[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Proposed Rules]
[Pages 321-328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28073]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / 
Proposed Rules  

[[Page 321]]



DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-6330-N-01]


The Violence Against Women Act Reauthorization Act of 2022: 
Overview of Applicability to HUD Programs

AGENCY: Office of the Secretary, HUD.

ACTION: Initial implementation guidance; request for comment.

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SUMMARY: This document highlights the key changes made by the recently 
enacted Violence Against Women Act Reauthorization Act of 2022 (VAWA 
2022) to the Violence Against Women Act of 1994, as amended, provides 
an overview of key provisions applicable to HUD programs, and explains 
HUD's plans to issue rules or guidance to implement VAWA 2022. In 
addition, this document seeks comment from HUD housing providers, 
grantees, and other interested members of the public on this document 
generally and on certain issues discussed in more detail below. 
Comments received in response to this solicitation will aid HUD in 
developing additional regulations and guidance.

DATES: Comment Due Date: March 6, 2023.

ADDRESSES: Interested persons are invited to submit comments regarding 
this document to the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW, Room 
10276, Washington, DC 20410-0500. Communications must refer to the 
above docket number and title. There are two methods for submitting 
public comments. All submissions must refer to the docket number and 
title above.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW, Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make them immediately available to 
the public. Comments submitted electronically through the 
www.regulations.gov website can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

    Note: To receive consideration as public comments, comments must 
be submitted through one of the two methods specified above. Again, 
all submissions must refer to the docket number and title of the 
document.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Public Comments. HUD will make all properly 
submitted comments and communications available for public inspection 
and copying between 8 a.m. and 5 p.m. weekdays at the above address. 
Due to security measures at the HUD Headquarters building, you must 
schedule an appointment in advance to review the public comments by 
calling the Regulations Division at 202-708-3055. (This is not a toll-
free number.) HUD welcomes and is prepared to receive calls from 
individuals who are deaf or hard of hearing, as well as individuals 
with speech and communication disabilities. To learn more about how to 
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. Copies of all 
comments submitted are available for inspection and downloading at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For more information about this 
document, please contact Karlo Ng, Director on Gender-Based Violence 
Prevention and Equity, Department of Housing and Urban Development, 451 
Seventh Street SW, Room 10232, Washington, DC 20410, telephone number 
202-402-7642. (This is not a toll-free number.) HUD welcomes and is 
prepared to receive calls from individuals who are deaf or hard of 
hearing, as well as individuals with speech and communication 
disabilities. To learn more about how to make an accessible telephone 
call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

SUPPLEMENTARY INFORMATION:

I. Introduction

    On March 15, 2022, the President signed into law the Consolidated 
Appropriations Act of 2022 (Pub. L. 117-103, 136 Stat. 49), which 
included the Violence Against Women Act Reauthorization Act of 2022 
(VAWA 2022). VAWA 2022 reauthorizes, amends, and strengthens the 
Violence Against Women Act of 1994, as amended (VAWA) (Pub. L. 103-322, 
tit. IV, sec. 40001-40703; 42 U.S.C. 13925 et seq.). The provisions of 
VAWA 2022 that are applicable to HUD programs are found in title VI of 
Division W of the Consolidated Appropriations Act of 2022, which is 
entitled ``Safe Homes for Victims.'' Section 2 of VAWA 2022 provides 
revised definitions for the statute.
    As provided by section 4 of VAWA 2022, all but one of the HUD-
related amendments made by VAWA 2022 took effect on October 1, 2022. 
The one exception is section 606, which took effect upon enactment of 
VAWA 2022 and requires HUD to study and report on housing and service 
needs of survivors of human trafficking and individuals at risk for 
trafficking. VAWA 2022 did not amend the majority of authorizing 
statutes for HUD's programs that are covered by VAWA.\1\ Additionally, 
VAWA 2022 requires each appropriate agency to conduct notice-and-
comment rulemaking for some purposes. HUD will conduct rulemaking to 
give full force and effect to some of the law's new protections for 
survivors. However, as this document further explains, there is enough 
clarity in several of the new provisions to render their requirements 
enforceable without further elaboration through rulemaking, 
particularly considering how VAWA's existing housing provisions have 
already been interpreted by HUD and the courts.
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    \1\ As explained in Part III.F. of this document, VAWA 2022 did 
amend the McKinney-Vento Homeless Assistance Act.
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    Section II of this document provides an overview of VAWA, HUD's

[[Page 322]]

implementation of prior VAWA authorities, and the VAWA 2022 changes 
relevant to HUD's programs. Section III explains how the new VAWA 2022 
changes will be implemented for HUD programs. Section III also provides 
information on how VAWA 2022 affects HUD's existing guidance, 
regulations, and other authorities.

II. Background on VAWA

Earlier Statutory Changes

    VAWA, enacted in 1994 as title IV of the Violent Crime Control and 
Law Enforcement Act of 1994, (Pub. L. 103-322, approved September 13, 
1994), was reauthorized in 2000 through Division B of the Victims of 
Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386, 114 
Stat. 1464), in 2005 through the Violence Against Women Act and 
Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, 119 
Stat. 2960) (VAWA 2005), and in 2013 through the Violence Against Women 
Act Reauthorization of 2013 (Pub. L. 113-4, 127 Stat. 54) (VAWA 2013) 
(see summary at 78 FR 47717, 81 FR 80724). In 2016, the Justice for All 
Reauthorization Act (Pub. L. 114-324, 130 Stat. 1948) amended VAWA by 
clarifying VAWA's lease bifurcation provisions.\2\ The Justice for All 
Reauthorization Act of 2016 did not reauthorize VAWA, but the statute 
amended VAWA.\3\
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    \2\ In this notice, the Violence Against Women Act of 1994, as 
amended over the years, is referred to solely as ``VAWA'' unless it 
is necessary or appropriate to refer to a specific amendment of 
VAWA. The references to ``VAWA'' in this notice include the 
amendments in 2000, 2005, 2013, and 2016 unless explicitly noted 
otherwise. The full text of the new amending legislation, VAWA 2022, 
in pdf and plain text versions can be found, respectively, at 
https://www.govinfo.gov/content/pkg/BILLS-117hr2471enr/pdf/BILLS-117hr2471enr.pdf, and https://www.congress.gov/bill/117th-congress/house-bill/2471/text.
    \3\ HUD intends to implement changes to VAWA by the Justice for 
All Reauthorization Act of 2016 in its rulemaking implementing VAWA 
2022.
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HUD's Previous Implementation of VAWA

