[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)]
[Rules and Regulations]
[Pages 80724-80825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25888]
[[Page 80723]]
Vol. 81
Wednesday,
No. 221
November 16, 2016
Part II
Department of Housing and Urban Development
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24 CFR Parts 5, 91, 92, et al.
Violence Against Women Reauthorization Act of 2013: Implementation in
HUD Housing Programs; Final Rule
Federal Register / Vol. 81 , No. 221 / Wednesday, November 16, 2016 /
Rules and Regulations
[[Page 80724]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 91, 92, 93, 200, 247, 574, 576, 578, 880, 882, 883,
884, 886, 891, 905, 960, 966, 982, and 983
[Docket No. FR-5720-F-03]
RIN 2501-AD71
Violence Against Women Reauthorization Act of 2013:
Implementation in HUD Housing Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule implements in HUD's regulations the
requirements of the 2013 reauthorization of the Violence Against Women
Act (VAWA), which applies for all victims of domestic violence, dating
violence, sexual assault, and stalking, regardless of sex, gender
identity, or sexual orientation, and which must be applied consistent
with all nondiscrimination and fair housing requirements. The 2013
reauthorization (VAWA 2013) expands housing protections to HUD programs
beyond HUD's public housing program and HUD's tenant-based and project-
based Section 8 programs (collectively, the Section 8 programs) that
were covered by the 2005 reauthorization of the Violence Against Women
Act (VAWA 2005). Additionally, the 2013 law provides enhanced
protections and options for victims of domestic violence, dating
violence, sexual assault, and stalking. Specifically, this rule amends
HUD's generally applicable regulations, HUD's regulations for the
public housing and Section 8 programs that already pertain to VAWA, and
the regulations of programs newly covered by VAWA 2013.
In addition to this final rule, HUD is publishing a notice titled
the Notice of Occupancy Rights under the Violence Against Women Act
(Notice of Occupancy Rights) that certain housing providers must give
to tenants and applicants to ensure they are aware of their rights
under VAWA and these implementing regulations, a model emergency
transfer plan that may be used by housing providers to develop their
own emergency transfer plans, a model emergency transfer request form
that housing providers could provide to tenants requesting an emergency
transfer under these regulations, and a new certification form for
documenting incidents of domestic violence, dating violence, sexual
assault, and stalking that must be used by housing providers.
This rule reflects the statutory changes made by VAWA 2013, as well
as HUD's recognition of the importance of providing housing protections
and rights to victims of domestic violence, dating violence, sexual
assault, and stalking. By increasing opportunities for all individuals
to live in safe housing, this will reduce the risk of homelessness and
further HUD's mission of utilizing housing to improve quality of life.
DATES: Effective Date: These regulations are effective on December 16,
2016.
Compliance Date: Compliance with the rule with respect to
completing an emergency transfer plan and providing emergency
transfers, and associated recordkeeping and reporting requirements, is
required no later than May 15, 2017.
FOR FURTHER INFORMATION CONTACT: For information about: HUD's Public
Housing program, contact Monica Shepherd, Director Public Housing
Management and Occupancy Division, Office of Public and Indian Housing,
Room 4204, telephone number 202-402-5687; HUD's Housing Choice Voucher
program and Project-Based Voucher, contact Becky Primeaux, Director,
Housing Voucher Management and Operations Division, Office of Public
and Indian Housing, Room 4216, telephone number 202-402-6050; HUD's
Multifamily Housing programs, contact Yvette M. Viviani, Director,
Housing Assistance Policy Division, Office of Housing, Room 6138,
telephone number 202-708-3000; HUD's HOME Investment Partnerships
program, contact Virginia Sardone, Director, Office of Affordable
Housing Programs, Office of Community Planning and Development, Room
7164, telephone number 202-708-2684; HUD's Housing Opportunities for
Persons With AIDS (HOPWA) program, contact Rita Flegel, Director,
Office of HIV/AIDS Housing, Office of Community Planning and
Development, Room 7248, telephone number 202-402-5374; and HUD's
Homeless programs, contact Norman Suchar, Director, Office of Special
Needs Assistance, Office of Community Planning and Development,
telephone number 202-708-4300. The address for all offices is the
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410. The telephone numbers listed above are not toll-
free numbers. Persons with hearing or speech impairments may access
these numbers through TTY by calling the Federal Relay Service, toll-
free, at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action
This rule implements the HUD housing provisions in VAWA 2013, which
are found in Title VI of the statute. (See Pub. L. 113-4, 127 Stat. 54,
approved March 7, 2013, at 127 Stat. 101). VAWA 2005 (Pub. L. 109-162,
119 Stat. 2959, approved January 5, 2006) applied VAWA protections to
certain HUD programs by amending the authorizing statutes for HUD's
public housing and section 8 programs to provide protections for
victims of domestic violence, dating violence, and stalking. VAWA 2013
removes these amendments from the public housing and section 8
authorizing statutes, and in its place provides stand-alone VAWA
protections that apply to these programs, as well as additional HUD
programs, and also to victims of sexual assault. In addition, VAWA 2013
expands protections for victims of domestic violence, dating violence,
sexual assault, and stalking by amending the definition of domestic
violence to include violence committed by intimate partners of victims,
and by providing that tenants cannot be denied assistance because an
affiliated individual of theirs is or was a victim of domestic
violence, dating violence, sexual assault, or stalking (collectively
VAWA crimes). The new law also expands remedies for victims of domestic
violence, dating violence, sexual assault, and stalking by requiring
covered housing providers to have emergency transfer plans, and
providing that if housing providers allow for bifurcation of a lease,
then tenants should have a reasonable time to establish eligibility for
assistance under a VAWA-covered program or to find new housing when an
assisted household has to be divided as a result of the violence or
abuse covered by VAWA.
VAWA 2013 provides protections for both applicants for and tenants
of assistance under a VAWA-covered housing program. VAWA 2013 covers
applicants, as well as tenants, in the statute's nondiscrimination and
notification provisions. However, the emergency transfer and
bifurcation provisions of the rule are applicable solely to tenants.
The statutory provisions of VAWA that require a notice of occupancy
rights, an emergency transfer plan, and allow for the possibility of
bifurcation of a lease, support that it is a rental housing situation
that is the focus of the VAWA protections. However, as described in
this final rule, the core statutory protections of VAWA that prohibit
[[Page 80725]]
denial or termination of assistance or eviction solely on the basis
that an individual is a victim of domestic violence, dating violence,
stalking or sexual assault apply to certain housing programs subsidized
by HUD even where there is no lease. HUD funds many shelters, temporary
housing, short-term supported housing, and safe havens, and no person
is to be denied access to such facility or required to leave such
facility solely on the basis that the person is or has been a victim of
domestic violence, dating violence, sexual assault, or stalking. It is
equally important to note, as was noted in HUD's proposed rule, that
the core statutory protections of VAWA 2013 that apply to applicants
and tenants, were applicable upon enactment of VAWA 2013. As was
discussed in HUD's proposed rule and reiterated in this final rule,
regulations were not necessary to mandate adherence to this
nondiscrimination requirement. That is, if an individual meets all
eligibility requirements and complies with all occupancy requirements,
the individual cannot be denied assistance or have assistance
terminated solely on the basis that the individual is a victim of
domestic violence, dating violence, stalking, or sexual assault.
This rule better enables housing providers to comply with the
mandates of VAWA 2013, and it reflects Federal policies that recognize
that all individuals should be able to live in their homes without fear
of violence. The implementation of VAWA protections in HUD programs
increases opportunities for all individuals to live in safe housing and
reduces the risk of homelessness for individuals who might otherwise be
evicted, be denied housing assistance, or flee their homes.
Summary of the Major Provisions of This Regulatory Action
Major provisions of this rule include:
Specifying ``sexual assault'' as a crime covered by VAWA
in HUD-covered programs.
Establishing a definition for ``affiliated individual''
based on the statutory definition and that is usable and workable for
HUD-covered programs.
Applying VAWA protections to all covered HUD programs as
well as the Housing Trust Fund, which was not statutorily listed as a
covered program.
Ensuring that existing tenants, as well as new tenants, of
all HUD-covered programs receive notification of their rights under
VAWA and HUD's VAWA regulations.
Establishing reasonable time periods during which a tenant
who is a victim of domestic violence, dating violence, sexual assault,
or stalking may establish eligibility to remain in housing, where the
tenant's household is divided due to a VAWA crime, and where the tenant
was not the member of the household that previously established
eligibility for assistance.
Establishing that housing providers may, but are not
required to, request certain documentation from tenants seeking
emergency transfers under VAWA.
Providing for a six-month transition period to complete an
emergency transfer plan and provide emergency transfers, when
requested, under the plan.
Revising and establishing new program-specific regulations
for implementing VAWA protections in a manner that is workable for each
HUD-covered program.
Please refer to section II of this preamble, entitled ``This Final
Rule'' for a more detailed discussion of all the changes made to HUD's
existing regulations by this rule. In developing this rule, HUD
identified outdated terminology in its regulations (for example, the
use of the term ``alcohol abuser'' in part 982). HUD will be issuing a
future rule to update and correct such terms.
Costs and Benefits
The benefits of HUD's rule include codifying in regulation the
protections that VAWA 2013 provides applicants to and tenants of HUD
programs covered by VAWA; strengthening the rights of victims of
domestic violence, dating violence, sexual assault, or stalking in HUD-
covered programs, including notification and confidentiality rights;
and possibly minimizing the loss of housing by such victims through the
bifurcation of lease provision and emergency transfer provisions. With
respect to rental housing, VAWA was enacted to bring housing stability
to victims of domestic violence, dating violence, sexual assault or
stalking. It was determined that legislation was needed to require
protections for such victims because housing providers often responded
to VAWA crimes occurring in one of their rental units or on their
property by evicting the tenant regardless of whether the tenant was a
victim of domestic violence, dating violence, sexual assault, or
stalking, and refusing to rent to such victims on the basis that
violence would erupt in the victim's unit or on a housing provider's
property if the individual was accepted as a tenant. To ensure that
housing providers administering HUD assistance did not respond to
domestic violence, dating violence, or stalking by denying or
terminating assistance, VAWA 2005 brought HUD's public housing and
Section 8 programs under the statute's purview, and VAWA 2013 covered
the overwhelming majority of HUD programs providing rental assistance.
The costs of the regulations are primarily paperwork costs. These
are the costs of providing notice to applicants and tenants of their
occupancy rights under VAWA, the preparation of an emergency transfer
plan, and documenting an incident or incidents of domestic violence,
dating violence, sexual assault, and stalking. The costs, however, are
minimized by the fact that VAWA 2013 requires HUD to prepare the notice
of occupancy rights to be distributed to applicants and tenants; to
prepare the certification form that serves as a means of documenting
the incident or incidents of domestic violence, dating violence, sexual
assault, and stalking; and to prepare a model emergency transfer plan
that guides the entities and individuals administering the rental
assistance provided by HUD in developing their own plans. In addition,
costs to covered housing providers will be minimized because HUD will
translate the notice of occupancy rights and certification form into
the most popularly spoken languages in the United States, and HUD has
prepared a model transfer request form that housing providers and
tenants requesting emergency transfer may use. There may also be costs
with respect to a tenant claiming the protections of VAWA and a covered
housing provider responding to such incident, although these costs will
vary depending on the incidence of claims in a given year and the
nature and complexity of the situation.
I. Background
On March 7, 2013, President Obama signed into law VAWA 2013 (Pub.
L. 113-4, 127 Stat. 54). VAWA 2013 reauthorizes and amends VAWA 1994
(Title IV, sec. 40001-40703 of Pub. L. 103-322), which was previously
reauthorized by VAWA 2000 (Pub. L. 106-386) and VAWA 2005 (Pub. L. 109-
162, approved January 5, 2006, with technical corrections made by Pub.
L. 109-271, approved August 12, 2006).
The VAWA 2005 reauthorization brought HUD's public housing program
and HUD's Section 8 programs under coverage of VAWA by amending the
authorizing statutes for those programs, sections 6 and 8 of the United
States Housing Act of 1937 (the 1937 Act) (42 U.S.C. 1437 et seq.).
VAWA 2005 established that being a victim of domestic violence, dating
violence, or
[[Page 80726]]
stalking cannot be the basis for denial of assistance or admission to
public or Section 8 housing, and provided other protections for
victims. VAWA 2005 also contained requirements for notification to
tenants of the rights and protections provided under VAWA, provisions
on the rights and responsibilities of public housing agencies (PHAs)
and owners and managers of assisted housing, and provisions pertaining
to acceptable documentation of incidents of VAWA crimes and maintaining
the confidentiality of the victim. HUD regulations pertaining to VAWA
2005 protections, rights, and responsibilities are codified in 24 CFR
part 5, subpart L.
Title VI of VAWA 2013, ``Safe Homes for Victims of Domestic
Violence, Dating Violence, Sexual Assault, and Stalking,'' contains the
provisions that are applicable to HUD programs. Specifically, section
601 of VAWA 2013 removes VAWA protections from the 1937 Act and adds a
new chapter to Subtitle N of VAWA 1994 (42 U.S.C. 14043e et seq.)
entitled ``Housing Rights.'' As applicable to HUD, this chapter
provides additional protections for tenants beyond those provided in
VAWA 2005, and expands VAWA protections to other HUD programs.
On August 6, 2013, at 78 FR 47717, HUD published a Federal Register
notice that provided an overview of the applicability of VAWA 2013 to
HUD programs. This notice listed the new HUD housing programs covered
by VAWA 2013, described the changes that VAWA 2013 made to existing
VAWA protections, and identified certain issues for which HUD
specifically sought public comment. HUD solicited public comment for a
period of 60 days, and the public comment period closed on October 7,
2013. HUD appreciates the public comments submitted in response to the
August 6, 2013, notice, and these public comments were taken into
consideration in the development of this rule. The public comments on
the August 6, 2013, notice can be found at the www.regulations.gov
government-wide portal, under docket number FR-5720-N-01, at http://www.regulations.gov/#!docketDetail;D=HUD-2013-0074.
Many of the comments submitted in response to the August 6, 2013,
notice asked HUD to advise program participants that certain VAWA
protections are in effect without the necessity of rulemaking. In
response to these comments, HUD offices administering HUD-covered
programs reached out to participants in their programs to advise them
that the core statutory protections of VAWA--not denying or terminating
assistance to, or evicting an individual solely on the basis that an
individual is or has been a victim of domestic violence, dating
violence, stalking, or sexual assault--were effective upon enactment
and do not require notice and comment rulemaking for implementing these
protections and that they should proceed to provide the basic VAWA
protections.\1\
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\1\ See, for example, the letter to Executive Directors of
public housing agencies from the Assistant Secretary for Public and
Indian Housing, issued September 30, 2013, at http://portal.hud.gov/hudportal/documents/huddoc?id=sept2013vawaltr_phas.pdf, as well as
communications from HUD's HOME Investment Partnerships Programs
(HOME) at https://www.onecpd.info/resources/documents/HOMEfires-Vol11-No1-Violence-Against-Women-Reauthorization-Act-2013.pdf, and
from HUD's Office of Special Needs Assistance Programs at https://www.onecpd.info/news/reauthorization-of-the-violence-against-women-act-vawa/.
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On April 1, 2015, HUD published its proposed rule that provided the
amendments to HUD's existing regulations that HUD determined necessary
to fully implement VAWA 2013. The public comment period on the April 1,
2015, rule closed on June 1, 2015. HUD received 94 comments, including
duplicate mass mailings, resulting in 68 distinct comments. The
comments were submitted by housing authorities, other housing
providers, organizations that represent or provide services to specific
groups of housing providers, organizations that advocate for victims
and survivors of domestic and sexual violence, state coalitions against
domestic violence, other advocacy and not-for-profit organizations and
associations, state and local government agencies, a tribal
organization, and numerous unaffiliated individuals. All public
comments can be viewed at: http://www.regulations.gov/#!docketDetail;D=HUD-2015-0028.
Most commenters expressed support for the rule, with different
questions and comments about specific provisions. There were many
comments regarding emergency transfers, lease bifurcation, and
documentation requirements, as well as comments on eligibility for and
limitations on VAWA protections, the roles and responsibilities of
different housing providers under different HUD programs, the notice of
occupancy rights, implementation and enforcement of the rule,
confidentiality, and other issues. In addition, there were a number of
program-specific comments. HUD responds to issues raised by the public
comments in Section II.B. of this preamble.
This final rule reflects the Federal government's recognition that
all people have a right to live their lives safely. On September 9,
2014, in Presidential Proclamation 9164--Twentieth Anniversary of the
Violence Against Women Act, and on September 30, 2014, in Presidential
Proclamation 9181--National Domestic Violence Awareness Month, 2014,
President Obama discussed the ``basic human right to be free from
violence and abuse.'' The implementation of the policies laid out in
this rule will help to enforce this basic human right.
HUD notes that, in addition to utilizing housing protections in
VAWA, victims of domestic violence, dating violence, sexual assault,
and stalking, and those assisting them, may wish to consider other
available protections and assistance. On the Federal level, for
example, the U.S. Department of Justice (DOJ) administers programs that
provide funding for victims of crime, including victims covered by
VAWA. The Office for Victims of Crime (OVC), part of DOJ, administers
the Crime Victims Fund, which provides direct reimbursement to crime
victims for financial losses from crimes including medical costs,
mental health counseling, and lost wages or loss of support. This
provides reimbursement for victims during a time when they may be
facing financial constraints. The Crime Victims Fund may also be used
to fund transitional housing and shelter for victims of domestic
violence, dating violence, sexual assault, or stalking who need the
transitional housing or shelter because they were a victim of one of
these crimes, and to fund relocation expenses for those who need to
move because they were a victims of domestic violence, dating violence,
sexual assault, or stalking. OVC also provides grants to public and
non-profit organizations for essential services to victims of crime,
including emergency shelter, and the Office of Violence Against Women
(OVW), also part of DOJ, administers 24 grant programs where funds are
provided to states, territories, local government, non-profit
organizations, and community organizations for various targeted
persons. Information about the Crime Victims Fund is available at:
http://www.ovc.gov/pubs/crimevictimsfundfs/intro.html#VictimAssist and
information about OVW grants is available at http://www.justice.gov/ovw/grant-programs. Victims of domestic violence, dating violence,
sexual assault, and stalking may consult with local victim services
providers and state and local social service agencies to
[[Page 80727]]
determine whether funding and other forms of help and support may be
available.
Further, victims of domestic violence, dating violence, sexual
assault, and stalking should be aware that State and local laws may
provide greater protections than Federal law, and local victim service
providers and social service agencies may have further information
regarding this.
II. This Final Rule
A. Overview of Changes Made at the Final Rule Stage
After review and consideration of the public comments and upon
HUD's further consideration of VAWA 2013 and the issues raised in the
proposed rule, HUD has made certain changes in this final rule. The
following highlights the substantive changes made by HUD in this final
rule from the proposed rule.
The final rule:
Clarifies that, consistent with HUD's nondiscrimination
and equal opportunity requirements, victims of domestic violence,
dating violence, sexual assault, and stalking cannot be discriminated
against on the basis of any protected characteristics (including race,
color, religion, sex, disability, familial status, national origin, or
age), and HUD programs must also be operated consistently with HUD's
Equal Access Rule (HUD-assisted and HUD-insured housing must be made
available to all otherwise eligible individuals and families without
regard to actual or perceived sexual orientation, gender identity or
marital status). (See Sec. 5.2001(a).)
Provides that in regulations governing short-term
supported housing, emergency shelters, and safe havens, these forms of
shelter are subject to the core protections of VAWA that prohibit
denial of admission or eviction or termination to an individual solely
on the basis that the individual is a victim of domestic violence,
dating violence, or stalking, or sexual assault. (See Sec. Sec.
574.604(a)(2), 576.409(f), and 578.99(j)(9).)
Revises the definition of ``affiliated individual'' to
incorporate situations where an individual has guardianship over
another individual who is not a child. (See Sec. 5.2003.)
Revises the definition of ``domestic violence'' to
incorporate a definition of ``spouse or intimate partner'' rather than
cross-reference to another definition of the term, and to eliminate the
cross-reference to ``crime of violence,'' a more restricting term. (See
Sec. 5.2003.)
Provides that existing tenants in HUD-covered programs
receive HUD's Notice of Occupancy Rights and accompanying certification
form no later than one year after this rule takes effect, during the
annual recertification or lease renewal process, if applicable, or
through other means if there will be no annual recertification or lease
renewal process for a tenant. (See Sec. 5.2005(a)(2)(iv).)
Retains the provision of HUD's regulations implementing
VAWA 2005, for those HUD programs covered by VAWA 2005, which states
that the HUD-required lease, lease addendum, or tenancy addendum must
include a description of the specific protections afforded to the
victims of VAWA crimes. (See Sec. 5.2005(a)(4).)
Clarifies that applicants may not be denied assistance and
tenants may not have assistance terminated under a covered housing
program for factors resulting from the fact that the applicant or
tenant is or has been a victim of a VAWA crime. (See Sec.
5.2005(b)(1).)
Emphasizes that victims of sexual assault may qualify for
an emergency transfer if they either reasonably believe there is a
threat of imminent harm from further violence if they remain in their
dwelling unit, or the sexual assault occurred on the premises during
the 90-calendar-day period preceding the date of the request for
transfer. (See Sec. 5.2005(e)(2)(ii).)
Provides that emergency transfer plans must detail the
measure of any priority given to tenants who qualify for an emergency
transfer under VAWA in relation to other categories of individuals
seeking transfers or placement on waiting lists. (See Sec.
5.2005(e)(3).)
Provides that emergency transfer plans must allow for a
tenant to transfer to a new unit when a safe unit is immediately
available and the tenant would not have to apply in order to occupy the
new unit (Sec. 5.2005(e)(5)).
Provides that emergency transfer plans must describe
policies for assisting tenants to make emergency transfers when a safe
unit is not immediately available, both for situations where a tenant
would not have to apply in order to occupy the new unit, and where the
tenant would have to apply in order to occupy the new unit. (See Sec.
5.2005(e)(6), Sec. 5.2005(e)(7), and Sec. 5.2005(e)(8)).
Provides that the emergency transfer plans must describe
policies for assisting tenants who have tenant-based rental assistance
to make emergency moves with that assistance. (Sec. 5.2005(e)(9)).
Adds a provision that emergency transfer plans may require
documentation, as long as tenants can establish eligibility for an
emergency transfer by submitting a written certification to their
housing provider, and no other documentation is required for tenants
who have established that they are victims of domestic violence, dating
violence, sexual assault, or stalking to verify eligibility for a
transfer. (See Sec. 5.2005(e)(10).)
Requires housing providers to make emergency transfer
plans available upon request, and to make them publicly available
whenever feasible. (See Sec. 5.2005(e)(11).)
Provides for a six-month transition period to complete an
emergency transfer plan and provide emergency transfers, when
requested, under such plan. (See Sec. 5.2005(e) or applicable program
regulations)
Emphasizes that tenants and applicants may choose which of
the forms of documentation listed in the rule to give to housing
providers to document the occurrence of a VAWA crime. (See Sec.
5.2007(b)(1).)
Provides that in cases of conflicting evidence, tenants
and applicants who may need to submit third-party documentation to
document occurrence of a VAWA crime have 30 calendar days to submit the
third-party documentation. (See Sec. 5.2007(b)(2).)
Provides that if a covered housing provider bifurcates a
lease under VAWA, any remaining tenants who had not already established
eligibility for assistance must be given either the maximum time
permitted by statute, or, if there are no statutory prohibitions, at
least 90 calendar days from the date of bifurcation of the lease or
until expiration of the lease, depending on the covered housing
program, to establish eligibility for a covered housing program, or
find alternative housing (See Sec. 5.2009(b)(2).)
Provides that if a family in a HOME-assisted rental unit
separates under Sec. 5.2009(a), the remaining tenant(s) will retain
the unit. (See Sec. 92.359(d)(1).)
Provides that if a family receiving HOME tenant-based
rental assistance separates under Sec. 5.2009(a), the tenant(s) who
are not removed will retain the HOME tenant-based rental assistance,
and the participating jurisdiction must determine whether a tenant who
was removed from the unit will receive HOME tenant-based rental
assistance. (See Sec. 92.359(d)(2).)
Establishes VAWA regulations for the Housing Trust Fund,
based on the regulations for the HOME program. (See 24 CFR part 93.)
Emphasizes that VAWA protections apply to eviction actions
for tenants in
[[Page 80728]]
housing under a HUD-covered housing program. (See 24 CFR 247.1(b).)
Clarifies in the HOPWA regulations that the grantee or
project sponsor is responsible for ensuring that the owner or manager
of a facility assisted under HOPWA develops and uses a VAWA lease
addendum. (See part 574.)
Clarifies who is the covered housing provider for HUD's
multifamily Section 8 project-based programs and the Section 202 and
Section 811 programs, by providing that the covered housing provider is
the owner for the Section 8 Housing Assistance Payments Programs for
New Construction (part 880), for Section 515 Rural Rental Housing
Projects (part 884), and for Special Allocations (part 886), as well as
for the Section 202 and Section 811 programs (part 891) and that PHAs
and owners each have certain responsibilities as covered housing
providers for the Section 8 Moderate Rehabilitation Program (part 882),
and the Section 8 State Housing Agencies Program for State Housing
Agencies (part 883).
Updates various section 8 and public housing VAWA 2005
regulations to broadly state that VAWA protections apply, so that all
tenants and applicants, and not only those determined to be victims of
VAWA crimes, receive statutorily required notification of their VAWA
rights. (See parts 880, 882, 883, 884, 886, 891, 960, 966, and 982.)
Clarifies that VAWA protections and requirements apply to
mixed finance developments. (See Sec. 905.100(g).)
Clarifies that public housing agencies (PHAs), like other
covered providers, may establish preferences for victims of dating
violence, sexual assault, and stalking, in addition to domestic
violence, consistent with their statutory authority. (See Sec. Sec.
960.206(b)(4), 982.207(b)(4).)
Clarifies that for the Section 8 Housing Choice Voucher
and Project-Based Voucher programs, the PHA is the housing provider
responsible for complying with VAWA emergency transfer provisions. (See
Sec. Sec. 982.53(e), 983.3(b).)
B. Summary of Public Comments and HUD Responses
As noted earlier in this preamble, the majority of the commenters
expressed support for the rule, but they also presented questions and
comments about specific provisions of the rule. The primary provisions
of the rule on which commenters posted comments pertained to emergency
transfers, lease bifurcation, documentation requirements, eligibility
for and limitations on VAWA protections, the roles and responsibilities
of different housing providers under different HUD programs, the notice
of occupancy rights, implementation and enforcement of the rule, and
confidentiality requirements. The following presents the significant
issues raised by the commenters and HUD's response to the comments.
1. Applicability
a. Eligibility for VAWA Protections
Comment: Ensure proper evaluation of individuals who are or have
been victims of domestic violence, dating violence, sexual assault, or
stalking. Commenters stated that HUD's final rule should ensure
applicants are not denied assistance or housing for independent bases
that result from their status as a victim of domestic violence, dating
violence, sexual assault, or stalking. Commenters said that HUD's
currently codified regulations do not address how to evaluate when an
applicant who is or has been a victim of domestic violence, dating
violence, sexual assault, or stalking can show that denial of
assistance or housing is on that basis. Commenters stated that
survivors may have negative credit, housing, or criminal records based
on the violence committed against them that then disqualifies them in
the housing application process. Commenters said that HUD acknowledged
this barrier in its 2003 Public Housing Occupancy Guidebook,\2\ which
encouraged staff to exercise discretion and inquire about the
circumstances that may have contributed to the negative reporting to
determine whether domestic violence was a factor. Commenters
recommended that the final rule contain similar guidance and asked HUD
to include language in Sec. 5.2005 that applicants be provided with an
opportunity to show that domestic violence, dating violence, sexual
assault, or stalking was a factor in any negative rental, tenancy, or
criminal records that would result in denial of admission or
assistance; and, if it is determined such is the case, and the
applicant otherwise qualifies, the covered housing provider must grant
the application.
---------------------------------------------------------------------------
\2\ See http://www.hud.gov/offices/pih/programs/ph/rhiip/phguidebooknew.pdf.
---------------------------------------------------------------------------
A commenter stated that HUD's final rule's definitions of domestic
violence, dating violence, sexual assault or stalking must be
sufficiently clear so as not to cause survivors to be punished for
ancillary crimes as a result of the abuse they have suffered or cause
survivors to be blamed for the abuse. Commenters said some survivors
have been evicted because they ``invited'' the perpetrator into the
home and subsequently received an eviction notice under Crime Free Drug
Free policies \3\ or a Crime Free Lease Addendum.\4\ Commenters said
victims of VAWA crimes are disadvantaged because landlords typically do
not mention domestic violence, sexual violence or stalking in the
eviction notice.
---------------------------------------------------------------------------
\3\ Crime Free Drug Free policies generally refer to policies
set forth in lease addendum in which a renter agrees to maintain
their rental residence crime free or face eviction. See, for
example, the following lease addendum. http://www.cityofkasson.com/vertical/sites/%7BC3C7597A-7E80-4164-9E1A-84A37B5D7AAF%7D/uploads/Crime_Free_Lease_Addendum.pdf. A provision pertaining to domestic
violence may be worded as follows: Any resident, or member of the
resident's household, who is or has been a victim of domestic
violence, is encouraged to take reasonable action to safeguard
themselves, other members of the community, and property from future
injury or damage. This may include obtaining a protection order
against potential abusers, filing a copy of said protection order
and a picture of the respondent with management, report any
violation of the protection order to the police and management, and
prepare and file a personal safety plan with management. and that a
violation of this provision shall be cause for termination of the
tenancy. See http://www.cityofportorchard.us/docs/police/Crime_Free_Addendum.pdf.
\4\ A Crime Free Lease Addendum is a lease addendum that puts
potential tenants on notice that they are liable for any criminal
activity within their units, and if criminal activity does occur,
the lease can be terminated and eviction action initiated.
---------------------------------------------------------------------------
Some commenters asked that HUD revise Sec. 5.2005(b) to state that
an applicant may not be denied assistance, or a tenant have assistance
terminated or be evicted ``on the basis or as a result of the fact that
the applicant or tenant is or has been a victim of domestic violence .
. .'' in order to clarify that victims are protected from the results
of economic abuse, such as poor credit.
HUD Response: HUD interprets the term ``on the basis'' in VAWA
2013's statutory prohibitions against denying admission to, denying
assistance under, terminating a tenant from participation in, or
evicting a tenant from housing ``on the basis'' that the applicant or
tenant is or has been a victim of domestic violence, dating violence,
sexual assault, or stalking, to include factors directly resulting from
the domestic violence, dating violence, sexual assault, or stalking.
For example, if an individual has a poor rental or credit history, or a
criminal record, or other adverse factors that directly result from
being a victim of domestic violence, dating violence, sexual assault,
or stalking, the individual cannot be denied assistance under a HUD
program if the individual otherwise qualifies for the program. To
[[Page 80729]]
clarify this understanding, HUD accepts the commenters' suggestion to
amend proposed Sec. 5.2005(b), and the section now states that an
applicant or tenant may not be denied admission to, denied assistance
under, terminated from participation in, or evicted from housing or a
housing program on the basis or as a direct result of the fact that the
applicant or tenant is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking, if the applicant or
tenant otherwise qualifies for admission, assistance, participation, or
occupancy.
In addition to revising Sec. 5.2005(b), HUD will provide guidance
for covered housing providers to aid how they may determine whether
factors that might otherwise serve as a basis for denial or termination
of assistance or eviction have directly resulted from the fact that an
applicant or tenant is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking. As commenters noted, HUD
has already provided in its Public Housing Occupancy Guidebook that
PHAs should inquire about the circumstances that may have contributed
to negative reporting to determine whether that negative reporting was
a consequence of domestic violence.
Rule Change: HUD revises Sec. 5.2005(b) to state that an applicant
or tenant may not be denied admission to, denied assistance under,
terminated from participation in, or evicted from housing or a housing
program on the basis or as a direct result of the fact that the
applicant or tenant is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking, of the applicant or
tenant otherwise qualifies for admission, assistance, participation, or
occupancy.
Comment: Include victims of ``economic abuse'' as covered by VAWA
protections. Commenters stated that VAWA 2013 was meant to protect
victims of economic abuse, the legislative history of the statute
contains many references to the effects of economic abuse, and the
final rule should clarify that VAWA protections apply to victims of
economic abuse. Commenters said economic abuse includes a broad range
of conduct, including but not limited to, interfering with the victim's
employment, controlling how money is spent, forcing the victim to write
bad checks, incurring significant debt in the victim's name, or
otherwise harming the victim's financial security. Commenters stated
that persons who have poor credit, no credit or an inability to access
money can be denied housing, which often results in homelessness.
Commenters said the proposed definition of ``stalking'' eliminates the
harassment and intimidation considerations that arguably make economic
abuse a form of stalking under current regulations, and the consequence
is removing protections available to current tenants, and this runs
counter to VAWA 2013, which is intended to increase not reduce
protections.
Commenters suggested that HUD add economic abuse to the scope of
VAWA protections in Sec. 5.2001 and to the list of protected victims
throughout Sec. 5.2005. A commenter said that, should HUD determine
not to revise the text of the regulations to address economic abuse,
HUD should nevertheless clarify that VAWA covers economic abuse.
Commenters also suggested that HUD establish a notification and
certification process to ensure that victims of economic abuse receive
VAWA protections. Commenters said a victim of economic abuse could
supply a certification regarding such abuse when applying for a HUD
program. Commenters said that whenever an individual's ability to
participate in a HUD program is compromised due to economic factors,
the individual must be notified that VAWA protections may apply.
HUD Response: As previously discussed, HUD interprets VAWA to
prohibit covered housing providers from denying admission to, denying
assistance under, terminating a tenant from participation in, or
evicting a tenant from housing as a result of factors directly
resulting from the domestic violence, dating violence, sexual assault,
or stalking. Where an individual faces adverse economic factors, such
as a poor credit or rental history, that result from being a victim of
domestic violence, dating violence, sexual assault, or stalking, the
individual cannot be denied assistance under a HUD program if the
individual otherwise qualifies for the program. HUD declines, however,
to explicitly state in regulation that victims of economic abuse
receive the protections of VAWA. Such expansion would be beyond the
scope of HUD's VAWA rulemaking, which is intended to implement the
housing protections in VAWA 2013, as enacted. VAWA 2013 does not
independently provide protections for victims of economic abuse who are
not also victims of domestic violence, dating violence, sexual assault,
or stalking. HUD also declines to implement a process in this rule
where applicants who are denied admission to or assistance under a HUD
program specifically due to their economic situations will then receive
notice that they may be protected under VAWA and be provided an
opportunity to show that their economic situation is a result of
economic abuse. Both VAWA 2013 and this final rule provide that
applicants will be provided with notice when they are denied assistance
or admission under a covered housing program for any reason. Applicants
would then have the opportunity to assert that they are or were victims
of domestic violence, dating violence, sexual assault, or stalking, and
that they are eligible for VAWA protections.
As described in the proposed rule, VAWA 2013 removed the statutory
definition of stalking that HUD incorporated into the rule implementing
VAWA 2005, but maintained a universal definition of stalking that
applies throughout VAWA, as codified in 42 U.S.C. 13925(a)(30). As a
result, this rule replaces the statutorily removed definition of
stalking with the universal definition of stalking in VAWA. HUD
disagrees with the commenters' assertion that this change reduces VAWA
protections by eliminating harassment and intimidation considerations.
The previous definition of ``stalking'' included specific actions
(including harassment and intimidation) that either placed a person in
reasonable fear of death or serious bodily injury or caused substantial
emotional harm. The universal definition of ``stalking,'' provided in
this final rule, involves any course of conduct directed at a specific
person that would cause a reasonable person to fear for their own
safety or the safety of others, or suffer substantial emotional
distress.
Comment: Clarify which individuals are entitled to VAWA
protections: Commenters stated that the rule and related documents
provided to tenants and applicants must be clear about which
individuals are entitled to VAWA protections. A commenter stated that
the final rule should clarify that VAWA protections do not apply to
guests, unauthorized residents, or service providers hired by the
resident, such as live in aides. In contrast to these commenters, other
commenters stated that live-in aides should be covered by VAWA
protections under certain circumstances. Commenters stated that,
although live-in aides are not parties to the lease they are listed as
household members on tenant certifications and subject to the covered
property's ``house rules,'' and HUD requires that the covered property
be their sole residence. The commenters concluded that under these
circumstances live-in aides are similar to tenants. Commenters further
said that in the case where a tenant is abusing the live-in aide, the
aide can
[[Page 80730]]
leave the tenant's employ and VAWA protections would not apply, but in
the case where the live-in aide is a victim of abuse by someone living
outside the unit and the tenant continues to require the aide's
services, the housing provider should be required to offer the
household all VAWA protections and the entire household (including the
aide) should qualify for an emergency transfer.
Another commenter stated that the proposed rule advised that if an
unreported member of the household is the victim of domestic violence,
dating violence, sexual assault, or stalking, the tenant may not be
evicted because of such action as long as the tenant was not the
perpetrator. The commenter stated that, in the proposed rule, HUD
agreed with comments that VAWA protections should not extend to
individuals violating program regulations, such as housing unauthorized
occupants. The commenter stated that HUD's statement seems
contradictory because HUD is in effect extending VAWA protections to a
tenant who violates program regulations by allowing a person who is not
authorized to reside in the unit. The commenter asked HUD to advise how
to respond if a housing provider learns of the existence of an
unreported member of the household in violation of program regulations,
based solely on a tenant's reporting of a VAWA incident against the
unreported member. The commenter said HUD's rule does not establish a
clear nexus for the prohibition against denial or termination of
assistance ``on the basis'' that an applicant or tenant is or has been
a domestic violence victim.
Other commenters stated that the preamble to the proposed rule
created confusion when it stated that affiliated individuals do not
receive VAWA protections if they are not on the lease and that the
protections of VAWA are directed to tenants. Commenters stated that
specific protections, however, may extend to affiliated individuals or
be limited to tenants or lawful occupants. In support of this
statement, the commenters stated that no individual may be denied
housing in a covered program based on the individual's status as a
survivor, but the right to bifurcate the lease and preserve the subsidy
is limited to tenants or lawful occupants. Commenters asked HUD to
correct language in the preamble to the proposed rule that they stated
incorrectly construed the protections of VAWA as applying only to those
named on the lease, and added that whether an individual is a
``tenant'' or a ``lawful occupant'' is a question of State law on which
HUD should not take a position, as this could conflict with State law.
Commenters further stated that, as part of the dynamics of an abusive
relationship, a survivor will often not be listed as a tenant on the
lease but may be a lawful occupant. Commenters concluded their comments
stating that, to limit protections to ``tenants'' or to individuals
specifically named on the lease, without regard for how a lawful
occupant might be characterized under State or local laws, undermines
the very purpose of VAWA.
HUD Response: Only tenants who are assisted by a covered housing
program can invoke the VAWA protections that apply solely to tenants.
Several provisions in VAWA 2013, including the prohibited basis for
denial or termination of assistance or eviction and the emergency
transfer protection, apply to ``tenants,'' a term that VAWA 2013 does
not define. The term ``tenant'' refers to an assisted family and the
members of the household on their lease, but does not include guests or
unreported members of a household. In addition, a live-in aide or
caregiver is not a tenant, unless otherwise provided by program
regulations, and cannot invoke VAWA protections. However, as is the
case for anyone, a live-in aide or other service provider is entitled
to VAWA protections if the person becomes an applicant for HUD
assistance; that is, one does not have to have been a tenant in HUD
subsidized housing to invoke VAWA protections in later applying to
become a tenant in HUD subsidized housing.
A live-in aide or a guest could be an affiliated individual of a
tenant, and if that aide or guest is a victim of domestic violence,
dating violence, sexual assault, or stalking, the tenant with whom the
affiliated individual is associated cannot be evicted or have
assistance terminated on the basis that the affiliated individual was a
victim of a VAWA crime. Moreover, where a live-in aide is a victim of
domestic violence, dating violence, sexual assault, or stalking, and
the tenant seeks to maintain the services of the live-in aide, the
housing provider cannot require that the live-in aide be removed from
the household on the grounds of being a victim of abuse covered by
VAWA. The live-in aide resides in the unit as a reasonable
accommodation for the tenant with a disability. Indeed, to require
removal of the live-in aide solely because the aide is a victim of
abuse covered by VAWA likely would violate Section 504 of the
Rehabilitation Act, the Fair Housing Act, and the Americans with
Disabilities Act, as applicable, which require housing providers to
permit such reasonable accommodations. In addition, if a tenant
requests and qualifies for an emergency transfer on the grounds that
the live-in aide is a victim of domestic violence, dating violence,
sexual assault, or stalking, the tenant's entire household, which
includes the live-in aide, can be transferred.
Section 5.2005(d)(2) of this final rule states that covered housing
providers can evict or terminate assistance to a tenant for any
violation not premised on an act of domestic violence. However, if an
individual, who is a victim of domestic violence, has an unreported
member residing in the individual's household and the individual is
afraid of asking the unreported member to leave because of the
individual's domestic violence experience, then terminating the
individual's tenancy because of the unreported household member would
be ``premised on an act of domestic violence.'' Therefore, depending on
the situation, a tenant who violates program regulations by housing a
person not authorized to reside in the unit could be covered by VAWA's
anti-discrimination provisions, and eligible for remedies provided
under VAWA.
As discussed above, HUD interprets the term ``on the basis'' in
VAWA 2013's prohibitions against denying admission to, denying
assistance under, terminating a tenant from participation in, or
evicting a tenant from housing ``on the basis'' that the applicant or
tenant is or has been a victim of domestic violence, dating violence,
sexual assault, or stalking, to include factors directly resulting from
the domestic violence, dating violence, sexual assault, or stalking.
With respect to the comments about applying the VAWA protections to
survivors of domestic violence, dating violence, sexual assault, and
stalking whether they are named on the lease or not, HUD notes that the
term ``lawful occupant'' is not defined in VAWA 2013 and appears in the
statute four times in the following contexts: (i) In the definition of
``affiliated individual'' as a type of ``affiliated individual''; (ii)
in the documentation section of the statute as those who could be
evicted if they commit violations of the lease if the applicant or
tenant does not provide requested documentation; (iii) in the
bifurcation section, as those who could be evicted for engaging in
criminal activity directly relating to domestic violence, dating
violence, sexual assault, or stalking; and (iv) as those who might not
be negatively affected if a lease is bifurcated. Other than stating
that a housing provider may, at the provider's discretion, bifurcate a
lease
[[Page 80731]]
without penalizing a lawful occupant, VAWA 2013 does not provide
protections or benefits for lawful occupants.
Comment: Clarify whether housing providers who have a mixed
portfolio of projects and units will be required to offer protection
for some tenants but will not be required to offer them to others.
Commenters asked whether housing providers that have both covered and
non-covered projects will be faced with offering protections for
tenants in only some of their properties. Other commenters stated that
certain HUD-assisted properties have some units that must abide by HUD
regulations, while others are not subject to HUD regulations. Commenter
asked HUD to confirm whether, in such a complex, some tenants would be
eligible for VAWA protections while others would not be.
HUD Response: VAWA 2013 and HUD's rule apply only to HUD-covered
housing programs. Therefore, covered housing providers will be required
to provide VAWA protections to tenants and applicants under the covered
housing programs, but will not be required to provide such protections
to other tenants and applicants. Although this rule only applies to
tenants in and applicants to HUD-covered housing programs, housing
providers may choose to offer VAWA protections and remedies to all
tenants and applicants, where applicable. HUD encourages housing
providers to provide VAWA's core protections--not denying or
terminating assistance to victims of domestic violence, dating
violence, sexual assault, and stalking--to all tenants and applicants.
HUD also encourages housing providers to offer all VAWA protections,
such as emergency transfer and bifurcation provisions, to all tenants
where possible.
All housing providers should be aware of other Federal, State and
local laws that may provide similar or more extensive rights to victims
of domestic violence, dating violence, sexual assault, and stalking.
For example, properties funded with Low-Income Housing Credits (LIHTCs)
are also subject to VAWA requirements, and housing providers should
look to the regulatory agency responsible for LIHTCs--the Department of
Treasury--for how to implement VAWA protections in those properties.
Housing providers should also be aware more generally of other
Federal fair housing and civil rights laws that may be applicable,
including, but not limited to, the Fair Housing Act, Section 504 of the
Rehabilitation Act, the Americans with Disabilities Act, and Title VI
of the Civil Rights Act. For example, housing providers might violate
the Fair Housing Act under a discriminatory effects theory if they have
an unjustified policy of evicting victims of domestic violence, as such
a policy might disproportionately harm females or individuals that have
another protected characteristic.
Comment: Clarify whether VAWA protections can be invoked on
multiple occasions and whether other limits to protections could apply.
Commenters asked whether there is a limit to the number of times
covered housing providers must provide VAWA protections when the victim
continues to allow the perpetrator access to the property. Another
commenter said that one of the recurring issues for housing providers
is that victims may evoke VAWA protections repeatedly but then invite
or allow the perpetrator into their unit, often leading to repeated
instances of abuse and danger or disturbance for other households at
the property. Commenter asked whether, in order to continue to invoke
VAWA protections, VAWA allows covered housing providers to require that
a victim obtain a restraining order against the perpetrator, notify
local law enforcement if a restraining order is being violated, or
refuse to invite or allow the perpetrator onto the property.
In contrast to this comment, another commenter stated that HUD's
final rule should make clear that a tenant or family can be entitled to
VAWA protection on more than one occasion and cannot be subjected to
additional conditions that adversely affect their tenancy because they
have invoked VAWA protections. The commenter said it has dealt with
covered housing providers that decided to impose additional
requirements on tenants who sought VAWA protections, such as requiring
tenants to obtain protective orders or call the police, conditions they
do not impose on other tenants, including those who are victims of
other crimes (non-VAWA crimes), and this violates VAWA.\5\ The
commenter said these requirements conflict with recognized best
practices that affirm that the most effective way to ensure a
survivor's safety is to respect the survivor's autonomy in deciding
whether to obtain a protective order or to call the police.
---------------------------------------------------------------------------
\5\ See footnotes 2 and 3, which provide examples of these types
of lease provisions.
---------------------------------------------------------------------------
HUD Response: HUD agrees that a tenant or family may invoke VAWA
protections on more than one occasion and cannot be subjected to
additional conditions that adversely affect their tenancy because they
have invoked VAWA protections. Individuals and families may be subject
to abuse or violence on multiple occasions and it would be contrary to
the intent of VAWA to say that the protections no longer apply after a
certain point, even if violence or abuse continues, or the victim and
the victim's family members are still in danger. In cases where the
presence of the perpetrator on the property will endanger others, not
solely the unit in which the perpetrator resides, this final rule
maintains the provision that a housing provider may evict or terminate
assistance to a tenant if the housing provider can demonstrate an
actual and imminent threat to other tenants, or those employed at or
providing services to the property, if the tenant is not evicted or
assistance is not terminated. However, as discussed elsewhere in this
rule, housing providers should only take such actions when there are no
other actions that could be taken to reduce or eliminate the threat.
Allowing housing providers to apply a different occupancy standard
to survivors of domestic violence, dating violence, sexual assault, and
stalking than that applied to victims of other crimes violates the
intent of VAWA, which provides that housing providers cannot
discriminate against survivors and victims of a VAWA crime. HUD also
agrees that survivors do not have to contact authorities, such as
police, or initiate legal proceedings against an abuser or perpetrator
in order to qualify for VAWA protections. The statute has no such
requirements and instead allows survivors to provide self-certification
about the VAWA incident(s).
Comment: Eliminate or better explain the provision that eviction or
termination of assistance should only be used as a last resort. A
commenter stated that HUD retains paragraph (d)(3) of currently
codified Sec. 5.2005, which encourages a covered housing provider to
evict or terminate assistance only when there are no other actions that
could be taken to reduce or eliminate the threat of domestic violence.
The commenter said the ability of housing providers to avoid eviction
or termination will vary widely depending on factors that are generally
out of the control of the provider, and that HUD inserted paragraph
(d)(3) of Sec. 5.2005 during a prior rulemaking. The commenter stated
that this language is not in the VAWA statute, and should be stricken.
With respect to this provision, another commenter asked how far a
landlord is expected to go to keep the
[[Page 80732]]
property safe, how much the landlord is expected to expend to ensure
the safety of tenants, and what responsibility the tenants have in
ensuring their own safety.
HUD Response: As the commenter noted, Sec. 5.2005(d)(3)--now
designated as Sec. 5.2005(d)(4)--is already in HUD's VAWA regulations
and is in effect. HUD has no reason to eliminate this provision now, as
VAWA 2013 was meant to expand, and not to retract VAWA protections. HUD
agrees with the commenter that the ability and resources of the housing
provider to provide alternatives to evictions will vary, just as the
circumstances of the abuse and the safety needs of the victim will
vary. This variation, however, does not preclude a policy that sets
eviction as the last resort.
b. Covered Programs
Comment: List all program/subsidy types to which VAWA regulations
apply. Commenters said HUD regulations should specifically list all
programs and subsidy types to which VAWA protections apply, and not
solely those listed in the statute. A commenter said this is necessary
because there are many HUD programs that fall under the multifamily
umbrella and, in the past, VAWA requirements for the Section 8 programs
differed from other program types. Another commenter said it does not
appear that VAWA applies to certain Section 202 Direct Loan Projects
that do not have project-based Section 8 assistance, or to certain
Section 221(d)(3)/(d)(5) Below Market Interest Rate (BMIR) projects, or
to certain Section 236 projects. Commenter asked whether these programs
would be included. Another commenter said there should be an easier way
to explain which programs do not fall under VAWA.
HUD Response: HUD's final rule lists all HUD programs covered by
VAWA 2013 in the definition of covered housing program, and addresses
questions about specific programs below.
Comment: The Housing Trust Fund was not listed in VAWA as a covered
program. Commenters expressed concern about HUD's coverage of the
Housing Trust Fund (HTF) program, which was not specifically identified
as a ``covered housing program'' in the VAWA statute, and, said that
without specific statutory authority to apply VAWA to HTF, either a
tenant or housing provider could challenge the rule and its
application, which could lead to litigation expenses for all parties.
Other commenters stated that HTF should be a covered program.
Commenters stated that such coverage is consistent with Congressional
intent, which, through VAWA 2013, sought to expand VAWA protections to
all HUD programs that provide rental assistance. The commenters further
stated that maintaining similarity in the regulatory treatment of HOME
and HTF is efficient for program participants and appropriate because
many of the HTF's program requirements are similar to those that apply
to the HOME program.
HUD Response: HUD maintains the HTF program as a covered program in
this final rule. HUD has authority to establish regulations for its
programs where they do not conflict with other laws. Rather than
conflicting with VAWA 2013, including the HTF program as a covered
program aligns with the intent of the law, which expanded the
protections of VAWA to HUD's programs that provide rental assistance.
As noted in the preamble to the proposed rule and, as commenters have
themselves said, the HTF program is very similar to the HOME program
and to HUD, it is not logical to exclude the HTF program.
Rule Change: This final rule adds Sec. 93.356 (VAWA requirements)
to the HTF interim regulations, which generally applies the same VAWA
requirements to HTF as apply to the HOME program at 92.359. This final
rule also revises Sec. 93.303 (Tenant protections and selection) by
revising Sec. 93.303(a) and adding Sec. 93.303(d)(7) to mirror Sec.
92.253 (a) and Sec. 92.253(d)(7) of this final rule's HOME
regulations. In addition, this rule revises Sec. 93.404(c) to state
that written agreements with subgrantees and eligible recipients must
set forth all obligations the grantee imposes on them in order to meet
the VAWA requirements under Sec. 93.356, including notice obligations
and obligations under the emergency transfer plan.
Comment: All Section 202 Direct Loan projects should be subject to
VAWA protections. Commenters said the proposed rule was not clear as to
why Section 202 Direct Loan projects without project-based rental
assistance were excluded from VAWA protections, and recommended that
HUD include these properties. Another commenter said that HUD's
decision to exclude the Section 202 Direct Loan program from VAWA's
coverage is based on an interpretation that is unnecessarily
restrictive and violates the VAWA statute. A commenter stated VAWA
2013's plain statutory language is broad in scope, expressing no
further limitation or ambiguity, and any property funded under Section
202 qualifies. Other commenters said that covering Section 202 Direct
Loan properties without Section 8 contracts extends these important
protections to all similar HUD-supported housing programs, which
follows congressional and HUD intent.
HUD Response: HUD maintains that its interpretation provided in the
proposed rule with respect to Section 202 Direct loans is correct, but
includes additional information to elaborate on HUD's proposed rule
statement. In the proposed rule, at 80 FR 17752, HUD stated that
section 202 of the National Housing Act of 1959 authorized HUD to make
long-term loans directly to multifamily housing projects and the loan
proceeds are to be used to finance the construction of multifamily
rental housing for persons age 62 years or older and for persons with
disabilities. The Section 202 Direct Loan program ran from 1959 to
1990.\6\ The purpose of the program was primarily to provide direct
Federal loans for the development or substantial rehabilitation of
housing for the elderly or for persons with disabilities. Amendments to
Section 202 Direct Loan program in 1990, made by the Cranston-Gonzalez
National Affordable Housing Act, replaced this program with capital
advance programs for owners of housing designed for the elderly or
residents with disabilities, and established two parallel programs for
the elderly and for persons with disabilities--the Section 202
Supportive Housing for the Elderly program and the Section 811
Supportive Housing for Persons with Disabilities Program.\7\ These two
programs, which are rental programs, and which reflect the majority of
the legacy of the Section 202 Direct Loan program, are covered by VAWA.
Further, all projects that received Section 202 direct loans and
receive project-based assistance under Section 8 are required to comply
with VAWA protections.
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\6\ See https://www.hudexchange.info/course-content/hud-multifamily-affordable-housing-preservation-clinics/Preservation-Clinic-Workshop-Section-202-Direct-Loan.pdf.
\7\ See Public Law 101-625, 104 Stat. 4079, approved November
28, 1990. See specifically Title VIII at 104 Stat. 4297.
---------------------------------------------------------------------------
However, as mentioned in the proposed rule, there have been no new
Section 202 direct loans since 1990. All Section 202 direct loan
projects, as with projects under other HUD programs, that received any
type of direct assistance prior to VAWA 2013 are not subject to new
statutory requirements on HUD programs unless there is some ongoing
contractual agreement with HUD or the statute specifically speaks to
retroactive application for existing projects. Therefore, unless the
Section
[[Page 80733]]
202 direct loan project has an agreement or contract with HUD
otherwise, such as with project-based assistance under Section 8, those
direct loans entered into prior to 2013 would not be subject to VAWA
requirements because VAWA did not specifically apply its requirements
retroactively.
Comment: Encourage, if not require, housing providers under
additional Federally-financed programs to offer VAWA protections.
Commenters asked HUD to make clear that housing providers in programs
not covered by HUD's VAWA regulations can offer VAWA protections, and
to encourage these providers to offer VAWA protections. Commenters also
urged HUD to ensure that all affordable units with HUD funds are
subject to VAWA, including existing units that undergo affordable
housing preservation efforts by HUD, such as the Rental Assistance
Demonstration (RAD) units, Choice Neighborhood units, and multifamily
units in the Rent Supplement Program. Commenters asked that the final
rule's description of public housing explicitly include public housing
that has been assisted by, for example, HOPE VI, Mixed Finance, Choice
Neighborhoods, or converted under the RAD program. Another commenter
asked that HUD generally state in its regulations that VAWA applies to
affordable units that HUD preserves and, where applicable, that the
VAWA obligation be set forth in any relevant Notice of Funding
Availability (NOFA). Other commenters further recommended that HUD's
regulations reflect HUD's authority to expand VAWA protections to other
types of HUD affordable housing that may be established in the future
and the agency will do so by HUD or Federal Register notice.
A commenter also said that the proposed regulations in 24 CFR
574.604(a)(2) and 578.99(j) are too broad, and where rental assistance
is provided and there is a written agreement or a lease, VAWA should
apply to short-term supported housing and McKinney-Vento Safe Havens.
Another commenter asked for guidance that clearly allows senior housing
providers the option to extend VAWA protections to victim residents,
even if their program type was not specifically included in the
statute.
HUD Response: HUD's VAWA regulations apply only to HUD-covered
housing programs, but, as HUD has earlier stated in this preamble,
housing providers have discretion to apply the rule's provisions to all
tenants and applicants and HUD indeed encourages housing providers to
provide VAWA protections to all tenants not only to those covered in
HUD subsidized units. With respect to HUD's authority to expand
coverage to other HUD programs not listed in the statute, HUD has such
authority and the inclusion of the HTF program in this rule evidences
such authority.
Tenants in units under a HUD-covered program maintain their VAWA
protections where their units are converted to coverage under a new HUD
program. The conversion does not eliminate their VAWA protections. With
respect to RAD, tenants in converted units continue to be covered by
VAWA's protections provided under HUD's Section 8 Project-Based Voucher
program or Project-Based Rental Assistance Program.
Choice Neighborhoods is a development tool that uses grant funds to
develop housing to address struggling neighborhoods with distressed
public or HUD-assisted housing. The assistance may come from public
housing, RAD or HOME funds. Therefore, tenants residing in units
developed with Choice funds receive VAWA protections under the relevant
rental subsidy programs where assistance comes from a HUD-covered
housing program.
The Rent Supplement program provides continued assistance on active
or newly expired original term contracts. Though the program is no
longer active, families continue to be supported until each Rent
Supplement contract expires. For the VAWA protections to apply, tenants
need to be residing in a project that receives Rent Supplement payments
and is also subject to VAWA, such a section 221(d)(3)/(d)(5) project or
section 236 project. Once a Rent Supplement contract expires, families
may receive tenant protection vouchers and are then under the Housing
Choice Voucher (HCV) program (i.e., the Section 8 tenant-based
program), a covered housing program.
Tenants in public housing that received funding under the HOPE VI
program would continue to have the same VAWA rights as other public
housing residents.
To ensure tenants in mixed-finance projects receive VAWA
protections, this final rule adds a new provision at 24 CFR 905.100(g)
that provides that PHAs must apply the VAWA protections under part 5
for mixed finance developments.
This rule maintains the provisions in Sec. Sec. 574.604(a)(2) and
578.99(j) that state the requirements in 24 CFR part 5, subpart L, that
are specific to tenants or those who are applying to become tenants
(such as the notice of occupancy rights for tenants and applicants, and
bifurcation of leases and emergency transfer plans for tenants) do not
apply to short-term supported housing and McKinney-Vento Safe Havens,
as the regulations for tenants could not be applied in those contexts.
However, in response to commenters' concerns, the regulations in this
final rule explicitly provide that safe havens and short-term supported
housing are subject to the core protections of VAWA (the prohibitions
against denying admission or terminating assistance on the basis that
the individual is or has been a victim of domestic violence, dating
violence, stalking or sexual assault).
Rule Change: This rule includes a new provision at 24 CFR
905.100(g) for mixed finance developments in 24 CFR part 905, subpart
F, which provides that public housing agencies must apply the VAWA
protections in 24 CFR part 5, subpart L.
This rule clarifies, in the HOPWA regulations at 24 CFR
574.604(a)(2), and the regulations for the Continuum of Care (CoC)
program at 578.99(j), that, although the requirements in 24 CFR part 5,
subpart L, do not apply to short-term supported housing or safe havens,
no individual may be denied admission to or removed from the short-term
supported housing or safe haven on the basis or as a direct result of
the fact that the individual is or has been a victim of domestic
violence, dating violence, sexual assault, or stalking, if the
individual otherwise qualifies for admission or occupancy.
Comment: The Rural Housing Stability Assistance Program final rule
should incorporate VAWA protections and obligations. Commenters stated
that the proposed rule does not provide any amendments to the Rural
Housing Stability Assistance Program (RHSP), and commenters urged HUD
to ensure that the RHSP final rule comprehensively incorporates VAWA's
protections and obligations. Commenters said that the RHSP proposed
rule provided an exception for VAWA victims who needed to relocate for
safety reasons by allowing victims with tenant-based assistance to move
out of the county, but the requirements are inconsistent with VAWA and
there is no mention of VAWA in the RHSP rule governing termination of
assistance. Commenters asked HUD to make sure that the VAWA obligations
and policies of the RHSP program are consistent within HUD's homeless
assistance programs, as well as across all programs administered by
HUD's Office of Community Planning and Development. Commenters
recommended amending 24 CFR 579.418 and 579.424 to include references
to VAWA.
[[Page 80734]]
HUD Response: HUD appreciates these comments, and notes that the
VAWA Reauthorization Act of 2013 occurred prior to the publication of
the RHSP proposed rule. HUD will include the applicable VAWA provisions
in the RHSP final rule.
Comment: HUD's rule should cover McKinney-Vento homeless shelters.
Commenters said the proposed rule did not include emergency shelters,
as it limits the types of assistance to short or medium-term rental
assistance and permanent or transitional housing. Commenters urged HUD
to include emergency shelters in the final rule interpreting programs
covered under Title IV of the McKinney Vento/Homeless Emergency
Assistance and Rapid Transition to Housing (HEARTH) Act, and to include
program-specific amendments to Emergency Solutions Grants (ESG) and CoC
regulations that clarify that emergency shelter is part of a VAWA
covered housing program. A commenter asked HUD specifically to address,
in the shelter context, the applicability of VAWA's notice of occupancy
rights, and the prohibition against denial of admission or assistance
and termination from participation in shelter.
Commenters stated that the plain language of VAWA does not exclude
shelters, and said that ``applicable assistance,'' which cannot be
denied or terminated pursuant to VAWA, does not necessarily have to be
tied to rental assistance. Commenters said admission and termination
policies and practices at homeless shelters can often exclude survivors
of domestic violence, dating violence, sexual assault and stalking, and
victims report having to recount the violence and report being subject
to a higher standard of admission and conditions of stay than other
participants, such as producing orders of protection. Commenters said
these victims are also denied admission if they are considered
``unsafe'' for the program, and in family shelters, domestic violence
survivors are sometimes terminated from the program along with the
perpetrator if they are abused on the property.
Commenters said Continuums of Care often choose homeless shelter
programs as the main entry point into coordinated assessment, and if
shelters' exclusionary practices continue without VAWA's protections,
survivors may be excluded from access not only to emergency shelter,
but also to other resources and housing. Commenters said such practices
undermine HUD's efforts to end homelessness to exclude shelters from
VAWA protection because, in many CoCs, they will be the entry point
through which victims experiencing homelessness access tenant-based
rental assistance, transitional housing and other HUD-funded
homelessness programs.
HUD Response: HUD agrees with the commenters that the core VAWA
nondiscrimination protections should apply to emergency shelters
subsidized by HUD, and individuals are not to be denied shelter because
they are victims of domestic violence, dating violence, sexual assault,
or stalking. In this final rule, HUD adds language to the ESG program
regulation to make the VAWA core protections apply to emergency
shelter.
However, as HUD stated in its proposed rule, the regulatory
requirements in 24 CFR part 5, including the notice of occupancy
rights, apply to assistance for rental housing, which generally
involves a tenant, a landlord (the individual or entity that owns and/
or leases rental units) and a lease specifying the occupancy rights and
obligations of the tenant. This is because, as explained elsewhere in
this rule, those VAWA protections are directed to rental housing.
Rule Change: In this final rule, HUD provides in 24 CFR 576.409(f)
that for emergency shelters funded under 24 CFR 576.102, no individual
or family may be denied admission to or removed from the emergency
shelter on the basis or as a direct result of the fact that the
individual or family is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking, if the individual or
family otherwise qualifies for admission or occupancy.
Comment: Explain how housing providers should coordinate multiple
forms of assistance for a single housing unit. Commenters stated that
HUD's proposed rule did not address the ways in which multiple forms of
assistance covered by VAWA requirements may be coordinated under the
HTF program, in other mixed finance properties or when multiple forms
of assistance apply to a given housing unit.
HUD Response: HUD provides in Sec. 5.2001(b)(2) of this final rule
that, when assistance is provided under more than one covered housing
program and there is a conflict between VAWA protections or remedies
under those programs, the individual seeking the VAWA protections or
remedies may choose to use the protections or remedies under any or all
of those programs, as long as the protections or remedies would be
feasible and permissible under each of the program statutes. As
explained later in this preamble, where housing is covered under
multiple HUD programs, the responsible housing provider under each
program will provide the required Notice of Occupancy Rights and
certification form, and tenants may request emergency transfers or
lease bifurcations under any applicable program, unless prohibited from
doing so because of statutory constraints. For example, if a lease is
bifurcated for a permanent supportive housing unit that is assisted
under both HOME and the CoC Program, and the CoC Program rule would
prohibit the remaining family member from continuing to reside in the
unit beyond the existing lease term, because the family member does not
have a disability, then the family member cannot depend on the
bifurcation regulations for the HOME program to remain in the unit for
longer than the existing lease term.
Rule Change: HUD revises Sec. 5.2001(b)(2) to clarify that, when
assistance is provided under more than one covered housing program and
there is a conflict between VAWA protections or remedies under those
programs, the individual seeking the VAWA protections or remedies may
choose to use the protections or remedies under any or all of those
programs, as long as the protections or remedies would be feasible and
permissible under each of the program statutes.
2. Definitions and Terminology
a. General Terminology
Comment: Clarify that VAWA does not apply solely to women. A
commenter stated that while the name of VAWA cannot be changed,
references to VAWA could instead be made to a housing violence policy
to encourage more individuals to seek protections.
HUD Response: HUD appreciates this comment and has repeatedly
stated in its rule, documents, and in guidance that VAWA applies
regardless of sex, gender identity, or sexual orientation. In the very
first paragraph of the first regulatory section (24 CFR 5.2001(a)) HUD
states that notwithstanding the title of the statute victims covered by
VAWA protections are not limited to women. However, HUD declines to
change references to VAWA out of concern that this will cause confusion
as to whether HUD's regulations are associated with the statute. It is
important that the public are aware that these protections are mandated
by statute.
HUD emphasizes in this final rule that victims cannot be
discriminated against on the basis of any protected characteristic,
including race, color, national origin, religion, sex, familial
[[Page 80735]]
status, disability, or age, and HUD programs must also be operated
consistently with HUD's Equal Access Rule at 24 CFR 5.105(a)(2), which
requires that HUD-assisted and HUD-insured housing are made available
to all otherwise eligible individuals and families regardless of actual
or perceived sexual orientation, gender identity, or marital status.
Rule Change: In this final rule, HUD adds a provision in Sec.
5.2001 that states that, consistent with the nondiscrimination and
equal opportunity requirements at 24 CFR 5.105(a), victims cannot be
discriminated against on the basis of any protected characteristic,
including race, color, national origin, religion, sex, familial status,
disability, or age, and HUD programs must also be operated consistently
with HUD's Equal Access Rule at 24 CFR 5.105(a)(2)
Comment: Use terminology that applies to all VAWA victims. In order
to support housing providers in considering the needs of sexual assault
victims, commenters recommended that HUD always list the four protected
crimes separately (domestic violence, dating violence, sexual assault
and stalking) rather than using umbrella terms like ``domestic and
sexual violence.'' Commenters stated that the self-certification form
collectively refers to domestic violence, dating violence, sexual
assault, and stalking as ``domestic violence,'' but they advised that
this can cause confusion for a survivor of stalking or sexual assault
whose perpetrator may have been a stranger, and to ensure all survivors
covered under VAWA protections are aware of their rights, ``domestic
violence'' should not be used as a catch-all term, and each term should
be used separately. Commenters further suggested that HUD use terms
like ``perpetrator'' rather than ``abuser'' to fit a multiple crimes
context. Commenters also said that HUD should not solely reference
victims fleeing from abuse, but also those recovering from violence in
order to better address the nature of trauma from the impact of sexual
violence.
