2010-26914. HUD Programs: Violence Against Women Act Conforming Amendments

AGENCY:

Office of the Secretary, HUD.

ACTION:

Final rule.

SUMMARY:

This final rule follows a November 28, 2008, interim rule that conformed HUD's regulations to those provisions of the Violence Against Women Act (VAWA), as enacted in January 2006, and subsequently amended in August 2006, that were determined to be self-implementing. VAWA provides statutory protections for victims of domestic violence, dating violence, sexual assault, and stalking. Such protections apply to families receiving rental assistance under HUD's public housing and tenant-based and project-based Section 8 programs. This rule adopts as final the regulations in the November 28, 2008, interim rule, along with certain clarifying changes made in response to public comment, and with some restructuring of the regulations to improve organization within the Code of Federal Regulations.

DATES:

Effective Date: November 26, 2010.

FOR FURTHER INFORMATION CONTACT:

For information about HUD's Public Housing program, please contact the Director of the Public Housing Management and Occupancy Division, Office of Public and Indian Housing, Room 4226, telephone number 202-708-0744. For information about the Office of Public and Indian Housing's Section 8 Tenant-Based program, please contact Laure Rawson, Director, Housing Voucher Management and Operations Division, Office of Public and Indian Housing, Room 4210, telephone number 202-402-2425. For information about the Office of Housing's Section 8 Project-Based program, please contact Catherine Brennan, Director, Housing Assistance Policy Division, Office of Housing, Room 6138, telephone number 202-402-3000. The address for all of the above offices is the Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410-0500. The above-listed telephone numbers are not toll-free numbers. Persons with hearing or speech impairments may access the numbers through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

The Violence Against Women Act of 1994 (VAWA 1994) was enacted as Title IV of the Violent Crime Control and Enforcement Act of 1994 (Pub. L. 103-322, approved September 13, 1994), codified at 42 U.S.C. 13931 et seq. VAWA 1994 was not applicable to HUD programs, but it was applicable to other Federal agencies and authorized those agencies to award grants to assist victims of sexual assault, and included provisions to maintain the confidentiality of domestic violence shelters and addresses of abused persons. On January 5, 2006, the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162) was signed into law, and, on August 28, 2006, a bill that made technical corrections to the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-271) was signed into law. (Those two public laws are collectively referred to as “VAWA 2005”). Except as provided in Section 4 of the technical corrections law, VAWA 2005 became effective upon enactment of the law on January 5, 2006. Section 4 of the technical corrections law delayed the effectiveness of certain provisions to the commencement of Fiscal Year (FY) 2007, none of which are directly applicable to this rulemaking, which commenced with the November 28, 2008, interim rule.

VAWA 2005 reauthorized and substantially amended VAWA 1994 for FYs 2007 through 2011, and, among other things, consolidated major law enforcement grant programs, made amendments to criminal and immigration laws, and made amendments to other statutes, including certain HUD statutes, to support and strengthen efforts to combat domestic violence and other forms of violence against women. The provisions of VAWA 2005, as amended in 2006, that are applicable to HUD programs are found in Title VI entitled “Housing Opportunities and Safety for Battered Women and Children.” Section 601 of VAWA 2005 amended VAWA 1994 to add a new Subtitle N to VAWA 1994 entitled “Addressing the Housing Needs of Victims of Domestic Violence, Dating Violence, Sexual Assault, and Stalking.”

The VAWA 2005 amendments that are applicable to HUD's public housing and tenant-based and project-based Section 8 programs (covered programs) were determined to be self-implementing. To ensure that housing providers participating in the covered programs were aware that the majority of VAWA 2005 is self-implementing, HUD's Office of Public and Indian Housing (PIH) issued, on June 23, 2006, a notice (PIH 2006-23) on the subject of VAWA 2005. In that notice, PIH advised public housing agencies (PHAs) of the VAWA 2005 provisions that were effective, and implementable, on the date of enactment—January 5, 2006. This notice can be found at http://www.hud.gov/​offices/​pih/​publications/​notices/​06/​pih2006-23.pdf. PIH Notice 2006-23 was followed by PIH Notice 2006-42, which transmitted the certification form for use by tenants claiming protection under VAWA. That notice can be found at http://www.hud.gov/​offices/​adm/​hudclips/​notices/​pih/​06pihnotices.cfm. In addition, PIH notice 2007-5 addressed the VAWA provisions that were incorporated into the Housing Choice Voucher Housing Assistance Payments (HAP) contract and tenancy addendum. That notice can be found at http://www.hud.gov/​offices/​adm/​hudclips/​notices/​pih/​07pihnotices.cfm.

HUD's Office of Housing also has provided guidance on the implementation of VAWA 2005. On September 30, 2008, it issued Notice H 08-07, which advised owners and management agents on VAWA provisions related to the administration of project-based Section 8 properties. That notice transmitted both the certification form for victims' use and a lease addendum for owners and management agents to use toward integrating VAWA's statutory provisions into the HUD model lease for project-based Section 8 properties. That notice, which was extended and reissued as Notice H 09-15 on October 1, 2009, can be found at http://www.hud.gov/​offices/​adm/​hudclips/​notices/​hsg/​09hsgnotices.cfm.

In addition to these direct notices, HUD issued a Federal Register notice that addressed the applicability of VAWA 2005 to all HUD programs. That notice, which was published on March 16, 2007 (72 FR 12696), provided an overview of the key VAWA provisions that affect HUD programs, and advised program participants concerning compliance with VAWA. The notice described those provisions of VAWA determined to be self-implementing and their effect on HUD programs. That notice also advised that HUD would be amending its regulations to conform existing regulations to the VAWA requirements. The November 28, 2008, interim rule, found at 73 FR 72336, presented those conforming amendments.

II. The November 28, 2008, Interim Rule

The November 28, 2008, interim rule (73 FR 72336) amended those regulations for HUD's covered programs that required changes to conform to the VAWA amendments made to the authorizing statutes for these programs.

The November 2008 interim rule also amended HUD's Consolidated Plan regulations at 24 CFR 91.205(b) and 91.305(b) to reflect the VAWA amendment made to section 105(b)(1) of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12705(b)(1)). The amendments made by the November 2008 interim rule require jurisdictions' consolidated plans to include, as a planning data, estimated housing needs for victims of domestic violence, dating violence, sexual assault, and stalking.

The November 2008 interim rule also amended HUD's PHA plan regulations at 24 CFR 903.6 and 903.7 to include the additional information required by VAWA 2005 in the annual and 5-year PHA plans. VAWA 2005 amended section 5A of the U.S. Housing Act of 1937, which requires the submission of annual and 5-year plans by PHAs. VAWA amended section 5A to require PHAs to include, in their 5-year plans, a statement about goals, activities, objectives, policies, or programs that will enable a PHA to serve the needs of child and adult victims of domestic violence, dating violence, sexual assault, or stalking. VAWA also amended section 5A to require PHAs to include, in their annual plans, a statement about any domestic violence, dating violence, sexual assault, and stalking prevention programs they make available.

The November 2008 interim rule amended HUD's regulations in 24 CFR part 5. The regulations in 24 CFR part 5 contain the requirements applicable to one or more HUD programs (cross-cutting requirements). VAWA 2005 amended the U.S. Housing Act of 1937 (1937 Act), specifically, section 6 (applicable to public housing) and section 8 (applicable to voucher and project-based programs) (42 U.S.C. 1437d and 1437f, respectively), by making changes to admission, occupancy, and termination of assistance provisions of these statutory sections to incorporate the VAWA protections. The cross-cutting admission, occupancy, and termination/eviction requirements are codified in 24 CFR part 5. The November 2008 interim rule codified the VAWA protections in a new subpart in 24 CFR part 5, which is subpart L.

The November 2008 interim rule provided, consistent with the VAWA 2005 amendments to the 1937 Act, that being a victim of domestic violence, dating violence, or stalking, as these terms are defined in VAWA 2005, is not a basis for denial of assistance or admission to public or Section 8 assisted housing, if the applicant otherwise qualifies for assistance or admission. The statutory amendments also provide that incidents or threats of abuse will not be construed as serious or repeated violations of the lease or as other “good cause” for termination of the assistance, tenancy, or occupancy rights of a victim of abuse. The VAWA 2005 amendments also set forth the rights and obligations of PHAs, owners, and management agents regarding criminal activity or acts of violence against family members or others. The regulations in new subpart L of part 5 contain the VAWA protections as applicable to admission, occupancy, termination, and eviction.

The November 2008 interim rule also conformed HUD's regulations to reflect the VAWA 2005 certification and confidentiality provisions. VAWA 2005 provides that owners, management agents, and PHAs may request an individual claiming VAWA protection to document, by means of a HUD-approved certification form, that the individual is a victim of abuse and that the incidences of abuse are bona fide. VAWA 2005 provides that the individual's certification must include the name of the perpetrator. Forms HUD-50066, for use by PHAs, and HUD-91066, for use by owners and management agents, were developed for the purpose of this optional certification.^[1] It is not mandatory that the victim provide the HUD form, and the PHA, owner, or management agent may not require the victim to provide the form. A victim may also provide documentation from a third-party source. Documentation from a third-party source may also satisfy the request of an individual claiming VAWA protections to document the abuse. With respect to the third-party source, the third-party may be an employee, agent, or volunteer of a victim service provider, an attorney, or a medical professional, from whom the victim has sought assistance in addressing domestic violence, dating violence, or stalking, or the effects of the abuse. Pursuant to VAWA, other acceptable forms of documentation from a third-party source include a Federal, state, tribal, territorial, or local police or court record.

The November 2008 interim rule also amended 24 CFR 982.353(b) to reflect VAWA 2005's amendment to section 8(r) of the U.S. Housing Act of 1937 (42 U.S.C. 1437f(r)), which provides an exception to the prohibition against a family moving under the portability provisions in violation of the lease.^[2] VAWA 2005 provides that the family may receive a voucher and move in violation of the lease under the portability procedures, if the family has complied with all other obligations of the voucher program and has moved out of the assisted dwelling unit in order to protect the health or safety of an individual who is or has been the victim of domestic violence, dating violence, or stalking and who reasonably believed he or she was imminently threatened by harm from further violence if he or she remained in the assisted dwelling unit.

The November 2008 interim rule also amended 24 CFR 5.2007(a)(3), by incorporating the VAWA 2005 requirement imposed on PHAs to provide notice to public housing residents and tenants assisted under section 8 of their rights, including their rights to confidentiality, and notice to owners and management agents of their rights and obligations under VAWA 2005. In addition to the notice required by PHAs, the November 2008 interim rule also required owners and management agents administering an Office of Housing project-based Section 8 program to provide their tenants with the notification as per the VAWA 2005 requirement.

The November 2008 interim rule also added several new definitions to its new regulations in 24 CFR part 5, subpart L, to reflect terminology defined by VAWA 2005, including “domestic violence,” “dating violence,” “stalking,” and “immediate family member.”

The amendments made by the November 2008 interim rule are discussed in more detail in the November 28, 2008, Federal Register notice at 73 FR 72337 through 723339.

III. This Final Rule

As the preamble to the November 2008 interim rule explained and as reiterated in the preamble to this final rule, HUD's initial rulemaking for VAWA 2005, as commenced in November 2008, and the notices that preceded the November 2008 interim rule, were issued to ensure that PHAs, owners, and management agents participating in HUD's covered programs were aware of the self-implementing provisions of VAWA 2005, and of the need to immediately implement the protections provided by VAWA 2005 in situations covered by VAWA 2005. That is, PHAs, owners, and management agents were not to delay their updating of policies pertaining to admission, occupancy or termination while waiting for HUD to issue regulations on those subjects. Because the regulations in HUD's November 2008 interim rule were conforming regulations, generally incorporating, almost verbatim, the VAWA 2005 statutory language, HUD anticipated no significant changes would be made at this final rule stage, and that is in fact the case. However, commenters did identify certain areas where the regulatory language would increase comprehensibility if HUD provided further explanation or elaboration; this rule does provide that. HUD also determined that the organization of the regulations in 24 CFR part 5, subpart L, would be enhanced by some reorganization, and this rule reflects that reorganization.

Therefore, with respect to reorganization, and in response to public comments, the following changes are made at this final rule stage:

A. Reorganization Changes

Section 5.2005, formerly entitled “Protection of victims of domestic violence, dating violence, and stalking in public and Section 8 housing,” is now entitled “VAWA protections,” and now addresses only VAWA 2005 protections. The provisions of § 5.2005 of the interim rule that addressed lease bifurcation and court orders are now in a new § 5.2009, entitled “Remedies available to victims of domestic violence, dating violence, or stalking in HUD-assisted housing.” Section 5.2009 of the interim rule entitled “Effect on other laws” has been redesignated as § 5.2011.

