Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 5, 91, 92, 93, 200, 247, 574, 576, 578, 880, 882, 883, 884, 886, 891, 905, 960, 966, 982, and 983

[Docket No. FR-5720-F-03]

RIN 2501-AD71

Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs

AGENCY:

Office of the Secretary, HUD.

ACTION:

Final rule.

SUMMARY:

This final rule implements in HUD's regulations the requirements of the 2013 reauthorization of the Violence Against Women Act (VAWA), which applies for all victims of domestic violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation, and which must be applied consistent with all nondiscrimination and fair housing requirements. The 2013 reauthorization (VAWA 2013) expands housing protections to HUD programs beyond HUD's public housing program and HUD's tenant-based and project-based Section 8 programs (collectively, the Section 8 programs) that were covered by the 2005 reauthorization of the Violence Against Women Act (VAWA 2005). Additionally, the 2013 law provides enhanced protections and options for victims of domestic violence, dating violence, sexual assault, and stalking. Specifically, this rule amends HUD's generally applicable regulations, HUD's regulations for the public housing and Section 8 programs that already pertain to VAWA, and the regulations of programs newly covered by VAWA 2013.

In addition to this final rule, HUD is publishing a notice titled the Notice of Occupancy Rights under the Violence Against Women Act (Notice of Occupancy Rights) that certain housing providers must give to tenants and applicants to ensure they are aware of their rights under VAWA and these implementing regulations, a model emergency transfer plan that may be used by housing providers to develop their own emergency transfer plans, a model emergency transfer request form that housing providers could provide to tenants requesting an emergency transfer under these regulations, and a new certification form for documenting incidents of domestic violence, dating violence, sexual assault, and stalking that must be used by housing providers.

This rule reflects the statutory changes made by VAWA 2013, as well as HUD's recognition of the importance of providing housing protections and rights to victims of domestic violence, dating violence, sexual assault, and stalking. By increasing opportunities for all individuals to live in safe housing, this will reduce the risk of homelessness and further HUD's mission of utilizing housing to improve quality of life.

DATES:

Effective Date:

These regulations are effective on December 16, 2016.

Compliance Date:

Compliance with the rule with respect to completing an emergency transfer plan and providing emergency transfers, and associated recordkeeping and reporting requirements, is required no later than May 15, 2017.

FOR FURTHER INFORMATION CONTACT:

For information about: HUD's Public Housing program, contact Monica Shepherd, Director Public Housing Management and Occupancy Division, Office of Public and Indian Housing, Room 4204, telephone number 202-402-5687; HUD's Housing Choice Voucher program and Project-Based Voucher, contact Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public and Indian Housing, Room 4216, telephone number 202-402-6050; HUD's Multifamily Housing programs, contact Yvette M. Viviani, Director, Housing Assistance Policy Division, Office of Housing, Room 6138, telephone number 202-708-3000; HUD's HOME Investment Partnerships program, contact Virginia Sardone, Director, Office of Affordable Housing Programs, Office of Community Planning and Development, Room 7164, telephone number 202-708-2684; HUD's Housing Opportunities for Persons With AIDS (HOPWA) program, contact Rita Flegel, Director, Office of HIV/AIDS Housing, Office of Community Planning and Development, Room 7248, telephone number 202-402-5374; and HUD's Homeless programs, contact Norman Suchar, Director, Office of Special Needs Assistance, Office of Community Planning and Development, telephone number 202-708-4300. The address for all offices is the Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410. The telephone numbers listed above are not toll-free numbers. Persons with hearing or speech impairments may access these numbers through TTY by calling the Federal Relay Service, toll-free, at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action

This rule implements the HUD housing provisions in VAWA 2013, which are found in Title VI of the statute. (See Pub. L. 113-4, 127 Stat. 54, approved March 7, 2013, at 127 Stat. 101). VAWA 2005 (Pub. L. 109-162, 119 Stat. 2959, approved January 5, 2006) applied VAWA protections to certain HUD programs by amending the authorizing statutes for HUD's public housing and section 8 programs to provide protections for victims of domestic violence, dating violence, and stalking. VAWA 2013 removes these amendments from the public housing and section 8 authorizing statutes, and in its place provides stand-alone VAWA protections that apply to these programs, as well as additional HUD programs, and also to victims of sexual assault. In addition, VAWA 2013 expands protections for victims of domestic violence, dating violence, sexual assault, and stalking by amending the definition of domestic violence to include violence committed by intimate partners of victims, and by providing that tenants cannot be denied assistance because an affiliated individual of theirs is or was a victim of domestic violence, dating violence, sexual assault, or stalking (collectively VAWA crimes). The new law also expands remedies for victims of domestic violence, dating violence, sexual assault, and stalking by requiring covered housing providers to have emergency transfer plans, and providing that if housing providers allow for bifurcation of a lease, then tenants should have a reasonable time to establish eligibility for assistance under a VAWA-covered program or to find new housing when an assisted household has to be divided as a result of the violence or abuse covered by VAWA.

VAWA 2013 provides protections for both applicants for and tenants of assistance under a VAWA-covered housing program. VAWA 2013 covers applicants, as well as tenants, in the statute's nondiscrimination and notification provisions. However, the emergency transfer and bifurcation provisions of the rule are applicable solely to tenants. The statutory provisions of VAWA that require a notice of occupancy rights, an emergency transfer plan, and allow for the possibility of bifurcation of a lease, support that it is a rental housing situation that is the focus of the VAWA protections. However, as described in this final rule, the core statutory protections of VAWA that prohibit

denial or termination of assistance or eviction solely on the basis that an individual is a victim of domestic violence, dating violence, stalking or sexual assault apply to certain housing programs subsidized by HUD even where there is no lease. HUD funds many shelters, temporary housing, short-term supported housing, and safe havens, and no person is to be denied access to such facility or required to leave such facility solely on the basis that the person is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. It is equally important to note, as was noted in HUD's proposed rule, that the core statutory protections of VAWA 2013 that apply to applicants and tenants, were applicable upon enactment of VAWA 2013. As was discussed in HUD's proposed rule and reiterated in this final rule, regulations were not necessary to mandate adherence to this nondiscrimination requirement. That is, if an individual meets all eligibility requirements and complies with all occupancy requirements, the individual cannot be denied assistance or have assistance terminated solely on the basis that the individual is a victim of domestic violence, dating violence, stalking, or sexual assault.

This rule better enables housing providers to comply with the mandates of VAWA 2013, and it reflects Federal policies that recognize that all individuals should be able to live in their homes without fear of violence. The implementation of VAWA protections in HUD programs increases opportunities for all individuals to live in safe housing and reduces the risk of homelessness for individuals who might otherwise be evicted, be denied housing assistance, or flee their homes.

Summary of the Major Provisions of This Regulatory Action

Major provisions of this rule include:

• Specifying “sexual assault” as a crime covered by VAWA in HUD-covered programs.

• Establishing a definition for “affiliated individual” based on the statutory definition and that is usable and workable for HUD-covered programs.

• Applying VAWA protections to all covered HUD programs as well as the Housing Trust Fund, which was not statutorily listed as a covered program.

• Ensuring that existing tenants, as well as new tenants, of all HUD-covered programs receive notification of their rights under VAWA and HUD's VAWA regulations.

• Establishing reasonable time periods during which a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking may establish eligibility to remain in housing, where the tenant's household is divided due to a VAWA crime, and where the tenant was not the member of the household that previously established eligibility for assistance.

• Establishing that housing providers may, but are not required to, request certain documentation from tenants seeking emergency transfers under VAWA.

• Providing for a six-month transition period to complete an emergency transfer plan and provide emergency transfers, when requested, under the plan.

• Revising and establishing new program-specific regulations for implementing VAWA protections in a manner that is workable for each HUD-covered program.

Please refer to section II of this preamble, entitled “This Final Rule” for a more detailed discussion of all the changes made to HUD's existing regulations by this rule. In developing this rule, HUD identified outdated terminology in its regulations (for example, the use of the term “alcohol abuser” in part 982). HUD will be issuing a future rule to update and correct such terms.

Costs and Benefits

The benefits of HUD's rule include codifying in regulation the protections that VAWA 2013 provides applicants to and tenants of HUD programs covered by VAWA; strengthening the rights of victims of domestic violence, dating violence, sexual assault, or stalking in HUD-covered programs, including notification and confidentiality rights; and possibly minimizing the loss of housing by such victims through the bifurcation of lease provision and emergency transfer provisions. With respect to rental housing, VAWA was enacted to bring housing stability to victims of domestic violence, dating violence, sexual assault or stalking. It was determined that legislation was needed to require protections for such victims because housing providers often responded to VAWA crimes occurring in one of their rental units or on their property by evicting the tenant regardless of whether the tenant was a victim of domestic violence, dating violence, sexual assault, or stalking, and refusing to rent to such victims on the basis that violence would erupt in the victim's unit or on a housing provider's property if the individual was accepted as a tenant. To ensure that housing providers administering HUD assistance did not respond to domestic violence, dating violence, or stalking by denying or terminating assistance, VAWA 2005 brought HUD's public housing and Section 8 programs under the statute's purview, and VAWA 2013 covered the overwhelming majority of HUD programs providing rental assistance.

The costs of the regulations are primarily paperwork costs. These are the costs of providing notice to applicants and tenants of their occupancy rights under VAWA, the preparation of an emergency transfer plan, and documenting an incident or incidents of domestic violence, dating violence, sexual assault, and stalking. The costs, however, are minimized by the fact that VAWA 2013 requires HUD to prepare the notice of occupancy rights to be distributed to applicants and tenants; to prepare the certification form that serves as a means of documenting the incident or incidents of domestic violence, dating violence, sexual assault, and stalking; and to prepare a model emergency transfer plan that guides the entities and individuals administering the rental assistance provided by HUD in developing their own plans. In addition, costs to covered housing providers will be minimized because HUD will translate the notice of occupancy rights and certification form into the most popularly spoken languages in the United States, and HUD has prepared a model transfer request form that housing providers and tenants requesting emergency transfer may use. There may also be costs with respect to a tenant claiming the protections of VAWA and a covered housing provider responding to such incident, although these costs will vary depending on the incidence of claims in a given year and the nature and complexity of the situation.

I. Background

On March 7, 2013, President Obama signed into law VAWA 2013 (Pub. L. 113-4, 127 Stat. 54). VAWA 2013 reauthorizes and amends VAWA 1994 (Title IV, sec. 40001-40703 of Pub. L. 103-322), which was previously reauthorized by VAWA 2000 (Pub. L. 106-386) and VAWA 2005 (Pub. L. 109-162, approved January 5, 2006, with technical corrections made by Pub. L. 109-271, approved August 12, 2006).

The VAWA 2005 reauthorization brought HUD's public housing program and HUD's Section 8 programs under coverage of VAWA by amending the authorizing statutes for those programs, sections 6 and 8 of the United States Housing Act of 1937 (the 1937 Act) (42 U.S.C. 1437

et seq.

). VAWA 2005 established that being a victim of domestic violence, dating violence, or

stalking cannot be the basis for denial of assistance or admission to public or Section 8 housing, and provided other protections for victims. VAWA 2005 also contained requirements for notification to tenants of the rights and protections provided under VAWA, provisions on the rights and responsibilities of public housing agencies (PHAs) and owners and managers of assisted housing, and provisions pertaining to acceptable documentation of incidents of VAWA crimes and maintaining the confidentiality of the victim. HUD regulations pertaining to VAWA 2005 protections, rights, and responsibilities are codified in 24 CFR part 5, subpart L.

Title VI of VAWA 2013, “Safe Homes for Victims of Domestic Violence, Dating Violence, Sexual Assault, and Stalking,” contains the provisions that are applicable to HUD programs. Specifically, section 601 of VAWA 2013 removes VAWA protections from the 1937 Act and adds a new chapter to Subtitle N of VAWA 1994 (42 U.S.C. 14043e

et seq.

) entitled “Housing Rights.” As applicable to HUD, this chapter provides additional protections for tenants beyond those provided in VAWA 2005, and expands VAWA protections to other HUD programs.

On August 6, 2013, at 78 FR 47717, HUD published a

Federal Register

notice that provided an overview of the applicability of VAWA 2013 to HUD programs. This notice listed the new HUD housing programs covered by VAWA 2013, described the changes that VAWA 2013 made to existing VAWA protections, and identified certain issues for which HUD specifically sought public comment. HUD solicited public comment for a period of 60 days, and the public comment period closed on October 7, 2013. HUD appreciates the public comments submitted in response to the August 6, 2013, notice, and these public comments were taken into consideration in the development of this rule. The public comments on the August 6, 2013, notice can be found at the

www.regulations.gov

government-wide portal, under docket number FR-5720-N-01, at

http://www.regulations.gov/#!docketDetail;D=HUD-2013-0074.

Many of the comments submitted in response to the August 6, 2013, notice asked HUD to advise program participants that certain VAWA protections are in effect without the necessity of rulemaking. In response to these comments, HUD offices administering HUD-covered programs reached out to participants in their programs to advise them that the core statutory protections of VAWA—not denying or terminating assistance to, or evicting an individual solely on the basis that an individual is or has been a victim of domestic violence, dating violence, stalking, or sexual assault—were effective upon enactment and do not require notice and comment rulemaking for implementing these protections and that they should proceed to provide the basic VAWA protections.

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See, for example, the letter to Executive Directors of public housing agencies from the Assistant Secretary for Public and Indian Housing, issued September 30, 2013, at

http://portal.hud.gov/hudportal/documents/huddoc?id=sept2013vawaltr_phas.pdf,

as well as communications from HUD's HOME Investment Partnerships Programs (HOME) at

https://www.onecpd.info/resources/documents/HOMEfires-Vol11-No1-Violence-Against-Women-Reauthorization-Act-2013.pdf,

and from HUD's Office of Special Needs Assistance Programs at

https://www.onecpd.info/news/reauthorization-of-the-violence-against-women-act-vawa/.

On April 1, 2015, HUD published its proposed rule that provided the amendments to HUD's existing regulations that HUD determined necessary to fully implement VAWA 2013. The public comment period on the April 1, 2015, rule closed on June 1, 2015. HUD received 94 comments, including duplicate mass mailings, resulting in 68 distinct comments. The comments were submitted by housing authorities, other housing providers, organizations that represent or provide services to specific groups of housing providers, organizations that advocate for victims and survivors of domestic and sexual violence, state coalitions against domestic violence, other advocacy and not-for-profit organizations and associations, state and local government agencies, a tribal organization, and numerous unaffiliated individuals. All public comments can be viewed at:

http://www.regulations.gov/#!docketDetail;D=HUD-2015-0028.