HUD Response: HUD appreciates these comments and agrees with the
concerns expressed by the commenters. HUD has revised the certification
form, notice of occupancy rights, and model emergency transfer plan to
list the four protected crimes separately, and to use the term
``perpetrator'' in lieu of, or in addition to the term ``abuser'' when
referencing a person who commits one of the VAWA crimes. HUD has also
revised the notice of rights and model emergency transfer plan to
provide resources for victims of sexual assault and stalking, in
addition to resources for victims of domestic violence.
b. Affiliated Individual
Comment: The definition of ``affiliated individual'' and its use in
the proposed rule is not clear. Commenters said HUD's proposed rule
indicated that HUD's replacement of, ``immediate family members,'' with
``affiliated individual'' will include any legitimate household member,
whether a family member or not. Commenters said the language in the
proposed rule appeared to reach beyond that as the proposed rule
included ``any individual, tenants, or lawful occupants.'' Commenters
stated that inclusion of ``any individual'' is separate from ``lawful
occupant,'' further stating that these two classes are not identical. A
commenter said that if ``any individual'' refers to an unauthorized
occupant, then the regulations must explain what protections, if any,
such individuals may receive if the individual is a victim of a VAWA
crime or is an innocent household member in a household where a VAWA
crime was committed. The commenter asked, for example, if those who are
not tenants or lawful occupants would be afforded a reasonable time to
establish eligibility for a covered housing program following a lease
bifurcation. Commenters said that if the term ``any individual'' refers
to an unauthorized occupant, the regulation should state that this
individual has no rights to the unit. Another commenter said the
definition of ``any individual'' must explicitly exclude guests or
illegitimate occupants. Another commenter said the final rule should
clarify that an affiliated individual can only be somebody lawfully
living in the household. The commenter said that while VAWA protections
apply only to lawful tenants, the rule asserts an affiliated individual
may receive indirect benefits, but the final rule should clarify VAWA
benefits do not apply to unreported or unauthorized members of the
household.
HUD Response: Under VAWA 2013 and HUD's regulations, the term
``affiliated individual'' does not refer to the tenant who requests or
is eligible for VAWA protections. Rather, an affiliated individual
refers to a person who has a certain relationship to a tenant who is
eligible for VAWA protections and remedies.
Under both VAWA 2013 and HUD's regulations, a tenant may not be
denied tenancy or occupancy rights solely on the basis of criminal
activity directly relating to domestic violence, dating violence,
sexual assault, or stalking if that tenant or an affiliated individual
of the tenant is the victim or threatened victim of such domestic
violence, dating violence, sexual assault or stalking. In essence, the
inclusion of affiliated individual is to add a further protection for
tenants by providing that a VAWA crime committed against an affiliated
individual, an individual without VAWA protections, is not a basis for
denying or terminating assistance to the tenant. HUD declines to change
or limit the definition of ``affiliated individual'' to exclude ``any
individual.'' The statute provides that the term includes any
individual ``living in the household of the person who is eligible for
VAWA protections.''
Comment: HUD's language change from ``in loco parentis'' may not
include guardianships of non-competent adults. Commenters stated that
the definition of ``affiliated individual'' refers repeatedly to
relationships with children, but the definition should include all
circumstances where a household member has some form of guardianship
over a non-competent household member of any age.
HUD Response: The statutory definition of ``affiliated individual''
includes any individual living in the household of a person, and
therefore a non-competent household member would be included as an
affiliated individual. However, the familial and close relationships in
the first part of the definition of affiliated individual do not
require that the affiliated individual live in the same household as
the person seeking VAWA protections. HUD appreciates the commenter's
concern that HUD's change from the statutory phrase ``in loco
parentis'' to language regarding a relationship like that of a parent
to a child may be under-inclusive. HUD has revised the definition of
``affiliated individual'' to include a relationship where an individual
has a guardianship of another individual, regardless of age.
Rule Change: HUD revises the definition of ``affiliated
individual'' in Sec. 5.2003 to provide that affiliated individual,
with respect to an individual, means: (A) A spouse, parent, brother,
sister, or child of that individual, or a person to whom that
individual stands in the place of a parent or guardian (for example,
the affiliated individual is a person in the care, custody, or control
of that individual); or (B) any individual, tenant, or lawful occupant
living in the household of that individual.
[[Page 80736]]
c. Covered Housing Provider
Comment: Clarify which covered housing provider has which
responsibilities under VAWA. Commenters stated that in sections of the
proposed regulation on HUD's multifamily Section 8 project-based
programs in 24 CFR parts 880, 882, 883, 884, 886, and 891, the covered
housing provider is defined as either the PHA or the owner, depending
on the circumstances; for example, the commenter stated, the definition
provides that the PHA would be responsible for providing the notice of
occupancy rights and certification form. The commenters questioned this
responsibility since PHAs under these programs do not have the contact
with applicants or tenants that owners have, and said this is more
properly an owner's responsibility, particularly when serving a notice
of eviction. A commenter said that HUD should provide copies of the
notice and certification form to the owner, and then the owner must
provide the notice and form when required.
Commenters also said HUD's proposed rule identifies the PHA as the
entity responsible for providing the reasonable time to establish
eligibility for assistance following bifurcation of a lease for HUD's
multifamily Section 8 project-based programs, but Sec. 5.2009(b) of
the rule defines the time that a tenant has to establish eligibility
for assistance and does not give a covered housing provider flexibility
in that regard. A commenter said that, it is the owner, not the PHA
that establishes eligibility, and therefore, it should be the owner,
not the PHA, to provide the reasonable time to establish eligibility.
A commenter stated that the definition of ``covered housing
provider'' in 24 CFR parts 880, 882, 884, 886, 891, 982, and 983 was
proposed, in the April 1, 2015, proposed rule to be the same as in 24
CFR part 883. The commenter encouraged HUD to review the definition of
covered housing provider in the context of how each of the programs is
actually administered and reevaluated whether the definition is
appropriate. A commenter recommended that any activity that requires an
interaction with a tenant should be assigned to the owner or its
manager; and a State housing agency should be responsible only for
monitoring the delivery of appropriate notices and that correct
policies are in place and being followed. The commenter stated that, if
model forms for use by an owner are required, the State housing agency,
if not HUD, could provide them.
Other commenters stated that, for the Moderate Rehabilitation
Single Room Occupancy (SRO) program, the proposed rule stated that the
owner is the covered housing provider, but it is unclear why the PHA is
not also considered the covered housing provider since the PHA has
duties in administering the program. The commenters stated that it is
unclear which entity is responsible for adopting, administering, and
facilitating the emergency transfer plan, which entity is responsible
for maintaining confidentiality and lease bifurcation, and which entity
is responsible for providing the VAWA housing rights notice and
certification form. Commenters stated that confidentiality must be
maintained by the entity that obtains the information about the victim,
and when a lease bifurcation occurs, the owner and the PHA must
coordinate to provide a reasonable time for the tenant to establish
eligibility for the same covered program or another covered program.
Another commenter said that the State recipient should be the
conduit and responsible party for implementation. The commenter said
that, because CoCs operate distinctly across a State and PHAs have
considerable local control, it is important that the implementation of
VAWA be consistent and equally applied to survivors, regardless of
where they may reside in a State, and the State recipient could serve
in an ombudsman-type role in order to ensure that all organizations and
individuals understand their roles and obligations. The commenter said
State recipients should specifically be tasked with developing model
notices, forms, and the emergency transfer plans in collaboration with
the statewide domestic violence and sexual assault coalition(s), which
then can be adopted and implemented by local CoCs. Commenters
recommended that HUD's final rule clarify the duties of housing
providers under Emergency Solutions Grants (ESG) and CoC programs with
regard to enacting VAWA protections.
Commenters further stated that the proposed rule did not address
how the various VAWA obligations will be delegated or shared among the
various parties--recipient, subrecipient, owner or landlord--that may
be responsible for ensuring the delivery of VAWA obligations and
protections, particularly regarding evictions and establishing a
reasonable time for an individual to establish eligibility or find
alternative housing.
A commenter stated that proposed Sec. 960.102 provides the
definition of ``covered housing provider'' for public housing and
states that it is the PHA, but this is not appropriate or effective in
those situations where another entity owns the public housing units and
the PHA manages the units, for example, in mixed finance units, HOPE VI
units, or Choice Neighborhoods developments. For the public housing
units that are not owned by the PHA, the commenter said the
responsibilities to comply with court orders, request documentation,
maintain confidentiality of documentation, determine the
appropriateness of lease bifurcation, and reasonable times to provide
an individual to establish program eligibility, must apply to both the
PHA and the owner. The commenter said the owner, who has the lease with
the tenant, must be responsible for providing the notice and
certification form, determining whether to evict or terminate for
reasons other than those protected by VAWA, or if there is an ``actual
or imminent threat,'' and to assist victims to remain in their unit and
bear the cost of transfer, where permissible. In addition, the
commenter said the PHA must adopt an emergency transfer plan with which
the owner must comply, and owners should be restricted from taking any
steps toward evicting or terminating a tenant until the PHA notifies
the owner that the documentation from a claimed victim has not been
received or conflicting claims of victimization have been resolved.
Commenters recommended that HUD amend Sec. Sec. 960.102,
960.103(d), 960.203(c)(4), 966.4(e) to acknowledge situations where the
public housing units are owned by a private owner and are managed by a
PHA. The commenters further recommended that HUD state generally that
the entity taking the action (i.e. denying admission, evicting,
terminating assistance) is the entity responsible for providing the
notice and form, and further clarify these roles in the regulation,
guidance, and training.
HUD Response: HUD understands and appreciates the concerns
expressed by the commenters. For several of the HUD programs added by
VAWA 2013, there is more than one entity administering the assistance,
and it is not always immediately obvious which entity is responsible
for which actions mandated by VAWA. HUD sought to clarify which
entities undertake which responsibilities but given the concerns raised
by the commenters, HUD acknowledges further clarification is called
for.
For HUD's multifamily Section 8 project-based programs in 24 CFR
parts 880, 884, and 886, and for the Section
[[Page 80737]]
202 and Section 811 programs in part 891, this final rule provides that
the owner is the covered housing provider for all purposes related to
this rule. Unless a PHA is the owner of a project, PHAs plays no role
under these programs for which they could have responsibilities
pertaining to granting VAWA protections, providing notice of VAWA
protections, administering emergency transfer plans, or bifurcating
leases. Where PHAs are owners of projects under these programs, they
will be the covered housing provider for all purposes related to this
rule.
For the multifamily Section 8 programs under parts 882 and 883,
however, the PHA (which would be a state agency for part 883)
administers the programs. Therefore, it is the PHA that has primary
oversight responsibilities under VAWA, and it is the PHA that has the
contract with the owner of the housing (not HUD) and consequently the
PHA must set the housing policy to be followed and must ensure that the
owner and all of the owners with whom the PHA has a contract comply
with the VAWA regulations and those VAWA policies that the PHA has been
given discretion to determine. For these reasons, in these programs HUD
maintains the provision in the proposed rule that identifies the PHA as
the covered housing provider responsible for providing the notice of
occupancy rights under VAWA and the certification form to tenants and
applicants. In this final rule, HUD further clarifies that the PHA is
responsible for providing the notice and form to owners to give to
tenants and applicants. In addition, for parts 882 and 883, including
the Moderate Rehabilitation SRO program, HUD further clarifies in this
final rule that both the PHA and the owner are responsible for ensuring
an emergency transfer plan is in place for the covered housing, but it
is the owner that has responsibility for implementing the emergency
transfer plan when an emergency arises, since the PHA does not have a
direct relationship with the tenant. Since both PHAs and owners are
covered housing providers for these programs, both PHAs and owners must
adhere to this rule's basic provisions regarding denial or termination
of assistance or occupancy rights and the construction of lease terms
in Sec. 5.2005(b) and (c), and the limitations of VAWA protection in
Sec. 5.2005(d) also apply to both PHAs and owners. Similarly, the
documentation and confidentiality provisions in Sec. 5.2007 of this
rule also apply to both owners and PHAs.
HUD agrees with commenters that the provisions in the proposed rule
that the PHA is responsible for providing the reasonable time to
establish eligibility for assistance following bifurcation of a lease
in the definition of covered housing provider in parts 880, 882, 883,
884, 886, and 891, as well as in Sec. 982.53(e) and Sec. 983.3, was
unclear and unnecessary. HUD removes these provisions in this final
rule. In each of these programs, this final rule clarifies that the
owner is the covered housing provider that may choose to bifurcate a
lease and, if the owner chooses to do so, must follow any applicable
regulations relating to lease bifurcation.
For the regulations in part 982 (the housing choice voucher
program) and in part 983 (the project-based voucher program), this
final rule clarifies that it is the PHA that is the covered housing
provider responsible for complying with the emergency transfer plan
requirements in Sec. 5.2005(e). Unlike the case with HUD's multifamily
Section 8 project-based programs, PHAs do have a direct relationship
with tenants in the housing choice voucher and project-based voucher
program, and it is appropriate for tenants to contact the PHA about
emergency transfers under VAWA, as they would contact the PHA about
other matters related to administration of their housing assistance. In
addition, given the relationship between the tenant and the PHA in
these programs, this rule maintains the provisions in the proposed rule
that the PHA is responsible for providing the notice of occupancy
rights and the certification form. As is the case for HUD's multifamily
Section 8 programs under parts 882 and 883, for the housing choice
voucher and project-based voucher programs, both PHAs and owners are
covered housing providers who must adhere to this rule's basic
provisions regarding denial or termination of assistance or occupancy
rights and the construction of lease terms in Sec. 5.2005(b) and (c),
and the limitations of VAWA protection in Sec. 5.2005(d) also apply to
both PHAs and owners. Similarly, the documentation and confidentiality
provisions in Sec. 5.2007 of this rule also apply to both owners and
PHAs.
For the CoC and ESG programs, the proposed rule and this final rule
lay out the responsibilities of recipients, subrecipients, and housing
owners in Sec. 576.407(g) (for ESG) and Sec. 578.99(j) (for CoC).
For mixed finance units and public housing developments that
received public housing assistance under the Choice Neighborhoods and
HOPE VI programs' NOFAs, the PHA is the covered housing provider
because these units are generally administered in the same manner as
other public housing units.
For FHA multifamily programs, HUD revises the definition of covered
housing provider under this rule in Sec. 200.38(b) to remove the
provision that HUD will provide guidance as to who the covered housing
provider is. HUD clarifies in this rule that the covered housing
provider is generally the mortgagor for FHA multifamily programs
covered by VAWA. However, where an existing mortgagor/owner sells the
project to a new entity ``subject to'' the mortgage, in which case the
new entity would own the project but not be the mortgagor under the
mortgage, then the owner would be the covered housing provider.
Rule Change: In this final rule, HUD has revised Sec. 200.38(b) to
remove the provision that HUD will provide guidance as to who the
covered housing provider is for FHA multifamily programs administered
under section 236 and under sections 221(d)(3) and (d)(5) of the
National Housing Act.
Further, HUD has revised the regulations for HUD's multifamily
Section 8 project-based programs in 24 CFR parts 880, 884, and 886 to
specify that the owner is the covered housing provider. HUD has also
revised the regulations for the Section 202 and Section 811 programs in
part 891 to clarify that the owner is the covered housing provider.
HUD has revised the definition of covered housing provider in 24
CFR part 883, as well as the definition of covered housing provider in
Sec. 882.102 for Section 8 Moderate Rehabilitation Programs, other
than the Single Room Occupancy Program for Homeless Individuals, to
clarify that the PHA is the covered housing provider responsible for
providing the notice of occupancy rights and certification form under
VAWA, and that the PHA may provide this notice and form to owners, and
charge an owner with distribution to tenants. HUD also revises the
regulations in these parts to eliminate the provision that the PHA is
the covered housing provider responsible for providing the reasonable
time to establish eligibility for assistance following bifurcation of a
lease, and to clarify that the PHA and owner are both responsible for
ensuring that an emergency transfer plan is in place, and it is the
owner that is responsible for implementing the emergency transfer plan
when an emergency occurs. HUD retains the provision in Sec. 882.802
that the owner is the covered housing
[[Page 80738]]
provider for the Section 8 Moderate Rehabilitation Single Room
Occupancy program for Homeless Individuals.
In addition, HUD has revised regulations for the Housing Choice
Voucher program, at Sec. 982.53(e) and the project-based voucher
program, at Sec. 983.3, to remove the provision that the PHA is the
covered housing provider responsible for providing the reasonable time
to establish eligibility for assistance following bifurcation of a
lease. HUD also revises the regulations in these parts to clarify that
the PHA is responsible for complying with this rule's provisions on
emergency transfer plans.
Comment: Clarify responsibility for implementing VAWA requirements
when there are multiple housing providers. Similar to the above
comments, commenter asked who the covered entity is if a family uses
voucher assistance in otherwise covered rental housing where another
entity also may be a covered housing provider. The commenter asked
which entity is responsible for providing VAWA protections and
implementing VAWA requirements in circumstances such as these. The
commenter stated that in essence, it was asking whether each covered
housing provider would have to provide notices of occupancy rights and
obtain certifications. The commenter stated that the providers may
implement different policies concerning, for example, the time a tenant
will be given to establish program eligibility, and therefore further
clarity in this area is necessary.
Another commenter stated that, if PHAs are collaborating with ESG
and CoC program grantees, PHAs would still be subject to the lease
requirements currently imposed by HUD with respect to the public
housing and Section 8 programs, and if HUD seeks to impose different
lease requirements on these programs when overlaid with ESG and CoC
programs, HUD will need to provide additional guidance to the PHAs.
HUD Response: The program-specific regulations in this rule explain
which housing provider has responsibility for which VAWA requirements
when there are multiple housing providers within a single program. More
importantly, however, the notice of occupancy rights to be given to
each applicant and tenant identify the covered housing provider that
will interact with the tenant.
Where housing is covered under multiple HUD programs, such as under
the HOME and Section 8 Project-Based programs, the responsible housing
provider under each program will provide the required notice of
occupancy rights and certification form, and tenants may request
emergency transfers or lease bifurcations under either program. Where
there is a conflict between different program regulations, Sec.
5.2001(b)(2) of HUD's VAWA regulation applies. As discussed earlier in
this preamble, Sec. 5.2001(b)(2) states that, where assistance is
provided under more than one covered housing program and the VAWA
protections or remedies under those programs conflict, the individual
seeking the VAWA protections or remedies may choose to use the
protections or remedies under any or all of those programs, as long as
the protections or remedies would be feasible and permissible under
each of the program statutes.
d. Domestic Violence
Comment: Do not include a limiting definition of ``crimes of
violence'' in the definition of ``domestic violence'' and provide a
more expansive definition. Commenters recommended that HUD eliminate
the cross-reference to 18 U.S.C. 16 in the proposed rule, as the term
``crimes of violence'' in 18 U.S.C. 16, is too limiting for VAWA
protections. Commenters stated that, recently, the U.S. Supreme Court
found in U.S. v. Castleman, 134 S. Ct. 1405 (2014), that ``domestic
`violence' is not merely a type of violence; it is a term of art
encompassing acts that one might not characterize as `violent' in a
nondomestic context.'' The commenters state that, in Castleman, the
Supreme Court recognized that under an appropriate definition of
``domestic violence,'' a seemingly ``minor'' act, in combination with
other acts, whether seriously violent or merely harassing, could result
in the complete victimization of an intimate partner, and that
appropriate remedies should be available as a result. Some commenters
urged HUD to follow the Supreme Court's discussion in Castleman and
build upon that definition to define ``domestic violence'' in these
regulations as a pattern of behavior involving the use or attempted use
of physical, sexual, verbal, emotional, economic, or other abusive
behavior by a person to harm, threaten, intimidate, harass, coerce,
control, isolate, restrain, or monitor a current or former intimate
partner.
A commenter stated that the definition of ``domestic violence''
should not be tied to 18 U.S.C. 16 because that definition excludes a
great deal of domestic violence crimes under State and tribal laws, as
well as common law definitions of ``battery.'' The commenter stated
that with the proposed rule's definition, there will be a great deal of
uncertainty as to whether a particular conviction actually constitutes
a crime under 18 U.S.C. 16.
Another commenter said that the matter of domestic violence has
specific legal implications in most jurisdictions. The commenter stated
that the proposed rule includes felony or misdemeanor crimes of
violence in the definition, which implies formal charges filed by a
prosecutor. The commenter said that in the locality in which the
commenter resides, all cases initially thought to meet the test for
domestic violence are further reviewed by prosecutors and are often re-
classified to different charges.
HUD Response: HUD agrees that the definition of ``domestic
violence'' should not include a cross-reference to the definition of
``crimes of violence'' in 18 U.S.C. 16. On further consideration, HUD
agrees that the cross-reference has the consequence of making HUD's
definition of ``domestic violence'' too limiting and could well
exclude, as commenters pointed out, domestic violence crimes under
tribal, State, or local laws. The term ``crimes of violence'' is not
new to VAWA 2013. The term has been in the definition of ``domestic
violence'' since VAWA was first enacted in 1994, and was in HUD's
regulations implementing VAWA 2005, and has not previously referred to
18 U.S.C. 16. Therefore, HUD withdraws its proposal to define crimes of
violence in accordance with 18 U.S.C. 16, and implements the definition
of domestic violence as it appears in VAWA 2013.
Rule Change: HUD revises the definition of domestic violence to
remove the reference to 18 U.S.C. 16.
Comment: The term intimate partner is too broad as defined in HUD
regulations. Commenters stated that in the revised definition of
``domestic violence,'' HUD included ``intimate partner'' as defined in
title 18 of U.S.C. Commenters said that definition appears to bestow
this status on any person who has ever cohabited or been in a romantic
or intimate relationship in perpetuity, and asked HUD to indicate how
long a person may have this status.
HUD Response: HUD's proposed definition of ``domestic violence''
tracks the statutory definition from VAWA, which, as amended by VAWA
2013, defines ``domestic violence'' as including the following: Felony
or misdemeanor crimes of violence committed by a current or former
spouse or intimate partner 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 or intimate partner, by
a person similarly situated to a spouse of the
[[Page 80739]]
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. VAWA does not
limit domestic violence to those acts committed by an individual who is
a current spouse or intimate partner of the victim, but rather
expressly provides domestic violence is a crime of violence committed
by a current or former spouse or intimate partner. As the statute does
not place a time restriction on what it means to be a former spouse or
intimate partner, HUD declines to do so. However, HUD is removing the
proposed cross-reference to 18 U.S.C. 2266 in defining ``intimate
partner.'' The definition of ``spouse or intimate partner'' in 18
U.S.C. 2266(7) provides that this person includes: (i) A spouse or
former spouse of the abuser, a person who shares a child in common with
the abuser, and a person who cohabits or has cohabited as a spouse with
the abuser; or (ii) a person who is or has been in a social
relationship of a romantic or intimate nature with the abuser, as
determined by the length of the relationship, the type of relationship,
and the frequency of interaction between the persons involved in the
relationship.
On further consideration, HUD determined that a cross-reference to
18 U.S.C. 2266(7) may be confusing, as the term ``domestic violence''
includes felony or misdemeanor crimes of violence committed by a
current or former spouse or intimate partner of the victim, or others,
and 18 U.S.C. 2266(7) defines ``intimate partner'' as the victim and
not the abuser. As a result, the cross reference reads as if domestic
violence is a crime of violence committed by the victim, rather than
the perpetrator.
Rule Change: HUD revises its definition of ``domestic violence'' to
remove the cross-reference to 18 U.S.C. 2266. In its place, HUD
clarifies that the term ``spouse or intimate partner of the victim''
includes a person who is or has been in a social relationship of a
romantic or intimate nature with the victim, as determined by the
length of the relationship, the type of the relationship, and the
frequency of interaction between the persons involved in the
relationship.
e. Lawful Occupant and Tenant
Comment: Define ``lawful occupant'' and ``tenant'' and clarify how
each is affected by the rule. Commenters asked for HUD to include in
its final rule definitions of ``lawful occupant'' and ``tenant.'' The
commenters said proposed 24 CFR 5.2005(b) discusses termination of the
``tenant'' or ``affiliated individual'' and, unlike proposed Sec.
5.2003 that addresses definitions and Sec. 5.2009 that addresses
bifurcation of leases, there is no mention of ``lawful occupants.'' The
commenters said the omission of defining ``lawful occupant'' and
``tenant'' may cause confusion as to lawful occupants' rights if crimes
covered by VAWA occur. The commenters said proposed Sec. 5.2005(d)(2)
similarly omits reference to lawful occupant, and Sec. 5.2005 (d)(3)
may create confusion because this section permits a covered housing
provider to ``terminate assistance to or evict a tenant'' if that
tenant or lawful occupant presents an actual and imminent threat to
others.
HUD Response: The usage of the terms ``lawful occupant'' and
``tenant'' in the proposed rule reflect their usage in VAWA 2013. VAWA
2013 does not define these terms, and HUD declines to define them in
this final rule. Generally, while the term ``lawful occupant'' as
defined by state law would be applicable in determining whether or not
someone would be an affiliated individual, it would not be for lease
bifurcations. The term ``lawful occupant'' for lease bifurcations would
be whether or not the person is a lawful occupant (beneficiary or
tenant, or recognized member of the household) per the program
regulations of the specific HUD program. Therefore, while someone may
be a ``lawful occupant'' under state law, if they are not on the lease
or receiving assistance under the HUD program regulations they are not
eligible for lease bifurcation.
f. Stalking
Comment: Provide a clearer definition of stalking. Commenters asked
that there be a more detailed definition of ``stalking.'' The
commenters questioned whether the definition applies to all stalking
situations, or only when the individual is being stalked by someone
with whom the individual was in a `domestic relationship'?
HUD Response: The definition of ``stalking'' in this rule is the
same definition that is in title I of VAWA. It applies to all
situations where an individual, the perpetrator, engages in a course of
conduct directed at a specific person that would cause a reasonable
person to fear for their own safety or the safety of others, or suffer
substantial emotional distress. Stalking is not limited to situations
where the perpetrator is someone with whom the victim was in any
specific type of relationship.
g. Victim
Comment: The definition of ``victim'' needs further clarity.
Commenters said the definition of ``victim'' needs further
clarification. The commenters said there is some confusion within the
industry as to the definition of a ``victim''--whether this term is
defined as someone who is abused by another individual living at the
property, or is abused on the property grounds, and must be known and
named by the victim, or, that a tenant can be a victim regardless of
whether the abuse was perpetrated by a tenant living on the property,
or it was on the property grounds, and that the tenant is not required
to know or name the abuser.
HUD Response: A tenant or an applicant may be a victim of domestic
violence, dating violence, sexual assault, or stalking regardless of
whether the act was perpetrated by a tenant living on the property, or
whether the act occurred on the property grounds, or, in cases of
sexual assault or stalking, whether the tenant knows the perpetrator.
The rule's definitions of ``domestic violence,'' ``dating violence,''
``sexual assault,'' and ``stalking'' should not be read to include any
additional restrictions on these acts are, or who qualifies as a victim
of such acts beyond what is explicitly stated in the definitions.
3. Emergency Transfers
a. Emergency Transfer Documentation Requirements
Comment: Clearly specify emergency transfer documentation
requirements, specifically documentation requirements. There were many
comments on documentation requirements associated with emergency
transfer plans, and the comments raised the following issues.
The VAWA statute does not apply documentation requirements to
emergency transfers. Commenters stated that VAWA's documentation
requirements do not apply to the emergency transfer provisions and
therefore HUD should not apply any documentation requirements to
emergency transfers.
Need further rulemaking to impose additional documentation
requirements for emergency transfer plans. Commenters said that if HUD
seeks to impose documentation requirements for emergency transfer
requests beyond those described in the proposed rule, HUD must do so
through additional notice and comment rulemaking. Other commenters said
documentation requirements for emergency transfers should be the same
as the rule's other
[[Page 80740]]
documentation requirements and not exceed those requirements.
Commenters said requiring additional documentation requirements will
expose victims and housing providers to inconsistency and confusion.
Prohibit housing providers from requiring documentation for
emergency transfers beyond requirements established by HUD. Other
commenters said HUD must establish the documentation requirements for
transfers across all HUD-covered housing programs and not permit
covered housing providers to establish documentation requirements
separate from those mandated in HUD's rule. Commenters said HUD must
continue to prohibit covered housing programs from requiring a victim
to submit third-party proof, as this documentation cannot always be
easily secured, and eligibility should be determined by whether a
person in the victim's shoes would reasonably believe he or she is
threatened with imminent harm from further violence.
Do not assume victims requesting emergency transfers were
previously determined to be VAWA victims. Another commenter said the
preamble to the proposed rule unfairly assumed that persons seeking
emergency transfers have already been determined to be victims covered
by VAWA's protections. The commenter said that in many cases, the first
indication that a tenant is a victim of violence may be the request for
an emergency transfer.
Requiring documentation in order to determine if an emergency
transfer is appropriate. Some commenters said that HUD should require
documentation before a landlord makes a decision about emergency
transfers. Commenters said documentation should be required prior to
transfer to ensure the appropriate use of resources and to ensure that
tenants qualify, considering that transfers are costly and families
must wait while transfers are processed for others. Other commenters
said it is unclear what would happen after a transfer if the tenant did
not provide sufficient documentation of the need for an emergency
transfer. Another commenter expressed its support for requiring a
tenant seeking a transfer to provide some form of documentation,
provided the documentation is not so complex and burdensome as to deter
a pro-se victim from seeking assistance. A commenter stated that,
because victims have the option of signing a self-certification form,
which can be done in minutes, requiring documentation prior to transfer
should not cause any delay in obtaining an emergency transfer. A
commenter said that third-party documentation prior to an emergency
transfer is necessary unless the situation of violence is observable by
a responsible entity. Commenter recommended that the specific type of
third-party documentation required for an emergency transfer should be
established through local and regional policy. Commenter also said
that, for homeless assistance programs, documentation is vital when
transferring a tenant because victims may need to be relocated to
another safe place that may require documentation for when this person
first became homeless in order to qualify.
A delay in emergency transfer until certain documentation is
received jeopardizes the safety of the victim. Commenters said victims
needing the protections of VAWA should not be required to submit
documentation before a transfer. A commenter stated that the emergency
transfer plan already requires the tenant to submit a written request
for a transfer, and documentation beyond this requirement may be
difficult to access and is vulnerable to being obtained or destroyed by
the perpetrator. Commenters said that gathering the requested
documentation, particularly when violence is imminent, can unduly delay
the transfer process and further endanger the victim.
Allow post-transfer documentation. Other commenters asked that a
tenant requesting a transfer be permitted to submit documentation at
least 14 days after the transfer has been completed, so that the
provider's focus is on expeditiously completing the transfer.
Require documentation beyond self-certification. Commenters stated
that victims should provide documentation other than self-certification
when seeking an emergency transfer. Commenters stated that
documentation could include police reports, court orders, incident
reports, notarized witness statements, verification from a domestic
violence shelter, 911 calls, or a statement from a service provider.
Some commenters stated that official government documentation should be
required, while others said the documentation could be a written or
oral statement from a witness.
A commenter stated that third-party documentation may help to
eliminate transfer of the same situation to a new location, and that
this documentation is necessary for the housing provider to document
the case in detail. The commenters said that documentation other than
self-certification is necessary to verify the need for an emergency
transfer, as the form's provisions regarding penalties for fraud would
be difficult to enforce, and some victims may attempt to use an
incident of domestic violence to obtain a superior housing unit or
break their current lease, even if this is unrelated to a VAWA
incident. A commenter pointed to a State law allowing a tenant who is
the victim of domestic violence to legally break a lease, but only with
some type of third-party documentation. Commenters said requiring
additional documentation is logical because housing providers will take
a monetary and temporal loss for transfers. Other commenters stated
that statements from legal, medical, psychological or social service
providers stating their belief that a transfer will have a strong
probability of reducing a recurrence of the violence should be required
for emergency transfers. Another commenter stated that landlords should
request a detailed statement from the victim, and then interview the
victims after the transfer and obtain a written statement from
regarding whether the violence stopped or the transfer benefited the
resident.
Allow the housing provider to determine when and what type of
documentation may be needed for emergency transfers. Commenters said
that HUD should allow housing providers to determine whether
documentation is necessary for emergency transfers and what
documentation may be necessary. A commenter stated that many PHAs have
very high occupancy rates and relocation should be reserved for
individuals with the highest level of need. A commenter said that
allowing somebody to submit a self-certifying form with no supporting
documentation could leave PHAs susceptible to fraud. The commenter said
documentation serves to protect both the housing provider and the
program participants by ensuring that there are standards that guide
these decisions, and HUD should allow housing providers to determine
what supporting information would be sufficient. The commenter said
that rather than HUD establishing documentation standards for emergency
transfers that HUD allow the housing providers to use their discretion
to make determinations on a case-by-case basis because the
circumstances that can lead a tenant to request an emergency transfer
under VAWA are highly personal and individual.
HUD Response: HUD appreciates all of the comments received on
whether and how to document emergency transfer requests. HUD has
considered all of these comments and has included in this final rule
specific provisions on emergency transfer documentation. HUD
understands that housing
[[Page 80741]]
providers may incur costs when transferring tenants and that other
families may need available units. Therefore, for the reasons further
described below, this final rule allows housing providers, at their
discretion, to require that tenants requesting transfers submit a
written request before a transfer occurs certifying that they meet the
criteria for an emergency transfer under this rule. To minimize burden,
HUD has created a model emergency transfer request. Housing providers
may accept third-party documentation if that documentation is offered
by tenants, but housing providers will not be allowed to require any
third-party documentation in order to determine whether a tenant
seeking an emergency transfer is eligible for an emergency transfer.
HUD understands that tenants seeking emergency transfers may not
have already submitted to their housing provider documentation of any
occurrence of domestic violence, dating violence, sexual assault, or
stalking, and HUD did not intend to indicate that there is an
assumption that a tenant seeking an emergency transfer has already been
previously determined to be a victim of domestic violence, dating
violence, sexual assault, or stalking. HUD clarifies in this final rule
that housing providers may require tenants seeking emergency transfers
to document an occurrence of domestic violence, dating violence, sexual
assault, or stalking, in addition to documenting eligibility for an
emergency transfer, consistent with the HUD requirement that
individuals certify eligibility in order to establish that the tenant
is a victim of domestic violence, dating violence, sexual assault, or
stalking, if the individual has not already provided documentation of
that occurrence. HUD notes as part of certifying eligibility for VAWA
protections an individual may provide self-certification in lieu of any
other documentation to document an occurrence of a VAWA-protected
incident. Because self-certification can be submitted fairly quickly,
submission of a self-certification should not delay any requests for an
emergency transfer.
In addition to documentation--which could be self-certification--of
the occurrence of domestic violence, dating violence, sexual assault,
or stalking, the final rule allows housing providers to require that
tenants seeking emergency transfers provide documentation--which could
be a written request--that they meet the requirements for a transfer.
HUD is allowing housing providers to request this additional
documentation because an individual may be a victim of violence covered
by VAWA, and yet not meet the requirements for an emergency transfer
that are specified in VAWA 2013. Those requirements are that the
individual expressly request the transfer and either reasonably believe
there is a threat of imminent harm from further violence if the tenant
remains in the same dwelling unit that the tenant is currently
occupying or, in the case of a tenant who is a victim of sexual
assault, the tenant also qualifies for a transfer if the assault
occurred on the premises during the 90-calendar-day period preceding
the date of request for the transfer.
HUD appreciates commenters' concerns that third-party proof cannot
always be easily obtained, that it may not be available to some tenants
who qualify for emergency transfers, and the requirement to obtain
third-party documentation could delay transfers, resulting in harm to
tenants. It is for these reasons that the final rule stipulates that
housing providers may not require third-party documentation for an
emergency transfer.
As noted above, housing providers may, however, require that
tenants submit a written request for an emergency transfer where they
certify their need for a transfer. This is a change from the proposed
rule. Although the proposed model emergency transfer plan stated that
tenants should submit a written request for a transfer, the proposed
rule did provide that housing providers may require this request. HUD
disagrees with commenter's interpretation of VAWA 2013 that because the
statute does not discuss documentation requirements for emergency
transfers, HUD may not allow housing providers to require that tenants
submit any documentation whatsoever.
HUD also does not agree with some of the arguments that commenters
presented in favor of requiring third-party documentation for an
emergency transfer. HUD does not believe that a failure to require
third-party documentation would result in negating the benefits of a
transfer, and leave the tenant in an endangered situation. Rather,
strict confidentiality measures to prevent a perpetrator from learning
the new location of the transferred tenant would help to reduce the
possibility of future violence.
HUD understands that some housing providers expressed concern that
there may be tenants who request an emergency transfer for the purpose
of obtaining a superior housing unit or to break their current lease.
This situation may occur but, for the following reasons, HUD does not
agree that this justifies a third-party documentation requirement that
could endanger the lives of those tenants who are victims of VAWA
crimes and for whom safety and security is a real threat.
First, third-party documentation of a VAWA-protected incident would
not necessarily help a housing provider determine whether a victim
reasonably believes that the victim is in imminent harm from further
violence without a transfer. Second, the housing provider may request
that the tenant sign a written request for the transfer that states
that the information in the request is accurate, and that submission of
false information could jeopardize program eligibility and be the basis
for denial of admission, termination of assistance, or eviction. HUD
further disagrees with commenters who suggested that landlords should
request a detailed statement from, and interview, victims. There are
housing providers who may have experience working with victims of
domestic violence, dating violence, sexual assault, or stalking, but
there are also housing providers who do not. Regardless, under this
rule, housing providers will not judge the merits of the claims of
victims of domestic violence, dating violence, sexual assault, or
stalking. HUD understands that the documentation of homelessness may be
important when transferring a tenant, but this does not require third-
party documentation of the need for a transfer due to domestic
violence, dating violence, sexual assault, or stalking.
HUD agrees with those commenters who said that providers should be
permitted to use their discretion to determine whether documentation is
needed, and housing providers will not be required to request
documentation from those seeking an emergency transfer due to an
incident of domestic violence, dating violence, sexual assault, or
stalking, just as housing providers are not required to request
documentation of the VAWA-related incidence. However, as previously
discussed, under this final rule, housing providers will not be allowed
to require that tenants requesting an emergency transfer under VAWA
submit third-party documentation to qualify for an emergency transfer.
HUD understands that many PHAs have high occupancy rates, but notes
that transfers are only required where there is a safe and available
unit to transfer the tenant to, and, where there is a transfer, the
unit from which the tenant is transferring will become available.
Further, allowing housing providers to decide for themselves what
documentation is sufficient for an emergency transfer could leave them
more legally
[[Page 80742]]
vulnerable than they would be under this rule, which clearly requires
covered housing providers to accept self-certification, if they require
documentation.
Rule Change: This final rule revises Sec. 5.2005(e) to specify
that housing providers may, at their discretion, require tenants
seeking emergency transfers to submit written requests expressly
requesting the emergency transfer, in which the tenants must certify
that they meet the requirements for an emergency transfer. This written
request is different from any self-certification or documentation that
an individual may have given, or the housing provider may ask for, to
document the occurrence of domestic violence, dating violence, sexual
assault, or stalking in accordance with Sec. 5.2007. HUD has developed
a model emergency transfer request that housing providers may give to
tenants who ask for an emergency transfer.
This final rule also revises Sec. 5.2007(a)(1) to remove the
provision that the documentation requirements in the section are not
applicable to a request made by the tenant for an emergency transfer.
This provision was removed because housing providers may require
tenants seeking emergency transfers to document an occurrence of
domestic violence, dating violence, sexual assault, or stalking, if
they have not done so already, in addition to documenting eligibility
for an emergency transfer.
Comment: Housing providers that create a preference for VAWA
transfers should be permitted to establish their own criteria for
verification for a transfer. Commenters said that if a PHA establishes
a preference for housing VAWA victims, the PHA should be permitted to
establish criteria for the verification of domestic violence for
purposes of honoring the preference. A commenter said many PHAs may
already give a priority to victims of domestic violence who need to
relocate from public housing through assistance from the HCV program
and for those PHAs the documentation requirements to implement the
transfer are already set forth in their Section 8 Administrative Plan.
Commenters suggested that PHAs be allowed to continue to utilize the
verification requirements as set forth within their Section 8
Administrative Plans \8\ for preferences for victims of domestic
violence necessitating said transfer.
---------------------------------------------------------------------------
\8\ The requirements for the Section 8 Administrative Plan are
found in 24 CFR 982.54.
---------------------------------------------------------------------------
HUD Response: HUD understands the concerns raised by the commenters
in not altering requirements that are already in place for PHAs that
give preference in housing to victims of domestic violence. However,
providing preferences in housing to certain groups, and PHAs have
authority to establish such preferences, is not the same as complying
with the emergency transfer provisions of VAWA 2013. Providing
preferences to certain groups may help meet emergency housing needs of
these groups but do not constitute a need for an emergency transfer as
is contemplated by VAWA 2013.
As previously discussed, under this final rule, covered housing
providers may require in their emergency transfer plans that victims of
domestic violence, dating violence, sexual assault, or stalking submit
a written request to their housing provider, where the tenants certify
that they meet the requirements for an emergency transfer, in addition
to any self-certification or other documentation of an occurrence of
domestic violence, dating violence, sexual assault or stalking. This
means that if the tenant provides these self-certifications, and the
covered housing provider has another safe and available unit for which
the victim qualifies, the housing provider must allow the tenant to
transfer. If the covered housing provider has a VAWA emergency transfer
waiting list, the only documentation that a housing provider could
require the tenant to submit in order to be placed on the waiting list
is a written emergency transfer request, where the tenant certifies to
meeting the requirements for an emergency transfer under VAWA, in
addition to any self-certification or other documentation of an
occurrence of domestic violence, dating violence, sexual assault or
stalking, as described in Sec. 5.2005(e)(6).
Comment: Owners and agents should maintain documentation of an
emergency transfer. Commenters said owners and agents should have to
maintain documentation of emergency transfers to provide records for
the covered housing provider as to why a move was necessary.
HUD Response: HUD agrees that covered housing providers should
maintain documentation of emergency transfer requests and the outcomes
of such requests, and HUD believes that, in order to ensure compliance
with the emergency transfer provisions of this rule, covered housing
providers should have to report this information to HUD in the
aggregate. Accordingly, in this final rule, HUD adds to the regulations
governing emergency transfer plans that covered housing providers must
keep a record of all emergency transfers requested, and the outcomes of
such requests, and retain these records for a period of three years, or
for the period of time specified in program regulations, and report
them to HUD annually. HUD understands that this may entail additional
costs for covered housing providers, and HUD will solicit comment on
this provision through separate notice before covered housing providers
must comply with this provision.
Rule Change: This final rule revises 24 CFR 5.2005 to state that
the covered housing provider must keep a record of all emergency
transfers requested under its emergency transfer plan, and the outcomes
of such requests, and retain these records for a period of three years,
or for a period of time as specified in program regulations. HUD's
proposed changes aligns to the record retention periods of each covered
programs to the extent possible. The rule also provides that requests
and outcomes of such requests must be reported to HUD annually.
Further, this rule revises the following program regulations to include
documentation and reporting of VAWA emergency transfer requests and
outcomes: 24 CFR 91.520, which details performance report requirements
for HOME participating jurisdictions and jurisdictions receiving
funding under the HOPWA, ESG, and HTF programs; HOME program
regulations at 24 CFR 92.508 (Recordkeeping); HTF program regulations
at 24 CFR 93.407 (Recordkeeping); HOPWA regulations at 24 CFR 574.520
(Performance reports) and 24 CFR 574.530 (Recordkeeping); ESG
regulations at 24 CFR 576.500 (Recordkeeping and reporting
requirements); CoC regulations at 24 CFR 578.103 (Recordkeeping
requirements); and Multifamily program regulations at 24 CFR 882.407
(Other Federal requirements) and Sec. 882.804 (Other Federal
requirements). The rule also includes in newly added regulations for
Multifamily programs in 24 CFR 880.613, 884.226, 886.139, 886.339, and
891.190 (Emergency transfer for victims of domestic violence, dating
violence sexual assault, and stalking) reporting requirements for
emergency transfers requested under VAWA. All public housing agencies
will be required to comply with the general reporting and recordkeeping
requirements in 24 CFR 5.2005(e).
Comment: Updated documentation of need for emergency transfer may
be necessary. Commenters stated that updated documentation for an
emergency transfer may be necessary in cases where a period of time has
passed between the date a family submitted domestic violence
verification and the
[[Page 80743]]
date they ask for an emergency transfer. Commenters provided an example
in which a family was admitted to a program based on a Federal
preference for domestic violence in 1995, and in 2015 the family
requests an emergency transfer under VAWA. The commenters said that it
would be reasonable for the housing provider to request updated
documentation in such a case.
HUD Response: In order to qualify for an emergency transfer under
VAWA 2013, a tenant who is a victim of domestic violence, dating
violence, sexual assault, or stalking must reasonably believe there is
a threat of imminent harm from further violence. It does not matter
when an initial act occurred if the current belief of a threat of
imminent harm is reasonable, or, in cases of sexual assault, the
assault occurred on the premises during the 90-calendar-day period
preceding the transfer request. Housing providers may require that
tenants who request emergency transfers under VAWA submit a written
transfer request where the tenant certifies that he or she believes
there is a threat of imminent harm from further violence, or that he or
she was a victim of a sexual assault that occurred on the premises
during the 90-calendar-day period preceding the transfer request.
b. Emergency Transfer Costs
Comment: Transfers have costs. Commenters stated that emergency
transfers could be costly and time-consuming for housing providers and
could include costs related to utilities, packing and moving, damage
repairs, painting, cleaning, inspections, lease execution and
explanation and assuring housing eligibility. A commenter stated that
ordinary turnover costs for the landlord, with no renovation, may
include new carpet, new paint, cleaning fees, damage remediation, time
involved by a project's service team, and time involved by a leasing
team. The commenter further stated that rehabilitating a unit is
costly, but that in all cases paperwork is minimal--a new lease and a
new certification. The commenter stated that, overall, the work and
cost to transfer a resident is minimal, though it is not recoverable,
and asked if HUD could provide some reimbursement when an emergency
transfer arises.
Other commenters said costs can be substantial. A commenter said
costs also include criminal background and drug tests. Another
commenter said it currently employs an entire team dedicated to
processing emergency transfers for public housing tenants and HCV
participants and, in addition to these personnel costs, the commenter
said that it spends approximately $14,000 on preparing each public
housing unit for a new occupant, and $200 in administrative costs for
each HCV emergency transfer. Commenter said that if the perpetrator is
not removed from the apartment before transferring the victim,
subsidizing the perpetrator in one apartment and the victim in a second
apartment could occur, thereby greatly increasing the transfer costs.
A commenter said that an informal poll of its PHA members finds
that unit transfers cost between $500 and $5500, depending on the
amount of work that needs to be undertaken upon turnover. The commenter
explained that an estimate of $3000-$4000 would include painting,
carpet or tile replacement, cleaning costs, lock changes, possible
appliance replacement or repair, and shade replacement, and an
additional $500 should be added for each additional bedroom.
Another commenter estimated that relocation of a public housing
tenant through HCV assistance costs between 5 and 17 staff hours and
$50 to $100 in subcontractor fees for inspections. The commenter said
that, at best, relocation through the HCV program involves staff time
spent issuing a voucher, reviewing the ``Request for Tenancy
Approval,'' inspection and rent reasonableness determination of a new
unit, preparation of a new lease and housing assistance payments
contract (HAP), and recertification of the family. The commenter added
that costs may increase for a PHA due to additional inspections, since
an initially chosen unit may not be affordable or appropriate, and the
processing of multiple Requests for Tenancy Approval forms. The
commenter further stated that, if the perpetrator is a member of the
assisted household, the PHA may also be undergoing the process of
terminating the perpetrator's individual assistance, which could result
in hearing costs and potential legal fees.
A commenter said public housing costs include moving costs and
damage caused by the tenant beyond normal wear and tear, an average
turnaround time of 8 days during which time the unit is not occupied
while it is being made ready for the next family, and an average cost
in parts and labor of $215 plus an additional $200 for cleaning. For
the HCV program, the commenter said moving costs and damage caused by
the tenant and any additional costs to make the unit ready for the next
occupant is born by the landlord. The commenter said that HCV staff
spend about 8 hours processing moves, and the total cost of their time
and the resources expended is about $200.
Another commenter said that if there are damages beyond normal wear
and tear, and if the participant fails to pay those costs, landlords
must not only incur these costs but face the costs of pursuing
collection. This commenter said lost rent on each unit while it is
vacant could amount to 60 or 90 days, which could result in the loss of
Operating Fund eligibility in the subsequent year for public housing,
and in the voucher program, costs include the loss of renewal funding
in subsequent years for lost unit months leased (UMLs) and lost fees.
A commenter said that in the past 5 years it has spent over
$339,000 on 118 emergency transfers for temporary hotel accommodations
as well as moving expenses. Commenter said it has been experiencing a
steady annual increase in the number of emergency transfer requests in
general and in VAWA specifically.
HUD Response: HUD appreciates the information on costs provided by
the commenters. HUD understands that housing providers face
administrative and unit turnover costs for transfers, and where there
is an increase in transfers, regardless of the reason, the costs to
housing providers may rise. HUD recognizes that VAWA's provision for
emergency transfers may result in an increase in transfer costs. HUD
notes, however, that transfers may not be a unique occurrence for PHAs
and owners and management agents, but a part of administering public
and assisted housing. Further, PHAs can utilize the limited vacancy
provision of 24 CFR 990.150 that allows operating subsidy to be paid
for a limited number of vacant units under an annual contributions
contract (ACC).
Comment: Housing providers should not be required to pay for
transfers. Commenters stated that the rule should make clear that
housing providers are not required to pay for transfers and either HUD
or tenants should be required to pay for, or provide reimbursement for,
costs. A commenter said housing providers should not be responsible for
costs since this is not a reasonable accommodation covered under
section 504 of the Rehabilitation Act of 1973 (Section 504). Another
commenter said that a PHA would bear the cost of all paperwork and
issuing vouchers and inspecting units, but other costs associated with
moving into a new unit, such as application fees to owners, deposits,
and moving costs, should not be allowed as they are above the statutory
requirements of the HCV program. Another commenter said that
[[Page 80744]]
covering expenses such as utility deposits and moving costs would be
devastating to small PHAs.
A commenter said that if the tenant and management agree that the
tenant cannot afford transfer costs, services representatives can seek
assistance from local resources, or, management could put forth the
costs and allow the tenant to repay them under a payment plan. A
commenter said departing residents paying costs under a repayment plan
is consistent with HUD's policy with respect to other resident-
initiated transfers as set forth in the Public Housing Occupancy
Guidebook.\9\ Another commenter said it is not aware of a situation
where the housing provider would pay transfer costs, but suggested it
would be beneficial to tenants to be given an extended period of time
to pay off fees. A commenter suggested that, in the case of emergency
transfers, any damage to the unit or unpaid rent should still be the
responsibility of the departing resident, but, any financial penalties
for breaking a lease could be waived by the owner based upon a
confirmed instance of domestic violence, stalking or sexual assault.
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\9\ See http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/ph/rhiip/phguidebook.
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Commenters suggested that HUD establish a special fee to ensure
that PHAs are able to withstand the financial implications of transfers
under VAWA. Others commenters said moving costs should be considered to
be permissible program expenses. Commenters said HUD should reimburse
covered housing providers for costs associated with these transfers and
such requirement should be provided for in the rule and could be
established in a PIH notice.
HUD Response: For HUD programs that have existing guidance related
to paying costs of transfers, housing providers should follow that
guidance and may follow any existing transfer policies and procedures
they have, including those for repayment plans. Under this final rule,
housing providers will not be required to bear moving costs that
tenants and their household members generally pay, including
application fees and deposits, in addition to costs to physically move
households and their belongings.
In response to commenters who stated housing providers should not
be responsible for costs since this is not a reasonable accommodation
covered under Section 504, the issue of whether housing providers must
pay for emergency transfers is a separate issue from reasonable
accommodation requests under Section 504. Section 504 pertains to
providing and paying for structural modifications that may be necessary
as a reasonable accommodation for individuals with disabilities.
Comment: A specific process is needed for ESG or CoC funds to be
used pay for damages caused by early lease termination. Commenters
expressed support that the rule allows the use of ESG and CoC funds to
pay for damages resulting from early lease terminations if the tenant
meets the emergency transfer requirements under VAWA, but they
expressed concern that this will deplete limited funds for homeless
families. Commenters further expressed concern that owners or landlords
might turn to these funds before attempting to mitigate damages caused
by the lease terminations. Commenters recommended that HUD develop a
process for housing providers to apply for these funds where they must
document the hardship, explain why the funds are needed, and report
efforts to mitigate damages.
HUD Response: In this rule HUD does not intend to restrict
currently available resources that could fund emergency transfers. As a
result, HUD maintains that paying for damages is an eligible cost of
ESG and CoC funds, and declines to develop the process that the
commenter suggested.
Comment: Housing providers should pay transfer costs. A commenter
applauded HUD for including a provision that encourages covered housing
providers to bear emergency transfer costs. The commenter said only
about half the States have protections for victims who terminate their
leases to escape from violence and recommended that HUD require that
covered housing providers not penalize victims who exercise their
transfer rights. The commenter suggested that covered housing providers
be responsible for covering the costs of emergency transfers, such as
moving costs, which are often prohibitive for survivor tenants. The
commenter stated that, under the Philadelphia Housing Authority lease
agreement, the housing authority agrees to pay for reasonable costs
related to mandatory transfers and reasonable accommodation transfers.
HUD Response: HUD understands that moving costs may be prohibitive
for some victims of domestic violence, dating violence, sexual assault,
or stalking, and encourages housing providers to bear these costs where
possible, or to work with victims to identify possibilities for funding
transfers. Local victim service providers may be able to provide help
with funding transfers. As discussed earlier in this preamble, the U.S.
Department of Justice (DOJ) administers programs that provide funding
for victims covered by VAWA, and the Victims Crime Fund could be used
to pay for relocation expenses of these victims, or to provide other
sources of support, which could free up funding to pay for moving
costs.
As noted in the proposed rule, HUD's CoC regulations, in addition
to containing regulations that provide for a victim of domestic
violence, dating violence, sexual assault, or stalking to retain their
tenant-based rental assistance and move to a different CoC geographic
area, include reasonable one-time moving costs as eligible supportive
services cost. (See 24 CFR 578.53(e)(2).) In addition, under this
rule's HOME regulations at Sec. 92.359 (e), HOPWA regulations at Sec.
574.604(f), and CoC regulations at Sec. 578.99(j), leases and
occupancy agreements must include a provision that tenants may
terminate their leases without penalty if they meet the conditions for
an emergency transfer under this rule.
c. Model Transfer Requests
Comment: HUD should issue a model emergency transfer request.
Commenters recommended that HUD create a model emergency transfer
request, and that issuance of such a model would help facilitate the
transfer. Another commenter said that issuance of such a model would
help ensure consistency across HUD-covered programs. A commenter stated
a model transfer request is important since a less experienced landlord
may doubt a victim's claims. Another commenter said a model transfer
request would be beneficial to housing providers as it would provide
specific guidance for them on what a request should contain, and would
enable them to quickly identify the type of transfer being requested,
with the hope that a transfer of this nature would be prioritized over
other types of requests.
Commenters said HUD should prepare a model emergency transfer
request that includes the following information: The eligibility
criteria for requesting the emergency transfer, the definition of a
``safe and available'' unit, a checklist for the required documentation
the victim must provide to support the need for such a transfer,
including a statement that the tenant reasonably believes he or she is
imminently threatened by harm and documentation of the violence and the
basis for that belief, and any conditions the tenant must meet to
continue to receive VAWA protections, such as not inviting/allowing the
perpetrator into
[[Page 80745]]
the new unit or not revealing the location of the new unit to the
perpetrator. Another commenter stated that the model should specify the
location to be transferred, time of transfer, and other pertinent
information for the emergency transfer.
Another commenter said the model request should allow the survivor
to assert either an imminent threat of violence or a sexual assault
that occurred on the premises within the last 90 days and should
reflect the date on which the survivor submitted the request to
transfer. Commenter said additional recommendations for inclusion in
the model included: Establishment of a grievance plan when transfers
are denied, or are granted but unsafe; a provision that survivors incur
no costs other than their own expenses to move; a provision that
transfer requests be considered mandatory; and a requirement that
covered housing programs not penalize survivors who meet the emergency
transfer requirements for exercising their rights. A commenter said a
model request should include name of the perpetrator, if known, name of
the victim(s), names of the family members who would be transferring
with the victim, a brief description of why the victim would fear
imminent harm or personal threat if made to remain in the unit, and/or
self-identification as a sexual assault survivor.
HUD Response: HUD appreciates these comments and has created a
model emergency transfer request that housing providers may use if they
choose to require that tenants requesting emergency transfers submit
documentation. The model emergency transfer request includes the
requirements that victims of domestic violence, dating violence, sexual
assault, and stalking must meet to qualify for an emergency transfer
under VAWA; information about other types of documentation that those
requesting a transfer may submit if the victim has such documentation
and it is safe to provide; information on maintaining confidentiality
of information the victim submits to the housing provider; and it
requests information from victims about their households, the accused
perpetrators if this is known and can be safely disclosed, and about
why the victims qualify for an emergency transfer under VAWA. The model
emergency transfer request also notes that submission of false
information could jeopardize program eligibility and could be the basis
for denial of admission, termination of assistance, or eviction, and
has a line for the person filling out the form to sign and date it. The
model emergency transfer request does not include details about a
housing provider's emergency transfer policy because it is incumbent on
the housing provider to provide such information in its emergency
transfer plan.
Comment: A model emergency transfer request should not be
mandatory. Commenters said a model transfer request form would be
helpful but should not be mandatory. Commenters said this could lessen
the burden on housing providers and ensure providers are using a
standard product that satisfies the rule's requirements, but housing
providers should be free to develop and use their own forms if they so
desire, which could be tailored to the individual requirements of the
covered housing provider, and any model request should be optional.
HUD Response: The model transfer request form is only a model form
and housing providers are not required to use it.
Comment: Any model request should include certain aspects and
should be considered documentation. Some commenters suggested that if
HUD develops a model emergency transfer request form, any description
of the need for a transfer by a tenant must be brief and in the
tenant's own words, and have a date the request was made and the date
it was granted or denied, and a description of where the tenant
believes she or he will be safe or unsafe to move. Additionally,
commenters said if HUD develops a model emergency transfer request
form, this form should be used as documentation of the need for a
transfer, and the existing documentation requirements under Sec.
5.2007 should be supplanted by this form and this should be adopted in
regulations under Sec. 5.2005.
HUD Response: HUD agrees that the model emergency transfer request
form may serve as documentation of the need for a transfer. As
described earlier in this preamble Sec. 5.2005(e) of this final rule
specifies that housing providers may, at their discretion, require
tenants seeking emergency transfers to submit written requests and
housing providers may ask tenants who request an emergency transfer to
fill out the model transfer request form. However, as also described
earlier, this form will not supplant documentation requirements under
Sec. 5.2007, because the first criteria a tenant requesting an
emergency transfer under VAWA must meet is that the tenant is a victim
of domestic violence, dating violence, sexual assault, or stalking.
Therefore, housing providers may, but do not need to, request
documentation in accordance with Sec. 5.2007 to document the
occurrence of the VAWA incident or incidents. This model transfer
request form also does not ask the tenant to identify areas where he or
she feels safe or unsafe, although housing providers are welcome to
include that on their own forms.
Comment: There could be problems with including criteria for
requesting an emergency transfer in a model request. A commenter
expressed concerns about including criteria for requesting the
emergency transfer within a model emergency transfer request. According
to commenter, different situations could justify an emergency transfer
so any language around criteria would need to be broad and give
providers the flexibility to interpret the criteria based on a tenant's
situation. The commenter also recommended that HUD seek out domestic
violence experts for their suggestions on appropriate criteria and
language to avoid language like ``reasonable belief that the tenant is
being threatened'' which is overly restrictive and not that helpful for
providers new to this issue in understanding what merits reasonable
belief.
HUD Response: HUD reiterates that the model emergency transfer
request is a model request and is not required to be used. The model
emergency transfer request form developed by HUD asks those who request
an emergency transfer under VAWA to certify that they meet the criteria
for an emergency transfer under VAWA. The model form explains,
consistent with the language of VAWA, that a reasonable belief that the
tenant is threatened with imminent harm from further violence means
that the tenant has a reason to fear that, without a transfer, the
tenant would suffer violence in the very near future.
d. Transfer Plans
Comment: HUD should provide separate model emergency transfer plans
for different housing programs. Commenters recommended that HUD provide
separate model emergency plans for public housing, the voucher program,
project-based rental assistance, and other programs in recognition of
the various laws and regulations applicable to different housing
programs. A commenter said that, as an alternative to formulating
specific plans, there could be one plan that provides specific
applications for each program.
HUD Response: HUD's emergency transfer plan contains specific
elements, described in Sec. 5.2005(e), that must be adopted by all
housing providers, regardless of the HUD housing program in which they
participate, in formulating their own plans. However,
[[Page 80746]]
housing providers have discretion as to other elements that should be
included in their plans, subject to program-specific requirements that
supplement the requirements in Sec. 5.2005(e), as the plan is to be
tailored to specific capabilities of the provider and any specific
requirements of the HUD housing program in which they participate that
may affect the ability of a housing provider to facilitate a transfer
on an emergency basis. HUD program offices will provide assistance to
housing providers in developing emergency transfer plans.
Comment: HUD should allow flexibility for housing providers to
determine what their emergency transfer plans look like. Commenter
stated that thoughtful screening and implementation are required and an
emergency transfer may take different forms and timelines depending on
resources and process. Another commenter expressed support for HUD
providing a model emergency transfer plan for housing providers, as an
example only, and recommended allowing providers the flexibility to
develop or continue implementing their own plans based on local needs
and resources to manage emergency transfer requests. Another commenter
said the regulation should make clear that covered housing providers do
not have to utilize the exact language in HUD's model plan, so long as
the housing provider's plan includes all mandatory components. To ease
administrative burden and to assist housing providers in implementing
or amending their emergency transfer plans, commenter said the
regulation should also identify mandatory and discretionary components.
A commenter said providers must adopt an emergency transfer policy
substantively the same as HUD's model, so a provider's plan could
eliminate the irrelevant paragraph on introductory matter in HUD's
model and remain substantively the same.
Another commenter said that VAWA 2013 does not require housing
providers to adopt the agencies' plans and it may be that providers
will write, or will have written, their own plans. Other commenters
cited a Senate Committee report from 2012 that said it is the
Committee's intent that emergency transfer policies should be tailored
to the various types of housing programs covered by the bill,
recognizing that housing providers have varying abilities to transfer
occupants based on the volume and availability of dwelling units under
their control.
HUD Response: As described above, HUD's model emergency transfer
plan is a model plan that presents the basic elements set out in Sec.
5.2005(e) of this rule to be included in any plan. Housing providers,
however, will adopt their own plans that incorporates such other
elements specific to the HUD housing program in which the housing
provider participates that may need to be addressed in the emergency
transfer plan.
Comment: Emergency transfer plans should provide more guidance.
Commenters stated that a 2012 Senate Committee report said that the
emergency transfer plans should include guidance for use in situations
where it is not feasible for a housing provider to provide a transfer.
The commenters said that, for example, HUD should consider including a
HUD resource person in each HUD hub or HUD program center to assist
tenants with alternate housing options, including, assisted housing
properties with local preferences for victims of domestic violence,
referral to the local PHA, and access to and use of tenant protection
vouchers. Another commenter said the plan should also provide more
detailed explanations of the protections afforded to victims and
provide specific examples of transfers in order to help ensure
conformity among housing providers when responding to emergency
requests to transfer.
A commenter said HUD's model transfer plan must address the
obligations for a covered housing provider that receives a request to
relocate a survivor to their jurisdiction from another covered housing
provider. The commenter said that, at the very least, the model
transfer plan should provide guidance for how a covered housing
provider should analyze the request and set forth a time frame for
responding to the request.
HUD Response: HUD appreciates these suggestions, but declines to
require that a housing provider address each of these suggestions in
its emergency transfer plan. However, HUD encourages housing providers
to consider these suggestions. Housing providers should be familiar
with and, if they have not already done so, establish relationships
with organizations that assist survivors of domestic violence,
particularly those that offer help in locating safe housing for victims
of domestic violence. HUD is fully aware of the shortage of available
units assisted by HUD under all of its covered HUD programs, and these
organizations can be a valuable resource in helping victims of domestic
violence. HUD will provide assistance to help housing providers develop
their own emergency transfer plans, and further assist in helping to
identify HUD housing providers located in the same jurisdiction that
may be able to assist one another in helping, even on a temporary
basis, a victim of domestic violence, dating violence, sexual assault,
or stalking who has been residing in or occupying housing covered by
this rule.
Comment: The model transfer plan should include reasonable
timeframes for tenants and providers regarding submission of documents
and responding to requests. Commenters said HUD should require housing
providers to give tenants a status update on their request within a
reasonable amount of time. A commenter stated that, because of the
urgent nature of the situation, there should be time periods set out
for effecting emergency transfers. The commenters said, for example,
that all transfer applications submitted because of a household
member's status as a victim of domestic or sexual violence should be
processed and responded to within 48 to 72 hours. A commenter said, if
granted, the housing provider should be required to show the household
an available unit at least 1.5 miles from the current unit and current
address of the perpetrator within one week; and if the resident
accepts, the housing provider must sign a lease and allow the tenant to
move within 24 hours of acceptance. The commenters suggested that if a
unit is not available, then the housing provider should be required to
make a referral to other housing providers or the agency administering
Section 8 vouchers within 48 to 72 hours of the request.
HUD Response: HUD appreciates these suggestions and emphasizes that
housing providers should process emergency transfer requests as quickly
as possible to protect the health and safety of those requesting
emergency transfers under VAWA. The housing providers should also give
tenants a status update of their request if the emergency transfer
cannot be provided immediately. However, in this final rule, HUD does
not mandate specific time periods for responding to emergency transfer
requests, but may consider establishing timelines in future rulemaking
after time to determine the effectiveness of different emergency
transfer policies implemented in accordance with this rule. HUD
declines to mandate that housing providers show tenants requesting an
emergency transfer an available unit that is a specific distance away
from the current unit as closer available units may be safe, and may be
more desirable to the tenant requesting the transfer, depending on
different circumstances.
[[Page 80747]]
Comment: The model transfer plan should include a provision
explaining that tenants are not responsible for rent if they have to
relocate to a shelter. A commenter suggested that the model transfer
plan include language saying that, in cases where the family is in
immediate danger and needs to relocate to a domestic violence shelter
or other temporary housing while waiting for a housing provider to
process the transfer, the tenant will not be responsible for ongoing
rent so long as the tenant has removed all belongings and returned the
keys to the unit. The commenter further suggested that the model plan
state that, under these circumstances, the housing provider will waive
any normally required notice of lease termination.
HUD Response: HUD's model emergency transfer plan outlines
generally applicable requirements under VAWA and this rule. The
authority to exempt a tenant, who is a victim of domestic violence,
dating violence, sexual assault, or stalking from payment of rent after
the tenant departs the unit or the authority to waive any required
notification of lease termination is program-specific. Not all HUD
programs have this authority. However, where a housing provider has
such authority, the housing provider should include this information in
its own emergency transfer plan. Where any requirement that may impede
the emergency transfer of a victim of domestic violence is a HUD
regulation, and not a statutory requirement, HUD stands ready to
consider waiving the regulation for good cause shown, which would be
the need to transfer a victim of domestic violence, dating violence,
sexual assault, or stalking to a safe location as quickly as possible.