B. Clarification Changes

In § 5.2003 (Definitions), HUD has added a definition of VAWA.

In § 5.2005 (VAWA protections), paragraph (a) that pertains to notice of VAWA protections is amended to include a new paragraph (a)(4), which provides that the HUD required lease, lease addendum, or tenancy addendum, as used in programs covered by this rule, must include a description of specific protections afforded to the victims of domestic violence, dating violence, or stalking.

In § 5.2005, paragraph (d)(1) of this section, which addresses the limitation of VAWA protections, and the authority of PHAs, owners, and management agents, now includes reference to termination of assistance to clarify that Section 8 vouchers are covered by VAWA 2005 protections. The interim rule merely addressed eviction, termination of tenancy, and occupancy rights.

In § 5.2005, HUD clarifies in paragraph (d)(2) that the standard for eviction, termination of tenancy, or termination of assistance is both the actual and imminent threat of violence, not an actual or imminent threat of violence. (Please see also HUD's response to the first comment under Section IV.A.)

In § 5.2005, HUD adds a new paragraph (d)(3), which addresses the VAWA statutory language's emphasis that nothing in VAWA interferes with the right of a PHA, owner, or management agent to evict or terminate assistance to any tenant or lawful occupant if the PHA, owner, or management agent can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the public housing or Section 8-assisted property, if that tenant or lawful occupant is not terminated from assistance. New paragraph (d)(3) provides that any eviction or termination of assistance undertaken on this basis should be utilized only by a PHA, owner, or management agent when there are no other actions that could be taken to reduce or eliminate the threat, including, but not limited to, transferring the victim to a different unit, barring the perpetrator from the property, contacting law enforcement to increase police presence, developing other plans to keep the property safe, or seeking other legal remedies to prevent the perpetrator from acting on a threat. Restrictions predicated on public safety cannot be based on stereotypes, but must be tailored to particularized concerns about individual residents.

Further, in § 5.2005, HUD adds a new paragraph (e) to address the meaning of actual and imminent threat to better guide what constitutes an “actual and imminent threat” and how to determine when one exists.

In § 5.2007 (Documenting the occurrence of domestic violence, dating violence, or stalking), HUD has revised the title of this regulatory section to be more clear regarding the issue to which this section is directed, which is simply that the victim is required to submit written evidence, if requested by a PHA, owner, or management agent, that verifies that the domestic violence, dating violence, or stalking occurred. This revision also clarifies that the claim presented to the PHA, owner, or management agent, as provided in this regulatory section, may be a claim for continued occupancy or initial tenancy or assistance. The interim rule merely referenced continued occupancy. Commenters pointed out that reference to continued occupancy would make the documentation request applicable only to terminations of public housing tenants. Inclusion of “initial tenancy” and “assistance” clarifies that terminations are also applicable to Section 8 participants, and to denying assistance to public housing and Section 8 applicants.

As will be seen by the discussion of public comments, there appeared to be confusion as to what was meant by certification; that is, whether certification referred to the use of a HUD-approved form or whether it referred to the process of verifying, in writing, the occurrence of domestic violence, dating violence, or stalking. What the statute contemplates, and what this regulation puts into place, is that upon request, the victim will provide evidence, which could be in the form of the victim's written statement on a HUD-approved certification form. The evidence could also consist of a police or court record, or the written statement of an employee, agent, or volunteer of a victim service provider, an attorney, or a medical professional, from whom the victim has sought assistance in addressing domestic violence, dating violence, or stalking, or in addressing the effects of abuse, in which the professional attests under the penalty of perjury to the professional's belief that the incident or incidents in question are bona fide incidents of abuse. In brief, a written document that verifies that the violence occurred could be requested by the PHA, owner, or management agent. Therefore, HUD will use “documentation” and “document” to refer to the process of providing written verification. HUD will apply the terms “certification” and “certify” to refer to the HUD-approved form and its use by the victim.

In addition, in § 5.2007, HUD includes the phrase “dating violence or stalking” along with “domestic violence.” This section clarifies that if a PHA, owner, or management agent requests a tenant, alleging domestic violence, dating violence, or stalking, to document his or her claim of such violence, the request must be made in writing. This section also clarifies that at its discretion, a PHA, owner, or management agent may provide benefits to an individual based solely on the individual's verbal statement or other corroborating evidence.

In § 5.2007(b)(4), HUD expands on the responsibility of the PHA, owner, and management agent to maintain the confidentiality of information provided by a victim of domestic violence, dating violence, or stalking.

Finally, in § 5.2007, a new paragraph (e) is added to clarify the way in which the PHA, owner, or management agent may determine the true victim of domestic violence in a situation of conflicting certifications.

In § 5.2009 (Remedies available to victims of domestic violence, dating violence, or stalking in HUD-assisted housing), HUD clarifies in paragraph (a), which pertains to lease bifurcation, that the programs covered by this provision are the public housing, Section 8 Housing Choice Voucher (HCV), and Section 8 project-based programs.

HUD has included an amendment to 24 CFR 966.4 (Lease requirements) to include the VAWA 2005 protections as a required provision of the public housing lease, and to require the PHA to consider lease bifurcation if appropriate in a domestic violence situation.

HUD has included amendments to 24 CFR 982.314 (move with continued tenant-based assistance) to clarify that PHA policies restricting timing and number of moves do not apply when the family or a member of the family is or has been the victim of domestic violence, dating violence, or stalking, and the move is needed to protect the health or safety of the family or family member. New amendments to 24 CFR 982.314 also clarify that a PHA may not terminate assistance if the family, with or without prior notification to the PHA, already moved out of a unit in violation of the lease, if such move occurred to protect the health or safety of a family member who is or has been the victim of domestic violence, dating violence, or stalking and who reasonably believed he or she was threatened with imminent harm if he or she remained in the dwelling unit. HUD has included an amendment to 24 CFR 982.315 (Family break-up) to address the same concerns as provided in the amendment to 24 CFR 982.314.

IV. Public Comments and HUD's Responses

The public comment period on the November 2008 interim rule closed on January 27, 2009, and HUD received 13 public comments. Commenters included legal aid organizations, domestic violence advocacy groups, housing advocacy groups, and public housing agencies.

Overall, commenters appeared pleased to see the VAWA 2005 protections codified in regulations, but some commenters said the November 2008 interim rule was more than a conforming rule, while others said HUD had failed to fully conform its regulations to certain VAWA 2005 statutory provisions. Other commenters stated that they understood that regulations were not the appropriate place for comprehensive guidance on the VAWA 2005 protections, but encouraged HUD to provide additional guidance on the VAWA 2005 protections and provide examples on the various situations in which the need for such protections may occur. The following presents key issues raised by the commenters and HUD's responses to these issues.

A. Scope and Definition Issues

Comment: Interim rule's language on “actual or imminent threat” departs from the statutory language. Several commenters stated that HUD's interpretation of “actual and imminent threat” departs from the statutory language in VAWA 2005. A commenter stated that the statutory language of VAWA 2005 refers to an actual and imminent threat, and HUD's interim rule, by contrast, refers to actual or imminent threat.

HUD Response: The interim rule deviated from the statutory language of VAWA 2005 by indicating that an owner, management agent, or public housing agency may evict or terminate from assistance any tenant or lawful occupant if the owner, management agent, or public housing agency can demonstrate an actual or imminent threat to other tenants or those employed at or providing service to the property if that tenant is not evicted or terminated from assistance. VAWA 2005 states that an owner, management agent, or public housing agency may evict or terminate from assistance any tenant or lawful occupant if the owner, management agent, or public housing agency can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the property if that tenant is not evicted or terminated from assistance. This deviation from the statutory language resulted from the use of two similar, but contextually distinct, phrases within the statute. Both the phrase “actual and imminent threat” and “actual or threatened domestic violence” appear in VAWA 2005, and are used to refine proscribed protection and prohibited activity in different potential situations.

The phrase “actual or threatened domestic violence” appears in section 606 and section 607 of VAWA 2005 in the amendments made to section 8(c)(9)(B) and section 6(l)(5) of the U.S. Housing Act of 1937 (42 U.S.C. 1437f(c) and 42 U.S.C. 1437d(l)). The revision to section 6(1)(5) of the U.S. Housing Act states that an incident or incidents of actual or threatened domestic violence, dating violence, or stalking will not be construed as a serious or repeated violation of the lease by the victim or threatened victim, and shall not be good cause for terminating the assistance, tenancy, or occupancy rights of such victim.

In contrast, section 606 of VAWA 2005 (section 8(c)(9)(C) of the 1937 Act) and section 607 of VAWA 2005 (section 6(l)(6) of the 1937 Act) provide that criminal activity directly relating to domestic violence, dating violence, or stalking engaged in by a member of a tenant's household or any guest or other person under the tenant's control is not cause for termination of assistance, tenancy, or occupancy rights if the tenant or a member of the tenant's immediate family is the victim of the corresponding violence. This protection, however, is limited by sections 8(c)(9)(C)(v) and 6(l)(6)(E), which provide that a tenant, or other lawful occupant, who is a victim of such domestic violence, dating violence, or stalking may be evicted or terminated from assistance if the owner, management agent, or public housing agency can demonstrate that such an action is required due to an actual and imminent threat posed to other tenants or to employees or service providers of the property that will result if that tenant or lawful occupant is not evicted or terminated from assistance. In this context, the phrase “actual and imminent threat,” rather than “actual or imminent threat,” narrows the use of this limitation by the owner, management agent, or public housing agency, thereby, providing greater protection for the victim. Accordingly, HUD has clarified this distinction in 24 CFR 5.2005(d)(2).

Comment: Definition of “imminent threat” requires revisions. Two commenters questioned the interim rule's definition of “imminent threat” on the basis that they found that it failed to include the imminence of the threat; that is, the likelihood that the threat would become reality. Other commenters recommended using the standard of “serious bodily harm” to give meaning to “violent criminal activity,” which is the term used in VAWA 2005. Commenters stated that the term “bodily harm” was too vague and general.

HUD Response: Section 5.2005(e) of HUD's interim rule provides that words, gestures, actions, or other indicators are considered an imminent threat “if a reasonable person, considering all of the relevant circumstances, would have a well-grounded fear of death or bodily harm as a result.” HUD based its definition of “imminent threat” in the interim rule, in part, on the definition of “stalking” in VAWA 2005. VAWA 2005 defines “stalking” to include acts of pursuit or surveillance or repeatedly committed acts that “place a person in reasonable fear of the death of, or serious bodily injury to, or to cause substantial emotional harm to” that person, a member of the immediate family, or the spouse or intimate partner of that person. The definition of “stalking” described the types of actions that were actual and imminently threatening in a domestic violence situation.

However, in response to public comments, HUD has reexamined the interim rule guidance on actual and imminent threat, and also reviewed case law, as suggested by commenters in the following comment. The case law recommended by the commenters was helpful in developing standards that would better guide what actions constitute actual and imminent threat. Section 5.2005 of this final rule includes a new paragraph (e) to help PHAs, owners, and management agents determine when actual and imminent threat exists. This new paragraph (e) is discussed more fully in HUD's response to the following comment.

Comment: Clarify standards for determining actual and imminent threat. Commenters stated that HUD's final rule needed to elaborate on the meaning of “actual and imminent” threat in order to be more helpful to housing providers in understanding when they may be confronting an actual and imminent threat situation. Two commenters suggested that the legislative history of, and similar exceptions in, the Fair Housing Act and the Americans with Disabilities Act should be used as standards to elaborate on the proper application of actual and imminent threat to specific circumstances encountered by PHAs, owners, or management agents under VAWA 2005. One commenter recommended that HUD's final rule follow the Fair Housing Act and base any specific determination of an actual and imminent threat based on the consideration of four factors: (1) The nature of the risk, (2) the duration of the risk, (3) the severity of the risk or potential harm to third parties, and (4) the probability of harm. The commenter claimed that the Fair Housing Act codifies the factors of School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123 (1987) in 42 U.S.C. 3604(f)(9). The commenter added that HUD's final rule should describe the analysis of actual and imminent threat with more specificity so that PHAs, owners, or management agents know they must have objective evidence in order to find an exception to VAWA 2005. The commenter stated that otherwise an exception may be based on fear or conjecture rather than on an objectively proven imminent threat.