    HUD's implementing regulations for VAWA's protections, rights, and 
responsibilities are codified in 24 CFR part 5, subpart L, and related 
provisions in HUD's program regulations (``HUD's VAWA regulations''). 
These regulations, as explained in HUD's final rule issued on November 
16, 2016 (81 FR 80724), implement VAWA as amended through VAWA 2013.

VAWA 2022 Changes, Including Changes to the Applicability of VAWA to 
HUD Statutes and Programs

    Section 2 of VAWA 2022 revises the definition of ``domestic 
violence'' and adds definitions for ``economic abuse'' and 
``technological abuse'' for purposes of VAWA grants.
    The amendments that VAWA 2022 makes to the Housing Rights Chapter 
of VAWA build on the 2013 and 2016 amendments to strengthen VAWA's 
housing protections for survivors of domestic violence, dating 
violence, sexual assault, and stalking (collectively referred to as 
``survivors'' in this document). Section 601 of VAWA 2022 expands the 
``covered housing program'' definition in section 41411 of VAWA (34 
U.S.C. 12491) to add specific programs and a catch-all provision that 
includes any other Federal housing programs providing affordable 
housing to low- and moderate-income persons by means of restricted 
rents or rental assistance, or more generally providing affordable 
housing opportunities, as identified by the appropriate agency through 
regulations, notices, or any other means. HUD intends to engage Tribes 
regarding VAWA protections and implementation for HUD's Native American 
programs.
    Section 602 of VAWA 2022 adds several new sections to VAWA's 
Housing Rights Chapter. These new sections include: section 41412 (34 
U.S.C. 12492), which requires each appropriate agency to consult 
appropriate stakeholders and conduct rulemaking to establish a process 
for reviewing compliance with VAWA's expanded housing protections; 
section 41413 (34 U.S.C. 12493), which requires HUD to establish a 
Gender-Based Violence Prevention Office \4\ and a VAWA Director; and 
section 41414 (34 U.S.C. 12494), which establishes anti-retaliation and 
anti-coercion requirements that prohibit housing providers covered by 
VAWA from discriminating against any person for exercising or enjoying, 
or aiding or encouraging others in the exercise or enjoyment of, VAWA 
housing rights or for opposing an act or practice made unlawful by 
VAWA. Section 602 further provides the Secretary of HUD and the 
Attorney General with the authority to ``implement and enforce this 
chapter consistent with, and in a manner that provides, the rights and 
remedies provided for in title VIII of the Civil Rights Act of 1968 (42 
U.S.C. 3601 et seq.),'' commonly referred to as the Fair Housing Act.
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    \4\ The language of this provision indicates that the 
establishment of this Office and the VAWA Director is required, 
regardless of future appropriations provided to HUD.
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    Section 603 of VAWA 2022 adds a new section 41415 to VAWA (34 
U.S.C. 12495) titled ``Right to report crime and emergencies from one's 
home.'' The new section provides, among other things, that landlords, 
homeowners, tenants, residents, occupants, and guests of, and 
applicants for, housing shall not be penalized based on their requests 
for assistance or based on criminal activity of which they are a victim 
or otherwise not at fault under statutes, ordinances, regulations, or 
policies adopted or enforced by covered governmental entities. Section 
603 defines a ``covered governmental entity as any municipal, county, 
or State government that receives funding under section 106 of the 
Housing and Community Development Act of 1974.'' It also imposes 
reporting and certification requirements on covered governmental 
entities. Section 603 further provides the Secretary of HUD and the 
Attorney General with the authority to ``implement and enforce this 
chapter consistent with, and in a manner that provides, the same rights 
and remedies as those provided for in title VIII of the Civil Rights 
Act of 1968 (42 U.S.C. 3601 et seq.),'' commonly referred to as the 
Fair Housing Act.
    Section 605 of VAWA 2022 \5\ amends section 103(b) of the McKinney-
Vento Homeless Assistance Act (42 U.S.C. 11302(b)) to change the 
criteria for survivors whom HUD must consider as ``homeless'' under 
programs such as the Emergency Solutions Grants and Continuum of Care 
Program; amends section 423 of the McKinney-Vento Homeless Assistance 
Act (42 U.S.C. 11383) to provide that Continuum of Care grant awards 
can be used for facilitating and coordinating activities to ensure and 
monitor compliance with VAWA's emergency transfers provision and 
confidentiality protections; and adds a new section 41416 to VAWA (34 
U.S.C. 12496), which provides authorization for HUD to make training 
and technical assistance grants (subject to appropriations) to support 
the implementation of VAWA's Housing Rights Chapter, including 
technical assistance agreements with entities whose primary purpose and 
expertise is assisting survivors of sexual assault and domestic 
violence or providing culturally specific services to survivors of 
domestic violence, dating violence, sexual assault, and stalking.\6\
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    \5\ Section 604 of VAWA 2022 amends the authorization of 
transitional housing assistance grants administered by the 
Department of Justice.
    \6\ Sections 605(b) and (c) relate to grants that are 
administered by the Department of Health and Human Services and the 
Department of Justice.
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    Section 606 of VAWA 2022 requires HUD to study the availability and 
accessibility of housing services to survivors of human trafficking or 
those

[[Page 323]]

at risk of being trafficked, who are experiencing homelessness or 
housing instability.

