Proposed Rule2022-28073
The Violence Against Women Act Reauthorization Act of 2022: Overview of Applicability to HUD Programs
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Published
January 4, 2023
Issuing agencies
Housing and Urban Development Department
Abstract
This document highlights the key changes made by the recently enacted Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022) to the Violence Against Women Act of 1994, as amended, provides an overview of key provisions applicable to HUD programs, and explains HUD's plans to issue rules or guidance to implement VAWA 2022. In addition, this document seeks comment from HUD housing providers, grantees, and other interested members of the public on this document generally and on certain issues discussed in more detail below. Comments received in response to this solicitation will aid HUD in developing additional regulations and guidance.
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<title>Federal Register, Volume 88 Issue 2 (Wednesday, January 4, 2023)</title>
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[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Proposed Rules]
[Pages 321-328]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28073]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 /
Proposed Rules
[[Page 321]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 5
[Docket No. FR-6330-N-01]
The Violence Against Women Act Reauthorization Act of 2022:
Overview of Applicability to HUD Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Initial implementation guidance; request for comment.
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SUMMARY: This document highlights the key changes made by the recently
enacted Violence Against Women Act Reauthorization Act of 2022 (VAWA
2022) to the Violence Against Women Act of 1994, as amended, provides
an overview of key provisions applicable to HUD programs, and explains
HUD's plans to issue rules or guidance to implement VAWA 2022. In
addition, this document seeks comment from HUD housing providers,
grantees, and other interested members of the public on this document
generally and on certain issues discussed in more detail below.
Comments received in response to this solicitation will aid HUD in
developing additional regulations and guidance.
DATES: Comment Due Date: March 6, 2023.
ADDRESSES: Interested persons are invited to submit comments regarding
this document to the Regulations Division, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street SW, Room
10276, Washington, DC 20410-0500. Communications must refer to the
above docket number and title. There are two methods for submitting
public comments. All submissions must refer to the docket number and
title above.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
document.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Public Comments. HUD will make all properly
submitted comments and communications available for public inspection
and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Due to security measures at the HUD Headquarters building, you must
schedule an appointment in advance to review the public comments by
calling the Regulations Division at 202-708-3055. (This is not a toll-
free number.) HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech and communication disabilities. To learn more about how to
make an accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. Copies of all
comments submitted are available for inspection and downloading at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For more information about this
document, please contact Karlo Ng, Director on Gender-Based Violence
Prevention and Equity, Department of Housing and Urban Development, 451
Seventh Street SW, Room 10232, Washington, DC 20410, telephone number
202-402-7642. (This is not a toll-free number.) HUD welcomes and is
prepared to receive calls from individuals who are deaf or hard of
hearing, as well as individuals with speech and communication
disabilities. To learn more about how to make an accessible telephone
call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 15, 2022, the President signed into law the Consolidated
Appropriations Act of 2022 (Pub. L. 117-103, 136 Stat. 49), which
included the Violence Against Women Act Reauthorization Act of 2022
(VAWA 2022). VAWA 2022 reauthorizes, amends, and strengthens the
Violence Against Women Act of 1994, as amended (VAWA) (Pub. L. 103-322,
tit. IV, sec. 40001-40703; 42 U.S.C. 13925 et seq.). The provisions of
VAWA 2022 that are applicable to HUD programs are found in title VI of
Division W of the Consolidated Appropriations Act of 2022, which is
entitled ``Safe Homes for Victims.'' Section 2 of VAWA 2022 provides
revised definitions for the statute.
As provided by section 4 of VAWA 2022, all but one of the HUD-
related amendments made by VAWA 2022 took effect on October 1, 2022.
The one exception is section 606, which took effect upon enactment of
VAWA 2022 and requires HUD to study and report on housing and service
needs of survivors of human trafficking and individuals at risk for
trafficking. VAWA 2022 did not amend the majority of authorizing
statutes for HUD's programs that are covered by VAWA.\1\ Additionally,
VAWA 2022 requires each appropriate agency to conduct notice-and-
comment rulemaking for some purposes. HUD will conduct rulemaking to
give full force and effect to some of the law's new protections for
survivors. However, as this document further explains, there is enough
clarity in several of the new provisions to render their requirements
enforceable without further elaboration through rulemaking,
particularly considering how VAWA's existing housing provisions have
already been interpreted by HUD and the courts.