The commenter recommended that the factors be listed in HUD's final rule, as is done in two similar regulations describing the direct threat exception for the Americans with Disabilities Act (ADA): The Department of Justice's ADA regulations and the Department of Labor's ADA regulations at 28 CFR 36.208 and 29 CFR 1630.2(r), respectively. The commenter stated that, as HUD's interim rule reads, it fails to emphasize the need for objectivity, evidence, and the examination of particular circumstances needed to understand and implement this exception.

HUD Response: HUD understands that the need for elaboration on this important terminology—actual and imminent threat—as used in the statute, and appreciates the commenters' suggestions on standards or factors to consider in determining whether there is a situation of actual and imminent threat. Although there appears to be an absence of case law interpreting “actual and imminent” threat, the commenters are correct that cases involving housing discrimination or violence in a direct threat situation are instructive on standards that should be considered. More importantly, the commenters are correct that any interpretation of these terms should emphasize the need for objective evidence that the actual and imminent threat of physical danger is real, not hypothetical or presumed; would occur within an immediate time frame, and thus not be remote or speculative; could result in death or serious bodily harm; and could not be reduced or eliminated by reasonable actions. Accordingly, HUD's final rule provides, in a new paragraph (e) to § 5.2005, that an actual and imminent threat consists of a physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. Additionally, this paragraph provides that in determining whether an individual would pose an actual and imminent threat, the factors to be considered include: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the length of time before the potential harm would occur. In addition to including this language in the regulatory text, HUD intends to issue further guidance that may be helpful in determining and dealing with actual and imminent threat.

Comment: Commenters stated that the rule omits reference to crimes of dating violence and stalking. According to commenters, HUD's interim rule, in several places, addresses domestic violence, but fails to include the crimes of dating violence and stalking. The commenters recommended that the provisions be amended to more closely track VAWA 2005.

HUD Response: HUD's interim rule (in § 5.2003, as well as in § 5.2005 (the title of § 5.2005, includes the phrase dating violence and stalking), and § 5.2009) already includes reference to the crimes of dating violence and stalking. The final rule includes dating violence or stalking in addition to domestic violence at section 5.2007(d) and section 5.2007(a). HUD has not identified any other key provision of the interim rule where such terminology was omitted.

Comment: Clarify criminal activity directly related to domestic violence, dating violence, or stalking. A commenter stated that the statute and interim rule contain detailed definitions of the terms “domestic violence, “dating violence,” and “stalking,” but does not clarify the meaning of “directly related” in the context of protecting a victim from eviction due to such criminal activity. The commenter stated that Congress intended to limit the reach of the provision so that activities distantly related to domestic violence, dating violence, or stalking would not bring into play the statutory scheme.

HUD Response: As the commenter notes, the interim rule mirrors the statutory language, which provides that criminal activity “directly related” to domestic violence, dating violence, or stalking, engaged in by a member of a tenant's household or any guest or other person under the tenant's control, shall not be cause for termination of tenancy, or of occupancy rights of, or assistance to the victim, if the tenant or immediate family member of the tenant is the victim. HUD finds that in this context, the meaning of “directly related” is clear and does not require further elaboration.

Comment: VAWA 2005 should apply to men, Project Rental Assistance Contracts (PRACs), and Section 8 properties. One commenter stated that VAWA 2005 should protect men from domestic violence and not only women. The commenter added that VAWA 2005 should cover housing under PRACs, as well as other Section 8 properties.

HUD Response: VAWA 2005 does protect men. Although the name of the statute references only women, the substance of the statute makes it clear that its protections are not exclusively applicable to women. With respect to broader coverage of VAWA 2005, HUD notes that the scope of VAWA 2005 protections is limited to the 1937 Act.

Comment: Rule must address battered immigrants' eligibility. Commenters stated that HUD's interim rule omits housing eligibility for battered immigrant-qualified aliens. Battered immigrant-qualified aliens are statutorily eligible to receive public and assisted housing as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. In 2003, according to the commenters, Congress directed HUD and the Department of Justice to interpret housing statutes consistently with immigration and public benefits statutes so that qualified alien-battered immigrants would be eligible for federally subsidized housing. (See H. Rep. No. 108-10 at 1495). According to the commenters, qualified alien-battered immigrants continue to be denied housing benefits they both need and are eligible to receive, and HUD should revise its VAWA rule, at the final rule stage, to make it clear that battered alien immigrants are eligible to receive housing benefits.

HUD Response: The November 2008 interim rule and this final rule are directed only to addressing the provisions of the Violence Against Women Act of 2005. This rule does not address the categories of legal immigrants eligible for housing under Section 214 of the Housing and Community Development Act of 1980. However, VAWA 2005 protects victims of domestic violence, dating violence, or stalking residing in HUD public and assisted housing covered by VAWA 2005, regardless of whether they are citizens or eligible immigrants.

B. Certification and Verification (Documentation of Abuse) Issues

Comment: Certification language in interim rule is at odds with the statutory language. One commenter stated that the certification section of the rule is confusing and must be revised to include correct VAWA 2005 statutory language, which provides that a PHA, owner, or management agent may ask a victim of domestic violence, dating violence, or stalking to document this status in any one of the following forms: a HUD-approved certification form completed by the victim or documentation signed by an employee, agent, or volunteer of a victim service provider; an attorney; or a medical professional, or via a court or police record.

HUD Response: As discussed in Section III.B. of this preamble, HUD has revised § 5.2007 to eliminate any confusion about the “certification/or verification” of abuse. As noted in Section III.B. of this preamble, a PHA, owner, or management agent may request that a victim of domestic violence, dating violence, or stalking document or provide written evidence to demonstrate that the violence occurred. Accepted means of documentation include providing the PHA, owner, or management agent with a completed HUD-approved certification form, or other form of written verification of the abuse, signed by a third party. The PHA, owner or management agent also may accept the victim's verbal statement or other corroborating evidence as sufficient verification of the abuse. Therefore, as long as the victim provides a HUD-approved certification form, third-party documentation, a verbal statement, or other corroborating evidence, the victim is statutorily entitled to VAWA 2005 protections. A tenant's file should document acceptance of an individual's verbal statement.

Comment: Clarify permissibility of self-certification and third-party verification. Some commenters stated that the option to self-certify, despite the request from a PHA, owner, or management agent for certification on the HUD form or another form of certification, is at odds with VAWA 2005. Other commenters stated that the November 2008 interim rule is unclear as to when third-party verification can be required instead of self-certification. A commenter stated that third-party verification should be allowed because such verification provides a PHA, owner, or management agent with a comparatively higher level of protection from potential abuse of VAWA 2005, and would eliminate the need for an independent judgment call.

Other commenters stated that VAWA 2005 indicates that a PHA or owner does not have to require that a person seeking VAWA 2005 protections produce documentation of his or her status as a victim of domestic violence, dating violence, or stalking, and that VAWA 2005 protections may be provided to individuals based solely on their own statements or other corroborating evidence. Another commenter stated that, if a PHA, owner, or management agent decides to obtain verification of an individual's status as a victim, the tenant may satisfy the requirement to document the abuse by providing documentation signed by an attorney or member of a victim service provider or contained in a police or court record.

HUD Response: With respect to self-certification, VAWA 2005 allows, but does not require, the victim to self-certify, in order to be afforded protection under VAWA 2005. Form HUD-50066, for use by PHAs, and form HUD-91066, for use by owners and management agents, have been developed for the purpose of the optional certification. They are standard forms and collect limited, relevant information from the victim.

With respect to the issue of third-party verification, HUD has determined that an individual requesting protection cannot be required to provide third-party documentation. If a documentation request is made to an individual seeking protection under VAWA 2005, the PHA, owner, or management agent must accept the standard HUD certification form as a complete request for relief, without insisting on additional documentation. Additionally, third-party documentation must be accepted in lieu of the HUD standard certification form if such documentation is produced by the individual requesting relief.

Comment: Clarify whether a HUD-approved certification is always needed. Certain commenters stated that the certification provision of HUD's interim rule should be revised to clarify that a HUD-approved certification form is not always required. According to one commenter, the interim rule improperly combines the HUD certification form with the option for the victim to submit a police or court record or qualified third-party documentation in lieu of the certification form. Other commenters stated that the regulatory text of the interim rule should follow the statutory language, which references a written request for certification by the PHA or owner.

HUD Response: HUD believes that the changes made to § 5.2007 eliminate confusion about what is required under the statute, as implemented by HUD's regulation. However, in response to the question raised by the commenters, a PHA, owner, or management agent may, but is not required to, request that the individual complete a HUD-approved certification form documenting the abuse. The victim may satisfy a request to document the domestic violence, dating violence, or stalking by submitting the HUD-approved form. The victim may satisfy the PHA's, owner's, or management agent's request for documentation without providing the HUD-approved form, by submitting third-party documentation of the abuse or other corroborating evidence. The PHA, owner, or management agent must accept the HUD-approved form as a complete request for protection in the absence of third-party documentation. Third-party documentation may include, among other things, court or police records. In addition, the PHA, owner, or management agent may provide benefits based solely on the individual's verbal statement or other corroborating evidence.

With respect to a written request for certification, HUD acknowledges that this language could be clearer, and believes the changes made to § 5.2007 provide greater clarity. In order to deny relief for protection under VAWA, a PHA, owner, or management agent must provide the individual with a written request for documentation. If the individual fails to provide the requested documentation within 14 business days of receiving a written request for information, the relief may be denied. The 14-business day window for submission of documentation does not begin until the individual receives the written request. The PHA, owner, or management agent has discretionary authority to extend the statutory 14-business day period. While HUD's interim rule covered these time frames, the “request” by the PHA, owner, or management agent was not phrased specifically in terms of a “written request.” However, the subject of request for documentation is now addressed in § 5.2007(a) of the final rule.

Comment: Content of certification requires clarification. A commenter stated that VAWA 2005 is ambiguous as to whether the content of certification should be left to the victim's discretion or to the discretion of the PHA, owner, or management agent. Commenters suggested that the housing providers be given the discretion to specify the content and types of information that should be provided in the certification.

HUD Response: As noted earlier, although VAWA 2005 speaks in terms of a victim's certification that the violence occurred, HUD's regulation is revised by this final rule to speak in terms of documentation of the violence. Nevertheless, to the commenters' question about the statute, the 1937 Act, at both 42 U.S.C. 1437d(u)(1)(A) and 1437f(ee)(1)(A), states that the PHA, owner, or management agent may request that an individual certify through a HUD-approved certification form that the individual is a victim of domestic violence, dating violence, or stalking, and that the incident or incidents in question are bona fide incidents of such actual or threatened abuse and meet the requirements set forth in the above-referenced statutory provisions. Under VAWA 2005, the only required content of the certification is that such certification shall include the name of the perpetrator. Certifications are typically very brief documents by which an individual who has provided certain information attests that such information is true. HUD finds that its treatment of certification in its regulations, which mirrors VAWA 2005's treatment, is the correct approach.

Comment: VAWA 2005 does not require victims to sign certifications under penalty of perjury. Commenters stated that the interim rule requires victims to sign certifications under penalty of perjury, which is not required by VAWA 2005 or HUD's published certification form, form-50066. One commenter stated that HUD has the discretionary authority to require victims to certify their status under penalty of perjury, and that HUD's form should provide for self-certification under penalty of perjury, so long as the form is amended to describe the penalties associated with perjury. Other commenters stated that HUD appears to have the discretion to offer a certification process through which program sponsors could also require third-party verification under penalty of perjury, victims' self-certification of their status under penalty of perjury, or “victims” providing of police reports. The commenters stated that these alternatives would help to prevent abuse of VAWA 2005 protections.

HUD Response: Given the possible consequences to both the victim and the alleged perpetrator of domestic violence, dating violence, or stalking, HUD's position is that it is important that any allegations made by one individual against another are made with the understanding that there are consequences if the allegations are false. In this regard, HUD's VAWA forms, HUD-50066 and HUD-91066, advise that the submission of false information may be a basis for termination of assistance or for eviction. HUD maintains that this language is a sufficient deterrence from false reporting and that the inclusion of the language “under penalty of perjury” is unnecessary.

Comment: Additional guidance is necessary to protect victims' confidentiality and safety in the documentation process. One commenter stated that PHAs and owners could benefit from guidance on how to maintain confidentiality when a victim seeks to port a voucher to a different jurisdiction. Other commenters stated that the rule should explicitly state that any release of information for the purpose of enforcing that person's rights under VAWA 2005 is limited in time and scope. One commenter stated that because of the sensitive nature of domestic violence, HUD must include safeguards to ensure that PHAs or landlords do not require any information beyond that required in a HUD-approved form.

