submitting third-party documentation of
the abuse or other corroborating evidence. Although the victim has
discretion as to the means of documentation, the PHA, owner, or
management agent may request some additional proof beyond a verbal
statement. If the requesting individual is unable to produce
documentation or other corroborating evidence and is unwilling to self-
certify on the HUD-approved form, the individual may request, and the
PHA, owner, or management agent must, in accordance with the procedures
established in the applicable program regulations, provide an
opportunity for an informal review or informal hearing prior to
ultimate denial of protection.
Third-party documentation may include, among other things, court or
police records. The PHA, owner, or management agent must accept the
certification form as a complete request for protection, in the absence
of third-party documentation. A PHA, owner, or management agent also
must accept third-party documentation in lieu of the HUD standard
certification form if such documentation is produced by the individual
requesting relief.
The certification form and/or third-party documentation should be
placed in the tenant's file, and the PHA, owner, or management agent
should explain to the individual the remedies available. Additional
information on processing the certification and/or third-party
documentation will be described in HUD administrative guidance.
With respect to conflicting certification from two members of a
household, HUD recognizes that PHAs, owners, and management agents may
not be in a position to determine the victim from the perpetrator.
Trained third parties (such as law enforcement or a victim service
provider, attorney, or medical professional, as described in 42 U.S.C.
1437(f)(ee)(C)) are often better equipped to make accurate judgments.
The statute also notes that the eviction protections do not limit the
authority of a PHA, owner, or management agent, when notified, to honor
court orders addressing rights of access to control of the property,
including civil protection orders issued to protect the victim and
issued to address the distribution or possession of property among the
household members in cases where a family breaks up. Use of this third-
party documentation would enable PHAs, owners, and management agents to
make a more accurate decision. It would also discourage perpetrators
from attempting to abuse the system and further harm their victims. A
victim may well have already sought assistance in addressing the abuse
and be able to produce documentation relatively quickly. Should any
questions remain, a court or another adjudication process, such as a
PHA grievance hearing, informal hearing or informal review, could be an
appropriate venue to pursue fact-finding and make a determination.
To assist PHAs, owners, and management agents navigate such
conflicts, HUD has added a new paragraph (e) to Sec. 5.2007, to
clarify the ways in which the PHA, owner, or management agent may
determine the true victim of domestic violence in a situation of
conflicting certifications. HUD will also issue additional guidance to
assist PHAs, owners, or management agents when confronted with
conflicting certifications.
C. Transfer Policies and Portability Issues
Comment: Transfer policies to protect victims. Commenters
encouraged HUD to go beyond merely conforming HUD's regulations to the
VAWA 2005 provisions, by promulgating regulations that mandate
emergency transfers for victims of domestic violence in public housing
and project-based Section 8 housing. The commenters stated that VAWA
2005 creates specific transfer rights for victims of domestic violence
with HCVs, with one commenter encouraging HUD to exercise its
rulemaking authority and create specific rights for victims in public
housing and project-based Section 8 housing, in addition to the rights
provided for voucher tenants. That commenter stated that while there is
no direct guidance on the problems facing victims of domestic violence
who need to flee their project-based Section 8 housing without
jeopardizing their subsidies, there is general recognition of the
problem by HUD, owners, and advocates. One commenter stated that HUD's
VAWA 2005 regulations should encourage project-based Section 8 owners
to allow transfers to other project-based Section 8 developments they
own or to developments where they have cooperative agreements with
other owners. Such a policy would not be a violation of waiting list
regulations.
HUD Response: HUD's November 2008 interim rule was issued for the
purpose of conforming HUD's regulations to the self-implementing
provisions of VAWA 2005 and, as stated earlier in this preamble, for
the purpose of ensuring there was no confusion on the part of PHAs,
owners, and management agents that they should immediately commence
compliance with VAWA 2005. With respect to the request to HUD to
undertake rulemaking beyond this conforming rulemaking process, for the
purpose of establishing specific rights to victims of domestic
violence, dating violence, or stalking in HUD-subsidized housing, it is
HUD's view that VAWA 2005 well establishes those rights. HUD believes
that this view is consistent with the statutory language of VAWA 2005,
which was made effective upon enactment, and which did not direct HUD
to undertake rulemaking to implement the provisions applicable to HUD
programs.
With respect to transfer policies, HUD will continue to encourage,
rather than require, PHAs to include protections for victims of
domestic violence, dating violence, or stalking, within existing
transfer policies. While there are no transfer policies for project-
based Section 8 properties, HUD Handbook 4350.3 REV-1, Occupancy
Requirements of Subsidized Multifamily Housing Programs, already states
that owners may adopt a preference for families that include victims of
domestic violence. HUD will be revising the Handbook so that the
language also includes victims of dating violence and stalking. HUD
believes that the responsibilities of PHAs, multifamily
[[Page 66254]]
housing owners, and management agents are clear under VAWA 2005 to
protect tenants who are victims of domestic violence, dating violence,
or stalking and that PHAs, multifamily housing owners, and management
agents also need the flexibility to confront the various domestic
violence, dating violence, or stalking situations that may occur.
Comment: Address possible problems with moving and portability
policies. Certain commenters expressed concern about moving and
portability policies. According to one commenter, HUD's November 2008
interim rule allows a family to receive a voucher and to move out of a
unit in violation of the lease if the family believes itself in
immediate danger. However, the commenter stated that HUD has not
provided guidance on how to handle such situations with HCV landlords.
The commenter stated that clarification of such procedures is critical
if HUD expects landlords to continue to participate in the HCV program.
A second commenter stated that all parties would benefit from more
guidance on the portability issue. A third commenter stated that if the
November 2008 interim rule is read in conjunction with PIH Notice 2008-
43, it appears that a PHA can continue to deny a victim's request for
portability if the PHA has established a policy that prohibits a move
by the family during the initial lease term, or more than one move by
the family during any one-year period. In order to address this
problem, the commenter recommended that an exception be recognized in
Sec. 982.314(c) for voucher participants. The commenter stated that
PHAs need guidance from HUD on how to handle VAWA 2005-related absence
from the unit or the need to vacate the unit.
HUD Response: HUD agrees that denying a request for portability in
such a situation would be contrary to the intent of VAWA 2005.
Therefore, HUD has revised its regulation at Sec. 982.314(b) to
clarify that a PHA may not refuse to issue a voucher to an assisted
family due to the family's failure to seek approval prior to moving to
a new unit in violation of the original lease, if such move occurred to
protect the health or safety of a family member who is or has been the
victim of domestic violence, dating violence, or stalking and who
reasonably believed he or she was threatened with imminent harm if he
or she remained in the dwelling unit. This move, however, does not
relieve the family of any financial obligations on the original lease.
Additionally, HUD has revised its regulation at Sec. 982.314(c) to
clarify that PHA policies restricting the timing and number of moves do
not apply when the family or a member of the family is or has been the
victim of domestic violence, dating violence, or stalking, and the move
is needed to protect the health or safety of the family or family
member.
Comment: Clarification needed for addressing family break-ups due
to domestic violence. Three commenters asked HUD to clarify how PHAs
should respond when violence leads to family break-up. The commenters
suggested that HUD issue guidance stating that family break-up cannot
result in an eviction or termination in violation of VAWA and that
survivors of violence can be treated as the highest priority in
determining continuation of housing assistance. Another commenter
requested that HUD's final rule revise the regulatory text on the
Section 8 voucher program's approach to family breakup. The commenter
suggested that the approach for the Section 8 voucher program should be