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[Federal Register: October 27, 2010 (Volume 75, Number 207)]
[Rules and Regulations]
[Page 66245-66265]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc10-10]
[[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
[[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 http://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
http://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 http://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 http://
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: http://www.hud.gov/offices/adm/hudclips/
forms/files/50066.doc, and http://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
[[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
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
Sec. 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. 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
[[Page 66255]]
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 should ensure that PHAs properly handle
terminations involving VAWA 2005 through a PHA's grievance procedure,
including proper cross-references.
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) [Sec. 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, Sec. 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) [Sec. 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 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 break-up due to violence. Specifically, in Sec.
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
Sec. 982.553, which pertains to denial of admission and termination of
assistance for criminals and alcohol abusers, that
[[Page 66256]]
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 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
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, 5-
year, 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
[[Page 66257]]
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.
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.
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 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
[[Page 66258]]
programs--housing and community development, Low and moderate income
housing, Rent subsidies.
24 CFR Part 882
Grant programs--housing and community development, Housing,
Homeless, Lead poisoning, Manufactured homes, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 883
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
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.
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.
0
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.
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
0
1. The authority citation for part 5 is revised to read as follows:
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.
0
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
Sec. 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.
Sec. 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:
(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).
Sec. 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,
[[Page 66259]]
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 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.
Sec. 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:
(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
[[Page 66260]]
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.
Sec. 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 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.
Sec. 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
0
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.
0
4. Amend Sec. 91.205 to revise the first sentence of paragraph (b)(1)
to read as follows:
Sec. 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 low-income, 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 tenant-
based 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. * * *
* * * * *
0
5. Amend Sec. 91.305 to revise the first sentence of paragraph (b)(1)
to read as follows:
Sec. 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 low-income, 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
0
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.
0
7. Amend Sec. 880.504 to revise paragraph (f) to read as follows:
Sec. 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.
0
8. Amend Sec. 880.607 to revise paragraph (c)(5) to read as follows:
Sec. 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
0
9. The authority citation for part 882 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535d.
0
10. Revise Sec. 882.407 to read as follows:
[[Page 66261]]
Sec. 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.
0
11. Amend Sec. 882.511 to revise paragraph (g) to read as follows:
Sec. 882.511 Lease and termination of tenancy.
* * * * *
(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.
0
12. Amend Sec. 882.514 by removing the third sentence of paragraph (c)
and adding two sentences in its place to read as follows:
Sec. 882.514 Family participation.
* * * * *
(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
0
13. The authority citation for part 883 continues to read as follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
0
14. Revise Sec. 883.605 to read as follows:
Sec. 883.605 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
Sec. 883.105.
PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS
0
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.
0
16. Amend Sec. 884.216 to revise paragraph (c) to read as follows:
Sec. 884.216 Termination of tenancy.
* * * * *
(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.
0
17. Amend Sec. 884.223 to revise paragraph (f) to read as follows:
Sec. 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
0
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.
0
19. Revise Sec. 886.128 to read as follows:
Sec. 886.128 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 immigration status) in lieu of termination
of assistance, and concerning deferral of termination of assistance
also shall apply.
0
20. Revise Sec. 886.132 to read as follows:
Sec. 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.
0
21. Revise Sec. 886.328 to read as follows:
Sec. 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.
0
22. Amend Sec. 886.329 to revise paragraph (f) to read as follows:
Sec. 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
0
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.
[[Page 66262]]
0
24. Amend Sec. 891.575 to revise paragraph (f) to read as follows:
Sec. 891.575 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.
0
25. Revise Sec. 891.610(c) to read as follows:
Sec. 891.610 Selection and admission of tenants.
* * * * *
(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 Sec. 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.
* * * * *
0
26. Amend Sec. 891.630 to revise paragraph (c) to read as follows:
Sec. 891.630 Denial of admission, termination of tenancy, and
modification of lease.