III. Changes to Requirements and Protections Under VAWA 2022

    The following sections identify specific issues on which HUD seeks 
comment to inform HUD in the development of regulations or guidance, or 
both, as may be applicable. For each issue, this document provides 
information on relevant VAWA 2013 requirements and existing HUD 
regulations, relevant VAWA 2022 changes and requirements, and HUD's 
proposal for implementation.

A. Changes to VAWA Definition of ``Domestic Violence'' and Related 
Terms

    Pre-VAWA 2022: HUD's regulations include definitions of ``domestic 
violence,'' ``dating violence,'' ``sexual assault,'' and ``stalking'' 
at 24 CFR 5.2003, which implement and reflect almost verbatim the 
definitions in section 40002(a) of VAWA, as amended before VAWA 2022, 
provided for those terms. HUD's regulatory definition of ``domestic 
violence'' is the same as the definition provided by section 40002(a) 
of VAWA, as amended before VAWA 2022, except that HUD's regulatory 
definition of ``domestic violence'' also interpreted the statutory 
phrase ``spouse or intimate partner of the victim.'' HUD's regulatory 
definition provides that domestic violence includes felony or 
misdemeanor crimes of violence committed by (1) a current or former 
spouse or intimate partner of the victim, (2) a person with whom the 
victim shares a child in common, (3) a person who is cohabitating with 
or has cohabitated with the victim as a spouse or intimate partner, (4) 
a person similarly situated to a spouse of the victim under the 
domestic or family violence laws of the jurisdiction receiving grant 
monies, or (5) 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. HUD's regulatory definition further 
interpreted ``spouse or intimate partner of the victim'' to include ``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 relationship, and the frequency of 
interaction between the persons involved in the relationship.''
    VAWA 2022: Section 2 of VAWA 2022 makes changes to the definitions 
provided by section 40002(a) of VAWA. First, section 2(a)(1)(A) of VAWA 
2022 changes the text that frames the definitions in section 40002(a) 
from ``In this title:'' to ``In this title, for purposes of grants 
authorized under this title.'' Second, VAWA 2022 amends the definition 
of ``domestic violence'' in section 40002(a) of VAWA to include any 
felony or misdemeanor crimes committed under the family or domestic 
violence laws of the jurisdiction receiving grant funding, as compared 
with the previous definition, which stated that ``domestic violence'' 
included felony or misdemeanor crimes of violence.\7\ As amended by 
VAWA 2022, ``domestic violence'' in section 40002(a) of VAWA also 
includes, in the case of victim services,\8\ the use or attempted use 
of physical abuse or sexual abuse, or a pattern of any other coercive 
behavior committed, enabled, or solicited to gain or maintain power and 
control over a victim, including verbal, psychological, economic, or 
technological abuse \9\ that may or may not constitute criminal 
behavior, by any one of the following: (A) a current or former spouse 
or intimate partner of the victim, or person similarly situated to a 
spouse of the victim; (B) a person who is cohabitating, or has 
cohabitated, with the victim as a spouse or intimate partner; (C) a 
person who shares a child in common with the victim; or (D) a person 
who commits acts against a youth or adult victim who is protected from 
those acts under the family or domestic violence laws of the 
jurisdiction.
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    \7\ 34 U.S.C. 12291.
    \8\ Section 40002 of VAWA (34 U.S.C. 12291) defines ``victim 
services'' and ``services'' as: ``services provided to victims of 
domestic violence, dating violence, sexual assault, or stalking, 
including telephonic or web-based hotlines, legal assistance and 
legal advocacy, economic advocacy, emergency and transitional 
shelter, accompaniment and advocacy through medical, civil or 
criminal justice, immigration, and social support systems, crisis 
intervention, short-term individual and group support services, 
information and referrals, culturally specific services, population 
specific services, and other related supportive services.''
    \9\ Section 40002 of VAWA (34 U.S.C. 12291) defines both 
``economic abuse'' and ``technological abuse''.
    ECONOMIC ABUSE.--The term `economic abuse', in the context of 
domestic violence, dating violence, and abuse in later life, means 
behavior that is coercive, deceptive, or unreasonably controls or 
restrains a person's ability to acquire, use, or maintain economic 
resources to which they are entitled, including using coercion, 
fraud, or manipulation to--(A) restrict a person's access to money, 
assets, credit, or financial information; (B) unfairly use a 
person's personal economic resources, including money, assets, and 
credit, for one's own advantage; or (C) exert undue influence over a 
person's financial and economic behavior or decisions, including 
forcing default on joint or other financial obligations, exploiting 
powers of attorney, guardianship, or conservatorship, or failing or 
neglecting to act in the best interests of a person to whom one has 
a fiduciary duty.
    TECHNOLOGICAL ABUSE.--The term `technological abuse' means an 
act or pattern of behavior that occurs within domestic violence, 
sexual assault, dating violence or stalking and is intended to harm, 
threaten, intimidate, control, stalk, harass, impersonate, exploit, 
extort, or monitor, except as otherwise permitted by law, another 
person, that occurs using any form of technology, including but not 
limited to: internet enabled devices, online spaces and platforms, 
computers, mobile devices, cameras and imaging programs, apps, 
location tracking devices, or communication technologies, or any 
other emerging technologies.
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    Implementation: These changes took effect on October 1, 2022. 
However, according to VAWA 2022, the definitions in section 40002(a) of 
VAWA are only binding ``for purposes of grants authorized under'' VAWA 
such that the new ``domestic violence'' definition in VAWA 2022 or any 
of the related definitions are applicable only to grant programs 
authorized under VAWA, which do not include HUD programs. HUD notes 
that its current regulations implementing VAWA cover much or all of the 
additional conduct specified in the VAWA 2022 definition. Specifically, 
HUD interprets the existing regulatory definitions of ``domestic 
violence'' and ``stalking'' to include the acts contained in the 
revised statutory definition of ``domestic violence.''
    HUD's regulatory definition of ``domestic violence'' is broad as it 
provides that ``domestic violence includes felony or misdemeanor crimes 
of violence committed by'' a list of certain relations, such as a 
person similarly situated to a spouse of the victim, and captures 
felony or misdemeanor crimes of violence committed ``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.'' Furthermore, HUD's existing definition of ``stalking'' 
broadly covers any ``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.'' Given HUD's broad and inclusive definitions of 
these terms, HUD believes that the specific acts that VAWA 2022 made 
explicitly part of the VAWA ``domestic violence'' definition can be 
reasonably interpreted to be covered by HUD's existing VAWA 
regulations.
    Accordingly, assisted housing providers, grantees, public housing 
authorities, owners and managers of the covered housing programs are 
advised to apply HUD's VAWA requirements in a manner that encompasses 
the ``domestic violence'' definition provided by VAWA as of October 1, 
2022. HUD considers its existing regulatory definition of ``domestic 
violence'' to be broad enough to, in most