Most commenters expressed support for the rule, with different questions and comments about specific provisions. There were many comments regarding emergency transfers, lease bifurcation, and documentation requirements, as well as comments on eligibility for and limitations on VAWA protections, the roles and responsibilities of different housing providers under different HUD programs, the notice of occupancy rights, implementation and enforcement of the rule, confidentiality, and other issues. In addition, there were a number of program-specific comments. HUD responds to issues raised by the public comments in Section II.B. of this preamble.

This final rule reflects the Federal government's recognition that all people have a right to live their lives safely. On September 9, 2014, in Presidential Proclamation 9164—Twentieth Anniversary of the Violence Against Women Act, and on September 30, 2014, in Presidential Proclamation 9181—National Domestic Violence Awareness Month, 2014, President Obama discussed the “basic human right to be free from violence and abuse.” The implementation of the policies laid out in this rule will help to enforce this basic human right.

HUD notes that, in addition to utilizing housing protections in VAWA, victims of domestic violence, dating violence, sexual assault, and stalking, and those assisting them, may wish to consider other available protections and assistance. On the Federal level, for example, the U.S. Department of Justice (DOJ) administers programs that provide funding for victims of crime, including victims covered by VAWA. The Office for Victims of Crime (OVC), part of DOJ, administers the Crime Victims Fund, which provides direct reimbursement to crime victims for financial losses from crimes including medical costs, mental health counseling, and lost wages or loss of support. This provides reimbursement for victims during a time when they may be facing financial constraints. The Crime Victims Fund may also be used to fund transitional housing and shelter for victims of domestic violence, dating violence, sexual assault, or stalking who need the transitional housing or shelter because they were a victim of one of these crimes, and to fund relocation expenses for those who need to move because they were a victims of domestic violence, dating violence, sexual assault, or stalking. OVC also provides grants to public and non-profit organizations for essential services to victims of crime, including emergency shelter, and the Office of Violence Against Women (OVW), also part of DOJ, administers 24 grant programs where funds are provided to states, territories, local government, non-profit organizations, and community organizations for various targeted persons. Information about the Crime Victims Fund is available at:

http://www.ovc.gov/pubs/crimevictimsfundfs/intro.html#VictimAssist

and information about OVW grants is available at

http://www.justice.gov/ovw/grant-programs.

Victims of domestic violence, dating violence, sexual assault, and stalking may consult with local victim services providers and state and local social service agencies to

determine whether funding and other forms of help and support may be available.

Further, victims of domestic violence, dating violence, sexual assault, and stalking should be aware that State and local laws may provide greater protections than Federal law, and local victim service providers and social service agencies may have further information regarding this.

II. This Final Rule

A. Overview of Changes Made at the Final Rule Stage

After review and consideration of the public comments and upon HUD's further consideration of VAWA 2013 and the issues raised in the proposed rule, HUD has made certain changes in this final rule. The following highlights the substantive changes made by HUD in this final rule from the proposed rule.

The final rule:

• Clarifies that, consistent with HUD's nondiscrimination and equal opportunity requirements, victims of domestic violence, dating violence, sexual assault, and stalking cannot be discriminated against on the basis of any protected characteristics (including race, color, religion, sex, disability, familial status, national origin, or age), and HUD programs must also be operated consistently with HUD's Equal Access Rule (HUD-assisted and HUD-insured housing must be made available to all otherwise eligible individuals and families without regard to actual or perceived sexual orientation, gender identity or marital status). (See § 5.2001(a).)

• Provides that in regulations governing short-term supported housing, emergency shelters, and safe havens, these forms of shelter are subject to the core protections of VAWA that prohibit denial of admission or eviction or termination to an individual solely on the basis that the individual is a victim of domestic violence, dating violence, or stalking, or sexual assault. (See §§ 574.604(a)(2), 576.409(f), and 578.99(j)(9).)

• Revises the definition of “affiliated individual” to incorporate situations where an individual has guardianship over another individual who is not a child. (See § 5.2003.)

• Revises the definition of “domestic violence” to incorporate a definition of “spouse or intimate partner” rather than cross-reference to another definition of the term, and to eliminate the cross-reference to “crime of violence,” a more restricting term. (See § 5.2003.)

• Provides that existing tenants in HUD-covered programs receive HUD's Notice of Occupancy Rights and accompanying certification form no later than one year after this rule takes effect, during the annual recertification or lease renewal process, if applicable, or through other means if there will be no annual recertification or lease renewal process for a tenant. (See § 5.2005(a)(2)(iv).)

• Retains the provision of HUD's regulations implementing VAWA 2005, for those HUD programs covered by VAWA 2005, which states that the HUD-required lease, lease addendum, or tenancy addendum must include a description of the specific protections afforded to the victims of VAWA crimes. (See § 5.2005(a)(4).)

• Clarifies that applicants may not be denied assistance and tenants may not have assistance terminated under a covered housing program for factors resulting from the fact that the applicant or tenant is or has been a victim of a VAWA crime. (See § 5.2005(b)(1).)

• Emphasizes that victims of sexual assault may qualify for an emergency transfer if they either reasonably believe there is a threat of imminent harm from further violence if they remain in their dwelling unit, or the sexual assault occurred on the premises during the 90-calendar-day period preceding the date of the request for transfer. (See § 5.2005(e)(2)(ii).)

• Provides that emergency transfer plans must detail the measure of any priority given to tenants who qualify for an emergency transfer under VAWA in relation to other categories of individuals seeking transfers or placement on waiting lists. (See § 5.2005(e)(3).)

• Provides that emergency transfer plans must allow for a tenant to transfer to a new unit when a safe unit is immediately available and the tenant would not have to apply in order to occupy the new unit (§ 5.2005(e)(5)).

• Provides that emergency transfer plans must describe policies for assisting tenants to make emergency transfers when a safe unit is not immediately available, both for situations where a tenant would not have to apply in order to occupy the new unit, and where the tenant would have to apply in order to occupy the new unit. (See § 5.2005(e)(6), § 5.2005(e)(7), and § 5.2005(e)(8)).

• Provides that the emergency transfer plans must describe policies for assisting tenants who have tenant-based rental assistance to make emergency moves with that assistance. (§ 5.2005(e)(9)).

• Adds a provision that emergency transfer plans may require documentation, as long as tenants can establish eligibility for an emergency transfer by submitting a written certification to their housing provider, and no other documentation is required for tenants who have established that they are victims of domestic violence, dating violence, sexual assault, or stalking to verify eligibility for a transfer. (See § 5.2005(e)(10).)

• Requires housing providers to make emergency transfer plans available upon request, and to make them publicly available whenever feasible. (See § 5.2005(e)(11).)

• Provides for a six-month transition period to complete an emergency transfer plan and provide emergency transfers, when requested, under such plan. (See § 5.2005(e) or applicable program regulations)

• Emphasizes that tenants and applicants may choose which of the forms of documentation listed in the rule to give to housing providers to document the occurrence of a VAWA crime. (See § 5.2007(b)(1).)

• Provides that in cases of conflicting evidence, tenants and applicants who may need to submit third-party documentation to document occurrence of a VAWA crime have 30 calendar days to submit the third-party documentation. (See § 5.2007(b)(2).)

• Provides that if a covered housing provider bifurcates a lease under VAWA, any remaining tenants who had not already established eligibility for assistance must be given either the maximum time permitted by statute, or, if there are no statutory prohibitions, at least 90 calendar days from the date of bifurcation of the lease or until expiration of the lease, depending on the covered housing program, to establish eligibility for a covered housing program, or find alternative housing (See § 5.2009(b)(2).)

• Provides that if a family in a HOME-assisted rental unit separates under § 5.2009(a), the remaining tenant(s) will retain the unit. (See § 92.359(d)(1).)

• Provides that if a family receiving HOME tenant-based rental assistance separates under § 5.2009(a), the tenant(s) who are not removed will retain the HOME tenant-based rental assistance, and the participating jurisdiction must determine whether a tenant who was removed from the unit will receive HOME tenant-based rental assistance. (See § 92.359(d)(2).)

• Establishes VAWA regulations for the Housing Trust Fund, based on the regulations for the HOME program. (See 24 CFR part 93.)

• Emphasizes that VAWA protections apply to eviction actions for tenants in

housing under a HUD-covered housing program. (See 24 CFR 247.1(b).)

• Clarifies in the HOPWA regulations that the grantee or project sponsor is responsible for ensuring that the owner or manager of a facility assisted under HOPWA develops and uses a VAWA lease addendum. (See part 574.)

• Clarifies who is the covered housing provider for HUD's multifamily Section 8 project-based programs and the Section 202 and Section 811 programs, by providing that the covered housing provider is the owner for the Section 8 Housing Assistance Payments Programs for New Construction (part 880), for Section 515 Rural Rental Housing Projects (part 884), and for Special Allocations (part 886), as well as for the Section 202 and Section 811 programs (part 891) and that PHAs and owners each have certain responsibilities as covered housing providers for the Section 8 Moderate Rehabilitation Program (part 882), and the Section 8 State Housing Agencies Program for State Housing Agencies (part 883).

• Updates various section 8 and public housing VAWA 2005 regulations to broadly state that VAWA protections apply, so that all tenants and applicants, and not only those determined to be victims of VAWA crimes, receive statutorily required notification of their VAWA rights. (See parts 880, 882, 883, 884, 886, 891, 960, 966, and 982.)

• Clarifies that VAWA protections and requirements apply to mixed finance developments. (See § 905.100(g).)

• Clarifies that public housing agencies (PHAs), like other covered providers, may establish preferences for victims of dating violence, sexual assault, and stalking, in addition to domestic violence, consistent with their statutory authority. (See §§ 960.206(b)(4), 982.207(b)(4).)

• Clarifies that for the Section 8 Housing Choice Voucher and Project-Based Voucher programs, the PHA is the housing provider responsible for complying with VAWA emergency transfer provisions. (See §§ 982.53(e), 983.3(b).)

B. Summary of Public Comments and HUD Responses

As noted earlier in this preamble, the majority of the commenters expressed support for the rule, but they also presented questions and comments about specific provisions of the rule. The primary provisions of the rule on which commenters posted comments pertained to emergency transfers, lease bifurcation, documentation requirements, eligibility for and limitations on VAWA protections, the roles and responsibilities of different housing providers under different HUD programs, the notice of occupancy rights, implementation and enforcement of the rule, and confidentiality requirements. The following presents the significant issues raised by the commenters and HUD's response to the comments.

1. Applicability

a. Eligibility for VAWA Protections

Comment: Ensure proper evaluation of individuals who are or have been victims of domestic violence, dating violence, sexual assault, or stalking.

Commenters stated that HUD's final rule should ensure applicants are not denied assistance or housing for independent bases that result from their status as a victim of domestic violence, dating violence, sexual assault, or stalking. Commenters said that HUD's currently codified regulations do not address how to evaluate when an applicant who is or has been a victim of domestic violence, dating violence, sexual assault, or stalking can show that denial of assistance or housing is on that basis. Commenters stated that survivors may have negative credit, housing, or criminal records based on the violence committed against them that then disqualifies them in the housing application process. Commenters said that HUD acknowledged this barrier in its 2003 Public Housing Occupancy Guidebook,

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which encouraged staff to exercise discretion and inquire about the circumstances that may have contributed to the negative reporting to determine whether domestic violence was a factor. Commenters recommended that the final rule contain similar guidance and asked HUD to include language in § 5.2005 that applicants be provided with an opportunity to show that domestic violence, dating violence, sexual assault, or stalking was a factor in any negative rental, tenancy, or criminal records that would result in denial of admission or assistance; and, if it is determined such is the case, and the applicant otherwise qualifies, the covered housing provider must grant the application.

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See

http://www.hud.gov/offices/pih/programs/ph/rhiip/phguidebooknew.pdf

.

A commenter stated that HUD's final rule's definitions of domestic violence, dating violence, sexual assault or stalking must be sufficiently clear so as not to cause survivors to be punished for ancillary crimes as a result of the abuse they have suffered or cause survivors to be blamed for the abuse. Commenters said some survivors have been evicted because they “invited” the perpetrator into the home and subsequently received an eviction notice under Crime Free Drug Free policies

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or a Crime Free Lease Addendum.

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Commenters said victims of VAWA crimes are disadvantaged because landlords typically do not mention domestic violence, sexual violence or stalking in the eviction notice.

3

Crime Free Drug Free policies generally refer to policies set forth in lease addendum in which a renter agrees to maintain their rental residence crime free or face eviction. See, for example, the following lease addendum.

http://www.cityofkasson.com/vertical/sites/%7BC3C7597A-7E80-4164-9E1A-84A37B5D7AAF%7D/uploads/Crime_Free_Lease_Addendum.pdf

. A provision pertaining to domestic violence may be worded as follows: Any resident, or member of the resident's household, who is or has been a victim of domestic violence, is encouraged to take reasonable action to safeguard themselves, other members of the community, and property from future injury or damage. This may include obtaining a protection order against potential abusers, filing a copy of said protection order and a picture of the respondent with management, report any violation of the protection order to the police and management, and prepare and file a personal safety plan with management. and that a violation of this provision shall be cause for termination of the tenancy. See

http://www.cityofportorchard.us/docs/police/Crime_Free_Addendum.pdf

.

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A Crime Free Lease Addendum is a lease addendum that puts potential tenants on notice that they are liable for any criminal activity within their units, and if criminal activity does occur, the lease can be terminated and eviction action initiated.

Some commenters asked that HUD revise § 5.2005(b) to state that an applicant may not be denied assistance, or a tenant have assistance terminated or be evicted “on the basis or as a result of the fact that the applicant or tenant is or has been a victim of domestic violence . . .” in order to clarify that victims are protected from the results of economic abuse, such as poor credit.

HUD Response:

HUD interprets the term “on the basis” in VAWA 2013's statutory prohibitions against denying admission to, denying assistance under, terminating a tenant from participation in, or evicting a tenant from housing “on the basis” that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, to include factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking. For example, if an individual has a poor rental or credit history, or a criminal record, or other adverse factors that directly result from being a victim of domestic violence, dating violence, sexual assault, or stalking, the individual cannot be denied assistance under a HUD program if the individual otherwise qualifies for the program. To

clarify this understanding, HUD accepts the commenters' suggestion to amend proposed § 5.2005(b), and the section now states that an applicant or tenant may not be denied admission to, denied assistance under, terminated from participation in, or evicted from housing or a housing program on the basis or as a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the applicant or tenant otherwise qualifies for admission, assistance, participation, or occupancy.

In addition to revising § 5.2005(b), HUD will provide guidance for covered housing providers to aid how they may determine whether factors that might otherwise serve as a basis for denial or termination of assistance or eviction have directly resulted from the fact that an applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. As commenters noted, HUD has already provided in its Public Housing Occupancy Guidebook that PHAs should inquire about the circumstances that may have contributed to negative reporting to determine whether that negative reporting was a consequence of domestic violence.