HUD Response: The release of confidential information was addressed in § 5.2007(a)(1)(v) of the interim rule [§ 5.2007(b)(4) in the reorganized regulation of this final rule]. This section, which tracks the statutory language in VAWA 2005 (at section 8(ee)(2) of the Housing Act of 1937 (42 U.S.C. 1437f(ee)(2))), has been expanded in the final rule stage. This section now states that information provided by the victim of domestic violence, dating violence, or stalking shall be kept confidential and shall not be entered into any shared database or provided to any other entity except to the extent that disclosure is requested by the tenant, required for use in an eviction proceeding, or required by applicable law. Further, this section prohibits employees of the PHA, owner, or management agent, or individuals within their employ (e.g., contract workers) from having access to such information, unless they are specifically and explicitly authorized by the PHA, owner, or management agent to access this information because it is necessary to their work for the PHA, owner, or management agent. These employees or individuals in the employ of the PHA, owner, or management agent are equally bound to maintain the confidentiality of such information. Maintaining confidentiality is essential to protect victims from further harm. In addition to expanding the confidentiality requirements in § 5.2007(b)(4), HUD will provide additional guidance to PHAs, owners, and management agents on confidentiality protocols that each PHA, owner, and management agent should maintain and enforce.

Further, HUD notes that the situations mentioned by commenters are also covered by the Privacy Act (5 U.S.C. 552a). The Privacy Act controls the purposes for which information may be released, and those purposes are supposed to be stated when the information is collected.

Comment: Guidance needed for processing VAWA 2005 certifications. Several commenters sought guidance on how to process a VAWA 2005 certification, including cases involving the submission of certifications from household members that are in conflict with one another. In some instances, where the perpetrator of domestic violence is a member of the household and faces eviction, the perpetrator may claim to be a victim of domestic violence and attempt to have the true victim evicted instead.

HUD Response: As noted earlier in this preamble, the process that is at issue is not the processing of certifications, but rather documenting violence that has occurred. As also discussed in this preamble, such documentation may be provided in several ways, including a certification, but also a third-party statement or a court or police record. Individuals seeking protection under VAWA 2005 must notify the PHA, owner, or management agent of their intent to request protection. The PHA, owner, or management agent may, but is not required to request, that the individual provide documentation of the abuse. The individual may satisfy the documentation requirement by submitting the HUD-approved certification form. The individual may also satisfy a request for documentation by submitting third-party documentation of the abuse or other corroborating evidence. Although the victim has discretion as to the means of documentation, the PHA, owner, or management agent may request some additional proof beyond a verbal statement. If the requesting individual is unable to produce documentation or other corroborating evidence and is unwilling to self-certify on the HUD-approved form, the individual may request, and the PHA, owner, or management agent must, in accordance with the procedures established in the applicable program regulations, provide an opportunity for an informal review or informal hearing prior to ultimate denial of protection.

Third-party documentation may include, among other things, court or police records. The PHA, owner, or management agent must accept the certification form as a complete request for protection, in the absence of third-party documentation. A PHA, owner, or management agent also must accept third-party documentation in lieu of the HUD standard certification form if such documentation is produced by the individual requesting relief.

The certification form and/or third-party documentation should be placed in the tenant's file, and the PHA, owner, or management agent should explain to the individual the remedies available. Additional information on processing the certification and/or third-party documentation will be described in HUD administrative guidance.

With respect to conflicting certification from two members of a household, HUD recognizes that PHAs, owners, and management agents may not be in a position to determine the victim from the perpetrator. Trained third parties (such as law enforcement or a victim service provider, attorney, or medical professional, as described in 42 U.S.C. 1437(f)(ee)(C)) are often better equipped to make accurate judgments. The statute also notes that the eviction protections do not limit the authority of a PHA, owner, or management agent, when notified, to honor court orders addressing rights of access to control of the property, including civil protection orders issued to protect the victim and issued to address the distribution or possession of property among the household members in cases where a family breaks up. Use of this third-party documentation would enable PHAs, owners, and management agents to make a more accurate decision. It would also discourage perpetrators from attempting to abuse the system and further harm their victims. A victim may well have already sought assistance in addressing the abuse and be able to produce documentation relatively quickly. Should any questions remain, a court or another adjudication process, such as a PHA grievance hearing, informal hearing or informal review, could be an appropriate venue to pursue fact-finding and make a determination.

To assist PHAs, owners, and management agents navigate such conflicts, HUD has added a new paragraph (e) to § 5.2007, to clarify the ways in which the PHA, owner, or management agent may determine the true victim of domestic violence in a situation of conflicting certifications. HUD will also issue additional guidance to assist PHAs, owners, or management agents when confronted with conflicting certifications.

C. Transfer Policies and Portability Issues

Comment: Transfer policies to protect victims. Commenters encouraged HUD to go beyond merely conforming HUD's regulations to the VAWA 2005 provisions, by promulgating regulations that mandate emergency transfers for victims of domestic violence in public housing and project-based Section 8 housing. The commenters stated that VAWA 2005 creates specific transfer rights for victims of domestic violence with HCVs, with one commenter encouraging HUD to exercise its rulemaking authority and create specific rights for victims in public housing and project-based Section 8 housing, in addition to the rights provided for voucher tenants. That commenter stated that while there is no direct guidance on the problems facing victims of domestic violence who need to flee their project-based Section 8 housing without jeopardizing their subsidies, there is general recognition of the problem by HUD, owners, and advocates. One commenter stated that HUD's VAWA 2005 regulations should encourage project-based Section 8 owners to allow transfers to other project-based Section 8 developments they own or to developments where they have cooperative agreements with other owners. Such a policy would not be a violation of waiting list regulations.

HUD Response: HUD's November 2008 interim rule was issued for the purpose of conforming HUD's regulations to the self-implementing provisions of VAWA 2005 and, as stated earlier in this preamble, for the purpose of ensuring there was no confusion on the part of PHAs, owners, and management agents that they should immediately commence compliance with VAWA 2005. With respect to the request to HUD to undertake rulemaking beyond this conforming rulemaking process, for the purpose of establishing specific rights to victims of domestic violence, dating violence, or stalking in HUD-subsidized housing, it is HUD's view that VAWA 2005 well establishes those rights. HUD believes that this view is consistent with the statutory language of VAWA 2005, which was made effective upon enactment, and which did not direct HUD to undertake rulemaking to implement the provisions applicable to HUD programs.

With respect to transfer policies, HUD will continue to encourage, rather than require, PHAs to include protections for victims of domestic violence, dating violence, or stalking, within existing transfer policies. While there are no transfer policies for project-based Section 8 properties, HUD Handbook 4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs, already states that owners may adopt a preference for families that include victims of domestic violence. HUD will be revising the Handbook so that the language also includes victims of dating violence and stalking. HUD believes that the responsibilities of PHAs, multifamily housing owners, and management agents are clear under VAWA 2005 to protect tenants who are victims of domestic violence, dating violence, or stalking and that PHAs, multifamily housing owners, and management agents also need the flexibility to confront the various domestic violence, dating violence, or stalking situations that may occur.

Comment: Address possible problems with moving and portability policies. Certain commenters expressed concern about moving and portability policies. According to one commenter, HUD's November 2008 interim rule allows a family to receive a voucher and to move out of a unit in violation of the lease if the family believes itself in immediate danger. However, the commenter stated that HUD has not provided guidance on how to handle such situations with HCV landlords. The commenter stated that clarification of such procedures is critical if HUD expects landlords to continue to participate in the HCV program.

A second commenter stated that all parties would benefit from more guidance on the portability issue. A third commenter stated that if the November 2008 interim rule is read in conjunction with PIH Notice 2008-43, it appears that a PHA can continue to deny a victim's request for portability if the PHA has established a policy that prohibits a move by the family during the initial lease term, or more than one move by the family during any one-year period. In order to address this problem, the commenter recommended that an exception be recognized in § 982.314(c) for voucher participants. The commenter stated that PHAs need guidance from HUD on how to handle VAWA 2005-related absence from the unit or the need to vacate the unit.

HUD Response: HUD agrees that denying a request for portability in such a situation would be contrary to the intent of VAWA 2005. Therefore, HUD has revised its regulation at § 982.314(b) to clarify that a PHA may not refuse to issue a voucher to an assisted family due to the family's failure to seek approval prior to moving to a new unit in violation of the original lease, if such move occurred to protect the health or safety of a family member who is or has been the victim of domestic violence, dating violence, or stalking and who reasonably believed he or she was threatened with imminent harm if he or she remained in the dwelling unit. This move, however, does not relieve the family of any financial obligations on the original lease. Additionally, HUD has revised its regulation at § 982.314(c) to clarify that PHA policies restricting the timing and number of moves do not apply when the family or a member of the family is or has been the victim of domestic violence, dating violence, or stalking, and the move is needed to protect the health or safety of the family or family member.

Comment: Clarification needed for addressing family break-ups due to domestic violence. Three commenters asked HUD to clarify how PHAs should respond when violence leads to family break-up. The commenters suggested that HUD issue guidance stating that family break-up cannot result in an eviction or termination in violation of VAWA and that survivors of violence can be treated as the highest priority in determining continuation of housing assistance. Another commenter requested that HUD's final rule revise the regulatory text on the Section 8 voucher program's approach to family breakup. The commenter suggested that the approach for the Section 8 voucher program should be broadened, by a cross reference, to include all types of violence encompassed by VAWA, including survivors of domestic violence, dating violence, or stalking.

HUD Response: HUD is committed to developing and providing guidance on family break-up and lease bifurcation. The guidance will include information on how to add victims currently residing with an abuser to the lease or voucher. HUD agrees that its voucher regulations in 24 CFR part 982 should include domestic violence, dating violence, or stalking as defined by VAWA as an additional factor to consider in determining which members of an assisted family should continue receiving assistance if the family breaks up. This final rule has been revised at § 982.315 accordingly.

D. Lease Issues

Comment: Bifurcation of leases. One commenter stated that the interim rule's definition of “bifurcate” is not lifted directly from the statute. The commenter stated that while the regulatory definition goes beyond a merely conforming amendment, that doing so is in fact useful for implementation of VAWA 2005 protections. The commenter stated that the proposed definition makes it clear to housing providers and Section 8 owners that leases can be revised to permit domestic violence survivors to retain their housing assistance, while tenancy rights of their abusers can be extinguished.

Other commenters expressed concern about the efficacy of bifurcation of leases, because bifurcation is new and yet to be tested at the state level. However, a commenter added that the interim rule implements the relevant statutory provision properly and without adding any additional constraints on lease enforcement. Other commenters requested guidance on bifurcation that is specifically addressed to the voucher program. A commenter asked whether two vouchers will be issued when a lease is bifurcated and other families need the voucher.

One commenter stated that because Federal preemption is implicit in the VAWA 2005 provisions on lease bifurcation, HUD's final rule should articulate a Federal preemption to the extent necessary to carry out VAWA 2005. Because bifurcation of leases is a new concept, the commenter recommended that the subject be described in more detail in nonregulatory guidance, to inform state courts in eviction proceedings when bifurcation is requested. The commenter suggested that the rule include conforming amendments reflecting the bifurcation concept, in 24 CFR part 966, which covers public housing leases and grievance, as well as 24 CFR part 982, governing the voucher program and other regulations where appropriate.

HUD Response: HUD appreciates the concerns raised about lease bifurcation and preemption. With respect to articulation of a justification of Federal preemption doctrine, the preamble to the interim rule specifically cites the VAWA 2005 statutory language on this issue, and states that VAWA 2005 does not preempt an entire field of state law and shall not be construed to supersede any provisions of Federal, State, or local laws that provide greater protection for victims of abuse (section 8(c)(9)(C)(vi) of the Housing Act of 1937). In the “Findings and Certifications” section of the interim rule, there is a discussion of Executive Order 13132, “Federalism,” which states that the November 2008 interim rule, in so far as it incorporates the statutory language that provides for bifurcation of leases to protect victims of domestic violence, has only minor effects on the states and does not meet the definition of rules with “federalism implications.” Any preemptive effect of the bifurcation provision is limited to Section 8 and public housing. Moreover, the possible effect of the provision is limited to only those eviction actions where the tenant to be evicted has a valid claim of protection as a victim of domestic violence, dating violence, or stalking or where lease bifurcation is sought because of domestic violence, dating violence, or stalking. HUD's November 2008 interim rule makes solely minor adjustments to any existing laws that do not offer greater protection to victims of domestic violence, dating violence, or stalking and does not preempt an entire field of state law as is the case in circumstances in which preemption occurs. For those reasons, HUD does not believe this rule has a preemptive effect, as defined by the Executive Order on Federalism.