Please see the table, set out later in this preamble, which lists the
covered HUD programs and which programs have the authority to allow
remaining family members to remain in the subsidized unit after the
tenant who established eligibility for the unit has left.
Comment: HUD should add language for clarity to the model emergency
transfer plan. Commenters recommended that HUD add language about
``sexual assault'' and ``eligibility to all victims, regardless of sex
or gender identity'' to the model emergency transfer plan. Another
commenter said there is a paragraph in the model emergency transfer
plan that indicates that requests must be ``explicit,'' but
participants must request emergency transfers in writing and the
paragraph should expressly state that the request has to be in writing.
Another commenter said the plan should clarify that the size of the
housing provider may affect the ability of the housing provider to
execute emergency transfer requests; that is a housing provider with a
small number of units may be limited in its ability to find a safe
available unit.
HUD Response: HUD has revised the title of the model emergency
transfer plan to read ``Model Emergency Transfer Plan for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking.'' HUD
has also moved discussion of the fact that eligibility extends to all
victims regardless of sex, gender identity, or sexual orientation into
the main body of the document rather than only providing this
information in a footnote. HUD has also inserted a footnote stating
that housing providers cannot discriminate on the basis of any
protected characteristic, including race, color, national origin,
religion, sex, familial status, disability, or age, and that HUD-
assisted and HUD-insured housing programs must be made available to all
otherwise eligible individuals regardless of actual or perceived sexual
orientation, gender identity, or marital status.
HUD declines, however, to revise the model plan in the other ways
suggested by the commenters. This final rule clarifies, in Sec.
5.2005(e), that housing providers may request that participants request
emergency transfers in writing, but they are not required to do so, and
housing providers may process emergency transfers requests that are not
in writing as long as the tenant expressly requests the transfer. As to
reference to the size of the housing provider, the model plan already
indicates that the housing provider, regardless of size, cannot
guarantee that a transfer request will be approved. As HUD noted
earlier, HUD is aware of the limited availability of units assisted by
HUD under its programs. HUD reiterates that HUD's emergency transfer
plan is a model plan and that each housing provider will adopt its own
plan. HUD encourages all housing providers to include as much specific
information applicable to the transfer as possible, consistent with the
requirements of the HUD program in which the housing provider
participates.
Comment: The emergency transfer plan must incorporate strict
confidentiality measures. Commenters strongly expressed support for
HUD's language in the model emergency transfer plan to maintain
``strict'' confidentiality measures for emergency transfer. The
commenters said that, at a minimum, these measures must meet the
standards outlined in Sec. 5.2007(c), including prohibitions against
employee access to confidential information, entering information into
shared databases, or disclosing, revealing or releasing information
except for as provided in Sec. 5.2007(c). Commenters said that
inclusion of this language is necessary to ensure that the covered
housing provider does not disclose the location of the dwelling unit of
the tenant to a person who committed or threatened to commit an act of
domestic violence, dating violence sexual assault or stalking against
the tenant.
HUD Response: HUD agrees with commenters about the importance of
strict confidentiality, and retains language in the model emergency
transfer plan that the housing provider keep confidential any
information that the tenant submits in requesting an emergency
transfer, and information about the emergency transfer, unless the
tenant gives the housing provider written permission to release the
information, or disclosure is required by law or required for use in an
eviction proceeding or hearing regarding termination of assistance from
the covered program. The confidentiality required includes keeping
confidential the new location of the dwelling unit of the tenant, if
one is provided, from the person(s) that committed an act(s) of
domestic violence, dating violence, sexual assault, or stalking against
the tenant. HUD has added to the model emergency transfer form that
tenants should see the Notice of Occupancy Rights Under the Violence
Against Women Act for more information about a housing provider's
responsibility to maintain the confidentiality of information related
to incidents of domestic violence, dating violence, sexual assault, or
stalking.
Comment: Transfer plans should be developed with the consultation
of State and local experts on domestic violence, dating violence,
sexual assault, and stalking. Commenters said that the emergency
transfer plans and other VAWA policies are greatly improved when
developed in consultation with victim advocacy experts. Commenters
recommended inserting a statement in Sec. 5.2005(e) that all plans
must be developed in consultation with state and local experts.
HUD Response: HUD agrees with the commenters' suggestion and,
although HUD is not mandating consultation, HUD strongly encourages
housing providers to consult with victim advocacy experts in developing
their emergency transfer plans. In this final rule, HUD lists outreach
activities to organizations that assist or provide resources to victims
of domestic violence, dating violence, sexual assault, or stalking, as
one of the efforts
[[Page 80748]]
covered housing providers may take to assist tenants in making
emergency transfers. Please see HUD's response to an earlier comment in
which HUD stressed the importance of housing providers becoming
familiar and establishing relationships with victim advocacy
organizations, and with becoming familiar with other housing providers,
whether providing private market units, or other government-assisted
units, not solely HUD-assisted, to establish a network of support which
a housing provider could use to help a victim of domestic violence,
dating violence, sexual assault, or stalking who needs to move quickly.
Comment: Correct error in ESG program regulation and clarify who is
responsible for developing and implementing the emergency transfer
plan. Commenters identified a paragraph numbering error in the proposed
VAWA regulations for the ESG program, at Sec. 576.407(g)(3)(i) (where
the section is listed twice), but also stated that the second
occurrence of the provision gives the recipient several options for
designating which entity is responsible for developing and implementing
the emergency transfer plan. The commenter recommended changing this
proposed provision to say that the recipient must develop an emergency
transfer plan to meet VAWA requirements and each CoC, in which
subrecipients are located, must submit their own plan for approval by
the recipient. The plan would be a CoC-specific plan in compliance with
the recipient's plan, which provides CoC implementation detail. The
commenter further said that all plans must be developed in consultation
with State and local experts on domestic violence, dating violence,
sexual assault, and stalking.
Another commenter asked which of HUD's housing programs must adopt
an emergency transfer plan based on HUD's model plan.
HUD Response: HUD appreciates the commenter advising HUD of the
error in Sec. 576.407(g) in the proposed rule and HUD corrects this in
this final rule. The final rule also makes clarifying changes to the
new Sec. 576.409(d) to clearly establish who is responsible for
developing emergency transfer plans in ESG. This provision is
consistent with the existing ESG requirements for developing written
standards for administering ESG assistance. HUD emphasizes that all
emergency transfer plans must incorporate the components listed in
Sec. 5.2005(e) of this rule, and for ESG it must also include the
requirements provided under Sec. 576.409. As discussed in Sec.
5.2005(e) and later in this preamble, all emergency transfer plans must
describe policies to assist tenants who qualify for emergency transfers
under VAWA, such as any outreach activities to organizations that
assist or provide resources to victims. HUD encourages all housing
providers to work with victim service providers to develop emergency
transfer plans, wherever feasible. Covered housing providers in each of
HUD's housing programs must adopt an emergency transfer plan. Where
there are multiple covered housing providers within a program, the
program-specific regulations identify which housing providers are
responsible for developing and carrying out emergency transfer plans.
Rule Change: HUD moves the ESG VAWA requirements from Sec.
576.407(g) to Sec. 576.409 and clarifies the responsibility for
developing emergency transfer plans to be more consistent with existing
ESG requirements on developing written standards for ESG assistance.
Comment: Emergency transfer plans should provide ``approval''
criteria housing providers can reference to guide as the basis for
approving a request for emergency transfer. Commenters stated that HUD
should provide criteria in the model emergency transfer plan for
covered housing providers to reference when approving an emergency
transfer, which should include factors that take into consideration a
wide range of possible scenarios and that can be uniformly standardized
for each specific covered housing provider. Commenters said
standardized criteria will help covered housing providers to evaluate
transfer requests and to demonstrate their reasonable attempt to
qualify a tenant for an emergency transfer, affording them some degree
of safe harbor from litigation. Commenters said HUD's model emergency
transfer plan should include required criteria for requesting an
emergency transfer to an ``available and safe unit.''
HUD Response: As previously discussed, and with this final rule,
HUD presents a generally applicable model emergency transfer plan.
HUD's program offices will be able to assist housing providers in
covered programs that they administer with creating their own emergency
transfer plans. HUD understands the requests for more specific criteria
in a model transfer plan. The request made by these commenters for more
specific criteria is one of several that HUD has already addressed in
this preamble. VAWA 2013 brought under coverage HUD programs that are
very different from each other. The housing providers under these
programs are not always direct grantees, such as the case with PHAs,
but may be subrecipients receiving assistance from governmental
entities that received HUD assistance through formula programs.
Consequently, the program requirements vary because of the varied
nature of HUD programs. As HUD has further stated, although HUD is
providing a general model emergency transfer plan, one designed to
incorporate the key protections of VAWA 2013, housing providers not
only should but are expected to design emergency transfer plans that
not only incorporate the key protections of VAWA 2013, but reflect
unique requirements or features of their programs. Again, HUD program
staff will be available to assist covered housing providers or other
grantees or recipients charged with the development of an emergency
transfer plan. As to standardized criteria for evaluating transfer
requests, HUD discussed earlier in this preamble that, under this final
rule, housing providers may request that individuals submit written
requests certifying that they meet the criteria for an emergency
transfer under VAWA, as well as documentation that they qualify for
VAWA protections, but cannot require victims requesting emergency
transfers to provide third-party or other additional forms of
documentation in order to qualify for an emergency transfer.
Comment: Transfer plans should contain more information about
protection for victims. Commenters said that in order to better notify
victims of their rights under VAWA, a provision should be added under
the title ``Emergency Transfer Request Documentation'' that if a victim
verbally requests an emergency transfer, the housing provider must
notify the victim within 24 hours that a written request for a transfer
must be submitted, and the notice to the victim should include
information on how to submit a written request for a transfer and what
information must be provided. Commenters said the plan should also
state that third-party verification of the person's status as a victim
is not required until after the transfer and only self-certification is
required prior to it. Commenters also said HUD's model emergency
transfer plan should include a provision that the victim may reject an
offered unit that does not reduce the risk of harm and request that the
housing provider offer another unit if available. Commenters further
said a provision should be added to the plan stating that a housing
provider may not
[[Page 80749]]
require a tenant to pay certain costs in order to transfer, which
include but are not limited to paying off a previous balance or paying
an additional security deposit if the tenant relocates to another unit
from the same housing provider, and a victim should not bear the costs
associated with the transfer.
HUD Response: As previously discussed in this preamble, HUD amends
Sec. 5.2005(e) of this rule, and also amends the Notice of Occupancy
Rights Under VAWA that all tenants will receive, to clarify that
housing providers may require written requests for emergency transfers.
Housing providers should explain in their emergency transfer plans
whether they will require written requests for transfers, and, if so,
whether a specific form will be required or any written request will
suffice. If a written request is required, HUD has developed a model
form to help facilitate the submission and processing of a request.
However, HUD encourages housing providers not to require written
requests in exigent circumstances where an individual's health or
safety is at risk. As also explained previously, housing providers may
not require third-party documentation in order for a tenant to be
eligible for an emergency transfer.
As commenter suggested, HUD has revised its model plan to include a
statement that if a tenant reasonably believes a proposed transfer
would not be safe, the tenant may request a transfer to a different
unit. HUD has also revised its model plan to add a provision stating
that tenants who are not in good standing may still request an
emergency transfer if they meet the eligibility requirements in this
section. As explained elsewhere in this preamble, however, tenants may
have to pay certain costs associated with transfers.
Comment: Transfer plans should be readily available to tenants.
Commenters said the covered housing program's emergency transfer plan
must be publicly available and prominently displayed at the project
site, so that tenants understand they have this option.
HUD Response: HUD agrees and requires housing providers to make
emergency transfer plans publicly available whenever feasible, and, in
all circumstances, available upon request.
Rule Change: Section 5.2005(e) is revised in this final rule to
state that housing providers must make emergency transfer plans
available upon request, and must make them publicly available whenever
feasible.
e. Transfer Eligibility
Comment: Residents should be allowed to transfer even if their
incomes are too high. Commenters stated that residents should be
allowed to transfer if they are currently receiving a subsidy even if
the household is receiving income in excess of published limits. The
commenter said that, for example, the Tenant Rental Assistance
Certification System (TRACS) allows for a transfer even if an
individual no longer meets the income limit required for a new move-in,
but not exceeds those limits. A commenter stated that victims should
not fail to exercise their protections because they are afraid of
losing their housing/subsidy.
HUD Response: This rule does not establish any new requirements for
determining program eligibility, or include requirements pertaining to
transfers other than the requirements with respect to emergency
transfers that are implemented by this final rule. Existing program
regulations govern transfers apart from emergency transfers requests by
victims of domestic violence, dating violence, sexual assault or
stalking.
Comment: Explain whether minors are eligible for emergency
transfers. Commenters asked if a VAWA claim is made by an individual
under the age of 18, whether management can transfer the victim to
another unit, or whether a third party should be involved.
HUD Response: Un-emancipated minors would not be eligible to sign
leases under HUD programs. Housing providers should consider contacting
child welfare or child protective services, or law enforcement when a
minor claims to be the victim of domestic violence, dating violence,
sexual assault, or stalking.
Comment: Clarify whether housing providers may or must establish
eligibility preferences for victims under VAWA, or waive program
requirements. Commenters asked how VAWA emergency transfer plans impact
covered housing providers' waiting lists. A commenter stated that the
rule should clarify that housing providers are allowed, but not
required to establish preferences for victims under VAWA, and that any
preferences do not waive eligibility requirements. The commenter also
stated that housing providers should be allowed to provide preferences
for VAWA victims that are existing residents without providing
preferences to individuals who have no relationship with the housing
provider. Other commenters asked if agencies that administer vouchers
would be required to give absolute priority for the next available
voucher to satisfy an emergency transfer request. These commenters also
asked whether, if there are no vouchers available at the time of an
emergency transfer request, or the waiting list for the voucher program
is closed, there would be legal ramifications or other consequences for
being unable to satisfy such a request.
Another commenter said HUD should clearly specify how covered
housing providers are to balance the interests of applicants and
current tenants who may need VAWA protections. Some commenters said HUD
should expressly state that housing providers' obligation to help
tenants transfer to safe housing supersedes wait list, tenant
preference, or prioritization obligations and non-emergency transfers.
Commenter said the negative effects of delay in transfers include
forced homelessness and seeking emergency shelter, which can affect
one's employment and getting children to school.
Other commenters said that HUD should require a preference for
victims who have met emergency transfer documentation requirements so
that they may move to the top of the waiting list for a transfer to
another property under the covered housing provider's control. Other
commenters asked that HUD address the implementation of emergency
transfers as they relate to other competing tenant preferences such as
disability and homelessness.
Commenters said HUD should clarify that housing providers can
establish a voluntary preference for the emergency transfer of VAWA-
related victims, which could help facilitate a relocation that may
require an effective termination at one property, and enable priority
move-in at another site that may be separately owned or operated. A
commenter asked that HUD articulate how housing providers may adopt a
preference for VAWA.
A commenter stated that HUD's model emergency transfer plan does
not clarify what the housing provider is required or allowed to do to
expedite the transfer process, and requested that HUD expressly state
how a PHA and owner should comply with the transfer requirement given
the covered providers' obligation to observe waitlist rules. A
commenter recommended that HUD expressly state whether the waitlist
rules under the HOME program are violated by complying with a VAWA
emergency transfer policy.
HUD Response: HUD commends these commenters who raise concerns that
reflect the desire to help victims of those crimes addressed in VAWA
without interfering with the housing needs of individuals and families
[[Page 80750]]
residing in units administered by the housing provider or on the
housing provider's applicant waitlist. HUD acknowledges the difficulty
of achieving the right balance. This is the reason that VAWA 2013
requires an emergency transfer plan so that covered housing providers
may plan in advance, what actions to take when a victim of domestic
violence, dating violence, sexual assault, or stalking needs an
emergency transfer. The goal is for the plan to facilitate an emergency
transfer under VAWA as expeditiously as possible. The suggestion by one
commenter that housing providers establish a preference for victims
that need an emergency transfer, not all victims but again those that
need an emergency transfer, may be one way to achieve that goal.
Consistent with program requirements and allowances, housing
providers in covered programs are allowed to establish preferences for
victims of domestic violence, dating violence, sexual assault, and
stalking. These preferences, if established, must be established in
accordance with statutory or regulatory requirements that govern the
establishment of preferences.\10\ HUD notes that existing regulations
for the public housing and housing choice voucher programs (in 24 CFR
960.206(b)(4) and 24 CFR 982.207(b)(4)) provide that PHAs should
consider adoption of a local preference for admission of families that
include victims of domestic violence. Such adoption would be an
admission preference, admitting individuals as new tenants to a covered
program, and not to be confused with a transfer priority list, which a
housing provider could use to assist existing tenants. While HUD's
final rule does not require housing providers to establish admission
preferences for victims of VAWA incidents or transfer priority lists to
aid existing tenants in a covered housing program to make an emergency
transfer, HUD encourages housing providers to do so. Whether a housing
provider chooses an admission preference or establishes a transfer
priority list, or chooses not to or is unable to choose these
approaches because of statutory provisions, the fact remains that a
housing provider must prepare a workable emergency transfer plan; that
is, if a housing provider cannot provide a tenant who needs an
emergency transfer with an available safe unit immediately, the housing
provider must have resources and policies that it can turn to help this
tenant.
---------------------------------------------------------------------------
\10\ For example, the Quality Housing and Work Responsibility
Act of 1998 repealed mandatory Federal preferences for public
housing and Section 8 programs. Under HUD's regulations at 24 CFR
960.206(a)(1) and 24 CFR 982.207(a)(2), a PHA's system of local
preferences must be based on local housing needs and priorities,
and, in determining such needs and priorities, PHAs must use
generally accepted data sources. Regarding the HOME program, housing
providers must follow the procedures described in their written
selection policies.
---------------------------------------------------------------------------
HUD further clarifies in this final rule that covered housing
providers must detail in their emergency transfer plans the measure of
any priority that those who qualify for an emergency transfer under
VAWA will receive. Existing tenants of a housing provider who request a
transfer to another unit for which they would not be required to submit
an application (what this rule calls an internal emergency transfer,
and an example would be where no application would be required for a
public housing tenant to transfer from one building within a PHA's
portfolio to another building within the PHA's portfolio) should not be
placed on applicant waiting lists, as these tenants are not new
applicants. Where a tenant requests a transfer to a housing unit where
an application would be required (what this rule calls an external
emergency transfer, and an example would be a transfer to a different
program or to a unit that the housing provider does not control), each
covered housing provider's emergency transfer plan must provide
measures to assist these tenants. For example, under the plan a
provider may have established relationships with other covered housing
providers in the same jurisdiction where they share updated information
on available units, or relationships with victim service providers who
can assist tenants in locating, and quickly moving to, a safe and
available unit.
The purpose of these clarifications is to ensure individuals who
qualify for an emergency transfer under VAWA receive a meaningful
opportunity to transfer as expeditiously as possible and to avoid the
possibility that such individuals may, for example, be placed on the
bottom of an applicant waiting list with no other measures taken to
assist the individuals, counter to the intent of the emergency transfer
provision. The provider, through their emergency transfer plan, must
develop a plan for what actions to take when a victim of domestic
violence, dating violence, sexual assault, or stalking needs an
emergency transfer while balancing the needs of other eligible
individuals.
HUD understands that housing providers receive requests for
emergency transfers other than by those who may be victims of VAWA
crimes, and therefore housing providers may maintain a list of those
requesting emergency transfers. Where a housing provider maintains such
a list, an individual seeking an emergency transfer under VAWA must be
placed on this list or on a separate list for emergency transfers under
VAWA. Such lists for providing emergency transfers must be maintained
consistent with program confidentiality requirements and HUD's
confidentiality requirements at Sec. 5.2007(c). Alternatively, if
there is no list, an individual requesting an emergency transfer under
VAWA must, at a minimum, be given any priority as an emergency transfer
requestor that is consistent with the mechanism the housing provider
has in place to track emergency transfer or general transfer requests.
In cases where there are multiple individuals who need and qualify
for a vacant unit, HUD strongly encourages housing providers to
transfer applicants who qualify for an emergency transfer under VAWA as
quickly as possible, and to prioritize between multiple individuals
that need transfers when there are vacant units for which the tenant
requesting the emergency transfer qualifies. Housing providers may give
priority to VAWA emergency transfer requests regardless of whether the
housing provider prioritizes other types of emergency transfer
requests. HUD encourages consideration of the danger to the victim of a
VAWA crime until a transfer can be made.
Emergency transfer obligations under VAWA do not supersede any
eligibility or other occupancy requirements that may apply under a
covered housing program. For example, the tenancy priority for an
available accessible unit required to be accessible under HUD's Section
504 regulation must still be applied to maximize the utilization of
accessible units by individuals who need the accessibility features.
The objective of the emergency transfer plan is to develop a plan for
how to fill an available unit cognizant of the need to transfer an
individual who qualifies for an emergency transfer as quickly as
possible while meeting other obligations and balancing competing needs.
As for the HOME program, owners must continue to comply with
existing statutory requirements when it comes to admitting tenant but
are encouraged to implement preferences in their HOME-funded projects
for victims of domestic violence, dating violence, sexual assault, and
stalking so to assist those needing emergency transfers. HUD will issue
guidance on implementing the
[[Page 80751]]
VAWA emergency transfer plan in state and local HOME programs.\11\
---------------------------------------------------------------------------
\11\ The HOME statute at 42 U.S.C. 12755(d) permits owners of
HOME-assisted rental projects to establish certain preferences for
HOME-assisted units, but requires them to admit applicants in
chronological order from the waiting list. Consequently, absent a
specific project preference for victims of domestic violence, a
victim who is not already at the top of a waiting list for a project
may not be admitted to a vacant HOME-assisted unit before other
eligible applicants on the waiting list. HUD encourages
participating jurisdictions to implement such preferences in their
HOME-funded projects, but cannot dictate that establishment of any
specific preferences in HOME projects.
---------------------------------------------------------------------------
Rule Change: Section 5.2005(e) of this final rule requires that
emergency transfer plans must describe how covered housing providers
will assist tenants in making an emergency relocation to another unit
where the tenant would not be a new applicant (an internal emergency
transfer) when a safe unit is not immediately available for the tenant,
and how covered housing providers will assist tenants in making an
emergency relocation to another unit where the tenant would have to
undergo an application process to reside in the new unit (an external
emergency transfer) when a safe unit is not immediately available.
The rule specifies that tenants must be able to seek an internal
emergency transfer and an external emergency transfer concurrently if a
safe unit is not immediately available so that the tenant has a greater
opportunity to move to a safe unit as quickly as possible. For example,
if a tenant is not able to immediately relocate to a safe unit because
there is none available for which the tenant would not have to go
through an application process, emergency transfer plans must have
policies that assist the tenant in making an internal emergency
transfer as expeditiously as possible, for example, by placing that
tenant on an emergency transfer list, and simultaneously provide the
tenant with resources or assistance to seek an external emergency
transfer to a unit that may be under a different provider or different
program. The rule specifies that policies for assisting tenants to make
external emergency transfer include arrangements with other covered
housing providers to facilitate moves. These arrangements could be
those that allow housing providers to share tenant files, if the tenant
provides written consent to do so and any applicable confidentiality
requirements are met, in order to expedite a tenant's new application
process, and arrangements where covered housing providers alert one
another when a unit becomes newly available for occupancy. The rule
also specifies that policies may include outreach activities to
organizations that assist or provide resources to victims of domestic
violence, dating violence, sexual assault, or stalking. For example, as
discussed earlier, covered housing providers could develop
relationships with groups that assist victims covered by VAWA in making
emergency transfers.
Section 5.2005(e)(3) of this final rule provides that, for purposes
of notification to existing tenants, and overall public awareness, the
emergency transfer plan must describe any measure of priority given to
individuals who qualify for an emergency transfer under VAWA in
relation to other categories of transfers and waiting lists. Under the
final rule at 5.2005(e)(6) tenants who request and qualify for an
internal emergency transfer must, at a minimum, be given any priority
that housing providers may already provide to other types of emergency
transfer requests. The rule also requires, in Sec. 5.2005(e)(9), that
emergency transfer plans must describe policies for tenants who have
tenant-based rental assistance to make emergency moves with that
assistance if this is something that the covered housing provider may
encounter.
Additionally, HUD's regulations at 24 CFR 982.207(b)(4) and
960.206(b)(4) are revised to include victims of dating violence, sexual
assault, and stalking, as well as victims of domestic violence, as
those whose families should be considered for admission preferences.
Comment: Explain whether a victim always has to be eligible for a
program in order to receive a transfer, or whether requirements could
be waived. Commenters stated that it is unclear whether an emergency
transfer can be provided to a victim who is not eligible for a unit or
whether the VAWA transfer requirement supersedes the eligibility
requirements for special populations, such as elderly or disabled.
Other commenters stated that, after the first year of assistance at a
PBV site, families are eligible to receive a tenant-based voucher, and
asked whether the one-year requirement would be waived for VAWA. A
commenter suggested that HUD allow families needing an emergency
transfer under VAWA to request a voucher within the first year of
assistance at the PBV development, and said PHAs could be required to
create a priority on their tenant- based HCV waiting list for these
transfers from a PBV development due to domestic violence. A commenter
asked which of its housing resources should be prioritized for victims
of domestic violence requesting an emergency transfer and requested
confirmation from HUD of any waivers it may need from HUD to grant an
emergency transfer request that may require tenant assignment
procedures to operate outside of the agency's standard practices and
policies.
HUD Response: The provisions in VAWA on emergency transfer requests
do not supersede eligibility requirements for HUD housing serving
specific populations, or for any HUD housing covered by VAWA 2013.
Unlike VAWA 2005, VAWA 2013 did not revise the underlying statutes
governing the HUD programs covered by VAWA 2013, and therefore, the
eligibility requirements for each of the covered HUD programs are
unchanged by VAWA 2013. Housing providers must continue to comply with
the HUD program regulations regarding eligibility, as may be
supplemented by guidance that aids covered housing providers in
addressing specific fact situations. Although VAWA 2013 does not
override the specific program requirements for the HUD programs covered
by VAWA 2013, VAWA 2013 requires housing providers in each of the HUD-
covered programs to develop and issue an emergency transfer plan. As
discussed above, to fulfill this requirement, each housing provider
must develop a plan that does its best to transfer a victim of domestic
violence to a safe, available unit as quickly as possible. HUD
recognizes that because of statutory requirements, a victim receiving
assistance under one HUD program may not be eligible for assistance
under another HUD program because of the different eligibility
requirements. It is for these reasons that, under this final rule,
housing providers must take measures to assist victims who may not be
eligible to transfer to an available unit, such as engaging in outreach
to other organizations, such as domestic advocacy organizations, faith-
based organizations and State and local government entities, to measure
the availability of assistance that can be provided on an emergency
basis. HUD housing providers should also reach out to other housing
providers, private market providers and other government-assisted
providers to determine where they may be able to assist each other in
domestic violence situations. While a housing provider may not have an
available safe unit at a point in time when a victim of domestic
violence may need one, HUD expects that housing providers' emergency
transfer plans will provide for other means to help keep victims of
domestic violence safe.
With respect to the comments about project-based voucher housing,
commenters are correct that, after the
[[Page 80752]]
first year of assistance at a PBV site, families are eligible to
receive a tenant-based voucher. This is a statutory provision that is
not changed by HUD's VAWA regulations. HUD allows, but does not
require, PHAs to establish reasonable transfer policies that do not
conflict with statutory provisions, HUD occupancy regulations, or
housing goals. However, this final rule does alter the family right to
move provisions for project-based vouchers in 24 CFR 983.261, which
provides that families will not be required to notify a PHA before they
leave a unit if they are leaving because a member of the family is the
victim of a VAWA crime and the move is needed to protect the health and
safety of a family member, or a family member was a victim of sexual
assault that occurred on the premises during the 90-calendar-day period
before the family requests to move. In such a case, the family will
have to notify the PHA as soon as possible after they leave the unit,
and the PHA will have to offer the family assistance to a different
unit, or the PHA may offer the family a housing choice voucher if the
family had been in the unit for at least a year. Under this final rule,
24 CFR 983.261 also now specifies that a PHA may offer a victim tenant-
based rental assistance if a family breaks up as a result of domestic
violence, dating violence, sexual assault, or stalking.
With respect to prioritizing victims of domestic violence, dating
violence, sexual assault, or stalking for placement in housing, HUD
does not mandate that housing providers create preferences for victims
of domestic violence, but encourages housing providers to provide
preferences for victims of domestic violence, dating violence, sexual
assault, and stalking consistent with any regulations that govern the
establishment of preferences. For example, a PHA's system of local
preferences must be based on local housing needs and priorities by
using general accepted data sources and information obtained through
the PHA Plan public comment process (24 CFR 960.206(a)(1) for public
housing and 24 CFR 982.207(a)(2) for the HCV program.
Rule Change: 24 CFR 983.261 is revised in this final rule to
specify that requirements that families contact PHAs in advance of
terminating a lease to request comparable tenant-based rental
assistance if the family wishes to move do not apply if a member of the
family is the victim of a VAWA crime and the move is needed to protect
the health and safety of a family member, or a family member was a
victim of sexual assault that occurred on the premises during the 90-
calendar-day period before the family requests to move. Under this
final rule, a PHA may not terminate assistance if the family, with or
without prior notification to the PHA, moves out of a unit in violation
of the lease, if such move occurs to protect the health or safety of a
family member who is or has been the victim of domestic violence,
dating violence, sexual assault, or stalking and who reasonably
believed he or she was threatened with imminent harm from further
violence if he or she remained in the dwelling unit, or any family
member has been the victim of a sexual assault that occurred on the
premises during the 90-calendar-day period preceding the family's
request to move. This section is also revised to specify that if a
family breaks up as a result of an occurrence of domestic violence,
dating violence, sexual assault, or stalking, the PHA may offer the
victim the opportunity for continued tenant-based rental assistance.
f. Effectiveness of Transfers
Comment: Emergency transfers may be ineffective if they are within
the same property, or if victims or survivors compromise their new
locations to perpetrators. Commenters stated that emergency relocation
to other units within the same development may not be effective in
protecting a victim, and housing providers should not transfer a victim
to a unit in the same development. A commenter asked whether management
could refuse to allow a victim to transfer back to the perpetrator's
unit if the victim sought such transfer. Another commenter said that
rather than provide transfers, it would be more effective to evaluate
every victim's situation on a case-by-case basis and use domestic
violence shelters where necessary.
Commenters also expressed concern about the victims themselves
disclosing their new location to perpetrators. The commenters said that
a victim, as well as other household members, should be required to
self-certify a declaration that they will not disclose the location of
a new unit to the perpetrator (if known) nor to anyone known to the
victim, and that if they do disclose the new unit's location, the
family will not be entitled to any additional unit transfers under the
umbrella of VAWA protections. Commenters further suggested that any
tenant who invites a perpetrator that the tenant knows is not permitted
on property grounds into the tenant's unit should receive a lease
violation notice.
HUD Response: HUD appreciates commenters' concerns, but declines to
place restrictions on emergency transfers that would be contrary to the
intent of VAWA 2013. VAWA provides that individuals are eligible for
emergency transfers if they expressly request the transfer and
reasonably believe there is a threat of imminent harm from further
violence if they remain in the same dwelling unit, or, for sexual
assault victims, the assault occurred on the premises during the 90-
calendar-day period preceding the date of the transfer request. There
are no other restrictions on eligibility that are in the statute.
HUD is not in a position to speculate on why a survivor might
return to live in the perpetrator's unit, or how or why a perpetrator
might come to know of a survivor's new address. Each victim's situation
will be unique to the victim. If an individual reasonably believes that
there is a threat of imminent harm, or if an individual has been
sexually assaulted on the premises, and that individual requests a
transfer, then that individual is eligible for a transfer under VAWA to
an available unit that they believe to be safe.
Regarding transfers within the same property, HUD understands that
a transfer to a unit within the same development in which the
perpetrator resides might not be safe for victims. However, if the unit
in the same development is the only one available, the victim should be
allowed to consider transferring to the unit. This option should not be
foreclosed to the victim. The victim is in the best position to make
this decision. Accordingly, HUD does not prohibit emergency transfers
within the same property, but encourage housing providers to endeavor
to identify an available unit in another property.
g. Emergency Transfers for Sexual Assault
Comment: Clarify the requirements for an emergency transfer for
victims of sexual assault. Commenters asked HUD to clarify whether the
condition that the sexual assault occurred on the premises and happened
during a 90-day period preceding the tenant request for transfer is
intended to waive the requirement of reasonable belief of imminent harm
for other emergency transfers. A commenter said that language in HUD's
regulation should explicitly state the conditions under which a victim
of sexual assault can request an emergency transfer. A commenter also
asked if a victim of sexual assault expressly requests a transfer and
reasonably believes that there is a threat of imminent harm, whether it
matters when the sexual assault occurred.
Other commenters said HUD should rescind the specifications that
the
[[Page 80753]]
assault must have occurred within 90 days of the emergency transfer
request, and that it must have occurred on the premises in order for
the victim to be provided an emergency transfer. A commenter said HUD's
model emergency transfer plan appears to outline stricter guidelines
for victims of sexual assault to access protections as compared to
victims of domestic violence, dating violence and stalking. A commenter
stated that victims of sexual violence may experience delayed or long-
lasting reactions to the trauma and there are many reasons why victims
may not report the sexual assault immediately.
Another commenter stated that if an individual is dragged off the
premises and sexually assaulted elsewhere, that individual should be
able to ask for an emergency transfer. A commenter said that, in the
case of children at the very least, who may not disclose the assault
for some period of time out of fear, it should not matter if the sexual
assault occurred more than 90 days prior. A commenter said that it
should not matter if a rape occurred off premises if the perpetrator of
the rape is on the lease and the victim is a tenant.
Other commenters said that covered housing providers should be
encouraged to apply a longer time frame when necessary, and, at a
minimum, the language of HUD's proposed regulation at Sec.
5.2005(e)(1)(b)(ii) should be changed so it is clear that nothing in
the regulations prohibits housing providers from considering and
approving transfers for victims of sexual assault when the assault
occurred more than 90 days before the transfer request was made or the
sexual assault did not occur on the premises. Commenters said the
proposed regulatory provision, as written, may cause some confusion or
be misinterpreted to suggest that moves to protect the health and
safety of the family also must be within the 90-day time frame or
experienced on the premises.
HUD Response: HUD's regulations on emergency transfer for victims
of sexual assault mirror the provisions in VAWA 2013. The 90-day time
frame is from the statute. However, the statutory provisions are the
minimum requirements that covered housing providers must meet. Covered
housing providers may allow more time. They are not confined to the 90-
day period, and should consider additional time, as commenters
suggested, given that certain victims of sexual assault may fear
disclosure.
Under VAWA 2013, victims of sexual assault qualify for an emergency
transfer if they either reasonably believe there is threat of imminent
harm from further violence if they remain in their dwelling unit, or,
the sexual assault occurred on the premises during the 90-calendar-day
period preceding the date of the request for transfer. Thus, emergency
transfer plans must provide that victims of sexual assault will be
eligible for an emergency transfer if they expressly request the
transfer and they either reasonably believe there is threat of imminent
harm from further violence if they remain in their unit, regardless of
where or when the sexual assault occurred, or, the sexual assault
occurred on the premises during the 90-calendar-day period preceding
the date of the request for transfer, regardless of whether they
reasonably believe there is a threat of imminent harm from further
violence if they remain in their unit. HUD has revised the Notice of
Occupancy Rights under VAWA and the Model Emergency Transfer Plan to
clarify that there are two ways that victims of sexual assault may
qualify for an emergency transfer under VAWA. HUD also clarifies this
in the rule.
With respect to a commenter's statement that a victim who was
attacked by a perpetrator on the grounds of the covered housing
provider but dragged from the property and sexually assaulted elsewhere
should be considered as meeting the VAWA requirements for a sexual
assault occurring on the premises, HUD finds that this situation would
meet the requirement because, in essence, the start of the assault
occurred on the premises.
Rule Change: Section 5.2005(e)(2)(ii)(B) is revised to clarify that
in the case of a tenant who is a victim of sexual assault, the tenant
qualifies for a transfer if either the tenant reasonably believes there
is a threat of imminent harm from further violence if the tenant
remains within the same unit that the tenant is currently occupying, or
the sexual assault occurred on the premises during the 90-calendar-day
period preceding the date of the request for transfer.
h. The Scope of the Transfer Provision
Comment: Clarify whether a transfer can happen between different
properties and different programs, and whether such transfer would be
required and how it would be achieved. Commenters asked for
clarification on the meaning of ``transfer''--whether a transfer means
a transfer within a property, within properties that a housing provider
administers, or includes properties not in the housing provider's
control. A commenter asked if survivors would be able to establish
eligibility across different HUD programs, different covered housing
providers, different geographies, and housing programs in other
agencies, or whether they would be limited to the program and housing
provider where they currently reside.
Commenters asked how a transfer between properties would be
coordinated and sought more guidance from HUD on transfers. Commenters
asked how a PHA that administers the HCV program should effect a
transfer and whether the PHA will be responsible for finding the victim
a new unit. A commenter asked whether it would be acceptable for a PHA
to process an expedited ``move with continued assistance'' (MWCA) or
allow a MWCA when it would otherwise not be allowed.
Commenters asked whether it is mandatory or discretionary for PHAs
to transfer a family from public housing to Section 8 housing. A
commenter said that flexibility in this area would facilitate a
transfer by giving PHAs the ability to transfer the household to the
first unit or voucher that is available for the household's size
regardless of program. A commenter also asked whether PHAs would be
expected to issue a voucher to a project-based participant at risk of
domestic violence.
A commenter asked what a housing provider should do if there are no
units available on the current property to transfer the victim to, or
there is a unit available but it does not have enough bedrooms to
accommodate the victim and the victim's family.
HUD Response: In this final rule, HUD clarifies that covered
housing providers must allow tenants who meet the rule's criteria for
an emergency transfer to make an internal emergency transfer, which, as
discussed above, is one where a tenant could reside in a new unit
without having to undergo an application process, when a safe unit is
immediately available. A significant obligation of every housing
provider is to keep its own tenants safe, and where an existing tenant
meets the eligibility requirements and would not have to undergo an
application process in order to move to an available unit that is safe,
the tenant must be offered the transfer to this unit.
As discussed in the proposed rule, HUD reads ``under a covered
housing program'' to mean the covered housing provider must, at a
minimum, transfer the tenant to a unit under the provider's control and
assisted under the same covered program as the unit in which the tenant
was residing, if a unit is available and is safe. This means housing
providers may be required to transfer certain tenants to different
[[Page 80754]]
properties that are under the housing providers' control, provided that
these properties are under the same program in which the tenant is
assisted, and the properties are subject to one wait list. If there is
a separate wait list for each of these properties, then the housing
provider may not, depending upon program requirements, be able to
easily transfer a tenant to another property.
The proposed rule stated that, in addition, covered housing
providers must allow tenants who qualify for emergency transfers to
transfer to a safe and available unit that is under their control and
under another covered housing program, if such transfer is permissible
under applicable program regulations. This means the program
regulations for both the program that the tenant is leaving and the
program regulations for the program the tenant would be joining allow
for a transfer between programs. After further review, HUD has removed
this language from the final rule, as at the present time, there are no
HUD programs to which an individual could transfer from another program
without applying for housing under a new program. Tenants seeking to
move to a unit covered by a different program may apply for housing
under the new program. However, a housing provider is not fulfilling
its emergency transfer obligation if the only relief offered to a
tenant is to be placed at the bottom of a waiting list for a new
program. The housing provider that administered the unit in which the
tenant became a victim of domestic violence must have in its emergency
transfer plan a process through which the provider will assist the
victim in finding alternative housing. For example, the plan could
include providing the victim with names, addresses, or phone numbers of
domestic advocacy organizations that stand ready to assist victims of
domestic violence on an emergency basis, and a list of other housing
providers, whether private market providers or other government-
assisted housing providers, that may have offered their availability to
be contacted by the housing provider who has a tenant who is a victim
of domestic violence, and may possibly be able to offer assistance to a
victim of domestic violence.
Certain HUD programs have additional specific requirements under
this rule as to actions that housing providers must take to assist
tenants in transferring when a safe unit is not immediately available
for victims who qualify for emergency transfers under VAWA. HOME and
HTF require that the participating jurisdiction (in the case of HOME)
or the grantee (in the case of HTF) must provide a list of properties
in the jurisdiction that include HOME or HTF-units (depending on which
program the tenant is currently under) to tenants in these programs
that request and qualify for external emergency transfers under VAWA.
Under this rule, the list must include for each property: The
property's address, contact information, the unit sizes (number of
bedrooms) for the HOME or HTF-assisted units, and, to the extent known,
any tenant preferences or eligibility restrictions for the HOME or HTF-
assisted units. In addition, the participating jurisdiction or the
grantee may establish a preference under the program for tenants who
qualify for emergency transfers, and coordinate with victim service
providers and advocates to develop the emergency transfer plan, make
referrals, and facilitate emergency transfers to safe and available
units. For the HOME program, the participating jurisdiction may provide
HOME tenant-based rental assistance to tenants who qualify for
emergency transfers under 24 CFR 5.2005(e). Under the ESG and CoC
programs, tenants who live in assisted units and qualify for emergency
transfers under VAWA but cannot make an immediate internal emergency
transfer to a safe unit receive priority over all other applicants for
new assistance or housing, subject to certain eligibility restrictions.
Additionally, given that 24 CFR 5.2005(e)(9) provides for tenants who
are receiving tenant-based rental assistance and qualify for an
emergency transfer to move quickly with that assistance, the ESG and
CoC program rules require the emergency transfer plan to specify what
will happen with respect to the non-transferring family member(s), if
the family separates in order to effect an emergency transfer. Under
HUD's Section 8 programs and Section 202 and Section 811 programs, this
final rule provides that covered housing providers may adopt or modify
existing admission preferences or transfer waitlist priorities to
facilitate emergency transfers for victims of domestic violence, dating
violence, sexual assault, and stalking, and must review their existing
inventory of units and determine when the next vacant unit may be
available, and provide a list of nearby HUD subsidized rental
properties to tenants who qualify for emergency transfers under VAWA.
As noted earlier in this preamble and provided in Sec.
5.2005(e)(12), emergency transfer obligations under VAWA do not
supersede any eligibility or other occupancy requirements that may
apply under a covered housing program.
Housing providers are strongly encouraged to accept emergency
transfers from different housing providers, including transfers from
other HUD-covered programs as long as program eligibility requirements
are met, even though they are not required to do so. HUD strongly
encourages housing providers who accept emergency transfer requests
from other housing providers to prioritize those requests from other
providers in the same manner that they prioritize VAWA emergency
transfer requests that they receive from their own tenants. However,
where there may be a conflict between a tenant of a housing provider
needing an emergency transfer and a tenant of another housing provider
needing an emergency transfer, the housing providers' first obligation
is to its own tenants.
With regard to carrying out a transfer for an HCV participant, the
transfer would follow current PHA policies regarding transfers.
Pursuant to existing regulations, the PHA must allow the family in the
tenant-based voucher program to move with continued tenant-based
assistance (24 CFR 982.354(b)(4), 982.353(b)). The PHA must issue the
victim a voucher allowing the victim to search for another unit in its
jurisdiction, or begin the portability process if the victim wishes to
move outside of the PHA's jurisdiction.
Under the PBV program, the assistance is tied to the unit as
opposed, in the case of tenant-based assistance, to the family.
Therefore, PBV families cannot move with their PBV assistance. However,
if the victim seeks to move from the victim's unit, has been living in
the PBV unit for more than one year, and has given the owner advance
written notice of intent to vacate (with a copy to the PHA) in
accordance with the lease, the PHA must give the victim priority to
receive the next available opportunity for continued tenant-based
rental assistance (24 CFR 983.261).
In response to the comment about transferring tenants between
public housing and Section 8 housing, these are different programs,
with separate statutory and regulatory requirements, and in order for a
tenant to receive assistance through a program in which they are not
currently participating, they would have to apply for housing under the
new program. However, owners may, and HUD strongly encourages owners
to, assist tenants in facilitating moves to other programs. Housing
providers may be able to facilitate tenant transfers between different
programs and different providers by
[[Page 80755]]
establishing a preference for victims of domestic violence, dating
violence, sexual assault, or stalking.
Rule Change: Section 5.2005 is revised to state that the emergency
transfer plan must allow tenants who are victims of domestic violence,
dating violence, sexual assault, or stalking to make an internal
emergency transfer under VAWA when a safe unit is immediately
available. The statement regarding transfers to a unit in another
covered housing program if such transfer is permissible under
applicable program regulations has been removed. Additionally, as
previously discussed, Sec. 5.2005 requires that emergency transfer
plans describe policies for assisting tenants in making internal and
external emergency transfers when a safe unit is not immediate
available.
Additionally, this rule revises HUD's HOME and HTF regulations in
Sec. 92.359 and Sec. 93.356, respectively, to require that
participating jurisdictions or grantees must provide a list of
properties in the jurisdiction that include HOME or HTF-assisted units,
and information about each property, to tenants who qualify for, and
wish to make, an external emergency transfer under VAWA. The
regulations provide additional actions the participating jurisdiction
or grantee may take to comply with this rule. The rule also revises
HUD's ESG and CoC regulations, in Sec. Sec. 576.400(e) and 576.409
(for ESG) and Sec. Sec. 578.7 and 578.99 (for CoC), to provide that
families living in units assisted under these programs who qualify for
emergency transfers under VAWA but cannot make an immediate internal
emergency transfer must be provided with priority over all other
applicants for a new unit under these programs or other assistance
under these programs, subject to certain restrictions.
Under HUD's Section 8 programs and Section 202 and Section 811
programs, this final rule provides, in Sec. Sec. 880.613, 882.407,
882.804, 884.226, 886.139, and 891.190, that covered housing providers
may adopt or modify existing admission preferences or transfer waitlist
priorities to facilitate emergency transfers for victims of domestic
violence, dating violence, sexual assault, and stalking, and must
review their existing inventory of units and determine when the next
vacant unit may be available, and provide a list of nearby HUD
subsidized rental properties to tenants who qualify for emergency
transfers under VAWA.
Comment: Clarify that a housing provider cannot guarantee safety in
a new unit, or that a perpetrator will not learn the new unit's
location. Commenters stated that there is no way a housing provider can
guarantee safety, and a commenter asked that references to an owner's
obligation to transfer a victim to a ``safe'' dwelling unit be removed
from the rule. Another commenter expressed concern that most HOME-
funded developments are single-building, 50- to 100-unit building, and
for transfers made to another unit in the same building where the
victim's perpetrator continues to live, the perpetrator could very
quickly learn the location of the victim's emergency transfer unit.
Commenter asked HUD to make explicit acknowledgement of this scenario
in the final regulation.
HUD Response: Neither the VAWA statute nor HUD's regulations
require a housing provider to guarantee safety. As noted in Sec.
5.2005 (e)(1), this rule defines a safe unit for emergency transfer
purposes as one that the victim of domestic violence, dating violence,
sexual assault, or stalking believes is safe. The VAWA statute
specifies that the unit to which a housing provider transfers a victim,
under an emergency transfer request, is to be available and safe.
Accordingly, HUD is not removing reference to the unit being ``safe''
from the regulations. Housing providers do not have to guarantee
safety, but should do their best to identify an available unit that the
victim considers safe.
Rule Change: Section 5.2005(e)(1) of this final rule is revised to
state that for purposes of VAWA emergency transfers, a safe unit refers
to a unit that the victim of domestic violence, dating violence, sexual
assault, or stalking believes is safe.
Comment: Units should be left vacant for a period of time. A
commenter stated that units should remain vacant for a reasonable
period of time after the victim has moved because the perpetrator may
not know that the victim moved, thus endangering a new resident.
HUD Response: HUD declines to require housing providers to keep
units vacant for a period of time after a victim has moved from a unit.
Consistent with program requirements, housing providers may choose to
leave units vacant if they believe that will be in the best interest of
the property's residents, but HUD is not requiring housing providers
take this action.
Comment: Clarify that ``emergency transfer'' applies only to truly
emergency situations. Commenters stated that HUD's rule should be clear
that an emergency transfer should be in response to an imminent danger,
where removal of the victim from the victim's current residence is
necessary for the victim's safety. Commenter also stated that the
proposed rule referred to an emergency transfer being authorized in the
case of sexual assault that occurred within 90 days of the date of the
request, but a 90-day delay seems inconsistent with the common
understanding of the word ``emergency.''
HUD Response: VAWA 2013 provides that tenants are allowed to
transfer if they expressly request the transfer and reasonably believe
they are threatened with imminent harm from further violence if they
remain within the same dwelling unit; or in the case of a tenant who is
a victim of sexual assault, the sexual assault occurred on the premises
during the 90-calendar-day period preceding the request for transfer.
This rule tracks these statutorily required conditions.
Comment: The proposed rule and notice of rights and model emergency
transfer plan should guarantee the ability to transfer that is provided
in VAWA 2013. Commenters stated that the rule and associated documents
should be revised to require covered housing providers to transfer
tenants who are victims under VAWA to another unit in any covered
housing program, instead of only requiring covered housing providers to
transfer such tenants to a unit under the control of the covered
housing provider and assisted under the same covered program.
Commenters further stated that the permissive language in the rule,
notice, and model emergency transfer plan that emergency transfers may
occur if a tenant is eligible for housing in the unit to which the
tenant would be transferred should be changed to mandatory language
that emergency transfers shall occur if a tenant is eligible for
housing. A commenter suggested that the rule should be revised to
eliminate provisions that a transfer is contingent on if such transfer
is permissible under applicable program regulations and that waiting
lists or tenant preferences or prioritization must be considered. The
commenter stated that these changes are necessary because the text,
purpose, and legislative history of VAWA 2013 require that, under the
statutory emergency transfer provisions, a transfer must be provided to
an available and safe unit under any covered housing program. The
commenter stated that the text of VAWA requires agencies to adopt a
model plan that allows tenants to transfer to another available and
safe unit that is assisted under ``a'' and not ``the'' covered housing
program.
HUD Response: As was discussed previously in response to an earlier
[[Page 80756]]
comment, this rule does not require that covered housing providers
transfer tenants who are victims of domestic violence to another unit
in any HUD-covered housing program. A tenant who moves to a unit
covered under a different housing program or a different provider would
be a new applicant, and not a transferee, and certain application
procedures would need to be followed. In addition, VAWA does not
override the eligibility or occupancy requirements of the different
covered programs. Therefore, a transfer cannot disregard the
eligibility or occupancy requirements of the different covered housing
programs, unless the authorities governing an individual covered
program allow those eligibility and occupancy requirements to be set
aside or waived under certain circumstances. The specific eligibility
requirements in program-specific statutes still apply, and housing
providers must comply with those requirements. HUD therefore maintains
the provision in the proposed rule that emergency transfer requirements
do not supersede any eligibility or other occupancy requirements that
may apply under a covered housing program.
HUD is committed to developing ways to facilitate emergency
transfers among different providers and different covered housing
programs, and will continually examine ways to improve the efficacy of
the current policies. For example, HUD will examine the variations in
eligibility requirements and strive to identify those programs that
have eligibility requirements that are comparable but not identical to
see if HUD can develop a ``fast-track'' admission process, so to speak,
for facilitating a tenant of one HUD-covered program and who is a
victim of a VAWA crime to quickly meet the eligibility requirements of
another HUD-covered program. Further, HUD is considering developing a
model ``collaborative'' emergency plan in which covered housing
providers in a given area work together and commit to aid one another
in finding available safe units for their tenants who are victims of
domestic violence.
HUD encourages housing providers to assist those who qualify for
emergency transfers under VAWA to expedite applications for new housing
units, in situations where a new application would be required, and to
explain such measures in their emergency transfer plans. To facilitate
adoption of this proposal, this rule revises the standards for PHA
tenant selection criteria in public housing to state that PHAs may
accept and use a prior covered housing provider's determination of
eligibility and tenant screening and verification information so that
victims of domestic violence, dating violence, sexual assault, or
stalking who qualify for emergency transfers under VAWA can move more
quickly. HUD notes that portability procedures for the Housing Choice
Voucher Program in 24 CFR 982.355(c)(7) already state that when a
family moves under portability to an area outside the initial PHA's
jurisdiction, the initial PHA must promptly notify the receiving PHA to
expect the family, and the initial PHA must give the receiving PHA the
most recent form HUD 50058 (Family Report) for the family, and all
related verification information.
Rule Change: This rule revises 24 CFR 960.203 to include a
provision that, in cases of requests for emergency transfers under
VAWA, with the written consent of the victim of domestic violence,
dating violence, sexual assault, or stalking, the receiving PHA may
accept and use the prior covered housing provider's determination of
eligibility and tenant screening and all related verification
information, including form HUD 50058 (Family Report).
Comment: Housing providers should work with victims to ensure they
are placed in a housing unit. Commenters said that emergency homeless
shelters are not viable, long-term alternatives for re-housing domestic
violence survivors, and a survivor and their affiliated individuals
should be placed in a housing unit whenever possible. Commenters said
if housing is not available at the time that the victim seeks to move,
housing providers should demonstrate they are immediately and
continually working to find new housing for survivors.
HUD Response: HUD agrees with commenter that emergency homeless
shelters may provide immediate accommodation but are not long-term
alternatives for rehousing anyone who needs housing. Victims who are
eligible for emergency transfers should be moved to a safe housing unit
if one is available as soon as possible. The requirement to transfer
victims, who seek to move from their unit, does not end at a specific
time, but remains until the victim, who requested the transfer, informs
the housing provider that the victim no longer seeks the transfer, or
the victim, no longer receives housing or housing assistance through a
covered housing program.
Comment: Clarify that transfers will not be guaranteed, especially
to a particular site. A commenter said language in HUD's model
emergency transfer plan that the housing provider cannot guarantee that
a transfer request will be approved or how long it will take to process
a transfer request should be reiterated and emphasized repeatedly so
that tenants fully understand this is not a guarantee. Other commenters
said plans and guidelines should not suggest that a tenant will be
transferred to a specific site, and the family should accept an
appropriate unit. A commenter said it has experienced residents trying
to use emergency transfer procedures to get into a specific site.
HUD Response: The language in the model emergency transfer plan
stating that the housing provider cannot guarantee that a transfer
request will be approved or how long it will take to process is
sufficient. Having said that however, because it is an emergency
transfer plan required by VAWA 2013, the expectation is that housing
providers address every emergency transfer request as an emergency and
move as expeditiously as possible to place the victim of domestic
violence in a safe unit, either one that is in the housing provider's
control, or one that is made available by the network of support that
HUD encourages every housing provider to establish. Protecting victims
of domestic violence should be a collaborative effort of the public
sector and private sector in every community.
As for the safety issue, housing providers may add in their own
emergency transfer plans additional language noting the inability to
guarantee the safety of a specific unit or site. It is also important
to note that although housing providers may believe that they have
identified a safe unit, the housing provider may not force victims of
domestic violence, dating violence, sexual assault, or stalking to
transfer to a site where the victim does not feel safe. Such a move
would not be a transfer to a ``safe'' unit in accordance with VAWA 2013
and HUD's final rule.
Comment: Provide for appeals if a tenant is denied a transfer. A
commenter said that when a tenant is denied a transfer under VAWA, or
offered an unsafe unit, the tenant seeking the transfer must have the
ability to challenge the action irrespective of the particular covered
housing program. The commenter said all transfer denials should be in
writing and explain the basis for the denial of the housing transfer
and, if the transfer is not granted within 72 hours, the tenant can
assume it has been denied and grieve or appeal the decision.
HUD Response: Tenants will be made aware of their rights regarding
emergency transfers through the Notice of Occupancy Rights, and as
described in Sec. 5.2005(e), tenants will have the
[[Page 80757]]
right to review their housing provider's emergency transfer plan. A
tenant should feel free to ask to talk to their housing provider about
any provision of the emergency transfer for which the tenant may have
questions. If a victim feels that there has been an unfair denial of an
emergency transfer and is unable to resolve this situation with their
housing provider, the victim should contact HUD.
Comment: Explain whether there are limitations to transfers. A
commenter asked how often a covered housing provider must transfer a
victim and whether it matters if the need for a subsequent transfer
results from the victim informing the perpetrator of where the victim
lives. The commenter also asked, if there are multiple victims in a
household, is there is any limit to the number of transfers that must
occur if different household members request transfers.
HUD Response: Housing providers may not deny transfers to a safe
and available unit if the transfer is necessary because a perpetrator
learned of the victim's new location, regardless of how the perpetrator
learned of the location. In addition, housing providers may not limit
transfers based on the number of household members who request
transfers, provided the victims meet the statutory requirements for an
emergency transfer.
i. Emergency Transfer Logistics
Comment: Explain how emergency transfers will work, particularly
when a housing provider does not have other available and safe units or
cannot afford the transfer. Commenters asked how a small PHA could
transfer a victim if it does not have another safe unit and there are
no other forms of assistance available. Commenters asked whether HUD
has considered alternative ways to fund transfers other than tenant
protection vouchers, if these are not available. Another commenter said
that HUD should consider what resources it can provide to victims when
housing providers are not able to accommodate a transfer request based
on the availability of units under their control. Another commenter
asked whether, if a PHA bifurcates a lease and offers an emergency
transfer, the PHA will be penalized if it cannot grant a transfer for
lack of funding.
Commenters said that it is particularly important to recognize the
differing characteristics, roles and capabilities of various housing
providers and property types. Commenters said that, while a PHA may be
able to relocate tenants upon request, private property owners and
managers are generally not in a position to transfer tenants or assist
tenants in making alternative housing choices. A commenter said
emergency transfer provisions should acknowledge the limitations of
transfer policies and reflect the practical realities of the rental
housing sector. Another commenter said that it can provide a voucher,
if funding is available, to accommodate an emergency transfer request
from one of its public housing units, but, due to different eligibility
criteria, it cannot readily transfer public housing families to its
project-based Section 8 properties.
Another commenter said that if the housing provider does not have a
unit available under another covered program it administers, then the
housing provider should make a referral to the appropriate agency
administering HCV vouchers so that the victim may be provided with a
voucher. A commenter said HUD should develop rules and procedures for
the agency administering vouchers to accept referrals from covered
housing providers in the agency's area to streamline the process and
reduce the time in which a victim receives a tenant protection voucher.
The commenter also said housing providers should make referrals to
other local or regional housing providers when no appropriate units are
immediately available.
A commenter asked what recourse an owner has in the event that a
VAWA victim declines to move to the proposed transfer unit. Another
commenter said a tenant's rejection of the proposed transfer cannot
serve as a basis for good cause termination of assistance or lease
termination.
HUD Response: HUD has addressed similar comments already in this
preamble. HUD recognizes the challenges of finding available units in
its covered housing programs. Waiting lists are long and units are not
available in abundance. If there is no safe and available unit to which
a victim can transfer, then the housing provider will not be able to
provide an emergency transfer, but as also stated earlier in this
preamble, VAWA requires each housing provider to develop and issue an
emergency transfer plan. The emergency nature of such a plan must be
taken seriously. HUD has acknowledged the limitation of available units
in all of HUD's covered housing programs, which is why HUD has
encouraged emergency transfer plans that are in consultation with and
work in collaboration with other public and private organizations and
entities that are dedicated to helping victims of domestic violence.
HUD also encourages housing providers to reach out to other housing
providers in their jurisdiction, and strive to establish a relationship
in which the housing providers, whether private market providers or
government-assisted providers, help one another to the extent feasible
address emergency domestic violence situations. Reference to such other
resources in an emergency transfer plan reflects that the plan is
designed to facilitate a transfer as quickly as possible. The purpose
of a lease bifurcation is to remove the perpetrator from a unit without
evicting, removing, terminating assistance to, or otherwise penalizing
a victim who seeks to remain in the unit. The purpose of an emergency
transfer is to transfer a victim to a unit away from the perpetrator
where the victim feels safe. An emergency transfer is not required as a
result of a lease bifurcation.
With respect to the question of what recourse is available to an
owner in the event that a VAWA victim declines to move to a proposed
transfer unit, there is no HUD program where a tenant's rejection of a
proposed transfer in accordance with Sec. 5.2005(e) would serve as a
basis for good cause termination of a lease.
Comment: Housing providers should consider units with different
ownership for emergency transfers. Commenters said HUD must make clear
to housing providers that management entities have the option of
considering units with different ownership and that individual HAP
contracts, or ownership distinctions, are not unmovable barriers to
transfers.
HUD Response: HUD agrees with commenters and emphasizes that
housing providers should consider, for emergency transfer requests,
safe and available units with different ownership where such a transfer
is feasible, and adheres to statutory requirements that may govern the
transfer.
Comment: Housing providers should only be required to consider
units that are under their control and that are part of the same
housing program in which the victim participates. Commenters said
allowing transfers to other housing programs would open the door to
abuse as many might use this as a way to circumvent long waiting lists
for their program of choice. Another commenter said various program
limitations, including funding considerations, voucher availability,
and fairness concerns in waiting list administration, may limit a
provider's flexibility in transferring a victim from one of its
programs to the other, and the rule should state that a housing
provider is not required to transfer a victim to a different covered
housing program it operates or administers.
[[Page 80758]]
HUD Response: As previously discussed, under this final rule,
covered housing providers must allow tenants to transfer to units that
are available and safe when the tenant may reside in the new unit
without having to undergo an application process. This means that
transfers will not be required to units outside of a provider's control
and in a different program. However, as also previously discussed in
greater depth, this final rule requires housing providers to establish
procedures in their emergency transfer plan for transferring tenants
who qualify for an emergency transfer under VAWA when the provider does
not have a safe and available unit for which the tenant requesting the
transfer can immediately transfer. HUD believes these requirements
ensure that emergency transfer plans seriously consider the needs of
victims of domestic violence, dating violence, sexual assault, and
stalking, and have measures in place to assist such victims, while
giving housing providers flexibility as to how they will be best able
handle VAWA emergency transfer requests.
As provided in Sec. 5.2005(e)(12) of this final rule, and already
stated in this preamble, emergency transfer obligations do not
supersede any eligibility or other occupancy requirements that may
apply under a covered housing program. Housing providers are strongly
encouraged to accept emergency transfers from different housing
providers, as long as all program requirements that affect the
transfer, those applicable to the housing provider seeking assistance
and those applicable to the housing provider willing to accept the
tenant, are followed.
Comment: HUD should issue tenant protection vouchers and establish
policies and procedures related to tenant protection vouchers.
Commenters asked that HUD issue tenant protection vouchers to assist
victims of VAWA crimes. A commenter asked that these vouchers be issued
with reference to PHA size and to the number of emergency transfers
issued during the immediately preceding fiscal year. A commenter said
such vouchers give victims the ability to transfer to a unit in another
jurisdiction, where they may feel there is greater safety. A commenter
said that it is unlikely other HUD-funded units will be available for
emergency transfers, and HUD should provide vouchers to jurisdictions
that do not have extra vouchers, although this could lead to false
allegations of victimization. Other commenters asked HUD to encourage
its Congressional appropriators to increase funding for tenant
protection vouchers and/or to encourage a separate set-aside of
vouchers for victims of VAWA crimes.
Commenters said that, under VAWA 2013, HUD is required to establish
policies and procedures for how victims requesting an emergency
transfer may receive tenant protection vouchers, subject to their
availability. Commenters stated that the proposed rule did not provide
policies and procedures for these vouchers, and said it makes sense to
spell out a policy for these vouchers in the context of HUD's model
emergency transfer plan.
HUD Response: The fiscal year 2016 appropriations for HUD does not
provide funding specifically for tenant protection vouchers for victims
of domestic violence, dating violence, sexual assault, or stalking. If
future appropriations provide funding for tenant protection vouchers
for victims of VAWA crimes, HUD will issue policies and procedures for
the provision and use of the vouchers.
Comment: The rule should define ``safe and available'' and explain
who determines whether a unit is safe and available. Commenters asked
that HUD provide a definition of ``safe'' and ``available.'' Commenter
said a definition of ``safe'' would allow housing providers to document
that they reasonably met this standard and limit their vulnerability to
litigation. A commenter said that the definition of a ``safe dwelling
unit'' should take into account the realities of tribal and rural
housing agencies that cannot predict vacancies.
Commenters emphasized that a ``safe'' dwelling unit could be
defined as a unit in a different property, stating that a unit in the
same property would not be safe, and a unit in an adjacent property may
not be safe. A commenter suggested a safe unit be defined as a unit in
a different property that is managed by the same owner and/or managing
agent or that is within the same assisted housing program. A commenter
said that in some situations, transferring to a different unit within
the property may be helpful, but may not be sufficient for every
situation. Another commenter said the unit should be inspected to
ensure that all locks are in good working order, and the tenant should
be permitted, at the tenant's expense, to add additional locks.
Commenters further said the definition should include that the location
of the safe unit will not be disclosed to the perpetrator by either the
housing provider or anyone in the victim's household.
A commenter suggested that a ``safe'' unit should refer to the
existing definition in 24 CFR 5.703, regarding physical condition
standards for HUD housing, and if the resident declines the offer to
transfer because the only available unit is next door to the tenant's
current unit, then HUD must take the leading role in helping the
resident find new housing. Another commenter stated that any unit
receiving subsidy is subject to HUD's prevailing physical inspection
standards. A commenter said a ``safe'' unit should be defined based on
objective criteria and should not impose unrealistic requirements, and
housing providers should be allowed to adopt additional transfer
guidelines to enhance safety (such as neighborhood restrictions).
Other commenters said that the consideration of what is a ``safe''
dwelling unit should be determined by the tenant who is requesting the
transfer, based on the tenant's personal knowledge and reasonable
belief about what areas of the city, or what developments, would be
safe for the tenant. Commenters said that establishing both physical
and psychological safety can be a critical factor for survivors to
recover from violence they experienced.
A commenter suggested that an ``available'' dwelling unit can be
defined as a vacant unit of appropriate unit size, located in a
different apartment complex that is covered by VAWA protections and is
managed by the same owner and/or managing agent. A commenter said the
word ``available'' refers to a subsidized unit under the same program
and under the control of the provider. Another commenter said the
definition of ``available'' should encompass any units owned or managed
by the housing provider even if the unit is under a different program.
Another commenter asked if ``available'' has a specific time period
as to when the unit will be available. Other commenters said
``available'' means that all options must be explored for finding a
safe and available unit, in and outside of the covered housing
program's control or program before denying a transfer request.
Commenters said that, overall, criteria to be considered as to what
is a safe and available dwelling unit are: Expressed safety concerns;
availability of safe housing, as determined by these concerns, within
the housing providers' control; the availability of safe housing of the
same covered housing program type; and availability of safe housing of
a different covered housing program type. Other commenters said that
the rule's provision that available and safe dwelling units are those
controlled by the provider with the same form of
[[Page 80759]]
assistance as the prior unit sufficiently avoid undue burdens on
providers while offering domestic violence victims reasonable
opportunities to transfer. A commenter said that while it is
administratively easier to remain in the covered program, HUD should
provide guidance and tools on how providers could look to possible
units across their portfolio and also across programs to help providers
understand when such moves could be feasible and allowed. A commenter
asked that the rule state that a PHA may use its discretion to
determine what ``available and safe dwelling units'' means.
Another commenter asked that, in situations where a tenant is
transferred to a different unit under a different covered housing
provider, which covered housing provider will be expected to fulfill
the VAWA responsibility of determining a unit as ``safe.''