Rule Change:

HUD revises § 5.2005(b) to state that an applicant or tenant may not be denied admission to, denied assistance under, terminated from participation in, or evicted from housing or a housing program on the basis or as a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, of the applicant or tenant otherwise qualifies for admission, assistance, participation, or occupancy.

Comment: Include victims of “economic abuse” as covered by VAWA protections.

Commenters stated that VAWA 2013 was meant to protect victims of economic abuse, the legislative history of the statute contains many references to the effects of economic abuse, and the final rule should clarify that VAWA protections apply to victims of economic abuse. Commenters said economic abuse includes a broad range of conduct, including but not limited to, interfering with the victim's employment, controlling how money is spent, forcing the victim to write bad checks, incurring significant debt in the victim's name, or otherwise harming the victim's financial security. Commenters stated that persons who have poor credit, no credit or an inability to access money can be denied housing, which often results in homelessness. Commenters said the proposed definition of “stalking” eliminates the harassment and intimidation considerations that arguably make economic abuse a form of stalking under current regulations, and the consequence is removing protections available to current tenants, and this runs counter to VAWA 2013, which is intended to increase not reduce protections.

Commenters suggested that HUD add economic abuse to the scope of VAWA protections in § 5.2001 and to the list of protected victims throughout § 5.2005. A commenter said that, should HUD determine not to revise the text of the regulations to address economic abuse, HUD should nevertheless clarify that VAWA covers economic abuse.

Commenters also suggested that HUD establish a notification and certification process to ensure that victims of economic abuse receive VAWA protections. Commenters said a victim of economic abuse could supply a certification regarding such abuse when applying for a HUD program. Commenters said that whenever an individual's ability to participate in a HUD program is compromised due to economic factors, the individual must be notified that VAWA protections may apply.

HUD Response:

As previously discussed, HUD interprets VAWA to prohibit covered housing providers from denying admission to, denying assistance under, terminating a tenant from participation in, or evicting a tenant from housing as a result of factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking. Where an individual faces adverse economic factors, such as a poor credit or rental history, that result from being a victim of domestic violence, dating violence, sexual assault, or stalking, the individual cannot be denied assistance under a HUD program if the individual otherwise qualifies for the program. HUD declines, however, to explicitly state in regulation that victims of economic abuse receive the protections of VAWA. Such expansion would be beyond the scope of HUD's VAWA rulemaking, which is intended to implement the housing protections in VAWA 2013, as enacted. VAWA 2013 does not independently provide protections for victims of economic abuse who are not also victims of domestic violence, dating violence, sexual assault, or stalking. HUD also declines to implement a process in this rule where applicants who are denied admission to or assistance under a HUD program specifically due to their economic situations will then receive notice that they may be protected under VAWA and be provided an opportunity to show that their economic situation is a result of economic abuse. Both VAWA 2013 and this final rule provide that applicants will be provided with notice when they are denied assistance or admission under a covered housing program for any reason. Applicants would then have the opportunity to assert that they are or were victims of domestic violence, dating violence, sexual assault, or stalking, and that they are eligible for VAWA protections.

As described in the proposed rule, VAWA 2013 removed the statutory definition of stalking that HUD incorporated into the rule implementing VAWA 2005, but maintained a universal definition of stalking that applies throughout VAWA, as codified in 42 U.S.C. 13925(a)(30). As a result, this rule replaces the statutorily removed definition of stalking with the universal definition of stalking in VAWA. HUD disagrees with the commenters' assertion that this change reduces VAWA protections by eliminating harassment and intimidation considerations. The previous definition of “stalking” included specific actions (including harassment and intimidation) that either placed a person in reasonable fear of death or serious bodily injury or caused substantial emotional harm. The universal definition of “stalking,” provided in this final rule, involves any course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others, or suffer substantial emotional distress.

Comment: Clarify which individuals are entitled to VAWA protections:

Commenters stated that the rule and related documents provided to tenants and applicants must be clear about which individuals are entitled to VAWA protections. A commenter stated that the final rule should clarify that VAWA protections do not apply to guests, unauthorized residents, or service providers hired by the resident, such as live in aides. In contrast to these commenters, other commenters stated that live-in aides should be covered by VAWA protections under certain circumstances. Commenters stated that, although live-in aides are not parties to the lease they are listed as household members on tenant certifications and subject to the covered property's “house rules,” and HUD requires that the covered property be their sole residence. The commenters concluded that under these circumstances live-in aides are similar to tenants. Commenters further said that in the case where a tenant is abusing the live-in aide, the aide can

leave the tenant's employ and VAWA protections would not apply, but in the case where the live-in aide is a victim of abuse by someone living outside the unit and the tenant continues to require the aide's services, the housing provider should be required to offer the household all VAWA protections and the entire household (including the aide) should qualify for an emergency transfer.

Another commenter stated that the proposed rule advised that if an unreported member of the household is the victim of domestic violence, dating violence, sexual assault, or stalking, the tenant may not be evicted because of such action as long as the tenant was not the perpetrator. The commenter stated that, in the proposed rule, HUD agreed with comments that VAWA protections should not extend to individuals violating program regulations, such as housing unauthorized occupants. The commenter stated that HUD's statement seems contradictory because HUD is in effect extending VAWA protections to a tenant who violates program regulations by allowing a person who is not authorized to reside in the unit. The commenter asked HUD to advise how to respond if a housing provider learns of the existence of an unreported member of the household in violation of program regulations, based solely on a tenant's reporting of a VAWA incident against the unreported member. The commenter said HUD's rule does not establish a clear nexus for the prohibition against denial or termination of assistance “on the basis” that an applicant or tenant is or has been a domestic violence victim.

Other commenters stated that the preamble to the proposed rule created confusion when it stated that affiliated individuals do not receive VAWA protections if they are not on the lease and that the protections of VAWA are directed to tenants. Commenters stated that specific protections, however, may extend to affiliated individuals or be limited to tenants or lawful occupants. In support of this statement, the commenters stated that no individual may be denied housing in a covered program based on the individual's status as a survivor, but the right to bifurcate the lease and preserve the subsidy is limited to tenants or lawful occupants. Commenters asked HUD to correct language in the preamble to the proposed rule that they stated incorrectly construed the protections of VAWA as applying only to those named on the lease, and added that whether an individual is a “tenant” or a “lawful occupant” is a question of State law on which HUD should not take a position, as this could conflict with State law. Commenters further stated that, as part of the dynamics of an abusive relationship, a survivor will often not be listed as a tenant on the lease but may be a lawful occupant. Commenters concluded their comments stating that, to limit protections to “tenants” or to individuals specifically named on the lease, without regard for how a lawful occupant might be characterized under State or local laws, undermines the very purpose of VAWA.

HUD Response:

Only tenants who are assisted by a covered housing program can invoke the VAWA protections that apply solely to tenants. Several provisions in VAWA 2013, including the prohibited basis for denial or termination of assistance or eviction and the emergency transfer protection, apply to “tenants,” a term that VAWA 2013 does not define. The term “tenant” refers to an assisted family and the members of the household on their lease, but does not include guests or unreported members of a household. In addition, a live-in aide or caregiver is not a tenant, unless otherwise provided by program regulations, and cannot invoke VAWA protections. However, as is the case for anyone, a live-in aide or other service provider is entitled to VAWA protections if the person becomes an applicant for HUD assistance; that is, one does not have to have been a tenant in HUD subsidized housing to invoke VAWA protections in later applying to become a tenant in HUD subsidized housing.

A live-in aide or a guest could be an affiliated individual of a tenant, and if that aide or guest is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant with whom the affiliated individual is associated cannot be evicted or have assistance terminated on the basis that the affiliated individual was a victim of a VAWA crime. Moreover, where a live-in aide is a victim of domestic violence, dating violence, sexual assault, or stalking, and the tenant seeks to maintain the services of the live-in aide, the housing provider cannot require that the live-in aide be removed from the household on the grounds of being a victim of abuse covered by VAWA. The live-in aide resides in the unit as a reasonable accommodation for the tenant with a disability. Indeed, to require removal of the live-in aide solely because the aide is a victim of abuse covered by VAWA likely would violate Section 504 of the Rehabilitation Act, the Fair Housing Act, and the Americans with Disabilities Act, as applicable, which require housing providers to permit such reasonable accommodations. In addition, if a tenant requests and qualifies for an emergency transfer on the grounds that the live-in aide is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant's entire household, which includes the live-in aide, can be transferred.

Section 5.2005(d)(2) of this final rule states that covered housing providers can evict or terminate assistance to a tenant for any violation not premised on an act of domestic violence. However, if an individual, who is a victim of domestic violence, has an unreported member residing in the individual's household and the individual is afraid of asking the unreported member to leave because of the individual's domestic violence experience, then terminating the individual's tenancy because of the unreported household member would be “premised on an act of domestic violence.” Therefore, depending on the situation, a tenant who violates program regulations by housing a person not authorized to reside in the unit could be covered by VAWA's anti-discrimination provisions, and eligible for remedies provided under VAWA.

As discussed above, HUD interprets the term “on the basis” in VAWA 2013's prohibitions against denying admission to, denying assistance under, terminating a tenant from participation in, or evicting a tenant from housing “on the basis” that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, to include factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking.

With respect to the comments about applying the VAWA protections to survivors of domestic violence, dating violence, sexual assault, and stalking whether they are named on the lease or not, HUD notes that the term “lawful occupant” is not defined in VAWA 2013 and appears in the statute four times in the following contexts: (i) In the definition of “affiliated individual” as a type of “affiliated individual”; (ii) in the documentation section of the statute as those who could be evicted if they commit violations of the lease if the applicant or tenant does not provide requested documentation; (iii) in the bifurcation section, as those who could be evicted for engaging in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking; and (iv) as those who might not be negatively affected if a lease is bifurcated. Other than stating that a housing provider may, at the provider's discretion, bifurcate a lease

without penalizing a lawful occupant, VAWA 2013 does not provide protections or benefits for lawful occupants.

Comment: Clarify whether housing providers who have a mixed portfolio of projects and units will be required to offer protection for some tenants but will not be required to offer them to others.

Commenters asked whether housing providers that have both covered and non-covered projects will be faced with offering protections for tenants in only some of their properties. Other commenters stated that certain HUD-assisted properties have some units that must abide by HUD regulations, while others are not subject to HUD regulations. Commenter asked HUD to confirm whether, in such a complex, some tenants would be eligible for VAWA protections while others would not be.

HUD Response:

VAWA 2013 and HUD's rule apply only to HUD-covered housing programs. Therefore, covered housing providers will be required to provide VAWA protections to tenants and applicants under the covered housing programs, but will not be required to provide such protections to other tenants and applicants. Although this rule only applies to tenants in and applicants to HUD-covered housing programs, housing providers may choose to offer VAWA protections and remedies to all tenants and applicants, where applicable. HUD encourages housing providers to provide VAWA's core protections—not denying or terminating assistance to victims of domestic violence, dating violence, sexual assault, and stalking—to all tenants and applicants. HUD also encourages housing providers to offer all VAWA protections, such as emergency transfer and bifurcation provisions, to all tenants where possible.

All housing providers should be aware of other Federal, State and local laws that may provide similar or more extensive rights to victims of domestic violence, dating violence, sexual assault, and stalking. For example, properties funded with Low-Income Housing Credits (LIHTCs) are also subject to VAWA requirements, and housing providers should look to the regulatory agency responsible for LIHTCs—the Department of Treasury—for how to implement VAWA protections in those properties.

Housing providers should also be aware more generally of other Federal fair housing and civil rights laws that may be applicable, including, but not limited to, the Fair Housing Act, Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and Title VI of the Civil Rights Act. For example, housing providers might violate the Fair Housing Act under a discriminatory effects theory if they have an unjustified policy of evicting victims of domestic violence, as such a policy might disproportionately harm females or individuals that have another protected characteristic.

Comment: Clarify whether VAWA protections can be invoked on multiple occasions and whether other limits to protections could apply.

Commenters asked whether there is a limit to the number of times covered housing providers must provide VAWA protections when the victim continues to allow the perpetrator access to the property. Another commenter said that one of the recurring issues for housing providers is that victims may evoke VAWA protections repeatedly but then invite or allow the perpetrator into their unit, often leading to repeated instances of abuse and danger or disturbance for other households at the property. Commenter asked whether, in order to continue to invoke VAWA protections, VAWA allows covered housing providers to require that a victim obtain a restraining order against the perpetrator, notify local law enforcement if a restraining order is being violated, or refuse to invite or allow the perpetrator onto the property.

In contrast to this comment, another commenter stated that HUD's final rule should make clear that a tenant or family can be entitled to VAWA protection on more than one occasion and cannot be subjected to additional conditions that adversely affect their tenancy because they have invoked VAWA protections. The commenter said it has dealt with covered housing providers that decided to impose additional requirements on tenants who sought VAWA protections, such as requiring tenants to obtain protective orders or call the police, conditions they do not impose on other tenants, including those who are victims of other crimes (non-VAWA crimes), and this violates VAWA.

5

The commenter said these requirements conflict with recognized best practices that affirm that the most effective way to ensure a survivor's safety is to respect the survivor's autonomy in deciding whether to obtain a protective order or to call the police.

5

See footnotes 2 and 3, which provide examples of these types of lease provisions.

HUD Response:

HUD agrees that a tenant or family may invoke VAWA protections on more than one occasion and cannot be subjected to additional conditions that adversely affect their tenancy because they have invoked VAWA protections. Individuals and families may be subject to abuse or violence on multiple occasions and it would be contrary to the intent of VAWA to say that the protections no longer apply after a certain point, even if violence or abuse continues, or the victim and the victim's family members are still in danger. In cases where the presence of the perpetrator on the property will endanger others, not solely the unit in which the perpetrator resides, this final rule maintains the provision that a housing provider may evict or terminate assistance to a tenant if the housing provider can demonstrate an actual and imminent threat to other tenants, or those employed at or providing services to the property, if the tenant is not evicted or assistance is not terminated. However, as discussed elsewhere in this rule, housing providers should only take such actions when there are no other actions that could be taken to reduce or eliminate the threat.

Allowing housing providers to apply a different occupancy standard to survivors of domestic violence, dating violence, sexual assault, and stalking than that applied to victims of other crimes violates the intent of VAWA, which provides that housing providers cannot discriminate against survivors and victims of a VAWA crime. HUD also agrees that survivors do not have to contact authorities, such as police, or initiate legal proceedings against an abuser or perpetrator in order to qualify for VAWA protections. The statute has no such requirements and instead allows survivors to provide self-certification about the VAWA incident(s).

Comment: Eliminate or better explain the provision that eviction or termination of assistance should only be used as a last resort.