With respect to issuing nonregulatory guidance on bifurcation of leases in state courts, the PHA, owner, or management agent bears the responsibility to advise the court on the PHA's, owner's, or management agent's obligations as a housing provider under VAWA 2005 and HUD regulations. HUD accepts the commenter's suggestion about cross-referencing 24 CFR parts 966 and 982 to part 5. HUD agrees that lease bifurcation should work the same way in HUD's public housing and voucher programs.

With respect to the issue of whether two vouchers will be issued when a lease is bifurcated, one voucher will be issued to the victim. The perpetrator will be removed from the original voucher and will not receive a new voucher.

Comment: VAWA protection provisions are needed in public housing leases. Commenters stated that VAWA 2005 requires that public housing leases include VAWA protections regarding evictions. The commenters stated that HUD's final rule needs to take account of this requirement. One commenter added that confidentiality language should be added to public housing leases. Commenters suggested that 24 CFR 966.4 of HUD's regulations, which pertains to lease requirements, incorporates the public housing lease requirements of VAWA 2005.

HUD Response: HUD currently requires that lease provisions be construed to contain these protections. The absence of reference, in regulation or in leases, to the VAWA 2005 protections does not render these protections inapplicable. However, since this rulemaking is a conforming rulemaking, HUD has conformed the regulations in 24 CFR part 5 and 24 CFR part 966 that govern lease and tenancy addendum provisions to reference the VAWA 2005 protections.

Comment: Incorporate VAWA protections in grievance procedures. According to commenters, HUD's final rule should incorporate amendments to 24 CFR 966.51 that allow PHAs to exclude a termination action from its administrative grievance procedure if violent criminal activity arising from an incident of domestic violence, dating violence, or stalking can be excluded from the grievance process. The commenter added that the final rule should ensure that PHAs properly handle terminations involving VAWA 2005 through a PHA's grievance procedure, including proper cross-references.

HUD Response: The grievance procedures in 24 CFR 966.54 and 966.55 address the grievance process. These regulations do not list or prescribe all items or actions that can be grieved under the lease. The absence of a prescriptive list is to provide the tenants with leeway as to what they choose to grieve. Victims of domestic violence, dating violence, or stalking have the same access that other public housing tenants have to the grievance process. Accordingly, it is not necessary to incorporate the VAWA 2005 protections in these regulatory sections.

Comment: VAWA protections need to be applicable to admissions and voucher terminations. Commenters stated that the portion of HUD's interim rule that prohibits, consistent with VAWA, a PHA, owner, or management agent from applying a “more demanding standard” to evict or terminate tenancy of a victim of domestic violence, than that to which other tenants are subjected, should be revised to cover Section 8 voucher terminations. Other commenters stated HUD's rule addresses VAWA protections regarding termination of tenancy and evictions but omits VAWA protections regarding admissions and voucher terminations. The commenters urged that 24 CFR 5.2005(b) be revised to include VAWA protections regarding admissions and voucher terminations. Commenters also urged HUD to amend 24 CFR 5.2005(c), because it fails to reflect that vouchers can be bifurcated.

HUD Response: HUD has considered the comments and agrees to revise 24 CFR 5.2005(b) [§ 5.2005(d) in the reorganized regulation of this final rule] to clarify the prohibition regarding the use of a “more demanding standard” with respect to Section 8 voucher terminations. To that end, § 5.2005(d) has been revised to include the phrase “terminate assistance” after the phrase “evict a tenant,” in order to clarify coverage of tenants with Section 8 vouchers. HUD has also revised 24 CFR 5.2005(c) [§ 5.2009(a) in the reorganized regulation of this final rule], pertaining to lease bifurcation, to clarify that the range of HUD programs covered by the VAWA 2005 protections are the public housing, Section 8 HCV, and Section 8 project-based programs.

Comment: Permit termination of a household member who commits criminal acts of violence, while continuing Section 8 assistance to the victim. One commenter stated that HUD's rule does not include the language of VAWA 2005 that allows for termination of a household member who commits criminal acts of violence, while the victim of the violence continues to receive Section 8 assistance. According to the commenter, the preamble to HUD's interim rule was clear on the issue, but the regulatory text is not clear. Another commenter stated that HUD's rule omits VAWA 2005 provisions regarding termination of voucher assistance for household members who commit criminal acts of violence.

HUD Response: HUD believes its rule satisfactorily addresses the issues raised by the commenters pertaining to VAWA protection in the case of family break-up due to violence. Specifically, in § 982.553, the rule dictates that the victim protections under 24 CFR part 5, subpart L apply to cases of criminal activity related to domestic violence, dating violence, or stalking. In the reorganized regulation, 24 CFR 5.2005(c)(2) provides that victims of domestic violence, dating violence, or stalking shall not be terminated from assistance due to criminal activity directly related to domestic violence, dating violence, or stalking engaged in by a member of the victim's household, guest, or other person under the victim's control. Section 982.315 has also been amended to explicitly reflect the protections available under VAWA pertaining to retention of assistance by the victim in cases of family break-up resulting from domestic violence, dating violence, or stalking. In such a family break-up, the victim protected under VAWA must retain voucher assistance.

Comment: Denial of assistance for criminal activity. According to a commenter, HUD's final rule must include the amendment to 24 CFR 982.553 that addresses denial of assistance for criminal activity. According to the commenter, applicants who have survived domestic violence, dating violence, or stalking should not be denied assistance in cases of criminal history where that history is related to self-defense or coercion or mutual arrests that are common in domestic violence situations.

HUD Response: HUD agrees that victims of domestic violence, dating violence, or stalking must not be denied assistance or terminated from programs based solely on a criminal history related to domestic violence, dating violence, or stalking, and believes its regulation is clear on this issue. HUD's interim rule provides in paragraph (e) of § 982.553, which pertains to denial of admission and termination of assistance for criminals and alcohol abusers, that the protections for victims covered by the regulations in 24 CFR part 5, subpart L apply in cases of criminal activity related to domestic violence, dating violence, or stalking.

Comment: Guidance is needed on termination of assistance in HCV program. One commenter stated that PHAs should have the authority to terminate assistance to abusers, while protecting victims. The commenter urged HUD to provide more guidance on how to administer such terminations. The commenter raised several questions seeking HUD's input through guidance, including whether HUD will expect PHAs to complete a household recertification if the family loses one of its members; procedures a PHA should follow if, as a result of termination, a family becomes over-housed; and whether a PHA may wait until the next recertification to determine a new standard payment amount if the family loses one of its members due to a termination under VAWA 2005. The commenter encouraged HUD to issue guidance on how to handle the loss of a family member under the VAWA 2005 provisions.

HUD Response: HUD is developing guidance on this and other issues. Until such guidance is issued, PHAs should continue to follow existing regulations and the written PHA policies in place for managing moves, terminations, and changes in family size due to implementation of VAWA 2005.

E. Enforcement and Oversight

Comment: Guidelines needed for VAWA enforcement and oversight. Two commenters offered guidelines for the enforcement of VAWA 2005 protections, including delegations of authority to HUD's Office of Fair Housing and Equal Opportunity (FHEO) to receive and investigate complaints, and the holding of informal hearings. Another commenter stated that explicit guidelines for enforcement of VAWA 2005 provisions should be established.

HUD Response: HUD appreciates the interest in ensuring the effective enforcement of VAWA 2005, but HUD has the requisite authority to enforce the VAWA 2005 protections.

Comment: Guidelines needed for the content of notices pertaining to VAWA rights and obligations. Commenters stated that HUD's interim rule, like VAWA 2005, requires that housing providers give notice to tenants of rights under VAWA 2005, but that HUD's rule fails to instruct PHAs, owners, or management agents on compliance with the notice requirement. The commenters stated that victims of domestic violence cannot ask for protections they do not know about. The commenters stated that HUD's final rule must not only require notice, but must explain how to give notice. Commenters asked HUD, in elaborating on this statutory requirement, to clarify the frequency of notifications and specify how often residents and landlords be notified of their rights and obligations. One commenter stated that any guidance HUD provides on this issue should include guidelines for making notices accessible to tenants with disabilities and to those with limited English proficiency. Another commenter added that consistency is important and that HUD should provide a standard notification to be sent to all parties rather than ask PHAs, owners, or management agents to interpret the requirements. In contrast to these comments, one commenter stated that HUD's restraint in elaborating on this statutory requirement is appropriate because PHAs and other housing providers have procedures in place to notify applicants and residents of regulatory changes.

HUD Response: HUD agrees with the commenters that consistency is important on this issue. While HUD does not want to limit any flexibility that housing providers have with respect to this issue, HUD believes this is an area in which further guidance from HUD, outlining the core content of the notice, among other things, would be helpful to housing providers and ensure their compliance with this notification requirement. Providers must also ensure that various notices and other communications comply with the applicable requirements of 24 CFR 8.6 with regard to persons with disabilities, and provide meaningful access to persons with limited English Proficiency; see Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP)” and HUD's Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (72 FR 2732).

HUD notes that PIH Notice 2006-42 suggested that PHAs make the certification form available to all eligible families at the time of admission. Also, in the event of a termination or start of an eviction proceeding, PHAs may enclose the form with the appropriate notice and direct the family to complete, sign, and return the form (if applicable) by a specified date. PHAs could also include language discussing the VAWA protections in the termination/eviction notice and request that a tenant come into the office to pick up the form, or request another means to receive the form if needed as a reasonable accommodation for a person with a disability, if the tenant believes the VAWA protections apply.

In addition, Notice H 08-07, which has been extended by Notice H 09-15, suggests that owners and management agents of project-based Section 8 properties integrate VAWA policies and protections into their Tenant Selection Plans and/or House Rules. This notice also encourages owners and management agents to establish policies that support or assist affected families and prevent the loss of HUD-assisted housing as a consequence of domestic violence, dating violence, or stalking. This notice suggests that owners and management agents make the certification form available to all eligible families at the time of admission, and/or they may enclose the certification in the appropriate notice to the family in the event of a termination or start of an eviction. Finally, this notice requires owners and management agents to attach the HUD-approved Lease Addendum, form HUD-91067, which includes the VAWA provisions, to each existing or new lease.

Comment: Compliance with VAWA should be included in the annual, 5-year, and consolidated plan. One commenter asked if PHAs are required to offer the activities, services, or programs described in the new annual plan requirements for PHAs. Another commenter asked if PHAs have any affirmative obligations to victims of domestic violence under VAWA 2005. One commenter stated support for how HUD's rule appears to bring the PHA annual and 5-year plan requirements into conformance with VAWA 2005, while not imposing any additional requirements. Two commenters stated that the provision for inclusion of VAWA 2005 implementation and all related activities in the annual, 5-year, and consolidated plans should be explicit.

HUD Response: HUD is currently reviewing PHA planning requirements and will take these issues into consideration in the context of that review.

V. Findings and Certifications

Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) reviewed this proposed rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). A determination was made that this proposed rule is a “significant regulatory action,” as defined in section 3(f) of the Order (although not economically significant, as provided in section 3(f)(1) of the Order). The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW., Room 10276 Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulation Division at 202-402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Information Relay Service at 800-877-8339.

Paperwork Reduction Act

The information collection requirements contained in 24 CFR part 5, subpart L that are applicable to PHAs have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0249. The information collection requirements contained in 24 CFR part 5, subpart L that are applicable to owners and management agents have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2502-0204. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid control number.

Impact on Small Entities

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule, which reaffirms and makes minor changes to the November 28, 2008, interim rule, applies to PHAs, owners, and management agents. This VAWA rulemaking has been limited to amending HUD's regulations, by incorporating statutory requirements that are already applicable to PHAs, owners, and management agents, due to their being self-implementing statutory provisions. Accordingly, this rule will not have a significant economic effect on a substantial number of small entities.