A commenter asked that Section 504-modified apartments otherwise
reserved for households with a mobility-impaired individual, not be
considered ``available'' to those seeking a transfer under VAWA.
HUD Response: HUD declines to set a specific standard for what is
``safe,'' as the meaning of this term may vary greatly in different
situations. HUD agrees with commenters who said that what is a ``safe''
dwelling unit should be primarily determined by the tenant-victim who
is requesting the transfer, based on the tenant's personal knowledge
and reasonable belief about what is safe. HUD believes that limiting
``safe'' to physical condition standards, as suggested by some
commenters, is too limiting and is contrary to the intent of VAWA.
Program regulations and policies for physical condition standards will
still apply for emergency transfers, in the same manner that they apply
to other housing under those programs. What is a ``safe'' distance from
a perpetrator is one factor that housing providers and victims may
consider, but HUD again declines to provide a specific definition of
the term ``safe'' that would exclude certain units, such as those
within the same property, or include other units, such as those at
different properties.
Similarly, what is an ``available'' unit will vary in different
situations. Generally, an available unit is one that is not occupied
and is available to tenants given program requirements and possible
considerations that may be applicable, such as eligibility
requirements, unit restrictions, or term limitations. HUD will assist
housing providers in identifying available units under the different
HUD programs covered by VAWA.
HUD's Section 504 implementing regulations at 24 CFR part 8
describe the process by which accessible units required to be
accessible under HUD's Section 504 regulation must be occupied. In
order to maximize the utilization of such units by eligible individuals
who require the accessibility features of the particular unit, the
housing owner or manager must first offer such a unit to a current
occupant of another unit of the same project or comparable projects
under common control who needs the accessibility features of the vacant
unit, and then to an eligible qualified individual on the waiting list
needing such features. After this, the owner or manager may then offer
the unit to individuals without disabilities, including individuals who
need an emergency transfer under VAWA. In other words, if there remains
a vacant accessible unit after engaging in this priority placement, the
unit would qualify as an available unit for an emergency transfer under
VAWA.
Comment: Housing owners and managers, not participating
jurisdictions or State agencies, will have control over property and be
in the best position to determine whether an emergency transfer is
warranted. Commenters said that, in most cases, participating
jurisdictions will not have control over housing for which HOME funds
have been provided, and the rule needs to be clear about how a covered
housing provider's control of property establishes the provider's
responsibility to provide alternative housing when a transfer is
needed. A commenter stated that Sec. 92.359(e) in the proposed rule
requires the participating jurisdiction to develop a VAWA lease term/
addendum that must permit the tenant to terminate the lease without
penalty if the participating jurisdiction ``or its designee''
determines that the tenant has met the conditions for an emergency
transfer. The commenter said participating jurisdictions are not in a
position to evaluate and make timely judgments about a tenant's
eligibility for an emergency transfer and asked that participating
jurisdictions be permitted to designate the owner of HOME-assisted
rental housing as the entity that determines whether a tenant has met
the conditions for an emergency transfer.
Commenters said HUD's interpretation of ``under a covered housing
program'' is reasonable and fair if applied only to an owner of a
property, and noted that a state housing agency administering project-
based section 8 under 24 CFR part 883 does not ``control'' assisted
units, nor does a HOME participating jurisdiction. Commenter said this
notion of control should be explicitly stated in the regulatory text.
HUD Response: This final rule maintains the provisions in the
proposed rule that the participating jurisdiction is the covered
housing provider for purposes of developing and issuing an emergency
transfer plan. The final rule also iterates that the participating
jurisdiction must determine whether a tenant qualifies for an emergency
transfer under the plan, as provided under the proposed rule.
Individual project owners, however, will be involved in implementing
the emergency transfer plan, including at a minimum transferring
tenants to other units as provided in the emergency transfer plan and
the written agreements required under section 92.504. The final rule
includes changes to reflect this owner involvement. In this final rule,
HUD removes language that was in the proposed rule's HOME regulations
about the participating jurisdiction's designee. The HOME regulations
do not discuss a participating jurisdiction's designee. Section
92.504(a) of the HOME regulations explains how a participating
jurisdiction can carry out its program. HUD also removes language about
a participating jurisdiction or its designee from the proposed HTF
regulations, as the HTF regulations in 24 CFR part 93 place
responsibilities on a ``grantee.'' In this final rule, the HTF
regulations for VAWA explain the responsibilities of grantees and
owners, rather than participating jurisdictions, or their designees,
and owners.
More generally, as explained earlier, this final rule no longer
uses the term control to describe which units individuals may transfer
to, and instead uses defined terms, internal emergency transfer and
external emergency transfer, to describe transfer possibilities.
Rule Change: Section 92.359 of this final rule discusses VAWA
responsibilities in the HOME program only for owners and participating
jurisdictions. Section 93.356 of this final rule discusses VAWA
responsibilities in the HTF program only for owners and grantees.
Comment: Any required recertification should only occur after a
tenant has been transferred. Commenters said HUD should clarify that
any required recertification, for example due to the change in
household composition if the perpetrator no longer lives in the unit,
should occur only after the tenant has been transferred. A commenter
said that the covered
[[Page 80760]]
housing provider would, however, be free to change the size of the
unit, if unit size eligibility is altered.
HUD Response: This rule does not impose any new requirements
regarding recertification. Existing program regulations and policies
govern.
Comment: Residents should be allowed to transfer without losing
their subsidy. Commenters suggested that where there is no ``safe and
available'' unit subsidized under the same covered program and under
the administration of the tenant's current housing provider, but a unit
is available in a separate property or in another property where the
provider has made an agreement with the other property's housing owner,
then the transfer should be accomplished through a negotiated
``termination, or move out'' and priority ``move-in'' at another site.
A commenter said this could be accomplished using Tenant Rental
Assistance Certification System (TRACS) database codes that will not
require establishing new eligibility, but will enable a transfer of
subsidy to another property so that the tenant will not have to risk
loss of subsidy by having to meet income limits as required for a
first-time eligibility determination.
HUD Response: HUD appreciates the suggestions of these commenters.
Because HUD is unable to provide regulatory text that will address
every feasible scenario, HUD program offices will supplement the
regulatory text on how specific fact scenarios should be addressed
under the requirements of the HUD-covered program at issue.
Comment: Residents requesting emergency transfer should be offered
a reasonable time to establish eligibility for other programs. A
commenter recommended that HUD provide a victim seeking an emergency
transfer a reasonable time period, consistent with lease bifurcation
provisions, to establish eligibility for other covered housing
programs.
HUD Response: In this rule, HUD declines to set a time period for
victims seeking emergency transfers to establish eligibility for other
programs. In the case of bifurcation, the reasonable time period
applies so that tenants may be protected from immediate eviction when a
perpetrator leaves a unit. In the case of tenants requesting emergency
transfers under VAWA, the tenant is not facing eviction, and although
it may be unsafe for tenants to remain in their units, emergency
transfers are subject to whether there is a safe and available unit to
which the tenant may transfer. As discussed earlier in this preamble,
the requirement to transfer victims who qualify for and request an
emergency transfer does not end at a specific time, but remains until
the victim informs the housing provider that the victim no longer seeks
the transfer, or the victim no longer receives housing or assistance
under a covered housing program. As also stated earlier in this
preamble, tenants seeking emergency transfers may apply for housing
under a new program, but emergency transfer obligations under VAWA do
not supersede any eligibility or other occupancy requirements that may
apply under a covered housing program.
Comment: Tenants should generally remain responsible for rent while
temporarily relocated. A commenter said it has been its practice that,
for all emergency transfers, the tenant remains responsible for the
rent of its unit during the period of the tenant's temporary
relocation. The commenter said any mitigating circumstance to having
the tenant remain responsible for the rent during temporary relocation
would be addressed on a case-by-case basis to ensure that the victim
does not lose eligibility for continued housing assistance.
HUD Response: HUD appreciates the commenter's suggestion on how the
commenter handles emergency transfers. This final rule does not set
requirements for recovery of lost rent for tenants who may be
temporarily relocated. The program regulations that apply to the
covered housing govern who bears the cost of lost rent.
Comment: Explain whether a housing provider can terminate
assistance to a perpetrator when an emergency transfer happens.
Commenters asked whether management can terminate assistance to the
perpetrator. A commenter asked if termination is permitted whether the
termination would take place when the emergency transfer happens or
when the victim asserts a VAWA crime has been committed.
HUD Response: Housing providers that seek to terminate assistance
to a perpetrator or an alleged perpetrator must ensure they are
following existing program regulations and policies, including lease
policies, which allow for such termination, as well as any applicable
state and local laws. Housing providers should also ensure that tenants
are aware that commission of crimes under VAWA may result in
termination.
Comment: HUD should work with other organizations and agencies to
transfer victims. Commenters stated that HUD needs to make use of
available local and State resources for emergency transfer, and
suggested that contacts be made with local shelters that house VAWA
victims, as well as sheriffs' offices that have relationships with
shelters, for advice and direction. Commenters stated that tenants
should be informed of these resources and assistance should be provided
to tenants to use these resources, if a tenant becomes a victim of a
VAWA crime. Commenters stressed the importance of sharing the personal
information of tenants only when necessary and then only to protect the
victim.
HUD Response: HUD appreciates the suggestion of working with other
organizations experienced in helping victims of domestic violence,
dating violence, sexual assault, or stalking, to help facilitate
transfers to a safe location or to provide a safe location for victims.
In this final rule, HUD requires emergency transfer plans to describe
policies to assist a tenant to make an emergency move when a safe unit
is not immediately available for transfer, and encourages policies that
include outreach activities to organizations that assist or provide
resources to victims of domestic violence, dating violence, sexual
assault, or stalking. As to sharing personal information, this final
rule maintains the provisions in the proposed rule that emergency
transfer plans must incorporate strict confidentiality measures, and
HUD's model emergency plan contains a section on confidentiality that
specifies that the housing provider will keep confidential any
information that the victim submits about an emergency transfer unless
the victim gives the housing provider written permission to release the
information or disclosure is required by law.
Comment: HUD and housing providers should take proactive steps to
implement emergency transfer plans. Commenters said HUD should oversee
and ensure accountability for each covered housing program's emergency
transfer plan. Commenters said tenants seeking transfers may be
directed differently depending on the covered housing program and
covered housing provider, and suggested that HUD Regional offices could
lead transfer efforts within their area, similar to efforts undertaken
by HUD's Chicago Multifamily Regional Office. HUD's Chicago Regional
Multifamily Office help to facilitate transfers needed by victims of
domestic violence by helping to identify vacancies and striving to have
the transfer occur between 48 hours and 2 weeks depending upon the
victim's need and the availability of safe units.\12\ Commenter said
HUD
[[Page 80761]]
multifamily field offices, PHAs, or the contract administrator can
assist in identifying assisted housing within different properties.
Commenters also said HUD should encourage PHAs to work regionally to
identify available units.
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\12\ See page 11 of the following PowerPoint presentation http://nhlp.org/files/00%20Slides%20HUD%20Proposed%20VAWA%20Rule%20Webinar.pdf.
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Other commenters said HUD can provide guidance to covered housing
programs so that emergency transfer policies are institutionalized and
implemented at all levels of the agency and survive employee turnover.
Commenters said housing agencies should take measures to shorten
transfer wait times, and to give survivors specific timeframes on when
they can expect to be transferred. Commenters cited an example of a
transfer policy that is working is from the Philadelphia Housing
Authority. Commenters further suggested said that HUD encourage
regional planning for emergency transfers and regional cooperative
agreements or working groups between various housing providers of
different housing programs and victim advocates.
HUD Response: HUD appreciates the information on how certain HUD
offices and PHAs have addressed emergency transfer situations, and such
information will aid HUD in development of guidance and best practices.
Comment: HUD needs to better explain how emergency transfers will
work for the HCV program. A commenter said that HUD's discussion of
emergency transfers in conjunction with the HCV program's portability
feature oversimplifies the issues faced by the covered provider
administering the HCV program and needs further explanation. The
commenter said HUD conflates a tenant's use of portability (moving with
assistance between jurisdictions) and moving from one housing unit to
another in the same jurisdiction. The commenter said the rule indicates
that a provider may not terminate assistance if a family leaves
subsidized privately owned housing without notifying the PHA. The
commenter asked if this means that a PHA may not terminate assistance
based on the family moving out of the unit without notice to the PHA
that may consider such a move as a material violation of the lease and
pursue remedies such as recovering costs for reoccupying the unit from
the former tenant.
HUD Response: HUD's HCV program regulations at 24 CFR 982.353(b)
provide an exception to the prohibition against a family moving under
portability provisions in violation of the lease. This exception
provides that 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 a household member who is or
has been the a victim of domestic violence, dating violence, sexual
assault, or stalking and who reasonably believes the household member
to be threatened with imminent harm from further violence by remaining
in the dwelling unit (or if any family member has been the victim of a
sexual assault that occurred on the premises during the 90-calendar-day
period preceding the family's move or request to move), and has
otherwise complied with all other obligations under the Section 8
program, the family may receive a voucher from the initial PHA and move
to another jurisdiction under the HCV Program.
For example, a program participant is a victim of dating violence
and moves out of the assisted dwelling unit and into an emergency
shelter because the victim reasonably believes to be threatened with
imminent harm from further violence by remaining in the unit. The
victim fails to promptly notify the PHA of the absence in violation of
the PHA's policy on absence from the unit. The PHA determines that the
victim has violated PHA policy on absence from a unit. The PHA
undertakes proceedings to terminate assistance and terminates the
Housing Assistance Payment (HAP) contract with the owner. The program
participant also notifies the PHA that the program participant is a
victim of dating violence and moved out of the unit because the program
participant reasonably believes to be threatened with imminent harm
from further violence by remaining in the dwelling unit. The PHA makes
a written request to the program participant to submit documentation
about the incident or incidents of dating violence. In response to the
request, a Certification of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking is submitted to the PHA. Because the absence from
the unit was a result of domestic violence, dating violence, sexual
assault, or stalking and the victim reasonably believed to be
threatened with imminent harm from further violence by remaining in the
dwelling unit, the PHA halts proceedings to terminate assistance. The
PHA would then issue a new voucher allowing the program participant to
search for housing. If the program participant indicates the desire to
move to an area outside of the PHA's jurisdiction, the PHA follows the
provisions for portability under 24 CFR 982.355. The program
participant moves to the jurisdiction of another PHA with continued
assistance. This move, however, does not relieve the family of any
financial obligations on the original lease.
4. Documentation and Verifications
Comment: Clarify what forms are required for implementation of
VAWA. Commenters requested information about forms required for non-
project-based section 8 households to use VAWA. Another commenter asked
whether housing providers have discretion to determine documentation
requirements.
HUD Response: Except for documentation for emergency transfers, as
previously discussed, documentation provisions and requirements are set
out in Sec. 5.2007 of this rule, and reflect the statutory
documentation provisions in VAWA 2013. Housing providers must accept
any one of the forms of documentation listed in Sec. 5.2007, at the
discretion of the victim of domestic violence, dating violence, sexual
assault, or stalking. Under the statute and this rule, housing
providers may accept another form of documentation provided by the
applicant or the tenant, but the provider must still accept all of the
other forms of documentation described in the rule. In the case of
conflicting evidence, housing providers must accept one of the three
forms of third-party documentation described in Sec. 5.2007.
Comment: Certification forms should not differ for different
programs. Commenters said there should be one VAWA certification form,
and the exact same form should be used by both Public and Indian
Housing and Multifamily Housing, because using different forms, which
may expire or be changed at different times, is confusing and
unnecessary.
HUD Response: HUD agrees and has created a certification form that
will be used for all covered programs.
Comment: The 14-day time period should not strictly apply to all
third-party documentation requirements in cases of conflicting
evidence. Commenters stated that some VAWA victims may not be able to
acquire the proper documentation within 14 business days. Commenters
suggested there be a longer period of time for victims to be able to
provide third-party documentation. A commenter said this is especially
important in large cities where there is often a waiting period for
supportive services. Another commenter said law enforcement, court, or
[[Page 80762]]
administrative agency records can take a long time to obtain, as could
medical documentation from a hospital. The commenter recommended that
60 days is a more reasonable period to obtain such documentation.
Commenters said HUD should consider adding language to address what
should occur when a tenant seeks requested documentation but cannot
obtain the documentation due to a nonresponsive third party. A
commenter said that if the tenant tries, but cannot procure the
requested information, the housing provider should be instructed to
make a decision based on the available evidence.
Commenters said that when victims are fleeing or have fled abuse,
they can lack access to records and it can take time to understand
their legal rights when information is shared. The commenters
recommended that HUD allow 28 business days from the date the written
request for documentation was received to obtain third-party
documentation, and allow housing providers to use their discretion to
extend the deadline past 28 days.
Other commenters said that the 14-day time period should also apply
to third-party documents, but the covered housing provider should be
able to extend this time period, particularly if the tenant
demonstrates that the tenant has begun the process of obtaining the
third-party documentation. A commenter suggested that the victim be
required to request any extension within the initial 14-day time
period. Another commenter said the time period is appropriate with the
understanding that local agencies have the discretion to set a longer
locally appropriate time period and that policies governing these time
periods for PHAs are subject to public review and board approval as
part of agencies' planning processes.
HUD Response: HUD understands that some VAWA victims may not be
able to acquire third-party documentation within 14 business days.
Under this final rule, tenants will have 30 days--generally the period
of one rent cycle--to submit third-party documentation in cases of
conflicting evidence. Housing providers may grant extensions where
appropriate.
Rule Change: Section 5.2007(b)(2) of the proposed rule is revised
to state that, in cases of conflicting information, covered housing
providers may require an applicant or tenant to submit third-party
documentation within 30 calendar days of the date of the request for
the third-party documentation.
Comment: The 14-day time period should apply to third-party
documentation requirements. In contrast to the above commenters, other
commenters stated that 14 days is reasonable. A commenter stated that
if an individual is in an unsafe situation, submission of documentation
should be complete in 14 business days (or less) to ensure a prompt
response to a request for relocation. Another commenter said that if
this is a true emergency and the family needs to be relocated, 10
business days, excluding holidays and weekends, should be sufficient,
and if there are mitigating circumstances the housing provider can
allow for additional days.
HUD Response: The third-party documentation requirements are not
requirements for an emergency transfer, but are requirements for
documenting an occurrence of domestic violence, dating violence, sexual
assault, or stalking when there is conflicting evidence.
Comment: Clarify that housing providers can require third-party
certification when it is unclear whether domestic violence occurred, or
who is the victim. Commenters said that HUD's implementing guidance and
forms should reflect that housing providers can require third-party
certification when there is not clear evidence that domestic violence
incident occurred, or there is a question about which occupant is the
victim.
HUD Response: This rule and HUD's Notice of Occupancy Rights that
will be distributed to tenants and applicants both advise that housing
providers have the right to request third-party documentation in order
to resolve conflicts in situations where the housing providers have
received conflicting evidence. With that exception, HUD does not read
VAWA 2013 as allowing for housing providers to request third-party
documentation. Housing providers should speak to the victim to try and
clarify any information the housing provider believes is not clear. In
accordance with VAWA 2013, HUD declines to allow housing providers to
require third-party documentation of an occurrence of domestic
violence, dating violence, sexual assault, or stalking in any situation
except for those involving conflicting evidence.
Comment: HUD should provide clarification regarding situations
where housing providers receive conflicting evidence. Commenters said
that HUD should explain that the party providing third-party
documentation when two parties claim VAWA protections in the same
incident is not automatically deemed the victim, as perpetrators
sometimes obtain a restraining order, protective order, or file a
police report as forms of continued abuse, control, or retaliation. A
commenter said many survivors are unable to timely access courts or law
enforcement due to language barriers, disabilities, cultural norms, or
safety concerns. Another commenter said that, rather than terminate the
tenancy of the party who fails to provide third-party verification when
conflicting evidence is received from both parties claiming VAWA
protections, housing providers should use a grievance hearing or
administrative review process to determine which party is the victim to
be protected by VAWA.
Another commenter said HUD should clarify protocol for addressing
equally compelling and competing claims, including ones with court
actions pending. The commenter said that, frequently, households with
competing VAWA claims also have court actions pending simultaneously
and those cases may continue for years without a final resolution, and
statuses that are apparently final can later change or have to be
reconsidered.
Another commenter said situations in which cross-complainants
submit conflicting third-party documentation, such as opposing orders
of protection, create intractable situations for housing providers,
which are not in a position to adjudicate family disputes or identify
the primary aggressor. The commenter asked that HUD relieve PHAs of the
obligation to afford VAWA protections to either complainant if
documentation fails to identify a primary aggressor, or if third-party
documents are themselves in conflict as to which complainant is the
victim and which complainant is the perpetrator.
HUD Response: HUD appreciates the points raised by the commenters
and will consider them in drafting guidance to assist housing providers
who receive conflicting evidence.
Comment: Any form of third-party documentation should be acceptable
in cases where there is conflicting evidence. Commenters said that,
based upon the proposed list of acceptable alternative documentation,
victims could encounter difficulty documenting evidence of a crime
committed under VAWA in conflicting statement cases when, at the
discretion of the covered housing provider, ``statements or other
evidence'' are not accepted, and the victim is required to submit
documentation from a professional or law enforcement. Commenters said
that, in many cases, a victim of domestic violence, dating violence,
stalking, or sexual assault does not report the incidents to law
enforcement and may not utilize the assistance of a professional and,
therefore, the only
[[Page 80763]]
form of third-party documentation available may be witness statements
or other evidence which, under the proposed regulations, may not be
acceptable forms of documentation if left to the discretion of the
covered housing provider.
HUD Response: The list of acceptable third-party documentation
provided in this rule is the list provided in VAWA 2013. The statute
provides that, if a covered housing provider receives documentation
that contains conflicting information, the covered housing provider may
require an applicant or tenant to submit third-party documentation in
one of the forms described in the statute, which are the same forms HUD
describes in this rule.
Comment: Emphasize that survivors can choose which form of
documentation to submit under the law, without further specifications.
Commenters stated that the use of ``or'' in the section of VAWA 2013
that lists forms of documentation means that neither HUD nor a covered
housing provider can eliminate the acceptability of one of the three
listed documentation forms. Another commenter said that because many
victims are reluctant to report abuse for fear of retaliations or other
repercussions, self-certifications that the tenants are victims of
domestic violence based solely on their own-signed attestation on a
HUD-approved certification form should be recognized as an available
option. Another commenter stated that, in the preamble to HUD's final
rule implementing VAWA 2005, HUD asserted that victims could choose
whether to submit self-certification or third-party documentation, and
this still applies.
Commenters stated that PHAs and project owners are demanding Orders
of Protection, Harassment orders, Trespass Orders, or police reports,
contrary to HUD's directive to PHAs and project owners that third-party
documentation cannot be required. Commenter said some PHAs and project
owners require documentation that is ``current,'' such as a less than
30-day old police report. Additionally, commenters said some PHAs and
project owners are requiring multiple forms of proof. Commenter said
the regulations must be clear on this section in order to reduce these
unlawful and onerous documentation practices, as they were in 2005.
Other commenters suggested adding to proposed Sec. 5.2007 language
that provides that nothing should be construed to require a participant
to provide documentation other than the self-certification form, except
in the case of conflicting evidence.
HUD Response: HUD appreciates commenters pointing out that the rule
could more clearly state that victims of domestic violence, dating
violence, sexual assault, and stalking can choose, at their discretion,
which form of documentation to submit, including self-certifications,
except in the case of conflicting evidence. HUD has clarified this is
Sec. 5.2007, as well as in the housing rights notice, and the self-
certification form.
Rule Change: Section 5.2007(b) of the proposed rule is revised in
this final rule to state that applicants or tenants may submit, at
their discretion, any one of the listed forms of documentation.
Comment: Housing providers should not have to accept self-
certification. Commenters said housing providers should have discretion
in determining the documentation requirements. A commenter said this is
particularly the case with respect to the ability for housing providers
to accept self-certification and the ability to determine when third-
party documentation will be required, such as in instances when a
housing authority receives conflicting information. The commenter said
these documentation requirements can be maintained in the housing
authority's written policies in order to ensure consistent application
of documentation requirements. Other commenters stated that housing
providers should be able to create their own certification form that
could be used instead of the HUD-approved form.
A commenter said relying on self-certifications to qualify
applicants leaves the housing provider vulnerable to penalties that may
be imposed as a result HUD program audits, and the imposition of
penalties causes disruptions and delays in the program, which adversely
affect the program's ability to provide services to those that need
them. The commenter recommended that the rule should state that
responsible entities accept self-certification as a last resort.
Another commenter said self-certification, even if supported by a
police report, should not be mandated as sufficient proof, and that
housing providers must be permitted to require third-party verification
or other documentation signed by a professional from whom the victim
has sought assistance directly relating to domestic violence, dating
violence, sexual assault, or stalking, or the effects of abuse. Another
commenter said that the statute does not establish a hierarchy of
documentation, so the rule should not limit the circumstances under
which a housing provider can seek third-party documentation. A
commenter said that if a program is allowed to accept self-
certification then it is likely that parties will make an allegation,
withdraw the allegation days later, and then make another allegation
when the relationship is challenged again. The commenter said this will
generate a considerable investment of time to identify alternate
housing, determine eligibility, and bifurcate the lease--all to have
the allegation withdrawn or proven false.
HUD Response: HUD appreciates the commenters' concerns, but HUD
interprets VAWA to require that housing providers accept self-
certification if that is the form that a tenant or applicant provides,
except in cases involving conflicting evidence. In addition, as HUD
noted in response to an earlier comment, this is not a new policy. In
implementing VAWA 2005, HUD explained that victims could choose whether
to submit self-certification or third-party documentation.
The statute also requires that HUD, or other appropriate housing
agency covered under the law, approve the certification form. In order
to avoid inconsistent requirements, HUD declines to allow housing
providers to use their own certification forms in lieu of HUD's form.
Under VAWA 2013 and this final rule, however, housing providers may
allow victims of domestic violence, dating violence, sexual assault, or
stalking to use a certification form that the housing provider has
created, as long as it is clear that victims do not need to use that
form and can use the HUD form instead (again, except for cases where
there is conflicting evidence).
Comment: Housing providers should not have discretion to evaluate
truthfulness of allegations. A commenter stated that housing providers
may not have the necessary expertise and experience to evaluate whether
there is a credible threat of domestic violence or other crime under
VAWA that may be mitigated by a move, and training housing providers to
help them gain that experience could be costly. This commenter further
stated that victims may be reluctant to disclose their victimization to
owners or management agents for a variety of reasons, including shame,
embarrassment, or fear of retribution, and it would be more appropriate
for housing providers to refer the tenants to their caseworkers to
evaluate the truthfulness of the victim's allegations.
HUD Response: HUD understands and appreciates commenter's point
that victims may be reluctant to disclose incidents of domestic
violence, dating violence, sexual assault or stalking to
[[Page 80764]]
housing providers, but the rule maintains the documentation
requirements that are provided in VAWA 2013. Housing providers must
accept signed self-certification forms for documenting incidents of
domestic violence, dating violence, sexual assault, or stalking, so
they will not be evaluating the truthfulness of allegations. Similarly,
as described in the section on emergency transfers, housing providers
must accept a signed written statement from VAWA victims that they
qualify for emergency transfers, so housing providers will not be
evaluating whether a threat of domestic violence may be mitigated by a
move.
Comment: Housing providers should not have to request certification
in writing. A commenter said it is overly burdensome to require the
housing provider to have to put in writing a request to the victim to
provide certification following a request from the victim for
assistance under VAWA. The commenter said to make this a requirement of
housing providers may result in unintended consequences if the provider
fails to document but continues to assist the victim.
HUD Response: HUD's rule follows VAWA 2013 in stating that housing
providers may request documentation in writing and lay out procedures
for how a housing provider may respond if it does not receive a timely
response to the request.
Comment: Explain how housing providers can verify VAWA claims in
light of confidentiality concerns. Commenters questioned how,
considering confidentiality concerns, a housing provider could verify a
claim that an individual owes money to a former housing provider (for
damages to a unit, for example) for VAWA-related reasons, and not for
another reason. A commenter asked what would happen if the applicant
and previous management company have different stories as to whether
the money was owed for a VAWA-related reason or another reason.
HUD Response: As previously stated in this preamble, HUD will
provide guidance to covered housing providers as to how to determine
whether domestic violence, dating violence, sexual assault, or stalking
was the reason behind adverse factors that could jeopardize tenancy or
participation in a HUD program.
5. Content of the Certification Form and the Notice of Occupancy Rights
a. Certification Form
Comment: The certification form should be readable and define
necessary terms. Commenters said that HUD's increased use of plain
language and precise regulatory language throughout the proposed
certification form significantly improves readability and comprehension
of the rights conveyed, as compared to the previous forms. Commenters
said these improvements should be incorporated into the final version
of the certification form.
In contrast, another commenter said that the certification form is
not designed to be comprehensible to applicants and participants, and
Microsoft Office 365 Word reports a poor Flesch Readability Ease
measure. The commenter also said that the form uses the term
``responsible entity'' without ever indicating who or what that entity
is.
HUD Response: HUD has revised the certification form to make it
easier to understand. In addition, the revised certification form does
not use the term ``responsible entity.''
Comment: The certification form should be changed in certain ways.
Commenters commended HUD for abbreviating the space for descriptive
text and discouraging disclosure of unnecessary details, but suggested
the form should be changed in other ways. The commenters said the
introductory paragraph regarding ``Alternate Documentation'' should be
modified to explain that the victim or someone acting on behalf of the
victim has the option of submitting alternative documentation instead
of the certification form and, only in cases where the responsible
entity receives conflicting statements, may the responsible entity
require third-party documentation. Commenters said the form should also
indicate that a responsible entity's request for third-party
documentation must be made in writing. Additionally, commenters said
the list of available alternate documentation should mirror the
proposed regulatory language at Sec. 5.2007(b)(1). Other commenters
said that the form should direct responsible entities to accept self-
certification as a last resort, or the form should include information
on whether an individual has third-party documentation and a space to
provide information on any barriers that exist to obtaining third-party
documentation.
Another commenter said that the language used on the form to
indicate the time period to submit documentation should mirror the
proposed regulatory language. According to the commenter, the form says
the deadline to submit documentation to a responsible entity is 14 days
from the date that the entity submits a written request, rather than
the proposed regulatory deadline of 14 days from the date that the
tenant/applicant receives a written request. The commenter stated that
the proposed certification form currently requests both the date and
time of the incident(s), and said the request for the time is overly
burdensome, as the victim may not recall it, or may be seeking
certification based on a series of incidents. Similarly, other
commenters said victims may not be able to recall dates, particularly
if multiple events are involved. The commenters recommended that the
form be revised to request date(s) and time and location of incident(s)
``if known.'' Similarly, a commenter recommended the certification line
read that it is to certify that the information provided on this form
is true and correct ``to the best of my knowledge and recollection.''
In addition, commenters said the confidentiality clause at the end
of the certification form should be amended to say that employees may
not disclose, reveal, or release information, except to the extent that
disclosure is consented to by the victim in a time-limited written
release. The commenters said that the proposed form's inclusion of the
``Public Reporting Burden'' paragraph should be removed, but if this
paragraph has to be on the form, it should be moved to the end of the
form and the confidentiality paragraph should be moved higher on the
form.
Another commenter said that the signature block should include the
warning that the signatory is making such statements under penalty of
perjury.
A commenter said that the certification should specially call out
that the resident or participant is to take steps to ensure that the
perpetrator does not learn of the new unit location, and if the victim
allows the perpetrator back into the new unit then the victim may be
denied a future emergency transfer if requested again.
In the interest of lessening the administrative burden on housing
providers, a commenter suggested HUD allow the responsible entity to
make an oral, rather than written, request for documentation. The
commenter said this is especially important in emergency situations
where there may not be a contact address for the victim, and when the
alleged perpetrator may be put on notice of the victim's request for
assistance should a written request be sent to the household.
HUD Response: HUD's revised certification form clarifies that
victims may complete the certification form, or may submit third-party
documentation,
[[Page 80765]]
for reasons described elsewhere in this preamble. In addition, the
Notice of Occupancy Rights, which all tenants and applicants will
receive at the same time they receive the certification form, explains
that it is the tenant or applicant's choice, which form of
documentation to submit, except for cases where there is conflicting
evidence. HUD declines to amend the certification form to discuss that
a request for third-party documentation must be in writing, since the
provider may only ask for third party documentation in cases of
conflicting evidence, and then the certification form would not be
applicable at that point.
HUD appreciates commenters pointing out that the list of available
alternate documentation in the proposed certification form differed
from the types of alternate documentation described in VAWA 2013 and
the proposed rule. As a result, HUD has amended this language on the
certification form so that it properly reflects the statutory and
regulatory text. HUD has also revised the form to clarify that the
deadline to submit documentation to a responsible entity is 14 business
days from the date that the tenant or applicant receives a written
request. Further, HUD has revised the certification form to incorporate
commenters' suggestion that victims should specify the date(s) and
time(s) of incidents if known. In addition, the certification signature
block is revised to say that the information provided is true and
correct to the best of the knowledge and recollection of the person who
fills out the form. HUD has also accepted commenters' suggestion of
moving the confidentiality paragraph higher on the form and moving down
the paragraph in the public reporting burden, in order to emphasize the
confidentiality provisions.
HUD declines to amend the certification form to say that employees
may not reveal or release information, as HUD uses the term
``disclose'' to encompass revealing, or releasing. Because it is
standard for waivers of confidentiality provisions to be time-limited,
HUD accepts the proposal to add that victims must consent to disclosure
in a time-limited written release. HUD also makes this change in 24 CFR
5.2007(c)(2)(i). However, HUD declines to alter the signature block to
say that the signatory is making statements under penalty of perjury.
The signature block states that submission of false information could
jeopardize program eligibility and could be the basis for denial of
admission, termination of assistance, or eviction, as terminating or
denying assistance are actions within HUD's jurisdiction.
HUD also will not revise the certification form to say that the
resident or participant is to take steps to ensure that the perpetrator
does not learn of the new unit location. This purpose of this
certification form is to document incidents of domestic violence,
dating violence, sexual assault, or stalking, and is not documentation
for emergency transfers. The model emergency transfer plan explains
that the resident is urged to take all reasonable precautions to be
safe.
HUD understands commenter's rationale for the request to allow
housing providers to make oral, rather than written, requests for
documentation. However, the provision requiring a written request is in
VAWA 2013, and such requirement provides a record for tenants and
applicants and housing providers as to compliance with the
documentation provisions of this rule. HUD notes that, where possible,
housing providers should give written documentation requests to victims
in person.
b. Notice of Occupancy Rights
Comment: The notice of occupancy rights should be more readable and
accessible. Commenters said that the notice of occupancy rights in the
proposed rule is inaccessible to many and should be shortened or
simplified. A commenter said that Web sites that measure text
readability determined that the notice required the reader to have
advanced education. Commenters said the notice must use simple, direct
language. Another commenter said the use of statutory language and
terms is appropriate and necessary in some contexts, but inclusion of
the statutory provisions can decrease the reader's ability to
understand and use the information. The commenter recommended including
definitions for particularly complex terms used in the notice.
Other commenters suggested that the notice use plain-language. A
commenter explained that someone may not relate to the words ``victim''
or ``perpetrator,'' but they may relate to this language: ``if someone
has harmed another person in the home, there are options available.''
Commenters stated that a number of sentences in the notice are lengthy,
with complicated sentence structures, and they include more detail than
necessary. Commenters provided examples of sentences in the notice that
could be simplified, including changing: ``Also attached is a HUD-
approved certification form for documenting an incident of domestic
violence, dating violence, sexual assault, or stalking for a tenant who
seeks the protections of VAWA as provided in this notice of occupancy
rights and in HUD's regulations'' to ``A form is attached to this
notice. You can fill out this form to show that you are a victim of
domestic violence, dating violence, sexual assault, or stalking, and
that you wish to use your rights under VAWA.'' A commenter said simpler
wording would also facilitate translation into other languages.
HUD Response: HUD appreciates commenters' suggestions and has
revised the notice of occupancy rights to make it more easily readable.
However, as discussed below, the notice does use the terms ``abuser''
and ``perpetrator.'' HUD believes language that ``somebody may have
harmed another'' is too vague and that the terms ``abuser'' and
``perpetrator'' are easily understandable.
Comment: The notice should use different language for accuracy and
effect. Commenters said that the term ``abuser'' is used throughout the
Notice of Occupancy Rights, but that HUD's notice needs to also include
the term ``perpetrator,'' in order to reference perpetrators of sexual
assault or stalking. A commenter further said the notice should not use
language that excludes victims who are not fleeing or escaping abuse,
such as victims of sexual assault, and should thus use words such as
``looking for help,'' ``healing'' or ``recovering'' in referencing
their current circumstances.
Commenters also said the text of the notice itself, and not a
footnote, should make it clear that despite the name of the law, VAWA
protection is available regardless of sex, gender identity, sexual
orientation, disability, or age. A commenter further stated that
sections of the notice use the phrase ``may not,'' such as ``you may
not be denied admission or denied assistance,'' and that changing the
language to ``must not'' sends a stronger message about the degree to
which VAWA prohibits such discrimination.
A commenter recommended that the section of the notice on removing
the abuser from the household, the notice should say ``HP can (rather
than ``may'') choose to divide your lease. . .'' to more clearly convey
that the housing provider has the discretion to bifurcate a lease. The
commenter said that the notice does not mention that the remaining
tenant can try to establish eligibility for another housing program
covered by VAWA, and tenants may not be aware of this option. The
commenter further said the notice should be clarified to say the
housing provider
[[Page 80766]]
may, but is not required to, ask for documentation. Another commenter
stated that it did not know whether ``divide'' means to ``bifurcate''
and requested that HUD clarify. The commenter said that if ``divide''
does mean ``bifurcate,'' the notice should make clear to tenants that
an owner, and not a PHA, can divide the lease. A commenter said that,
in the section on documenting that one has been a victim, the notice
should clarify when a housing provider is exercising discretion, and
ensure that tenants and applicants understand that the housing provider
is not required to, but is merely allowed to, extend the 14-day time
period to submit documentation.
Commenters said the notice also needs to make clear that the tenant
or applicant asserting VAWA protections can choose which form of
acceptable documentation to provide, except in circumstances where
there is conflicting evidence. The commenter further said that in
discussing the types of documentation that could be provided as a
record of Federal, State, tribal, territorial, or local law enforcement
agency, providing one or two examples (e.g., restraining order,
protective order, etc.) would be helpful.
A commenter stated that, in the section of the notice of reasons a
tenant may be evicted, it should be clear that victims can be evicted
or terminated if the housing provider demonstrates that the victim's
continued tenancy poses an ``actual and imminent threat'' to other
tenants or employees, and should explain what this means. The commenter
suggested this section also note that eviction or termination should be
pursued only when there are no other actions that could be taken to
reduce or eliminate the threat.
Commenters said the notice is addressed to ``all tenants and
prospective tenants,'' and this appears to cover even eligible
households that have not applied for assistance. Commenters said HUD
should only require providers to notify existing participants and
applicants. A commenter said the notice grossly oversimplifies the
process required to remove a member from the household. The commenter
said the provider and other household members must cooperate to remove
a member who has some property rights to the housing or assistance, and
it is not the provider alone who can divide the lease or remove the
abuser from the household.
Other commenters said the form contains extraneous information. A
commenter stated that the first bullet describing documentation
includes a description of the information contained in the
certification, but if participants and applicants receive the
certification form, the notice need not describe its contents. The
commenter further stated that after listing professionals who may
provide documentation, the notice contains a parenthetical that says,
``(collectively, ``professional''),'' and this extra language adds
nothing.
A commenter said the transfer right must be described in the
proposed notice in more detail for a tenant to sufficiently be able to
act on that right and to understand that this is an emergency transfer
and not a traditional, slow transfer process, and the notice should
explain any necessary documentation requirements. A commenter said the
language should not use the term ``another unit'' because it gives the
impression that the move is only to a unit within the existing covered
housing project. The commenter said the language should state that ``if
you reasonably believe there is a threat of imminent harm from violence
if you stay in the same unit or development where you live now, or if
you are a victim of sexual assault that recently happened at your
development, you have the right to ask for an emergency transfer to a
different unit, including a unit in a different development, different
type of affordable housing, and in a different location.'' The
commenter said the notice should also emphasize that requests for
transfers and the location of the move will be kept confidential.
Another commenter said the notice should include language that
informs an applicant of the possibility of overcoming a negative
rental, tenant, or criminal history if that history relates to their
victimization. The commenter said this will allow a survivor to obtain
and provide appropriate information to the covered housing program at
the outset of the application process.
HUD Response: HUD appreciates these comments and has revised the
Notice of Occupancy Rights to more accurately reflect the scope of VAWA
protections. The revised notice states in the text, and not only in a
footnote that the VAWA protections are not only available to women, but
are available equally to all individuals. Further, the notice uses the
term ``perpetrator'' in addition to ``abuser'' in order to reference
perpetrators of sexual assault and stalking. The proposed notice did
not use the term ``fleeing'' and only referred to ``escaping'' an
abusive relationship when providing victims of domestic violence with a
resource, but the revised notice no longer discusses ``escaping'' an
abusive relationship. The revised notice now notes that after a lease
bifurcation, remaining tenants can try to establish eligibility for
another housing program covered by VAWA.
HUD has also revised the notice as suggested by commenters to
improve clarity. The notice now explicitly states that dividing a lease
means the same thing as bifurcating a lease, but the notice does not
specify which housing provider would bifurcate a lease, as this differs
across programs. Housing providers that issue the notice of rights
should clarify who is responsible for lease bifurcation. The revised
notice also clarifies that a housing provider can, but is not required
to, ask for documentation, and may but is not required to, extend the
deadline to submit documentation. The revised notice also states that
except for cases where there is conflicting evidence, it is the choice
of the victim of domestic violence, dating violence, sexual assault, or
stalking which form of documentation to submit. The notice also now
states that examples of reports from law enforcement agencies and
courts include police reports, protective orders, and restraining
orders, among others.
In response to the comment that the notice should explain when a
tenant could be evicted or assistance could be terminated, the revised
notice states that the VAWA protections may not apply if the housing
provider can demonstrate that not evicting a tenant or terminating the
tenant's assistance would present a real physical danger that would
occur within an immediate time frame, and could result in death or
serious bodily harm to other tenants or those who work on the property.
The notice explains that housing providers should only evict tenants or
terminate assistance when they cannot take other actions to reduce or
eliminate the threat. Further, the revised notice is addressed to
tenants and applicants, rather than tenants and prospective tenants.
The revised notice also explains the criteria for requesting an
emergency transfer, but it does not provide further information on
emergency transfers, which vary across housing programs and providers,
and instead notifies tenants that their housing provider has an
emergency transfer plan that contains more information, and tenants
have a right to see the plan.
There are some changes suggested by commenters that HUD did not
make to the revised notice. HUD has not replaced the phrase ``may not''
throughout the notice to ``must not.'' HUD maintains that ``may not''
sufficiently denotes that an action is prohibited. HUD also declines to
replace the word ``may'' in the sentence that
[[Page 80767]]
says a housing provider ``may'' bifurcate a lease with the word
``can,'' because HUD believes ``may'' better signifies that the housing
provider has discretion whether to bifurcate a lease. The notice does
not provide additional language regarding the mechanics of the
bifurcation process, and the role of other household members. The
notice says that the housing provider must follow Federal, State, and
local eviction procedures, and that the housing provider may ask for
documentation of the VAWA-covered incident(s). HUD declines to place
additional responsibilities for removal of a perpetrator on a victim
who has asked for that removal, as, due to household violence, the
victim may be unable to provide it. Additionally, this notice includes
the description of the certification form that will be attached, so
that tenants and applicants know that they have a right to use that
specific form. The form also retains the parenthetical that explains
the use of the word ``professional'' later in the paragraph. Further,
HUD declines to provide detail in this notice of basic protections
about different ways in which somebody could be denied assistance,
terminated from participation in, or be evicted from rental housing
because somebody has been a victim of domestic violence, dating
violence, sexual assault, or stalking.
Comment: The notice should provide more resources and information.
Commenters said the notice should also include the Rape, Abuse and
Incest National Network (RAINN) hotline for victims of sexual assault
to supplement the hotline number already provided for victims of
domestic violence. A commenter also suggested the notice include a
blank space where the housing provider can insert contact information
for local legal services and victim services providers. Another
commenter recommended that HUD revise the notice to indicate to tenants
that the notice is not an exhaustive list of tenant protections, and
they are entitled to many additional protections at the state, local,
and administrative level, and that they should consult their local PHA
for information on rights afforded in their respective jurisdiction.
A commenter suggested that the notice encourage tenants or
applicants who think they may qualify for VAWA protections to seek the
assistance of a legal services attorney or victim services provider.
HUD Response: HUD's Notice of Occupancy Rights has been revised to
include spaces for housing providers to fill in contact information for
relevant organizations, including victim service providers or legal aid
attorneys, that may be able to assist victims of domestic violence,
dating violence, sexual assault, or stalking. HUD encourages housing
providers to include contact information on the notice for local
organizations, as these organizations may be in the best position to
understand the victim's situation and available options. In addition,
or where housing providers do not know of local organizations or none
are available, housing providers should include national resources,
such as: The National Domestic Violence Hotline, which was listed on
the proposed notice and is still listed on this final notice; the Rape,
Abuse & Incest National Network's National Sexual Assault Hotline at
800-656-HOPE, or at https://ohl.rainn.org/online/ for victims of sexual
assault; and the National Center for Victims of Crime's Stalking
Resource Center at https://www.victimsofcrime.org/our-programs/stalking-resource-center, for victims of stalking.
The revised notice now explicitly states that tenants and
applicants may be entitled to additional housing protections for
victims of domestic violence, dating violence, sexual assault, or
stalking under other Federal laws, as well as under State and local
laws.
Comment: The notice should be more specific on rights and
responsibilities. Commenters said that rather than state that tenants
may stay ``in the unit for a period of time'' until they can find
alternate housing or establish eligibility under the HUD program, the
notice of occupancy rights should be specific as to what this time is
to ensure the victimized tenant is not left without secure housing. A
commenter also stated that the notice should be clear about when a
housing provider can request proof that an individual is requesting to
move because of a VAWA-related incident. The commenter said that the
notice states a housing provider ``may'' ask for proof. Another
commenter said that HUD's discussion of confidentiality in the notice
is overly simplified. The commenter said the notice states that
information may be released if, ``A law requires HP or your landlord to
release the information.'' The commenter said this phrase includes a
broad array of possible disclosures not necessarily obvious to an
ordinary reader, for instance, in connection with reviews by HUD staff,
audits by HUD's Inspector General, and to an independent public
auditor, among other possibilities. Commenter said it may be
unreasonable for HUD to develop a comprehensive list of how information
may be disclosed in this notice, but the notice currently understates
the potential for such disclosures.
HUD Response: HUD's Notice of Occupancy Rights describes basic VAWA
protections that apply across all programs, which is why the notice
states that tenants may stay in units for a period of time if a housing
provider chooses to bifurcate a lease. The revised notice explains that
housing providers may ask for documentation that an individual
qualifies for an emergency transfer. The notice provides the criteria
for qualifying for an emergency transfer, and it directs tenants to the
housing provider's emergency transfer plan for further information. HUD
believes that providing notice that confidential information may be
released if a law requires it is sufficiently broad to alert tenants
and applicants of that possibility.
Comment: HUD should create different notices for different housing
programs to account for necessary variations. Commenters said HUD, and
not a housing provider, is in the best position to create a series of
different notices that outline how VAWA rights will apply in different
housing programs. Other commenters said that permitting housing
providers to customize the notice is very concerning because there is
no mechanism for quality control and no way to ensure that the notices
being distributed accurately reflect the VAWA protections, resulting in
confusion and inconsistency. A commenter said that HUD should create
different notices to prevent additional burdens on covered housing
providers that would otherwise be expected to determine how VAWA 2013
protections play out in their programs. Commenters said that, to the
extent that HUD wishes for there to be a local point of contact for
tenants and applicants, HUD should include blanks that would allow the
housing provider to add contact information, but housing providers
should not be ``filling in the blanks'' regarding programmatic
operations. Another commenter specifically recommended that HUD create
two separate notices, one targeting tenant-based recipients and another
that targets households with a subsidy that is tied to the unit.
Commenter said the current notice refers to ``rental assistance,''
which may be confusing to tenants subsidized by covered housing
programs other than HCVs.
HUD Response: HUD's Notice of Occupancy Rights contains basic
information that apply across all
[[Page 80768]]
programs, and the only information housing providers provide is the
name of the housing provider, the relevant HUD program, and contact
information for local organizations that may be able to assist victims
of domestic violence, dating violence, sexual assault, and stalking.
Therefore, HUD will not create notices for different housing programs.
HUD has revised the notice to clarify that it applies to assistance
under HUD-covered housing programs.
Comment: The notice of occupancy rights is so important that it
should be reissued for public comment with any changes after the
issuance of the final rule. Commenters stated that creation of the
Notice of Occupancy Rights is a crucial step in the VAWA 2013
implementation process, particularly since the U.S. Department of
Treasury and the U.S. Department of Agriculture will also utilize this
notice in their housing programs. Commenters said that since the
regulation has not yet been finalized, and changes will likely arise
out of the notice and comment period, HUD should reissue the Notice for
public comment after the issuance of the Final Rule.
HUD Response: The changes that HUD has made to the Notice of
Occupancy Rights respond to concerns by commenters that the language in
the rule should be simplified and better explain protections provided
under VAWA 2013 and HUD's implementing regulations. HUD appreciates the
comments and suggestions on changes to improve the Notice of Occupancy
Rights, and has incorporated many of the changes. As a result, and
because HUD maintains that there should be no further delay in
providing tenants and applicants with the Notice of Occupancy Rights,
HUD declines to seek further comment on the notice.
6. Provision of the Notice of Occupancy Rights and Certification Form
Comment: Include notice of VAWA protections in leases and other
existing materials. A commenter stated that the legal rights of tenants
can be ensured by attaching a copy of the statute to the tenant lease.
Another commenter asked that any additions to leases about VAWA rights
be written in simple, direct language and avoid legal jargon. Other
commenters recommended that HUD incorporate the notification language
into existing materials, such as the Tenants' Rights and
Responsibilities brochure.
Other commenters said that while VAWA 2013 requires HUD to develop
a notice of rights, the form of the notice is not prescribed in the
statute. Commenters suggested that a separate notice is not required,
and the commenters referenced a 2012 Senate Committee report saying
that the Committee intended that notification be incorporated into
existing standard notification documents that are provided to tenants.
Commenters said that such incorporation would reduce administrative
burden. A commenter said owners could be required to include language
about VAWA protections in any notice of rejection or termination. The
commenter said that since such notices must provide residents and
applicants an opportunity to appeal eviction or termination, these
notices would be an appropriate place to explain that being a victim of
an act covered under VAWA would be grounds for reconsideration.
According to the commenter, incorporation of VAWA protections into
existing notification documents would dispense with the need for a
separate document on VAWA protections.
Another commenter stated that the notification process conflicts
with the Paperwork Reduction Act by requiring more paper, and adding an
individual document, rather than incorporating the notice into other
documents, increases the chances that a tenant will not see the
notification because a housing provider may forget to provide it, or
because the tenant will not read it. Commenter further stated that
housing providers should not be required to provide the entire VAWA
policy in tenant selection plans or in House Rules.
HUD Response: Regardless of the legislative history of VAWA 2013,
the statute itself as enacted requires HUD to develop a notice of
rights under VAWA and requires covered housing providers to submit that
notice to a tenant or applicant at three specific times: (1) When an
individual is denied residency under an assisted program; (2) when an
individual is admitted to a dwelling unit assisted under the covered
housing program; and (3) with any notification of eviction or
termination of assistance. HUD believes that it is important to provide
a separate notice of occupancy rights under VAWA to ensure applicants
and residents are aware of these rights. Therefore, HUD requires that
housing providers give a separate notice of housing rights to tenants
at the times specified in this rule.
HUD maintains the provisions in the proposed rule that require
descriptions of VAWA protections in leases, lease addendum or
contracts, as specified in the regulations for the HOME, HOPWA, ESG,
and CoC programs. For public housing and section 8 programs covered by
VAWA 2005, this rule does not eliminate any existing notification
requirements. Prior to this rule becoming effective, 24 CFR
5.2005(a)(4) provided that a 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. This final rule
clarifies that this remains a requirement, and adds that a description
of protections afforded to victims of sexual assault is also required.
Rule Change: This final rule maintains existing 24 CFR 5.2005(a)(4)
for programs covered by VAWA prior to the 2013 reauthorization, and
adds sexual assault to the list of the types of victims covered by
VAWA.
Comment: HUD should not mandate including attachments with the
notice of housing rights or certification form. Commenters said HUD
should not require that the VAWA regulations be included with the
notice of housing rights. Commenters said it is unlikely that many
tenants or prospective tenants have the time or background knowledge to
understand the full scope of their rights by reading the VAWA
regulations and doing so may confuse or overwhelm them or cause them to
ignore the entire document. Commenters suggested that, instead of
providing a copy of the regulations, the notice should make the
regulations available to tenants and applicants. Some commenters
suggested providing a link to the regulations, perhaps in a footnote
that would include the Federal Register citation for the final rule.
Some commenters said that requiring providers to send copies of
regulations is an overly burdensome requirement that would impose
considerable cost on providers for printing and mailing without adding
anything to most recipients' understanding of their protections under
VAWA. A commenter stated that tenants and applicants could potentially
receive copies of the rule multiple times (as an applicant, if denied
assistance, or if notified of termination or eviction), and there is no
need to receive multiple copies of the regulations. Another commenter
said including attachments of the regulations and a listing of local
organizations offering assistance to victims of domestic violence is
unnecessary and can lead to greater confusion for victims during a
stressful time.
HUD Response: HUD agrees that housing providers should not have to
include a copy of the VAWA regulations every time they give a tenant or
applicant the notice of housing rights and certification form, but the
[[Page 80769]]
regulations should be made available to tenants and applicants who
request to see the regulations. Therefore, HUD revised the Notice of
Occupancy Rights to provide a link to HUD's VAWA regulations. Because
not every tenant or applicant will be able to access these regulations
on-line, the revised Notice of Occupancy Rights states that housing
providers must make a copy of the regulations available to tenants and
applicants who ask to see them. HUD also revised its model emergency
transfer plan to remove the reference to an attachment of the
regulations. The final model emergency transfer plan, however,
maintains the reference to the attachment that lists local
organizations offering assistance to victims of domestic violence,
dating violence, sexual assault, and stalking, and HUD encourages
housing providers to make this list available to tenant and applicants
who ask for the list.
Comment: The timing for submission of notification of occupancy
rights should be changed. Commenters asked if, rather that distributing
the notice of occupancy rights on three occasions, the notice could be
provided to all applicants at the time they submit their original
application. Other commenters said the notification process in the
proposed regulations is burdensome and unnecessary because the vast
majority of terminations and evictions are for reasons unrelated to
VAWA. A commenter suggested that the notice be provided at the
following times: When an application is rejected; at the time of entry
into a covered program; and upon tenant request. Another commenter said
that adding this notice and its attachments to each eviction notice
adds an unwarranted due process procedure to an already overly burdened
due process. The commenter sated that failure to serve such notice
should not be grounds to appeal termination or eviction. Another
commenter said providing the notice when an individual is provided
assistance or admission is overkill because they will not be exercising
VAWA rights at that time.
Other commenters said that submitting these notices to all denied
applicants could be administratively prohibitive. A commenter stated
that for its HOME projects, it currently administers an online housing
lottery that frequently results in tens of thousands of applications,
many of which are pre-determined to be ineligible based on measures
like income. Commenter said that such applicants do not receive
rejection letters and it would be unreasonable, impracticable,
administratively burdensome, and confusing to applicants, for commenter
to send these families a VAWA notice. The commenter stated that it
would more reasonable to provide the VAWA notice to those applicants
who have been selected by the lottery and were subsequently interviewed
but found to be ineligible. The commenter asked that the final rule
provide such clarification for the benefit of agencies that are
responsible for marketing units of covered programs.
HUD Response: The VAWA statute itself requires the notice of
occupancy rights and specifies when this notice must be submitted to
tenants and applicants, and HUD has no authority to changes these
statutory requirements. However, for purposes of the HOME program, the
final rule clarifies that notice is not required upon any denial of
HOME rental housing but rather any denial based on the owner's tenant
selection policies and criteria.
Comment: Notification and certification forms should be given to
existing tenants. Commenters stated that to reduce costs and time
burdens to housing providers, VAWA forms should not have to be
distributed to existing tenants outside of routine contacts in the year
following the effective date of HUD's final rule, and some suggested
that the information could be given to tenants during the annual
recertification process. Commenters said that generally every existing
tenant undergoes recertification during any 12-month period, and while
this means some tenants would not be notified for nearly one year after
the effective date of the final rule, the VAWA protections are only
relevant for existing tenants in response to a notice of termination or
eviction, which would trigger the legal requirement to provide the VAWA
notice and form anyway. Commenters said that HUD could post VAWA rights
on its Web site for interested parties to access at any time.
A commenter said that covered housing providers may not know which
tenants are due a notice, or the provider may not know which program
applies, so the notice should not be given to existing tenants until
either recertification or lease renewal. Another commenter said that to
lessen the rule's administrative and financial burden, housing
providers should be permitted to provide the notice at lease renewal.
Other commenters recommended that HUD give housing providers
flexibility regarding how to distribute the notices to existing
tenants, in accordance with existing procedures. Other commenters
emphasized that notice be given to all current tenants, regardless of
whether their programs were previously covered by VAWA, because under
VAWA 2005 there was no uniform notice received by all tenants and VAWA
2013 includes new housing protections. Another commenter suggested that
a general mailing to all of the tenants may be the only way to reach
everyone in a timely manner.
HUD Response: HUD agrees with some of the recommendations made by
the commenters and under the final rule, housing providers must give
all tenants the notice of occupancy rights and the certification form
at annual recertification or lease renewal, or if there is no annual
recertification or lease renewal, then at some other time, during the
12-month period following the effective date of this rule.
Rule Change: This final rule includes new Sec. 5.2005(a)(2)(iv)
that states that during the 12-month period following the effective
date of this rule, housing providers must give tenants the notice of
occupancy rights and the certification form either during the annual
recertification or lease renewal process, or, if there will be no
recertification or lease renewal for a tenant during the first year
after the rule takes effect, through other means.
Comment: Notification should be provided annually at
recertification, and at additional times. Commenters said the final
rule should instruct housing providers to distribute the notice at
additional times, including upon family break-up and as part of a
tenant's recertification or reexamination process. Commenters said that
HUD should provide in the final rule that covered housing providers
have discretion to provide the notice to tenants in other contexts,
such as when a tenant raises safety concerns with the housing provider,
but does not explicitly reference a VAWA crime. The commenters stated
that submission in this context would provide housing providers and
tenants with additional time to explore housing options--such as
locating a victim services provider or legal services attorney, lease
bifurcation, or emergency transfers, before an eviction or termination
notice for a violation has been issued.
Commenters also recommended that, at minimum, tenants should
receive notice on an annual basis as a matter of course going forward
to ensure distribution is not simply limited to times where the
existing tenants are facing eviction or termination. A commenter
suggested that HUD require housing providers to host routine
information sessions, about tenants' and covered program participants'
rights pursuant to VAWA and should require housing providers to review
VAWA
[[Page 80770]]
rights at all annual program recertifications.
Another commenter stated that short notices indicating that more
information is available in housing providers' offices would aid
disseminating information about VAWA protections, as would posting
these notices in common area locations. Commenter also stated that it
should be clear that staff of the housing provider is available to
review this material with tenants and to answer questions. The
commenter further suggested using all available media to alert tenants
of VAWA protections, and to do so in easy to understand language.
HUD Response: As discussed above, under this final rule, housing
providers must give tenants the notice of occupancy rights and the
certification form during either the recertification or lease renewal
processes for the 12-month period following the effective date of this
rule, or if there will be no recertification or lease renewal process
during that 12-month period, through other means, in addition to
providing the notice and form at the times specified in VAWA 2013,
which times are included in HUD's VAWA regulations. HUD believes these
required distribution times are sufficient to inform all tenants in a
HUD-covered housing program of their rights under VAWA, and therefore
the final rule does not require housing providers to give tenants the
notice of occupancy rights and the certification form on other
occasions. Housing providers are free and encouraged to provide the
notice and form to tenants at any additional times determined to be
helpful in informing tenants of their rights under VAWA. HUD also
encourages housing providers to post the notice of occupancy rights
under VAWA in public areas such as waiting rooms, community bulletin
boards, and lobbies, where all tenants may view them. HUD further
encourages, but does not require, housing providers with Web sites to
post the certification form and notice of occupancy rights under VAWA
online. HUD also encourages housing providers to work with tenants, and
applicants, who need help understanding their rights under VAWA, either
directly, or by providing information about local organizations that
could help. In addition, housing providers should be able to answer any
questions about emergency transfer plans that they have developed.
Comment: Notification and certification forms do not need to be
submitted at recertification or to existing tenants. A commenter stated
that Section 8 property managers are already required to include VAWA
policies in tenant selection plans and house rules, and such a
requirement could be added for other covered programs. The commenter
stated that existing tenants are already aware of VAWA protections, so
there should be no requirement to provide new information other than
modifying house rules to incorporate new VAWA protections. Another
commenter said HUD should refrain from imposing additional financial
obligations onto HUD-covered housing programs beyond what is stipulated
in the VAWA statute.
HUD Response: This final rule does not require housing providers to
give tenants the notice of occupancy rights and certification form on
an annual basis, but only to give tenants the notice and form during
the 12-month period following the effective date of this rule, either
during recertifications or lease renewals, or if there will be no
recertification or lease renewal process during that 12-month period,
through other means. This requirement will help to ensure all tenants
receive notice of their rights under VAWA 2013.
Comment: HUD should translate the notice of occupancy rights and
the certification form. Commenters asked who would have responsibility
for translating VAWA-related documents. Many commenters requested that
HUD, rather than the housing providers, translate the notice of
occupancy rights and the certification form. A commenter said that
forms should be translated based on project occupancy. Other commenters
said that with 208,000 covered providers, it would be a huge
administrative burden and cost, and potentially create confusion and
inconsistency if each provider were to create its own translation of
these forms. A commenter said providing translated versions of the
documents will help housing providers save limited resources, and
perhaps apply these resources toward other language access needs.
Commenters requested translation into languages including Arabic,
Bengali, Bhutanese, Chinese, Egyptian Arabic, French, French Creole,
Italian, Korean, Polish, Nepalese, Russian, Spanish and Vietnamese.
Commenters said it would be very helpful if HUD translated the
documents and posted them on HUD's Web site. Commenters said that HUD's
translation of the notice and forms would be an important step towards
ensuring that victims with limited English proficiency (LEP victims)
would be aware of their rights under VAWA 2013. Commenters said they
believe that HUD is in a much better position than individual housing
providers to provide translations expediently, particularly for
languages with smaller constituencies. Commenters said that, in some
areas, housing providers would not otherwise be directed by the LEP
Guidance to provide translated copies of the notice, but would instead
be directed by the LEP Guidance to orally interpret the notice's
contents. Commenters said that HUD has previously provided translations
of forms, including the self-certification forms issued under VAWA 2005
(in 13 languages), and translated versions of the VAWA 2005 lease
addendum, as well as non-VAWA-related documents.
The commenters said that centralizing translation responsibility at
HUD imposes consistency and uniformity in translation, and allows for
quality control, and would create a central place whereby advocates can
express concerns about any inaccuracies with the translations.
Commenters also said that it is important for HUD consider not only
direct translation of notification/forms, but also transcreation \13\
to ensure that the intended meaning resonates across cultures and
languages. Another commenter said the version of the notice, as
provided in the proposed rule, as written and in English, poses
readability issues for those who do not read at more advanced levels.
The commenter said that in translating the notice and certification
form, HUD should ensure that they can be easily understood by those who
read at different levels. Commenters encouraged HUD to not merely
translate each word, but instead ensure the information is conveyed in
a meaningful way for the average reader in other languages, which would
include ensuring documents are written in plain language and are
culturally competent.
---------------------------------------------------------------------------
\13\ Transcreation refers to the process of adapting a message
from one language to another while maintaining its intent, style,
tone and context.
---------------------------------------------------------------------------
Another commenter said that it believes VAWA 2013's mandate that
HUD develop a notice of housing rights includes developing translated
versions of the notice. Commenter said covered housing providers should
not be charged with developing any version of the notice or the VAWA
self-certification form, including these forms' non-English-language
counterparts.
HUD Response: As HUD provided following enactment of VAWA 2005, HUD
will translate the notice of housing rights and certification form and
post them on HUD's Web site. HUD appreciates commenters' request on
ensuring the notice of occupancy rights certification forms are
understandable
[[Page 80771]]
across languages and cultures. Housing providers who have LEP
applicants and tenants who do not read a language that HUD has
translated the form and notice into may have to provide those
applicants and tenants with a notice and form translated into languages
they do understand, in accordance with HUD's LEP guidance.
Comment: The rule should provide ways to ensure all individuals,
regardless of language or reading ability, understand the protections
of VAWA. A commenter stated that, because not all LEP applicants and
tenants can read their native language, and certain LEP individuals
communicate in languages that are unwritten, HUD should emphasize in
the final rule the importance of providing culturally competent,
sensitive interpretation of the notice when any LEP individual requires
oral interpretation. Commenter asked that housing providers make
available interpreters who are qualified to do sight translation and
that, for languages that do not meet the HUD threshold requirement for
translating vital documents, tenants be given a document stating:
``This is an important document that could affect your housing rights.
If you read this language, please call for further assistance.'' A
commenter said this would allow those populations with smaller numbers
to understand they need to call to receive oral interpretation of
important information. Similarly, the commenter said, appropriate
notification should be placed on documents indicating that sign
language interpretation is available. Other commenters asked HUD to
provide additional guidance for housing providers on how to provide
VAWA information in a culturally competent way that would not
jeopardize victims' safety or confidentiality.
HUD Response: HUD appreciates commenters' concerns about ensuring
that tenants understand VAWA protections. Housing providers must comply
with all applicable fair housing and civil rights laws and requirements
in the implementation of VAWA requirements. This includes, but is not
limited to, the Fair Housing Act, Title VI of the Civil Rights Act,
Section 504 of the Rehabilitation Act, and the Americans with
Disabilities Act. See 24 CFR 5.105(a). For example, housing providers
must provide reasonable accommodations for individuals with
disabilities, such as a reasonable accommodation to any requirement
that the emergency transfer request be in writing, and must help
certain survivors put their request in writing, if requested or where
the need for such assistance is obvious. Individuals with disabilities
may request a reasonable accommodation at any time to any program
rules, policies, or practices that may be necessary.
Housing providers must also ensure that communications and
materials are provided in a manner that is effective for persons with
hearing, visual, and other communication-related disabilities
consistent with Section 504 of the Rehabilitation Act, the Americans
with Disabilities Act, and their implementing regulations. Housing
providers must provide appropriate auxiliary aids and services
necessary to ensure effective communication, which includes ensuring
that information is provided in appropriate accessible formats as
needed, e.g., Braille, audio, large type, assistive listening devices,
and sign language interpreters.
With respect to LEP obligations, providers must take reasonable
steps to ensure meaningful access to their programs and activities to
LEP individuals. Please see the Department's Final Guidance to Federal
Financial Assistance Recipients: Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons (LEP
Guidance), http://www.lep.gov/guidance/HUD_guidance_Jan07.pdf. This
final rule does not require housing providers to do more than is
required by HUD's LEP guidance. However, HUD encourages housing
providers to strive to ensure that all applicants and tenants have
notice of their rights under VAWA.