A commenter stated that HUD retains paragraph (d)(3) of currently codified § 5.2005, which encourages a covered housing provider to evict or terminate assistance only when there are no other actions that could be taken to reduce or eliminate the threat of domestic violence. The commenter said the ability of housing providers to avoid eviction or termination will vary widely depending on factors that are generally out of the control of the provider, and that HUD inserted paragraph (d)(3) of § 5.2005 during a prior rulemaking. The commenter stated that this language is not in the VAWA statute, and should be stricken. With respect to this provision, another commenter asked how far a landlord is expected to go to keep the

property safe, how much the landlord is expected to expend to ensure the safety of tenants, and what responsibility the tenants have in ensuring their own safety.

HUD Response:

As the commenter noted, § 5.2005(d)(3)—now designated as § 5.2005(d)(4)—is already in HUD's VAWA regulations and is in effect. HUD has no reason to eliminate this provision now, as VAWA 2013 was meant to expand, and not to retract VAWA protections. HUD agrees with the commenter that the ability and resources of the housing provider to provide alternatives to evictions will vary, just as the circumstances of the abuse and the safety needs of the victim will vary. This variation, however, does not preclude a policy that sets eviction as the last resort.

b. Covered Programs

Comment: List all program/subsidy types to which VAWA regulations apply.

Commenters said HUD regulations should specifically list all programs and subsidy types to which VAWA protections apply, and not solely those listed in the statute. A commenter said this is necessary because there are many HUD programs that fall under the multifamily umbrella and, in the past, VAWA requirements for the Section 8 programs differed from other program types. Another commenter said it does not appear that VAWA applies to certain Section 202 Direct Loan Projects that do not have project-based Section 8 assistance, or to certain Section 221(d)(3)/(d)(5) Below Market Interest Rate (BMIR) projects, or to certain Section 236 projects. Commenter asked whether these programs would be included. Another commenter said there should be an easier way to explain which programs do not fall under VAWA.

HUD Response:

HUD's final rule lists all HUD programs covered by VAWA 2013 in the definition of covered housing program, and addresses questions about specific programs below.

Comment: The Housing Trust Fund was not listed in VAWA as a covered program.

Commenters expressed concern about HUD's coverage of the Housing Trust Fund (HTF) program, which was not specifically identified as a “covered housing program” in the VAWA statute, and, said that without specific statutory authority to apply VAWA to HTF, either a tenant or housing provider could challenge the rule and its application, which could lead to litigation expenses for all parties. Other commenters stated that HTF should be a covered program. Commenters stated that such coverage is consistent with Congressional intent, which, through VAWA 2013, sought to expand VAWA protections to all HUD programs that provide rental assistance. The commenters further stated that maintaining similarity in the regulatory treatment of HOME and HTF is efficient for program participants and appropriate because many of the HTF's program requirements are similar to those that apply to the HOME program.

HUD Response:

HUD maintains the HTF program as a covered program in this final rule. HUD has authority to establish regulations for its programs where they do not conflict with other laws. Rather than conflicting with VAWA 2013, including the HTF program as a covered program aligns with the intent of the law, which expanded the protections of VAWA to HUD's programs that provide rental assistance. As noted in the preamble to the proposed rule and, as commenters have themselves said, the HTF program is very similar to the HOME program and to HUD, it is not logical to exclude the HTF program.

Rule Change:

This final rule adds § 93.356 (VAWA requirements) to the HTF interim regulations, which generally applies the same VAWA requirements to HTF as apply to the HOME program at 92.359. This final rule also revises § 93.303 (Tenant protections and selection) by revising § 93.303(a) and adding § 93.303(d)(7) to mirror § 92.253 (a) and § 92.253(d)(7) of this final rule's HOME regulations. In addition, this rule revises § 93.404(c) to state that written agreements with subgrantees and eligible recipients must set forth all obligations the grantee imposes on them in order to meet the VAWA requirements under § 93.356, including notice obligations and obligations under the emergency transfer plan.

Comment: All Section 202 Direct Loan projects should be subject to VAWA protections.

Commenters said the proposed rule was not clear as to why Section 202 Direct Loan projects without project-based rental assistance were excluded from VAWA protections, and recommended that HUD include these properties. Another commenter said that HUD's decision to exclude the Section 202 Direct Loan program from VAWA's coverage is based on an interpretation that is unnecessarily restrictive and violates the VAWA statute. A commenter stated VAWA 2013's plain statutory language is broad in scope, expressing no further limitation or ambiguity, and any property funded under Section 202 qualifies. Other commenters said that covering Section 202 Direct Loan properties without Section 8 contracts extends these important protections to all similar HUD-supported housing programs, which follows congressional and HUD intent.

HUD Response:

HUD maintains that its interpretation provided in the proposed rule with respect to Section 202 Direct loans is correct, but includes additional information to elaborate on HUD's proposed rule statement. In the proposed rule, at 80 FR 17752, HUD stated that section 202 of the National Housing Act of 1959 authorized HUD to make long-term loans directly to multifamily housing projects and the loan proceeds are to be used to finance the construction of multifamily rental housing for persons age 62 years or older and for persons with disabilities. The Section 202 Direct Loan program ran from 1959 to 1990.

6

The purpose of the program was primarily to provide direct Federal loans for the development or substantial rehabilitation of housing for the elderly or for persons with disabilities. Amendments to Section 202 Direct Loan program in 1990, made by the Cranston-Gonzalez National Affordable Housing Act, replaced this program with capital advance programs for owners of housing designed for the elderly or residents with disabilities, and established two parallel programs for the elderly and for persons with disabilities—the Section 202 Supportive Housing for the Elderly program and the Section 811 Supportive Housing for Persons with Disabilities Program.

7

These two programs, which are rental programs, and which reflect the majority of the legacy of the Section 202 Direct Loan program, are covered by VAWA. Further, all projects that received Section 202 direct loans and receive project-based assistance under Section 8 are required to comply with VAWA protections.

6

See

https://www.hudexchange.info/course-content/hud-multifamily-affordable-housing-preservation-clinics/Preservation-Clinic-Workshop-Section-202-Direct-Loan.pdf

.

7

See Public Law 101-625, 104 Stat. 4079, approved November 28, 1990. See specifically Title VIII at 104 Stat. 4297.

However, as mentioned in the proposed rule, there have been no new Section 202 direct loans since 1990. All Section 202 direct loan projects, as with projects under other HUD programs, that received any type of direct assistance prior to VAWA 2013 are not subject to new statutory requirements on HUD programs unless there is some ongoing contractual agreement with HUD or the statute specifically speaks to retroactive application for existing projects. Therefore, unless the Section

202 direct loan project has an agreement or contract with HUD otherwise, such as with project-based assistance under Section 8, those direct loans entered into prior to 2013 would not be subject to VAWA requirements because VAWA did not specifically apply its requirements retroactively.

Comment: Encourage, if not require, housing providers under additional Federally-financed programs to offer VAWA protections.

Commenters asked HUD to make clear that housing providers in programs not covered by HUD's VAWA regulations can offer VAWA protections, and to encourage these providers to offer VAWA protections. Commenters also urged HUD to ensure that all affordable units with HUD funds are subject to VAWA, including existing units that undergo affordable housing preservation efforts by HUD, such as the Rental Assistance Demonstration (RAD) units, Choice Neighborhood units, and multifamily units in the Rent Supplement Program. Commenters asked that the final rule's description of public housing explicitly include public housing that has been assisted by, for example, HOPE VI, Mixed Finance, Choice Neighborhoods, or converted under the RAD program. Another commenter asked that HUD generally state in its regulations that VAWA applies to affordable units that HUD preserves and, where applicable, that the VAWA obligation be set forth in any relevant Notice of Funding Availability (NOFA). Other commenters further recommended that HUD's regulations reflect HUD's authority to expand VAWA protections to other types of HUD affordable housing that may be established in the future and the agency will do so by HUD or

Federal Register

notice.

A commenter also said that the proposed regulations in 24 CFR 574.604(a)(2) and 578.99(j) are too broad, and where rental assistance is provided and there is a written agreement or a lease, VAWA should apply to short-term supported housing and McKinney-Vento Safe Havens. Another commenter asked for guidance that clearly allows senior housing providers the option to extend VAWA protections to victim residents, even if their program type was not specifically included in the statute.

HUD Response:

HUD's VAWA regulations apply only to HUD-covered housing programs, but, as HUD has earlier stated in this preamble, housing providers have discretion to apply the rule's provisions to all tenants and applicants and HUD indeed encourages housing providers to provide VAWA protections to all tenants not only to those covered in HUD subsidized units. With respect to HUD's authority to expand coverage to other HUD programs not listed in the statute, HUD has such authority and the inclusion of the HTF program in this rule evidences such authority.

Tenants in units under a HUD-covered program maintain their VAWA protections where their units are converted to coverage under a new HUD program. The conversion does not eliminate their VAWA protections. With respect to RAD, tenants in converted units continue to be covered by VAWA's protections provided under HUD's Section 8 Project-Based Voucher program or Project-Based Rental Assistance Program.

Choice Neighborhoods is a development tool that uses grant funds to develop housing to address struggling neighborhoods with distressed public or HUD-assisted housing. The assistance may come from public housing, RAD or HOME funds. Therefore, tenants residing in units developed with Choice funds receive VAWA protections under the relevant rental subsidy programs where assistance comes from a HUD-covered housing program.

The Rent Supplement program provides continued assistance on active or newly expired original term contracts. Though the program is no longer active, families continue to be supported until each Rent Supplement contract expires. For the VAWA protections to apply, tenants need to be residing in a project that receives Rent Supplement payments and is also subject to VAWA, such a section 221(d)(3)/(d)(5) project or section 236 project. Once a Rent Supplement contract expires, families may receive tenant protection vouchers and are then under the Housing Choice Voucher (HCV) program (

i.e.,

the Section 8 tenant-based program), a covered housing program.

Tenants in public housing that received funding under the HOPE VI program would continue to have the same VAWA rights as other public housing residents.

To ensure tenants in mixed-finance projects receive VAWA protections, this final rule adds a new provision at 24 CFR 905.100(g) that provides that PHAs must apply the VAWA protections under part 5 for mixed finance developments.

This rule maintains the provisions in §§ 574.604(a)(2) and 578.99(j) that state the requirements in 24 CFR part 5, subpart L, that are specific to tenants or those who are applying to become tenants (such as the notice of occupancy rights for tenants and applicants, and bifurcation of leases and emergency transfer plans for tenants) do not apply to short-term supported housing and McKinney-Vento Safe Havens, as the regulations for tenants could not be applied in those contexts. However, in response to commenters' concerns, the regulations in this final rule explicitly provide that safe havens and short-term supported housing are subject to the core protections of VAWA (the prohibitions against denying admission or terminating assistance on the basis that the individual is or has been a victim of domestic violence, dating violence, stalking or sexual assault).

Rule Change:

This rule includes a new provision at 24 CFR 905.100(g) for mixed finance developments in 24 CFR part 905, subpart F, which provides that public housing agencies must apply the VAWA protections in 24 CFR part 5, subpart L.

This rule clarifies, in the HOPWA regulations at 24 CFR 574.604(a)(2), and the regulations for the Continuum of Care (CoC) program at 578.99(j), that, although the requirements in 24 CFR part 5, subpart L, do not apply to short-term supported housing or safe havens, no individual may be denied admission to or removed from the short-term supported housing or safe haven on the basis or as a direct result of the fact that the individual is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the individual otherwise qualifies for admission or occupancy.

Comment: The Rural Housing Stability Assistance Program final rule should incorporate VAWA protections and obligations.

Commenters stated that the proposed rule does not provide any amendments to the Rural Housing Stability Assistance Program (RHSP), and commenters urged HUD to ensure that the RHSP final rule comprehensively incorporates VAWA's protections and obligations. Commenters said that the RHSP proposed rule provided an exception for VAWA victims who needed to relocate for safety reasons by allowing victims with tenant-based assistance to move out of the county, but the requirements are inconsistent with VAWA and there is no mention of VAWA in the RHSP rule governing termination of assistance. Commenters asked HUD to make sure that the VAWA obligations and policies of the RHSP program are consistent within HUD's homeless assistance programs, as well as across all programs administered by HUD's Office of Community Planning and Development. Commenters recommended amending 24 CFR 579.418 and 579.424 to include references to VAWA.

HUD Response:

HUD appreciates these comments, and notes that the VAWA Reauthorization Act of 2013 occurred prior to the publication of the RHSP proposed rule. HUD will include the applicable VAWA provisions in the RHSP final rule.

Comment: HUD's rule should cover McKinney-Vento homeless shelters.

Commenters said the proposed rule did not include emergency shelters, as it limits the types of assistance to short or medium-term rental assistance and permanent or transitional housing. Commenters urged HUD to include emergency shelters in the final rule interpreting programs covered under Title IV of the McKinney Vento/Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act, and to include program-specific amendments to Emergency Solutions Grants (ESG) and CoC regulations that clarify that emergency shelter is part of a VAWA covered housing program. A commenter asked HUD specifically to address, in the shelter context, the applicability of VAWA's notice of occupancy rights, and the prohibition against denial of admission or assistance and termination from participation in shelter.

Commenters stated that the plain language of VAWA does not exclude shelters, and said that “applicable assistance,” which cannot be denied or terminated pursuant to VAWA, does not necessarily have to be tied to rental assistance. Commenters said admission and termination policies and practices at homeless shelters can often exclude survivors of domestic violence, dating violence, sexual assault and stalking, and victims report having to recount the violence and report being subject to a higher standard of admission and conditions of stay than other participants, such as producing orders of protection. Commenters said these victims are also denied admission if they are considered “unsafe” for the program, and in family shelters, domestic violence survivors are sometimes terminated from the program along with the perpetrator if they are abused on the property.

Commenters said Continuums of Care often choose homeless shelter programs as the main entry point into coordinated assessment, and if shelters' exclusionary practices continue without VAWA's protections, survivors may be excluded from access not only to emergency shelter, but also to other resources and housing. Commenters said such practices undermine HUD's efforts to end homelessness to exclude shelters from VAWA protection because, in many CoCs, they will be the entry point through which victims experiencing homelessness access tenant-based rental assistance, transitional housing and other HUD-funded homelessness programs.

HUD Response:

HUD agrees with the commenters that the core VAWA nondiscrimination protections should apply to emergency shelters subsidized by HUD, and individuals are not to be denied shelter because they are victims of domestic violence, dating violence, sexual assault, or stalking. In this final rule, HUD adds language to the ESG program regulation to make the VAWA core protections apply to emergency shelter.

However, as HUD stated in its proposed rule, the regulatory requirements in 24 CFR part 5, including the notice of occupancy rights, apply to assistance for rental housing, which generally involves a tenant, a landlord (the individual or entity that owns and/or leases rental units) and a lease specifying the occupancy rights and obligations of the tenant. This is because, as explained elsewhere in this rule, those VAWA protections are directed to rental housing.