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circumstances, include the additional acts referred to in the VAWA 2022 
reauthorization--including technological abuse, economic abuse, and a 
pattern of any other coercive behavior committed, enabled, or solicited 
to gain or maintain power and control over a victim that may or may not 
constitute criminal behavior. Further, HUD will consider implementing 
changes to update HUD's ``domestic violence'' definition to include the 
related definitions of ``economic abuse'' and ``technological abuse'' 
applicable to HUD's programs as part of HUD's upcoming rulemaking.
    Specific Request for Comment. HUD specifically requests comment 
from assisted housing providers, grantees, public housing authorities, 
owners and managers, and other interested members of the public on (1) 
common forms of economic and technological abuse that affect survivors' 
rental assistance and continued tenancy, and (2) how HUD policy can 
help prevent or mitigate such violence against survivors and best 
practices or appropriate services to assist survivors.

B. Additional Covered Housing Programs

    Pre-VAWA 2022: VAWA 2013 expanded VAWA's protections to additional 
HUD programs beyond those covered by VAWA 2005. HUD's VAWA 2013 final 
rule amended the ``covered housing programs'' as defined at 24 CFR 
5.2003 to list the following as HUD programs subject to VAWA statutory 
requirements and protections and the corresponding program regulations:
     Section 202 Supportive Housing for the Elderly (12 U.S.C. 
1701q), with implementing regulations at 24 CFR part 891.
     Section 811 Supportive Housing for Persons with 
Disabilities (42 U.S.C. 8013), with implementing regulations at 24 CFR 
part 891.
     Housing Opportunities for Persons With AIDS (HOPWA) 
program (42 U.S.C. 12901 et seq.), with implementing regulations at 24 
CFR part 574.
     HOME Investment Partnerships (HOME) program (42 U.S.C. 
12741 et seq.), with implementing regulations at 24 CFR part 92.
     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).
     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.
     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.
     HUD programs assisted under the United States Housing Act 
of 1937 (42 U.S.C. 1437 et seq.); specifically, public housing under 
section 9 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. 1937f) (with implementing 
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).
     The Housing Trust Fund (12 U.S.C. 4568) (with implementing 
regulations at 24 CFR part 93).
    While not included in the VAWA 2013 statute, HUD included the 
Housing Trust Fund in its regulatory definition of ``covered housing 
program'' by using its general rulemaking authority. This document 
refers to these programs as ``2013 HUD covered programs''.
    VAWA 2022: VAWA 2022 amended the statutory definition of ``covered 
housing program,'' to add the following programs relevant to HUD: \10\
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    \10\ This list does not include programs that are controlled by 
the U.S. Department of Veterans Affairs and U.S. Department of 
Agriculture.
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     Direct loan program under section 202 of the Housing Act 
of 1959 (12 U.S.C. 1701q);
     Assistance from the Housing Trust Fund established under 
section 1338 of the Federal Housing Enterprises Financial Safety and 
Soundness Act of 1992 (12 U.S.C. 4501); and
     Any other Federal housing programs providing affordable 
housing to low- and moderate-income persons by means of restricted 
rents or rental assistance, or more generally providing affordable 
housing opportunities, as identified by the appropriate agency through 
regulations, notices, or any other means (referred to as a ``catch 
all'' provision).
    This document refers to these programs as ``VAWA 2022 HUD covered 
programs''.
    Implementation: Consistent with VAWA 2022, HUD will implement 
changes through regulations, notices, or any other means in identifying 
when VAWA applies to a HUD program. The inclusion of new programs into 
the ``covered housing program'' definition means new grantees, owners, 
and managers will need to apply VAWA's protections and requirements to 
their programs as identified through regulations, notices, or any other 
means identifying when VAWA applies to a HUD housing program. When HUD 
initially applied VAWA protections and requirements to the ``2013 HUD 
covered programs,'' HUD did so by notice-and-comment rulemaking. For 
the new programs, specifically the direct loan program under section 
202 and the broad catch-all category, HUD will issue regulations, 
notices, or any other means to identify when VAWA applies to a HUD 
housing program. Under VAWA 2022, HUD also has the discretion to 
identify additional covered housing programs that are subject to VAWA 
through regulations, notices, or any other means. For the Housing Trust 
Fund program, HUD already applied the VAWA requirements in effect at 
that time to those grantees. As part of rulemaking, HUD will update the 
regulations that apply to the Housing Trust Fund program, and other HUD 
covered housing programs, to incorporate VAWA 2022 requirements. HUD 
offices that previously issued notices with lists of covered housing 
programs will issue new notices with revised lists.