Rule Change: In this final rule, HUD has inserted a new subsection
under Subpart L at 24 CFR 5.2011 that references fair housing and civil
rights statutes and requirements.
Comment: Clarify housing providers' responsibilities related to
providing notice of occupancy rights and the certification form.
Commenters asked whether housing authorities must provide the actual
certification form in the Notice of Occupancy Rights or whether
including language in the letter is sufficient. Commenters also asked
whether housing providers need to document in tenant files that that
they provided the required VAWA notices to tenants at the required
times, or whether adopting and implementing the policy of providing the
notices at admission is sufficient. Another commenter suggested the
notice of occupancy rights include an ``acknowledgement of receipt''
section to be signed by household members age 16 and above when the
notice is provided at admission, recertification, or upon the threat of
eviction or termination, but obtaining a signature after being denied
housing seems impractical.
A commenter said that all adult family members should be given
notice of any proposed action by the housing provider due to a VAWA-
related incident, and said a minimum of 30 days' notice should be
provided. The commenter said that if the victim has fled the unit and
given the housing provider a new address, then the provider should send
notice to the new address.
Another commenter asked if there a timeframe by which HUD will be
required to develop this notice, and whether covered housing providers
will be required to use, distribute, and abide by this notice, or
whether it will be optional.
A commenter said that HUD's proposed rule would have required
covered housing providers to give the notice of occupancy rights and
certification form to applicants and tenants along with ``any
notification of eviction or notification of termination of
assistance,'' but many different notifications are generated in the
course of holdover, licensee, and termination of tenancy proceedings.
The commenter asked HUD to specify which documents constitute a
``notification of eviction'' or ``notification of termination of
assistance,'' and clarify that housing providers are only required to
give a tenant the notice once during the course of any tenancy
termination or eviction proceeding.
HUD Response: VAWA 2013 and HUD's VAWA regulations require covered
housing providers to give tenants and applicants both the certification
form and the notice of rights. The certification form and the notice of
rights that housing providers will use are being published with this
final rule. It is a statutory requirement to provide both the form and
the notice of rights at the times specified in VAWA 2013 and in HUD's
VAWA regulations. Housing providers that do not comply with the
statutory and regulatory requirements are in violation of program
requirements. Among the other times specified in this rule, housing
providers are required to give the notice of rights and the
certification form to tenants with any initial notification of eviction
or termination of assistance. However, housing providers do not need to
provide the notice and rights and certification form with subsequent
notices sent for the same infraction.
HUD's final rule does not require housing providers to document in
tenant files that they provided the required notice at the required
times, nor does HUD's final rule require an ``acknowledgement of
receipt.'' Further, this final rule does not provide
[[Page 80772]]
additional notification requirements for housing providers that take
actions due to a VAWA-related incident, as housing providers may not
know that an incident is VAWA-related. As described elsewhere in this
preamble, under VAWA 2013 and HUD's final rule, housing providers are
prohibited from denying or terminating assistance to or evicting a
victim protected under VAWA, solely on the basis that the tenant is a
victim under VAWA. Housing providers, however, may ask tenants or
applicants to provide a form of documentation specified in the statute
and in this rule to show they are subject to VAWA protections.
Comment: The notice of occupancy rights should be distributed to
all persons, and not just heads of households. Commenters urged HUD to
distribute the notice of occupancy rights to all persons and to find
various means and times at which to distribute a copy of the notice to
every existing individual adult tenant, not just the head of household,
to ensure the notice is not only seen by an abuser or perpetrator.
Commenters suggested distributing the notice during such meetings as an
in-person recertification or reexamination increases the likelihood
that all adult members of the household are present and will receive
copies of the notice. The commenters said that HUD's final rule should
require covered housing providers to prominently post the notice in
visible, regularly-used common areas where other information is made
available (e.g., community bulletin boards, housing authority waiting
areas, laundry rooms etc.), and HUD should encourage housing providers
to take advantage of other community events as opportunities to
distribute the notice of occupancy rights. Another commenter suggested
HUD consider allowing applicants to designate an alternate ``safe
address'' to receive the VAWA notice.
HUD Response: HUD appreciates these suggestions and agrees with
commenters that housing providers should do their best to ensure that
all adult members of a household and not just the head of household
receive the notice of rights and certification form. Section 5.2005 of
this rule requires that the notice and certification form be provided
to each applicant and to each tenant. In addition, as discussed earlier
in this preamble, housing providers will be required to give the notice
and form to existing tenants during the recertification and lease
renewal processes for the 12-month period following the effective date
of this rule. In the limited circumstances where there may be no
recertification or lease renewal process for a tenant during the 12-
month period following the effective date of this rule, housing
providers will be required to give the notice and form to tenants
through some other means within the 12-month period after this rule
becomes effective.
7. Lease Bifurcation
a. Reasonable Time Periods To Establish Eligibility and Find New
Housing
Comment: 90 days to establish eligibility for a program or find new
housing after a lease is generally reasonable. Some commenters
expressed agreement with the time periods to establish eligibility for
assistance provided in the proposed rule, saying they are sufficient to
establish eligibility for a covered program or find alternative
housing. Other commenters stated that the time periods are reasonable
but extensions should be permitted. Commenters stated that this time
period should be at least 90 days, with one commenter saying it should
be up to one year. Commenters stated that in areas where there are
housing shortages it may take longer to find other housing, that it can
be complicated to navigate the housing system, and victims may stay
with their abusers for fear of losing their housing. Other commenters
suggested a minimum of 90 days should be allowed with an extension of
90 days in 30-day increments, each at the discretion of the housing
provider on a case-by-case basis, based on a victim's documented
progress being made toward establishing eligibility to remain in the
property, determining if an emergency transfer can be arranged, or
finding alternative housing.
HUD Response: This final rule maintains the combined 90-day time
period for establishing eligibility for a program and finding new
housing, and the combined 60-day extension period. Unlike the proposed
rule, this final rule does not divide the time to (1) establish
eligibility for a HUD program, and (2) find new housing into 60 and 30-
day time periods, nor does the final rule divide the allowable
extension for establishing eligibility and finding new housing into two
30-day time periods. HUD removes the divisions so that victims have the
flexibility to use the overall time period allowed to establish
eligibility and find new housing in a way that most benefits the
victim.
However, as explained further below, HUD clarifies in this final
rule that the 90-day time period will not apply in situations where
there are statutory prohibitions to its application. The 90-day period
also will not apply where the lease will expire prior to termination of
the 90-day period, and, as a result of the lease expiration, assistance
is terminated. However, the expiration of the lease will not
necessarily terminate assistance in the HOPWA program.
HUD stresses that the reasonable time period to establish
eligibility following a lease bifurcation is triggered only in
situations where the tenant removed from the unit is the one family
member whose characteristics qualified the rest of the family to live
in the unit or receive assistance. In many covered housing programs,
including HOME, HTF, ESG, RHSP, and Section 221(d)(3), the reasonable
time period provisions of this rule related to lease bifurcation will
never be triggered because the family's eligibility is based on the
characteristics of the family as a whole, not the characteristics of
any one family member. Therefore, the eligibility of remaining tenants
in these covered housing programs will have already been established at
the time of bifurcation. For the Section 236, public housing, and
Section 8 programs, which allow pro-ration of rent or assistance for
certain families where eligibility has not been established for all
members, the remaining tenants following a VAWA lease bifurcation might
still need to establish their eligibility for the covered housing
program if they have not provided documentation of satisfactory
immigration status.\14\
---------------------------------------------------------------------------
\14\ In some rare cases, a student status may make be an
additional reason why someone would be ineligible for continued
Section 8 assistance. See ``Final Rule Eligibility of Students for
Assisted Housing Under Section 8 of the U.S. Housing Act of 1937''
at 70 FR 77742 implementing Section 327 of HUD's Fiscal Year 2006
appropriations, Title III of Public Law 109-115, and HUD's guidance
``Eligibility of Students for Assisted Housing Under Section 8 of
the U.S. Housing Act of 1937; Supplementary Guidance'' at 71 FR
18146.
---------------------------------------------------------------------------
For each covered housing program, HUD has reviewed the governing
statutes and explains in the below chart why remaining tenants might
not have established eligibility for a program, and in those
circumstances, specifically what may impact the prescribed 90- day time
period for those remaining family members to either establish
eligibility for a covered housing program or to find new housing
following a VAWA lease bifurcation.
[[Page 80773]]
----------------------------------------------------------------------------------------------------------------
Possible eligibility Reasonable time period
limitations Regulatory provision to remain in unit
----------------------------------------------------------------------------------------------------------------
Sections 202/811 PRAC and SPRAC...... Age (for Section 202) 24 CFR 5.2009.......... 90 days or when the
and Disability (for lease expires,
Section 811). whichever is first.
Section 202/8........................ Age; Immigration Status 24 CFR 5.2009.......... 90 days or when the
lease expires,
whichever is first; 30
days if immigration
status is an
eligibility
limitation.
HOPWA................................ HIV/AIDS............... 24 CFR 574.460......... 90 days to 1 year.
HOME................................. ....................... 24 CFR 92.359.......... All residents already
meet eligibility.
HTF.................................. ....................... 24 CFR 93.356.......... All residents already
meet eligibility.
ESG.................................. ....................... 24 CFR 576.409......... All residents already
meet eligibility.
CoC.................................. Qualifying Disability 24 CFR 578.75.......... Until expiration of the
(for Permanent lease.
Supportive Housing);
Chronically Homeless
Status.
RHSP................................. ....................... 24 CFR 5.2009.......... All residents already
meet eligibility.
Section 221(d)(3)/(d)(5)............. ....................... 24 CFR 5.2009.......... All residents already
meet eligibility.
Section 236 (including RAP).......... Immigration Status..... 24 CFR 5.2009.......... 30 days to meet
eligibility.
Public Housing....................... Immigration Status..... 24 CFR 5.2009.......... 30 days to meet
eligibility.
Section 8 HCV Voucher................ Immigration Status..... 24 CFR 5.2009.......... 30 days to meet
eligibility.
Section 8 PBV Voucher................ Immigration Status..... 24 CFR 5.2009.......... 30 days to meet
eligibility.
Section 8 PBRA and Mod Rehab/SRO..... Immigration Status..... 24 CFR 5.2009.......... 30 days to meet
eligibility.
----------------------------------------------------------------------------------------------------------------
As shown in the above chart, under the Section 202 and Section 811
programs, there are requirements that the tenant be 62 or older
(section 202) or disabled (section 811). Section 202 of the Housing Act
of 1959 (12 U.S.C. 1701q) (section 202) and section 811 of the National
Affordable Housing Act (42 U.S.C. 8013) (section 811) require units to
be leased to eligible low-income disabled persons or families. Under
the Section 202 and Section 811 statutes, HUD cannot continue to
subsidize a unit for remaining family members after a lease has been
bifurcated if at least one of the remaining family members has not
established eligibility for the program. Therefore, although this
regulation provides that if a landlord chooses to bifurcate a lease
under VAWA for a unit with a Project Rental Assistance Contract (PRAC)
under the Section 202 or Section 811 programs, and the remaining family
members have not established eligibility for the program, the landlord
must provide a reasonable time period of 90 days for the remaining
family members to remain in the unit, HUD will no longer be able to
provide a subsidy to that unit during the time when it has not been
established that an eligible individual is residing in the unit.
The above chart also provides a shorter reasonable time period in
cases where the remaining tenant in a unit covered under the 202/8
program, Section 236 program, public housing, or a Section 8 assisted
unit is not eligible because of immigration status. This is because
Section 214 of the Housing and Community Development Act of 1980 (42
U.S.C. 1436a(d)(4)) requires that assistance under these programs be
terminated after 30 days if the remaining family member has not
submitted documentation evidencing a satisfactory immigration status or
a pending appeal of a verification determination of the family member's
immigration status.
Rule Change: This final rule revises Sec. 5.2009(b) to combine the
paragraphs and respective time periods that provide reasonable time
periods for establishing eligibility for a covered housing program and
finding new housing after a lease bifurcation. HUD revises this section
to clarify that covered housing providers who choose to bifurcate a
lease must provide remaining tenants who have not already established
eligibility for the program 90 calendar days to establish eligibility
for a covered housing program or find alternative housing. Further, HUD
revises this section to state that this 90-calendar-day period will not
be available to a remaining household member if statutory requirements
of the covered program prohibit it, and that the 90-day calendar period
also will not apply beyond the expiration of a lease, unless program
regulations provide for a longer time period.
Comment: The time periods set out in the rule need to be changed or
clarified. Some commenters said the reasonable time periods for
establishing eligibility after bifurcation or finding new housing
should be lengthened. Commenters recommended that the reasonable time
to establish eligibility to remain in housing after bifurcation be
extended to 120 days, consistent with HUD policies that allow 120 days
for tenants in HUD's multifamily programs to provide information to
maintain continued housing assistance. Commenters also said the
extension is necessary because survivors may have poor credit, prior
arrests, or a prior eviction as a result of the abuse, and may be
unable to access identification documents taken by abusers. A commenter
said that HUD justified using 90 days for reasons related to obtaining
a social security number, but if it can take up to 90 days just to
provide a single piece of information, additional time is necessary to
apply for and establish eligibility for a program.
Commenters said that there are certain parts of the eligibility
process that are out of the control of the housing provider as well as
the household members, such as income verifications by third parties.
In instances where the survivor cannot establish eligibility,
commenters recommended that an additional 60 days or more be granted.
Commenters cited a critical shortage of affordable and public housing
as the reason for a need for a longer time period. Another commenter
said that, under the HCV program, 30 calendar days to find alternative
housing is not a reasonable timeframe, taking into account voucher
holders' success rate and low local vacancy rates. Commenter
[[Page 80774]]
said that, for the HCV Program, the initial term of the voucher issued
to the family to find an eligible unit is 60 days, and for HUD-Veterans
Affairs Supportive Housing (HUD-VASH), it is 120 days.
A commenter said it understands the desire to establish uniform
time periods to ensure that expectations are clear for both survivors
and housing providers, but a system that focuses on activities and
goals, rather than strict timelines, would better recognize the
external and domestic violence-related barriers to housing. The
commenter said that, if an explicitly-defined time limit is necessary,
HUD allow housing providers to waive the requirement whenever needed.
In contrast to the above comments, other commenters said an
eligibility determination can generally be completed in significantly
less than 60 days, and suggested that 90 days should be established as
the maximum amount of time allowed to establish eligibility. A
commenter suggested that once a family is determined to be ineligible
for a program, the family should be given 30 days to vacate the unit.
Some commenters said the rationale for the combined 90-day time period
is unclear. Another commenter asked when the victim would not be able
to establish eligibility, and when a reasonable time period to find
other housing would be necessary.
Other commenters suggested that it should not take long to
establish eligibility for the HUD program as properties have the
household's most recent certification and necessary information. A
commenter said that 60 days is too long for the initial period to
establish eligibility, given the current waiting lists for individuals
and families already determined to be eligible and, in the interest of
lessening the burden on housing providers, HUD should permit PHAs the
discretion to shorten the initial period to establish eligibility up to
30 days. Other commenters said it would take more time to find new
housing than it would to establish eligibility in tight housing
markets, and suggested that HUD reverse the timeframes to provide
remaining occupants 30 calendar days to establish eligibility and, if
they cannot, 60 calendar days to find alternative housing. Commenters
said that, whatever time period is granted, it should not be separated
into two distinct time periods since that is confusing and the
potential is high that the family will not start looking until after
they are determined to not be eligible. Commenters said these time
periods provided in the proposed rule appear to ignore the complexity
of bifurcation of a lease under the HCV program where, in addition to
establishing eligibility and locating alternative housing, a household
may also need to negotiate a new lease.
A commenter requested clarification from HUD regarding the PHA's
responsibilities during this initial period and whether only the
tenant's eligibility needs be established, and it is not the case that
the PHA must have processed the new paperwork and have either the unit
ready for move-in or the assistance ready for the tenant's use within
this initial period. A commenter said the burden should be on the
tenant to meet their obligation to provide the required information to
establish eligibility within this initial period.
Another commenter said that, in an era of greatly diminished
financial resources to administer existing housing programs, housing
providers should be able to choose at their discretion to provide the
tenant time to establish eligibility and find new housing as the
housing provider determines reasonable given housing market conditions
in the area of the housing provider. In contrast to this comment,
another commenter said that there should be consistency across HUD
programs to provide certainty as to how much time a tenant would be
given to relocate in the event of bifurcation.
HUD Response: In the final rule, HUD maintains the time period in
the proposed rule of 90 days to establish eligibility for a covered
housing program or find new housing, with the possibility of a 60-day
extension, at the discretion of the housing provider. As discussed
above, in this final rule the time periods are not separated into two
different periods, and the time periods do not apply under certain
programs and circumstances.
HUD declines to expand or eliminate these time periods because,
under VAWA 2013, lease bifurcation is not mandatory, and HUD does not
want to dissuade housing providers from considering this as an option
by requiring housing providers to allow those who may be ineligible for
a covered housing program--because they do not meet income or age or
any other program requirement--to remain in their units for lengthy
time periods. Given the high demand for housing subsidized by HUD by
numerous populations, including the homeless, persons with
disabilities, and the elderly, as well as other victims of crimes, HUD
declines to provide for further extensions. HUD also declines to
abbreviate these time periods in the interest of providing greater
numbers of tenants with sufficient time to establish eligibility for a
covered program, or find new housing after a lease is bifurcated. For
similar reasons, HUD eliminates in this final rule the provision that
housing providers may extend the reasonable time period subject to
authorization under the regulations of the applicable housing program.
For the HCV program, the victim and PHA do not have to wait for an
owner to bifurcate the lease for the PHA to offer continued assistance
for a new unit. While the family would not have to wait for bifurcation
to occur, it would have to wait for eligibility to be determined.
The period to establish eligibility and find new housing is limited
to those activities, and does not include any possible additional
processing or inspection time.
Rule Change: HUD removes Sec. 5.2009(b)(1)(iii) and (b)(2)(ii)
from the proposed rule, which stated that housing providers may extend
the reasonable time period ``subject to authorization under the
regulations of the applicable housing program.'' HUD revises this
language to state that housing providers have the option of extending
the reasonable time period by up to 60 calendar days, unless prohibited
by the governing statute of the covered program or unless the time
period would extend beyond termination of the lease. In addition, HUD
revises Sec. 982.314 in the proposed rule to reflect this section's
redesignation as Sec. 982.354 by HUD's August 2015 Portability Rule.
Comment: Extensions to reasonable time periods should be allowed
for public housing and HCV programs. Commenters stated that the
preamble to the proposed rule provided little justification for
withholding the discretion to extend the reasonable time period from
administrators of public housing or a HCV program because all housing
programs, and not just those two programs, face severe shortages of
units, and housing agencies should have local discretion to extend the
time in public housing and HCV programs, the same as in other
assistance programs. Another commenter proposed there be an initial 30-
day period to establish eligibility for public housing and section 8
programs, but, at the sole discretion of the PHA, this period may be
extended for two, additional 30-day periods.
HUD Response: As discussed above, family members remaining in a
unit after lease bifurcation under the HCV and Section 8 programs will
often already be eligible to remain in the unit and, where an
individual would be
[[Page 80775]]
ineligible is because of immigration status, HUD is statutorily
prohibited from permitting that family member to stay in the unit
beyond 30 days if satisfactory immigration status cannot be proven.
Comment: Those with tenant-based assistance should have the
opportunity to remain in their housing while attempting to establish
eligibility for the program and finding new housing. A commenter said
that HUD stated in the preamble to the proposed rule that the
reasonable time period does not apply to tenant-based assistance, but
made this statement with no comprehensible justification. The commenter
stated that HUD did not explain its assertion that the reasonable time
period resulting from lease bifurcation may only be provided to tenants
by covered housing providers that remain subject to the requirements of
the other covered housing program once the eligible tenant departs the
unit.
Another commenter said it does not understand why HUD, in
application of VAWA rights and protections, makes the distinction
between project-based assistance and tenant-based assistance. The
commenter recommended that tenants be allowed to stay in their units
while attempting to establish eligibility, and that there be no time
period imposed on remaining tenants trying to transfer to tenant-based
assistance. The commenter said its recommendation is particularly
important because the evicted perpetrator who has the tenant-based
assistance is entitled to due process rights, and if the abuser or
perpetrator chooses to exercise these rights, the timeline of when a
victim can establish eligibility for the tenant-based assistance
becomes very unpredictable.
Another commenter asked HUD to identify the HUD's programs to which
it refers when referencing HUD ``tenant-based rental assistance'' and
``project-based assistance,'' and to clarify which programs are subject
to the reasonable time period accommodation. The commenter stated that
the proposed rule advised that agencies administering Section 8 voucher
programs should provide the reasonable time period for a maximum period
of 90 days, but then said that the reasonable time period does not
apply, generally, if the only assistance provided is tenant-based
rental assistance.
HUD Response: HUD agrees with commenters that those with tenant-
based assistance should have the opportunity to remain in their housing
while attempting to establish eligibility for a covered program or find
new housing. HUD clarifies in this final rule that the reasonable time
periods specified in this rule apply to tenant-based assistance.
Comment: Clarify the interaction between the reasonable time period
provided in the proposed rule and reasonable time periods in different
programs. A commenter stated that proposed Sec. 5.2009(b)(1)(ii)
provided that the reasonable time to establish eligibility for
assistance can only be provided to remaining tenants if the governing
statute of the covered program authorizes an ineligible tenant to
remain in the unit without assistance. The commenter strongly urged HUD
to remove this sentence from the rule because such statement is
contrary to Congressional intent to require covered housing providers
to give tenants who remain after a lease bifurcation the right to have
``reasonable time'' to establish eligibility. The commenter said that
by mandating a ``reasonable time'' in this context, Congress chose to
suspend, for a limited time, applicable program eligibility
requirements so that victims do not lose housing assistance. The
commenter also said it is unclear which program statutes HUD was
referring to, and whether there are any statutes that authorize an
ineligible person to remain in units without assistance. The commenter
stated that proposed Sec. 5.2009(b)(1)(ii) said the 60 days does not
supersede any time period to establish eligibility that may already be
provided by the covered housing program. The commenter expressed
confusion about whether this statement referred to existing time period
requirements for remaining family members to establish eligibility, in
which case the longer time period applies, or whether the statement was
indicating that there are programs with regulations implementing VAWA
that outline their own ``reasonable time'' periods.
HUD Response: HUD agrees that the language in Sec.
5.2009(b)(1)(ii) of the proposed rule was not as clear as HUD intended
when HUD stated that the reasonable time to establish eligibility could
only be provided to a remaining tenant if the governing statute of the
covered program authorizes an ineligible tenant to remain in the unit
without assistance. As discussed above, in this final rule, HUD revises
Sec. 5.2009(b) to clarify that covered housing providers who choose to
bifurcate a lease must provide remaining tenants who have not already
established eligibility for the program 90 calendar days to establish
eligibility for a covered housing program or find alternative housing.
Further, HUD revises this section to state that this 90-calendar-day
period will not be available to a remaining household member if the
governing statute of the covered program prohibits it, and that the 90-
day calendar period also will not apply beyond the expiration of a
lease, unless program regulations provide for a longer time period. See
the chart and explanation earlier in this preamble that explains
applicable reasonable time periods for covered housing programs.
Comment: For the CoC Program, reasonable time requirements of VAWA
should apply in the scenario where the time remaining on the lease is
shorter than the reasonable time to establish eligibility. Commenters
said proposed Sec. 578.75(i)(2), which addresses treatment of
remaining program participants following bifurcation of a lease or
eviction as a result of domestic violence, should be clarified to
include transitional housing, and HUD should direct programs to use
whatever period is longer--the rest of the time on the lease or the
amount of time permitted by the general VAWA lease bifurcation
provision--on occasions where the time left on the lease is shorter
than the reasonable time allowed to establish eligibility or find new
housing. Other commenters suggested striking Sec. 578.99(j)(8), which
states that HUD's generally applicable bifurcation requirements
pertaining to reasonable time periods under VAWA in 24 CFR 5.2009(b) do
not apply, and the reasonable time period for the CoC program is set
forth in Sec. 578.75(i)(2).
HUD Response: Section 578.75(i)(2) applies to permanent supportive
housing projects, in which the qualifying member of the household must
have a qualifying disability. This final rule does not change this
section to include transitional housing because transitional housing
does not have the same qualifying member requirement. Once determined
eligible, the entire household is considered eligible under
transitional housing.
This final rule does not maintain Sec. 578.99(j)(8) of the
proposed rule, which, as noted above, says that the reasonable time
periods in 24 CFR 5.2009 do not apply to the CoC program, but instead
drafts a separate bifurcation section at Sec. 578.99(j)(7). However,
HUD maintains that the reasonable time requirements do not apply
because they would conflict with other CoC program requirements.
With the exception of permanent supportive housing projects, the
eligibility of the household is based on the entire household, not just
one member, so in the event of a lease bifurcation the household would
retain the housing for the length of time remaining in their original
period of
[[Page 80776]]
assistance. Once the period of assistance has ceased then the household
would re-certify or re-apply. In the event of lease bifurcation in
transitional housing, covered housing providers have the ability to
extend the assistance beyond 24 months, on a case-by-case basis, where
it is necessary to facilitate the movement to permanent housing. HUD
will continue to allow covered housing providers the discretion that
they currently have in assisting families when the families'
circumstances change during their original period of assistance.
Existing CoC regulations state that surviving members of a household
living in a permanent supportive housing unit have a right to rental
assistance until the lease expires.
Rule Change: HUD removes the requirement in Sec. 578.99(j)(8) and
provides for a new section on lease bifurcations at Sec. 578.99(j)(7).
b. Bifurcation Logistics
Comment: Clarify how bifurcation applies to affiliated individuals
and lawful occupants. Commenter stated that the definition of
bifurcation in the regulations explains that if a VAWA act occurs,
``certain tenants or lawful occupants'' can be evicted while the
remaining ``tenants or lawful occupants'' can continue to reside in the
unit. Commenter said this section should specify whether the phrase
``tenants or lawful occupants'' includes ``affiliated individuals.''
Commenter also requested clarification on the meaning of the terms
``affiliated individual'' and ``other individual'' in proposed Sec.
5.2009(a)(1). A commenter asked the following questions: (1) If a
member of a household is a lawful occupant and not a signatory to the
lease, but is also the abuser, is ``bifurcation'' an appropriate remedy
to terminate the abuser's occupancy rights; (2) is bifurcation an
appropriate remedy if an ``affiliated individual'' is the abuser; (3)
if a member of a household is an unauthorized occupant and is also the
abuser, what actions may the covered housing provider take against the
abuser; (4) if a member of a household is an unauthorized occupant and
also the abuser, may the covered housing provider take action against
the tenant-lease signatory for permitting an unauthorized occupant to
reside in the unit without violating VAWA; (5) can a lease be
bifurcated if the abuser is a tenant or lawful occupant of the unit,
but the victim lives elsewhere; and (6) what remedies does an
``affiliated individual'' have, if any, if the affiliated individual is
the victim of a VAWA act, or a non-victim household member?
HUD Response: The phrase ``tenants or lawful occupants'' does not
include affiliated individuals who are neither tenants nor lawful
occupants. Affiliated individuals are not themselves afforded
protections or remedies under VAWA 2013 or HUD's VAWA regulations.
Rather, a tenant may be entitled to VAWA protections and remedies
because an affiliated individual of that tenant is or was a victim of
domestic violence, dating violence, sexual assault, or stalking.
However, an affiliated individual cannot seek remedies from the housing
provider.
HUD's proposed language in Sec. 5.2009(a)(1), which provides that
a covered housing provider may bifurcate a lease in order to evict,
remove, or terminate assistance to an individual who engages in
criminal activity directly relating to domestic violence, dating
violence, sexual assault or stalking against an ``affiliated individual
or other individual,'' mirrors language in VAWA 2013. HUD interprets
this statutory language to mean that a housing provider may bifurcate a
lease to remove a member of the household who engages in criminal
activity directly relating to domestic violence, dating violence,
sexual assault, or stalking, against any individual.
Generally speaking, a lawful occupant will not have rights to a
unit under a covered housing program unless the lawful occupant is a
tenant on the lease. Bifurcation is not the appropriate remedy to
remove a household member who is not on the lease and who is not a
tenant. There would be no need to divide the lease to remove a
household member who is not on the lease. As explained elsewhere in
this preamble, under VAWA, a covered housing provider may not evict or
terminate assistance to a tenant solely on the basis that the tenant
has an unauthorized abuser or perpetrator in the household, where the
unreported household member is in the unit because he or she has
committed an act of domestic violence against the tenant, and the
tenant is afraid to report him or her.
Comment: HUD should outline a process for victims to establish
eligibility and find new housing. Commenter said it is important for
HUD to outline a process and timeframe for victims to exercise their
right to establish eligibility for the current program, and the process
should be modeled off of one that already exists for the multifamily
programs in the recertification context. Commenter suggested the
covered housing provider should immediately provide a notice to the
remaining tenants stating their right to establish eligibility under
the current program within a specified time period, and the time period
should not start to run unless the required notice has been provided.
Commenter suggested the notice describe how the tenants can apply for
the program and include a deadline by which the tenants must submit the
information necessary to apply for the program, with the possibility of
an extension. Commenter said the housing provider should have to
determine the household's eligibility for the program and issue a
notice of determination well before the time period for the tenant to
remain in the housing expires, and there should be an opportunity for a
tenant to appeal an adverse decision. Commenter said the time period
for establishing eligibility should not be tolled until an appeal
decision is final. The commenter said that alternatively, for remaining
tenants who do not respond to the initial notice in a timely manner,
the housing provider must send a notice stating that the tenants have
waived their right to establish eligibility for the current program
under VAWA, but such waiver does not preclude the tenants from applying
for the program in the future.
HUD Response: Because lease bifurcation is an option and housing
providers are not required to bifurcate a lease, HUD declines to impose
requirements, at this time, beyond those specified in Sec. 5.2009 of
this rule, as to how a bifurcation of lease process should occur. State
and local laws may address lease bifurcation and, where they do address
lease bifurcation, covered housing providers must follow these laws.
Housing providers, however, are free to establish their own policies on
steps to be taken when a lease is bifurcated, and HUD encourages
housing providers to establish such policies and make these policies
known to tenants.
Comment: Explain how lease bifurcation will work. A commenter
requested clarification of whether the reasonable time period begins
upon an owner's initiation of a lease bifurcation, the date of
eviction, or another point in the bifurcation process. A commenter
asked where a PHA administers an HCV program, and terminates assistance
to a family member after determining that the family member committed
criminal acts of physical violence against others in the household, and
that family member has signed the lease, the PHA is required to
bifurcate the lease. The commenter further asked whether the PHA, by
the action of terminating assistance to the family member who committed
domestic violence, could require the owner of the housing in which the
family resides to bifurcate the
[[Page 80777]]
lease. Another commenter asked whether a housing provider would be able
to terminate the assistance and tenancy of the abuser immediately, and
whether law enforcement would need to be involved. Another commenter
asked whether the housing provider would need to obtain a court order
to remove a tenant from the unit and remove the tenant's name from the
lease without the tenant's permission. A commenter requested that HUD
clarify a PHA's specific responsibilities when a lease bifurcation is
initiated by an owner, and how an owner should decide that a lease
bifurcation is appropriate and that an individual can be legally
evicted.
A commenter said that, given that the termination of occupancy
rights must be carried out in accordance with State and/or local laws,
the rule's bifurcation provision does not provide a helpful tool for
housing providers to expedite dividing the family if both the victim
and perpetrator have property rights to the unit and, in such cases,
the housing provider could only relocate the victim to another unit and
follow a separate track to evict or terminate the perpetrator in
accordance with due process procedures. Commenters asked for advice on
how to address a situation where the tenant and owner disagree about
bifurcation of a lease.
HUD Response: As stated in Sec. 5.2009, the reasonable time period
begins on the date of bifurcation of the lease; that is, the date when
bifurcation of the lease is legally effective, and not at the start of
the process to bifurcate a lease.
If a PHA terminates assistance to an individual because that
individual was a perpetrator of a crime under VAWA, that does not mean
that an owner must bifurcate the lease if the unit has other household
members. Similarly, a PHA cannot require an owner to terminate or
bifurcate a lease where the PHA has terminated assistance for reasons
unrelated to VAWA. Further, Sec. 982.53 of this rule provides that the
owner, and not the PHA, is the covered housing provider that may choose
to bifurcate a lease.
For housing choice and project-based vouchers, if an owner
bifurcates a lease, the owner must immediately notify the PHA of the
change in the lease and provide a copy of all such changes to the PHA.
This requirement is in 24 CFR 982.308(g) for the tenant-based voucher
program and 24 CFR 983.256(e) for the project-based voucher program.
With the exception of PHA-owned units, the PHA is not a party to the
lease and therefore cannot bifurcate a lease agreement between an owner
and a tenant. It is up to the owner to bifurcate the family's lease and
to evict or remove the perpetrator from the unit. Under VAWA 2013 and
as reflected in this rule, bifurcation of a lease is an option and not
a requirement, so an owner would not be required to bifurcate a lease.
HUD notes that any eviction, removal, termination of occupancy
rights, or termination of assistance must be undertaken in accordance
with the procedures prescribed by Federal, State, or local law for
termination of leases.
Comment: Clarify whether subsidies continue and who is responsible
for housing costs during the reasonable time period when tenants try to
establish eligibility or find other housing. Commenters asked HUD to
clarify whether housing providers would continue to subsidize units for
those who are found to be ineligible after a lease is bifurcated.
Commenters said that if the remaining family members cannot pay the
rent, the loss of rental revenue and possible eviction costs is an
additional financial burden for housing providers and asked for clarity
as to who pays the housing costs in this event.
Commenters said housing providers should work with victims to
determine if they are eligible for a HUD program, and HUD should
continue to provide housing assistance to tenants who are trying to
establish eligibility for a program or find new housing. Commenters
said that at the end of the eligibility period, owners or agents should
prepare a recertification showing any changes in household composition
or HUD assistance and, if the victim is not eligible for assistance,
the termination of subsidy or tenancy should not be effective until the
last day of the month following a 30-day notice period. Commenter said
that not ensuring assistance for victims and their families will lead
to evictions and homelessness. A commenter said housing providers
should continue to pay subsidies until the reasonable time period has
elapsed.
Another commenter said that tenants who remain in the units after
lease bifurcation should pay the same amount of rent owed before the
bifurcation, or, the minimum rents as outlined in applicable program
rules, until the time periods in the regulations to establish
eligibility and find other housing runs out or until the family is able
to establish eligibility for a covered housing program or has found
other housing. The commenter said that, for those covered housing
programs that do not have minimum rents, HUD should require that the
remaining tenants in these units to pay 30 percent of the remaining
tenants' income while attempting to establish eligibility or while
looking for new housing. The commenter also said these interim rents
should include exemptions for remaining tenants who cannot pay because
of the violence or abuse.
Commenters said the final rule should be clear that housing
providers are not responsible for rent payments, and should not
otherwise incur losses, after a lease is bifurcated. Commenters said
HUD should clarify that remaining tenants are responsible for rent
payments and other lease obligations during the period when individuals
are trying to establish eligibility for a covered housing program or
find alternative housing, or HUD should commit to continuing assistance
to the unit during the reasonable time period. A commenter said HUD
should continue to provide assistance for the amount shown on the
tenant certification.
Another commenter said HUD should give housing providers additional
financial resources commensurate with the reasonable period, and
housing providers should not be forced to forgo rent, housing
assistance payments, operating funds, or other funds that they would
otherwise receive. A commenter said the rule should include language
that housing providers are not required to provide housing and
utilities free of charge during reasonable time periods.
HUD Response: HUD is able to and will continue to subsidize units
or families, as appropriate under different programs, after a lease
bifurcation during the time periods specified in this rule (see chart
explaining applicable time periods earlier in this preamble). As
previously discussed, HUD cannot continue to subsidize a Section 202 or
a Section 811 unit that does not contain an individual who is not
eligible for that program during the 90-calendar-day period following a
lease bifurcation. HUD stresses that it is the covered housing
provider's decision whether or not to bifurcate a lease under VAWA. HUD
also notes that section 5.2009(c) of this rule encourages housing
providers to help victims of VAWA incidents remain in their units or
move to other units in a covered housing program whenever possible.
Comment: Clarify any interim rent obligations that may arise from
bifurcation of a lease. Commenters offered various suggestions on how
to address any interim rent obligations that may arise following
bifurcation of a lease. A commenter said that rent should not be
changed for remaining tenants who are eligible for assistance because
any tenant in the unit should already have been determined to be
[[Page 80778]]
eligible. Another commenter recommended that housing providers be
allowed to follow their existing policy for when a head of household or
other adult is removed for any other reason when determining interim
rent obligations after bifurcation. A commenter stated that after a
tenancy ends, remaining tenants have to pay the lower of either (1) an
amount equal to the rent of the former tenant, or (2) an amount based
on the income of the current occupant(s).
Other commenters said an interim recertification should be
completed during the reasonable time period and interim rent should be
established based on the income of remaining family members. A
commenter said that, if the remaining tenant is ineligible to receive a
subsidy, the rent could be set at current market rate for a section 8
or PBV tenant and flat rent limits for public housing tenants. A
commenter said that use of these rents would provide incentive for
participants to resolve eligibility issues quickly and help protect
providers from revenue losses.
A commenter said that while eligibility approval is pending after a
lease bifurcation, HUD's rule should require that any increase in the
remaining family's share of rent be effective the first day of the
month following a 30-day notice of changes to the rent obligation. The
commenter said this time frame is consistent with current rules
governing interim rent increases for HUD Multifamily Housing and should
be implemented in other Federal housing programs.
HUD Response: HUD appreciates these suggestions, but existing
program regulations govern interim rent obligations, and HUD is not
altering the existing requirements for purposes of implementing VAWA.
Comment: Housing providers should have some latitude in allowing
victims who do not qualify for a program to remain in a unit when a
lease is bifurcated. Commenters stated that if a tenant is at the
threshold of being eligible for certain housing, for example, a
survivor who will qualify for age-restricted housing in a year, the
housing provider should be allowed to let the survivor remain in the
housing. Another commenter said housing providers should be allowed to
continue to provide subsidy to a victim who in ineligible for a program
based on such factors as age or disability.
HUD Response: The statutes authorizing the covered housing programs
determine basic program eligibility requirements. Tenants who are
victims of domestic violence, dating violence, sexual assault, or
stalking, will not be eligible for programs for which they would be
ineligible if they had not been victims of domestic violence, dating
violence, sexual assault, or stalking. HUD and housing providers do not
have the discretion to depart from statutory requirements.
Comment: Housing providers should not be expected to allow an
ineligible family to remain in an assisted unit or to retain
assistance. A commenter said HUD should not expect a PHA to allow an
ineligible family to remain in an assisted unit, or in a market rate
landlord's unit receiving tenant-based assistance, especially if HUD
may not cover the assistance. The commenter said that assisting an
ineligible family creates a hardship and denies a unit or voucher to an
eligible waiting list applicant. The commenter said that HUD does not
allow PHAs to maintain any funding overages that could be used to
assist an ineligible family for any period of time.
HUD Response: Under VAWA 2013 and this final rule, housing
providers that exercise the option of bifurcating a lease must give
remaining tenants a reasonable period of time, as specified in Sec.
5.2009 of this rule and applicable program regulations, to remain in a
unit to establish eligibility for a HUD program or find new housing.
Housing providers may evict or terminate assistance to those who are
unable to establish eligibility at the expiration of the applicable
reasonable time period.
Comment: Procedures to certify a new head of household should
impose minimal burden on the family. A commenter said that where the
abuser was the eligible head of household and leaves, the housing
provider's procedures for certification of a new head of household
should impose minimal burden on the family. The commenter suggested
that where there is only one remaining adult member of the household,
there should be a presumption that that adult should be the new head of
household and, where there is more than one adult, the housing provider
should be required to send notice to all eligible members, have the
family select the head of household, and establish procedures for when
the family cannot. The commenter said that where the removal of the
abuser leaves the family with no member who can qualify, a qualified
person with physical custody of the children should be added to the
household to become the head of household. The commenter said the rules
should absolve the new head of household from responsibility for any
funds owed prior to the removal of the abuser and PHAs should continue
paying subsidies until the substitution of the new head of household is
made. The commenters further said victims may not be aware of their
rights to have rent recalculated when the abuser is removed from the
household and should not have to report a change of household income,
but rent should be recalculated and effective the first month after the
abuser leaves.
HUD Response: HUD will not require PHAs to deviate from their
current procedures to certify a new head of household. Procedures for
certifying a new head of household may be similar to the procedures for
any family break up or death of the head of household, or for adding a
new person to the family, and must be described in the PHA's
administrative plan and other policy documents.
Comment: Explain how bifurcation will work with families with mixed
immigration status. Commenters requested that HUD explain or issue
guidance on how to provide assistance to mixed family households where
the sole household member with citizenship or eligible immigration
status is the perpetrator and has been removed from the household
through bifurcation. A commenter stated that, in this scenario, the
remaining household members who lack eligible citizenship status would
not be eligible for assistance and would risk losing their housing
based on reporting the abuse. The commenter said that certain families
will be able to apply for nonimmigrant status and seek temporary
immigration benefits under the Immigration and Nationality Act, but
might require much longer than a 90-day period to establish
eligibility, and they should be given additional time. The commenter
said that any extensions granted to mixed families under this section
should be harmonized with Sec. 5.518, which establishes the
requirements for temporary deferral of termination of assistance for
families lacking eligible immigration status, and affords eligible
families an initial deferral period of up to six months. The commenters
said that for those families who do not qualify for nonimmigrant
status, HUD should implement procedures to waive its mixed family
requirements to authorize victims without eligible immigration status
to continue receiving assistance, and HUD should either waive prorated
rent payment requirements for such victims, or issue special subsidies
to assist them.
HUD Response: HUD appreciates commenters' concerns, but altering
existing program regulations regarding
[[Page 80779]]
mixed families is outside of the scope of this rule.
Comment: Clarify whether section 8 assistance can be bifurcated.
Commenters asked whether a housing provider can bifurcate Section 8
assistance and, if so, requested procedural guidance on how this would
be done. Commenters said that, absent the ability to bifurcate
assistance, PHAs would be left in an untenable position in cases where
a voucher is issued to two individuals and one commits a VAWA act
against the other.
HUD Response: Tenant-based Section 8 assistance cannot be
bifurcated because bifurcation relates to the division of a lease, not
the division of assistance. The PHA's family break-up policies will
apply in situations where a household divides due to domestic violence,
dating violence, sexual assault, or stalking.
Comment: Clarify that housing providers should not pressure victims
to remain in unit. A commenter commended HUD for including a provision
that encourages covered housing providers to assist victims, but
recommended that HUD clarify that covered housing providers should only
provide assistance to victims and their household members who want to
remain in their units, and should not pressure those who do not feel
safe in these units to remain there. The commenter said that, in these
situations, the covered housing providers should be encouraged to work
with the victims to find safe and affordable units elsewhere.
HUD Response: HUD agrees that covered housing providers should only
provide assistance to victims and their household members who want to
remain in the units, and should not pressure those who do not feel safe
in these units to remain there. HUD emphasizes that bifurcation of a
lease is one option of possible remedy to address a family divided by
domestic violence, and HUD's final rule at Sec. 5.2009(c) encourages
covered housing providers to undertake whatever actions are permissible
and feasible under their respective programs to assist individuals to
remain in their unit or other units under the covered housing program.
Individuals who do not feel safe in their unit may wish to request an
emergency transfer if they meet the rule's criteria for requesting
emergency transfer in Sec. 5.2005(e).
Comment: Clarify that covered providers may bifurcate a lease under
VAWA regardless of whether State law specifically provides for lease
bifurcation. A commenter asked that HUD clarify that housing providers
may bifurcate a lease under VAWA regardless of whether State law
specifically provides for lease bifurcation, but that the providers
must do so using processes consistent with Federal, State, and local
law.
HUD Response: Section 5.2009(a)(2) of the final rule provides that
bifurcation is an option as long as it is carried out in accordance
with any requirements or procedures as may be prescribed by Federal,
State, or local law for termination of assistance or leases and in
accordance with any requirements under the relevant covered housing
program. Where State or local laws address lease bifurcation, and these
laws require bifurcation, permit bifurcation or prohibit bifurcation,
and, where permitted or required, specify processes to be followed, the
housing providers must follow these laws.
Comment: Clarify that housing providers are not expected to act in
ways that are not accord with Federal, State and local laws. A
commenter stated that housing providers cannot guarantee that a judge
will grant, or a local agency will enforce, an eviction where a lease
is bifurcated. Another commenter asked how a PHA that operates in a
State that requires that public housing residents be evicted in court
in order to terminate tenancy can only require the HUD self-
certification form when initiating the bifurcation of a lease. Other
commenters stated that, since bifurcation of a lease is subject to
State and local laws, this may create inconsistencies in actual
application.
HUD Response: As addressed in the response to the preceding
comment, Sec. 5.2009(a)(2) of the final rule provides that bifurcation
must be carried out in accordance with any requirements or procedures
as may be prescribed by Federal, State, or local law. Where a PHA
operates in a State where public housing residents must be evicted in
court, then the PHA must follow that procedure, but that does not
change the fact that in order to establish eligibility for VAWA
protections, the PHA must accept self-certification, unless there are
conflicting certifications. HUD recognizes that this means that there
will be differences in how bifurcation operates in different States or
localities.
Comment: There should be a database or other online management tool
to assist individuals in locating new housing. A commenter stated that
an individual who is seeking to bifurcate a lease and look for
alternative housing would benefit from being able to search for housing
options on a government Web site.
HUD Response: HUD's Web page, entitled Rental Assistance, at the
following Web site http://portal.hud.gov/hudportal/HUD?src=/topics/rental_assistance provides nationwide information on how to find
affordable rental housing.
Comment: Do not mandate requirements to help remaining tenants stay
in housing after bifurcation, but offer guidance. A commenter said HUD
should not mandate a specific set of requirements that covered housing
providers must take to help remaining tenants stay in housing, as these
may be burdensome and costly depending on the housing provider's
internal and community resources. The commenter, however, supported HUD
providing guidance to housing providers, including recommendations on a
quick response plan for eligibility determinations of remaining
tenants, and coordinating with community resources to prioritize these
families for rapid re-housing and other programs.
HUD Response: Unless discussed elsewhere in the preamble, the only
provisions on bifurcation in HUD's final rule are those required by
statute. As provided throughout this section of the preamble that
addresses the issues raised by commenters, HUD intends to supplement
its VAWA regulations with program guidance.
Comment: After bifurcation, housing providers should take steps to
ensure perpetrators are kept away from the victim's unit. Commenters
said that when a lease is bifurcated the owner or agent should work
with the local police and legal system to ensure, to the extent
possible, that the perpetrator is not allowed on property grounds, with
limited exceptions. A commenter said that once the lease has been
bifurcated, unit locks should be changed immediately.
HUD Response: As has also been stated through this section of the
preamble that addresses issues raised by commenters, HUD strongly
supports covered housing providers taking whatever actions they can to
keep victims safe.
Comment: Advise how housing providers can rehouse both victims and
offenders. A commenter stated that in determining bifurcation policies,
there should be consideration of how housing providers can rapidly
house the household in question including both victim and offender,
where the offender is not incarcerated or otherwise apprehended for
their involvement in a crime. The commenter suggested offering
referrals to the offender when alternate living arrangements are not
feasible, such as a referral to a community shelter service. Another
commenter stated that after evicting an
[[Page 80780]]
abuser, a housing provider has the right to reject any future
application where the abuser is part of the household, including adding
an abuser to an existing household on the property.
HUD Response: As discussed in this preamble, victims of VAWA
incidents in HUD-covered housing will generally be provided a
reasonable time to establish eligibility for housing in their current
units after a lease bifurcation. HUD appreciates commenters' suggestion
for rehousing everyone in a household after a lease bifurcation, but
declines in this rule to require housing providers to take specific
steps for rehousing household members after a lease bifurcation. HUD
does not wish to discourage housing providers from choosing to
bifurcate leases where it is appropriate to do so.
This rule does not adopt a policy that, after evicting an abuser, a
housing provider has the right to reject any future application where
that abuser is part of this household, as this may be prohibited by
State, local, and Federal laws, as well as HUD program requirements,
and is outside the scope of this rulemaking.
8. Implementation and Enforcement
Comment: Strong enforcement of the rule is important considering
the strong connection between VAWA crimes and homelessness. Commenters
said that 92 percent of homeless women report having experienced severe
physical or sexual violence at some point in their lives, and upwards
of 50 percent of all homeless women report that domestic violence was
the immediate cause of their homelessness. Another commenter cited
statistics that 28 percent of families reported to be homeless because
of domestic violence. Other commenters further stated that nearly 1 in
5 women has been the victim of an attempted or completed rape, and over
80 percent of women who were victimized experienced significant impacts
such as post-traumatic stress disorder, injury, and missed time at work
or school. Commenters said economic insecurity and the trauma that
often follows sexual assault make it difficult, if not impossible, for
many victims to access safe, affordable housing options. Commenters
stated that when survivors have access to safe and affordable housing,
such access reduces their risk of homelessness, which reduces their
risk of future violence. A commenter said that that women and men who
experience housing insecurity reported a higher prevalence of sexual
violence, physical violence, and stalking.
HUD Response: HUD agrees with the commenters regarding the
connection between VAWA-related crimes and homelessness. Such
connection underscores the importance of HUD and its housing providers
taking all actions, consistent with VAWA 2013, to protect victims of
domestic violence, dating violence, sexual assault, and stalking, and
to house them in the safest locations possible. Further, HUD strongly
encourages housing providers to take actions beyond the minimum
required by VAWA 2013, where possible and consistent with Federal,
State, and local laws.
To ensure implementation, HUD is requiring that covered housing
provider keep a record of all emergency transfers requested under its
emergency transfer plan, and the outcomes of such requests, and retain
these records for a period of three years, or for a period of time as
specified in program regulations. HUD is also providing in the ``Notice
of Occupancy Rights'' contact information for individuals to report a
covered housing provider that fails to comply with this regulation.
Comment: Provide clear and robust guidance and technical assistance
to housing providers. Commenters stated that HUD must give housing
providers clear and robust guidance so that VAWA is fully and correctly
implemented. Another commenter said that housing providers should be
aided by manuals that cover the emergency transfer process and
applicable time frames, and with manuals to connect victims with
counseling, legal aid, and other services to bolster social work
efforts. Other commenters said that HUD should work closely with DOJ to
develop VAWA guidance for HUD staff, including staff of HUD's Office of
Fair Housing and Equal Opportunity (FHEO), for housing providers, and
for housing judges and legal aid.
A commenter said HUD staff and housing providers should be required
to participate in annual training to ensure compliance with VAWA.
Another commenter urged HUD to consider significant technical
assistance to PHAs around domestic violence and the VAWA regulations--
including education on financial abuse, as this may manifest itself as
``nonpayment of rent'' for housing providers, notification of housing
rights under VAWA, and translating forms and notices into other
languages.
A commenter said HUD will also need to provide program-specific
guidance, as implementation of certain provisions will vary between
programs. The commenter said, for example, HOME grantees and LIHTC
owners may need to add language to their tenant selection plans to
handle transfer requests and allow a domestic violence survivor to have
access to an available unit. The commenter said HUD will also need to
provide clear guidance to each field office on how VAWA 2013 should be
implemented across the various HUD programs, especially in regards to
unit transfers, and provide a path for escalation if there are unclear
or confusing situations.
HUD Response: HUD appreciates the commenters emphasizing the
importance of guidance and technical assistance to aid covered housing
providers in implementing VAWA, and, as HUD has already stated in the
preamble, HUD intends to provide such.
Comment: HUD and housing providers should collaborate with others
in implementing VAWA. A commenter stated that HUD should work with law
enforcement and justice officials to determine the best remedy for a
victim and a remedy that is consistent with the needs and wishes of the
victim through a shared informational database. The commenter
emphasized the importance of a collaborative approach to client case
management issues and stated that information data bases could be an
important tool, where individuals consent to the sharing of
information. Another commenter said that owners and agents should be
strongly encouraged to develop a resource folder of sources within a
15-mile radius of the property providing help and counseling services
to victims of domestic violence, dating violence, sexual assault and
stalking. Commenters said covered housing providers should work with
local law enforcement to take all legal means to ensure that the
perpetrator does not come onto the property grounds, including getting
a restraining order.
A commenter says there should not be separate duplicative
requirements for LIHTCs, administered by the Department of Treasury, as
HUD's HCV and PBV programs often coexist with the LIHTCs.
Another commenter said that many of the multifamily developments
funded with HOME funds and expected to be funded with HTF funds are
also constructed or operated with resources from other Federal
agencies. Commenters urged HUD to coordinate with these agencies so
that, within statutory limits, a development is not subjected to
inconsistent VAWA 2013 compliance requirements.
Commenters asked that HUD clarify that communities need to include
the full participation of domestic violence and sexual assault experts
in their
[[Page 80781]]
Continuums of Care, and HUD or the State recipient should monitor how
PHAs and CoCs have partnered with these experts. Commenters said HUD
should release further guidance directing communities to ensure that
the safety needs of survivors are met and that survivors can have
preference in allocating housing resources. Commenters expressed
concern that housing assessment tools that under-assess the housing
needs of survivors can reduce the number of survivors prioritized for
housing.
HUD Response: HUD agrees with commenters on the importance of
working with housing providers and other agencies to implement VAWA
effectively. With respect to establishing databases, HUD cautions that
VAWA 2013 and HUD's regulations prohibit entering VAWA-related
information documenting or certifying to the occurrence of a VAWA-
related incident into shared databases for confidentiality reasons,
although this will not apply if the disclosure is requested or
consented to in a time-limited written release by the individual who
submitted the documentation.
Comment: Victims of domestic violence should be supported with
portable housing funding. A commenter stated that the importance of
housing individuals in violence-free environments requires a new
approach to community housing that precludes housing families in low-
income neighborhoods. Commenter stated that victims of violence should
be supported with portable housing funding that can be applied to
market rents to prevent the development of crime-riddled low-income
neighborhoods. Another commenter said housing programs should attach
assistance to the tenant rather than the unit in order for the tenant
to obtain continued, unbroken assistance in HUD programs. This
commenter said this is important for lesbian, gay, bisexual, or
transgender (LGBT) persons who are uniquely vulnerable to limitations
on where they may live and find work.
HUD Response: HUD agrees that tenant-based assistance may provide
certain victims of domestic violence, dating violence, sexual assault,
or stalking with more options for transferring to a different unit than
project-based assistance provides. However, as noted earlier in this
preamble, the fiscal year 2016 appropriations for HUD does not provide
funding specifically for tenant protection vouchers for victims of
domestic violence, dating violence, sexual assault, or stalking.
Comment: Issue guidance for housing providers working with LGBT
victims of domestic violence, dating violence, sexual assault, and
stalking. Commenters said guidance is necessary to ensure that people
working with LGBT victims are equipped with the knowledge and cultural
competence to fully implement VAWA protections. Commenters said LGBT
victims have often been denied access to domestic violence services,
due to misconceptions. A commenter stated that transgender survivors of
domestic violence are four times as likely to suffer harassment and
intimidation by law enforcement officers, and these numbers were even
higher for transgender women and transgender people of color. The
commenter said that it is for these reasons that many LGBT survivors
are less likely to seek help from the authorities or claim the
protections that VAWA has to offer.
Another commenter expressed appreciation for the inclusion of LGBT
persons within the description of individuals covered by the statute in
Sec. 5.2001 and throughout the accompanying appendix. The commenter
said that, in order to ensure that LGBT victims receive the full
protection intended by the statute, housing providers implementing
these regulations must be able to recognize LGBT victims seeking
assistance, or facing termination on the basis of criminal activity
linked to a domestic violence incident, as victims may be arrested
alongside their abusers. The commenter said housing providers should
receive adequate training to recognize such abuse and to ensure victims
are eligible for an emergency transfer and are not unnecessarily denied
housing.
HUD Response: HUD emphasizes that housing providers must provide
LGBT victims of domestic violence, dating violence, sexual assault, and
stalking, with the protections and remedies that VAWA 2013 directs be
provided to all tenants and applicants. Failure to do so not only
violates VAWA 2013 and HUD's regulations, but also may violate HUD's
2012 Equal Access Rule, which requires that HUD-assisted and HUD-
insured housing are made available without regard to actual or
perceived sexual orientation, gender identity, or marital status.
Comment: Provide clear guidance regarding confidentiality measures.
Commenters said that HUD, in consultation with confidentiality and
victim advocacy experts, should provide very direct and clear guidance,
regulations, training, protocols and policies that help all entities
maintain confidentiality within their practices, and HUD should also
establish a complaint process for alleged breaches of confidentiality.
Commenters said that CoCs that utilize Homeless Management Information
Systems (HMIS)/shared databases for their admissions and distribution
of resources often exclude victims of violence from accessing the
housing resources because the survivor is being served by a victim
service program barred from entering information into HMIS or because
the survivor chooses to not have their information entered in HMIS for
safety reasons. Commenters said service providers entering information
into HMIS are not asking the appropriate questions regarding domestic
violence prior to entering information into the shared database, and
victims are often confused about what information they are ``required''
to provide and fear they won't receive these vital housing supports if
they refuse to give this information. A commenter said confidentiality
regulations must be cross-referenced in the governing regulations of
the housing provider.
HUD Response: Confidentiality measures will be discussed in
guidance on VAWA. HUD takes seriously any complaints regarding alleged
breaches of confidentiality in violation of VAWA, and violations of the
confidentiality provisions of this rule are program violations that
could jeopardize the receipt of HUD funding.
Comment: Provide mechanisms for review for victims who believe
their VAWA rights have been violated. Commenters said victims who have
been denied, terminated, or evicted from housing currently do not have
a federal administrative remedy for VAWA violations, leaving many with
no recourse in cases where they have been improperly denied their
housing rights under VAWA. A commenter stated that many covered housing
providers have not complied with VAWA's requirements to address
violence in their planning documents, permit survivors to move with
their vouchers to a new jurisdiction for safety reasons, and provide
notice to subsidized tenants regarding their VAWA rights. Commenters
asked that HUD formalize mechanisms for enforcing VAWA rights so that
such rights are available to all who need them, and urged HUD to
provide additional guidance for specific programs on the available
review mechanisms.
Commenters said formalized administrative remedies are required for
several reasons. Commenters said that HUD's Office of FHEO's regional
offices will only investigate VAWA violations
[[Page 80782]]
that sufficiently present an allegation of discrimination under the
Fair Housing Act. Commenters said there is no publicly available
information regarding which staff at HUD, either in headquarters or the
regional offices, will handle VAWA requests. Commenters further said
there are instances where local HUD offices and housing authorities do
not recognize the application of VAWA.
Commenters recommended that a special assistant or advisor within
the Office of the Secretary be named who would oversee coordination of
VAWA implementation, including with programs not covered by HUD, and
resolution of complaints of VAWA violations, and staff persons within
each program covered by VAWA should be designated in HUD headquarters
to respond to questions and issues with VAWA implementation and to
address complaints of VAWA violations, in conjunction with regional
offices. Commenters asked that the names and contact information for
these staff be made public.
HUD Response: The ``For Further Information'' section of this rule
identifies points of contact in the covered HUD programs. Additionally,
HUD intends to identify points of contact in HUD's regional and field
offices.
Comment: HUD should coordinate investigation of VAWA violations
with Fair Housing Act violations. Commenters recommended that HUD
create a mechanism to ensure that complaints regarding a VAWA violation
or a Fair Housing Act violation based on domestic violence, dating
violence, sexual assault, or stalking are screened for violations of
both laws in order to ensure that survivors receive all of the legal
relief to which they are entitled. Commenters said a potential model
would be the joint review process established by the HUD Offices of
FHEO and PIH in cases relating to public housing demolition and
disposition. The commenters stated that because members of the public
who experience violation of federal housing law most often pursue their
grievances through the fair housing process, all FHEO investigators
should receive training on the intersection of VAWA 2013 and the Fair
Housing Act. Commenters also recommended that HUD's Office of FHEO
receive and investigate complaints of VAWA violations, as it is the
component of HUD that regularly receives and investigates complaints
from the public.
HUD Response: HUD appreciates the commenters' suggestions. Because
of the variation in program requirements and the need for familiarity
with these requirements, each HUD program office that administers a
covered housing program will oversee enforcement of VAWA and all HUD
staff in these offices--at Headquarters and in HUD's Regional and Field
Offices will be trained on VAWA's requirements. HUD's Office of FHEO
will be involved in complaints where complaints also involve violations
of the Fair Housing Act.
Comment: Ensure immigrant victims are able to utilize VAWA
protections and access emergency shelters and transitional housing. A
commenter stated that the likelihood that an immigrant or LEP woman
will become a victim of domestic violence or sexual assault falls in
the range of 30 percent to 52 percent, and immigrant victims face
additional difficulties than other victims, such as potential
dependence on an abuser because of immigration status. The commenters
said immigrants, LEP individuals, and certain racial and ethnic
minorities have received services from transitional housing programs at
lower rates than white and African American victims, and a large number
of immigrant domestic and sexual violence victims have been turned away
from these programs.
The commenter said that one reason why immigrant victims have had
difficulties accessing transitional housing services is because several
programs have imposed means testing as a way to evaluate eligibility,
even though this is not required by HUD or other Federal law. The
commenter said this is problematic for immigrant victims because they
may be incapable of producing the required documentation, such as the
ability to secure work or proof of legal employment. The commenter
recommended that HUD include a provision in the implementing
regulations for VAWA 2013 that prohibits all means-testing from
programs that provide short term emergency shelter and transitional
housing programs for up to 2 years. The commenter said access to
emergency shelter and up to 2 years of transitional housing is
essential for immigrant victims because it can take up to 2 years for
an immigrant crime victim to prepare, file, and receive an adjudication
that provides work authorization. The commenter said this inclusion
would reflect VAWA 2013's new anti-discrimination protections.
The commenter asked that HUD require all HUD-funded emergency
shelter and transitional housing programs to be open to all victims of
domestic violence, dating violence, sexual assault, stalking, human
trafficking, child abuse, elder abuse and other U visa criminal
activity without regard to the victim's immigration status.\15\ The
commenter said that, in 2001, HUD issued a policy letter implementing
the Attorney General's Order regarding Programs Necessary to Protect
Life and Safety, which stated that HUD-funded programs that provide
emergency shelter and transitional housing for up to 2 years, are to
make these services equally available to all needy persons, including
individuals who are not `qualified aliens' without verification of
citizenship, nationality or immigration status.\16\ The commenter asked
that this letter be updated to: Extend applicability to all Federal
agencies funding emergency shelter and transitional housing, and not
just HUD; to reflect the full range of VAWA, T \17\ and U visa crimes
covered by VAWA and the Trafficking Victims Protection Act; to impose
any credible evidence standards, where no specific documents to types
of documentation should be required to support a crime victim's
application for emergency shelter or transitional housing; and to
incorporate federal anti-discrimination law requirements.
---------------------------------------------------------------------------
\15\ A U visa is a nonimmigrant status visa set aside for
victims of certain crimes who have suffered mental or physical abuse
and are helpful to law enforcement or government officials in the
investigation or prosecution of criminal activity. Congress created
the U nonimmigrant visa with the passage of the Victims of
Trafficking and Violence Protection Act (including the Battered
Immigrant Women's Protection Act) in October 2000. The legislation
was intended to strengthen the ability of law enforcement agencies
to investigate and prosecute cases of domestic violence, sexual
assault, trafficking of aliens and other crimes, while also
protecting victims of crimes who have suffered substantial mental or
physical abuse due to the crime and are willing to help law
enforcement authorities in the investigation or prosecution of the
criminal activity. The legislation also helps law enforcement
agencies to better serve victims of crimes. See http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status.
\16\ See http://www.vawnet.org/Assoc_Files_VAWnet/ImmigrantAccess.pdf.
\17\ The T Nonimmigrant Status (T visa) is a set aside for those
who are or have been victims of human trafficking, protects victims
of human trafficking and allows victims to remain in the United
States to assist in an investigation or prosecution of human
trafficking. See http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status.
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The commenter also recommended that HUD and other Federal agencies
establish grant conditions for transitional housing programs that
require compliance with Federal anti-discrimination laws and
nondiscrimination against victims
[[Page 80783]]
defined as underserved by VAWA. The commenter said that HUD and other
Federal agencies that fund transitional housing could require grant
recipients to revise their admission and eligibility policies to
incorporate best practices for promoting greater access to transitional
housing for victims of VAWA crimes, or provide additional points in
competitive grant processes for recipients that have adopted such best
practices. The commenter further said that all programs receiving
Federal funding for transitional housing should be required to report
to their funder the extent to which they are providing services to
immigrant, LEP, individual racial and ethnic minority, and other
underserved victims.
HUD Response: HUD appreciates these comments and notes that HUD,
HHS and DOJ recently updated its guidance regarding Programs Necessary
to Protect Life and Safety on August 5, 2016.\18\ HUD will also review
the other proposals and consider them for guidance or future
rulemaking.
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\18\ See https://www.justice.gov/ovw/file/883641/download.
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Comment: HUD should classify VAWA victims as ``chronically
homeless.'' A commenter stated that HUD should classify victims of
domestic violence, dating violence, sexual assault, stalking, human
trafficking, child abuse, elder abuse, and other U visa listed crimes
as ``chronically homeless.'' The commenter said that, because of the
high likelihood that domestic violence and other life-threatening
crimes can cause homelessness, these individuals and families should
automatically qualify as chronically homelessness and be eligible for
transitional housing programs and not be required to provide income
eligibility documentation in order to receive services. The commenter
said that HUD's final VAWA rule should consider extending the
chronically homeless definition to this category of immigrant and LEP
crime victims even if they have not at the time of application to the
transitional housing program left their abusive home for a safe haven
or emergency shelter.
HUD Response: HUD published its final rule on Defining Chronically
Homeless on December 4, 2015, at 80 FR 75791. This final rule results
from four years of careful consideration of public comments and
discussions with experts on how ``chronically homeless'' should be
defined based on the statutory definition of ``chronically homeless''
in the McKinney-Vento Homeless Assistance Act. Public comments were
solicited in response to a December 5, 2011 interim rule establishing
regulations for Emergency Solutions Grants Program (see 76 FR 75954),
in the Continuum of Care Continuum of Care Program interim rule,
published July 31, 2012 (77 FR 45422), from a May 30, 2012 convening
with nationally recognized experts, which was described in the Rural
Housing Stability Assistance Program proposed rule, and the March 27,
2013 proposed rule establishing regulations for the Rural Housing
Stability Assistance Program (see 78 FR 18726). The final rule defining
``chronically homeless'' explains the rationale for HUD's definition.
Comment: Instruct grantees to update documents to account for VAWA
protections. A commenter said HUD should instruct PHAs to amend
planning documents, leases, and house rules to incorporate a model
emergency transfer policy. The commenter said HUD should also instruct
owners of Sections 221d3, 236, 202 and 811 properties and project-based
Section 8 properties to revise their tenant selection plans and review
all tenant leases to ensure they contain language regarding VAWA
protections. Commenters said that HUD should require State and local
governments to revise their consolidated plans to address the VAWA
emergency transfer policy obligations as they relate to HOME
properties. Commenters further said that HUD should urge recipients of
HUD financing to work with the entity responsible for developing
Qualified Allocation Plans \19\ to include a plan that allows for
emergency transfers between housing types. Another commenter said the
final rule should require HUD funding recipients to include steps taken
to implement VAWA 2013's protections in consolidated plans and PHA
annual and five-year plans.