Rule Change:

In this final rule, HUD provides in 24 CFR 576.409(f) that for emergency shelters funded under 24 CFR 576.102, no individual or family may be denied admission to or removed from the emergency shelter on the basis or as a direct result of the fact that the individual or family is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the individual or family otherwise qualifies for admission or occupancy.

Comment: Explain how housing providers should coordinate multiple forms of assistance for a single housing unit.

Commenters stated that HUD's proposed rule did not address the ways in which multiple forms of assistance covered by VAWA requirements may be coordinated under the HTF program, in other mixed finance properties or when multiple forms of assistance apply to a given housing unit.

HUD Response:

HUD provides in § 5.2001(b)(2) of this final rule that, when assistance is provided under more than one covered housing program and there is a conflict between VAWA protections or remedies under those programs, the individual seeking the VAWA protections or remedies may choose to use the protections or remedies under any or all of those programs, as long as the protections or remedies would be feasible and permissible under each of the program statutes. As explained later in this preamble, where housing is covered under multiple HUD programs, the responsible housing provider under each program will provide the required Notice of Occupancy Rights and certification form, and tenants may request emergency transfers or lease bifurcations under any applicable program, unless prohibited from doing so because of statutory constraints. For example, if a lease is bifurcated for a permanent supportive housing unit that is assisted under both HOME and the CoC Program, and the CoC Program rule would prohibit the remaining family member from continuing to reside in the unit beyond the existing lease term, because the family member does not have a disability, then the family member cannot depend on the bifurcation regulations for the HOME program to remain in the unit for longer than the existing lease term.

Rule Change:

HUD revises § 5.2001(b)(2) to clarify that, when assistance is provided under more than one covered housing program and there is a conflict between VAWA protections or remedies under those programs, the individual seeking the VAWA protections or remedies may choose to use the protections or remedies under any or all of those programs, as long as the protections or remedies would be feasible and permissible under each of the program statutes.

2. Definitions and Terminology

a. General Terminology

Comment: Clarify that VAWA does not apply solely to women.

A commenter stated that while the name of VAWA cannot be changed, references to VAWA could instead be made to a housing violence policy to encourage more individuals to seek protections.

HUD Response:

HUD appreciates this comment and has repeatedly stated in its rule, documents, and in guidance that VAWA applies regardless of sex, gender identity, or sexual orientation. In the very first paragraph of the first regulatory section (24 CFR 5.2001(a)) HUD states that notwithstanding the title of the statute victims covered by VAWA protections are not limited to women. However, HUD declines to change references to VAWA out of concern that this will cause confusion as to whether HUD's regulations are associated with the statute. It is important that the public are aware that these protections are mandated by statute.

HUD emphasizes in this final rule that victims cannot be discriminated against on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial

status, disability, or age, and HUD programs must also be operated consistently with HUD's Equal Access Rule at 24 CFR 5.105(a)(2), which requires that HUD-assisted and HUD-insured housing are made available to all otherwise eligible individuals and families regardless of actual or perceived sexual orientation, gender identity, or marital status.

Rule Change:

In this final rule, HUD adds a provision in § 5.2001 that states that, consistent with the nondiscrimination and equal opportunity requirements at 24 CFR 5.105(a), victims cannot be discriminated against on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or age, and HUD programs must also be operated consistently with HUD's Equal Access Rule at 24 CFR 5.105(a)(2)

Comment: Use terminology that applies to all VAWA victims.

In order to support housing providers in considering the needs of sexual assault victims, commenters recommended that HUD always list the four protected crimes separately (domestic violence, dating violence, sexual assault and stalking) rather than using umbrella terms like “domestic and sexual violence.” Commenters stated that the self-certification form collectively refers to domestic violence, dating violence, sexual assault, and stalking as “domestic violence,” but they advised that this can cause confusion for a survivor of stalking or sexual assault whose perpetrator may have been a stranger, and to ensure all survivors covered under VAWA protections are aware of their rights, “domestic violence” should not be used as a catch-all term, and each term should be used separately. Commenters further suggested that HUD use terms like “perpetrator” rather than “abuser” to fit a multiple crimes context. Commenters also said that HUD should not solely reference victims fleeing from abuse, but also those recovering from violence in order to better address the nature of trauma from the impact of sexual violence.

HUD Response:

HUD appreciates these comments and agrees with the concerns expressed by the commenters. HUD has revised the certification form, notice of occupancy rights, and model emergency transfer plan to list the four protected crimes separately, and to use the term “perpetrator” in lieu of, or in addition to the term “abuser” when referencing a person who commits one of the VAWA crimes. HUD has also revised the notice of rights and model emergency transfer plan to provide resources for victims of sexual assault and stalking, in addition to resources for victims of domestic violence.

b. Affiliated Individual

Comment: The definition of “affiliated individual” and its use in the proposed rule is not clear.

Commenters said HUD's proposed rule indicated that HUD's replacement of, “immediate family members,” with “affiliated individual” will include any legitimate household member, whether a family member or not. Commenters said the language in the proposed rule appeared to reach beyond that as the proposed rule included “any individual, tenants, or lawful occupants.” Commenters stated that inclusion of “any individual” is separate from “lawful occupant,” further stating that these two classes are not identical. A commenter said that if “any individual” refers to an unauthorized occupant, then the regulations must explain what protections, if any, such individuals may receive if the individual is a victim of a VAWA crime or is an innocent household member in a household where a VAWA crime was committed. The commenter asked, for example, if those who are not tenants or lawful occupants would be afforded a reasonable time to establish eligibility for a covered housing program following a lease bifurcation. Commenters said that if the term “any individual” refers to an unauthorized occupant, the regulation should state that this individual has no rights to the unit. Another commenter said the definition of “any individual” must explicitly exclude guests or illegitimate occupants. Another commenter said the final rule should clarify that an affiliated individual can only be somebody lawfully living in the household. The commenter said that while VAWA protections apply only to lawful tenants, the rule asserts an affiliated individual may receive indirect benefits, but the final rule should clarify VAWA benefits do not apply to unreported or unauthorized members of the household.

HUD Response:

Under VAWA 2013 and HUD's regulations, the term “affiliated individual” does not refer to the tenant who requests or is eligible for VAWA protections. Rather, an affiliated individual refers to a person who has a certain relationship to a tenant who is eligible for VAWA protections and remedies.

Under both VAWA 2013 and HUD's regulations, a tenant may not be denied tenancy or occupancy rights solely on the basis of criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking if that tenant or an affiliated individual of the tenant is the victim or threatened victim of such domestic violence, dating violence, sexual assault or stalking. In essence, the inclusion of affiliated individual is to add a further protection for tenants by providing that a VAWA crime committed against an affiliated individual, an individual without VAWA protections, is not a basis for denying or terminating assistance to the tenant. HUD declines to change or limit the definition of “affiliated individual” to exclude “any individual.” The statute provides that the term includes any individual “living in the household of the person who is eligible for VAWA protections.”

Comment: HUD's language change from “in loco parentis” may not include guardianships of non-competent adults.

Commenters stated that the definition of “affiliated individual” refers repeatedly to relationships with children, but the definition should include all circumstances where a household member has some form of guardianship over a non-competent household member of any age.

HUD Response:

The statutory definition of “affiliated individual” includes any individual living in the household of a person, and therefore a non-competent household member would be included as an affiliated individual. However, the familial and close relationships in the first part of the definition of affiliated individual do not require that the affiliated individual live in the same household as the person seeking VAWA protections. HUD appreciates the commenter's concern that HUD's change from the statutory phrase “in loco parentis” to language regarding a relationship like that of a parent to a child may be under-inclusive. HUD has revised the definition of “affiliated individual” to include a relationship where an individual has a guardianship of another individual, regardless of age.

Rule Change:

HUD revises the definition of “affiliated individual” in § 5.2003 to provide that affiliated individual, with respect to an individual, means: (A) A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands in the place of a parent or guardian (for example, the affiliated individual is a person in the care, custody, or control of that individual); or (B) any individual, tenant, or lawful occupant living in the household of that individual.

c. Covered Housing Provider

Comment: Clarify which covered housing provider has which responsibilities under VAWA.

Commenters stated that in sections of the proposed regulation on HUD's multifamily Section 8 project-based programs in 24 CFR parts 880, 882, 883, 884, 886, and 891, the covered housing provider is defined as either the PHA or the owner, depending on the circumstances; for example, the commenter stated, the definition provides that the PHA would be responsible for providing the notice of occupancy rights and certification form. The commenters questioned this responsibility since PHAs under these programs do not have the contact with applicants or tenants that owners have, and said this is more properly an owner's responsibility, particularly when serving a notice of eviction. A commenter said that HUD should provide copies of the notice and certification form to the owner, and then the owner must provide the notice and form when required.

Commenters also said HUD's proposed rule identifies the PHA as the entity responsible for providing the reasonable time to establish eligibility for assistance following bifurcation of a lease for HUD's multifamily Section 8 project-based programs, but § 5.2009(b) of the rule defines the time that a tenant has to establish eligibility for assistance and does not give a covered housing provider flexibility in that regard. A commenter said that, it is the owner, not the PHA that establishes eligibility, and therefore, it should be the owner, not the PHA, to provide the reasonable time to establish eligibility.

A commenter stated that the definition of “covered housing provider” in 24 CFR parts 880, 882, 884, 886, 891, 982, and 983 was proposed, in the April 1, 2015, proposed rule to be the same as in 24 CFR part 883. The commenter encouraged HUD to review the definition of covered housing provider in the context of how each of the programs is actually administered and reevaluated whether the definition is appropriate. A commenter recommended that any activity that requires an interaction with a tenant should be assigned to the owner or its manager; and a State housing agency should be responsible only for monitoring the delivery of appropriate notices and that correct policies are in place and being followed. The commenter stated that, if model forms for use by an owner are required, the State housing agency, if not HUD, could provide them.

Other commenters stated that, for the Moderate Rehabilitation Single Room Occupancy (SRO) program, the proposed rule stated that the owner is the covered housing provider, but it is unclear why the PHA is not also considered the covered housing provider since the PHA has duties in administering the program. The commenters stated that it is unclear which entity is responsible for adopting, administering, and facilitating the emergency transfer plan, which entity is responsible for maintaining confidentiality and lease bifurcation, and which entity is responsible for providing the VAWA housing rights notice and certification form. Commenters stated that confidentiality must be maintained by the entity that obtains the information about the victim, and when a lease bifurcation occurs, the owner and the PHA must coordinate to provide a reasonable time for the tenant to establish eligibility for the same covered program or another covered program.

Another commenter said that the State recipient should be the conduit and responsible party for implementation. The commenter said that, because CoCs operate distinctly across a State and PHAs have considerable local control, it is important that the implementation of VAWA be consistent and equally applied to survivors, regardless of where they may reside in a State, and the State recipient could serve in an ombudsman-type role in order to ensure that all organizations and individuals understand their roles and obligations. The commenter said State recipients should specifically be tasked with developing model notices, forms, and the emergency transfer plans in collaboration with the statewide domestic violence and sexual assault coalition(s), which then can be adopted and implemented by local CoCs. Commenters recommended that HUD's final rule clarify the duties of housing providers under Emergency Solutions Grants (ESG) and CoC programs with regard to enacting VAWA protections.

Commenters further stated that the proposed rule did not address how the various VAWA obligations will be delegated or shared among the various parties—recipient, subrecipient, owner or landlord—that may be responsible for ensuring the delivery of VAWA obligations and protections, particularly regarding evictions and establishing a reasonable time for an individual to establish eligibility or find alternative housing.

A commenter stated that proposed § 960.102 provides the definition of “covered housing provider” for public housing and states that it is the PHA, but this is not appropriate or effective in those situations where another entity owns the public housing units and the PHA manages the units, for example, in mixed finance units, HOPE VI units, or Choice Neighborhoods developments. For the public housing units that are not owned by the PHA, the commenter said the responsibilities to comply with court orders, request documentation, maintain confidentiality of documentation, determine the appropriateness of lease bifurcation, and reasonable times to provide an individual to establish program eligibility, must apply to both the PHA and the owner. The commenter said the owner, who has the lease with the tenant, must be responsible for providing the notice and certification form, determining whether to evict or terminate for reasons other than those protected by VAWA, or if there is an “actual or imminent threat,” and to assist victims to remain in their unit and bear the cost of transfer, where permissible. In addition, the commenter said the PHA must adopt an emergency transfer plan with which the owner must comply, and owners should be restricted from taking any steps toward evicting or terminating a tenant until the PHA notifies the owner that the documentation from a claimed victim has not been received or conflicting claims of victimization have been resolved.

Commenters recommended that HUD amend §§ 960.102, 960.103(d), 960.203(c)(4), 966.4(e) to acknowledge situations where the public housing units are owned by a private owner and are managed by a PHA. The commenters further recommended that HUD state generally that the entity taking the action (

i.e.

denying admission, evicting, terminating assistance) is the entity responsible for providing the notice and form, and further clarify these roles in the regulation, guidance, and training.

HUD Response:

HUD understands and appreciates the concerns expressed by the commenters. For several of the HUD programs added by VAWA 2013, there is more than one entity administering the assistance, and it is not always immediately obvious which entity is responsible for which actions mandated by VAWA. HUD sought to clarify which entities undertake which responsibilities but given the concerns raised by the commenters, HUD acknowledges further clarification is called for.

For HUD's multifamily Section 8 project-based programs in 24 CFR parts 880, 884, and 886, and for the Section

202 and Section 811 programs in part 891, this final rule provides that the owner is the covered housing provider for all purposes related to this rule. Unless a PHA is the owner of a project, PHAs plays no role under these programs for which they could have responsibilities pertaining to granting VAWA protections, providing notice of VAWA protections, administering emergency transfer plans, or bifurcating leases. Where PHAs are owners of projects under these programs, they will be the covered housing provider for all purposes related to this rule.

For the multifamily Section 8 programs under parts 882 and 883, however, the PHA (which would be a state agency for part 883) administers the programs. Therefore, it is the PHA that has primary oversight responsibilities under VAWA, and it is the PHA that has the contract with the owner of the housing (not HUD) and consequently the PHA must set the housing policy to be followed and must ensure that the owner and all of the owners with whom the PHA has a contract comply with the VAWA regulations and those VAWA policies that the PHA has been given discretion to determine. For these reasons, in these programs HUD maintains the provision in the proposed rule that identifies the PHA as the covered housing provider responsible for providing the notice of occupancy rights under VAWA and the certification form to tenants and applicants. In this final rule, HUD further clarifies that the PHA is responsible for providing the notice and form to owners to give to tenants and applicants. In addition, for parts 882 and 883, including the Moderate Rehabilitation SRO program, HUD further clarifies in this final rule that both the PHA and the owner are responsible for ensuring an emergency transfer plan is in place for the covered housing, but it is the owner that has responsibility for implementing the emergency transfer plan when an emergency arises, since the PHA does not have a direct relationship with the tenant. Since both PHAs and owners are covered housing providers for these programs, both PHAs and owners must adhere to this rule's basic provisions regarding denial or termination of assistance or occupancy rights and the construction of lease terms in § 5.2005(b) and (c), and the limitations of VAWA protection in § 5.2005(d) also apply to both PHAs and owners. Similarly, the documentation and confidentiality provisions in § 5.2007 of this rule also apply to both owners and PHAs.