* * * * *
(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
0
27. The authority citation for part 903 continues to read as follows:
Authority: 42 U.S.C. 1437c; 42 U.S.C. 3535(d).
0
28. Amend Sec. 903.6 to revise paragraph (a)(3) to read as follows:
Sec. 903.6 What information must a PHA provide in the 5-Year Plan?
(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.
* * * * *
0
29. Amend Sec. 903.7 to revise paragraph (m)(5) to read as follows:
Sec. 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
0
30. The authority citation for part 960 continues to read as follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 1437z-3, and
3535(d).
0
31. Amend Sec. 960.103 to revise the section heading and paragraph (d)
to read as follows:
Sec. 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.
0
32. Amend Sec. 960.200 to revise paragraph (b)(8) to read as follows:
Sec. 960.200 Purpose.
* * * * *
(b) * * *
(8) Protection for victims of domestic violence, dating violence,
or stalking, 24 CFR part 5, subpart L.
0
33. Amend Sec. 960.203 to revise paragraph (c)(4) to read as follows:
Sec. 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
0
34. The authority citation for part 966 continues to read as follows:
Authority: 42 U.S.C. 1437d and 3535(d).
0
35. In Sec. 966.4, revise paragraph (a)(1) and paragraph (e) to read
as follows:
Sec. 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 court-awarded 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:
[[Page 66263]]
(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 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 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
0
36. The authority citation for part 982 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535d.
0
37. Amend Sec. 982.53 to revise the section heading and paragraph (e)
to read as follows:
Sec. 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.
0
38. Amend Sec. 982.201 to revise paragraph (a) to read as follows:
Sec. 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.
* * * * *
0
39. Revise Sec. 982.202(d) to read as follows:
Sec. 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 applicants from the
waiting list, including any residency preference or other local
preference.
* * * * *
0
40. Amend Sec. 982.307 to revise paragraph (b)(4) to read as follows:
Sec. 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.
0
41. Revise Sec. 982.310(h)(4) to read as follows:
Sec. 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.
0
42. In Sec. 982.314, revise paragraphs (b) and (c)(2) to read as
follows:
Sec. 982.314 Move with continued tenant-based 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
[[Page 66264]]
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 one-year 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.
* * * * *
0
43. In Sec. 982.315, redesignate paragraph (a) as paragraph (a)(1) and
add a new paragraph (a)(2), and revise paragraph (b) to read as
follows:
Sec. 982.315 Family break-up.
* * * * *
(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.
* * * * *
0
44. Revise the last sentence of Sec. 982.353(b) to read as follows:
Sec. 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 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.
* * * * *
0
45. Amend Sec. 982.452(b)(1) to revise the second sentence to read as
follows:
Sec. 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.
* * * * *
0
46. Revise Sec. Sec. 982.551(e) and 982.551(l) to read as follows:
Sec. 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 Sec. 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.
* * * * *
0
47. Revise Sec. 982.552(c)(2)(v) to read as follows:
Sec. 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 Sec. 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.
* * * * *
0
48. Amend Sec. 982.553 to revise paragraph (e), to read as follows:
Sec. 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
0
49. The authority citation for part 983 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535(d).
0
50. Amend Sec. 983.4 to add a new proviso in alphabetical order, as
follows:
Sec. 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.
* * * * *
0
51. Amend Sec. 983.251 to revise paragraph (a)(3) to read as follows:
Sec. 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.
* * * * *
0
52. Amend Sec. 983.255 to revise paragraph (d) to read as follows:
Sec. 983.255 Tenant screening.
* * * * *
(d) The protections for victims of domestic violence, dating
violence, or
[[Page 66265]]
stalking in 24 CFR part 5, subpart L, apply to tenant screening.
0
53. Amend Sec. 983.257 to revise the last sentence of paragraph (a) to
read as follows:
Sec. 983.257 Owner termination of tenancy and eviction.
(a) * * * Part 5, subpart L of 24 CFR, on protection for victims of
domestic violence, dating violence, or stalking applies to this part.
* * * * *
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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