---------------------------------------------------------------------------
\19\ A Qualified Allocation Plan (QAP) is a federally mandated
planning requirement that states annually use to explain the basis
upon which they distribute their LIHTC allocations. Based on their
QAP, states establish preferences and set-asides within their tax
credit competitions so as to target the credits towards specific
places (such as rural areas) or types of people (such as elderly
households). Analysis of State Qualified Allocation Plans for the
Low-Income Housing Tax Credit Program examines how those preferences
and set-asides were used and changed based on content analysis of
1990 and 2000 Qualified Allocation Plans from nearly every state
along with discussions with the staff that prepared the plans. See
https://www.huduser.gov/portal/publications/hsgfin/analysis_of_sqa_plans.html.
---------------------------------------------------------------------------
HUD Response: As described earlier in this preamble, under this
final rule, descriptions of VAWA protections will be required in lease
terms or addenda or contracts, as specified in the regulations for the
HOME, HOPWA, ESG, CoC, and public housing and section 8 programs.
Owners would only be required to revise their tenant selection plans in
relation to this rule if there are changes to the plans resulting from
this rule.
HUD's final rule does not require PHAs to amend their documents, or
require State and local governments to revise their consolidated plans,
to address emergency transfer obligations. HUD notes that the HOME
regulations require participating jurisdiction to have written policies
and procedures that address several program requirements (for example,
underwriting and subsidy layering or rehabilitation standards) while
not requiring submission of those policies and procedures to HUD the
participation jurisdiction will need to comply with the new
requirements. HUD reviews all of its grantees to ensure compliance with
its regulations, and such reviews will include compliance with these
new VAWA regulations. VAWA emergency transfer policies may be reviewed
during onsite monitoring of the HOME program by staff of HUD's Office
of Community Planning and Development (CPD) in the Field Offices. As
described earlier in this preamble, this final rule provides that
emergency transfer plans must be made publicly available, whenever
feasible, and always available upon request.
Comment: HUD should update its guidance and documents to reflect
VAWA protections, and should update regulations when necessary.
Commenters said once HUD has developed an emergency transfer policy,
the relevant handbooks and guidebooks should be revised and a HUD
notice applicable to all of the programs issued. The commenter said HUD
should develop lease language applicable to all of the programs and
require that recipients of HUD funds adopt such leases that reference
the transfer policy. A commenter recommended that HUD amend the
applicable rules relating to lease provisions for each of the HUD-
covered programs and urged that HUD set forth specifically the
regulatory language that is required to incorporate VAWA's protections
and requirements into the leases and to publish the required VAWA lease
addenda. In addition, the commenter asked that translations of these
leases and lease addenda continue to be provided by HUD. A commenter
said HUD should be careful to add or include VAWA provisions whenever
changes to programs are made.
HUD Response: HUD will update existing guidance to reflect new VAWA
provisions. As noted in response to the preceding comment and earlier
in this
[[Page 80784]]
preamble, under this final rule, descriptions of VAWA protections will
be required in lease terms or addenda or contracts, as specified in the
regulations for the HOME, HOPWA, ESG, CoC, and public housing and
section 8 programs.
9. Costs and Burden
Comment: Housing providers should have some means of recuperating
costs for damages to property associated with a VAWA-related incident.
A commenter stated that if damages to a unit are caused by an instance
of VAWA violence, the housing provider should be authorized to use
reserves for replacement or residual receipts to repair such damage if
charging the resident is not appropriate or if a resident does not pay.
HUD Response: Means of recuperating costs for damages will vary
depending on the HUD-covered program. HUD notes that under CoC program
regulations, at 24 CFR 578.51(j), recipients and subrecipients may use
grant funds in an amount not to exceed one month's rent to pay for any
damage to housing due to the action of a program participant.
Comment: Changes to existing regulations will result in increased
burden for housing providers. Commenters stated that, previously, VAWA
protections had to be incorporated into the Housing Choice Voucher
Administrative Plan, the Public Housing Admissions and Continued
Occupancy Plan, and the public housing lease. Commenters said that
altering these plans or the public housing lease to reflect updated
definitions and requirements involves providing adequate public notice
and board approval, and changes in the public housing lease also
require that every household in public housing sign a new revised
lease.
Commenters expressed concern that HUD is publishing new regulations
in a time of historically low funding, and said that it would be
difficult to comply with new requirements. Commenters said that
language in the proposed rule suggests that the added cost to the
housing provider is primarily paperwork, but the costs of administering
the notification and documentation requirements will be significant,
and there will be costs in evaluating how resident's needs must then be
addressed, and then taking steps to address those needs. The commenters
said providers must establish an organizational framework to ensure
compliance with HUD's VAWA regulations, including the creation of a
document management system, adoption of policies, and the training of
staff, and the costs of these activities are in addition to emergency
transfer costs. Commenters asked HUD to consider how requirements to
implement VAWA could be made more efficient and effective. A commenter
said HUD's estimates of burden hours should take into account the
impact on the housing providers that must take various steps following
receipt of these forms.
A commenter said that, according to HUD's estimates, these new
regulations will impact over 208,000 covered housing providers
implementing assisted rental housing programs, and will impose an
additional administrative burden on those institutions of 4,392,189
hours annually, which amount to almost 2,112 full time equivalents each
year. The commenters said that, since no new funding is available, as a
result of VAWA's reauthorization and the new requirements imposed,
housing providers' human resources will require a substantial
reallocation of personnel to assure procedural compliance with VAWA and
such reallocation will be at the expense of core assisted housing
management tasks at a time when funding for assisted housing programs
is under extreme pressure. The commenter said housing agencies already
must make difficult decisions allocating human resources among
competing critical tasks, and this proposed rule will add to those
difficulties.
HUD Response: HUD is cognizant of the constraints within which
program participants must operate in the current budgetary environment,
and in this rule has sought to minimize burdens on housing providers
while implementing VAWA 2013. HUD notes that PHAs are required to
include any changes in the ACOP in the Annual Plan, and even Qualified
PHAs \20\ that only submit five-year plans must still hold annual
public hearings.
---------------------------------------------------------------------------
\20\ The Housing and Economic Recovery Act (HERA), Title VII,
Small Public Housing Authorities Paperwork Reduction Act exempted
qualified PHAs from the requirement to prepare and submit an annual
plan. A Qualified PHA is a PHA that: (1) Has a combined unit total
of 550 or less public housing units and section 8 vouchers; and (2)
is not designated troubled under section 6(j)(2) of the 1937 Act,
the Public Housing Assessment System (PHAS), as a troubled public
housing agency during the prior 12 months; and (3) does not have a
failing score under the Section 8 Management Assessment Program
(SEMAP) during the prior 12 months. Although HERA exempts qualified
PHAs from the requirement to prepare and submit and annual plan,
qualified PHAs must carry out certain other annual requirements,
including an annual public hearing. See http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/pha/qualified.
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Comment: Clarify whether housing providers bear the costs for
transfers. A commenter said that language in proposed Sec. 5.2009(c)
stating, ``. . . and for the covered housing provider to bear the costs
of any transfer, where permissible,'' is problematic, creates
uncertainty and risk of litigation, and should be deleted, even though
the language appears to be non-binding. The commenters said that the
term ``covered housing provider'' is not defined for this section and
could be construed to mean a State entity. Commenter said that a
mandate to have the State pay for costs associated with transfers is
not supported by statute, would be contrary to Executive Order 13132,
and could be unconstitutional. Commenters further said that ``costs of
transfer'' is not defined, and this phrase could mean many things.
HUD Response: The commenter is correct that Sec. 5.2009(c) is non-
binding. The section says that covered housing providers are encouraged
to take whatever actions are permissible and feasible, including
bearing the costs of transfers. As previously stated in this preamble,
housing providers will not be required to bear the costs of transfers,
but HUD maintains Sec. 5.2009(c) in the final rule to encourage
housing providers to take whatever actions they feasibly can to assist
victims of domestic violence, dating violence, sexual assault, and
stalking.
Comment: HUD should clarify the obligations of small entities. A
commenter said HUD provided only a cursory discussion of the rule's
impact on small entities, and a passing acknowledgement that small
providers may be unable to carry out emergency transfer plans or
bifurcation of leases. The commenter said this concept should be
highlighted in the preamble of the appropriate section and also covered
in the regulations. The commenter also said that if HUD refuses to
translate the required certification forms, the cost of providing
translations would fall disproportionately on small entities, a
potential violation of the Regulatory Flexibility Act.
A commenter said the rule's definition of ``covered housing
provider'' should clarify that small providers may be exempt from
certain requirements due to infeasibility, or at the very least
acknowledge that there are limitations based on the size of the covered
provider. In contrast, another commenter was concerned about language
in the proposed rule that states small entities ``are not required to
carry out'' bifurcation and emergency transfers ``that may be more
burdensome, and, indeed may not be feasible given the fewer number of
units generally managed by small entities'' Commenters were concerned
that this
[[Page 80785]]
language conflicts with the statute, which does not exempt any covered
housing provider from bifurcating leases or carrying out transfers
based on their size. The commenters said that, depending on the
situation, a small housing provider could be required to carry out a
lease bifurcation, even though doing so is technically discretionary
(e.g., in cases where there is a permanent protective order that
excludes the abuser from the premises). Other commenters said they do
not believe that ``small entity'' housing providers should
automatically be excused of any emergency transfer obligation and
should, at a minimum be required to examine whether there are safe and
available transfer options in their portfolios that could be offered to
survivors. The commenters said HUD must also include a definition of a
small entity.
HUD Response: As HUD noted in the proposed rule, VAWA 2013 does not
allow for covered housing providers who could be considered to be small
entities to provide fewer protections than covered entities that are
larger. HUD's assertion in the proposed rule that bifurcation is not a
mandate under VAWA 2013 or under these regulations does not preclude
the possibility that any provider, including a small entity, may be
required to bifurcate a lease in certain circumstances under State or
local laws. In addition, the fact that tenant transfers under the
emergency transfer plan are contingent upon whether there are safe and
available units to which victims of domestic violence, dating violence,
sexual assault, or stalking may transfer, and smaller housing providers
that own or manage fewer properties may not have the same abilities to
transfer victims, does not mean that smaller housing providers are
excused from emergency transfer obligations. Small housing providers
must transfer tenants who meet the criteria for an emergency transfer
when there is a safe and available unit to which they could transfer
the tenant, and must describe in their emergency transfer plans
policies to assist a tenant to make an emergency move when a safe unit
is not immediately available for a transfer. As small entities are not
statutorily exempt from any VAWA protections, HUD declines to define
them for purposes of this rule.
With respect to the issue of translation of documents, as noted
earlier in this preamble, HUD has stated that it will provide versions
of the certification form and notice of housing rights in different
languages.
10. Other Requirements and Protections for Victims and Survivors
Comment: The rule and notification provided to tenants and
applicants should provide that individuals can terminate a lease for
VAWA-related reasons. A commenter suggested that a housing provider
should be allowed to waive requirements for 30-day notices to vacate
where victims have provided documentation to certify their status as a
victim and want to move to escape abuse. This commenter also suggested
permitting housing providers to waive requirements for a review of
landlord history where contacting a previous landlord could put a
survivor at risk by exposing the survivor's current location.
HUD Response: HUD's final rule maintains the provisions in the
proposed rule at Sec. Sec. 92.359(e), 574.604(f), and 578.99(j), and
adds a provision for the Housing Trust Fund at 93.359(e), that a VAWA
lease term/addendum must provide that the tenant may terminate the
lease without penalty if a determination is made that the tenant has
met the conditions for an emergency transfer under this rule.
Comment: Clarify that housing providers should work with LEP
victims to ensure they understand their rights under VAWA. A commenter
stated that, in the preamble to the proposed rule, HUD said its LEP
guidance ``contains a four-part individualized assessment for
recipients to use to determine the extent of their obligations . . .''
The commenter said that, though this is an accurate description of the
guidance, such language could encourage housing providers to do only
what they determine is the minimum required. The commenter said HUD
should insert additional language that states that, in situations
involving domestic violence, dating violence, sexual assault, and
stalking, housing providers should do their best, given current
resources, to work with LEP victims to ensure that they are apprised of
their VAWA protections, even if those attempts go beyond steps
generally included in the recipient's language access plan. The
commenters urged HUD to emphasize that housing providers are to use
qualified, trained, and professional interpreters when interpreting
information concerning VAWA protections to LEP applicants and tenants.
Commenters further said that it should be clear that covered housing
providers have to orally communicate with LEP individuals in their
language, either through bilingual staff or interpreters. A commenter
said this is extremely important because LEP victims will likely have
follow-up questions, require assistance with filling out forms, and/or
need help accessing other rights and remedies. The commenter also said
that housing providers should be strongly discouraged from using
friends or family members to interpret, absent an emergency; and
alleged perpetrators and minor children should be completely prohibited
from interpreting. Commenters said that the final rule should require
housing providers to update existing language access plans to include
provisions for specifically serving LEP victims and their families.
HUD Response: Executive Order 13166 directs all federal agencies to
ensure that programs receiving Federal financial assistance provide
meaningful access to LEP persons. To ensure compliance with this
direction, DOJ's LEP Guidance four-factor analysis applies to the
programs and activities of Federal agencies.\21\ HUD's LEP guidance
complies with Executive Order 13166, and is consistent with the DOJ LEP
Guidance.\22\ Therefore, HUD cannot require recipients to go beyond
that which is required by law. The HUD-issued LEP guidance does require
that recipients take reasonable steps to ensure meaningful access to
LEP persons. This may include providing oral interpretation services,
hiring bilingual staff, and providing notices to staff and served
populations of the availability of LEP services.
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\21\ See http://www.lep.gov/guidance/guidance_DOJ_Guidance.html.
\22\ See https://www.gpo.gov/fdsys/pkg/FR-2007-01-22/pdf/07-217.pdf.
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HUD does require all recipients to provide the appropriate language
assistance to the populations that they serve, and adequately serve LEP
persons without delay. As the population needs and capacity of each
recipient differs, the four-factor analysis is intended to be flexible
to balance the need to ensure meaningful access by LEP persons, while
not imposing an undue burden on recipients, which includes small
businesses, small local governments and small nonprofit organizations.
HUD does encourage that LEP persons utilize the language assistance
services expressly offered to them by the HUD recipients, rather than
family or acquaintances.
Comment: VAWA protections should serve mixed status immigrant
families. A commenter asked that HUD extend VAWA protections to mixed-
status immigrant families, and noted that mixed-status LGBT immigrant
families are less likely to report unauthorized family members, and
survivors of domestic violence, dating violence,
[[Page 80786]]
sexual assault, and stalking may not seek appropriate action if they
fear a negative immigration result.
HUD Response: VAWA protections apply to tenants in mixed status
immigrant families as they apply to other tenants.
Comment: Abusive parties should be responsible for VAWA-related
costs. A commenter suggested that the abusive party in a household be
held responsible for the full amount of back rent, if any, and for the
current and upcoming rent so that the victim can move on to other
housing or remain in the home with a clean record.
HUD Response: HUD appreciates this suggestion but would need to
study its feasibility and effects before creating such a policy.
Comment: Clarify that VAWA 2013 provides the same or greater
protections than previously existed. A commenter said proposed Sec.
5.2011 should be amended to clarify that VAWA 2013 provides the same or
greater protections to survivors than those that existed at the time of
enactment of the first VAWA statute.
HUD Response: HUD agrees that VAWA 2013 provides expanded
protections to victims of domestic violence, dating violence, sexual
assault, and stalking, but HUD declines to add this statement in the
regulatory text.
11. Limitations of VAWA Protections
Comment: Explain the change that VAWA protections do not apply for
lease violations ``unrelated to'' an act of domestic violence to VAWA
protections do not apply for lease violations ``not premised on'' an
act of domestic violence. A commenter asked why HUD made this change in
terminology in the proposed rule, stating that the change substantially
limits the reach of VAWA protections by removing from such protection
those lease violations or incidents that may be in some way related to
domestic violence, and instead requires that VAWA protections be
premised on an actual act of domestic violence, dating violence, sexual
assault, or stalking.
HUD Response: VAWA 2013 uses the phrase ``not premised on'' to
clarify that VAWA protections do not limit the authority of housing
providers to evict or terminate assistance to a tenant for any
violation of a lease ``not premised on'' the act of violence in
question. The change in HUD's proposed rule tracks the statutory change
by providing in Sec. 5.2005 that nothing in the section limits any
authority of a covered housing provider to evict or terminate
assistance to a tenant for any violation not premised on an act of
domestic violence, dating violence, sexual assault, or stalking that is
in question against the tenant or an affiliated individual of the
tenant.
HUD disagrees that the new language limits VAWA protections. The
term ``premised'' better conveys that there must be a connection
between the alleged violation and the domestic violence to trigger the
protections of VAWA. In contrast, the term ``unrelated'' made it more
difficult for a covered housing provider to determine whether a
tenant's lease violation was related to an act of violence
necessitating VAWA protections. ``Premised'' is more exact, less
discretionary, and less open to misinterpretation. The term provides
covered housing providers with uniform guidance to protect victims of
domestic violence, while continuing to administer their program.
Comment: There is inconsistency when VAWA protections will or will
not apply and clarification is needed. A commenter stated that HUD's
proposed rule seems to apply a different standard of applicability of
the VAWA protections in defining those instances where the housing
provider is prohibited from denying or terminating assistance, and the
exceptions where the PHA or housing provider may deny or terminate
assistance. The commenter stated that proposed Sec. 5.2005(b) says
that the VAWA protections apply to victims of domestic violence
(applicants) and criminal activity ``directly related to'' domestic
violence (tenants); but proposed Sec. 5.2005(d)(2) now says the VAWA
protections do not apply to any violation that is not ``premised on''
an act of domestic violence. The commenter stated that, in deciding
whether the VAWA protections apply, housing providers must determine
whether the underlying act was ``directly related'' to domestic
violence, or ``premised on an act'' of domestic violence, but the act
could be directly related to domestic violence without being premised
on an act of domestic violence.
HUD Response: The usage of the terms ``not premised on'' and
``directly related'' in the proposed rule reflect the usage of these
terms in VAWA 2013. HUD disagrees that the usage of these terms create
a conflict in terminology. As noted in response to the preceding
comment, HUD interprets ``premised on'' to mean that a logical nexus
must exist between the alleged violation and the domestic violence.
Therefore, the term ``not premised on'' means that there is not a
logical nexus between an alleged violation and domestic violence.
12. Confidentiality
Comment: Provide technical assistance on maintaining the privacy of
VAWA documentation. Commenters emphasized the importance of maintaining
confidentiality and privacy with respect to a victim of a VAWA crime,
as the most dangerous time for a victim of domestic violence is when
the victim takes steps to leave a relationship with the abuser.
Commenters said many victims are stalked for years after having escaped
from their partners, and the severity of this ``separation violence''
often compels the victim to stay in abusive relationships rather than
risk greater injury. Commenters said victims need assurances of
confidentiality in order to believe they can safely access their rights
and supportive options, and asked HUD to stress the importance of
confidentiality to housing providers. Commenters said that, as the
transfer processes begins to be used, it is extremely important that
all owners, managers, landlords, and PHAs understand their
confidentiality obligations.
Another commenter said it would be helpful for HUD to provide
technical assistance on matters such as: How to maintain an auditable
trail while also protecting the privacy of details of a tenant's
status; whether VAWA documentation should be retained separately from
the tenant file, and if so how actions such as transfers should be
documented in the tenant file (for example, listed as VAWA or
``emergency circumstances'' more broadly); and how to maintain privacy
in electronic records, including the new address for the household, and
establishing safeguards for information accessible to agency staff.
HUD Response: HUD understands the importance of maintaining
confidentiality under VAWA and thanks commenters for these comments and
will take steps to ensure that housing providers understand their
obligations with respect to maintaining confidentiality.
Comment: All entities should be required to maintain
confidentiality. A commenter said that, at various points, the
conforming regulations for the covered housing programs state that
confidentiality must be maintained by the entity that obtains the
information from the victim. The commenters said this language must be
expanded so that confidentiality is guaranteed even if a victim gives
the information to the wrong party or a housing provider mistakenly
gains access to this information. Commenters recommended that HUD's
VAWA regulations state that
[[Page 80787]]
any entity that receives the information concerning the victim's status
as a victim should be required to maintain confidentiality under VAWA.
HUD Response: HUD believes that the confidentiality provisions in
VAWA 2013 and in this rule sufficiently protect information that
individuals might otherwise not share with their housing providers, out
of fear of disclosure, and HUD thus declines to change the
confidentiality provisions in the rule as commenter suggested.
Comment: Clarify how VAWA's confidentiality protections will apply
to shared databases. Commenters commended HUD for saying, in proposed
Sec. 5.2007(c)(2) that covered housing providers shall not enter
information into any shared databases. Other commenters stated that, as
coordinated access becomes a core component of the housing process in
Continuums of Care, there has been a move to utilize shared databases/
HMIS. Commenters said HUD should clarify, in the regulations, that
covered housing providers shall not enter confidential information
under VAWA into shared databases, including HMIS. A commenter expressed
concerns about the reduced access to homelessness services for
survivors who receive services from the domestic violence program and
do not enter the survivor's information into an HMIS/shared database.
The commenter recommended including a provision in the regulation that
states a covered housing provider cannot deny a survivor access to
services for refusing to permit the inclusion of confidential
information in a shared database.
Other commenters recommended clarifying, in proposed Sec.
5.2007(c)(2), that all methods of information sharing are prohibited,
and cross referencing this prohibition in the Notice of Occupancy
Rights. Commenters said Sec. 5.2007(c)(2) should be revised to say
that covered housing providers shall not disclose, or ``reveal or
release'' such (confidential) information. Commenter recommended
revising Sec. 5.2007(c)(2)(i) to say that such information could be
disclosed when requested or consented to ``by an individual in an
informed, written, and reasonably time-limited release.''
In contrast to these commenters, a commenter said that the
prohibition against entering ``any'' information submitted by the
tenant to the covered housing provider into a shared database raises
practical operating concerns. Commenters said that while maintaining
confidentiality is important, covered housing providers must be able to
demonstrate compliance with occupancy requirements, including
documenting requests for unit transfers, for example. A commenter said
many housing providers make use of software programs to manage tenant
information, and, presumably, a simple notation of ``VAWA'' entered
into a database field to denote the reason for a unit transfer request
would not violate the victim's confidentiality, and such documentation
should be re-considered by HUD.
HUD Response: Housing providers must comply with any existing
confidentiality provisions that apply to them, in addition to
confidentiality provisions provided under this rule and any relevant
guidance issued in accordance with this rule.
HUD declines to amend the Notice of Occupancy Rights and these
regulations to broadly state that all methods of information sharing
are prohibited and to say that covered housing providers shall not
reveal of release (in addition to disclosing) confidential information.
However, as discussed above, HUD has revised 24 CFR 5.2007(c)(2)(i) to
state that disclosure must be requested or consented to in writing by
the individual in a time-limited release. As discussed above, HUD
believes that the confidentiality provisions in VAWA 2013 and in this
rule sufficiently protect information that individuals might otherwise
not share with their housing providers, out of fear of disclosure. As
discussed earlier in this preamble, HUD uses the term ``disclose'' to
encompass revealing or releasing.
Rule Change: HUD has revised 24 CFR 5.2007(c)(2)(i) to state that
disclosure must be requested or consented to in writing by the
individual in a time-limited release.
Comment: Disclosure of confidential information may be necessary
under certain circumstances. A commenter stated that the
confidentiality provisions in the rule should be revised to permit
disclosure of the fact that the individual is a victim of domestic
violence to law enforcement and other government or social services
agencies, as necessary, in order to secure the protections set forth in
the proposed rule. Another commenter said blanket statements about
total non-disclosure are not realistically tenable, and perhaps some
redacted version of the VAWA-related need for an emergency transfer or
negotiated ``termination,'' and some certification about non-disclosure
of the new location can and should be placed in the tenant file. The
commenter suggested that this should be the topic of a facilitated
stakeholder discussion to more clearly identify and explore options and
recommendations from housing providers, victim advocates and others.
A commenter said that, because HOME-grantees are responsible for
ensuring HOME-funded developments are complying with all program
requirements, HUD must clarify how the housing provider can responsibly
share information about a VAWA claim with its regulatory oversight
agency without violating any confidentiality concerns. Another
commenter said it is common practice for housing providers to document
in their business system requests and actions taken for administrative
purposes, and covered housing providers may also consult with sources
of third-party documentation regarding VAWA incidents, including but
not limited to police, court officials and/or medical/social service
providers. The commenter said the documentation of such incidences in
business systems or communications with third-party verification
sources should not be considered a violation of the confidentiality
provision.
HUD Response: This final rule maintains the confidentiality
provisions from VAWA 2013. Of the exceptions to the confidentiality
provisions that were enumerated in VAWA 2013, there is no specific
exception for disclosure to law enforcement or government agencies.
However, where disclosure of that fact that somebody is a victim of a
VAWA crime is necessary to secure VAWA protections, the individual
requesting VAWA protections may consent to the disclosure.
Comment: Clarify the scope of VAWA's confidentiality provisions. A
commenter asked whether the HCV's prohibition from disclosing
information about the specific covered act, which prompted the move,
applies to the owner of the property being vacated. Another commenter
said it is unclear why HUD is proposing to elevate confidentiality of
VAWA information above that of Enterprise Income Verification (EIV),
which is arguably of equal importance, and this raises liability
concerns for covered providers who may make an unintentional error.
HUD Response: VAWA's confidentiality provisions apply to covered
housing providers, which, for the HCV program, include both the PHA and
the owner. This rule's confidentiality provisions are mandated by VAWA
2013 and do not conflict with EIV system.
Comment: Explain where a housing provider must keep VAWA-related
documents. A commenter asked whether VAWA documents have to be kept in
a separate location, outside of a
[[Page 80788]]
manager's office, or have the information maintained in a file separate
from a resident's file.
HUD Response: This rule does not require housing providers to
maintain VAWA-related documents in a particular location. Housing
providers, using the resources they have, should determine the best
strategy for maintaining confidentiality in accordance with VAWA 2013.
Comment: Programs should honor and keep confidential a tenant's
different name or gender identity marker. A commenter expressed concern
that individuals or covered housing providers may not understand the
importance of an LGBT individual's necessity for privacy when dealing
with gender identity markers or the individual's name change. The
commenter stated that disclosure may lead to possible harm, more
trauma, and a reluctance to seek help if the survivor believes that
they will be ``outed.'' The commenter said disclosure by family
members, the perpetrator, or others should be limited by the survivor's
right to confidentiality, and housing providers should not be able to
share information provided by parties who are not the tenant seeking
protections.
HUD Response: The rule's confidentiality provisions are those
provided in VAWA 2013, and are designed to protect information that any
tenant or applicant shares with housing providers in order to obtain
VAWA protections and remedies. All such information is subject to very
strict confidentiality requirements.
Comment: Confidentiality provisions should be included in program-
specific regulations. A commenter said recordkeeping is an essential
element in ensuring confidentiality, and confidentiality and
documentation regulations should be built into existing regulations for
covered housing programs. The commenter said that, without the cross-
references, the housing providers could maintain recordkeeping and
information entering, storage, and disclosure practices that are built
into their practices.
A commenter said existing regulations require PHAs to provide
available information to a landlord regarding the prior residence of a
tenant and information regarding prior tenancy history, and this can
threaten the health and safety of an individual or family that is
fleeing violence or abuse. The commenters recommended changing HCV and
PBV regulations on tenant screening at Sec. 982.307(b)(4) and Sec.
983.255(d) to say that the PHA shall maintain the confidentiality of
any information provided by the applicant relating to domestic
violence, dating violence, sexual assault, or stalking, and if the
applicant is a victim, the PHA shall not provide any information to an
owner or landlord regarding current or prior landlords, addresses, or
tenancy history subject to 24 CFR 5.2007(c).
The commenter recommended that Sec. 91.325(c)(3) of HUD's existing
regulations be changed to say that the State will develop and implement
procedures to ensure the confidentiality of records pertaining to any
individual who is a victim of family violence, domestic violence,
dating violence, sexual assault or stalking under any project assisted
under the ESG program, including those who have received VAWA
protections. The commenter also recommended amending Sec. 578.103(b)
to say that all records containing protected information of those who
apply for Continuum of Care assistance will be kept confidential and
that VAWA-related information will not be entered into shared
databases, and to reference VAWA regulations in part 5 and the VAWA
statute, and to reference VAWA regulations and the statute in
Sec. Sec. 580.31(g), 579.304, and 579.504 of HUD's regulations.
HUD Response: HUD declines to revise the regulations to broadly
state that if an applicant is a victim of domestic violence, dating
violence, sexual assault or stalking, a PHA shall not provide any
information to an owner or landlord regarding current or prior
landlords, addresses, or tenancy history. This prohibition could limit
a PHA from providing other landlords and owners with relevant and
necessary information about a tenancy that is unrelated to a VAWA
crime. Sections 982.307(b)(4) and 983.255(d) of this rule state that
the VAWA protections apply in cases involving a victim of domestic
violence, dating violence, sexual assault, or stalking for tenant
screening in the HCV and PBV programs.
Section 91.325(c)(3), pertaining to certifications for the ESG
program, and the parallel provision in Sec. 91.225, implement a
certification requirement in the McKinney-Vento Act that is separate
from VAWA protections. The ESG and CoC program rules at Sec. Sec.
576.409 and 578.99(j), respectively, contain provisions about the
applicability of VAWA's general confidentiality requirements in Sec.
5.2007, and provide that the recipient or subrecipient can limit
receipt of documentation by an owner to protect an individual's
confidentiality. HUD declines to include additional confidentiality
provisions for the ESG and CoC programs, as described by the commenter.
13. Program-Specific Concerns
a. Community Planning and Development (CPD) Programs
Comment: Documentation and transfer requirements for the CoC and
RHSP programs should be consistent with general VAWA requirements.
Commenters said the preamble states that CoC regulations currently
provide for transfer of tenant-based rental assistance for a family
fleeing domestic violence, dating violence, sexual assault, or stalking
at Sec. 578.51(c)(3) and documentation requirements at Sec. 578.103,
and a similar option is provided in the Rural Housing Stability
Assistance program at Sec. 579.216(c)(2). The commenters stated that,
as these regulations pre-date the passage of VAWA, it is important that
they be amended to reflect the transfer and documentation requirements
in VAWA, and HUD should ensure that the requirements are consistent to
improve compliance and provide greater protection for survivors.
Commenters said the documentation requirements in the CoC and RHSP
rules far exceed the VAWA standard and will likely further endanger
victims. Commenters said this rule should not maintain different and
more demanding documentation requirements for ``original incidence''
and ``reasonable belief of imminent threat of further domestic
violence,'' but rather should simply allow a victim to attest to the
violence or assault. Specifically, commenters requested that Sec. Sec.
578.51, 578.103, 579.216, and 579.504 be amended to reference VAWA
requirements.
The commenters said that once these documents are collected it is
essential that records are kept confidential, not included in shared
databases, and any records to establish status as a victim should be
noted in files by employees and then destroyed or returned to the
victim.
HUD Response: Section 578.7 of this rule provides that CoCs must
develop an emergency transfer plan to coordinate emergency transfers
within the geographic area. Existing regulations, as cited by the
commenters, allow for the transfer of tenant based assistance to a
separate geographic area. HUD maintains these provisions for moving
with tenant based rental assistance as a separate, but complementary,
option that is available to victims who are at imminent risk of future
harm. In some situations, it may be easier to move an existing voucher
than to invoke the emergency transfer track, and HUD wishes to maintain
this flexibility.
[[Page 80789]]
As explained earlier in this preamble, the 2013 reauthorization of
VAWA occurred prior to the publication of the RHSP proposed rule and
HUD will include applicable VAWA provisions on the RHSP final rule.
Comment: The ESG and CoC regulations should provide that recipients
and subrecipients must establish a written policy that allows victims
to seek their assistance, and HUD should draft such model policy.
Commenters pointed to the ``optional policy'' in the proposed CoC and
ESG regulations regarding how a survivor might prevent a landlord from
taking unlawful actions against the survivor, and asked HUD to draft a
model policy to maintain consistency. Commenters recommended amending
Sec. Sec. 576.407(g)(4) and 578.99(j)(5) to say that recipients or
subrecipients ``must,'' and not ``may'', establish a written policy
that allows program participants (the individual beneficiary) to seek
the recipient's assistance in invoking VAWA protections, and adding
that nothing in this policy prohibits the participant from seeking
legal counsel.
HUD Response: This final rule maintains the option for recipients
and subrecipients in ESG and CoC to limit receipt of documentation by
an owner to protect an individual's confidentiality. See Sec. Sec.
576.409 and 578.99. However, HUD no longer includes regulatory language
discussing the ``optional policy'' because whether the recipient or
subrecipient establishes such a policy, the program participant would
not be prohibited from asking for the recipient's or subrecipient's
help to ensure owners comply with the VAWA requirements that are
incorporated into their contractual agreements. Establishing such a
policy is not a requirement in other HUD-covered programs involving
intermediary parties, and requiring such a policy could result in
administrative confusion for providers administering multiple types of
HUD assistance.
To assist tenants, HUD adds to the ``Notice of Occupancy Rights'' a
provision notifying tenants that if a covered housing provider fails to
comply with the requirements in the notice, or the tenant needs
assistance, the tenant can contact any applicable intermediary or HUD.
Comment: VAWA incidents must be considered when determining whether
a program participant is in compliance with RHSP and CoC regulations. A
commenter said that, in both the RHSP and CoC program, participants
must be in compliance with the program in order to have the option to
transfer their assistance to another community. The commenter said it
is important for HUD to provide guidance and training on the reasons
why someone might seem out of compliance with a program, as the actions
of perpetrators can cause a victim to seem out of ``program
compliance.'' The commenters said that for example many perpetrators
control finances, which could cause victims to miss rent payments, and
abusers may also damage property and exert other controls over the
victim that result in violations of program rules.
HUD Response: HUD thanks commenters for these suggestions and will
take them into account for guidance and training to program
participants.
Comment: Clarify whether additional lease requirements apply when
tenant-based rental assistance is used for homelessness prevention
under the ESG and CoC programs. Commenters recommended that in
instances where the lease would be amended to reflect the rental
assistance, the same VAWA amendments that are in the leases and rental
agreements at proposed Sec. Sec. 576.106(e) and (g) and Sec.
578.99(j)(6) should apply. Commenters said that in instances where no
changes are made to the lease, recipients and subrecipients should
include the notice of VAWA rights in communication with the participant
and in any communication to the landlord or owner. Commenters further
stated that in Sec. Sec. 576.106 and 578.99(j)(6), HUD should clarify
that owners and landlords may continue to include the VAWA protections
after the assistance has ended, as this will benefit survivors and also
keep consistency across owners' properties.
Another commenter recommended that there be a lease requirement
that the perpetrator cannot be listed on the new lease, and if there is
a restraining order placed on the perpetrator by the victim, the victim
should be required to honor that restraining order. The commenter also
said the lease should require that the unit must not be substandard
housing.
Other commenters said they do not support including additional
lease requirements, as this can discourage private landlord
participation in programs and have the unintended effect of making it
more difficult for all families, and not just victims, to find housing.
A commenter stated that, for ESG tenant-based rental assistance, the
subrecipient is currently not responsible for reviewing the lease
between the program participant and the owner, and, structurally, it
makes more sense to have conditions of ESG program participation in the
rental assistance agreement, as HUD has outlined in proposed Sec.
576.106(e), and not require provisions in a lease. The commenter said
that, alternatively, HUD could elect to not require either the rental
assistance agreement or the lease to contain VAWA 2013 requirements
where there is only short-term assistance, which would be in alignment
with requirements in the HOPWA program where per proposed Sec.
574.330, VAWA does not apply to short-term housing.
HUD Response: If a participant is receiving ongoing homelessness
prevention in an existing unit, the rental agreement between the
landlord and the recipient or subrecipient will contain the required
VAWA provisions. In instances where a participant is receiving
homelessness prevention in a new unit or a new lease will be executed,
then the VAWA protections will be incorporated with the lease and the
participant will be covered by both the rental agreement and a lease
and the recipient will have the option of extending the VAWA
protections after the provision of assistance ends. However, HUD will
not require the recipient to have to extend the provisions after the
assistance ends. Some landlords are reluctant to work with individuals
and families that are homeless or formerly homeless and imposing
additional lease requirements as a condition of accepting our funds
that then continue after HUD funds are made available makes it more
difficult to recruit landlords.
HUD declines to impose additional lease requirements, including
that the perpetrator cannot be listed on the new lease and victims must
honor restraining orders.
Comment: It is unclear how certain VAWA requirements would apply to
ESG assistance. Commenters said that, in the case of homeless
prevention, funds are used to maintain persons in their rental housing,
such persons are already under a lease agreement, and it is not clear
how VAWA provisions apply in this instance or how violations would be
handled. Commenters said that providing notice to recipients of ESG
rental assistance should be limited to the period for which the
assistance is provided, and the requirement to create an emergency
transfer plan should not apply to short term ESG assistance.
Another commenter said that it administers ESG funding for shelter
operations, rapid re-housing and homeless prevention. The commenter
said that, in the case of the rapid re-housing, it processes payments
to owners and will assume responsibility for providing the recipient
with a copy of the agreements with private owners who will provide
permanent housing for
[[Page 80790]]
the participant. The commenter said that it has no problem requiring
the owner to advise when a notice to vacate is issued during the term
of the agreement, but there is no mention of a penalty if the private
owner fails to provide this notice and, since payment will have been
made by then, there would be no recourse to the commenter.
HUD Response: If a tenant requests homelessness prevention
assistance for a new unit, then VAWA protections would be included in
the new lease they are signing. The tenant lease will also supplement
the ESG recipient rental agreement in this case. In a scenario where a
new lease must be executed, then the recipient or subrecipient is
required to put the requirements into the lease. The recipient or
subrecipient has the option of writing the lease in such a way so that
those extra requirements expire when the ESG assistance ends. In a
homelessness prevention assistance scenario, the protections are in the
rental assistance agreement so they would cease to apply when the
rental assistance agreement ends, which is when the assistance ends.
However, the recipient or subrecipient has the option of writing the
lease so that the protections continue to apply even after the
assistance ends.
This rule's requirements, including the emergency transfer
requirements, apply to both short-term and medium-term ESG rental
assistance. Even short-term rental assistance is assistance that would
trigger the requirements of this rule.
Comment: Clarify whether tenants in HOME-assisted units are covered
by VAWA. Commenters said the notice of occupancy rights refers only to
tenants who are receiving rental assistance, but the commenters
expressed belief that tenants in HOME-assisted units (who are not
receiving rental assistance) are also covered by VAWA protections. The
commenters encouraged HUD to review the proposed rule through the eyes
of a HOME-grantee to ensure that all provisions apply appropriately
when the federal assistance is used solely for development assistance.
HUD Response: Section 5.2001(b)(1) of this rule explains that, for
project-based assistance, the assistance may consist of such assistance
as operating assistance, development assistance, and mortgage interest
rate subsidy. Further, the revisions to the HOME regulations state that
the VAWA requirements apply to ``all HOME tenant based rental
assistance and rental housing assisted with HOME funds.'' Under the
HOME program, rental housing assisted with HOME funds is rental housing
that has been newly constructed or acquired or rehabbed with HOME
funds. Therefore, when HOME assistance is provided ``solely for
development assistance,'' VAWA would apply. HUD has revised the Notice
of Occupancy Rights and the model emergency transfer plan to clarify
that the VAWA rights, rules and remedies apply to HUD assistance
generally for covered programs.
Comment: Confirm that HOME-funded rental projects begun prior to
the effective date of the rule are not subject to the rule, and provide
time to implement requirements. A commenter asked for confirmation that
Sec. 92.359(b) exempts HOME-funded rental projects begun prior to the
effective date of HUD's final rule from the rule's requirements.
Another commenter asked that HUD provide an implementation period of at
least four months to draft loan, grant, and covenant documents,
policies, lease addendums, and other necessary documents.
HUD Response: Section 92.359(b) provides that compliance with the
regulations set forth in this rule is required for any tenant-based
rental assistance or rental housing project for which the date of the
HOME funding commitment is on or after the effective date of this rule.
However, as HUD has stated several times, in publicly issued documents
since 2013, and in the preamble to the proposed rule and in the
preamble to this final rule, basic statutory core protections of VAWA
were effective upon enactment of VAWA 2013. HUD has made clear that
regulations are not needed to make these core statutory protections
applicable, and the core requirements do apply to HOME funding
commitments made prior to the effective date of this rule. Therefore,
HUD has amended Sec. 92.359 to make clear the application of the core
protections at the time the statute passed.
As discussed in the DATES section of this rule and overview of
changes, the compliance date for completing an emergency transfer plan,
under Sec. 5.2005(e) or applicable program regulations, and then
providing emergency transfers under the emergency transfer plan is no
later than May 15, 2017.
Rule Change: HUD has revised 24 CFR 92.359 to provide that the core
statutory protections of VAWA applied upon enactment of VAWA 2013, and
compliance with the VAWA requirements that require regulations apply to
tenant-based rental assistance or rental housing project for which the
date of the HOME funding commitment is made on or after the effective
date of this rule.
Comment: Remove proposed effective dates for CPD programs.
Commenters urged HUD to remove the proposed effective dates for VAWA
compliance that appear in the proposed rules for the programs
administered by the Office of Community Planning and Development (CPD)
that restrict VAWA implementation to applicants and tenants in future
assisted units or with future tenant-based contracts and rental
assistance. A commenter said that HUD does not explain why any HUD
program would require such effective dates, and there is no indication
that Congress anticipated or directed HUD to implement VAWA 2013 only
for future tenants and applicants, especially since HUD implemented
VAWA 2005 for all applicants and tenants in existing as well as future
assisted units.
The commenter said the proposed CPD effective dates are contrary to
current HUD policy, as HUD has already reached out to participants in
the HUD programs to advise them that the basic protections of VAWA were
currently in effect, and do not require notice and comment rulemaking
for compliance. The commenter said that in December 2013, HUD advised
housing providers with HOME funds to comply with the basic VAWA
protections, so it is contradictory for HUD to indicate in the Proposed
Rule that VAWA only applies to units funded by the HOME program
prospectively.
HUD Response: As HUD noted in response to the preceding comment,
the core statutory protections of VAWA applied upon enactment of VAWA
2013, to all covered HUD programs without the necessity of rulemaking.
The HOME Program is different than many other covered programs in that:
(1) HOME funds the construction or rehabilitation of housing and does
not provide ongoing operating or rental assistance; and (2) HUD does
not have a contractual relationship with the housing provider--the HOME
written agreement is executed by the housing provider and the HOME
participating jurisdiction. The HOME agreement reflects the regulations
in effect at the time HOME funds are committed to the project. There is
not now and never was a requirement that HOME written agreements
require project owners to comply with ``HOME regulations as they may be
amended.'' HUD cannot require participating jurisdictions to amend
existing HOME agreements and participating jurisdictions would have no
power to compel project owners to agree to amendments. In 2013, HUD
made comprehensive changes to the
[[Page 80791]]
HOME regulations. Those changes are only applicable to projects to
which HOME funds were committed after the effective date of the rule.
The applicability of the VAWA in HOME is consistent with HUD's
regulatory authority. The remaining VAWA requirements apply
prospectively to all HOME rental housing for which a commitment of HOME
funds is made (meaning, the required written agreement is executed)
after the regulation becomes effective. While HUD recognizes that,
except for the core statutory protections of VAWA HOME-assisted rental
housing is not subject to the regulatory requirements unless included
in the written agreement with the participating jurisdiction, HUD
strongly encourages owners of HOME-assisted rental housing to comply
with the regulations to the maximum extent feasible.
For similar reasons, except for the core statutory protections of
VAWA, compliance with the VAWA requirements are not required for HOPWA
projects with funding commitments earlier than the effective date of
this rule, CoC grants awarded prior to the effective date of this rule,
or ESG rental assistance agreements that are not executed or renewed
after the effective date of this rule.
Rule Change: HUD has revised 24 CFR 574.604, 576.106, 576.409, and
578,99 to state that the core statutory protections of VAWA applied
upon enactment of VAWA 2013, and compliance with the VAWA requirements
that required regulations apply prospectively to HOPWA funding
commitments, CoC awards, and ESG rental assistance agreements.
Comment: Clarify applicability of certain VAWA provisions to the
HOME program. A commenter said that in order to make clear that VAWA
applies in the context of evictions in the HOME program, HUD should add
a reference to VAWA in current Sec. 92.253(c), which provides that
there must be good cause for tenancy terminations. The commenter
recommended that HUD state that an owner's tenant selection policies
may not deny a family admission to the HOME program solely on the basis
of criminal activity directly relating to domestic violence. In
addition, the commenter stated that proposed Sec. 92.359(c)(2)
provides that the entity administering the HOME tenant-based assistance
program must provide the tenant with the VAWA rights notice when ``the
entity learns that the tenant's housing owner intends to provide the
tenant with notification of eviction.'' The commenter recommended that
HUD's final rule add the requirement that the owner provide to the
family the VAWA rights notice along with the eviction notice. The
commenter said it would be simpler and more efficient to impose the
notice obligation on both the owner and the entity administering the
program.
The commenter also said HUD's proposed regulations for lease
bifurcation in the HOME program must be amended to ensure that victims'
protections after lease bifurcations are consistent. The commenter said
HUD does not explain why the general ``reasonable time'' provisions in
24 CFR part 5 do not apply to the HOME program and why the different
system in proposed Sec. 92.359(d) is necessary. The commenter said
that by allowing participating jurisdictions to craft their own
bifurcation policies, victims in the HOME program can have different
lease bifurcation rights, and this will cause great confusion among
victims. The commenter said proposed Sec. 92.359(d) does not reflect
VAWA's requirement that tenants who remain after bifurcations be
provided with a ``reasonable time'' to establish eligibility for the
existing program or for other covered housing programs, and this latter
requirement must be added to the HOME regulations. In addition,
commenters said that while proposed Sec. 92.359(d)(2) mentions that
remaining tenants who cannot establish eligibility for HOME project-
based assistance are entitled to at least 60 days to find other
housing, this additional time to find other housing is not available
for HOME tenant-based assistance. The commenter also suggested adding
language to the HOME regulations similar to what exists for the HCV
program--the housing provider must ensure that the victim retains the
assistance.
The commenter said it is unclear why HUD included proposed Sec.
92.359(d)(1)(iii), and recommended its deletion. The commenters advised
that it did not understand why the VAWA protections for the remaining
tenants would differ if the existing assistance were tenant-based
versus project-based. In addition, the commenter cited proposed Sec.
92.359(e) and urged that HUD, and not the participating jurisdiction,
develop the VAWA lease addendum, as this may be the only opportunity
for tenants to become aware of their housing responsibilities and
rights under the law and is important for quality control. The
commenter said the basic elements of the lease addendum can be modeled
after the VAWA 2005 lease addenda for the Section 8 housing programs,
and this could serve as a template for other programs newly covered by
VAWA. The commenter said that issues that must be decided locally can
be identified and the unique information left blank to be completed by
the appropriate covered housing provider. The commenter also commended
HUD for allowing victims who receive emergency transfers to terminate
their leases without penalty, and recommended that this provision be
expanded for the HOME program to permit a victim in VAWA-covered
housing to terminate the lease upon a 30-day written notice, except
this 30-day notice would not be required in emergency transfer
situations.
In addition, the commenter said proposed Sec. 92.359(e) states
that the owner must notify the entity administering HOME tenant-based
program prior to starting a lease bifurcation, but the commenter is
concerned this will cause unnecessary delay. The commenter recommended
the provision say that when HOME tenant-based rental assistance is
provided, the lease term/addendum must require the owner to notify the
entity administering the HOME tenant-based rental assistance when the
owner bifurcates a lease and in non-lease bifurcation circumstances
before the owner provides notification of eviction to the tenant.
HUD Response: It is unnecessary to add a reference to Sec.
92.253(c) to make it clear that VAWA applies to terminations of
tenancy, as Sec. 92.359 of this rule clearly specifies that VAWA
requirements apply to HOME tenant-based rental assistance (TBRA) and
rental housing assisted with HOME funds. Similarly, it is unnecessary
to specify that an owner's tenant selection policies may not deny a
family admission to the HOME program solely on the basis of criminal
activity directly relating to domestic violence because Sec.
92.253(d)(7) includes this in stating that tenant selection policies
must comply with VAWA requirements.
Further, because a housing owner must notify the participating
jurisdiction prior to initiating an eviction, the participating
jurisdiction will be able to provide the notice in a timely manner and
HUD believes it is unnecessary to require that the housing owner also
provide the notice along with the eviction notice.
This final rule revises Sec. 92.359 to reflect the fact that, for
both HOME-assisted rental projects and HOME TBRA, it is unnecessary for
the participating jurisdiction to establish or implement a policy that
specifies the reasonable time period for a remaining tenant to
establish eligibility. The entire household must be qualified to reside
in a HOME-assisted unit or to receive
[[Page 80792]]
HOME TBRA, so any members of the household are already determined to be
eligible. Further, being over income is not a permitted basis for
eviction under the HOME program. The owner will review the household's
income as usual at recertification. Thus, there is no need to establish
a reasonable time period for remaining tenants to establish eligibility
for the housing if a lease is bifurcated. HUD agrees with commenter
that Sec. 92.359(d)(1)(iii) in the proposed rule should be deleted and
has done so in this final rule. Similar to the provision in Sec.
982.315, regarding family break-up in the housing choice voucher
program, which states that the housing provider must ensure that the
victim retains assistance, Sec. 92.359(d)(2) of this rule provides
that if a tenant receiving HOME tenant-based rental assistance is
removed from the lease through the bifurcation, any remaining tenant(s)
are eligible to retain the HOME tenant-based rental assistance.
HUD declines to implement commenters' suggestions regarding the
VAWA lease term/addendum. The requirement in Sec. 92.359(e) that a
participating jurisdiction must develop the lease term/addendum is
consistent with HOME regulations, but this rule specifies what the
lease term/addendum must include. Further, HUD declines to include a
section in this rule permitting a victim in VAWA-covered housing to
terminate the lease upon a 30-day written notice, which would not be
required in emergency transfer situations. Such a provision may
conflict with State and local law and HUD will not implement it at this
time without seeking further comment. In addition, this final rule does
not revise the provision in the proposed rule that the owner must
notify the participating jurisdiction prior to starting a lease
bifurcation. The participating jurisdiction is responsible for
compliance with the HOME requirements and, given this oversight role, a
housing provider cannot initiate such changes without prior
notification to the participating jurisdiction.
Rule Change: This final rule revises Sec. 92.359(d) to provide
that if a family living in a HOME-assisted rental unit separates under
24 CFR 5.2009(a), the remaining tenant(s) may remain in the HOME-
assisted unit, and if a family who is receiving HOME tenant-based
rental assistance separates under 24 CFR 5.2009(a), the remaining
tenant(s) will retain the HOME tenant-based rental assistance and the
participating jurisdiction must determine whether the tenant that was
removed from the unit will receive HOME tenant-based rental assistance.
Comment: Clarify applicability of certain VAWA requirements to the
HOPWA program. A commenter cited proposed Sec. 574.604(c), pertaining
to protections for victims of domestic violence, dating violence,
sexual assault, and stalking, and said that when authorizing the HOPWA
program, Congress emphasized the similarity to Section 8 and commanded
that the HOPWA program ``shall be provided in the manner provided under
[U.S.C.] 1437f.'' The commenter said that, therefore, as with the
Section 8 program, VAWA must be immediately applicable to all current
and future HOPWA units and tenant-based assistance, and proposed Sec.
574.604(c) should be removed.
The commenter said proposed Sec. 574.604(f) provides that the
HOPWA facility or housing owner is obligated to develop the lease
addendum, but urged HUD to develop the required basic elements of the
lease addendum for the HOPWA program. In addition, the commenter said
proposed Sec. 5.2005(c) must be cross-referenced in proposed Sec.
574.604(f). Commenters recommended that this section permit a victim in
VAWA-covered housing to terminate the lease upon a 30-day written
notice, which would not be required in emergency transfer situations.
The commenters said proposed Sec. Sec. 574.604(b)(1)(i)(B) and
574.604(b)(2)(i)(B) must be amended to ensure that the responsible
entity provides the VAWA rights notice and the self-certification form
at all three mandated junctures, and the ``or'' in this paragraph
should be substituted with ``and.''
The commenter also said current HOPWA program regulations permit
the owner to terminate a ``participant's assistance . . . only in the
most severe cases,'' and this should be expanded with a reference to
the obligation to comply with VAWA, and the current limitations on
eligibility should be expanded to prohibit a denial of assistance to a
VAWA victim. The commenter suggested amending Sec. 574.310 to include
these references to VAWA.
The commenter said language regarding admissions/eligibility for
VAWA victims should be added to either the definition of an ``eligible
person'' at Sec. 574.3 or a new section in Sec. 574.310.
HUD Response: HUD disagrees that the requirements of this rule
should be applied retroactively. As stated in the proposed rule, VAWA
2005 provided VAWA protections for victims under HUD's public housing
and Section 8 programs. Those protections were only expanded to the
HOPWA program when Congress enacted VAWA 2013. This was the case
notwithstanding the provision in the HOPWA statute, which provides that
rental assistance under HOPWA ``shall be provided to the extent
practicable in the manner provided under section 8 of the United States
Housing Act of 1937.'' (42 U.S.C. 12908(a)(1)). Nothing in VAWA 2013
suggests that Congress intended these VAWA protections to be applied
retroactively by HUD. Accordingly, HUD is retaining the proposed
regulation at Sec. 574.604(c).
This final rule amends Sec. 574.604(c) to clarify that, for
competitive grants, VAWA requirements apply to awards made on or after
this rule becomes effective. The proposed rule stated that VAWA
requirements are incorporated in the annual notice of funding
availability and made applicable through the grant agreement or Renewal
Memorandum, but the VAWA requirements are incorporated into the
program's regulatory framework and will apply to competitive grants
awarded on or after the rule's effective date because the grant
agreement will subject the award to the entirety of 24 CFR part 574 in
effect at the time of the award. The requirements do not need to be in
the NOFA or made applicable through the Renewal Memorandum to apply to
competitive awards.
HUD appreciates the commenter's suggestion regarding basic elements
of a lease addendum, and HUD is taking these suggestions under
consideration. In this final rule, HUD clarifies that, consistent with
other HOPWA requirements for grantees and project sponsors, the grantee
or project sponsor is responsible for ensuring that the housing or
facility owner or manager adds the VAWA lease term/addendum to leases
for HOPWA-assisted units and eligible persons receiving HOPWA tenant-
based rental assistance. Further, HUD agrees that including a cross-
reference to Sec. 5.2005(c) in Sec. 574.604(f) adds clarity to the
rule, and accepts the commenter's recommended change. However, as
discussed in relation to the HOME program, HUD declines to include a
section in this rule permitting a victim in VAWA-covered housing to
terminate the lease upon a 30-day written notice, which would not be
required in emergency transfer situations. Such a provision may
conflict with state and local law and HUD will not implement it at this
time without seeking further comment.
HUD appreciates commenter's suggestion of amending Sec. Sec.
574.604(b)(1)(i)(B) and 574.604(b)(2)(i)(B) to ensure that the
[[Page 80793]]
housing provider provides the VAWA rights notice and the self-
certification form at all junctures mandated by VAWA 2013. This final
rule revises these two sections to say that the housing providers must
provide the notice of occupancy rights and the certification form at
the times listed in paragraph (d) of the section, and revises paragraph
(d) to state that the grantee is responsible for ensuring that the
notice of occupancy rights and certification form is provided to each
person in a HOPWA-assisted unit or receiving HOPWA assistance at each
of the times listed in the statute, as well as during the 12-month
period following the date that this rule becomes effective, either
during annual recertification or lease renewal, or if there will be no
recertification or lease renewal for a tenant during the first year
after the rule takes effect, through other means. This is consistent
with the general notification requirements in part 5 of this final
rule.
HUD accepts commenter's suggestion to amend Sec. 574.310 to
include references to VAWA protections.
Eligibility of HOPWA program participants is governed by HOPWA's
program statute. HOPWA assistance is limited to an ``eligible person''
which the statute defines as ``a person with acquired immunodeficiency
syndrome or a related disease and the family of such person.'' 42
U.S.C. 12902(12). HUD is not authorized to expand program eligibility
to VAWA victims, as the commenter suggests. VAWA victims are eligible
for assistance under the program if they can also meet the definition
of an ``eligible person.'' However, HUD has provided some relief to
victims in cases where the abuser is the person with HIV/AIDS. Section
574.460 allows victims in those cases a grace period to continue to
receive HOPWA assistance, and an opportunity to demonstrate program
eligibility.
Rule Change: This final rule revises Sec. 574.604(f) from the
proposed rule to include a cross-reference to Sec. 5.2005(c), in
addition to the reference to Sec. 5.2005(b). This rule also amends
Sec. 574.310 to include references to VAWA protections. HUD also
revises proposed Sec. 574.460 and Sec. 574.604, at this final rule
stage, to include dating violence, sexual assault, and stalking. HUD
also revises these sections to more closely track the VAWA provisions
in 24 CFR part 5, subpart L, for consistency with other HOPWA program
regulations in 24 CFR part 574 and other regulations of other program
covered by this rule, and for clarity. For example, this final rule
clarifies the following with respect to the HOPWA program: That the
grantee or project sponsor is responsible for ensuring that the housing
or facility owner or manager develops and uses a VAWA lease addendum;
that the reasonable grace period begins at the date of bifurcation of
the lease rather than the date of eviction of the person with AIDS, and
that housing assistance and supportive services under the HOPWA program
shall continue for the remaining persons residing in the unit during
the grace period; that the grantee must develop the emergency transfer
plan; that persons in HOPWA-assisted units or receiving HOPWA
assistance must be given the notice of occupancy rights and
accompanying certification form during the 12-month period following
the date that this rule becomes effective, as well as at each of the
times required by statute; and that the grantee or project sponsor is
responsible for ensuring that the housing or facility owner or manager
is made aware of the option to bifurcate a lease. Additionally, this
rule revises proposed Sec. 574.604(c) to state that, for competitive
grants, VAWA requirements apply to awards made on or after the date
that this rule becomes effective.
b. Public Housing and Voucher Programs
Comment: VAWA regulations for public housing and voucher programs
should mirror and reference the generally applicable regulations and
those that apply to other programs. A commenter said the public housing
and housing choice voucher regulations refer to criminal activity
``related to'' domestic violence'' and said HUD should include
``directly,'' in its discussion, as the generally applicable
regulations refer to criminal activity ``directly related'' to VAWA
incidents. The commenter said HUD must describe how VAWA protections
apply to tenuous allegations of domestic violence.
A commenter said that the language concerning lease requirements in
HUD's regulations in 24 CFR part 966 applies VAWA protections if a
``current or future tenant'' is or becomes a victim of domestic
violence, but HUD must explain its inclusion of future tenants here, as
this section concerns requirements for leases with existing tenants.
Commenters asked if the term ``future tenants'' refers to a different
set of households than ``applicants.'' A commenter said the proposed
VAWA provisions applicable to public housing tenant leases is limited
to an individual who becomes a victim, but stated that VAWA requires
covered housing providers to provide the VAWA notice and self-
certification form to all applicants and tenants at three junctures,
regardless of whether that tenant is a victim or an affiliated member
of a victim.
A commenter said that under the current regulations, a PHA may
exclude certain tenants from a grievance hearing because of criminal
activity, but such exclusion should not apply to victims of domestic
violence, dating violence, sexual assault and stalking, and Sec.
966.51 should be amended to reflect this.
A commenter recommended that HUD add language to Sec. 983.253
(Leasing of contract units) to clarify that owners cannot discriminate
against VAWA victims and their affiliated individuals.
For the HCV program, a commenter recommended changing Sec.
982.202(d) to include that the PHA admission policy must state the
system of admission preferences that the PHA uses, including
preferences for victims of domestic violence, dating violence, sexual
assault, or stalking. The commenter said the current HCV lease and
tenancy rules and Sec. 982.308 must be amended to reference the VAWA
protections and any notice of eviction shall include a notice of
occupancy rights and self-certification form, and that the notice and
form are required as attachments to the lease.
HUD Response: HUD agrees with commenters that the program
regulations should reflect the general VAWA regulations in part 5. HUD
recognizes that the proposed regulations do not adequately reflect the
notification requirements in part 5, in that they limit the
responsibility to comply with part 5 protections to cases where
domestic violence, dating violence, sexual assault, or stalking is
involved or claimed to be involved, and the notice of VAWA rights must
be provided to all tenants and applicants at the times described in
this statute and rule. Therefore, this final rule revises Sec.
880.504(f), 880.607(c)(5), 882.511(g), 883.605, 884.216(c), 884.223(f),
886.128, 886.132, 886.328, 886.329(f), 891.575(f), 891.610(c),
891.630(c), 960.103(d), 966.4(a)(1)(vi), 982.53(e), 982.201(a), and
982.553(e) to generally note that the VAWA regulations in 24 CFR part
5, subpart L apply. HUD will provide assistance to housing providers to
aid in determining whether criminal activity is directly related to a
VAWA crime. In addition, HUD adds a paragraph to Sec. 983.253 to
clarify that VAWA regulations apply to the leasing of contract units in
the project-based voucher program.
This final rule does not revise Sec. 966.51 as a commenter
suggested. If a tenant is excluded from a grievance hearing, under
Sec. 966.51, that tenant is
[[Page 80794]]
still entitled to a due process determination and the opportunity for a
hearing in court.
This rule also does not amend Sec. 982.202(d), as Sec.
982.207(b)(4) already states that PHAs should consider whether to adopt
a local preference for admission of families that include victims of
domestic violence. This final rule does, however, amend Sec.
982.207(b)(4) (on preferences for victims of domestic violence in the
housing choice voucher program), as well as Sec. 960.206(b)(4) (on
preferences for victims of domestic violence in public housing) to
clarify that preferences may be established not only for victims of
domestic violence, but also for victims of dating violence, sexual
assault, or stalking.
It is unnecessary to amend Sec. 982.308 as a commenter suggested
because, as explained earlier in this preamble, this final rule
maintains existing 24 CFR 5.2005(a)(4), which says that the HUD-
required lease, lease addendum, or tenancy addendum must include a
description of specific protections for victims of VAWA crimes, for
programs covered by VAWA prior to the 2013 reauthorization. Further,
Sec. 982.53(e) specifies that the PHA must apply VAWA protections,
which includes the provision of the notice of VAWA rights and
certification form with notification of eviction.
Rule Change: Sections 880.504(f), 880.607(c)(5), 882.511(g),
883.605, 884.216(c), 884.223(f), 886.128, 886.132, 886.328, 886.329(f),
891.575(f), 891.610(c), 891.630(c), 960.103(d), 966.4(a)(1)(vi),
982.53(e), and 982.553(e) are revised to generally state that 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking) applies.
This final rule adds Sec. 983.253(a)(4), which says that in
selecting tenants, an owner must comply with HUD's regulations in 24
CFR part 5, subpart L (Protections for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking).
This rule amends Sec. 982.207(b)(4) (preferences for victims of
domestic violence in the housing choice voucher program), as well as
Sec. 960.206(b)(4) (on preferences for victims of domestic violence in
public housing) to clarify that preferences may be established not only
for victims of domestic violence, but also for victims of dating
violence, sexual assault, or stalking.
Comment: Portability requirements should not be overly restrictive
for victims of sexual assault. A commenter said the HUD rules on
portability of vouchers allow a victim of sexual assault to be
protected if the assault occurred within the prior 90 days and on the
project premises. The commenter said this requirement is too
restrictive because the presence or proximity of an offender can cause
continued or new safety concerns for the victim after 90 days and PHAs
should be encouraged to apply a longer time frame when necessary. The
commenter recommended amending Sec. 982.353 to say it does not
prohibit a PHA or owner from increasing the protections for victims of
sexual assault by increasing the time period within which the sexual
assault occurred or expanding the location within which the sexual
assault occurred.
HUD Response: Section 982.314(b)(4) of the proposed rule, which as
described earlier, has been redesignated as Sec. 982.354(b)(4)
following publication of HUD's August, 2015 Portability Rule at 80 FR
50564, follows the transfer provisions in VAWA 2013 and this rule. The
provision applies to victims of sexual assault if they either
reasonably believe they are threatened with imminent harm from further
violence if they remain in the unit, or if the sexual assault occurred
on the premises during the 90-calendar-day period preceding the
family's move or request to move. Therefore, victims of sexual assault
who have safety concerns might be able to move under this provision
even if the sexual assault occurred more than 90 days before the move
or the request to move.
Rule Change: HUD revises redesignated Sec. 982.354(b)(4) in this
final rule to clarify that the provision applies if the family or a
member of the family, is or has been the victim of domestic violence,
dating violence, sexual assault, or stalking, as provided in 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), and the move is needed to
protect the health or safety of the family or family member, or if any
family member has been the victim of a sexual assault that occurred on
the premises during the 90-calendar-day period preceding the family's
request to move.
Comment: Certain public housing and voucher program regulations are
unclear. A commenter said proposed Sec. Sec. 982.314, 982.315, and
982.353 are overly complicated in that housing providers may need to
determine if a move is necessary to protect health and safety; if a
family believed that the move was for that purpose; and if family
members believed that they were in imminent threat of harm, and housing
providers need guidance on this. Another commenter questioned the use
of the words ``applicable'' and ``allegedly'' in proposed Sec.
960.103(d), and said that use of the word ``allegedly'' raises issues
about whether acts should first be proven. A commenter asked HUD to
distinguish more clearly a PHA's responsibilities under tenant-based
and project-based rental assistance programs.
HUD Response: As noted earlier in this preamble, this final rule
revises Sec. 960.103(d), which no longer includes the words
``applicable'' or ``allegedly.'' Covered housing providers must
consider tenants and applicants to be victims of domestic violence,
dating violence, sexual assault, or stalking if they submit
documentation in accordance with Sec. 5.2007 of this rule. In
addition, as stated earlier in this preamble, HUD will provide guidance
on the responsibilities of housing providers in different HUD programs
where necessary.
Comment: The rule may discourage owners from participating in the
HCV program. A commenter said proposed Sec. Sec. 982.53, 982.310,
982.314 contain clarifications as to which responsibilities for
compliance rest with the PHA and which ones rest with the owner. The
commenter said that while the burden is on the PHA, the impact on the
owner may still reduce the number of participating owners.
HUD Response: HUD has sought to minimize the burden on owners
participating in the HCV program while still adhering to the
requirements of VAWA.
Comment: Ensure regulatory policies are incorporated in PHA
documents. A commenter stated that proposed Sec. 982.315(a)(2) states
in part that the PHA must ensure that the victim retains assistance.
The commenter said this language should be mandatory in administrative
plans and other policies.
HUD Response: PHAs may incorporate the language of Sec.
982.315(a)(2) or similar language into their administrative plans. PHAs
must comply with all HCV program requirements whether or not they are
specified in their administrative plans, and HUD does not mandate that
all applicable regulations are included in plans.
Comment: The regulations should incorporate proposed guidance on
VAWA in the HUD-VASH program. Commenters said HUD should incorporate
into the proposed regulations the guidance it has issued in its Q&As on
the HUD-VASH program; specifically, that in cases where the VASH
voucher recipient has been terminated for committing a VAWA act, the
remaining victim should be issued
[[Page 80795]]
a Section 8 voucher if one is available, or, if one is not available,
should be authorized to continue utilizing the VASH voucher up until
the voucher's turnover.