HUD agrees with commenters that the provisions in the proposed rule that the PHA is responsible for providing the reasonable time to establish eligibility for assistance following bifurcation of a lease in the definition of covered housing provider in parts 880, 882, 883, 884, 886, and 891, as well as in § 982.53(e) and § 983.3, was unclear and unnecessary. HUD removes these provisions in this final rule. In each of these programs, this final rule clarifies that the owner is the covered housing provider that may choose to bifurcate a lease and, if the owner chooses to do so, must follow any applicable regulations relating to lease bifurcation.

For the regulations in part 982 (the housing choice voucher program) and in part 983 (the project-based voucher program), this final rule clarifies that it is the PHA that is the covered housing provider responsible for complying with the emergency transfer plan requirements in § 5.2005(e). Unlike the case with HUD's multifamily Section 8 project-based programs, PHAs do have a direct relationship with tenants in the housing choice voucher and project-based voucher program, and it is appropriate for tenants to contact the PHA about emergency transfers under VAWA, as they would contact the PHA about other matters related to administration of their housing assistance. In addition, given the relationship between the tenant and the PHA in these programs, this rule maintains the provisions in the proposed rule that the PHA is responsible for providing the notice of occupancy rights and the certification form. As is the case for HUD's multifamily Section 8 programs under parts 882 and 883, for the housing choice voucher and project-based voucher programs, both PHAs and owners are covered housing providers who must adhere to this rule's basic provisions regarding denial or termination of assistance or occupancy rights and the construction of lease terms in § 5.2005(b) and (c), and the limitations of VAWA protection in § 5.2005(d) also apply to both PHAs and owners. Similarly, the documentation and confidentiality provisions in § 5.2007 of this rule also apply to both owners and PHAs.

For the CoC and ESG programs, the proposed rule and this final rule lay out the responsibilities of recipients, subrecipients, and housing owners in § 576.407(g) (for ESG) and § 578.99(j) (for CoC).

For mixed finance units and public housing developments that received public housing assistance under the Choice Neighborhoods and HOPE VI programs' NOFAs, the PHA is the covered housing provider because these units are generally administered in the same manner as other public housing units.

For FHA multifamily programs, HUD revises the definition of covered housing provider under this rule in § 200.38(b) to remove the provision that HUD will provide guidance as to who the covered housing provider is. HUD clarifies in this rule that the covered housing provider is generally the mortgagor for FHA multifamily programs covered by VAWA. However, where an existing mortgagor/owner sells the project to a new entity “subject to” the mortgage, in which case the new entity would own the project but not be the mortgagor under the mortgage, then the owner would be the covered housing provider.

Rule Change:

In this final rule, HUD has revised § 200.38(b) to remove the provision that HUD will provide guidance as to who the covered housing provider is for FHA multifamily programs administered under section 236 and under sections 221(d)(3) and (d)(5) of the National Housing Act.

Further, HUD has revised the regulations for HUD's multifamily Section 8 project-based programs in 24 CFR parts 880, 884, and 886 to specify that the owner is the covered housing provider. HUD has also revised the regulations for the Section 202 and Section 811 programs in part 891 to clarify that the owner is the covered housing provider.

HUD has revised the definition of covered housing provider in 24 CFR part 883, as well as the definition of covered housing provider in § 882.102 for Section 8 Moderate Rehabilitation Programs, other than the Single Room Occupancy Program for Homeless Individuals, to clarify that the PHA is the covered housing provider responsible for providing the notice of occupancy rights and certification form under VAWA, and that the PHA may provide this notice and form to owners, and charge an owner with distribution to tenants. HUD also revises the regulations in these parts to eliminate the provision that the PHA is the covered housing provider responsible for providing the reasonable time to establish eligibility for assistance following bifurcation of a lease, and to clarify that the PHA and owner are both responsible for ensuring that an emergency transfer plan is in place, and it is the owner that is responsible for implementing the emergency transfer plan when an emergency occurs. HUD retains the provision in § 882.802 that the owner is the covered housing

provider for the Section 8 Moderate Rehabilitation Single Room Occupancy program for Homeless Individuals.

In addition, HUD has revised regulations for the Housing Choice Voucher program, at § 982.53(e) and the project-based voucher program, at § 983.3, to remove the provision that the PHA is the covered housing provider responsible for providing the reasonable time to establish eligibility for assistance following bifurcation of a lease. HUD also revises the regulations in these parts to clarify that the PHA is responsible for complying with this rule's provisions on emergency transfer plans.

Comment: Clarify responsibility for implementing VAWA requirements when there are multiple housing providers.

Similar to the above comments, commenter asked who the covered entity is if a family uses voucher assistance in otherwise covered rental housing where another entity also may be a covered housing provider. The commenter asked which entity is responsible for providing VAWA protections and implementing VAWA requirements in circumstances such as these. The commenter stated that in essence, it was asking whether each covered housing provider would have to provide notices of occupancy rights and obtain certifications. The commenter stated that the providers may implement different policies concerning, for example, the time a tenant will be given to establish program eligibility, and therefore further clarity in this area is necessary.

Another commenter stated that, if PHAs are collaborating with ESG and CoC program grantees, PHAs would still be subject to the lease requirements currently imposed by HUD with respect to the public housing and Section 8 programs, and if HUD seeks to impose different lease requirements on these programs when overlaid with ESG and CoC programs, HUD will need to provide additional guidance to the PHAs.

HUD Response:

The program-specific regulations in this rule explain which housing provider has responsibility for which VAWA requirements when there are multiple housing providers within a single program. More importantly, however, the notice of occupancy rights to be given to each applicant and tenant identify the covered housing provider that will interact with the tenant.

Where housing is covered under multiple HUD programs, such as under the HOME and Section 8 Project-Based programs, the responsible housing provider under each program will provide the required notice of occupancy rights and certification form, and tenants may request emergency transfers or lease bifurcations under either program. Where there is a conflict between different program regulations, § 5.2001(b)(2) of HUD's VAWA regulation applies. As discussed earlier in this preamble, § 5.2001(b)(2) states that, where assistance is provided under more than one covered housing program and the VAWA protections or remedies under those programs conflict, the individual seeking the VAWA protections or remedies may choose to use the protections or remedies under any or all of those programs, as long as the protections or remedies would be feasible and permissible under each of the program statutes.

d. Domestic Violence

Comment: Do not include a limiting definition of “crimes of violence” in the definition of “domestic violence” and provide a more expansive definition.

Commenters recommended that HUD eliminate the cross-reference to 18 U.S.C. 16 in the proposed rule, as the term “crimes of violence” in 18 U.S.C. 16, is too limiting for VAWA protections. Commenters stated that, recently, the U.S. Supreme Court found in

U.S.

v.

Castleman,

134 S. Ct. 1405 (2014), that “domestic `violence' is not merely a type of violence; it is a term of art encompassing acts that one might not characterize as `violent' in a nondomestic context.” The commenters state that, in

Castleman,

the Supreme Court recognized that under an appropriate definition of “domestic violence,” a seemingly “minor” act, in combination with other acts, whether seriously violent or merely harassing, could result in the complete victimization of an intimate partner, and that appropriate remedies should be available as a result. Some commenters urged HUD to follow the Supreme Court's discussion in

Castleman

and build upon that definition to define “domestic violence” in these regulations as a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or other abusive behavior by a person to harm, threaten, intimidate, harass, coerce, control, isolate, restrain, or monitor a current or former intimate partner.

A commenter stated that the definition of “domestic violence” should not be tied to 18 U.S.C. 16 because that definition excludes a great deal of domestic violence crimes under State and tribal laws, as well as common law definitions of “battery.” The commenter stated that with the proposed rule's definition, there will be a great deal of uncertainty as to whether a particular conviction actually constitutes a crime under 18 U.S.C. 16.

Another commenter said that the matter of domestic violence has specific legal implications in most jurisdictions. The commenter stated that the proposed rule includes felony or misdemeanor crimes of violence in the definition, which implies formal charges filed by a prosecutor. The commenter said that in the locality in which the commenter resides, all cases initially thought to meet the test for domestic violence are further reviewed by prosecutors and are often re-classified to different charges.

HUD Response:

HUD agrees that the definition of “domestic violence” should not include a cross-reference to the definition of “crimes of violence” in 18 U.S.C. 16. On further consideration, HUD agrees that the cross-reference has the consequence of making HUD's definition of “domestic violence” too limiting and could well exclude, as commenters pointed out, domestic violence crimes under tribal, State, or local laws. The term “crimes of violence” is not new to VAWA 2013. The term has been in the definition of “domestic violence” since VAWA was first enacted in 1994, and was in HUD's regulations implementing VAWA 2005, and has not previously referred to 18 U.S.C. 16. Therefore, HUD withdraws its proposal to define crimes of violence in accordance with 18 U.S.C. 16, and implements the definition of domestic violence as it appears in VAWA 2013.

Rule Change:

HUD revises the definition of domestic violence to remove the reference to 18 U.S.C. 16.

Comment: The term intimate partner is too broad as defined in HUD regulations.

Commenters stated that in the revised definition of “domestic violence,” HUD included “intimate partner” as defined in title 18 of U.S.C. Commenters said that definition appears to bestow this status on any person who has ever cohabited or been in a romantic or intimate relationship in perpetuity, and asked HUD to indicate how long a person may have this status.

HUD Response:

HUD's proposed definition of “domestic violence” tracks the statutory definition from VAWA, which, as amended by VAWA 2013, defines “domestic violence” as including the following: Felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the

victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction. VAWA does not limit domestic violence to those acts committed by an individual who is a current spouse or intimate partner of the victim, but rather expressly provides domestic violence is a crime of violence committed by a current or former spouse or intimate partner. As the statute does not place a time restriction on what it means to be a former spouse or intimate partner, HUD declines to do so. However, HUD is removing the proposed cross-reference to 18 U.S.C. 2266 in defining “intimate partner.” The definition of “spouse or intimate partner” in 18 U.S.C. 2266(7) provides that this person includes: (i) A spouse or former spouse of the abuser, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited as a spouse with the abuser; or (ii) a person who is or has been in a social relationship of a romantic or intimate nature with the abuser, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

On further consideration, HUD determined that a cross-reference to 18 U.S.C. 2266(7) may be confusing, as the term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, or others, and 18 U.S.C. 2266(7) defines “intimate partner” as the victim and not the abuser. As a result, the cross reference reads as if domestic violence is a crime of violence committed by the victim, rather than the perpetrator.

Rule Change:

HUD revises its definition of “domestic violence” to remove the cross-reference to 18 U.S.C. 2266. In its place, HUD clarifies that the term “spouse or intimate partner of the victim” includes a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of the relationship, and the frequency of interaction between the persons involved in the relationship.

e. Lawful Occupant and Tenant

Comment: Define “lawful occupant” and “tenant” and clarify how each is affected by the rule.

Commenters asked for HUD to include in its final rule definitions of “lawful occupant” and “tenant.” The commenters said proposed 24 CFR 5.2005(b) discusses termination of the “tenant” or “affiliated individual” and, unlike proposed § 5.2003 that addresses definitions and § 5.2009 that addresses bifurcation of leases, there is no mention of “lawful occupants.” The commenters said the omission of defining “lawful occupant” and “tenant” may cause confusion as to lawful occupants' rights if crimes covered by VAWA occur. The commenters said proposed § 5.2005(d)(2) similarly omits reference to lawful occupant, and § 5.2005 (d)(3) may create confusion because this section permits a covered housing provider to “terminate assistance to or evict a tenant” if that tenant or lawful occupant presents an actual and imminent threat to others.

HUD Response:

The usage of the terms “lawful occupant” and “tenant” in the proposed rule reflect their usage in VAWA 2013. VAWA 2013 does not define these terms, and HUD declines to define them in this final rule. Generally, while the term “lawful occupant” as defined by state law would be applicable in determining whether or not someone would be an affiliated individual, it would not be for lease bifurcations. The term “lawful occupant” for lease bifurcations would be whether or not the person is a lawful occupant (beneficiary or tenant, or recognized member of the household) per the program regulations of the specific HUD program. Therefore, while someone may be a “lawful occupant” under state law, if they are not on the lease or receiving assistance under the HUD program regulations they are not eligible for lease bifurcation.

f. Stalking

Comment: Provide a clearer definition of stalking.

Commenters asked that there be a more detailed definition of “stalking.” The commenters questioned whether the definition applies to all stalking situations, or only when the individual is being stalked by someone with whom the individual was in a `domestic relationship'?

HUD Response:

The definition of “stalking” in this rule is the same definition that is in title I of VAWA. It applies to all situations where an individual, the perpetrator, engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others, or suffer substantial emotional distress. Stalking is not limited to situations where the perpetrator is someone with whom the victim was in any specific type of relationship.

g. Victim

Comment: The definition of “victim” needs further clarity.

Commenters said the definition of “victim” needs further clarification. The commenters said there is some confusion within the industry as to the definition of a “victim”—whether this term is defined as someone who is abused by another individual living at the property, or is abused on the property grounds, and must be known and named by the victim, or, that a tenant can be a victim regardless of whether the abuse was perpetrated by a tenant living on the property, or it was on the property grounds, and that the tenant is not required to know or name the abuser.

HUD Response:

A tenant or an applicant may be a victim of domestic violence, dating violence, sexual assault, or stalking regardless of whether the act was perpetrated by a tenant living on the property, or whether the act occurred on the property grounds, or, in cases of sexual assault or stalking, whether the tenant knows the perpetrator. The rule's definitions of “domestic violence,” “dating violence,” “sexual assault,” and “stalking” should not be read to include any additional restrictions on these acts are, or who qualifies as a victim of such acts beyond what is explicitly stated in the definitions.

3. Emergency Transfers

a. Emergency Transfer Documentation Requirements

Comment: Clearly specify emergency transfer documentation requirements, specifically documentation requirements.

There were many comments on documentation requirements associated with emergency transfer plans, and the comments raised the following issues.

The VAWA statute does not apply documentation requirements to emergency transfers.

Commenters stated that VAWA's documentation requirements do not apply to the emergency transfer provisions and therefore HUD should not apply any documentation requirements to emergency transfers.

Need further rulemaking to impose additional documentation requirements for emergency transfer plans.