Environmental Impact

This rule involves a policy document that, with the exception of the amendments to 24 CFR part 903, sets out nondiscrimination standards. The amendments to 24 CFR part 903 do not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(3) and (1), respectively, this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132, Federalism

Section 6(c) of Executive Order 13132 (entitled “Federalism”) requires an agency that is publishing a regulation that has federalism implications and that preempts state law to follow certain procedures. Regulations that have federalism implications, according to section 1(a) of the Order, are those that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule, which reaffirms the November 28, 2008, interim rule and makes only minor changes to the interim rule, incorporates the statutory language that provides for bifurcation of leases to protect victims of domestic violence, dating violence, or stalking, notwithstanding state law. In addition, the final rule, consistent with statute, provides that incidents of, or criminal acts connected to domestic violence, dating violence, or stalking cannot be the basis for termination of assistance or tenancy.

As stated in the interim rule, HUD finds that this statutory provision has only minor effects on the states and, therefore, this rule, by incorporating this provision in HUD's regulations, does not meet the definition of rules with “federalism implications.” First, any preemptive effect of this provision is limited to Section 8 and public housing, which together represent only a small portion of the total housing market. Second, the possible effect appears limited to only those eviction actions where the tenant to be evicted has a valid claim of protection as a victim of domestic violence, dating violence, or stalking, or where lease bifurcation is sought because of domestic violence, dating violence, or stalking. The rule does not, for example, involve the preemption of a whole field of state law as is the case in other situations in which preemption occurs, but rather merely requires a small adjustment to any existing laws that do not already offer greater protection to victims of domestic violence, dating violence, or stalking. Therefore, HUD has determined that this rule, by directly incorporating the statutory provision on bifurcation of lease, will not have substantial direct effects on states or their political subdivisions, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government, and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and the private sector. This interim rule does not impose any Federal mandates on any state, local, or tribal government, or the private sector within the meaning of UMRA.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers applicable to the programs that would be affected by this rule are: 14.195, 14.850, 14.856, and 14.871.

List of Subjects

24 CFR Part 5

• Administrative practice and procedure
• Aged
• Claims
• Drug abuse
• Drug traffic control
• Grant programs—housing and community development
• Grant programs—Indians
• Individuals with disabilities
• Loan programs—housing and community development
• Low and moderate income housing
• Mortgage insurance
• Pets
• Public housing
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 91

• Grant programs—housing and community development
• Low- and moderate-income housing
• Reporting and recordkeeping requirements

24 CFR Part 880

• Grant programs—housing and community development
• Loan

24 CFR Part 882

• Grant programs—housing and community development
• Housing
• Homeless
• Lead poisoning
• Manufactured homes
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 883

• Grant programs—housing and community development
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 884

• Grant programs—housing and community development
• Rent subsidies
• Reporting and recordkeeping requirements, rural areas

24 CFR Part 886

• Grant programs—housing and community development
• Lead poisoning
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 891

• Aged
• Capital advance programs
• Civil rights
• Grant programs—housing and community development
• Individuals with disabilities
• Loan programs—housing and community development
• Low- and moderate-income housing
• Mental health programs
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 903

• Grant programs
• Civil rights
• Public housing agency plans
• Public housing

24 CFR Part 960

• Aged
• Grant programs—housing and community development
• Individuals with disabilities
• Pets
• Public housing

24 CFR Part 966

• Grant programs—housing and community development, public housing
• Reporting and recordkeeping requirements

24 CFR Part 982

• Grant programs—housing and community development
• Housing
• Low- and moderate-income housing
• Rent subsidies
• Reporting and recordkeeping requirements

24 CFR Part 983

• Grant programs—housing and community development
• Housing
• Low- and moderate-income housing
• Rent subsidies
• Reporting and recordkeeping requirements

Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR parts 5, 880, 882, 883, 884, 886, 891, 903, 960, 966, 982, and 983, as follows.

PART 5—GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

1. The authority citation for part 5 is revised to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d), Sec. 327, Pub. L. 109-115, 119 Stat. 2936, and Sec. 607, Pub. L. 109-162, 119 Stat. 3051.

2. Revise subpart L to read as follows:

Subpart L—Protection for Victims of Domestic Violence, Dating Violence, or Stalking in Public and Section 8 Housing

5.2001

Applicability.

5.2003

Definitions.

5.2005

VAWA protections.

5.2007

Documenting the occurrence of domestic violence, dating violence, or stalking.

5.2009

Remedies available to victims of domestic violence, dating violence, or stalking in HUD-assisted housing.

5.20011

Effect on other laws.

Subpart L—Protection for Victims of Domestic Violence, Dating Violence, or Stalking in Public and Section 8 Housing

§ 5.2001

Applicability.

This subpart addresses the protections for victims of domestic violence, dating violence, or stalking residing in public and Section 8 housing, as provided in the 1937 Act, as amended by the Violence Against Women Act (VAWA) (42 U.S.C. 1437f and 42 U.S.C. 1437d). This subpart applies to the Housing Choice Voucher program under 24 CFR part 982, the project-based voucher and certificate programs under 24 CFR part 983, the public housing admission and occupancy requirements under 24 CFR part 960, and renewed funding or leases of the Section 8 project-based program under 24 CFR parts 880, 882, 883, 884, 886, and 891.

§ 5.2003

Definitions.

The definitions of 1937 Act, PHA, HUD, household, responsible entity, and other person under the tenant's control are defined in subpart A of this part. As used in this subpart L:

Bifurcate means, with respect to a public housing or a Section 8 lease, to divide a lease as a matter of law such that certain tenants can be evicted or removed while the remaining family members' lease and occupancy rights are allowed to remain intact.

Dating violence means violence committed by a person:

(1) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and

(2) Where the existence of such a relationship shall be determined based on a consideration of the following factors:

(i) The length of the relationship;

(ii) The type of relationship; and

(iii) The frequency of interaction between the persons involved in the relationship.

Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.

Immediate family member means, with respect to a person:

(1) A spouse, parent, brother, or sister, or child of that person, or an individual to whom that person stands in loco parentis; or

(2) Any other person living in the household of that person and related to that person by blood or marriage.

Stalking means:

(1)(i) To follow, pursue, or repeatedly commit acts with the intent to kill, injure, harass, or intimidate another person; or

(ii) To place under surveillance with the intent to kill, injure, harass, or intimidate another person; and

(2) In the course of, or as a result of, such following, pursuit, surveillance, or repeatedly committed acts, to place a person in reasonable fear of the death of, or serious bodily injury to, or to cause substantial emotional harm to

(i) That person,

(ii) A member of the immediate family of that person, or

(iii) The spouse or intimate partner of that person.

VAWA means the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, approved August 28, 2006), as amended by the U.S. Housing Act of 1937 (42 U.S.C. 1437d and 42 U.S. 1437f).

§ 5.2005

VAWA protections.

(a) Notice of VAWA protections. (1) PHAs must provide notice to public housing and Section 8 tenants of their rights under VAWA and this subpart, including the right to confidentiality and the exceptions; and

(2) PHAs must provide notice to owners and management agents of assisted housing, of their rights and obligations under VAWA and this subpart; and

(3) Owners and management agents of assisted housing administering an Office of Housing project-based Section 8 program must provide notice to Section 8 tenants of their rights and obligations under VAWA and this subpart.

(4) The HUD-required lease, lease addendum, or tenancy addendum, as applicable, must include a description of specific protections afforded to the victims of domestic violence, dating violence, or stalking, as provided in this subpart.

(b) Applicants. Admission to the program shall not be denied on the basis that the applicant is or has been a victim of domestic violence, dating violence, or stalking, if the applicant otherwise qualifies for assistance or admission.

(c) Tenants—(1) Domestic violence, dating violence, or stalking. An incident or incidents of actual or threatened domestic violence, dating violence, or stalking will not be construed as a serious or repeated lease violation by the victim or threatened victim of the domestic violence, dating violence, or stalking, or as good cause to terminate the tenancy of, occupancy rights of, or assistance to the victim.

(2) Criminal activity related to domestic violence, dating violence, or stalking. Criminal activity directly related to domestic violence, dating violence, or stalking, engaged in by a member of a tenant's household or any guest or other person under the tenant's control, shall not be cause for termination of tenancy of, occupancy rights of, or assistance to the victim, if the tenant or immediate family member of the tenant is the victim.

(d) Limitations of VAWA protections. (1) Nothing in this section limits the authority of the PHA, owner, or management agent to evict a tenant or terminate assistance for a lease violation unrelated to domestic violence, dating violence, or stalking, provided that the PHA, owner, or management agent does not subject such a tenant to a more demanding standard than other tenants in making the determination whether to evict, or to terminate assistance or occupancy rights;

(2) Nothing in this section may be construed to limit the authority of a PHA, owner, or management agent to evict or terminate assistance to any tenant or lawful occupant if the PHA, owner, or management agent can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the public housing or Section 8 assisted property if that tenant or lawful occupant is not terminated from assistance. In this context, words, gestures, actions, or other indicators will be considered an “actual imminent threat” if they meet the standards provided in paragraph (e) of this section.

(3) Any eviction or termination of assistance, as provided in paragraph (d)(3) of this section, should be utilized by a PHA, owner, or management agent only when there are no other actions that could be taken to reduce or eliminate the threat, including, but not limited to, transferring the victim to a different unit, barring the perpetrator from the property, contacting law enforcement to increase police presence or develop other plans to keep the property safe, or seeking other legal remedies to prevent the perpetrator from acting on a threat. Restrictions predicated on public safety cannot be based on stereotypes, but must be tailored to particularized concerns about individual residents.

(e) Actual and imminent threat. An actual and imminent threat consists of a physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. In determining whether an individual would pose an actual an imminent threat, the factors to be considered include: The duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the length of time before the potential harm would occur.

§ 5.2007

Documenting the occurrence of domestic violence, dating violence, or stalking.

(a) Request for documentation. A PHA, owner, or management agent presented with a claim for continued or initial tenancy or assistance based on status as a victim of domestic violence, dating violence, stalking, or criminal activity related to domestic violence, dating violence, or stalking may request that the individual making the claim document the abuse. The request for documentation must be in writing. The PHA, owner, or management agent may require submission of documentation within 14 business days after the date that the individual received the request for documentation. However, the PHA, owner, or management agent may extend this time period at its discretion.

(b) Forms of documentation. The documentation required under this section:

(1) May consist of a HUD-approved certification form indicating that the individual is a victim of domestic violence, dating violence, or stalking, and that the incident or incidents in question are bona fide incidents of such actual or threatened abuse. Such certification must include the name of the perpetrator, and may be based solely on the personal signed attestation of the victim; or

(2) May consist of a Federal, State, tribal, territorial, or local police report or court record; or

(3) May consist of documentation signed by an employee, agent, or volunteer of a victim service provider, an attorney, or medical professional, from whom the victim has sought assistance in addressing domestic violence, dating violence, or stalking, or the effects of abuse, in which the professional attests under penalty of perjury under 28 U.S.C. 1746 to the professional's belief that the incident or incidents in question are bona fide incidents of abuse, and the victim of domestic violence, dating violence, or stalking has signed or attested to the documentation; and

(4) Shall be kept confidential by the PHA, owner, or management agent. The PHA, owner, or management agent shall not:

(i) Enter the information contained in the documentation into any shared database;

(ii) Allow employees of the PHA, owner, or management agent, or those within their employ (e.g., contractors) to have access to such information unless explicitly authorized by the PHA, owner, or management agent for reasons that specifically call for these employees or those within their employ to have access to this information; and

(iii) Disclose this information to any other entity or individual, except to the extent that disclosure is:

(A) Requested or consented to by the individual making the documentation, in writing;

(B) Required for use in an eviction proceeding, or

(C) Otherwise required by applicable law.

(c) Failure to provide documentation. In order to deny relief for protection under VAWA, a PHA, owner, or management agent must provide the individual with a written request for documentation of the abuse. If the individual fails to provide the documentation within 14 business days from the date of receipt of the PHA's, owner's, or management agent's written request, or such longer time as the PHA, owner, or management agent at their discretion may allow, VAWA protections do not limit the authority of the PHA, owner, or management agent to evict or terminate assistance of the tenant or a family member for violations of the lease or family obligations that otherwise would constitute good cause to evict or grounds for termination. The 14-business day window for submission of documentation does not begin until the individual receives the written request. The PHA, owner, or management agency has discretionary authority to extend the statutory 14-day period.

(d) Discretion to provide relief. At its discretion, a PHA, owner, or management agent may provide benefits to an individual based solely on the individual's verbal statement or other corroborating evidence. A PHA's, owner's, or management agent's compliance with this section, whether based solely on the individual's verbal statements or other corroborating evidence, shall not alone be sufficient to constitute evidence of an unreasonable act or omission by a PHA, PHA employee, owner, or employee or agent of the owner. Nothing in this subparagraph shall be construed to limit liability for failure to comply with the requirements of 24 CFR part 5.