HUD Response: Guidance is generally not appropriate for regulatory
text. The regulatory text is to advise what actions are required. As
HUD has stated throughout the preamble, HUD intends to supplement its
VAWA regulations with guidance.
c. FHA Programs
Comment: Ensure that VAWA protections apply to all parts of the
Section 236 and 221(d)(3) and (d)(5) BMIR programs. A commenter said
the program regulations for the Section 236 program do not explicitly
cross reference to the regulations in 24 CFR part 200, and recommended
that in 24 CFR 236.1, HUD insert a cross-reference to proposed Sec.
200.38. The commenter also said the eviction rules in 24 CFR part 247
that are explicitly made applicable to the Section 236, 221(d)(3) &
(d)(5) BMIR, and 202 programs by Sec. 247.2 must be amended to include
VAWA protections, particularly the primary rule governing good cause
for eviction at 24 CFR 247.3.
HUD Response: Section 200.38 explicitly provides that VAWA applies
to the Section 236 program and the cross-reference in Sec. 236.1 is
unnecessary. For greater clarity, however, this rule adds a provision
in Sec. 247.1 that notes that covered housing providers are subject to
VAWA requirements. HUD also notes that while VAWA applies to Section
221(d)(3)/221(d)(5) and Section 236, these programs are no longer
active programs (i.e. no new grants are being distributed). However,
there may be a few of such projects still in existence and a number of
section 236 projects enter new contracts with HUD when they decouple
their Interest Reduction Payment (IRP), enter into a five-year use
agreement extension required in an IRP decoupling, or choice to
participate in RAD. Many 221(d)(3)/(d)(5) and 236 projects also receive
Section 8 funding. In the case that a project is participating in RAD
or receives Section 8 funding, the requirements for those programs
would govern the treatment of tenants for purposes of VAWA. In cases
where there is no Section 8 funding, and a 236 project is entering into
a new contract with HUD, the owner must ensure that VAWA requirements
are being followed.
Rule Change: Section 247.1 (Applicability) is revised to include a
paragraph explaining that landlords of subsidized projects that are
listed as covered housing programs in 24 CFR 5.2003 must comply with 24
CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking).
d. Multifamily Programs
Comment: Section 811 regulations should allow for continued
assistance in the event of a VAWA incident. A commenter said that, for
Section 811, HUD should provide a period of stability for those
households that have experienced domestic violence and should amend its
regulations and guidance to state that if the qualifying tenant leaves
the unit, the owner can continue to receive the assistance for the
remaining members of the household during the requalification period.
The commenter said this approach would align with the change that HUD
proposed to make for HOPWA program, where previously continuance of
assistance was only allowed in the case of the death of the qualified
tenant.
HUD Response: The HOPWA program allows for tenants to retain
assistance under certain circumstances when the qualifying tenant no
longer resides in the unit, but, as explained earlier in this preamble,
the Section 811 program does not provide that flexibility.
Comment: Integrate VAWA into the program-specific regulations. A
commenter recommended changing the program-specific regulations at 24
CFR parts 880, 882, 883, 884, 886, and 891 so that the VAWA
requirements are fully implemented in all the programs.
HUD Response: The references to 24 CFR part 5, subpart L, in these
regulations ensure that VAWA requirements are implemented in specific
programs.
Comment: Clarify VAWA protections in project-based section 8
regulations and lease addenda. A commenter said that for all project-
based section 8 programs, HUD should identify correctly who the covered
housing provider(s) are, and the VAWA lease addenda for these programs
should include copies of the VAWA rights notice and certification form,
as well as language informing tenants that they must be given the
notice and form at the three junctures required by the statute.
HUD Response: This final rule revises the definition of covered
housing provider for the project-based section 8 programs. As also
discussed earlier in the preamble, this final rule maintains existing
24 CFR 5.2005(a)(4) for programs covered by VAWA prior to the 2013
reauthorization, which include the project-based section 8 regulations.
This provision states that 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 24 CFR part 5, subpart L.
e. Cross-Cutting Program Comments
Comment: The ``family break up'' rule set forth in the HCV and HOME
regulations should be included in the rules for all of the HUD-covered
housing programs. A commenter said the most critical aspect of the HCV
``family break up'' rule is that it clearly states that if the family
breakup results from an occurrence of domestic violence, dating
violence, sexual assault, or stalking, the housing provider must ensure
that the victim retains the assistance. The commenter said the factors
to be considered in the event of family breakup in making the decision
to allocate assistance should be included in VAWA rules for all HUD-
covered housing programs. The commenter said the HOME rule at proposed
Sec. 92.359 permits the housing provider to determine that after a
family breakup, both newly formed families could receive assistance.
HUD Response: HUD agrees that clear standards would help to
expedite allocation of a family's TBRA and preserve that assistance for
the victim when a family receiving TBRA separates during an emergency
transfer. Therefore, this final rule provides that, where applicable,
the emergency transfer plan must describe policies for a tenant who has
tenant-based rental assistance and qualifies for an emergency transfer
to move quickly with that assistance. The program rules for the ESG and
CoC programs are also amended to ensure that the emergency transfer
plan addresses what happens with respect to any family member(s)
excluded from the emergency transfer. The final rule further specifies
that when a family receiving TBRA splits via bifurcation the family's
TBRA will continue for the family member(s) who qualified for the VAWA
remedy.
For HOME, this rule, similar to ESG and CoC program language,
clarifies that if a family living in a HOME-assisted rental unit
separates under the rule's bifurcation provisions, the remaining
tenant(s) are eligible to remain in the HOME-assisted unit, and if a
family who is receiving HOME tenant-based rental assistance separates
under the rule's bifurcation provisions, the remaining tenant(s) will
retain the HOME tenant-based rental assistance and the participating
jurisdiction must determine whether the tenant that was removed from
the unit will receive HOME tenant-based rental assistance.
[[Page 80796]]
Rule Change: HUD changes the emergency transfer provision in 24 CFR
5.2005(e)(9) to provide that, where applicable, the emergency transfer
plan must describe policies for a tenant who has tenant-based rental
assistance and qualifies for an emergency transfer to move quickly with
that assistance. HUD also makes related changes to the ESG and CoC
regulations to both protect the victim's housing or assistance and
address what happens to the non-transferring family member(s) when a
family separates in those programs at Sec. Sec. 576.409(d)-(e) and
578.99(j)(7)-(8).
Comment: Ensure consistent VAWA occupancy requirements and rights.
A Commenter said the proposed rules conforming VAWA to the individual
programs fairly consistently address the applicability of VAWA at
admission, eviction, and termination, but there is less consistency to
the applicability of VAWA to occupancy rights. The commenter
recommended that HUD ensure that language concerning occupancy
requirements and rights under VAWA is consistent.
HUD Response: HUD appreciates commenter's concern and has
maintained consistency across program requirements where possible,
while trying to afford victims of domestic violence, dating violence,
sexual assault, and stalking, with the greatest level of protections
possible under both VAWA and particular program requirements.
Comment: Provided that in the event of conflict with other
regulations, VAWA regulations control. A commenter asked HUD to adopt
an overarching policy statement indicating that any interpretation of a
covered housing program's regulations should include a presumption that
the VAWA regulations govern in the event of conflict. The commenter
said many HUD programs have regulations with multiple or overlapping
provisions relating to admission, selection, and occupancy rights,
eviction and termination, and HUD's proposed VAWA rule did not apply
VAWA requirements to all. The commenter said that to ensure that VAWA
is fully implemented in all aspects of these programs; each program
regulation should have a clause stating that in the event of conflict,
the VAWA regulations shall control.
HUD Response: Unlike VAWA 2005, which amended the laws for public
housing and Section 8 programs, VAWA 2013 did not amend the statutory
authority for any housing program, and therefore HUD is unable to
include the language the commenters recommend.
III. Paperwork Reduction Act
Paperwork Reduction Act
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) for review and
approval.
IV. Findings and Certifications
Executive Order 12866, Regulatory Planning and Review
OMB reviewed this rule under Executive Order 12866 (entitled,
``Regulatory Planning and Review''). This rule was determined to be a
``significant regulatory action,'' as defined in section 3(f) of the
order but not economically significant, as provided in section 3(f)(1)
of the order. In accordance with the Executive order, HUD has assessed
the potential costs and benefits, both quantitative and qualitative, of
this regulatory action. The potential costs associated with this
regulatory action are those resulting primarily from the statute's
documentation requirements.
Need for Regulatory Action
This regulatory action is required to conform the provisions of
HUD's VAWA regulations to those of title VI of VAWA 2013, codified at
42 U.S.C. 14043e et seq. The 2013 statutory changes both expand the HUD
programs to which VAWA applies and expand the scope of the VAWA
protections. Therefore, this regulatory action is necessary for HUD's
regulations to reflect and implement the full protection and coverage
of VAWA.
The importance of having HUD's VAWA regulations updated cannot be
overstated. The expansion of VAWA 2013 to other HUD rental assistance
programs emphasizes the importance of protecting victims of domestic
violence, dating violence, sexual assault, and stalking, in all HUD
housing offering rental assistance. By having all covered housing
providers be aware of the protections of VAWA and the actions that they
must take to provide such protections if needed, HUD signals to all
tenants in the covered housing programs that HUD is an active part of
the national response to prevent domestic violence, dating violence,
sexual assault, and stalking.
In addition to expanding the applicability of VAWA to HUD programs
beyond HUD's Section 8 and public housing programs, VAWA 2013 expands
the protections provided to victims of domestic violence, dating
violence, sexual assault, and stalking, which must be incorporated in
HUD's codified regulations. For example, under VAWA 2013, victims of
sexual assault are specifically protected under VAWA for the first time
in HUD-covered programs. Another example is the statutory replacement
of the term ``immediate family member'' with the term ``affiliated
individual.'' Where HUD's current VAWA regulations provided that a non-
perpetrator tenant would be protected from being evicted or denied
housing because of acts of domestic violence, dating violence, or
stalking committed against a family member (see current 24 CFR
5.2005(c)(2)), under VAWA 2013, the same protections apply to a non-
perpetrator tenant because of acts of domestic violence, dating
violence, sexual assault, or stalking committed against an ``affiliated
individual.'' The replacement of ``immediate family member'' with
``affiliated individual'' reflects differing domestic arrangements and
must be incorporated in HUD's regulations.
VAWA 2013 also increases protection for victims of domestic
violence, dating violence, sexual assault, and stalking by requiring
HUD to develop a model emergency transfer plan to guide covered housing
providers in the development and adoption of their own emergency
transfer plans. VAWA also changes the procedures for the notification
to tenants and applicants of their occupancy rights under VAWA. Prior
to VAWA 2013, public housing agencies administering HUD's public
housing and Section 8 assistance were responsible for the development
and issuance of such notification to tenants. Under VAWA 2013, HUD must
develop the notice. Thus, HUD's VAWA regulations must reflect that HUD
will prescribe the notice of occupancy rights to be distributed by
covered housing providers.
In addition, certain provisions of VAWA 2013, particularly those
pertaining to emergency transfer plans and lease bifurcations, require
further clarification in order to be implemented in HUD programs. For
example, this regulatory action is needed to explain whether and what
documentation requirements may apply in the case of emergency
transfers, and what a reasonable time period for a tenant to establish
eligibility for housing under a covered housing program, or to find new
housing, after a lease bifurcation would be.
Costs and Benefits
As noted in the Executive Summary of this preamble, this rule
provides several benefits, including expanding
[[Page 80797]]
the protections of VAWA to applicants and tenants beyond those in HUD's
public housing and Section 8 programs; strengthening the rights,
including confidentiality rights, of victims of domestic violence,
dating violence, sexual assault, and stalking in HUD-covered programs;
and possibly minimizing the loss of housing by such victims through the
bifurcation of lease and emergency transfer plan provisions. The notice
of occupancy rights to be distributed to all applicants and tenants
signals the concern of HUD and the covered housing provider about the
serious consequences of domestic violence, dating violence, sexual
assault, and stalking on the individual tenant victim and, at times,
the victim's family or individuals affiliated to the victim, and
confirms the protections to be afforded to the tenant victim if such
violence occurs. The notice of occupancy rights is presented with the
goal of helping applicants and tenants understand their occupancy
rights under VAWA. Awareness of such rights is an important benefit.
The costs of the regulations, as also noted earlier in this
preamble, are primarily paperwork costs. These are the costs of
providing notice to applicants and tenants of their occupancy rights
under VAWA, the preparation of an emergency transfer plan, and
documenting the incident or incidents of domestic violence, dating
violence, sexual assault, and stalking. The costs, however, are
minimized to some extent by the fact that VAWA 2013 requires HUD to
prepare the notice of occupancy rights, the certification form, and the
model emergency transfer plan. In addition, as discussed in the
preamble, costs to covered housing providers will be minimized because
HUD will translate the notice of occupancy rights and certification
form into the most popularly spoken languages in the United States, and
HUD has prepared a model transfer request form that housing providers
and tenants requesting emergency transfer may use.
In addition to the costs related to these documents, which HUD
submits is not significant given HUD's role in creating the documents,
there may be a cost with respect to a tenant claiming the protections
of VAWA and a covered housing provider responding to such incident.
This cost will vary, however, depending on the incidence of claims in a
given year and the nature and complexity of the situation. The costs
will also depend on the supply and demand for the available and safe
units in the situation of an emergency transfer request. HUD's covered
housing providers did not confront such ``movement'' costs under VAWA
2005, so it remains to be seen, through implementation of VAWA 2013, if
the transfer to a safe and available unit can be realized in most
situations in which such a request is made, and the costs a housing
provider may face as a result.
The reporting and recordkeeping matrix that accompanies HUD's
Paperwork Reduction Act statement, provided above, provides HUD's
estimate of the workload associated with the reporting and
recordkeeping requirements.
The docket file is available for public inspection between the
hours of 8 a.m. and 5 p.m., weekdays, 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 Regulations
Division at 202-708-3055 (this is not a toll-free number). Persons with
hearing or speech impairments may access the telephone number above via
TTY by calling the Federal Relay Service, toll-free, at 800-877-8339.
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 rule implements the protections of VAWA 2013 in all HUD-
covered housing programs. These protections are statutory and
statutorily directed to be implemented. The statute does not allow for
covered housing providers who are, or may qualify as small entities to
not provide such protections to its applicants or tenants or provide
fewer protections than covered entities that are larger entities.
However, with respect to processes that may be found to be burdensome
to small covered housing providers--such as bifurcation of the lease
and the emergency transfer plan--bifurcation of the lease is a
statutory option not a mandate, and transferring a tenant under the
emergency transfer plan is contingent upon whether a housing provider
has a safe and available unit to which a victim of domestic violence,
dating violence, sexual assault, or stalking can transfer may seek
transfer. Therefore, small entities are not required to carry out the
bifurcation option, and emergency transfers may not be feasible given
the fewer number of units generally managed by smaller entities.
Environmental Impact
This rule involves a policy document that sets out
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3) 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
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either (i) imposes substantial direct compliance costs on State and
local governments and is not required by statute, or (ii) preempts
State law, unless the agency meets the consultation and funding
requirements of section 6 of the Executive order. This rule does not
have federalism implications and does not impose substantial direct
compliance costs on State and local governments or preempt State law
within the meaning of the Executive order. The scope of this rule is
limited to HUD-covered housing programs, as such term is defined in the
rule.
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 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: 14.103, 14.135,
14.157, 14.181, 14.195, 14.231, 14.267, 14.268, 14.239, 14.241, 14.850,
14.856, and 14.871.
List of Subjects
24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Crime,
Government contracts, Grant programs--housing and community
development, Individuals with disabilities, Intergovernmental
relations, Loan programs--housing and community development, Low and
moderate income housing, Mortgage insurance, Penalties, Pets, Public
housing, Rent subsidies, Reporting and recordkeeping requirements,
Social
[[Page 80798]]
security, Unemployment compensation, Wages.
24 CFR Part 91
Aged, Grant programs--housing and community development, Homeless,
Individuals with disabilities, Low and moderate income housing,
Reporting and recordkeeping requirements.
24 CFR Part 92
Administrative practice and procedure, Grant programs--housing and
community development, Low and moderate income housing, Manufactured
homes, Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 93
Administrative practice and procedure, Grant programs--housing and
community development, Low and moderate income housing, Manufactured
homes, Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards, Lead
poisoning, Loan programs--housing and community development, Mortgage
insurance, Organization and functions (Government agencies), Penalties,
Reporting and recordkeeping, Social Security, Unemployment
compensation, Wages.
24 CFR Part 247
Grant programs--housing and community development, Loan programs--
housing and community development, Low and moderate income housing,
Rent subsidies.
24 CFR Part 574
Community facilities, Grant programs--housing and community
development, Grant programs--social programs, HIV/AIDS, Low and
moderate income housing, Reporting and recordkeeping requirements.
24 CFR Part 576
Community facilities, Grant programs--housing and community
development, Grant programs--social programs, Homeless, Reporting and
recordkeeping requirements.
24 CFR Part 578
Community development, Community facilities, Grant programs--
housing and community development, Grant program--social programs,
Homeless, Reporting and recordkeeping requirements.
24 CFR Part 880
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 882
Grant programs--housing and community development, 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, Grant programs--housing and community development,
Individuals with disabilities, Loan programs--housing and community
development, Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 905
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
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, Grant programs--
Indians, Indians, Public housing, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 983
Grant programs--housing and community development, Low and moderate
income housing, Rent subsidies, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in the preamble, and in
accordance with HUD's authority in 42 U.S.C. 3535(d), HUD amends 24 CFR
parts 5, 92, 93, 200, 247, 574, 576, 578, 880, 882, 883, 884, 886, 891,
905, 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 42 U.S.C.
14043e et seq., Sec. 601, Pub. L. 113-4, 127 Stat. 101.
0
2. Revise Subpart L to read as follows:
Subpart L--Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking
Sec.
5.2001 Applicability.
5.2003 Definitions.
5.2005 VAWA protections.
5.2007 Documenting the occurrence of domestic violence, dating
violence, sexual assault, or stalking.
5.2009 Remedies available to victims of domestic violence, dating
violence, sexual assault, or stalking.
5.2011 Effect on other laws.
Subpart L--Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking
Sec. 5.2001 Applicability.
(a) This subpart addresses the protections for victims of domestic
violence, dating violence, sexual assault, or stalking who are applying
for, or are the beneficiaries of, assistance under a HUD program
covered by the Violence Against Women Act (VAWA), as amended (42 U.S.C.
13925 and 42 U.S.C. 14043e et seq.) (``covered housing program,'' as
defined in Sec. 5.2003). Notwithstanding the title of the statute,
protections are not limited to women but cover victims of domestic
violence, dating violence, sexual assault, and stalking, regardless of
sex, gender identity, or sexual orientation. Consistent with the
nondiscrimination and equal opportunity requirements at 24 CFR
5.105(a), victims cannot be discriminated against on the basis of any
protected characteristic, including race, color, national origin,
religion, sex, familial status, disability, or age. HUD programs must
also be operated consistently with HUD's Equal Access Rule at Sec.
5.105(a)(2), which requires that HUD-assisted and HUD-insured housing
are made available to all otherwise eligible individuals and families
regardless of actual or perceived sexual orientation, gender identity,
or marital status.
[[Page 80799]]
(b)(1) The applicable assistance provided under a covered housing
program generally consists of two types of assistance (one or both may
be provided): Tenant-based rental assistance, which is rental
assistance that is provided to the tenant; and project-based
assistance, which is assistance that attaches to the unit in which the
tenant resides. For project-based assistance, the assistance may
consist of such assistance as operating assistance, development
assistance, and mortgage interest rate subsidy.
(2) The regulations in this subpart are supplemented by the
specific regulations for the HUD-covered housing programs listed in
Sec. 5.2003. The program-specific regulations address how certain VAWA
requirements are to be implemented and whether they can be implemented
(for example, reasonable time to establish eligibility for assistance
as provided in Sec. 5.2009(b)) for the applicable covered housing
program, given the statutory and regulatory framework for the program.
When there is conflict between the regulations of this subpart and the
program-specific regulations, the program-specific regulations govern.
Where assistance is provided under more than one covered housing
program and there is a conflict between VAWA protections or remedies
under those programs, the individual seeking the VAWA protections or
remedies may choose to use the protections or remedies under any or all
of those programs, as long as the protections or remedies would be
feasible and permissible under each of the program statutes.
Sec. 5.2003 Definitions.
The definitions of PHA, HUD, household, and other person under the
tenant's control are defined in subpart A of this part. As used in this
subpart L:
Actual and imminent threat refers to 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 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.
Affiliated individual, with respect to an individual, means:
(1) A spouse, parent, brother, sister, or child of that individual,
or a person to whom that individual stands in the place of a parent or
guardian (for example, the affiliated individual is a person in the
care, custody, or control of that individual); or
(2) Any individual, tenant, or lawful occupant living in the
household of that individual.
Bifurcate means to divide a lease as a matter of law, subject to
the permissibility of such process under the requirements of the
applicable HUD-covered program and State or local law, such that
certain tenants or lawful occupants can be evicted or removed and the
remaining tenants or lawful occupants can continue to reside in the
unit under the same lease requirements or as may be revised depending
upon the eligibility for continued occupancy of the remaining tenants
and lawful occupants.
Covered housing program consists of the following HUD programs:
(1) Section 202 Supportive Housing for the Elderly (12 U.S.C.
1701q), with implementing regulations at 24 CFR part 891.
(2) Section 811 Supportive Housing for Persons with Disabilities
(42 U.S.C. 8013), with implementing regulations at 24 CFR part 891.
(3) Housing Opportunities for Persons With AIDS (HOPWA) program (42
U.S.C. 12901 et seq.), with implementing regulations at 24 CFR part
574.
(4) HOME Investment Partnerships (HOME) program (42 U.S.C. 12741 et
seq.), with implementing regulations at 24 CFR part 92.
(5) Homeless programs under title IV of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11360 et seq.), including the Emergency
Solutions Grants program (with implementing regulations at 24 CFR part
576), the Continuum of Care program (with implementing regulations at
24 CFR part 578), and the Rural Housing Stability Assistance program
(with regulations forthcoming).
(6) Multifamily rental housing under section 221(d)(3) of the
National Housing Act (12 U.S.C. 17151(d)) with a below-market interest
rate (BMIR) pursuant to section 221(d)(5), with implementing
regulations at 24 CFR part 221.
(7) Multifamily rental housing under section 236 of the National
Housing Act (12 U.S.C. 1715z-1), with implementing regulations at 24
CFR part 236.
(8) HUD programs assisted under the United States Housing Act of
1937 (42 U.S.C. 1437 et seq.); specifically, public housing under
section 6 of the 1937 Act (42 U.S.C. 1437d) (with regulations at 24 CFR
Chapter IX), tenant-based and project-based rental assistance under
section 8 of the 1937 Act (42 U.S.C. 1437f) (with regulations at 24 CFR
chapters VIII and IX), and the Section 8 Moderate Rehabilitation Single
Room Occupancy (with implementing regulations at 24 CFR part 882,
subpart H).
(9) The Housing Trust Fund (12 U.S.C. 4568) (with implementing
regulations at 24 CFR part 93).
Covered housing provider refers to the individual or entity under a
covered housing program that has responsibility for the administration
and/or oversight of VAWA protections and includes PHAs, sponsors,
owners, mortgagors, managers, State and local governments or agencies
thereof, nonprofit or for-profit organizations or entities. The
program-specific regulations for the covered housing programs identify
the individual or entity that carries out the duties and
responsibilities of the covered housing provider as set forth in part
5, subpart L. For any of the covered housing programs, it is possible
that there may be more than one covered housing provider; that is,
depending upon the VAWA duty or responsibility to be performed by a
covered housing provider, the covered housing provider may not always
be the same individual or entity.
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 or intimate partner 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 or intimate partner, 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. The term
``spouse or intimate partner of the victim'' includes a person who is
or has been in a social relationship of a romantic or intimate nature
with the victim, as determined by the length of the relationship, the
type of the relationship, and the frequency of
[[Page 80800]]
interaction between the persons involved in the relationship.
Sexual assault means any nonconsensual sexual act proscribed by
Federal, tribal, or State law, including when the victim lacks capacity
to consent.
Stalking means engaging in a course of conduct directed at a
specific person that would cause a reasonable person to:
(1) Fear for the person's individual safety or the safety of
others; or
(2) Suffer substantial emotional distress.
VAWA means the Violence Against Women Act of 1994, as amended (42
U.S.C. 13925 and 42 U.S.C. 14043e et seq.).
Sec. 5.2005 VAWA protections.
(a) Notification of occupancy rights under VAWA, and certification
form. (1) A covered housing provider must provide to each of its
applicants and to each of its tenants the notice of occupancy rights
and the certification form as described in this section:
(i) A ``Notice of Occupancy Rights under the Violence Against Women
Act,'' as prescribed and in accordance with directions provided by HUD,
that explains the VAWA protections under this subpart, including the
right to confidentiality, and any limitations on those protections; and
(ii) A certification form, in a form approved by HUD, to be
completed by the victim to document an incident of domestic violence,
dating violence, sexual assault or stalking, and that:
(A) States that the applicant or tenant is a victim of domestic
violence, dating violence, sexual assault, or stalking;
(B) States that the incident of domestic violence, dating violence,
sexual assault, or stalking that is the ground for protection under
this subpart meets the applicable definition for such incident under
Sec. 5.2003; and
(C) Includes the name of the individual who committed the domestic
violence, dating violence, sexual assault, or stalking, if the name is
known and safe to provide.
(2) The notice required by paragraph (a)(1)(i) of this section and
certification form required by paragraph (a)(1)(ii) of this section
must be provided to an applicant or tenant no later than at each of the
following times:
(i) At the time the applicant is denied assistance or admission
under a covered housing program;
(ii) At the time the individual is provided assistance or admission
under the covered housing program;
(iii) With any notification of eviction or notification of
termination of assistance; and
(iv) During the 12-month period following December 16, 2016, either
during the annual recertification or lease renewal process, whichever
is applicable, or, if there will be no recertification or lease renewal
for a tenant during the first year after the rule takes effect, through
other means.
(3) The notice required by paragraph (a)(1)(i) of this section and
the certification form required by paragraph (a)(1)(ii) of this section
must be made available in multiple languages, consistent with guidance
issued by HUD in accordance with Executive Order 13166 (Improving
Access to Services for Persons with Limited English Proficiency, signed
August 11, 2000, and published in the Federal Register on August 16,
2000 (at 65 FR 50121).
(4) For the Housing Choice Voucher program under 24 CFR part 982,
the project-based voucher program 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, as well as project-based section
8 provided in connection with housing under part 891, 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, sexual assault, or stalking, as
provided in this subpart.
(b) Prohibited basis for denial or termination of assistance or
eviction--(1) General. An applicant for assistance or tenant assisted
under a covered housing program may not be denied admission to, denied
assistance under, terminated from participation in, or evicted from the
housing on the basis or as a direct result of the fact that the
applicant or tenant is or has been a victim of domestic violence,
dating violence, sexual assault, or stalking, if the applicant or
tenant otherwise qualifies for admission, assistance, participation, or
occupancy.
(2) Termination on the basis of criminal activity. A tenant in a
covered housing program may not be denied tenancy or occupancy rights
solely on the basis of criminal activity directly relating to domestic
violence, dating violence, sexual assault, or stalking if:
(i) The criminal activity is engaged in by a member of the
household of the tenant or any guest or other person under the control
of the tenant, and
(ii) The tenant or an affiliated individual of the tenant is the
victim or threatened victim of such domestic violence, dating violence,
sexual assault or stalking.
(c) Construction of lease terms and terms of assistance. An
incident of actual or threatened domestic violence, dating violence,
sexual assault, or stalking shall not be construed as:
(1) A serious or repeated violation of a lease executed under a
covered housing program by the victim or threatened victim of such
incident; or
(2) Good cause for terminating the assistance, tenancy, or
occupancy rights under a covered housing program of the victim or
threatened victim of such incident.
(d) Limitations of VAWA protections. (1) Nothing in this section
limits the authority of a covered housing provider, when notified of a
court order, to comply with a court order with respect to:
(i) The rights of access or control of property, including civil
protection orders issued to protect a victim of domestic violence,
dating violence, sexual assault, or stalking; or
(ii) The distribution or possession of property among members of a
household.
(2) Nothing in this section limits any available authority of a
covered housing provider to evict or terminate assistance to a tenant
for any violation not premised on an act of domestic violence, dating
violence, sexual assault, or stalking that is in question against the
tenant or an affiliated individual of the tenant. However, the covered
housing provider must not subject the tenant, who is or has been a
victim of domestic violence, dating violence, sexual assault, or
stalking, or is affiliated with an individual who is or has been a
victim of domestic violence, dating violence, sexual assault or
stalking, to a more demanding standard than other tenants in
determining whether to evict or terminate assistance.
(3) Nothing in this section limits the authority of a covered
housing provider to terminate assistance to or evict a tenant under a
covered housing program if the covered housing provider can demonstrate
an actual and imminent threat to other tenants or those employed at or
providing service to property of the covered housing provider would be
present if that tenant or lawful occupant is not evicted or terminated
from assistance. In this context, words, gestures, actions, or other
indicators will be considered an ``actual and imminent threat'' if they
meet the standards provided in the definition of ``actual and imminent
threat'' in Sec. 5.2003.
(4) Any eviction or termination of assistance, as provided in
paragraph (d)(3) of this section should be utilized
[[Page 80801]]
by a covered housing provider 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) Emergency transfer plan. Each covered housing provider, as
identified in the program-specific regulations for the covered housing
program, shall adopt an emergency transfer plan, no later than June 14,
2017 based on HUD's model emergency transfer plan, in accordance with
the following:
(1) For purposes of this section, the following definitions apply:
(i) Internal emergency transfer refers to an emergency relocation
of a tenant to another unit where the tenant would not be categorized
as a new applicant; that is, the tenant may reside in the new unit
without having to undergo an application process.
(ii) External emergency transfer refers to an emergency relocation
of a tenant to another unit where the tenant would be categorized as a
new applicant; that is the tenant must undergo an application process
in order to reside in the new unit.
(iii) Safe unit refers to a unit that the victim of domestic
violence, dating violence, sexual assault, or stalking believes is
safe.
(2) The emergency transfer plan must provide that a tenant
receiving rental assistance through, or residing in a unit subsidized
under, a covered housing program who is a victim of domestic violence,
dating violence, sexual assault, or stalking qualifies for an emergency
transfer if:
(i) The tenant expressly requests the transfer; and
(ii)(A) The tenant reasonably believes there is a threat of
imminent harm from further violence if the tenant remains within the
same dwelling unit that the tenant is currently occupying; or
(B) In the case of a tenant who is a victim of sexual assault,
either the tenant reasonably believes there is a threat of imminent
harm from further violence if the tenant remains within the same
dwelling unit that the tenant is currently occupying, or the sexual
assault occurred on the premises during the 90-calendar-day period
preceding the date of the request for transfer.
(3) The emergency transfer plan must detail the measure of any
priority given to tenants who qualify for an emergency transfer under
VAWA in relation to other categories of tenants seeking transfers and
individuals seeking placement on waiting lists.
(4) The emergency transfer plan must incorporate strict
confidentiality measures to ensure that the covered housing provider
does not disclose the location of the dwelling unit of the tenant to a
person who committed or threatened to commit an act of domestic
violence, dating violence, sexual assault, or stalking against the
tenant.
(5) The emergency transfer plan must allow a tenant to make an
internal emergency transfer under VAWA when a safe unit is immediately
available.
(6) The emergency transfer plan must describe policies for
assisting a tenant in making an internal emergency transfer under VAWA
when a safe unit is not immediately available, and these policies must
ensure that requests for internal emergency transfers under VAWA
receive, at a minimum, any applicable additional priority that housing
providers may already provide to other types of emergency transfer
requests.
(7) The emergency transfer plan must describe reasonable efforts
the covered housing provider will take to assist a tenant who wishes to
make an external emergency transfer when a safe unit is not immediately
available. The plan must include policies for assisting a tenant who is
seeking an external emergency transfer under VAWA out of the covered
housing provider's program or project, and a tenant who is seeking an
external emergency transfer under VAWA into the covered housing
provider's program or project. These policies may include:
(i) Arrangements, including memoranda of understanding, with other
covered housing providers to facilitate moves; and
(ii) Outreach activities to organizations that assist or provide
resources to victims of domestic violence, dating violence, sexual
assault, or stalking.
(8) Nothing may preclude a tenant from seeking an internal
emergency transfer and an external emergency transfer concurrently if a
safe unit is not immediately available.
(9) Where applicable, the emergency transfer plan must describe
policies for a tenant who has tenant-based rental assistance and who
meets the requirements of paragraph (e)(2) of this section to move
quickly with that assistance.
(10) The emergency transfer plan may require documentation from a
tenant seeking an emergency transfer, provided that:
(i) The tenant's submission of a written request to the covered
housing provider, where the tenant certifies that they meet the
criteria in paragraph (e)(2)(ii) of this section, shall be sufficient
documentation of the requirements in paragraph (e)(2) of this section;
(ii) The covered housing provider may, at its discretion, ask an
individual seeking an emergency transfer to document the occurrence of
domestic violence, dating violence, sexual assault, or stalking, in
accordance with Sec. 5.2007, for which the individual is seeking the
emergency transfer, if the individual has not already provided
documentation of that occurrence; and
(iii) No other documentation is required to qualify the tenant for
an emergency transfer.
(11) The covered housing provider must make its emergency transfer
plan available upon request and, when feasible, must make its plan
publicly available.
(12) The covered housing provider must keep a record of all
emergency transfers requested under its emergency transfer plan, and
the outcomes of such requests, and retain these records for a period of
three years, or for a period of time as specified in program
regulations. Requests and outcomes of such requests must be reported to
HUD annually.
(13) Nothing in this paragraph (e) may be construed to supersede
any eligibility or other occupancy requirements that may apply under a
covered housing program.
Sec. 5.2007 Documenting the occurrence of domestic violence, dating
violence, sexual assault, or stalking.
(a) Request for documentation. (1) Under a covered housing program,
if an applicant or tenant represents to the covered housing provider
that the individual is a victim of domestic violence, dating violence,
sexual assault, or stalking entitled to the protections under Sec.
5.2005, or remedies under Sec. 5.2009, the covered housing provider
may request, in writing, that the applicant or tenant submit to the
covered housing provider the documentation specified in paragraph
(b)(1) of this section.
(2)(i) If an applicant or tenant does not provide the documentation
requested under paragraph (a)(1) of this section within 14 business
days after the date that the tenant receives a request in writing for
such documentation from
[[Page 80802]]
the covered housing provider, nothing in Sec. 5.2005 or Sec. 5.2009,
which addresses the protections of VAWA, may be construed to limit the
authority of the covered housing provider to:
(A) Deny admission by the applicant or tenant to the covered
housing program;
(B) Deny assistance under the covered housing program to the
applicant or tenant;
(C) Terminate the participation of the tenant in the covered
housing program; or
(D) Evict the tenant, or a lawful occupant that commits a violation
of a lease.
(ii) A covered housing provider may, at its discretion, extend the
14-business-day deadline under paragraph (a)(2)(i) of this section.
(b) Permissible documentation and submission requirements. (1) In
response to a written request to the applicant or tenant from the
covered housing provider, as provided in paragraph (a) of this section,
the applicant or tenant may submit, as documentation of the occurrence
of domestic violence, dating violence, sexual assault, or stalking, any
one of the following forms of documentation, where it is at the
discretion of the tenant or applicant which one of the following forms
of documentation to submit:
(i) The certification form described in Sec. 5.2005(a)(1)(ii); or
(ii) A document:
(A) Signed by an employee, agent, or volunteer of a victim service
provider, an attorney, or medical professional, or a mental health
professional (collectively, ``professional'') from whom the victim has
sought assistance relating to domestic violence, dating violence,
sexual assault, or stalking, or the effects of abuse;
(B) Signed by the applicant or tenant; and
(C) That specifies, under penalty of perjury, that the professional
believes in the occurrence of the incident of domestic violence, dating
violence, sexual assault, or stalking that is the ground for protection
and remedies under this subpart, and that the incident meets the
applicable definition of domestic violence, dating violence, sexual
assault, or stalking under Sec. 5.2003; or
(iii) A record of a Federal, State, tribal, territorial or local
law enforcement agency, court, or administrative agency; or
(iv) At the discretion of a covered housing provider, a statement
or other evidence provided by the applicant or tenant.
(2) If a covered housing provider receives documentation under
paragraph (b)(1) of this section that contains conflicting information
(including certification forms 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), the covered housing
provider may require an applicant or tenant to submit third-party
documentation, as described in paragraphs (b)(1)(ii), (b)(1)(iii), or
(b)(1)(iv) of this section, within 30 calendar days of the date of the
request for the third-party documentation.
(3) Nothing in this paragraph (b) shall be construed to require a
covered housing provider to request that an individual submit
documentation of the status of the individual as a victim of domestic
violence, dating violence, sexual assault, or stalking.
(c) Confidentiality. Any information submitted to a covered housing
provider under this section, including the fact that an individual is a
victim of domestic violence, dating violence, sexual assault, or
stalking (confidential information), shall be maintained in strict
confidence by the covered housing provider.
(1) The covered housing provider shall not allow any individual
administering assistance on behalf of the covered housing provider or
any persons within their employ (e.g., contractors) or in the employ of
the covered housing provider to have access to confidential information
unless explicitly authorized by the covered housing provider for
reasons that specifically call for these individuals to have access to
this information under applicable Federal, State, or local law.
(2) The covered housing provider shall not enter confidential
information described in paragraph (c) of this section into any shared
database or disclose such information to any other entity or
individual, except to the extent that the disclosure is:
(i) Requested or consented to in writing by the individual in a
time-limited release
(ii) Required for use in an eviction proceeding or hearing
regarding termination of assistance from the covered program; or
(iii) Otherwise required by applicable law.
(d) A covered housing provider's compliance with the protections of
Sec. Sec. 5.2005 and 5.2009, based on documentation received under
this section shall not be sufficient to constitute evidence of an
unreasonable act or omission by the covered housing provider. However,
nothing in this paragraph (d) of this section shall be construed to
limit the liability of a covered housing provider for failure to comply
with Sec. Sec. 5.2005 and 5.2009.
Sec. 5.2009 Remedies available to victims of domestic violence,
dating violence, sexual assault, or stalking.
(a) Lease bifurcation. (1) A covered housing provider may in
accordance with paragraph (a)(2) of this section, bifurcate a lease, or
remove a household member from a lease in order to evict, remove,
terminate occupancy rights, or terminate assistance to such member who
engages in criminal activity directly relating to domestic violence,
dating violence, sexual assault, or stalking against an affiliated
individual or other individual:
(i) Without regard to whether the household member is a signatory
to the lease; and
(ii) Without evicting, removing, terminating assistance to, or
otherwise penalizing a victim of such criminal activity who is also a
tenant or lawful occupant.
(2) A lease bifurcation, as provided in paragraph (a)(1) of this
section, shall be carried out in accordance with any requirements or
procedures as may be prescribed by Federal, State, or local law for
termination of assistance or leases and in accordance with any
requirements under the relevant covered housing program.
(b) Reasonable time to establish eligibility for assistance or find
alternative housing following bifurcation of a lease--(1)
Applicability. The reasonable time to establish eligibility under a
covered housing program or find alternative housing is specified in
paragraph (b) of this section, or alternatively in the program-specific
regulations governing the applicable covered housing program. Some
covered housing programs may provide different time frames than are
specified in this paragraph (b), and in such cases, the program-
specific regulations govern.
(2) Reasonable time to establish eligibility assistance or find
alternative housing. (i) If a covered housing provider exercises the
option to bifurcate a lease as provided in paragraph (a) of this
section, and the individual who was evicted or for whom assistance was
terminated was the eligible tenant under the covered housing program,
the covered housing provider shall provide to any remaining tenant or
tenants that were not already eligible a period of 90 calendar days
from the date of bifurcation of the lease to:
[[Page 80803]]
(A) Establish eligibility for the same covered housing program
under which the evicted or terminated tenant was the recipient of
assistance at the time of bifurcation of the lease; or
(B) Establish eligibility under another covered housing program; or
(C) Find alternative housing.
(ii) The 90-calendar-day period provided by paragraph (b)(2) of
this section will not be available to a remaining household member if
the statutory requirements for the covered housing program prohibit it.
The 90-day calendar period also will not apply beyond the expiration of
a lease, unless this is permitted by program regulations. The 90-
calendar-day period is the total period provided to a remaining tenant
to establish eligibility under the three options provided in paragraphs
(b)(2)(i)(A), (B), and (C) of this section.
(iii) The covered housing provider may extend the 90-calendar-day
period in paragraph (b)(2) of this section up to an additional 60
calendar days, unless prohibited from doing so by statutory
requirements of the covered program or unless the time period would
extend beyond expiration of the lease.
(c) Efforts to promote housing stability for victims of domestic
violence, dating violence, sexual assault, or stalking. Covered housing
providers are encouraged to undertake whatever actions permissible and
feasible under their respective programs to assist individuals residing
in their units who are victims of domestic violence, dating violence,
sexual assault, or stalking to remain in their units or other units
under the covered housing program or other covered housing providers,
and for the covered housing provider to bear the costs of any transfer,
where permissible.
Sec. 5.2011 Effect on other laws.
(a) 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, sexual assault, or stalking.
(b) All applicable fair housing and civil rights statutes and
requirements apply in the implementation of VAWA requirements. See
Sec. 5.105(a).
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. In Sec. 91.520, revise paragraphs (e), (f), (g), and (h) to read as
follows:
Sec. 91.520 Performance reports.
* * * * *
(e) HOME. For HOME participating jurisdictions, the report shall
include the results of on-site inspections of affordable rental housing
assisted under the program to determine compliance with housing codes
and other applicable regulations, an assessment of the jurisdiction's
affirmative marketing actions and outreach to minority-owned and women-
owned businesses, data on the amount and use of program income for
projects, including the number of projects and owner and tenant
characteristics, and data on emergency transfers requested under 24 CFR
5.2005(e) and 24 CFR 92.359, pertaining to victims of domestic
violence, dating violence, sexual assault, or stalking, including data
on the outcomes of such requests.
(f) HOPWA. For jurisdictions receiving funding under the Housing
Opportunities for Persons With AIDS program, the report must include
the number of individuals assisted and the types of assistance
provided, as well as data on emergency transfers requested under 24 CFR
5.2005(e), pertaining to victims of domestic violence, dating violence,
sexual assault, or stalking, including data on the outcomes of such
requests.
(g) ESG. For jurisdictions receiving funding under the ESG program
provided in 24 CFR part 576, the report, in a form prescribed by HUD,
must include the number of persons assisted, the types of assistance
provided, the project or program outcomes data measured under the
performance standards developed in consultation with the Continuum(s)
of Care, and data on emergency transfers requested under 24 CFR
5.2005(e) and 24 CFR 576.409, pertaining to victims of domestic
violence, dating violence, sexual assault, or stalking, including data
on the outcomes of such requests.
(h) HTF. For jurisdictions receiving HTF funds, the report must
describe the HTF program's accomplishments, and the extent to which the
jurisdiction complied with its approved HTF allocation plan and the
requirements of 24 CFR part 93, as well as data on emergency transfers
requested under 24 CFR 5.2005(e) and 24 CFR 93.356, pertaining to
victims of domestic violence, dating violence, sexual assault, or
stalking, including data on the outcomes of such requests.
* * * * *
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
0
5. The authority citation for part 92 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 12701-12839.
0
6. In Sec. 92.253, paragraph (a) is revised, the word ``and'' is
removed from the end of paragraph (d)(5), the period is removed and ``;
and'' is added at the end of paragraph (d)(6), and paragraph (d)(7) is
added to read as follows:
Sec. 92.253 Tenant protections and selection.
(a) Lease. There must be a written lease between the tenant and the
owner of rental housing assisted with HOME funds that is for a period
of not less than 1 year, unless by mutual agreement between the tenant
and the owner a shorter period is specified. The lease must incorporate
the VAWA lease term/addendum required under Sec. 92.359(e), except as
otherwise provided by Sec. 92.359(b).
* * * * *
(d) * * *
(7) Comply with the VAWA requirements prescribed in Sec. 92.359.
0
7. Section 92.359 is added to subpart H to read as follows:
Sec. 92.359 VAWA requirements.
(a) General. (1) The Violence Against Women Act (VAWA) requirements
set forth in 24 CFR part 5, subpart L, apply to all HOME tenant-based
rental assistance and rental housing assisted with HOME funds, as
supplemented by this section.
(2) For the HOME program, the ``covered housing provider,'' as this
term is used in HUD's regulations in 24 CFR part 5, subpart L, refers
to:
(i) The housing owner for the purposes of 24 CFR 5.2005(d)(1),
(d)(3), and (d)(4) and Sec. 5.2009(a); and
(ii) The participating jurisdiction and the owner for purposes of
24 CFR 5.2005(d)(2), 5.2005(e), and 5.2007, except as otherwise
provided in paragraph (g) of this section.
(b) Effective date. The core statutory protections of VAWA that
prohibit denial or termination of assistance or eviction solely because
an applicant or tenant is a victim of domestic violence, dating
violence, sexual assault, or stalking became applicable upon enactment
of VAWA 2013 on March 7, 2013. Compliance with the VAWA regulatory
requirements under this section and 24 CFR part 5, subpart L, are
[[Page 80804]]
required for any tenant-based rental assistance or rental housing
project for which the date of the HOME funding commitment is on or
after December 16, 2016.
(c) Notification requirements. The participating jurisdiction must
provide a notice and certification form that meet the requirements of
24 CFR 5.2005(a) to the owner of HOME-assisted rental housing.
(1) For HOME-assisted units. The owner of HOME-assisted rental
housing must provide the notice and certification form described in 24
CFR 5.2005(a) to the applicant for a HOME-assisted unit at the time the
applicant is admitted to a HOME-assisted unit, or denied admission to a
HOME-assisted unit based on the owner's tenant selection policies and
criteria. The owner of HOME-assisted rental housing must also provide
the notice and certification form described in 24 CFR 5.2005 with any
notification of eviction from a HOME-assisted unit.
(2) For HOME tenant-based rental assistance. The participating
jurisdiction must provide the notice and certification form described
in 24 CFR 5.2005(a) to the applicant for HOME tenant-based rental
assistance when the applicant's HOME tenant-based rental assistance is
approved or denied. The participating jurisdiction must also provide
the notice and certification form described in 24 CFR 5.2005(a) to a
tenant receiving HOME tenant-based rental assistance when the
participating jurisdiction provides the tenant with notification of
termination of the HOME tenant-based rental assistance, and when the
participating jurisdiction learns that the tenant's housing owner
intends to provide the tenant with notification of eviction.
(d) Bifurcation of lease requirements. For the purposes of this
part, the following requirements shall apply in place of the
requirements at 24 CFR 5.2009(b):
(1) If a family living in a HOME-assisted rental unit separates
under 24 CFR 5.2009(a), the remaining tenant(s) may remain in the HOME-
assisted unit.
(2) If a family who is receiving HOME tenant-based rental
assistance separates under 24 CFR 5.2009(a), the remaining tenant(s)
will retain the HOME tenant-based rental assistance. The participating
jurisdiction must determine whether the tenant that was removed from
the unit will receive HOME tenant-based rental assistance.
(e) VAWA lease term/addendum. The participating jurisdiction must
develop a VAWA lease term/addendum to incorporate all requirements that
apply to the owner or lease under 24 CFR part 5, subpart L, and this
section, including the prohibited bases for eviction and restrictions
on construing lease terms under 24 CFR 5.2005(b) and (c). This VAWA
lease term/addendum must also provide that the tenant may terminate the
lease without penalty if the participating jurisdiction determines that
the tenant has met the conditions for an emergency transfer under 24
CFR 5.2005(e). When HOME tenant-based rental assistance is provided,
the lease term/addendum must require the owner to notify the
participating jurisdiction before the owner bifurcates the lease or
provides notification of eviction to the tenant. If HOME tenant-based
rental assistance is the only assistance provided (i.e., the unit is
not receiving project-based assistance under a covered housing program,
as defined in 24 CFR 5.2003), the VAWA lease term/addendum may be
written to expire at the end of the rental assistance period.
(f) Period of applicability. For HOME-assisted rental housing, the
requirements of this section shall apply to the owner of the housing
for the duration of the affordability period. For HOME tenant-based
rental assistance, the requirements of this section shall apply to the
owner of the tenant's housing for the period for which the rental
assistance is provided.
(g) Emergency Transfer Plan. (1) The participating jurisdiction
must develop and implement an emergency transfer plan and must make the
determination of whether a tenant qualifies under the plan. The plan
must meet the requirements in 24 CFR 5.2005(e), as supplemented by this
section.
(2) For the purposes of Sec. 5.2005(e)(7), the required policies
must specify that for tenants who qualify for an emergency transfer and
who wish to make an external emergency transfer when a safe unit is not
immediately available, the participating jurisdiction must provide a
list of properties in the jurisdiction that include HOME-assisted
units. The list must include the following information for each
property: The property's address, contact information, the unit sizes
(number of bedrooms) for the HOME-assisted units, and, to the extent
known, any tenant preferences or eligibility restrictions for the HOME-
assisted units. In addition, the participating jurisdiction may:
(i) Establish a preference under the participating jurisdiction's
HOME program for tenants who qualify for emergency transfers under 24
CFR 5.2005(e);
(ii) Provide HOME tenant-based rental assistance to tenants who
qualify for emergency transfers under 24 CFR 5.2005(e); or
(iii) Coordinate with victim service providers and advocates to
develop the emergency transfer plan, make referrals, and facilitate
emergency transfers to safe and available units.
0
8. Section 92.504(c) is amended by adding a sentence to the end of
paragraphs (c)(1)(vi) and (c)(2)(iv), adding paragraph (c)(3)(v)(F),
and adding a sentence to the end of paragraph (c)(4)(ii), to read as
follows:
Sec. 92.504 Participating jurisdiction responsibilities; written
agreements; on-site inspection.
* * * * *
(c) * * *
(1) * * *
(vi) * * * If HOME funds are provided for development of rental
housing or provision of tenant-based rental assistance, the agreement
must set forth all obligations the State imposes on the State recipient
in order to meet the VAWA requirements under Sec. 92.359, including
notice obligations and any obligations with respect to the emergency
transfer plan (including whether the State recipient must develop its
own plan or follow the State's plan).
* * * * *
(2) * * *
(iv) * * * If HOME funds are being provided to develop rental
housing or provide tenant-based rental assistance, the agreement must
set forth all obligations the participating jurisdiction imposes on the
subrecipient in order to meet the VAWA requirements under Sec. 92.359,
including notice obligations and obligations under the emergency
transfer plan.
* * * * *
(3) * * *
(v) * * *
(F) If HOME funds are being provided to develop rental housing, the
agreement must set forth all obligations the participating jurisdiction
imposes on the owner in order to meet the VAWA requirements under Sec.
92.359, including the owner's notice obligations and owner obligations
under the emergency transfer plan.
* * * * *
(4) * * *
(ii) * * * If applicable to the work under the contract, the
agreement must set forth all obligations the participating jurisdiction
imposes on the contractor in order to meet the VAWA requirements under
Sec. 92.359, including any notice obligations and any obligations
under the emergency transfer plan.
* * * * *
[[Page 80805]]
0
9. In Sec. 92.508, paragraph (a)(7)(x) is added to read as follows:
Sec. 92.508 Recordkeeping.
(a) * * *
(7) * * *
(x) Records of emergency transfers requested under 24 CFR 5.2005(e)
and 92.359 pertaining to victims of domestic violence, dating violence,
sexual assault, or stalking, including data on the outcomes of those
requests.
* * * * *
PART 93--HOUSING TRUST FUND
0
10. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 12 U.S.C. 4568.
0
11. In Sec. 93.303, paragraph (a) is revised, paragraph (d)(5) is
amended by removing the ``and'' at the end, paragraph (d)(6) is amended
by removing the period and adding ``:and'' in its place, and paragraph
(d)(7) is added to read as follows:
Sec. 93.303 Tenant protections and selection.
(a) Lease. There must be a written lease between the tenant and the
owner of rental housing assisted with HTF funds that is for a period of
not less than one year, unless by mutual agreement between the tenant
and the owner a shorter period is specified. The lease must incorporate
the VAWA lease term/addendum required under Sec. 93.356(d).
* * * * *
(d) * * *
(7) Comply with the VAWA requirements prescribed in Sec. 93.356.
0
12. Section 93.356 is added to subpart H to read as follows:
Sec. 93.356 VAWA requirements.
(a) General. (1) The Violence Against Women Act (VAWA) requirements
set forth in 24 CFR part 5, subpart L, apply to all rental housing
assisted with HTF funds, as provided in this section.
(2) For the HTF program, the ``covered housing provider,'' as this
term is used in HUD's regulations in 24 CFR part 5, subpart L, refers
to:
(i) The owner of HTF-assisted rental housing for the purposes of 24
CFR 5.2005(d)(1), (2), (3), and (4) and 5.2009(a); and
(ii) The owner and the grantee for purposes of 24 CFR 5.2005(e) and
5.2007, except as otherwise provided in paragraph (f) of this section.
(b) Notification requirements. The grantee must provide a notice
and certification form that meet the requirements of 24 CFR 5.2005(a)
to the owner of HTF-assisted rental housing. The owner of HTF-assisted
rental housing must provide the notice and certification form described
in 24 CFR 5.2005(a) to the applicant for a HTF-assisted unit at the
time the applicant is admitted to an HTF-assisted unit, or denied
admission to a HTF-assisted unit based on the owner's tenant selection
policies and criteria. The owner of HTF-assisted rental housing must
also provide the notice and certification form described in 24 CFR
5.2005 with any notification of eviction from a HTF-assisted unit.
(c) Bifurcation of lease requirements. For purposes of this part,
the requirements of 24 CFR 5.2009(b) do not apply. If a family who
lives in a HTF-assisted rental unit separates under 24 CFR 5.2009(a),
the remaining tenant(s) may remain in the HTF-assisted unit.
(d) VAWA lease term/addendum. The grantee must develop a VAWA lease
term/addendum to incorporate all requirements that apply to the owner
or lease of HTF-assisted rental housing under 24 CFR part 5, subpart L,
and this section, including the prohibited bases for eviction and
restrictions on construing lease terms under 24 CFR 5.2005(b) and (c).
This VAWA lease term/addendum must also provide that the tenant may
terminate the lease without penalty if the grantee determines that the
tenant has met the conditions for an emergency transfer under 24 CFR
5.2005(e).
(e) Period of applicability. The requirements of this section shall
apply to the owner of the HTF-assisted rental housing for the duration
of the affordability period.
(f) Emergency transfer plan. The grantee must develop and implement
an emergency transfer plan and must make the determination of whether a
tenant qualifies for an emergency transfer under the plan. The plan
must meet the requirements in 24 CFR 5.2005(e), where, for the purposes
of Sec. 5.2005(e)(7), the required policies must specify that for
tenants who qualify for an emergency transfer and who wish to make an
external emergency transfer when a safe unit is not immediately
available, the grantee must provide a list of properties in the
jurisdiction that include HTF-assisted units. The list must include the
following information for each property: The property's address,
contact information, the unit sizes (number of bedrooms) for the HTF-
assisted units, and, to the extent known, any tenant preferences or
eligibility restrictions for the HTF-assisted units. In addition, the
grantee may:
(1) Establish a preference under the grantee's HTF program for
tenants who qualify for emergency transfers under 24 CFR 5.2005(e); and
(2) Coordinate with victim service providers and advocates to
develop the emergency transfer plan, make referrals, and facilitate
emergency transfers to safe and available units.
0
13. In Sec. 93.404, paragraphs (c)(1)(vi) and (c)(2)(vi) are revised
to read as follows:
Sec. 93.404 Grantee responsibilities; written agreements; onsite
inspections; financial oversight.
* * * * *
(c) * * *
(1) * * *
(vi) Other program requirements. The agreement must require the
subgrantee to carry out each project in compliance with all Federal
laws and regulations described in Sec. Sec. 93.350 through 93.356. The
agreement must set forth all obligations the grantee imposes on the
subgrantee in order to meet the VAWA requirements under Sec. 93.356,
including notice obligations and obligations under the emergency
transfer plan.
* * * * *
(2) * * *
(vi) Other program requirements. The agreement must require the
eligible recipient to carry out each project in compliance with all
Federal laws and regulations described in Sec. Sec. 93.350 through
93.356. The agreement must set forth all obligations the grantee
imposes on the recipient in order to meet the VAWA requirements under
Sec. 93.356, including notice obligations and obligations under the
emergency transfer plan.
* * * * *
0
14. In Sec. 93.407, add paragraph (a)(5)(ix) to read as follows:
Sec. 93.407 Recordkeeping.
(a) General. * * *
(5) * * *
(ix) Documentation on emergency transfers requested under 24 CFR
5.2005(e) and Sec. 93.356 pertaining to victims of domestic violence,
dating violence, sexual assault, or stalking, including data on the
outcomes of such requests.
* * * * *
PART 200--INTRODUCTION TO FHA PROGRAMS
0
15. The authority citation for Part 200 continues to read as follows:
Authority: 12 U.S.C. 1702-1715z-21 and 42 U.S.C. 3535(d).
0
16. Add Sec. 200.38 to read as follows:
[[Page 80806]]
Sec. 200.38 Protections for victims of domestic violence.
(a) The requirements for protection for victims of domestic
violence, dating violence, sexual assault, or stalking in 24 CFR part
5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking) apply to programs administered
under section 236 and under sections 221(d)(3) and (d)(5) of the
National Housing Act, as follows:
(1) Multifamily rental housing under section 221(d)(3) of the
National Housing Act (12 U.S.C. 17151(d)) with a below-market interest
rate (BMIR) pursuant to section 221(d)(5), with implementing
regulations at 24 CFR part 221. The Section 221(d)(3) BMIR program
insured and subsidized mortgage loans to facilitate new construction or
substantial rehabilitation of multifamily rental cooperative housing
for low- and moderate-income families. The program is no longer active,
but Section 221(d)(3) BMIR properties that remain in existence are
covered by VAWA. Coverage of section 221(d)(3) and (d)(5) BMIR housing
does not include section 221(d)(3) and (d)(5) BMIR projects that
refinance under section 223(a)(7) or 223(f) of the National Housing Act
where the interest rate is no longer determined under section
221(d)(5).
(2) Multifamily rental housing under section 236 of the National
Housing Act (12 U.S.C. 1715z-1), with implementing regulations at 24
CFR part 236. Coverage of the section 236 program includes not only
those projects with FHA-insured project mortgages under section 236(j),
but also non-FHA-insured projects that receive interest reduction
payments (``IRP'') under section 236(b) and formerly insured section
236 projects that continue to receive interest reduction payments
through a ``decoupled'' IRP contract under section 236(e)(2). Coverage
also includes projects that receive rental assistance payments
authorized under section 236(f)(2).
(b) For the programs administered under paragraph (a) of this
section, ``covered housing provider'' as such term is used in 24 CFR
part 5, subpart L, refers to the mortgagor, or owner, as applicable.
PART 247--EVICTIONS FROM CERTAIN SUBSIDIZED AND HUD-OWNED PROJECTS
0
17. The authority citation for part 247 continues to read as follows:
Authority: 12 U.S.C. 1701q, 1701s, 1715b, 1715l, and 1715z-1;
42 U.S.C. 1437a, 1437c, 1437f, and 3535(d).
0
18. In Sec. 247.1, redesignate the undesignated paragraph as paragraph
(a) and add paragraph (b) to read as follows:
Sec. 247.1 Applicability.
* * * * *
(b) Landlords of subsidized projects that have been assisted under
a covered housing program listed in 24 CFR 5.2003 must comply with 24
CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking), as described in Sec.
200.38.
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
0
19. The authority citation for part 574 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
0
20. In Sec. 574.310, revise paragraph (e)(2)(i) to read as follows:
Sec. 574.310 General standards for eligible housing activities.
* * * * *
(e) * * *
(2) * * * (i) Basis. Assistance to participants who reside in
housing programs assisted under this part may be terminated if the
participant violates program requirements or conditions of occupancy,
subject to the VAWA protections in 24 CFR 5.2005(b) and 24 CFR
5.2005(c). Grantees must ensure that supportive services are provided,
so that a participant's assistance is terminated only in the most
severe cases.
* * * * *
0
21. Add Sec. 574.460 to subpart E to read as follows:
Sec. 574.460 Remaining participants following bifurcation of a lease
or eviction as a result of domestic violence, dating violence, sexual
assault, or stalking.
When a covered housing provider exercises the option to bifurcate a
lease, as provided in 24 CFR 5.2009(a), in order to evict, remove,
terminate occupancy rights, or terminate assistance to a person with
AIDS or related diseases that receives rental assistance or resides in
rental housing assisted under the HOPWA program for engaging in
criminal activity directly relating to domestic violence, dating
violence, sexual assault or stalking, the covered housing provider
shall provide the remaining persons residing in the unit a reasonable
grace period to establish eligibility to receive HOPWA assistance or
find alternative housing. The grantee or project sponsor shall set the
reasonable grace period, which shall be no less than 90 calendar days,
and not more than one year, from the date of the bifurcation of the
lease. Housing assistance and supportive services under the HOPWA
program shall continue for the remaining persons residing in the unit
during the grace period. The grantee or project sponsor shall notify
the remaining persons residing in the unit of the duration of the
reasonable grace period and may assist them with information on other
available housing programs and with moving expenses.
0
22. Revise Sec. 574.520(b) to read as follows:
Sec. 574.520 Performance reports.
* * * * *
(b) Competitive grants. A grantee shall submit to HUD annually a
report describing the use of the amounts received, including the number
of individuals assisted, the types of assistance provided, data on
emergency transfers requested under 24 CFR 5.2005(e), pertaining to
victims of domestic violence, dating violence, sexual assault, or
stalking, including data on the outcomes of such requests, and any
other information that HUD may require. Annual reports are required
until all grant funds are expended.
0
23. Add Sec. 574.530(c) to read as follows:
Sec. 574.530 Recordkeeping.
* * * * *
(c) Data on emergency transfers requested under 24 CFR 5.2005(e),
pertaining to victims of domestic violence, dating violence, sexual
assault, or stalking, including data on the outcomes of such requests.
0
24. Add Sec. 574.604 to read as follows:
Sec. 574.604 Protections for victims of domestic violence, dating
violence, sexual assault, and stalking.
(a) General--(1) Applicability of VAWA requirements. Except as
provided in paragraph (a)(2) of this section, the Violence Against
Women Act (VAWA) requirements set forth in 24 CFR part 5, subpart L
(Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking), apply to housing assisted with HOPWA grant funds
for acquisition, rehabilitation, conversion, lease, and repair of
facilities to provide housing; new construction; and operating costs,
as provided in Sec. 574.300. The requirements set forth in 24 CFR part
5, subpart L, also apply to project-based and tenant-based rental
assistance, as provided in Sec. Sec. 574.300 and 574.320,
[[Page 80807]]
and community residences, as provided in Sec. 574.340.
(2) Limited applicability of VAWA requirements. The VAWA
requirements set forth in 24 CFR part 5, subpart L do not apply to
short-term supported housing, as provided in Sec. 574.330, except that
no individual may be denied admission to or removed from the short-term
supported housing on the basis or as a direct result of the fact that
the individual is or has been a victim of domestic violence, dating
violence, sexual assault, or stalking, if the individual otherwise
qualifies for admission or occupancy.
(3) The terms ``affiliated individual,'' ``dating violence,''
``domestic violence,'' ``sexual assault,'' and ``stalking'' are defined
in 24 CFR 5.2003.
(b) Covered housing provider. As used in this part, the term,
``covered housing provider,'' which is defined in 24 CFR 5.2003, refers
to the HOPWA grantee, project sponsor, or housing or facility owner, or
manager, as described in this section.
(1)(i) For housing assisted with HOPWA grant funds for acquisition,
rehabilitation, conversion, lease, and repair of facilities to provide
housing; new construction; operating costs; community residences; and
project-based rental assistance, the HOPWA grantee is responsible for
ensuring that each project sponsor undertakes the following actions
(or, if administering the HOPWA assistance directly, the grantee shall
undertake the following actions):
(A) Sets a policy for determining the ``reasonable grace period''
for remaining persons residing in the unit to establish eligibility for
HOPWA assistance or find alternative housing, which period shall be no
less than 90 calendar days nor more than one year from the date of
bifurcation of a lease, consistent with 24 CFR 574.460;
(B) Provides notice of occupancy rights and the certification form
at the times listed in paragraph (d) of this section;
(C) Adopts and administers an emergency transfer plan, as developed
by the grantee in accordance with 24 CFR 5.2005(e) of this section, and
facilitates emergency transfers; and
(D) Maintains the confidentiality of documentation submitted by
tenants requesting emergency transfers and of each tenant's housing
location consistent with Sec. 574.440 and 24 CFR 5.2007(c).
(ii)(A) If a tenant seeks VAWA protections, set forth in 24 CFR
part 5, subpart L, the tenant must submit such request through the
project sponsor (or the grantee if the grantee is directly
administering HOPWA assistance). Grantees and project sponsors will
work with the housing or facility owner or manager to facilitate
protections on the tenant's behalf. Project sponsors must follow the
documentation specifications in 24 CFR 5.2007, including the
confidentiality requirements in 24 CFR 5.2007(c).
(B) The grantee or project sponsor is responsible for ensuring that
the housing or facility owner or manager develops and uses a HOPWA
lease addendum with VAWA protections and is made aware of the option to
bifurcate a lease in accordance with Sec. 574.460 and 24 CFR 5.2009.
(2)(i) For tenant-based rental assistance, the HOPWA grantee is
responsible for ensuring that each project sponsor providing tenant-
based rental assistance undertakes the following actions (or, if
administering the HOPWA assistance directly, the grantee shall
undertake the following actions):
(A) Sets policy for determining the ``reasonable grace period'' for
remaining persons residing in the unit to establish eligibility for
HOPWA assistance or find alternative housing, which period shall be no
less than 90 calendar days and no more than one year from the date of
bifurcation of a lease, consistent with 24 CFR 574.460;
(B) Provides notice of occupancy rights and the certification form
at the times listed in paragraph (d) of this section;
(C) Adopts and administers an emergency transfer plan, as developed
by the grantee in accordance with 24 CFR 5.2005(e) of this section, and
facilitates emergency transfers; and
(D) Maintains the confidentiality of documentation submitted by
tenants requesting emergency transfers and of each tenant's housing
location consistent with Sec. 574.440 and 24 CFR 5.2007(c).
(ii)(A) If a tenant seeks VAWA protections set forth in 24 CFR part
5, subpart L, the tenant must submit such request through the project
sponsor (or the grantee if the grantee is directly administering HOPWA
assistance). The project sponsor will work with the housing owner or
manager to facilitate protections on the tenant's behalf. Project
sponsors must follow the documentation specifications in 24 CFR 5.2007,
including the confidentiality requirements in 24 CFR 5.2007(c). The
project sponsor (or the grantee if the grantee is directly
administering HOPWA assistance) is also responsible for determining on
a case-by-case basis whether to provide new tenant-based rental
assistance to a remaining tenant if lease bifurcation or an emergency
transfer results in division of the household.
(B) The grantee or project sponsor is responsible for ensuring that
the housing owner or manager develops and uses a HOPWA lease addendum
with VAWA protections and is made aware of the option to bifurcate a
lease in accordance with Sec. 574.460 and 24 CFR 5.2009.