Commenters said that if HUD seeks to impose documentation requirements for emergency transfer requests beyond those described in the proposed rule, HUD must do so through additional notice and comment rulemaking. Other commenters said documentation requirements for emergency transfers should be the same as the rule's other

documentation requirements and not exceed those requirements. Commenters said requiring additional documentation requirements will expose victims and housing providers to inconsistency and confusion.

Prohibit housing providers from requiring documentation for emergency transfers beyond requirements established by HUD.

Other commenters said HUD must establish the documentation requirements for transfers across all HUD-covered housing programs and not permit covered housing providers to establish documentation requirements separate from those mandated in HUD's rule. Commenters said HUD must continue to prohibit covered housing programs from requiring a victim to submit third-party proof, as this documentation cannot always be easily secured, and eligibility should be determined by whether a person in the victim's shoes would reasonably believe he or she is threatened with imminent harm from further violence.

Do not assume victims requesting emergency transfers were previously determined to be VAWA victims.

Another commenter said the preamble to the proposed rule unfairly assumed that persons seeking emergency transfers have already been determined to be victims covered by VAWA's protections. The commenter said that in many cases, the first indication that a tenant is a victim of violence may be the request for an emergency transfer.

Requiring documentation in order to determine if an emergency transfer is appropriate.

Some commenters said that HUD should require documentation before a landlord makes a decision about emergency transfers. Commenters said documentation should be required prior to transfer to ensure the appropriate use of resources and to ensure that tenants qualify, considering that transfers are costly and families must wait while transfers are processed for others. Other commenters said it is unclear what would happen after a transfer if the tenant did not provide sufficient documentation of the need for an emergency transfer. Another commenter expressed its support for requiring a tenant seeking a transfer to provide some form of documentation, provided the documentation is not so complex and burdensome as to deter a pro-se victim from seeking assistance. A commenter stated that, because victims have the option of signing a self-certification form, which can be done in minutes, requiring documentation prior to transfer should not cause any delay in obtaining an emergency transfer. A commenter said that third-party documentation prior to an emergency transfer is necessary unless the situation of violence is observable by a responsible entity. Commenter recommended that the specific type of third-party documentation required for an emergency transfer should be established through local and regional policy. Commenter also said that, for homeless assistance programs, documentation is vital when transferring a tenant because victims may need to be relocated to another safe place that may require documentation for when this person first became homeless in order to qualify.

A delay in emergency transfer until certain documentation is received jeopardizes the safety of the victim.

Commenters said victims needing the protections of VAWA should not be required to submit documentation before a transfer. A commenter stated that the emergency transfer plan already requires the tenant to submit a written request for a transfer, and documentation beyond this requirement may be difficult to access and is vulnerable to being obtained or destroyed by the perpetrator. Commenters said that gathering the requested documentation, particularly when violence is imminent, can unduly delay the transfer process and further endanger the victim.

Allow post-transfer documentation.

Other commenters asked that a tenant requesting a transfer be permitted to submit documentation at least 14 days after the transfer has been completed, so that the provider's focus is on expeditiously completing the transfer.

Require documentation beyond self-certification.

Commenters stated that victims should provide documentation other than self-certification when seeking an emergency transfer. Commenters stated that documentation could include police reports, court orders, incident reports, notarized witness statements, verification from a domestic violence shelter, 911 calls, or a statement from a service provider. Some commenters stated that official government documentation should be required, while others said the documentation could be a written or oral statement from a witness.

A commenter stated that third-party documentation may help to eliminate transfer of the same situation to a new location, and that this documentation is necessary for the housing provider to document the case in detail. The commenters said that documentation other than self-certification is necessary to verify the need for an emergency transfer, as the form's provisions regarding penalties for fraud would be difficult to enforce, and some victims may attempt to use an incident of domestic violence to obtain a superior housing unit or break their current lease, even if this is unrelated to a VAWA incident. A commenter pointed to a State law allowing a tenant who is the victim of domestic violence to legally break a lease, but only with some type of third-party documentation. Commenters said requiring additional documentation is logical because housing providers will take a monetary and temporal loss for transfers. Other commenters stated that statements from legal, medical, psychological or social service providers stating their belief that a transfer will have a strong probability of reducing a recurrence of the violence should be required for emergency transfers. Another commenter stated that landlords should request a detailed statement from the victim, and then interview the victims after the transfer and obtain a written statement from regarding whether the violence stopped or the transfer benefited the resident.

Allow the housing provider to determine when and what type of documentation may be needed for emergency transfers.

Commenters said that HUD should allow housing providers to determine whether documentation is necessary for emergency transfers and what documentation may be necessary. A commenter stated that many PHAs have very high occupancy rates and relocation should be reserved for individuals with the highest level of need. A commenter said that allowing somebody to submit a self-certifying form with no supporting documentation could leave PHAs susceptible to fraud. The commenter said documentation serves to protect both the housing provider and the program participants by ensuring that there are standards that guide these decisions, and HUD should allow housing providers to determine what supporting information would be sufficient. The commenter said that rather than HUD establishing documentation standards for emergency transfers that HUD allow the housing providers to use their discretion to make determinations on a case-by-case basis because the circumstances that can lead a tenant to request an emergency transfer under VAWA are highly personal and individual.

HUD Response:

HUD appreciates all of the comments received on whether and how to document emergency transfer requests. HUD has considered all of these comments and has included in this final rule specific provisions on emergency transfer documentation. HUD understands that housing

providers may incur costs when transferring tenants and that other families may need available units. Therefore, for the reasons further described below, this final rule allows housing providers, at their discretion, to require that tenants requesting transfers submit a written request before a transfer occurs certifying that they meet the criteria for an emergency transfer under this rule. To minimize burden, HUD has created a model emergency transfer request. Housing providers may accept third-party documentation if that documentation is offered by tenants, but housing providers will not be allowed to require any third-party documentation in order to determine whether a tenant seeking an emergency transfer is eligible for an emergency transfer.

HUD understands that tenants seeking emergency transfers may not have already submitted to their housing provider documentation of any occurrence of domestic violence, dating violence, sexual assault, or stalking, and HUD did not intend to indicate that there is an assumption that a tenant seeking an emergency transfer has already been previously determined to be a victim of domestic violence, dating violence, sexual assault, or stalking. HUD clarifies in this final rule that housing providers may require tenants seeking emergency transfers to document an occurrence of domestic violence, dating violence, sexual assault, or stalking, in addition to documenting eligibility for an emergency transfer, consistent with the HUD requirement that individuals certify eligibility in order to establish that the tenant is a victim of domestic violence, dating violence, sexual assault, or stalking, if the individual has not already provided documentation of that occurrence. HUD notes as part of certifying eligibility for VAWA protections an individual may provide self-certification in lieu of any other documentation to document an occurrence of a VAWA-protected incident. Because self-certification can be submitted fairly quickly, submission of a self-certification should not delay any requests for an emergency transfer.

In addition to documentation—which could be self-certification—of the occurrence of domestic violence, dating violence, sexual assault, or stalking, the final rule allows housing providers to require that tenants seeking emergency transfers provide documentation—which could be a written request—that they meet the requirements for a transfer. HUD is allowing housing providers to request this additional documentation because an individual may be a victim of violence covered by VAWA, and yet not meet the requirements for an emergency transfer that are specified in VAWA 2013. Those requirements are that the individual expressly request the transfer and either reasonably believe there is a threat of imminent harm from further violence if the tenant remains in the same dwelling unit that the tenant is currently occupying or, in the case of a tenant who is a victim of sexual assault, the tenant also qualifies for a transfer if the assault occurred on the premises during the 90-calendar-day period preceding the date of request for the transfer.

HUD appreciates commenters' concerns that third-party proof cannot always be easily obtained, that it may not be available to some tenants who qualify for emergency transfers, and the requirement to obtain third-party documentation could delay transfers, resulting in harm to tenants. It is for these reasons that the final rule stipulates that housing providers may not require third-party documentation for an emergency transfer.

As noted above, housing providers may, however, require that tenants submit a written request for an emergency transfer where they certify their need for a transfer. This is a change from the proposed rule. Although the proposed model emergency transfer plan stated that tenants should submit a written request for a transfer, the proposed rule did provide that housing providers may require this request. HUD disagrees with commenter's interpretation of VAWA 2013 that because the statute does not discuss documentation requirements for emergency transfers, HUD may not allow housing providers to require that tenants submit any documentation whatsoever.

HUD also does not agree with some of the arguments that commenters presented in favor of requiring third-party documentation for an emergency transfer. HUD does not believe that a failure to require third-party documentation would result in negating the benefits of a transfer, and leave the tenant in an endangered situation. Rather, strict confidentiality measures to prevent a perpetrator from learning the new location of the transferred tenant would help to reduce the possibility of future violence.

HUD understands that some housing providers expressed concern that there may be tenants who request an emergency transfer for the purpose of obtaining a superior housing unit or to break their current lease. This situation may occur but, for the following reasons, HUD does not agree that this justifies a third-party documentation requirement that could endanger the lives of those tenants who are victims of VAWA crimes and for whom safety and security is a real threat.

First, third-party documentation of a VAWA-protected incident would not necessarily help a housing provider determine whether a victim reasonably believes that the victim is in imminent harm from further violence without a transfer. Second, the housing provider may request that the tenant sign a written request for the transfer that states that the information in the request is accurate, and that submission of false information could jeopardize program eligibility and be the basis for denial of admission, termination of assistance, or eviction. HUD further disagrees with commenters who suggested that landlords should request a detailed statement from, and interview, victims. There are housing providers who may have experience working with victims of domestic violence, dating violence, sexual assault, or stalking, but there are also housing providers who do not. Regardless, under this rule, housing providers will not judge the merits of the claims of victims of domestic violence, dating violence, sexual assault, or stalking. HUD understands that the documentation of homelessness may be important when transferring a tenant, but this does not require third-party documentation of the need for a transfer due to domestic violence, dating violence, sexual assault, or stalking.

HUD agrees with those commenters who said that providers should be permitted to use their discretion to determine whether documentation is needed, and housing providers will not be required to request documentation from those seeking an emergency transfer due to an incident of domestic violence, dating violence, sexual assault, or stalking, just as housing providers are not required to request documentation of the VAWA-related incidence. However, as previously discussed, under this final rule, housing providers will not be allowed to require that tenants requesting an emergency transfer under VAWA submit third-party documentation to qualify for an emergency transfer. HUD understands that many PHAs have high occupancy rates, but notes that transfers are only required where there is a safe and available unit to transfer the tenant to, and, where there is a transfer, the unit from which the tenant is transferring will become available. Further, allowing housing providers to decide for themselves what documentation is sufficient for an emergency transfer could leave them more legally

vulnerable than they would be under this rule, which clearly requires covered housing providers to accept self-certification, if they require documentation.

Rule Change:

This final rule revises § 5.2005(e) to specify that housing providers may, at their discretion, require tenants seeking emergency transfers to submit written requests expressly requesting the emergency transfer, in which the tenants must certify that they meet the requirements for an emergency transfer. This written request is different from any self-certification or documentation that an individual may have given, or the housing provider may ask for, to document the occurrence of domestic violence, dating violence, sexual assault, or stalking in accordance with § 5.2007. HUD has developed a model emergency transfer request that housing providers may give to tenants who ask for an emergency transfer.

This final rule also revises § 5.2007(a)(1) to remove the provision that the documentation requirements in the section are not applicable to a request made by the tenant for an emergency transfer. This provision was removed because housing providers may require tenants seeking emergency transfers to document an occurrence of domestic violence, dating violence, sexual assault, or stalking, if they have not done so already, in addition to documenting eligibility for an emergency transfer.

Comment: Housing providers that create a preference for VAWA transfers should be permitted to establish their own criteria for verification for a transfer.

Commenters said that if a PHA establishes a preference for housing VAWA victims, the PHA should be permitted to establish criteria for the verification of domestic violence for purposes of honoring the preference. A commenter said many PHAs may already give a priority to victims of domestic violence who need to relocate from public housing through assistance from the HCV program and for those PHAs the documentation requirements to implement the transfer are already set forth in their Section 8 Administrative Plan. Commenters suggested that PHAs be allowed to continue to utilize the verification requirements as set forth within their Section 8 Administrative Plans

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for preferences for victims of domestic violence necessitating said transfer.

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The requirements for the Section 8 Administrative Plan are found in 24 CFR 982.54.

HUD Response:

HUD understands the concerns raised by the commenters in not altering requirements that are already in place for PHAs that give preference in housing to victims of domestic violence. However, providing preferences in housing to certain groups, and PHAs have authority to establish such preferences, is not the same as complying with the emergency transfer provisions of VAWA 2013. Providing preferences to certain groups may help meet emergency housing needs of these groups but do not constitute a need for an emergency transfer as is contemplated by VAWA 2013.

As previously discussed, under this final rule, covered housing providers may require in their emergency transfer plans that victims of domestic violence, dating violence, sexual assault, or stalking submit a written request to their housing provider, where the tenants certify that they meet the requirements for an emergency transfer, in addition to any self-certification or other documentation of an occurrence of domestic violence, dating violence, sexual assault or stalking. This means that if the tenant provides these self-certifications, and the covered housing provider has another safe and available unit for which the victim qualifies, the housing provider must allow the tenant to transfer. If the covered housing provider has a VAWA emergency transfer waiting list, the only documentation that a housing provider could require the tenant to submit in order to be placed on the waiting list is a written emergency transfer request, where the tenant certifies to meeting the requirements for an emergency transfer under VAWA, in addition to any self-certification or other documentation of an occurrence of domestic violence, dating violence, sexual assault or stalking, as described in § 5.2005(e)(6).

Comment: Owners and agents should maintain documentation of an emergency transfer.

Commenters said owners and agents should have to maintain documentation of emergency transfers to provide records for the covered housing provider as to why a move was necessary.

HUD Response:

HUD agrees that covered housing providers should maintain documentation of emergency transfer requests and the outcomes of such requests, and HUD believes that, in order to ensure compliance with the emergency transfer provisions of this rule, covered housing providers should have to report this information to HUD in the aggregate. Accordingly, in this final rule, HUD adds to the regulations governing emergency transfer plans that covered housing providers must keep a record of all emergency transfers requested, and the outcomes of such requests, and retain these records for a period of three years, or for the period of time specified in program regulations, and report them to HUD annually. HUD understands that this may entail additional costs for covered housing providers, and HUD will solicit comment on this provision through separate notice before covered housing providers must comply with this provision.