C. Compliance Reviews--NEW Provision Applicable to HUD in 2022

    Pre-VAWA 2022: Before VAWA 2022, the housing title of VAWA did not 
include statutory requirements for compliance reviews, and HUD does not 
currently have regulations addressing VAWA compliance reviews 
specifically, although all HUD programs are subject to general 
performance or compliance review requirements provided by program-
specific regulations, 2 CFR part 200, or both. HUD programs are also 
subject to compliance reviews conducted by HUD's Office of Fair Housing 
and Equal Opportunity (FHEO) pursuant to civil rights authorities. See, 
e.g., 24 CFR part 1 (Title VI of the Civil Rights Act); 24 CFR part 8 
(Section 504 of the Rehabilitation Act); 24 CFR part 145 (Age 
Discrimination Act).
    VAWA 2022: Section 602 of VAWA 2022 adds a new section 41412 to 
VAWA (34 U.S.C. 12492), which requires Federal agencies to establish a 
process to review compliance with the applicable requirements in title 
IV of VAWA (34 U.S.C. chapter 121, subchapter III, Part L). The new 
section requires agencies to incorporate this

[[Page 325]]

process into their existing compliance review processes where possible, 
enumerates six items for examination, provides that each agency ``shall 
conduct the review . . . on a regular basis, as determined by the 
appropriate agency,'' and requires that agencies ensure that they 
publicly disclose an agency-level assessment of the information 
collected during the compliance review process. The six items for 
examination are: (1) compliance with requirements prohibiting the 
denial of assistance, tenancy, or occupancy rights on the basis of 
domestic violence, dating violence, sexual assault, or stalking; (2) 
compliance with confidentiality provisions set forth in section 
41411(c)(4) of VAWA (34 U.S.C. 12491(c)(4)); (3) compliance with the 
notification requirements set forth in section 41411(d)(2) of VAWA (34 
U.S.C. 12491(d)(2)); (4) compliance with the provisions for accepting 
documentation set forth in section 41411(c) of VAWA (34 U.S.C. 
12491(c)); (5) compliance with emergency transfer requirements set 
forth in section 41411(e) of VAWA (34 U.S.C. 12491(e)); and (6) 
compliance with the prohibition on retaliation set forth in section 
41414 of VAWA (34 U.S.C. 12494). The new section 41412 of VAWA also 
requires each appropriate agency to develop regulations in consultation 
with ``appropriate stakeholders'' \11\ to implement these changes 
related to compliance review.
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    \11\ Section 41412(b)(2) of VAWA provides that ``appropriate 
stakeholders'' include, but are not limited to, ``(A) individuals 
and organizations with expertise in the housing needs and 
experiences of victims of domestic violence, dating violence, sexual 
assault and stalking; and (B) individuals and organizations with 
expertise in the administration or management of covered housing 
programs, including industry stakeholders and public housing 
agencies.''.
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    Implementation: These changes will be implemented by regulations to 
the extent necessary. Section 41412 of VAWA (34 U.S.C. 12492) requires 
the issuance of regulations no later than two years after the date of 
enactment of VAWA 2022, March 15, 2024. Section 41412 further requires 
that these implementing regulations define standards of compliance 
under HUD covered programs, include detailed reporting requirements on 
emergency transfers,\12\ and include standards for corrective action 
plans where compliance standards have not been met. To the extent 
possible, HUD will identify existing compliance review procedures that 
already allow for such reviews, including those currently administered 
by FHEO.
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    \12\ While HUD intends to issue rulemaking defining more 
specifically the compliance requirements set out by statute, HUD's 
existing regulations implementing VAWA 2013 already require that 
covered housing providers maintain records with respect to emergency 
transfer requests. See 24 CFR 5.2005(e)(12). HUD, therefore, intends 
to seek approval under the Paperwork Reduction Act to collect such 
information while HUD updates its regulations to describe compliance 
standards.
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D. Prohibiting Retaliation Against Victims--New Provision

    Pre-VAWA 2022: VAWA 2013 did not address protections against 
retaliation for survivors and other persons who oppose acts made 
unlawful by VAWA, who seek to enforce VAWA's protections, or who 
participate in enforcement proceedings. Thus, HUD's VAWA 2013 final 
rule did not, and HUD's existing VAWA regulations at 24 CFR part 5, 
subpart L, do not address these protections and related requirements.
    VAWA 2022: Section 602 of VAWA 2022 adds a new section 41414 to 
VAWA (34 U.S.C. 12494), which provides that no public housing agency or 
owner or manager of housing assisted under a covered housing program 
shall discriminate against any person because that person has opposed 
any act or practice made unlawful by the housing title of VAWA (34 
U.S.C. chapter 121, subchapter III, Part L), or because that person 
testified, assisted, or participated in any related matter. The new 
section also provides that no public housing agency or owner or manager 
of housing assisted under a covered housing program shall coerce, 
intimidate, threaten, interfere with, or retaliate against any person 
who exercises or assists or encourages a person to exercise any rights 
or protections under the housing title of VAWA. Section 602 further 
includes an implementation provision, which states that the Secretary 
of HUD and the Attorney General ``shall implement and enforce this 
chapter consistent with, and in a manner that provides, the rights and 
remedies provided for in title VIII of the Civil Rights Act of 1968 (42 
U.S.C. 3601 et seq.).''
    Implementation: These changes took effect on October 1, 2022. HUD 
does not consider rulemaking to be necessary to enable Office of Fair 
Housing and Equal Opportunity's enforcement of the new requirements as 
of October 1, 2022, although HUD may conduct rulemaking to further 
implement this provision. Additionally, HUD's regulations at 24 CFR 
part 103 provide for HUD's Fair Housing Act complaint processing 
requirements, including complaint filing, investigation, and 
conciliation, and, at 24 CFR part 180, they provide for HUD's 
consolidated hearing procedures and requirements for civil rights 
matters. The regulations have long been used successfully to process 
fair housing complaints. In accordance with the plain language of 
section 602 requiring implementation and enforcement of the chapter 
consistent with title VIII of the Civil Rights Act of 1968 (42 U.S.C. 
3601 et seq.), HUD will enforce the Housing Rights Chapter of VAWA 
2022, including section 602, using HUD's existing Fair Housing Act 
complaint process. While HUD plans to issue guidance and prepares to 
help answer questions from grantees and Federal financial assistance 
recipients on this process, grantees, PHAs, owners and managers of 
housing assisted under VAWA 2022 covered housing programs should ensure 
that policies and practices include the statutory non-retaliation 
requirement and prohibition on coercion. HUD may further implement this 
provision through rulemaking if the specific needs of enforcement of 
VAWA requires additional processes or clarity. HUD will also implement 
this provision for grantees of covered housing programs as well as 
PHAs, owners, and managers of housing assisted under VAWA 2022 covered 
housing programs through rulemaking to include program enforcement 
mechanisms.