(c) Effective date. The core statutory protections of VAWA that
prohibit denial or termination of assistance or eviction because an
applicant or tenant is a victim of domestic violence, dating violence,
sexual assault, or stalking applied upon enactment of VAWA 2013 on
March 7, 2013. For formula grants, compliance with the VAWA regulatory
requirements under this section and 24 CFR part 5, subpart L, are
required for any project covered under Sec. 574.604(a) for which the
date of the HOPWA funding commitment is made on or after December 16,
2016. For competitive grants, compliance with the VAWA regulatory
requirements under this section and 24 CFR part 5, subpart L, are
required for awards made on or after December 16, 2016.
(d) Notification requirements. (1) As provided in paragraph (b) of
this section, the grantee is responsible for ensuring that the notice
of occupancy rights and certification form described in 24 CFR
5.2005(a) is provided to each person receiving project-based or tenant-
based rental assistance under HOPWA or residing in rental housing
assisted under the eligible activities described in Sec. 574.604(a) at
the following times:
(i) At the time the person is denied rental assistance or admission
to a HOPWA-assisted unit;
(ii) At the time the person is admitted to a HOPWA-assisted unit or
is provided rental assistance;
(iii) With any notification of eviction from the HOPWA-assisted
unit or notification of termination of rental assistance; and
(iv) During the 12-month period following December 16, 2016, either
during annual recertification or lease renewal, whichever is
applicable, or, if there will be no recertification or lease renewal
for a tenant during the first year after the rule takes effect, through
other means.
(2) The grantee is responsible for ensuring that, for each tenant
receiving HOPWA tenant-based rental assistance, the owner or manager of
the tenant's housing unit commits to provide the notice of occupancy
rights and certification form described in 24 CFR 5.2005 with any
notification of eviction
[[Page 80808]]
that the owner or manager provides to the tenant during the period for
which the tenant is receiving HOPWA tenant-based rental assistance.
This commitment, as well as the confidentiality requirements under 24
CFR 5.2007(c), must be set forth in the VAWA lease term/addendum
required under paragraph (f) of this section.
(e) Definition of reasonable time. For the purpose of 24 CFR
5.2009(b), the reasonable time to establish eligibility or find
alternative housing following bifurcation of a lease is the reasonable
grace period described in Sec. 574.460.
(f) VAWA lease term/addendum. As provided in paragraph (b) of this
section, the grantee or project sponsor is responsible for ensuring
that the housing or facility owner or manager, as applicable, develops
and uses a VAWA lease term/addendum to incorporate all requirements
that apply to the housing or facility owner or manager under 24 CFR
part 5, subpart L, and this section, including the prohibited bases for
eviction under 24 CFR 5.2005(b), the provisions regarding construction
of lease terms and terms of assistance under 24 CFR 5.2005(c), and the
confidentiality of documentation submitted by tenants requesting
emergency transfers and of each tenant's housing location consistent
with 24 CFR 5.2007(c). The VAWA lease term/addendum must also provide
that the tenant may terminate the lease without penalty if a
determination is made that the tenant has met the conditions for an
emergency transfer under 24 CFR 5.2005(e). The grantee or project
sponsor is responsible for ensuring that the housing or facility owner,
or manager, as applicable, adds the VAWA lease term/addendum to the
leases for all HOPWA-assisted units and the leases for all eligible
persons receiving HOPWA tenant-based rental assistance.
PART 576--EMERGENCY SOLUTIONS GRANTS PROGRAM
0
25. The authority citation for part 576 continues to read as follows:
Authority: 42 U.S.C. 11371 et seq., 42 U.S.C. 3535(d).
0
26. In Sec. 576.105, add paragraph (a)(7) to read as follows:
Sec. 576.105 Housing relocation and stabilization services.
(a) * * *
(7) If a program participant receiving short- or medium-term rental
assistance under Sec. 576.106 meets the conditions for an emergency
transfer under 24 CFR 5.2005(e), ESG funds may be used to pay amounts
owed for breaking a lease to effect an emergency transfer. These costs
are not subject to the 24-month limit on rental assistance under Sec.
576.106.
* * * * *
0
27. In Sec. 576.106, paragraphs (e) and (g) are revised to read as
follows:
Sec. 576.106 Short-term and medium-term rental assistance.
* * * * *
(e) Rental assistance agreement. The recipient or subrecipient may
make rental assistance payments only to an owner with whom the
recipient or subrecipient has entered into a rental assistance
agreement. The rental assistance agreement must set forth the terms
under which rental assistance will be provided, including the
requirements that apply under this section. The rental assistance
agreement must provide that, during the term of the agreement, the
owner must give the recipient or subrecipient a copy of any notice to
the program participant to vacate the housing unit or any complaint
used under State or local law to commence an eviction action against
the program participant. Each rental assistance agreement that is
executed or renewed on or after December 16, 2016 must include all
protections that apply to tenants and applicants under 24 CFR part 5,
subpart L, as supplemented by Sec. 576.409, except for the emergency
transfer plan requirements under 24 CFR 5.2005(e) and 576.409(d). If
the housing is not assisted under another ``covered housing program'',
as defined in 24 CFR 5.2003, the agreement may provide that the owner's
obligations under 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking),
expire at the end of the rental assistance period.
* * * * *
(g) Lease. Each program participant receiving rental assistance
must have a legally binding, written lease for the rental unit, unless
the assistance is solely for rental arrears. The lease must be between
the owner and the program participant. Where the assistance is solely
for rental arrears, an oral agreement may be accepted in place of a
written lease, if the agreement gives the program participant an
enforceable leasehold interest under state law and the agreement and
rent owed are sufficiently documented by the owner's financial records,
rent ledgers, or canceled checks. For program participants living in
housing with project-based rental assistance under paragraph (i) of
this section, the lease must have an initial term of 1 year. Each lease
executed on or after December 16, 2016 must include a lease provision
or incorporate a lease addendum that includes all requirements that
apply to tenants, the owner or lease under 24 CFR part 5, subpart L
(Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking), as supplemented by 24 CFR 576.409, including the
prohibited bases for eviction and restrictions on construing lease
terms under 24 CFR 5.2005(b) and (c). If the housing is not assisted
under another ``covered housing program,'' as defined in 24 CFR 5.2003,
the lease provision or lease addendum may be written to expire at the
end of the rental assistance period.
* * * * *
0
28. In Sec. 576.400, revise paragraph (e)(3)(vi) to read as follows:
Sec. 576.400 Area-wide systems coordination requirements.
* * * * *
(e) * * *
(3) * * *
(vi) Policies and procedures for determining and prioritizing which
eligible families and individuals will receive homelessness prevention
assistance and which eligible families and individuals will receive
rapid re-housing assistance (these policies must include the emergency
transfer priority required under Sec. 576.409);
* * * * *
0
29. Add Sec. 576.409 to subpart E to read as follows:
Sec. 576.409 Protection for victims of domestic violence, dating
violence, sexual assault, or stalking.
(a) Applicability of VAWA protections. The core statutory
protections of VAWA that prohibit denial or termination of assistance
or eviction solely because an applicant or tenant is a victim of
domestic violence, dating violence, sexual assault, or stalking applied
upon enactment of VAWA 2013 on March 7, 2013. The VAWA regulatory
requirements under 24 CFR part 5, subpart L, as supplemented by this
section, apply to all eligibility and termination decisions that are
made with respect to ESG rental assistance on or after December 16,
2016. The recipient must ensure that the requirements under 24 CFR part
5, subpart L, are included or incorporated into rental assistance
agreements and leases as provided in Sec. 576.106(e) and (g).
(b) Covered housing provider. For the ESG program, ``covered
housing provider,'' as such term is used in HUD's regulations in 24 CFR
part 5, subpart L, refers to:
[[Page 80809]]
(1) The recipient or subrecipient that administers the rental
assistance for the purposes of 24 CFR 5.2005(e);
(2) The housing owner for the purposes of 24 CFR 5.2005(d)(1),
(d)(3), and (d)(4) and 5.2009(a);
(3) The housing owner and the recipient or subrecipient that
administers the rental assistance for the purposes of 24 CFR
5.2005(d)(2); and
(4) The housing owner and the recipient or subrecipient that
administers the rental assistance for the purposes of 24 CFR 5.2007.
However, the recipient or subrecipient may limit documentation requests
under 24 CFR 5.2007 to only the recipient or subrecipient, provided
that:
(i) This limitation is made clear in both the notice described
under 24 CFR 5.2005(a)(1) and the rental assistance agreement;
(ii) The entity designated to receive documentation requests
determines whether the program participant is entitled to protection
under VAWA and immediately advise the program participant of the
determination; and
(iii) If the program participant is entitled to protection, the
entity designated to receive documentation requests must notify the
owner in writing that the program participant is entitled to protection
under VAWA and work with the owner on the program participant's behalf.
Any further sharing or disclosure of the program participant's
information will be subject to the requirements in 24 CFR 5.2007.
(c) Notification. As provided under 24 CFR 5.2005(a) each recipient
or subrecipient that determines eligibility for or administers ESG
rental assistance is responsible for ensuring that the notice and
certification form described under 24 CFR 5.2005(a)(1) is provided to
each applicant for ESG rental assistance and each program participant
receiving ESG rental assistance at each of the following times:
(1) When an individual or family is denied ESG rental assistance;
(2) When an individual or family's application for a unit receiving
project-based rental assistance is denied;
(3) When a program participant begins receiving ESG rental
assistance;
(4) When a program participant is notified of termination of ESG
rental assistance; and
(5) When a program participant receives notification of eviction.
(d) Emergency transfer plan. (1) The recipient must develop the
emergency transfer plan under 24 CFR 5.2005(e) or, if the recipient is
a state, require its subrecipients that administer ESG rental
assistance to develop the emergency transfer plan(s) required under 24
CFR 5.2005(e). If the state's subrecipients are required to develop the
plan(s), the recipient must specify whether an emergency transfer plan
is to be developed for:
(i) The state as a whole;
(ii) Each area within the state that is covered by a Continuum of
Care; or
(iii) Each subrecipient that administers ESG rental assistance.
(2) Once the applicable plan is developed in accordance with this
section, the recipient and each subrecipient that administers ESG
rental assistance must implement the plan in accordance with 24 CFR
5.2005(e).
(3) Each emergency transfer plan must meet the requirements in 24
CFR 5.2005(e) and include the following program requirements:
(i) For families living in units receiving project-based rental
assistance (assisted units), the required policies must provide that if
a program participant qualifies for an emergency transfer, but a safe
unit is not immediately available for an internal emergency transfer,
that program participant shall have priority over all other applicants
for tenant-based rental assistance, utility assistance, and units for
which project-based rental assistance is provided.
(ii) For families receiving tenant-based rental assistance, the
required policies must specify what will happen with respect to the
non-transferring family member(s), if the family separates in order to
effect an emergency transfer.
(e) Bifurcation. For the purposes of this part, the following
requirements shall apply in place of the requirements at 24 CFR
5.2009(b):
(1) When a family receiving tenant-based rental assistance
separates under 24 CFR 5.2009(a), the family's tenant-based rental
assistance and utility assistance, if any, shall continue for the
family member(s) who are not evicted or removed.
(2) If a family living in a unit receiving project-based rental
assistance separates under 24 CFR 5.2009(a), the family member(s) who
are not evicted or removed can remain in the assisted unit without
interruption to the rental assistance or utility assistance provided
for the unit.
(f) Emergency shelters. The following requirements apply to
emergency shelters funded under Sec. 576.102:
(1) No individual or family may be denied admission to or removed
from the emergency shelter on the basis or as a direct result of the
fact that the individual or family is or has been a victim of domestic
violence, dating violence, sexual assault, or stalking, if the
individual or family otherwise qualifies for admission or occupancy.
(2) The terms ``affiliated individual,'' ``dating violence,''
``domestic violence,'' ``sexual assault,'' and ``stalking'' are defined
in 24 CFR 5.2003.
0
30. In Sec. 576.500, revise the introductory text of paragraph (s) and
add paragraph (s)(5) to read as follows:
Sec. 576.500 Recordkeeping and reporting requirements.
* * * * *
(s) Other Federal requirements. The recipient and its subrecipients
must document their compliance with the Federal requirements in Sec.
576.407 and Sec. 576.409, as applicable, including:
* * * * *
(5) Data on emergency transfers requested under Sec. 576.409,
pertaining to victims of domestic violence, dating violence, sexual
assault, or stalking, including data on the outcomes of such requests.
* * * * *
PART 578--CONTINUUM OF CARE PROGRAM
0
31. The authority citation for part 578 continues to read as follows:
Authority: 42 U.S.C. 11371 et seq., 42 U.S.C. 3535(d).
0
32. In Sec. 578.7, paragraphs (a)(9)(ii), (iii) and (v) are revised
and paragraph (d) is added to read as follows:
Sec. 578.7 Responsibilities of the Continuum of Care.
(a) * * *
(9) * * *
(ii) Policies and procedures for determining and prioritizing which
eligible individuals and families will receive transitional housing
assistance (these policies must include the emergency transfer priority
required under Sec. 578.99(j)(8));
(iii) Policies and procedures for determining and prioritizing
which eligible individuals and families will receive rapid rehousing
assistance (these policies must include the emergency transfer priority
required under Sec. 578.99(j)(8));
* * * * *
(v) Policies and procedures for determining and prioritizing which
eligible individuals and families will receive permanent supportive
housing assistance (these policies must include the emergency transfer
priority required under Sec. 578.99(j)(8)); and
* * * * *
(d) VAWA emergency transfer plan. The Continuum of Care must
develop the emergency transfer plan for the
[[Page 80810]]
Continuum of Care that meets the requirements under Sec. 578.99(j)(8).
0
33. In Sec. 578.51, add paragraph (m) to read as follows:
Sec. 578.51 Rental assistance.
* * * * *
(m) VAWA emergency transfer plan costs. Recipients and
subrecipients of grants for tenant-based rental assistance may use
grant funds to pay amounts owed for breaking the lease if the family
qualifies for an emergency transfer under the emergency transfer plan
established under Sec. 578.99(j)(8).
0
34. In Sec. 578.75, add paragraph (j) to read as follows:
Sec. 578.75 General operations.
* * * * *
(j) Remaining program participants following bifurcation of a lease
or eviction as a result of domestic violence. For permanent supportive
housing projects, members of any household who were living in a unit
assisted under this part at the time of a qualifying member's eviction
from the unit because the qualifying member was found to have engaged
in criminal activity directly relating to domestic violence, dating
violence, sexual assault, or stalking, have the right to rental
assistance under this section until the expiration of the lease in
effect at the time of the qualifying member's eviction.
0
35. In Sec. 578.99, add paragraph (j) to read as follows:
Sec. 578.99 Applicability of other Federal requirements.
* * * * *
(j) Protections for victims of domestic violence, dating violence,
sexual assault, or stalking--(1) General. The requirements set forth in
24 CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking), implementing the
requirements of VAWA apply to all permanent housing and transitional
housing for which Continuum of Care program funds are used for
acquisition, rehabilitation, new construction, leasing, rental
assistance, or operating costs. The requirements also apply where funds
are used for homelessness prevention, but only where the funds are used
to provide short- and/or medium-term rental assistance. Safe havens are
subject only to the requirements in paragraph (j)(9) of this section.
(2) Definition of covered housing provider. For the Continuum of
Care program, ``covered housing provider,'' as such term is used in
HUD's regulations in 24 CFR part 5, subpart L refers to:
(i) The owner or landlord, which may be the recipient or
subrecipient, for purposes of 24 CFR 5.2005(d)(1) and 5.2009(a);
(ii) The recipient, subrecipient, and owner or landlord for
purposes of 24 CFR 5.2005(d)(2) through (d)(4); and
(iii) The recipient, subrecipient, and owner or landlord for
purposes of 24 CFR 5.2007. However, the recipient or subrecipient may
limit documentation requests under Sec. 5.2007 to only the recipient
or subrecipient, provided that:
(i) This limitation is made clear in both the notice described
under 24 CFR 5.2005(a)(1) and the rental assistance agreement;
(ii) The entity designated to receive documentation requests
determines whether the program participant is entitled to protection
under VAWA and immediately advise the program participant of the
determination; and
(iii) If the program participant is entitled to protection, the
entity designated to receive documentation requests must notify the
owner in writing that the program participant is entitled to protection
under VAWA and work with the owner on the program participant's behalf.
Any further sharing or disclosure of the program participant's
information will be subject to the requirements in 24 CFR 5.2007.
(3) Effective date. The core statutory protections of VAWA that
prohibit denial or termination of assistance or eviction solely because
an applicant or tenant is a victim of domestic violence, dating
violence, sexual assault, or stalking, applied upon enactment of VAWA
2013 on March 7, 2013. Compliance with the VAWA regulatory requirements
under this section and at 24 CFR part 5, subpart L, is required for
grants awarded pursuant to NOFAs published on or after December 16,
2016.
(4) Notification requirements. (i) The recipient or subrecipient
must provide each individual or family applying for permanent housing
and transitional housing and each program participant the notice and
the certification form described in 24 CFR 5.2005 at each of the
following times:
(A) When an individual or family is denied permanent housing or
transitional housing;
(B) When a program participant is admitted to permanent housing or
transitional housing;
(C) When a program participant receives notification of eviction;
and
(D) When a program participant is notified of termination of
assistance.
(ii) When grant funds are used for rental assistance, the recipient
or subrecipient must ensure that the owner or manager of the housing
provides the notice and certification form described in 24 CFR
5.2005(a) to the program participant with any notification of eviction.
This commitment and the confidentiality requirements under 24 CFR
5.2007(c) must be set forth in a contract with the owner or landlord.
(5) Contract, lease, and occupancy agreement provisions. (i)
Recipients and subrecipients must include in any contracts and leases
between the recipient or subrecipient, and an owner or landlord of the
housing:
(A) The requirement to comply with 24 CFR part 5, subpart L; and
(B) Where the owner or landlord of the housing will have a lease
with a program participant, the requirement to include a lease
provision that include all requirements that apply to tenants, the
owner or the lease under 24 CFR part 5, subpart L, as supplemented by
this part, including the prohibited bases for eviction and restrictions
on construing lease terms under 24 CFR 5.2005(b) and (c).
(ii) The recipient or subrecipient must include in any lease,
sublease, and occupancy agreement with the program participant a
provision that include all requirements that apply to tenants, the
owner or the lease under 24 CFR part 5, subpart L, as supplemented by
this part, including the prohibited bases for eviction and restrictions
on construing lease terms under 24 CFR 5.2005(b) and (c). The lease,
sublease, and occupancy agreement may specify that the protections
under 24 CFR part 5, subpart L, apply only during the period of
assistance under the Continuum of Care Program. The period of
assistance for housing where grant funds were used for acquisition,
construction, or rehabilitation is 15 years from the date of initial
occupancy or date of initial service provision.
(iii) Except for tenant-based rental assistance, recipients and
subrecipients must require that any lease, sublease, or occupancy
agreement with a program participant permits the program participant to
terminate the lease, sublease, or occupancy agreement without penalty
if the recipient or subrecipient determines that the program
participant qualifies for an emergency transfer under the emergency
transfer plan established under paragraph (j)(8) of this section.
(iv) For tenant-based rental assistance, the recipient or
subrecipient must enter into a contract with the owner or landlord of
the housing that:
[[Page 80811]]
(A) Requires the owner or landlord of the housing to comply with
the provisions of 24 CFR part 5, subpart L; and
(B) Requires the owner or landlord of the housing to include a
lease provision that include all requirements that apply to tenants,
the owner or the lease under 24 CFR part 5, subpart L, as supplemented
by this part, including the prohibited bases for eviction and
restrictions on construing lease terms under 24 CFR 5.005(b) and (c).
The lease may specify that the protections under 24 CFR part 5, subpart
L, only apply while the program participant receives tenant-based
rental assistance under the Continuum of Care Program.
(6) Transition. (i) The recipient or subrecipient must ensure that
the requirements set forth in paragraph (j)(5) of this section apply to
any contracts, leases, subleases, or occupancy agreements entered into,
or renewed, following the expiration of an existing term, on or after
the effective date in paragraph (j)(2) of this section. This obligation
includes any contracts, leases, subleases, and occupancy agreements
that will automatically renew on or after the effective date in
paragraph (j)(3) of this section.
(ii) For leases for tenant-based rental assistance existing prior
to the effective date in paragraph (j)(2) of this section, recipients
and subrecipients must enter into a contract under paragraph (j)(6)(iv)
of this section before the next renewal of the lease.
(7) Bifurcation. For the purposes of this part, the following
requirements shall apply in place of the requirements at 24 CFR
5.2009(b):
(i) If a family who is receiving tenant-based rental assistance
under this part separates under 24 CFR 5.2009(a), the family's tenant-
based rental assistance and any utility assistance shall continue for
the family member(s) who are not evicted or removed.
(ii) If a family living in permanent supportive housing separates
under 24 CFR 5.2009(a), and the family's eligibility for the housing
was based on the evicted individual's disability or chronically
homeless status, the remaining tenants may stay in the project as
provided under Sec. 578.75(i)(2). Otherwise, if a family living in a
project funded under this part separates under 24 CFR 5.2009(a), the
remaining tenant(s) will be eligible to remain in the project.
(8) Emergency transfer plan. The Continuum of Care must develop an
emergency transfer plan for the Continuum of Care, and recipients and
subrecipients in the Continuum of Care must follow that plan. The plan
must comply with 24 CFR 5.2005(e) and include the following program
requirements:
(i) For families receiving tenant-based rental assistance, the plan
must specify what will happen with respect to the non-transferring
family member(s), if the family separates in order to effect an
emergency transfer.
(ii) For families living in units that are otherwise assisted under
this part (assisted units), the required policies must provide that for
program participants who qualify for an emergency transfer but a safe
unit is not immediately available for an internal emergency transfer,
the individual or family shall have priority over all other applicants
for rental assistance, transitional housing, and permanent supportive
housing projects funded under this part, provided that: The individual
or family meets all eligibility criteria required by Federal law or
regulation or HUD NOFA; and the individual or family meets any
additional criteria or preferences established in accordance with Sec.
578.93(b)(1), (4), (6), or (7). The individual or family shall not be
required to meet any other eligibility criteria or preferences for the
project. The individual or family shall retain their original homeless
or chronically homeless status for the purposes of the transfer.
(9) Protections with respect to safe havens. The following
requirements apply to safe havens funded under this part:
(i) No individual may be denied admission to or removed from the
safe haven on the basis or as a direct result of the fact that the
individual is or has been a victim of domestic violence, dating
violence, sexual assault, or stalking, if the individual otherwise
qualifies for admission or occupancy.
(iii) The terms ``affiliated individual,'' ``dating violence,''
``domestic violence,'' ``sexual assault,'' and ``stalking'' are defined
in 24 CFR 5.2003.
0
36. In Sec. 578.103, revise the heading of paragraph (a)(6),
redesignate paragraphs (a)(6)(i) and (ii) as paragraphs (a)(6)(i)(A)
and (B), respectively, redesignate paragraph (a)(6) introductory text
as (a)(6)(i) introductory text, and add new paragraph (a)(6)(ii) to
read as follows:
Sec. 578.103 Recordkeeping requirements.
(a) * * *
(6) Moves for victims of domestic violence, dating violence, sexual
assault, and stalking. * * *
(ii) Data on emergency transfers requested under 24 CFR 5.2005(e)
and Sec. 578.99, pertaining to victims of domestic violence, dating
violence, sexual assault, or stalking, including data on the outcomes
of such requests.
* * * * *
PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENT PROGRAM FOR NEW
CONSTRUCTION
0
37. 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
38. In Sec. 880.201, a definition of ``covered housing provider'' is
added in alphabetical order to read as follows:
Sec. 880.201 Definitions.
* * * * *
Covered housing provider. For the Section 8 Housing Assistance
Payment Program for New Construction, ``covered housing provider,'' as
such term is used in HUD's regulations in 24 CFR part 5, subpart L
(Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking), refers to the owner.
* * * * *
0
39. Revise Sec. 880.504(f) to read as follows:
Sec. 880.504 Leasing to eligible families.
* * * * *
(f) Protections for victims of domestic violence, dating violence,
sexual assault, or stalking. The regulations of 24 CFR part 5, subpart
L (Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking), apply to this section.
0
40. In Sec. 880.607, 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 (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking).
* * * * *
0
41. Add Sec. 880.613 to subpart F to read as follows:
Sec. 880.613 Emergency transfers for victims of domestic violence,
dating violence, sexual assault, and stalking.
(a) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, and stalking,
covered housing providers have discretion to adopt new,
[[Page 80812]]
and modify any existing, admission preferences or transfer waitlist
priorities.
(c) In addition to following requirements in 24 CFR 5.2005(e), when
a safe unit is not immediately available for a victim of domestic
violence, dating violence, sexual assault, or stalking who qualifies
for an emergency transfer, covered housing providers must:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, covered housing providers must submit to HUD data on
all emergency transfers requested under 24 CFR 5.2005(e), including
data on the outcomes of such requests.
PART 882--SECTION 8 MODERATE REHABILITATION PROGRAMS
0
42. The authority citation for part 882 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535d.
0
43. In Sec. 882.102(b), a definition of ``covered housing provider''
is added in alphabetical order to read as follows:
Sec. 882.102 Definitions.
* * * * *
(b) * * *
Covered housing provider. For the Section 8 Moderate Rehabilitation
Programs, as provided in subparts A, D, and E of this part, ``covered
housing provider,'' as such term is used in HUD's regulations in 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), refers to the PHA or owner, as
applicable given the responsibilities of the covered housing provider
as set forth in 24 CFR part 5, subpart L. For example, the PHA is the
covered housing provider responsible for providing the notice of
occupancy rights under VAWA and certification form described at 24 CFR
5.2005(a), though the PHA may provide this notice and form to owners,
and charge owners with distributing the notice and form to tenants. In
addition, the owner is the covered housing provider that may choose to
bifurcate a lease as described at 24 CFR 5.2009(a), while both the PHA
and owner are both responsible for ensuring that an emergency transfer
plan is in place in accordance with 24 CFR 5.2005(e), and the owner is
responsible for implementing the emergency transfer plan when an
emergency occurs.
* * * * *
0
44. Revise Sec. 882.407 to read as follows:
Sec. 882.407 Other Federal requirements.
(a) 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, sexual
assault, or stalking in 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, or stalking,
covered housing providers have discretion to adopt and modify any
existing admission preferences or transfer waitlist priorities for
victims of domestic violence, dating violence, sexual assault, or
stalking.
(c) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e), and when a safe unit is not immediately available for a
victim of domestic violence, dating violence, sexual assault, and
stalking who qualifies for an emergency transfer, covered housing
providers must, at a minimum:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, the covered housing provider must submit to HUD data
on all emergency transfers requested under 24 CFR 5.2005(e), pertaining
to victims of domestic violence, dating violence, sexual assault, or
stalking, including data on the outcomes of such requests.
0
45. Revise Sec. 882.511(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 (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking).
0
46. In Sec. 882.514(c), revise the fourth sentence, to read as
follows:
Sec. 882.514 Family participation.
* * * * *
(c) Owner selection of families. * * * 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, sexual assault, or stalking, if the applicant otherwise
qualifies for assistance or admission. * * *
* * * * *
0
47. In Sec. 882.802, a definition of ``covered housing provider'' is
added, in alphabetical order, to read as follows:
Sec. 882.802 Definitions.
* * * * *
Covered housing provider. For the Section 8 Moderate Rehabilitation
Single Room Occupancy Program for Homeless Individuals, ``covered
housing provider,'' as such term is used in HUD's regulations in 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), refers to the owner.
* * * * *
0
48. In Sec. 882.804, paragraph (a) is revised, paragraphs (b) and (c)
are redesignated as paragraphs (e) and (f), respectively, and new
paragraphs (b), (c), and (d) are added to read as follows:
Sec. 882.804 Other Federal requirements.
(a) Participation in this program requires compliance with the
Federal requirements set forth in 24 CFR 5.105, with the Americans with
Disabilities Act (42 U.S.C. 12101 et seq.), and with the regulations in
24 CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, or stalking,
covered housing providers have discretion to adopt and modify any
existing admission preferences or transfer waitlist priorities for
victims of domestic violence, dating violence, sexual assault, or
stalking.
(c) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e), and when a safe unit is not immediately available for a
victim of domestic violence, dating violence, sexual assault, and
stalking who qualifies for an emergency transfer, covered housing
providers must, at a minimum:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
[[Page 80813]]
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, the covered housing provider must submit to HUD data
on all emergency transfers requested under 24 CFR 5.2005(e), pertaining
to victims of domestic violence, dating violence, sexual assault, or
stalking, including data on the outcomes of such requests.
* * * * *
PART 883--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAMS--STATE
HOUSING AGENCIES
0
49. 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
50. In Sec. 883.302, a definition of ``covered housing provider'' is
added, in alphabetical order, to read as follows:
Sec. 883.302 Definitions.
* * * * *
Covered housing provider. For the Section 8 Housing Assistance
Payments Programs--State Housing Agencies, ``covered housing
provider,'' as such term is used in HUD's regulations in 24 CFR part 5,
subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), refers to the HFA or owner, as
applicable given the responsibilities of the covered housing provider
as set forth in 24 CFR part 5, subpart L. For example, the PHA is the
covered housing provider responsible for providing the notice of
occupancy rights under VAWA and certification form described at 24 CFR
5.2005(a), though the PHA may provide this notice and form to owners,
and charge owners with distributing the notice and form to tenants. In
addition, the owner is the covered housing provider that may choose to
bifurcate a lease as described at 24 CFR 5.2009(a), while both the PHA
and owner are both responsible for ensuring that an emergency transfer
plan is in place in accordance with 24 CFR 5.2005(e), and the owner is
responsible for implementing the emergency transfer plan when an
emergency occurs.
* * * * *
0
51. Revise Sec. 883.605 to read as follows:
Sec. 883.605 Leasing to eligible families.
The provisions of 24 CFR 880.504 apply to this section, including
reference at 24 CFR 880.504(f) to the requirements of 24 CFR part 5,
subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), 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
0
52. 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
53. In Sec. 884.102, a definition of ``covered housing provider'' is
added, in alphabetical order, to read as follows:
Sec. 884.102 Definitions.
* * * * *
Covered housing provider. For the Section 8 Housing Assistance
Payments Programs, New Construction Set-Aside for Section 515 Rural
Rental Housing, ``covered housing provider,'' as such term is used in
HUD's regulations at 24 CFR part 5, subpart L (Protection for Victims
of Domestic Violence, Dating Violence, Sexual Assault, or Stalking),
refers to the owner
* * * * *
0
54. Revise Sec. 884.216(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 (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking).
0
55. Revise Sec. 884.223(f) to read as follows:
Sec. 884.223 Leasing to eligible families.
* * * * *
(f) The regulations in 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking) apply to this section.
0
56. Add Sec. 884.226 to subpart B to read as follows:
Sec. 884.226 Emergency transfers for victims of domestic violence,
dating violence, sexual assault, and stalking.
(a) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, and stalking,
covered housing providers have discretion to adopt new, and modify any
existing, admission preferences or transfer waitlist priorities.
(c) In addition to following requirements in 24 CFR 5.2005(e), when
a safe unit is not immediately available for a victim of domestic
violence, dating violence, sexual assault, or stalking who qualifies
for an emergency transfer, covered housing providers must:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, covered housing providers must submit to HUD data on
all emergency transfers requested under 24 CFR 5.2005(e), including
data on the outcomes of such requests.
PART 886--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--SPECIAL
ALLOCATIONS
0
57. 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
58. In Sec. 886.102, a definition of ``covered housing provider'' is
added, in alphabetical order, to read as follows:
Sec. 886.102 Definitions.
* * * * *
Covered housing provider. For the Section 8 Housing Assistance
Payments Programs--Special Allocations, subpart A of this part,
``covered housing provider,'' as such term is used in HUD's regulations
at 24 CFR part 5, subpart L (Protection for Victims of Domestic
Violence, Dating Violence, Sexual Assault, or Stalking) refers to the
owner.
* * * * *
0
59. 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. The provisions of 24 CFR part 5,
subpart L (Protection for Victims of Domestic Violence, Dating
Violence,
[[Page 80814]]
Sexual Assault, or Stalking), apply to this section. 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
60. 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 (Protection for Victims of Domestic
Violence, Dating Violence, Sexual Assault, or Stalking) applies to this
section.
0
61. Add Sec. 886.139 to subpart A to read as follows:
Sec. 886.139 Emergency transfers for victims of domestic violence,
dating violence, sexual assault, and stalking.
(a) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, and stalking,
covered housing providers have discretion to adopt new, and modify any
existing, admission preferences or transfer waitlist priorities.
(c) In addition to following requirements in 24 CFR 5.2005(e), when
a safe unit is not immediately available for a victim of domestic
violence, dating violence, sexual assault, or stalking who qualifies
for an emergency transfer, covered housing providers must: (1) Review
the covered housing provider's existing inventory of units and
determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, covered housing providers must submit to HUD data on
all emergency transfers requested under 24 CFR 5.2005(e), including
data on the outcomes of such requests.
0
62. In Sec. 886.302, a definition of ``covered housing provider'' is
added, in the alphabetical order to read as follows:
Sec. 886.302 Definitions
* * * * *
Covered housing provider. For the Section 8 Housing Assistance
Program for the Disposition of HUD-Owned Projects, under subpart C of
this part, ``covered housing provider,'' as such term is used in HUD's
regulations at 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking),
refers to the owner.
* * * * *
0
63. 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. The provisions of 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking) apply to this section. 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
64. Revise Sec. 886.329(f) to read as follows:
Sec. 886.329 Leasing to eligible families.
* * * * *
(f) The regulations of 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking) apply to this section.
0
65. Add Sec. 886.339 to subpart C to read as follows:
Sec. 886.339 Emergency transfers for victims of domestic violence,
dating violence, sexual assault, and stalking.
(a) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, and stalking,
covered housing providers have discretion to adopt new, and modify any
existing, admission preferences or transfer waitlist priorities.
(c) In addition to following requirements in 24 CFR 5.2005(e), when
a safe unit is not immediately available for a victim of domestic
violence, dating violence, sexual assault, or stalking who qualifies
for an emergency transfer, covered housing providers must:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, covered housing providers must submit to HUD data on
all emergency transfers requested under 24 CFR 5.2005(e), including
data on the outcomes of such requests.
PART 891--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH
DISABILITIES
0
66. 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.
0
67. In Sec. 891.105 a definition of ``covered housing provider'' is
added, in alphabetical order, to read as follows:
Sec. 891.105 Definitions.
* * * * *
Covered housing provider. For the Supportive Housing for the
Elderly and Persons with Disabilities Program, ``covered housing
provider,'' as such term is used in HUD's regulations at 24 CFR part 5,
subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), refers to the owner (as defined
in Sec. Sec. 891.205 and 891.305).
* * * * *
0
68. Add Sec. 891.190 to subpart A to read as follows:
Sec. 891.190 Emergency transfers for victims of domestic violence,
dating violence, sexual assault, and stalking.
(a) Covered housing providers must develop and implement an
emergency transfer plan that meets the requirements in 24 CFR
5.2005(e).
(b) In order to facilitate emergency transfers for victims of
domestic violence, dating violence, sexual assault, and stalking,
covered housing providers have discretion to adopt new, and modify any
existing, admission preferences or transfer waitlist priorities.
(c) In addition to following requirements in 24 CFR 5.2005(e), when
a safe unit is not immediately available for a victim of domestic
violence, dating
[[Page 80815]]
violence, sexual assault, or stalking who qualifies for an emergency
transfer, covered housing providers must:
(1) Review the covered housing provider's existing inventory of
units and determine when the next vacant unit may be available; and
(2) Provide a listing of nearby HUD subsidized rental properties,
with or without preference for persons of domestic violence, dating
violence, sexual assault, or stalking, and contact information for the
local HUD field office.
(d) Each year, covered housing providers must submit to HUD data on
all emergency transfers requested under 24 CFR 5.2005(e), including
data on the outcomes of such requests.
0
69. Revise Sec. 891.575(f) to read as follows:
Sec. 891.575 Leasing to eligible families.
* * * * *
(f) The regulations of 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking) apply to this section.
0
70. 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
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.
The provisions of 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking) apply
to this section.
* * * * *
0
71. Revise Sec. 891.630(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 (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking).
PART 905--THE PUBLIC HOUSING CAPITAL FUND PROGRAM
0
72. The authority citation for part 905 continues to read as follows:
Authority: 42 U.S.C. 1437g, 42 U.S.C. 1437z-2, 42 U.S.C. 1437z-
7, and 3535(d).
0
73. In Sec. 905.100, add paragraph (g) to read as follows:
Sec. 905.100 Purpose, general description, and other requirements.
* * * * *
(g) Protections for Victims of Domestic Violence, Dating Violence,
Sexual Assault and Stalking. Public housing agencies must apply the
Violence Against Women Act (VAWA) requirements set forth in 24 CFR part
5, subpart L, to mixed finance developments covered under Sec.
905.604.
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
0
74. 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
75. In Sec. 960.102(b) a definition of ``covered housing provider'' is
added in alphabetical order to read as follows:
Sec. 960.102 Definitions.
* * * * *
(b) * * *
Covered housing provider. For HUD's public housing program,
``covered housing provider,'' as such term is in used HUD's regulations
at 24 CFR part 5, subpart L (Protection for Victims of Domestic
Violence, Dating Violence, Sexual Assault, or Stalking), is the PHA.
* * * * *
0
76. In Sec. 960.103, 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, sexual assault, or
stalking.
* * * * *
(d) Protection for victims of domestic violence, dating violence,
sexual assault, or stalking. The PHA must apply the requirements in 24
CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking).
0
77. In Sec. 960.200, revise paragraph (b)(8) to read as follows:
Sec. 960.200 Purpose.
* * * * *
(b) * * *
(8) Protection for victims of domestic violence, dating violence,
sexual assault, or stalking, 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking).
0
78. In Sec. 960.203, 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 (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking). In cases of requests for
emergency transfers under VAWA, with the written consent of the victim
of domestic violence, dating violence, sexual assault, or stalking, the
receiving PHA may accept and use the prior covered housing provider's
determination of eligibility and tenant screening and all related
verification information, including form HUD 50058 (Family Report).
* * * * *
0
79. In Sec. 960.206, revise paragraph (b)(4) to read as follows:
Sec. 960.206 Waiting List: Local preferences in admission to public
housing program.
* * * * *
(b) * * *
(4) Preference for victims of domestic violence, dating violence,
sexual assault, or stalking. The PHA should consider whether to adopt a
local preference for admission of families that include victims of
domestic violence, dating violence, sexual assault, or stalking.
* * * * *
PART 966--PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE
0
80. The authority citation for part 966 continues to read as follows:
Authority: 42 U.S.C. 1437d and 3535(d).
0
81. In Sec. 966.4, revise paragraphs (a)(1)(vi) and (e)(9) to read as
follows:
Sec. 966.4 Lease requirements.
* * * * *
(a) * * *
(1) * * *
(vi) HUD's regulations in 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking) apply.
* * * * *
(e) * * *
[[Page 80816]]
(9) To consider lease bifurcation, as provided in 24 CFR 5.2009, in
circumstances involving domestic violence, dating violence, sexual
assault, or stalking addressed in 24 CFR part 5, subpart L (Protection
for Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking), provided that, if a PHA chooses to bifurcate a lease, no
assistance will be given for an individual who does not meet public
housing eligibility and 24 CFR 5.508(h)(2) applies to submission of
evidence of citizenship or eligible immigration status.
* * * * *
PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
0
82. The authority citation for part 982 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535d.
0
83. In Sec. 982.53, 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, sexual assault, or stalking.
* * * * *
(e) Protection for victims of domestic violence, dating violence,
sexual assault, or stalking. The PHA must apply the requirements in 24
CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking). For purposes of
compliance with HUD's regulations in 24 CFR part 5, subpart L, the
covered housing provider is the PHA or owner, as applicable given the
responsibilities of the covered housing provider as set forth in 24 CFR
part 5, subpart L. For example, the PHA is the covered housing provider
responsible for providing the Notice of occupancy rights under VAWA and
certification form described at 24 CFR 5.2005(a). In addition, the
owner is the covered housing provider that may choose to bifurcate a
lease as described at 24 CFR 5.2009(a), while the PHA is the covered
housing provider responsible for complying with emergency transfer plan
provisions at 24 CFR 5.2005(e).
0
84. In Sec. 982.201, 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, sexual assault, or stalking, 24
CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking) applies.
* * * * *
0
85. In Sec. 982.202, revise paragraph (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, Sexual
Assault, 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
86. In Sec. 982.207, revise paragraph (b)(4) to read as follows:
Sec. 982.207 Waiting List: Local preferences in admission to
program.
* * * * *
(b) * * *
(4) Preference for victims of domestic violence, dating violence,
sexual assault, or stalking. The PHA should consider whether to adopt a
local preference for admission of families that include victims of
domestic violence, dating violence, sexual assault, or stalking.
* * * * *
0
87. In Sec. 982.307, 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, sexual assault, or stalking, 24 CFR part 5, subpart L
(Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking) applies.
0
88. In Sec. 982.310, revise paragraph (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, sexual assault, or stalking. The
owner's termination of tenancy actions must be consistent with the fair
housing and equal opportunity provisions of 24 CFR 5.105, and with the
provisions for protection of victims of domestic violence, dating
violence, sexual assault, or stalking in 24 CFR part 5, subpart L
(Protection for Victims of Domestic Violence, Dating Violence, Sexual
Assault, or Stalking).
0
89. In Sec. 982.315, revise paragraphs (a)(2) and (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, sexual assault, or stalking as provided in
24 CFR part 5, subpart L (Protection for Victims of Domestic Violence,
Dating Violence, Sexual Assault, or Stalking), 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
of actual or threatened domestic violence, dating violence, sexual
assault, or stalking.
(4) Whether any of the family members are receiving protection as
victims of domestic violence, dating violence, sexual assault, 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
90. In Sec. 982.353, revise paragraph (b) and add paragraph (c)(4) to
read as follows:
Sec. 982.353 Where family can lease a unit with tenant-based
assistance.
* * * * *
(b) Portability: Assistance outside the initial PHA jurisdiction.
Subject to paragraph (c) of this section, and to Sec. 982.552 and
Sec. 982.553, a voucher-holder or participant family has the right to
receive tenant-based voucher assistance, in accordance with
requirements of this part, to lease a unit outside the initial PHA
jurisdiction, anywhere in the United States, in the jurisdiction of a
PHA with a tenant-based program under this part. The
[[Page 80817]]
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 as provided for in this subsection. 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, sexual assault, or stalking and who reasonably believes him-
or herself to be threatened with imminent harm from further violence by
remaining in the dwelling unit (or any family member has been the
victim of a sexual assault that occurred on the premises during the 90-
calendar-day period preceding the family's move or request to move),
and has otherwise complied with all other obligations under the Section
8 program, the family may receive a voucher from the initial PHA and
move to another jurisdiction under the Housing Choice Voucher Program.
(c) * * *
(4) Paragraph (c) of this section does not apply when the family or
a member of the family is or has been the victim of domestic violence,
dating violence, sexual assault, or stalking, as provided in 24 CFR
part 5, subpart L (Protection for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking), and the move is needed to
protect the health or safety of the family or family member, or any
family member who has been the victim of a sexual assault that occurred
on the premises during the 90-calendar-day period preceding the
family's request to move.
* * * * *
0
91. In Sec. 982.354, revise paragraph (b)(4), remove ``and'' from the
end of paragraph (c)(2)(i), remove the period and add ``; and'' in its
place at the end of paragraph (c)(2)(ii), and add paragraph (c)(2)(iii)
to read as follows:
Sec. 982.354 Move with continued tenant-based assistance.
* * * * *
(b) * * *
(4) The family or a member of the family, is or has been the victim
of domestic violence, dating violence, sexual assault, or stalking, as
provided in 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking), and
the move is needed to protect the health or safety of the family or
family member, or if any family member has been the victim of a sexual
assault that occurred on the premises during the 90-calendar-day period
preceding the family's request to move. A PHA may not terminate
assistance if the family, with or without prior notification to the
PHA, moves out of a unit in violation of the lease, if such move occurs
to protect the health or safety of a family member who is or has been
the victim of domestic violence, dating violence, sexual assault, or
stalking and who reasonably believed he or she was threatened with
imminent harm from further violence if he or she remained in the
dwelling unit. However, any family member that has been the victim of a
sexual assault that occurred on the premises during the 90-calendar-day
period preceding the family's move or request to move is not required
to believe that he or she was threatened with imminent harm from
further violence if he or she remained in the dwelling unit.
(c) * * *
(2) * * *
(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, sexual assault, 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, or any family member has been the victim
of a sexual assault that occurred on the premises during the 90-
calendar-day period preceding the family's request to move.
* * * * *
0
92. In Sec. 982.452, revise the second sentence of paragraph (b)(1) 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, sexual assault, or stalking is not
an appropriate basis for denial of tenancy if the applicant otherwise
qualifies for tenancy.
* * * * *
0
93. In Sec. 982.551, revise paragraphs (e) and (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), an incident or
incidents of actual or threatened domestic violence, dating violence,
sexual assault, 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, sexual assault, 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(b)(2), criminal activity directly related to domestic
violence, dating violence, sexual assault, 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 an
affiliated individual of the tenant, as defined in 24 CFR 5.2003, is
the victim.
* * * * *
0
94. In Sec. 982.552, revise paragraph (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, sexual assault, or stalking. The
PHA's admission and termination actions must be consistent with fair
housing and equal opportunity provisions of 24 CFR 5.105, and with the
requirements of 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking).
* * * * *
0
95. In Sec. 982.553, revise paragraph (e) to read as follows:
Sec. 982.553 Denial of admission and termination of assistance for
criminals and alcohol abusers.
* * * * *
(e) The requirements in 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking) apply to this section.
0
96. In Sec. 982.637, revise paragraphs (a)(2) and (3) to read as
follows:
Sec. 982.637 Homeownership option: Move with continued tenant-based
assistance.
(a) * * *
(2) The PHA may not commence continued tenant-based assistance for
occupancy of the new unit so long as any family member owns any title
or other interest in the prior home.
[[Page 80818]]
However, when the family or a member of the family is or has been the
victim of domestic violence, dating violence, sexual assault, or
stalking, as provided in 24 CFR part 5, subpart L (Protection for
Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking), and the move is needed to protect the health or safety of
the family or family member (or any family member has been the victim
of a sexual assault that occurred on the premises during the 90-
calendar-day period preceding the family's request to move), such
family or family member may be assisted with continued tenant-based
assistance even if such family or family member owns any title or other
interest in the prior home.
(3) The PHA may establish policies that prohibit more than one move
by the family during any one-year period. However, these policies do
not apply when the family or a member of the family is or has been the
victim of domestic violence, dating violence, sexual assault, 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,
or any family member has been the victim of a sexual assault that
occurred on the premises during the 90-calendar-day period preceding
the family's request to move.
* * * * *
PART 983--PROJECT-BASED VOUCHER (PBV) PROGRAM
0
97. The authority citation for part 983 continues to read as follows:
Authority: 42 U.S.C. 1437f and 3535(d).
0
98. In Sec. 983.3(b), add the definition of ``covered housing
provider,'' in alphabetical order, to read as follows:
Sec. 983.3 PBV definitions.
* * * * *
(b) * * *
Covered housing provider. For Project-Based Voucher (PBV) program,
``covered housing provider,'' as such term is used in HUD's regulations
in 24 CFR part 5, subpart L (Protection for Victims of Domestic
Violence, Dating Violence, Sexual Assault, or Stalking) refers to the
PHA or owner (as defined in 24 CFR 982.4), as applicable given the
responsibilities of the covered housing provider as set forth in 24 CFR
part 5, subpart L. For example, the PHA is the covered housing provider
responsible for providing the notice of occupancy rights under VAWA and
certification form described at 24 CFR 5.2005(a). In addition, the
owner is the covered housing provider that may choose to bifurcate a
lease as described at 24 CFR 5.2009(a), while the PHA is the covered
housing provider responsible for complying with emergency transfer plan
provisions at 24 CFR 5.2005(e).
* * * * *
0
99. In Sec. 983.4, remove the paragraph ``Protection for victims of
domestic violence, dating violence or stalking'' and add a paragraph
``Protection for victims of domestic violence, dating violence, sexual
assault, or stalking'' in alphabetical order to read as follows:
Sec. 983.4 Cross-reference to other Federal requirements.
* * * * *
Protection for victims of domestic violence, dating violence,
sexual assault, or stalking. See 24 CFR part 5, subpart L (Protection
for Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking). For purposes of compliance with HUD's regulations in 24 CFR
part 5, subpart L, the covered housing provider is the PHA or owner, as
applicable given the responsibilities of the covered housing provider
as set forth in 24 CFR part 5, subpart L.
* * * * *
0
100. In Sec. 983.251, 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, sexual assault, or stalking in 24 CFR part 5, subpart L,
apply to admission to the project-based program.
* * * * *
0
101. In Sec. 983.253, add paragraphs (a)(4) and (c) to read as
follows:
Sec. 983.253 Leasing of contract units.
(a) * * *
(4) The owner must comply with 24 CFR part 5, subpart L (Protection
for Victims of Domestic Violence, Dating Violence, Sexual Assault, or
Stalking).
* * * * *
(c) The protections for victims of domestic violence, dating
violence, sexual assault, or stalking in 24 CFR part 5, subpart L,
apply to tenant screening.
0
102. In Sec. 983.255, revise paragraph (d) to read as follows:
Sec. 983.255 Tenant screening.
* * * * *
(d) The protections for victims of domestic violence, dating
violence, sexual assault, or stalking in 24 CFR part 5, subpart L,
apply to tenant screening.
0
103. In Sec. 983.257, revise the last sentence of paragraph (a) to
read as follows:
Sec. 983.257 Owner termination of tenancy and eviction.
(a) * * * 24 CFR part 5, subpart L (Protection for Victims of
Domestic Violence, Dating Violence, Sexual Assault, or Stalking)
applies to this part.
* * * * *
0
104. In Sec. 983.261, add paragraphs (c)(1) and (2) to read as
follows:
Sec. 983.261 Family right to move.
* * * * *
(c) * * *
(1) 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, sexual assault, 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, or any family member has been the victim
of a sexual assault that occurred on the premises during the 90-
calendar-day period preceding the family's request to move. A PHA may
not terminate assistance if the family, with or without prior
notification to the PHA, moves out of a unit in violation of the lease,
if such move occurs to protect the health or safety of a family member
who is or has been the victim of domestic violence, dating violence,
sexual assault, or stalking and who reasonably believed he or she was
threatened with imminent harm from further violence if he or she
remained in the dwelling unit, or any family member has been the victim
of a sexual assault that occurred on the premises during the 90-
calendar-day period preceding the family's request to move.
(2) If a family breaks up as a result of an occurrence of domestic
violence, dating violence, sexual assault, or stalking, as provided in
24 CFR part 5, subpart L, the PHA may offer the victim the opportunity
for continued tenant-based rental assistance.
* * * * *
Dated: October 20, 2016.
Juli[aacute]n Castro,
Secretary.
Note: The following appendices will not appear in the Code of
Federal Regulations.
[[Page 80819]]
Appendix A
[Insert Name of Housing Provider \23\]
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\23\ The notice uses HP for housing provider but the housing
provider should insert its name where HP is used. HUD's program-
specific regulations identify the individual or entity responsible
for providing the notice of occupancy rights.
---------------------------------------------------------------------------
Notice of Occupancy Rights Under the Violence Against Women Act \24\
---------------------------------------------------------------------------
\24\ Despite the name of this law, VAWA protection is available
regardless of sex, gender identity, or sexual orientation.
---------------------------------------------------------------------------
To all Tenants and Applicants
The Violence Against Women Act (VAWA) provides protections for
victims of domestic violence, dating violence, sexual assault, or
stalking. VAWA protections are not only available to women, but are
available equally to all individuals regardless of sex, gender
identity, or sexual orientation.\25\ The U.S. Department of Housing
and Urban Development (HUD) is the Federal agency that oversees that
[insert name of program or rental assistance] is in compliance with
VAWA. This notice explains your rights under VAWA. A HUD-approved
certification form is attached to this notice. You can fill out this
form to show that you are or have been a victim of domestic
violence, dating violence, sexual assault, or stalking, and that you
wish to use your rights under VAWA.''
---------------------------------------------------------------------------
\25\ Housing providers cannot discriminate on the basis of any
protected characteristic, including race, color, national origin,
religion, sex, familial status, disability, or age. HUD-assisted and
HUD-insured housing must be made available to all otherwise eligible
individuals regardless of actual or perceived sexual orientation,
gender identity, or marital status.
---------------------------------------------------------------------------
Protections for Applicants
If you otherwise qualify for assistance under [insert name of
program or rental assistance], you cannot be denied admission or
denied assistance because you are or have been a victim of domestic
violence, dating violence, sexual assault, or stalking.
Protections for Tenants
If you are receiving assistance under [insert name of program or
rental assistance], you may not be denied assistance, terminated
from participation, or be evicted from your rental housing because
you are or have been a victim of domestic violence, dating violence,
sexual assault, or stalking.
Also, if you or an affiliated individual of yours is or has been
the victim of domestic violence, dating violence, sexual assault, or
stalking by a member of your household or any guest, you may not be
denied rental assistance or occupancy rights under [insert name of
program or rental assistance] solely on the basis of criminal
activity directly relating to that domestic violence, dating
violence, sexual assault, or stalking.
Affiliated individual means your spouse, parent, brother,
sister, or child, or a person to whom you stand in the place of a
parent or guardian (for example, the affiliated individual is in
your care, custody, or control); or any individual, tenant, or
lawful occupant living in your household.
Removing the Abuser or Perpetrator From the Household
HP may divide (bifurcate) your lease in order to evict the
individual or terminate the assistance of the individual who has
engaged in criminal activity (the abuser or perpetrator) directly
relating to domestic violence, dating violence, sexual assault, or
stalking.
If HP chooses to remove the abuser or perpetrator, HP may not
take away the rights of eligible tenants to the unit or otherwise
punish the remaining tenants. If the evicted abuser or perpetrator
was the sole tenant to have established eligibility for assistance
under the program, HP must allow the tenant who is or has been a
victim and other household members to remain in the unit for a
period of time, in order to establish eligibility under the program
or under another HUD housing program covered by VAWA, or, find
alternative housing.
In removing the abuser or perpetrator from the household, HP
must follow Federal, State, and local eviction procedures. In order
to divide a lease, HP may, but is not required to, ask you for
documentation or certification of the incidences of domestic
violence, dating violence, sexual assault, or stalking.
Moving to Another Unit
Upon your request, HP may permit you to move to another unit,
subject to the availability of other units, and still keep your
assistance. In order to approve a request, HP may ask you to provide
documentation that you are requesting to move because of an
incidence of domestic violence, dating violence, sexual assault, or
stalking. If the request is a request for emergency transfer, the
housing provider may ask you to submit a written request or fill out
a form where you certify that you meet the criteria for an emergency
transfer under VAWA. The criteria are:
(1) You are a victim of domestic violence, dating violence,
sexual assault, or stalking. If your housing provider does not
already have documentation that you are a victim of domestic
violence, dating violence, sexual assault, or stalking, your housing
provider may ask you for such documentation, as described in the
documentation section below.
(2) You expressly request the emergency transfer. Your housing
provider may choose to require that you submit a form, or may accept
another written or oral request.
(3) You reasonably believe you are threatened with imminent harm
from further violence if you remain in your current unit. This means
you have a reason to fear that if you do not receive a transfer you
would suffer violence in the very near future.
OR
You are a victim of sexual assault and the assault occurred on
the premises during the 90-calendar-day period before you request a
transfer. If you are a victim of sexual assault, then in addition to
qualifying for an emergency transfer because you reasonably believe
you are threatened with imminent harm from further violence if you
remain in your unit, you may qualify for an emergency transfer if
the sexual assault occurred on the premises of the property from
which you are seeking your transfer, and that assault happened
within the 90-calendar-day period before you expressly request the
transfer.
HP will keep confidential requests for emergency transfers by
victims of domestic violence, dating violence, sexual assault, or
stalking, and the location of any move by such victims and their
families.
HP's emergency transfer plan provides further information on
emergency transfers, and HP must make a copy of its emergency
transfer plan available to you if you ask to see it.
Documenting You Are or Have Been a Victim of Domestic Violence, Dating
Violence, Sexual Assault or Stalking
HP can, but is not required to, ask you to provide documentation
to ``certify'' that you are or have been a victim of domestic
violence, dating violence, sexual assault, or stalking. Such request
from HP must be in writing, and HP must give you at least 14
business days (Saturdays, Sundays, and Federal holidays do not
count) from the day you receive the request to provide the
documentation. HP may, but does not have to, extend the deadline for
the submission of documentation upon your request.
You can provide one of the following to HP as documentation. It
is your choice which of the following to submit if HP asks you to
provide documentation that you are or have been a victim of domestic
violence, dating violence, sexual assault, or stalking.
A complete HUD-approved certification form given to you
by HP with this notice, that documents an incident of domestic
violence, dating violence, sexual assault, or stalking. The form
will ask for your name, the date, time, and location of the incident
of domestic violence, dating violence, sexual assault, or stalking,
and a description of the incident. The certification form provides
for including the name of the abuser or perpetrator if the name of
the abuser or perpetrator is known and is safe to provide.
A record of a Federal, State, tribal, territorial, or
local law enforcement agency, court, or administrative agency that
documents the incident of domestic violence, dating violence, sexual
assault, or stalking. Examples of such records include police
reports, protective orders, and restraining orders, among others.
A statement, which you must sign, along with the
signature of an employee, agent, or volunteer of a victim service
provider, an attorney, a medical professional or a mental health
professional (collectively, ``professional'') from whom you sought
assistance in addressing domestic violence, dating violence, sexual
assault, or stalking, or the effects of abuse, and with the
professional selected by you attesting under penalty of perjury that
he or she believes that the incident or incidents of domestic
violence, dating violence, sexual assault, or stalking are grounds
for protection.
Any other statement or evidence that HP has agreed to
accept.
If you fail or refuse to provide one of these documents within
the 14 business days, HP does not have to provide you with the
protections contained in this notice.
If HP receives conflicting evidence that an incident of domestic
violence, dating
[[Page 80820]]
violence, sexual assault, or stalking has been committed (such as
certification forms 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 abuser or perpetrator), HP has
the right to request that you provide third-party documentation
within thirty 30 calendar days in order to resolve the conflict. If
you fail or refuse to provide third-party documentation where there
is conflicting evidence, HP does not have to provide you with the
protections contained in this notice.
Confidentiality
HP must keep confidential any information you provide related to
the exercise of your rights under VAWA, including the fact that you
are exercising your rights under VAWA.
HP must not allow any individual administering assistance or
other services on behalf of HP (for example, employees and
contractors) to have access to confidential information unless for
reasons that specifically call for these individuals to have access
to this information under applicable Federal, State, or local law.
HP must not enter your information into any shared database or
disclose your information to any other entity or individual. HP,
however, may disclose the information provided if:
You give written permission to HP to release the
information on a time limited basis.
HP needs to use the information in an eviction or
termination proceeding, such as to evict your abuser or perpetrator
or terminate your abuser or perpetrator from assistance under this
program.
A law requires HP or your landlord to release the
information.
VAWA does not limit HP's duty to honor court orders about access
to or control of the property. This includes orders issued to
protect a victim and orders dividing property among household
members in cases where a family breaks up.
Reasons a Tenant Eligible for Occupancy Rights Under VAWA May Be
Evicted or Assistance May Be Terminated
You can be evicted and your assistance can be terminated for
serious or repeated lease violations that are not related to
domestic violence, dating violence, sexual assault, or stalking
committed against you. However, HP cannot hold tenants who have been
victims of domestic violence, dating violence, sexual assault, or
stalking to a more demanding set of rules than it applies to tenants
who have not been victims of domestic violence, dating violence,
sexual assault, or stalking.
The protections described in this notice might not apply, and
you could be evicted and your assistance terminated, if HP can
demonstrate that not evicting you or terminating your assistance
would present a real physical danger that:
1) Would occur within an immediate time frame, and
2) Could result in death or serious bodily harm to other tenants
or those who work on the property.
If HP can demonstrate the above, HP should only terminate your
assistance or evict you if there are no other actions that could be
taken to reduce or eliminate the threat.
Other Laws
VAWA does not replace any Federal, State, or local law that
provides greater protection for victims of domestic violence, dating
violence, sexual assault, or stalking. You may be entitled to
additional housing protections for victims of domestic violence,
dating violence, sexual assault, or stalking under other Federal
laws, as well as under State and local laws.
Non-Compliance With The Requirements of This Notice
You may report a covered housing provider's violations of these
rights and seek additional assistance, if needed, by contacting or
filing a complaint with [insert contact information for any
intermediary, if applicable] or [insert HUD field office].
For Additional Information
You may view a copy of HUD's final VAWA rule at [insert Federal
Register link].
Additionally, HP must make a copy of HUD's VAWA regulations
available to you if you ask to see them.
For questions regarding VAWA, please contact [insert name of
program or rental assistance contact information able to answer
questions on VAWA].
For help regarding an abusive relationship, you may call the
National Domestic Violence Hotline at 1-800-799-7233 or, for persons
with hearing impairments, 1-800-787-3224 (TTY). You may also contact
[Insert contact information for relevant local organizations].
For tenants who are or have been victims of stalking seeking
help may visit the National Center for Victims of Crime's Stalking
Resource Center at https://www.victimsofcrime.org/our-programs/stalking-resource-center.
For help regarding sexual assault, you may contact [Insert
contact information for relevant organizations].
Victims of stalking seeking help may contact [Insert contact
information for relevant organizations].
Attachment: Certification form HUD-XXXXX [form approved for this
program to be included]
Appendix B
[Insert name of covered housing provider]
Model Emergency Transfer Plan for Victims of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking
Emergency Transfers
[Insert name of covered housing provider (acronym HP for
purposes of this model plan)] is concerned about the safety of its
tenants, and such concern extends to tenants who are victims of
domestic violence, dating violence, sexual assault, or stalking. In
accordance with the Violence Against Women Act (VAWA),\26\ HP allows
tenants who are victims of domestic violence, dating violence,
sexual assault, or stalking to request an emergency transfer from
the tenant's current unit to another unit. The ability to request a
transfer is available regardless of sex, gender identity, or sexual
orientation.\27\ The ability of HP to honor such request for tenants
currently receiving assistance, however, may depend upon a
preliminary determination that the tenant is or has been a victim of
domestic violence, dating violence, sexual assault, or stalking, and
on whether HP has another dwelling unit that is available and is
safe to offer the tenant for temporary or more permanent occupancy.
---------------------------------------------------------------------------
\26\ Despite the name of this law, VAWA protection is available
to all victims of domestic violence, dating violence, sexual
assault, and stalking, regardless of sex, gender identity, or sexual
orientation.
\27\ Housing providers cannot discriminate on the basis of any
protected characteristic, including race, color, national origin,
religion, sex, familial status, disability, or age. HUD-assisted and
HUD-insured housing must be made available to all otherwise eligible
individuals regardless of actual or perceived sexual orientation,
gender identity, or marital status.
---------------------------------------------------------------------------
This plan identifies tenants who are eligible for an emergency
transfer, the documentation needed to request an emergency transfer,
confidentiality protections, how an emergency transfer may occur,
and guidance to tenants on safety and security. This plan is based
on a model emergency transfer plan published by the U.S. Department
of Housing and Urban Development (HUD), the Federal agency that
oversees that [insert name of program or rental assistance here] is
in compliance with VAWA.
Eligibility for Emergency Transfers
A tenant who is a victim of domestic violence, dating violence,
sexual assault, or stalking, as provided in HUD's regulations at 24
CFR part 5, subpart L is eligible for an emergency transfer, if: The
tenant reasonably believes that there is a threat of imminent harm
from further violence if the tenant remains within the same unit. If
the tenant is a victim of sexual assault, the tenant may also be
eligible to transfer if the sexual assault occurred on the premises
within the 90-calendar-day period preceding a request for an
emergency transfer.
A tenant requesting an emergency transfer must expressly request
the transfer in accordance with the procedures described in this
plan.
Tenants who are not in good standing may still request an
emergency transfer if they meet the eligibility requirements in this
section.
Emergency Transfer Request Documentation
To request an emergency transfer, the tenant shall notify HP's
management office and submit a written request for a transfer to [HP
to insert location]. HP will provide reasonable accommodations to
this policy for individuals with disabilities. The tenant's written
request for an emergency transfer should include either:
1. A statement expressing that the tenant reasonably believes
that there is a threat of imminent harm from further violence if the
tenant were to remain in the same dwelling unit assisted under HP's
program; OR
[[Page 80821]]
2. A statement that the tenant was a sexual assault victim and
that the sexual assault occurred on the premises during the 90-
calendar-day period preceding the tenant's request for an emergency
transfer.
Confidentiality
HP will keep confidential any information that the tenant
submits in requesting an emergency transfer, and information about
the emergency transfer, unless the tenant gives HP written
permission to release the information on a time limited basis, or
disclosure of the information is required by law or required for use
in an eviction proceeding or hearing regarding termination of
assistance from the covered program. This includes keeping
confidential the new location of the dwelling unit of the tenant, if
one is provided, from the person(s) that committed an act(s) of
domestic violence, dating violence, sexual assault, or stalking
against the tenant. See the Notice of Occupancy Rights under the
Violence Against Women Act For All Tenants for more information
about HP's responsibility to maintain the confidentiality of
information related to incidents of domestic violence, dating
violence, sexual assault, or stalking.
Emergency Transfer Timing and Availability
HP cannot guarantee that a transfer request will be approved or
how long it will take to process a transfer request. HP will,
however, act as quickly as possible to move a tenant who is a victim
of domestic violence, dating violence, sexual assault, or stalking
to another unit, subject to availability and safety of a unit. If a
tenant reasonably believes a proposed transfer would not be safe,
the tenant may request a transfer to a different unit. If a unit is
available, the transferred tenant must agree to abide by the terms
and conditions that govern occupancy in the unit to which the tenant
has been transferred. HP may be unable to transfer a tenant to a
particular unit if the tenant has not or cannot establish
eligibility for that unit.
If HP has no safe and available units for which a tenant who
needs an emergency is eligible, HP will assist the tenant in
identifying other housing providers who may have safe and available
units to which the tenant could move. At the tenant's request, HP
will also assist tenants in contacting the local organizations
offering assistance to victims of domestic violence, dating
violence, sexual assault, or stalking that are attached to this
plan.
Safety and Security of Tenants
Pending processing of the transfer and the actual transfer, if
it is approved and occurs, the tenant is urged to take all
reasonable precautions to be safe.
Tenants who are or have been victims of domestic violence are
encouraged to contact the National Domestic Violence Hotline at 1-
800-799-7233, or a local domestic violence shelter, for assistance
in creating a safety plan. For persons with hearing impairments,
that hotline can be accessed by calling 1-800-787-3224 (TTY).
Tenants who have been victims of sexual assault may call the
Rape, Abuse & Incest National Network's National Sexual Assault
Hotline at 800-656-HOPE, or visit the online hotline at https://ohl.rainn.org/online/.
Tenants who are or have been victims of stalking seeking help
may visit the National Center for Victims of Crime's Stalking
Resource Center at https://www.victimsofcrime.org/our-programs/stalking-resource-center.
Attachment: Local organizations offering assistance to victims
of domestic violence, dating violence, sexual assault, or stalking.
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[FR Doc. 2016-25888 Filed 11-15-16; 8:45 am]
BILLING CODE C