Rule Change:

This final rule revises 24 CFR 5.2005 to state that the covered housing provider must keep a record of all emergency transfers requested under its emergency transfer plan, and the outcomes of such requests, and retain these records for a period of three years, or for a period of time as specified in program regulations. HUD's proposed changes aligns to the record retention periods of each covered programs to the extent possible. The rule also provides that requests and outcomes of such requests must be reported to HUD annually. Further, this rule revises the following program regulations to include documentation and reporting of VAWA emergency transfer requests and outcomes: 24 CFR 91.520, which details performance report requirements for HOME participating jurisdictions and jurisdictions receiving funding under the HOPWA, ESG, and HTF programs; HOME program regulations at 24 CFR 92.508 (Recordkeeping); HTF program regulations at 24 CFR 93.407 (Recordkeeping); HOPWA regulations at 24 CFR 574.520 (Performance reports) and 24 CFR 574.530 (Recordkeeping); ESG regulations at 24 CFR 576.500 (Recordkeeping and reporting requirements); CoC regulations at 24 CFR 578.103 (Recordkeeping requirements); and Multifamily program regulations at 24 CFR 882.407 (Other Federal requirements) and § 882.804 (Other Federal requirements). The rule also includes in newly added regulations for Multifamily programs in 24 CFR 880.613, 884.226, 886.139, 886.339, and 891.190 (Emergency transfer for victims of domestic violence, dating violence sexual assault, and stalking) reporting requirements for emergency transfers requested under VAWA. All public housing agencies will be required to comply with the general reporting and recordkeeping requirements in 24 CFR 5.2005(e).

Comment: Updated documentation of need for emergency transfer may be necessary.

Commenters stated that updated documentation for an emergency transfer may be necessary in cases where a period of time has passed between the date a family submitted domestic violence verification and the

date they ask for an emergency transfer. Commenters provided an example in which a family was admitted to a program based on a Federal preference for domestic violence in 1995, and in 2015 the family requests an emergency transfer under VAWA. The commenters said that it would be reasonable for the housing provider to request updated documentation in such a case.

HUD Response:

In order to qualify for an emergency transfer under VAWA 2013, a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking must reasonably believe there is a threat of imminent harm from further violence. It does not matter when an initial act occurred if the current belief of a threat of imminent harm is reasonable, or, in cases of sexual assault, the assault occurred on the premises during the 90-calendar-day period preceding the transfer request. Housing providers may require that tenants who request emergency transfers under VAWA submit a written transfer request where the tenant certifies that he or she believes there is a threat of imminent harm from further violence, or that he or she was a victim of a sexual assault that occurred on the premises during the 90-calendar-day period preceding the transfer request.

b. Emergency Transfer Costs

Comment: Transfers have costs.

Commenters stated that emergency transfers could be costly and time-consuming for housing providers and could include costs related to utilities, packing and moving, damage repairs, painting, cleaning, inspections, lease execution and explanation and assuring housing eligibility. A commenter stated that ordinary turnover costs for the landlord, with no renovation, may include new carpet, new paint, cleaning fees, damage remediation, time involved by a project's service team, and time involved by a leasing team. The commenter further stated that rehabilitating a unit is costly, but that in all cases paperwork is minimal—a new lease and a new certification. The commenter stated that, overall, the work and cost to transfer a resident is minimal, though it is not recoverable, and asked if HUD could provide some reimbursement when an emergency transfer arises.

Other commenters said costs can be substantial. A commenter said costs also include criminal background and drug tests. Another commenter said it currently employs an entire team dedicated to processing emergency transfers for public housing tenants and HCV participants and, in addition to these personnel costs, the commenter said that it spends approximately $14,000 on preparing each public housing unit for a new occupant, and $200 in administrative costs for each HCV emergency transfer. Commenter said that if the perpetrator is not removed from the apartment before transferring the victim, subsidizing the perpetrator in one apartment and the victim in a second apartment could occur, thereby greatly increasing the transfer costs.

A commenter said that an informal poll of its PHA members finds that unit transfers cost between $500 and $5500, depending on the amount of work that needs to be undertaken upon turnover. The commenter explained that an estimate of $3000-$4000 would include painting, carpet or tile replacement, cleaning costs, lock changes, possible appliance replacement or repair, and shade replacement, and an additional $500 should be added for each additional bedroom.

Another commenter estimated that relocation of a public housing tenant through HCV assistance costs between 5 and 17 staff hours and $50 to $100 in subcontractor fees for inspections. The commenter said that, at best, relocation through the HCV program involves staff time spent issuing a voucher, reviewing the “Request for Tenancy Approval,” inspection and rent reasonableness determination of a new unit, preparation of a new lease and housing assistance payments contract (HAP), and recertification of the family. The commenter added that costs may increase for a PHA due to additional inspections, since an initially chosen unit may not be affordable or appropriate, and the processing of multiple Requests for Tenancy Approval forms. The commenter further stated that, if the perpetrator is a member of the assisted household, the PHA may also be undergoing the process of terminating the perpetrator's individual assistance, which could result in hearing costs and potential legal fees.

A commenter said public housing costs include moving costs and damage caused by the tenant beyond normal wear and tear, an average turnaround time of 8 days during which time the unit is not occupied while it is being made ready for the next family, and an average cost in parts and labor of $215 plus an additional $200 for cleaning. For the HCV program, the commenter said moving costs and damage caused by the tenant and any additional costs to make the unit ready for the next occupant is born by the landlord. The commenter said that HCV staff spend about 8 hours processing moves, and the total cost of their time and the resources expended is about $200.

Another commenter said that if there are damages beyond normal wear and tear, and if the participant fails to pay those costs, landlords must not only incur these costs but face the costs of pursuing collection. This commenter said lost rent on each unit while it is vacant could amount to 60 or 90 days, which could result in the loss of Operating Fund eligibility in the subsequent year for public housing, and in the voucher program, costs include the loss of renewal funding in subsequent years for lost unit months leased (UMLs) and lost fees.

A commenter said that in the past 5 years it has spent over $339,000 on 118 emergency transfers for temporary hotel accommodations as well as moving expenses. Commenter said it has been experiencing a steady annual increase in the number of emergency transfer requests in general and in VAWA specifically.

HUD Response:

HUD appreciates the information on costs provided by the commenters. HUD understands that housing providers face administrative and unit turnover costs for transfers, and where there is an increase in transfers, regardless of the reason, the costs to housing providers may rise. HUD recognizes that VAWA's provision for emergency transfers may result in an increase in transfer costs. HUD notes, however, that transfers may not be a unique occurrence for PHAs and owners and management agents, but a part of administering public and assisted housing. Further, PHAs can utilize the limited vacancy provision of 24 CFR 990.150 that allows operating subsidy to be paid for a limited number of vacant units under an annual contributions contract (ACC).

Comment: Housing providers should not be required to pay for transfers.

Commenters stated that the rule should make clear that housing providers are not required to pay for transfers and either HUD or tenants should be required to pay for, or provide reimbursement for, costs. A commenter said housing providers should not be responsible for costs since this is not a reasonable accommodation covered under section 504 of the Rehabilitation Act of 1973 (Section 504). Another commenter said that a PHA would bear the cost of all paperwork and issuing vouchers and inspecting units, but other costs associated with moving into a new unit, such as application fees to owners, deposits, and moving costs, should not be allowed as they are above the statutory requirements of the HCV program. Another commenter said that

covering expenses such as utility deposits and moving costs would be devastating to small PHAs.

A commenter said that if the tenant and management agree that the tenant cannot afford transfer costs, services representatives can seek assistance from local resources, or, management could put forth the costs and allow the tenant to repay them under a payment plan. A commenter said departing residents paying costs under a repayment plan is consistent with HUD's policy with respect to other resident-initiated transfers as set forth in the Public Housing Occupancy Guidebook.

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Another commenter said it is not aware of a situation where the housing provider would pay transfer costs, but suggested it would be beneficial to tenants to be given an extended period of time to pay off fees. A commenter suggested that, in the case of emergency transfers, any damage to the unit or unpaid rent should still be the responsibility of the departing resident, but, any financial penalties for breaking a lease could be waived by the owner based upon a confirmed instance of domestic violence, stalking or sexual assault.

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See

http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/ph/rhiip/phguidebook.

Commenters suggested that HUD establish a special fee to ensure that PHAs are able to withstand the financial implications of transfers under VAWA. Others commenters said moving costs should be considered to be permissible program expenses. Commenters said HUD should reimburse covered housing providers for costs associated with these transfers and such requirement should be provided for in the rule and could be established in a PIH notice.

HUD Response:

For HUD programs that have existing guidance related to paying costs of transfers, housing providers should follow that guidance and may follow any existing transfer policies and procedures they have, including those for repayment plans. Under this final rule, housing providers will not be required to bear moving costs that tenants and their household members generally pay, including application fees and deposits, in addition to costs to physically move households and their belongings.

In response to commenters who stated housing providers should not be responsible for costs since this is not a reasonable accommodation covered under Section 504, the issue of whether housing providers must pay for emergency transfers is a separate issue from reasonable accommodation requests under Section 504. Section 504 pertains to providing and paying for structural modifications that may be necessary as a reasonable accommodation for individuals with disabilities.

Comment: A specific process is needed for ESG or CoC funds to be used pay for damages caused by early lease termination.

Commenters expressed support that the rule allows the use of ESG and CoC funds to pay for damages resulting from early lease terminations if the tenant meets the emergency transfer requirements under VAWA, but they expressed concern that this will deplete limited funds for homeless families. Commenters further expressed concern that owners or landlords might turn to these funds before attempting to mitigate damages caused by the lease terminations. Commenters recommended that HUD develop a process for housing providers to apply for these funds where they must document the hardship, explain why the funds are needed, and report efforts to mitigate damages.

HUD Response:

In this rule HUD does not intend to restrict currently available resources that could fund emergency transfers. As a result, HUD maintains that paying for damages is an eligible cost of ESG and CoC funds, and declines to develop the process that the commenter suggested.

Comment: Housing providers should pay transfer costs.

A commenter applauded HUD for including a provision that encourages covered housing providers to bear emergency transfer costs. The commenter said only about half the States have protections for victims who terminate their leases to escape from violence and recommended that HUD require that covered housing providers not penalize victims who exercise their transfer rights. The commenter suggested that covered housing providers be responsible for covering the costs of emergency transfers, such as moving costs, which are often prohibitive for survivor tenants. The commenter stated that, under the Philadelphia Housing Authority lease agreement, the housing authority agrees to pay for reasonable costs related to mandatory transfers and reasonable accommodation transfers.

HUD Response:

HUD understands that moving costs may be prohibitive for some victims of domestic violence, dating violence, sexual assault, or stalking, and encourages housing providers to bear these costs where possible, or to work with victims to identify possibilities for funding transfers. Local victim service providers may be able to provide help with funding transfers. As discussed earlier in this preamble, the U.S. Department of Justice (DOJ) administers programs that provide funding for victims covered by VAWA, and the Victims Crime Fund could be used to pay for relocation expenses of these victims, or to provide other sources of support, which could free up funding to pay for moving costs.

As noted in the proposed rule, HUD's CoC regulations, in addition to containing regulations that provide for a victim of domestic violence, dating violence, sexual assault, or stalking to retain their tenant-based rental assistance and move to a different CoC geographic area, include reasonable one-time moving costs as eligible supportive services cost. (See 24 CFR 578.53(e)(2).) In addition, under this rule's HOME regulations at § 92.359 (e), HOPWA regulations at § 574.604(f), and CoC regulations at § 578.99(j), leases and occupancy agreements must include a provision that tenants may terminate their leases without penalty if they meet the conditions for an emergency transfer under this rule.

c. Model Transfer Requests

Comment: HUD should issue a model emergency transfer request.

Commenters recommended that HUD create a model emergency transfer request, and that issuance of such a model would help facilitate the transfer. Another commenter said that issuance of such a model would help ensure consistency across HUD-covered programs. A commenter stated a model transfer request is important since a less experienced landlord may doubt a victim's claims. Another commenter said a model transfer request would be beneficial to housing providers as it would provide specific guidance for them on what a request should contain, and would enable them to quickly identify the type of transfer being requested, with the hope that a transfer of this nature would be prioritized over other types of requests.

Commenters said HUD should prepare a model emergency transfer request that includes the following information: The eligibility criteria for requesting the emergency transfer, the definition of a “safe and available” unit, a checklist for the required documentation the victim must provide to support the need for such a transfer, including a statement that the tenant reasonably believes he or she is imminently threatened by harm and documentation of the violence and the basis for that belief, and any conditions the tenant must meet to continue to receive VAWA protections, such as not inviting/allowing the perpetrator into

the new unit or not revealing the location of the new unit to the perpetrator. Another commenter stated that the model should specify the location to be transferred, time of transfer, and other pertinent information for the emergency transfer.

Another commenter said the model request should allow the survivor to assert either an imminent threat of violence or a sexual assault that occurred on the premises within the last 90 days and should reflect the date on which the survivor submitted the request to transfer. Commenter said additional recommendations for inclusion in the model included: Establishment of a grievance plan when transfers are denied, or are granted but unsafe; a provision that survivors incur no costs other than their own expenses to move; a provision that transfer requests be considered mandatory; and a requirement that covered housing programs not penalize survivors who meet the emergency transfer requirements for exercising their rights. A commenter said a model request should include name of the perpetrator, if known, name of the victim(s), names of the family members who would be transferring with the victim, a brief description of why the victim would fear imminent harm or personal threat if made to remain in the unit, and/or self-identification as a sexual assault survivor.

HUD Response:

HUD appreciates these comments and has created a model emergency transfer request that housing providers may use if they choose to require that tenants requesting emergency transfers submit documentation. The model emergency transfer request includes the requirements that victims of domestic violence, dating violence, sexual assault, and stalking must meet to qualify for an emergency transfer under VAWA; information about other types of documentation that those requesting a transfer may submit if the victim has such documentation and it is safe to provide; information on maintaining confidentiality of information the victim submits to the housing provider; and it requests information from victims about their households, the accused perpetrators if this is known and can be safely disclosed, and about why the victims qualify for an emergency transfer under VAWA. The model emergency transfer request also notes that submission of false information could jeopardize program eligibility and could be the basis for denial of admission, termination of assistance, or eviction, and has a line for the person filling out the form to sign and date it. The model emergency transfer request does not include details about a housing provider's emergency transfer policy because it is incumbent on the housing provider to provide such information in its emergency transfer plan.

Comment: A model emergency transfer request should not be mandatory.

Commenters said a model transfer request form would be helpful but should not be mandatory. Commenters said this could lessen the burden on housing providers and ensure providers are using a standard product that satisfies the rule's requirements, but housing providers should be free to develop and use their own forms if they so desire, which could be tailored to the individual requirements of the covered housing provider, and any model request should be optional.

HUD Response:

The model transfer request form is only a model form and housing providers are not required to use it.

Comment: Any model request should include certain aspects and should be considered documentation.

Some commenters suggested that if HUD develops a model emergency transfer request form, any description of the need for a transfer by a tenant must be brief and in the tenant's own words, and have a date the request was made and the date it was granted or denied, and a description of where the tenant believes she or he will be safe or unsafe to move. Additionally, co

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