(e) Response to conflicting certification. In cases where the PHA, owner, or management agent receives conflicting certification documents from two or more members of a household, each claiming to be a victim and naming one or more of the other petitioning household members as the perpetrator, a PHA, owner, or management agent may determine which is the true victim by requiring third-party documentation as described in this section and in accordance with any HUD guidance as to how such determinations will be made. A PHA, owner, or management agent shall honor any court orders addressing rights of access or control of the property, including civil protection orders issued to protect the victim and issued to address the distribution or possession of property among the household.

§ 5.2009

Remedies available to victims of domestic violence, dating violence, or stalking in HUD-assisted housing.

(a) Lease bifurcation. Notwithstanding any Federal, State, or local law to the contrary, a PHA, owner, or management agent may bifurcate a lease, or remove a household member from a lease without regard to whether the household member is a signatory to the lease, in order to evict, remove, terminate occupancy rights, or terminate assistance to any tenant or lawful occupant who engages in criminal acts of physical violence against family members or others, without evicting, removing, terminating assistance to, or otherwise penalizing the victim of such violence who is a tenant or lawful occupant. Such eviction, removal, termination of occupancy rights, or termination of assistance shall be effected in accordance with the procedures prescribed by Federal, State, or local law for termination of assistance or leases under the relevant public housing, Section 8 Housing Choice Voucher, and Section 8 project-based programs.

(b) Court orders. Nothing in this subpart may be construed to limit the authority of a PHA, owner, or management agent, when notified, to honor court orders addressing rights of access to or control of the property, including civil protection orders issued to protect the victim and to address the distribution of property among household members in a case where a family breaks up.

§ 5.2011 Effect on other laws.

Nothing in this subpart shall be construed to supersede any provision of any Federal, State, or local law that provides greater protection than this section for victims of domestic violence, dating violence, or stalking.

PART 91—CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND DEVELOPMENT PROGRAMS

3. The authority citation for part 91 continues to read as follows:

Authority: 42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-11388, 12701-12711, 12741-12756, and 12901-12912.

4. Amend § 91.205 to revise the first sentence of paragraph (b)(1) to read as follows:

§ 91.205

Housing and homeless needs assessment.

* * * * *

(b) * * *

(1) The plan shall estimate the number and type of families in need of housing assistance for extremely low-income, low-income, moderate-income, and middle-income families, for renters and owners, for elderly persons, for single persons, for large families, for public housing residents, for families on the public housing and section 8 tenant-based waiting lists, for persons with HIV/AIDS and their families, for victims of domestic violence, dating violence, sexual assault, and stalking, and for persons with disabilities. * * *

* * * * *

5. Amend § 91.305 to revise the first sentence of paragraph (b)(1) to read as follows:

§ 91.305

Housing and homeless needs assessment.

* * * * *

(b) * * *

(1) The plan shall estimate the number and type of families in need of housing assistance for extremely low-income, low-income, moderate-income, and middle-income families, for renters and owners, for elderly persons, for single persons, for large families, for persons with HIV/AIDS and their families, for victims of domestic violence, dating violence, sexual assault, and stalking, and for persons with disabilities. * * *

* * * * *

PART 880-SECTION 8 HOUSING ASSISTANCE PAYMENT PROGRAM FOR NEW CONSTRUCTION

6. The authority citation for part 880 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and 13611-13619.

7. Amend § 880.504 to revise paragraph (f) to read as follows:

§ 880.504

Leasing to eligible families.

* * * * *

(f) Subpart L of 24 CFR part 5 applies to selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

8. Amend § 880.607 to revise paragraph (c)(5) to read as follows:

§ 880.607

Termination of tenancy and modification of lease.

* * * * *

(c) * * *

(5) In actions or potential actions to terminate tenancy, the Owner shall follow 24 CFR part 5, subpart L, in all cases where domestic violence, dating violence, stalking, or criminal activity directly related to domestic violence, dating violence, or stalking is involved or claimed to be involved.

* * * * *

PART 882—SECTION 8 MODERATE REHABILITATION PROGRAMS

9. The authority citation for part 882 continues to read as follows:

Authority: 42 U.S.C. 1437f and 3535d.

10. Revise § 882.407 to read as follows:

§ 882.407

Other Federal requirements.

The moderate rehabilitation program is subject to applicable Federal requirements in 24 CFR 5.105 and to the requirements for protection for victims of domestic violence, dating violence, or stalking in 24 CFR part 5, subpart L.

11. Amend § 882.511 to revise paragraph (g) to read as follows:

§ 882.511

Lease and termination of tenancy.

* * * * *

(g) In actions or potential actions to terminate tenancy, the Owner shall follow 24 CFR part 5, subpart L, in all cases where domestic violence, dating violence, or stalking, or criminal activity directly related to domestic violence, dating violence, or stalking is involved or claimed to be involved.

12. Amend § 882.514 by removing the third sentence of paragraph (c) and adding two sentences in its place to read as follows:

§ 882.514

Family participation.

* * * * *

(c) Owner selection of families. * * * Since the Owner is responsible for tenant selection, the Owner may refuse any family, provided that the Owner does not unlawfully discriminate. However, the Owner must not deny program assistance or admission to an applicant based on the fact that the applicant is or has been a victim of domestic violence, dating violence, or stalking, if the applicant otherwise qualifies for assistance or admission.

* * * * *

PART 883—SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAMS—STATE HOUSING AGENCIES

13. The authority citation for part 883 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-13619.

14. Revise § 883.605 to read as follows:

§ 883.605

Leasing to eligible families.

The provisions of 24 CFR 880.504, including subpart L of 24 CFR part 5 pertaining to the selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking apply, subject to the requirements of § 883.105.

PART 884—SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING PROJECTS

15. The authority citation for part 884 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-13619.

16. Amend § 884.216 to revise paragraph (c) to read as follows:

§ 884.216

Termination of tenancy.

* * * * *

(c) In actions or potential actions to terminate tenancy, the Owner shall follow 24 CFR part 5, subpart L in all cases where domestic violence, dating violence, stalking, or criminal activity directly related to domestic violence, dating violence, or stalking is involved or claimed to be involved.

17. Amend § 884.223 to revise paragraph (f) to read as follows:

§ 884.223

Leasing to eligible families.

* * * * *

(f) Subpart L of 24 CFR part 5 applies to selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

PART 886—SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM—SPECIAL ALLOCATIONS

18. The authority citation for part 886 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-13619.

19. Revise § 886.128 to read as follows:

§ 886.128

Termination of tenancy.

Part 247 of this title (24 CFR part 247) applies to the termination of tenancy and eviction of a family assisted under this subpart. For cases involving termination of tenancy because of a failure to establish citizenship or eligible immigration status, the procedures of 24 CFR parts 247 and 5 shall apply. For cases involving, or allegedly involving, domestic violence, dating violence, stalking, or criminal activity directly relating to such violence, the provisions of 24 CFR part 5, subpart L, apply. The provisions of 24 CFR part 5, subpart E, of this title concerning certain assistance for mixed families (families whose members include those with eligible immigration status, and those without eligible immigration status) in lieu of termination of assistance, and concerning deferral of termination of assistance also shall apply.

20. Revise § 886.132 to read as follows:

§ 886.132

Tenant selection.

Subpart F of 24 CFR part 5 governs selection of tenants and occupancy requirements applicable under this subpart A of part 886. Subpart L of 24 CFR part 5 applies to selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

21. Revise § 886.328 to read as follows:

§ 886.328

Termination of tenancy.

Part 247 of this title (24 CFR part 247) applies to the termination of tenancy and eviction of a family assisted under this subpart. For cases involving termination of tenancy because of a failure to establish citizenship or eligible immigration status, the procedures of 24 CFR part 247 and 24 CFR part 5 shall apply. For cases involving, or allegedly involving, domestic violence, dating violence, stalking, or criminal activity directly relating to such violence, the provisions of 24 CFR part 5, subpart L, apply. The provisions of 24 CFR part 5, subpart E, concerning certain assistance for mixed families (families whose members include those with eligible immigration status, and those without eligible immigration status) in lieu of termination of assistance, and concerning deferral of termination of assistance, also shall apply.

22. Amend § 886.329 to revise paragraph (f) to read as follows:

§ 886.329

Leasing to eligible families.

* * * * *

(f) Subpart L of 24 CFR part 5 applies to selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

PART 891—SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH DISABILITIES

23. The authority citation for part 891 continues to read as follows:

Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d), and 8013.

24. Amend § 891.575 to revise paragraph (f) to read as follows:

§ 891.575

Leasing to eligible families.

* * * * *

(f) Subpart L of 24 CFR part 5 applies to selection of tenants and occupancy requirements in cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

25. Revise § 891.610(c) to read as follows:

§ 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 § 891.505; meet any project occupancy requirements approved by HUD; meet the disclosure and verification requirement for Social Security Numbers and sign and submit consent forms for obtaining of wage and claim information from State Wage Information Collection Agencies, as provided by 24 CFR part 5, subpart B; and, if applying for an assisted unit, be eligible for admission under subpart F of 24 CFR part 5, which governs selection of tenants and occupancy requirements. For cases involving, or allegedly involving, domestic violence, dating violence, stalking, or criminal activity directly relating to such violence, the provisions of 24 CFR part 5, subpart L, apply.

* * * * *

26. Amend § 891.630 to revise paragraph (c) to read as follows:

§ 891.630

Denial of admission, termination of tenancy, and modification of lease.

* * * * *

(c) In actions or potential actions to terminate tenancy, the Owner shall follow 24 CFR part 5, subpart L, in all cases where domestic violence, dating violence, stalking, or criminal activity directly related to domestic violence, dating violence, or stalking is involved or claimed to be involved.

PART 903—PUBLIC HOUSING AGENCY PLANS

27. The authority citation for part 903 continues to read as follows:

Authority: 42 U.S.C. 1437c; 42 U.S.C. 3535(d).

28. Amend § 903.6 to revise paragraph (a)(3) to read as follows:

§ 903.6

What information must a PHA provide in the 5-Year Plan?

(a) * * *

(3) A statement about goals, activities, objectives, policies, or programs that will enable a PHA to serve the needs of child and adult victims of domestic violence, dating violence, sexual assault, or stalking.

* * * * *

29. Amend § 903.7 to revise paragraph (m)(5) to read as follows:

§ 903.7

What information must a PHA provide in an annual plan?

* * * * *

(m) * * *

(5) A statement of any domestic violence, dating violence, sexual assault, and stalking prevention programs:

(i) A description of any activities, services, or programs provided or offered by an agency, either directly or in partnership with other service providers, to child or adult victims of domestic violence, dating violence, sexual assault, or stalking;

(ii) Any activities, services, or programs provided or offered by a PHA that help child and adult victims of domestic violence, dating violence, sexual assault, or stalking to obtain or maintain housing; and

(iii) Any activities, services, or programs provided or offered by a PHA to prevent domestic violence, dating violence, sexual assault, or stalking, or to enhance victim safety in assisted families.

* * * * *

PART 960—ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING

30. The authority citation for part 960 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 1437z-3, and 3535(d).

31. Amend § 960.103 to revise the section heading and paragraph (d) to read as follows:

§ 960.103

Equal opportunity requirements and protection for victims of domestic violence, dating violence, or stalking.

* * * * *

(d) Protection for victims of domestic violence, dating violence, or stalking. The PHA must apply 24 CFR part 5, subpart L in all applicable cases where there is involved or claimed to be involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

32. Amend § 960.200 to revise paragraph (b)(8) to read as follows:

§ 960.200

Purpose.

* * * * *

(b) * * *

(8) Protection for victims of domestic violence, dating violence, or stalking, 24 CFR part 5, subpart L.

33. Amend § 960.203 to revise paragraph (c)(4) to read as follows:

§ 960.203

Standards for PHA tenant selection criteria.

* * * * *

(c) * * *

(4) PHA tenant selection criteria are subject to 24 CFR part 5, subpart L, protections for victims of domestic violence, dating violence, or stalking.

* * * * *

PART 966—PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE

34. The authority citation for part 966 continues to read as follows:

Authority: 42 U.S.C. 1437d and 3535(d).

35. In § 966.4, revise paragraph (a)(1) and paragraph (e) to read as follows:

§ 966.4

Lease requirements.