E. The Right To Report Crime and Emergencies--New Provision

    Pre-VAWA 2022: VAWA 2013 did not address protections against actual 
or threatened penalties for persons requesting law enforcement or 
emergency assistance. Thus, HUD's existing VAWA regulations at 24 CFR 
part 5, subpart L, do not address these protections and related 
requirements. In 2016, however, HUD did issue guidance on applying the 
Fair Housing Act standards to the enforcement of local nuisance or 
crime-free ordinances, including in instances in which such ordinances 
operate to require evictions or otherwise penalize people for 
requesting law enforcement or emergency assistance.\13\ The guidance 
outlines how a local government may violate the Fair Housing Act by 
enforcing nuisance or crime-free ordinances in a manner that is 
intentionally discriminatory or results in an unjustified 
discriminatory effect based on protected class. Additionally, HUD has 
taken action under both the Fair Housing Act and Title VI of the

[[Page 326]]

Civil Rights Act of 1964 against localities and recipients of Federal 
financial assistance from HUD for discriminatory enactment and 
enforcement of nuisance or crime-free ordinances.
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    \13\ Office of General Counsel Guidance on Application of Fair 
Housing Act Standards to the Enforcement of Local Nuisance and 
Crime-Free Housing Ordinances Against Victims of Domestic Violence, 
Other Crime Victims, and Others Who Require Police or Emergency 
Services, September 13, 2016, https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF.
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    VAWA 2022: Section 603 of VAWA 2022 adds a new section 41415 to 
VAWA (34 U.S.C. 12495), which protects the right to report crime and 
emergencies from one's home. The new section provides that landlords, 
homeowners, tenants, residents, occupants, and guests of, and 
applicants for, housing (``listed protected persons'') ``shall have'' 
the right to seek law enforcement or emergency assistance on their own 
behalf or on behalf of another person in need of assistance. This 
section also prohibits application of actual or threatened penalties 
\14\ to the listed protected persons based on their requests for 
assistance or based on criminal activity of which they are a victim or 
otherwise not at fault under the laws or policies adopted or enforced 
by covered governmental entities. ``Covered governmental entities'' are 
defined as any municipal, county, or State government that receives 
funding under section 106 of the Housing and Community Development Act 
of 1974.
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    \14\ Penalties prohibited under section 603 include (1) actual 
or threatened assessment of monetary or criminal penalties, fines, 
or fees; (2) actual or threatened eviction; (3) actual or threatened 
refusal to rent or renew tenancy; (4) actual or threatened refusal 
to issue an occupancy permit or landlord permit; and (5) actual or 
threatened closure of the property, or designation of the property 
as a nuisance or a similarly negative designation.
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    Additionally, section 603 provides that covered governmental 
entities must report on their laws or policies (or laws or policies 
adopted by subgrantees) that impose penalties on the listed protected 
persons based on requests for law enforcement or emergency assistance 
or based on criminal activity that occurred at a property. These 
entities must also certify compliance with these protections or explain 
how they will come into compliance or ensure compliance among 
subgrantees \15\ within 180 days of providing their report.
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    \15\ There are additional compliance requirements for covered 
governmental entities that distribute funds to subgrantees. For 
these entities' reports on their laws and policies that impose 
penalties on the listed protected persons, compliance includes 
inquiring about the existence of laws and policies adopted by 
subgrantees that impose penalties on landlords, homeowners, tenants, 
residents, occupants, guests, or housing applicants based on 
requests for law enforcement or emergency assistance or based on 
criminal activity that occurred at a property.
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    Section 603 also includes an implementation provision that provides 
that the Secretary of HUD and the Attorney General ``shall implement 
and enforce this chapter consistent with, and in a manner that 
provides, the same rights and remedies as those provided for in title 
VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et seq.).''
    Implementation: Section's 603 protections took effect October 1, 
2022. HUD will issue guidance and help answer questions from grantees 
and Federal financial assistance recipients on this process. HUD also 
anticipates issuing implementing regulations, to include any costs of 
conforming to the requirements that may be allowable under HUD programs 
affected by this provision, including the CDBG program.
    While HUD prepares to issue guidance and help answer questions from 
grantees and Federal financial assistance recipients on this process, 
any municipal, county, or State government that receives funding under 
section 106 of the Housing and Community Development Act of 1974 (42 
U.S.C. 5306) must not, as of October 1, 2022, engage in any practices 
that violate the right to report provided for in section 603 of VAWA 
2022. In addition, any municipal, county, or State government that 
receives funding under section 106 of the Housing and Community 
Development Act of 1974 (42 U.S.C. 5306) must conduct the required 
review and reporting \16\ of their laws and policies (and, in some 
cases, laws and policies of subgrantees) to ensure that their laws and 
policies do not conflict with the statutory right to report. HUD will 
issue further guidance regarding the timing and process of this 
reporting.
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    \16\ Reporting would be required only after HUD conducts 
appropriate Paperwork Reduction Act process and issuance of 
reporting procedures.
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    The Paperwork Reduction Act (PRA) of 1995 requires that Federal 
agencies, including HUD, seek and obtain Office of Management and 
Budget (OMB) approval before providing forms to grantees to be used to 
collect information from the public, including information related to 
record-keeping, certifications, and reports. HUD, therefore, intends to 
seek approval under the PRA to collect such information from covered 
governmental entities required for reporting under section 603 while 
HUD updates its regulations related to record-keeping, certifications, 
and reports.
    In the meantime, any municipal, county, or State government that 
receives funding under section 106 of the Housing and Community 
Development Act of 1974 (42 U.S.C. 5306) is advised to update 
applicable policies and practices to include the statutory right to 
report to avoid potential liability under the law.
    In 2016, HUD issued guidance on applying the Fair Housing Act to 
local nuisance or crime-free ordinances that discriminate because of a 
protected characteristic.\17\ The guidance outlines how a local 
government may violate the Fair Housing Act by enforcing nuisance or 
crime-free ordinances in a manner that is intentionally discriminatory 
or results in an unjustified discriminatory effect. The Fair Housing 
Act continues to apply.\18\ HUD's regulations at 24 CFR part 103 
provide HUD's Fair Housing Act complaint processing requirements, 
including complaint filing, investigation, and conciliation. Also, at 
24 CFR part 180, the regulations provide for HUD's consolidated hearing 
procedures and requirements for civil rights matters. HUD will continue 
enforcement under the Fair Housing Act and other applicable civil 
rights authorities, including title VI and section 504, for any 
violation committed by a local government for enforcing nuisance or 
crime-free ordinances. In addition, in accordance with the plain 
language of section 603, requiring implementation and enforcement of 
the chapter consistent with Title VIII of the Civil Rights Act of 1968 
(42 U.S.C. 3601 et seq.) and HUD's current enforcement of these 
protections, HUD will enforce the Housing Rights Chapter of VAWA 2022, 
including section 603, using its existing Fair Housing Act complaint 
process.
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    \17\ Office of General Counsel Guidance on Application of Fair 
Housing Act Standards to the Enforcement of Local Nuisance and 
Crime-Free Housing Ordinances Against Victims of Domestic Violence, 
Other Crime Victims, and Others Who Require Police or Emergency 
Services, September 13, 2016, https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF.
    \18\ As a reminder, local governments who are recipients of 
Federal financial assistance must also comply with, among other 
laws, Title VI of the Civil Rights Act of 1964 and section 504 of 
the Rehabilitation Act.
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F. Changes to the McKinney-Vento Homeless Assistance Act Definition of 
Homelessness

