HUD Programs: Violence Against Women Act Conforming Amendments, 66246-66265 [2010-26914]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[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





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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.

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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.
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    \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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    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.
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    \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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    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

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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 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