* * * * *

(a) Parties, dwelling unit and term. (1) The lease shall state:

(i) The names of the PHA and the tenant;

(ii) The unit rented (address, apartment number, and any other information needed to identify the dwelling unit);

(iii) The term of the lease (lease term and renewal in accordance with paragraph (a)(2) of this section);

(iv) A statement of what utilities, services, and equipment are to be supplied by the PHA without additional cost, and what utilities and appliances are to be paid for by the tenant;

(v) The composition of the household as approved by the PHA (family members and any PHA-approved live-in aide). The family must promptly inform the PHA of the birth, adoption, or court-awarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit;

(vi) HUD's regulations in 24 CFR part 5, subpart L, apply, if a current or future tenant is or becomes a victim of domestic violence, dating violence, or stalking, as provided in 24 CFR part 5, subpart L.* * *

(e) The PHA's obligations. The lease shall set forth the PHA's obligations under the lease, which shall include the following:

(1) To maintain the dwelling unit and the project in decent, safe, and sanitary condition;

(2) To comply with requirements of applicable building codes, housing codes, and HUD regulations materially affecting health and safety;

(3) To make necessary repairs to the dwelling unit;

(4) To keep project buildings, facilities, and common areas, not otherwise assigned to the tenant for maintenance and upkeep, in a clean and safe condition;

(5) To maintain in good and safe working order and condition electrical, plumbing, sanitary, heating, ventilating, and other facilities and appliances, including elevators, supplied or required to be supplied by the PHA;

(6) To provide and maintain appropriate receptacles and facilities (except containers for the exclusive use of an individual tenant family) for the deposit of ashes, garbage, rubbish, and other waste removed from the dwelling unit by the tenant in accordance with paragraph (f)(7) of this section;

(7) To supply running water and reasonable amounts of hot water and reasonable amounts of heat at appropriate times of the year (according to local custom and usage), except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or where heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct utility connection; and

(8)(i) To notify the tenant of the specific grounds for any proposed adverse action by the PHA. (Such adverse action includes, but is not limited to, a proposed lease termination, transfer of the tenant to another unit, or imposition of charges for maintenance and repair, or for excess consumption of utilities.)

(ii) When the PHA is required to afford the tenant the opportunity for a hearing under the PHA grievance procedure for a grievance concerning a proposed adverse action:

(A) The notice of proposed adverse action shall inform the tenant of the right to request such hearing. In the case of a lease termination, a notice of lease termination, in accordance with paragraph (l)(3) of this section, shall constitute adequate notice of proposed adverse action.

(B) In the case of a proposed adverse action other than a proposed lease termination, the PHA shall not take the proposed action until the time for the tenant to request a grievance hearing has expired, and (if a hearing was timely requested by the tenant) the grievance process has been completed.

(9) To consider lease bifurcation, as provided in 24 CFR 5.2009, in circumstances involving domestic violence, dating violence, or stalking addressed in 24 CFR part 5, subpart L.

* * * * *

PART 982—SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER PROGRAM

36. The authority citation for part 982 continues to read as follows:

Authority: 42 U.S.C. 1437f and 3535d.

37. Amend § 982.53 to revise the section heading and paragraph (e) to read as follows:

§ 982.53

Equal opportunity requirements and protection for victims of domestic violence, dating violence, or stalking.

* * * * *

(e) Protection for victims of domestic violence, dating violence, or stalking. The PHA must apply 24 CFR part 5, subpart L, in all applicable cases where there is involved incidents of, or criminal activity related to, domestic violence, dating violence, or stalking.

38. Amend § 982.201 to revise paragraph (a) to read as follows:

§ 982.201

Eligibility and targeting.

(a) When applicant is eligible: general. The PHA may admit only eligible families to the program. To be eligible, an applicant must be a “family;” must be income-eligible in accordance with paragraph (b) of this section and 24 CFR part 5, subpart F; and must be a citizen or a noncitizen who has eligible immigration status as determined in accordance with 24 CFR part 5, subpart E. If the applicant is a victim of domestic violence, dating violence, or stalking, 24 CFR part 5, subpart L, applies.

* * * * *

39. Revise § 982.202(d) to read as follows:

§ 982.202

How applicants are selected: General requirements.

* * * * *

(d) Admission policy. The PHA must admit applicants for participation in accordance with HUD regulations and other requirements, including, but not limited to, 24 CFR part 5, subpart L, protection for victims of domestic violence, dating violence, or stalking, and with PHA policies stated in the PHA administrative plan and the PHA plan. The PHA admission policy must state the system of admission preferences that the PHA uses to select applicants from the waiting list, including any residency preference or other local preference.

* * * * *

40. Amend § 982.307 to revise paragraph (b)(4) to read as follows:

§ 982.307

Tenant screening.

* * * * *

(b) * * *

(4) In cases involving a victim of domestic violence, dating violence, or stalking, 24 CFR part 5, subpart L, applies.

41. Revise § 982.310(h)(4) to read as follows:

§ 982.310

Owner termination of tenancy.

* * * * *

(h) * * *

(4) Nondiscrimination limitation and protection for victims of domestic violence, dating violence, or stalking. The owner's termination of tenancy actions must be consistent with fair housing and equal opportunity provisions of 24 CFR 5.105, and with the provisions for protection of victims of domestic violence, dating violence, or stalking in 24 CFR part 5, subpart L.

42. In § 982.314, revise paragraphs (b) and (c)(2) to read as follows:

§ 982.314

Move with continued tenant-based assistance.

* * * * *

(b) When family may move. A family may move to a new unit if:

(1) The assisted lease for the old unit has terminated. This includes a termination because:

(i) The PHA has terminated the HAP contract for the owner's breach; or

(ii) The lease has terminated by mutual agreement of the owner and the tenant.

(2) The owner has given the tenant a notice to vacate, or has commenced an action to evict the tenant, or has obtained a court judgment or other process allowing the owner to evict the tenant.

(3) The tenant has given notice of lease termination (if the tenant has a right to terminate the lease on notice to the owner, for owner breach, or otherwise).

(4) The family or a member of the family is or has been the victim of domestic violence, dating violence, or stalking, as provided in 24 CFR part 5, subpart L, and the move is needed to protect the health or safety of the family or family member. A PHA may not terminate assistance if the family, with or without prior notification to the PHA, already moved out of a unit in violation of the lease, if such move occurred to protect the health or safety of a family member who is or has been the victim of domestic violence, dating violence, or stalking and who reasonably believed he or she was imminently threatened by harm from further violence if he or she remained in the dwelling unit.

(c) * * *

(2) The PHA may establish:

(i) Policies that prohibit any move by the family during the initial lease term; and

(ii) Policies that prohibit more than one move by the family during any one-year period.

(iii) The above policies do not apply when the family or a member of the family is or has been the victim of domestic violence, dating violence, or stalking, as provided in 24 CFR part 5, subpart L, and the move is needed to protect the health or safety of the family or family member.

* * * * *

43. In § 982.315, redesignate paragraph (a) as paragraph (a)(1) and add a new paragraph (a)(2), and revise paragraph (b) to read as follows:

§ 982.315

Family break-up.

* * * * *

(a) * * *

(2) If the family break-up results from an occurrence of domestic violence, dating violence, or stalking as provided in 24 CFR part 5, subpart L, the PHA must ensure that the victim retains assistance.

(b) The factors to be considered in making this decision under the PHA policy may include:

(1) Whether the assistance should remain with family members remaining in the original assisted unit.

(2) The interest of minor children or of ill, elderly, or disabled family members.

(3) Whether family members are forced to leave the unit as a result or actual or threatened domestic violence, dating violence, or stalking.

(4) Whether any of the family members are receiving protection as victims of domestic violence, dating violence, or stalking, as provided in 24 CFR part 5, subpart L, and whether the abuser is still in the household.

(5) Other factors specified by the PHA.

* * * * *

44. Revise the last sentence of § 982.353(b) to read as follows:

§ 982.353

Where family can lease a unit with tenant-based assistance.

* * * * *

(b) * * * The initial PHA must not provide such portable assistance for a participant if the family has moved out of the assisted unit in violation of the lease, except that if the family moves out in violation of the lease in order to protect the health or safety of a person who is or has been the victim of domestic violence, dating violence, or stalking and who reasonably believed he or she was imminently threatened by harm from further violence if he or she remained in the dwelling unit, and has otherwise complied with all other obligations under the Section 8 program, the family may receive a voucher from the PHA and move to another jurisdiction under the Housing Choice Voucher Program.

* * * * *

45. Amend § 982.452(b)(1) to revise the second sentence to read as follows:

§ 982.452

Owner responsibilities.

* * * * *

(b) * * *

(1) * * * The fact that an applicant is or has been a victim of domestic violence, dating violence, or stalking is not an appropriate basis for denial of tenancy if the applicant otherwise qualifies for tenancy.

* * * * *

46. Revise §§ 982.551(e) and 982.551(l) to read as follows:

§ 982.551

Obligations of participant.

* * * * *

(e) Violation of lease. The family may not commit any serious or repeated violation of the lease. Under 24 CFR 5.2005(c)(1), an incident or incidents of actual or threatened domestic violence, dating violence, or stalking will not be construed as a serious or repeated lease violation by the victim or threatened victim of the domestic violence, dating violence, or stalking, or as good cause to terminate the tenancy, occupancy rights, or assistance of the victim.

* * * * *

(l) Crime by household members. The members of the household may not engage in drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises (see § 982.553). Under 24 CFR 5.2005(c)(2), criminal activity directly related to domestic violence, dating violence, or stalking, engaged in by a member of a tenant's household or any guest or other person under the tenant's control, shall not be cause for termination of tenancy, occupancy rights, or assistance of the victim, if the tenant or immediate family member of the tenant is the victim.

* * * * *

47. Revise § 982.552(c)(2)(v) to read as follows:

§ 982.552

PHA denial or termination of assistance for the family.

* * * * *

(c) * * *

(2) * * *

(v) Nondiscrimination limitation and protection for victims of domestic violence, dating violence, or stalking. The PHA's admission and termination actions must be consistent with fair housing and equal opportunity provisions of § 5.105 of this title, and with the requirements of 24 CFR part 5, subpart L, protection for victims of domestic violence, dating violence, or stalking.

* * * * *

48. Amend § 982.553 to revise paragraph (e), to read as follows:

§ 982.553

Denial of admission and termination of assistance for criminals and alcohol abusers.

* * * * *

(e) In cases of criminal activity related to domestic violence, dating violence, or stalking, the victim protections of 24 CFR part 5, subpart L, apply.

PART 983—PROJECT-BASED VOUCHER (PBV) PROGRAM

49. The authority citation for part 983 continues to read as follows:

Authority: 42 U.S.C. 1437f and 3535(d).

50. Amend § 983.4 to add a new proviso in alphabetical order, as follows:

§ 983.4

Cross-reference to other Federal requirements.

* * * * *

Protection for victims of domestic violence, dating violence, or stalking. See 24 CFR part 5, subpart L.

* * * * *

51. Amend § 983.251 to revise paragraph (a)(3) to read as follows:

§ 983.251

How participants are selected.

(a) * * *

(3) The protections for victims of domestic violence, dating violence, or stalking in 24 CFR part 5, subpart L, apply to admission to the project-based program.

* * * * *

52. Amend § 983.255 to revise paragraph (d) to read as follows:

§ 983.255

Tenant screening.

* * * * *

(d) The protections for victims of domestic violence, dating violence, or stalking in 24 CFR part 5, subpart L, apply to tenant screening.

53. Amend § 983.257 to revise the last sentence of paragraph (a) to read as follows:

§ 983.257

Owner termination of tenancy and eviction.

(a) * * * Part 5, subpart L of 24 CFR, on protection for victims of domestic violence, dating violence, or stalking applies to this part.

* * * * *

Dated: October 20, 2010.

Shaun Donovan,

Secretary.

Footnotes

1.  Forms HUD-50066 and HUD-91066 are available on HUD's Web site, respectively, at: http://www.hud.gov/​offices/​adm/​hudclips/​forms/​files/​50066.doc,, and http://www.hud.gov/​offices/​adm/​hudclips/​forms/​files/​91066.pdf.

2.  Portability refers to the right of voucher-holding families to move outside the jurisdiction of a PHA that issues the voucher into the jurisdiction of another PHA that administers a tenant-based rental assistance program. Section 8(r) of the U.S. Housing Act of 1937 establishes the right to portability, and HUD's implementing amendments of this right are found at 24 CFR 982.353.