    Pre-VAWA 2022: HUD's current definition of ``homeless'' for 
programs authorized by the McKinney-Vento Homeless Assistance Act is 
based on the statutory definition of homeless provided in section 103 
of that Act. Although survivors have always been able to qualify as 
homeless under this definition, a new subsection (b) was added in 2009 
to clarify that ``Notwithstanding any other provision of this section, 
the Secretary shall consider to be homeless any individual or family 
who is fleeing, or is attempting

[[Page 327]]

to flee, domestic violence, dating violence, sexual assault, stalking, 
or other dangerous or life-threatening conditions in the individual's 
or family's current housing situation, including where the health and 
safety of children are jeopardized, and who have no other residence and 
lack the resources or support networks to obtain other permanent 
housing.'' HUD implemented this provision as part of its final rules 
defining ``homeless,'' and an additional eligibility category for this 
population now appears as paragraph (4) of the homeless definitions 
provided at 24 CFR 91.5, 576.2, and 578.3.
    VAWA 2022: Section 605 of VAWA 2022 amended section 103(b) of the 
McKinney-Vento Homeless Assistance Act to require HUD to consider as 
homeless any individual or family who--
    (1) is experiencing trauma or a lack of safety related to, or 
fleeing or attempting to flee, domestic violence, dating violence, 
sexual assault, stalking, or other dangerous, traumatic, or life-
threatening conditions related to the violence against the individual 
or a family member in the individual's or family's current housing 
situation, including where the health and safety of children are 
jeopardized;
    (2) has no other safe residence; and
    (3) lacks the resources to obtain other safe permanent housing.
    Implementation: Rulemaking will be needed to require Emergency 
Solutions Grants (ESG) recipients and subrecipients, Continuums of Care 
(CoCs), and CoC Program recipients and subrecipients to make 
corresponding changes to the applicable written standards, coordinated 
entry policies, and documentation policies used to qualify individual 
and families as homeless under the CoC Program. That said, because HUD 
must recognize as ``homeless'', families and individuals who meet the 
new statutory criteria in section 103(b) of the McKinney-Vento Homeless 
Assistance Act as of October 1, 2022, ESG and CoC recipients may 
implement the new definition prior to HUD rulemaking, provided that ESG 
recipients and CoCs update the relevant written standards and policies 
as needed to reflect the new statutory criteria.

G. Gender-Based Violence Prevention Office and VAWA Director--New 
Provision

    Pre-VAWA 2022: VAWA 2013 did not require HUD to create a specific 
office or position for VAWA-related matters. Thus, HUD's implementation 
of VAWA 2013 did not address these matters.
    VAWA 2022: Section 602 of VAWA 2022 directed HUD's Secretary to 
establish a Gender-based Violence Prevention Office with a Violence 
Against Women Act Director. The Director shall support implementation 
of VAWA's housing provisions, coordinate with other federal agencies 
and with state and local governments, ensure the provision of technical 
assistance and support for agencies and housing providers, implement 
internal systems to track, monitor and address compliance failures, and 
address the housing needs and barriers faced by persons who have been 
victims of sexual assault, sexual coercion or sexual harassment by a 
public housing agency, owner, or manager of housing assisted under a 
covered housing program.
    Implementation: No regulatory action is needed for this section to 
be implemented. Congress was authorized to appropriate such sums as may 
be necessary to carry out this section for fiscal years 2023 through 
2027.

H. Continuum of Care Program Eligible Activities

    Pre-VAWA 2022: VAWA 2013 and HUD's implementing regulations added 
homeless programs under title IV of the McKinney-Vento Homeless 
Assistance Act to the statutory and regulatory definitions of ``covered 
housing program'' \19\ HUD's 2016 VAWA final rule also revised and 
added regulations addressing the VAWA requirements for the Continuum of 
Care Program in 24 CFR part 578.
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    \19\ See 24 CFR 5.2003.
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    VAWA 2022: Section 605 amends section 423(a) of the McKinney-Vento 
Homeless Assistance Act to add the following expressly eligible 
Continuum of Care Program activity:
    (13) Facilitating and coordinating activities to ensure compliance 
with [the emergency transfer plan requirement in 34 U.S.C. 12491(e)] 
and monitoring compliance with [the confidentiality protections of the 
confidentiality requirement in 34 U.S.C. 12491(c)(4)].
    Implementation: The statutory change took effect on October 1, 
2022, although HUD will need to make a conforming change to the 
Continuum of Care program regulations at 24 CFR part 578. Because this 
new eligible activity category is distinct from the eligible activity 
categories that authorize and limit the use of Continuum of Care 
Program funds for ``payment of administrative costs'' under section 
423(a)(10), (11), and (12) of the McKinney-Vento Homeless Assistance 
Act, HUD does not consider this new activity category to be subject to 
the CoC Program's spending caps on administrative costs.

I. VAWA Training and Technical Assistance

    Pre-VAWA 2022: VAWA 2013 did not address training, technical 
assistance, and technical assistance agreements to support VAWA 
implementation for HUD covered programs. Thus, HUD's VAWA 2013 final 
rule did not amend HUD's regulations to address these matters. However, 
HUD's VAWA 2013 final rule summarized public commenters' requests that 
HUD provide guidance and technical assistance to PHAs about domestic 
violence and VAWA regulations. HUD responded that HUD intended to 
provide guidance and technical assistance to aid-covered housing 
providers in implementing VAWA.\20\
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    \20\ 81 FR 80780.
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    VAWA 2022: Section 605 of VAWA 2022 added a provision authorizing 
appropriations in ``such sums as may be necessary for fiscal years 2023 
through 2027'' for training and technical assistance to support VAWA 
implementation, including technical assistance agreements with entities 
whose primary purpose and expertise is assisting survivors of sexual 
assault and domestic violence or providing culturally specific services 
to victims of domestic violence, dating violence, sexual assault, and 
stalking.
    Implementation: Section 605(d) of VAWA 2022 took effect October 1, 
2022. No regulatory action is needed to implement this provision.
    Specific Request for Comment. HUD specifically requests comment on 
entities' needs for training and technical assistance; training and 
technical assistance in this context means to support the 
implementation of VAWA as envisioned by VAWA 2022.

J. Study and Report on Housing and Service Needs of Survivors of 
Trafficking and Individuals at Risk for Trafficking

    Pre-VAWA 2022: VAWA 2013 did not require HUD to study the housing 
and service needs of survivors of trafficking and individuals at risk 
for trafficking. Thus, HUD's VAWA 2013 final rule did not address these 
matters.
    VAWA 2022: Section 606 of VAWA 2022 requires that HUD study the 
availability and accessibility of housing and services for survivors of 
trafficking or those at risk of being trafficked, who are experiencing 
homelessness or housing instability. The provisions under Section 606 
of VAWA 2022

[[Page 328]]

outline the key requirements for the study: a definition for the terms 
``survivor of a severe form of trafficking'' and ``survivor of 
trafficking,'' \21\ the requirements for coordination \22\ and 
consultation \23\ while conducting the study, and the contents of the 
study.\24\ Lastly, section 606 of VAWA 2022 provides that not later 
than September 15, 2023, the Secretary shall submit a report containing 
the contents of the study to the Committee on Banking, Housing, and 
Urban Affairs of the Senate and the Committee on Financial Services of 
the House of Representatives, as well as making the report publicly 
available.
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    \21\ Section 606 applies the same meaning given to the 
respective terms as in section 103 of the Trafficking Victims 
Protection Act of 2000 (22 U.S.C. 7102).
    \22\ The Secretary shall coordinate with: (i) the Interagency 
Task Force to Monitor and Combat Trafficking established under 
section 105 of the Trafficking Victims Protection Act of 2000 (22 
U.S.C. 7103), (ii) the United States Advisory Council on Human 
Trafficking, (iii) the Secretary of Health and Human Services; and 
(iv) the Attorney General.
    \23\ The Secretary shall consult with: (i) the National Advisory 
Committee on the Sex Trafficking of Children and Youth in the United 
States; (ii) survivors of trafficking; (iii) direct service 
providers, including--(I) organizations serving runaway and homeless 
youth; (II) organizations serving survivors of trafficking through 
community-based programs; and (III) organizations providing housing 
services to survivors of trafficking--and (iv) housing and 
homelessness assistance providers, including recipients of grants 
under (I) the Continuum of Care program authorized under subtitle C 
of title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11381 et seq.) and (II) the Emergency Solutions Grants program 
authorized under subtitle B of title IV of the McKinney-Vento 
Homeless Assistance Act (42 U.S.C. 11371 et seq.).
    \24\ See section 606(b)(3).
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    Implementation: Section 606 of VAWA 2022 was effective upon 
enactment of VAWA 2022. No regulatory action is needed to implement 
this provision. HUD began work on the study in Spring 2022, including 
conducting the required consultations with stakeholders, and expects to 
complete the report on schedule.

IV. Solicitation of Comment

    In this document, HUD has highlighted certain issues for which 
comment is specifically sought but welcomes comment on any aspect of 
this document.

Marcia L. Fudge,
Secretary.
[FR Doc. 2022-28073 Filed 1-3-23; 8:45 am]
BILLING CODE 4210-67-P