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\1\ As explained in Part III.F. of this document, VAWA 2022 did
amend the McKinney-Vento Homeless Assistance Act.
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Section II of this document provides an overview of VAWA, HUD's
[[Page 322]]
implementation of prior VAWA authorities, and the VAWA 2022 changes
relevant to HUD's programs. Section III explains how the new VAWA 2022
changes will be implemented for HUD programs. Section III also provides
information on how VAWA 2022 affects HUD's existing guidance,
regulations, and other authorities.
II. Background on VAWA
Earlier Statutory Changes
VAWA, enacted in 1994 as title IV of the Violent Crime Control and
Law Enforcement Act of 1994, (Pub. L. 103-322, approved September 13,
1994), was reauthorized in 2000 through Division B of the Victims of
Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386, 114
Stat. 1464), in 2005 through the Violence Against Women Act and
Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, 119
Stat. 2960) (VAWA 2005), and in 2013 through the Violence Against Women
Act Reauthorization of 2013 (Pub. L. 113-4, 127 Stat. 54) (VAWA 2013)
(see summary at 78 FR 47717, 81 FR 80724). In 2016, the Justice for All
Reauthorization Act (Pub. L. 114-324, 130 Stat. 1948) amended VAWA by
clarifying VAWA's lease bifurcation provisions.\2\ The Justice for All
Reauthorization Act of 2016 did not reauthorize VAWA, but the statute
amended VAWA.\3\
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\2\ In this notice, the Violence Against Women Act of 1994, as
amended over the years, is referred to solely as ``VAWA'' unless it
is necessary or appropriate to refer to a specific amendment of
VAWA. The references to ``VAWA'' in this notice include the
amendments in 2000, 2005, 2013, and 2016 unless explicitly noted
otherwise. The full text of the new amending legislation, VAWA 2022,
in pdf and plain text versions can be found, respectively, at
<a href="https://www.govinfo.gov/content/pkg/BILLS-117hr2471enr/pdf/BILLS-117hr2471enr.pdf">https://www.govinfo.gov/content/pkg/BILLS-117hr2471enr/pdf/BILLS-117hr2471enr.pdf</a>, and <a href="https://www.congress.gov/bill/117th-congress/house-bill/2471/text">https://www.congress.gov/bill/117th-congress/house-bill/2471/text</a>.
\3\ HUD intends to implement changes to VAWA by the Justice for
All Reauthorization Act of 2016 in its rulemaking implementing VAWA
2022.
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HUD's Previous Implementation of VAWA
HUD's implementing regulations for VAWA's protections, rights, and
responsibilities are codified in 24 CFR part 5, subpart L, and related
provisions in HUD's program regulations (``HUD's VAWA regulations'').
These regulations, as explained in HUD's final rule issued on November
16, 2016 (81 FR 80724), implement VAWA as amended through VAWA 2013.
VAWA 2022 Changes, Including Changes to the Applicability of VAWA to
HUD Statutes and Programs
Section 2 of VAWA 2022 revises the definition of ``domestic
violence'' and adds definitions for ``economic abuse'' and
``technological abuse'' for purposes of VAWA grants.
The amendments that VAWA 2022 makes to the Housing Rights Chapter
of VAWA build on the 2013 and 2016 amendments to strengthen VAWA's
housing protections for survivors of domestic violence, dating
violence, sexual assault, and stalking (collectively referred to as
``survivors'' in this document). Section 601 of VAWA 2022 expands the
``covered housing program'' definition in section 41411 of VAWA (34
U.S.C. 12491) to add specific programs and a catch-all provision that
includes any other Federal housing programs providing affordable
housing to low- and moderate-income persons by means of restricted
rents or rental assistance, or more generally providing affordable
housing opportunities, as identified by the appropriate agency through
regulations, notices, or any other means. HUD intends to engage Tribes
regarding VAWA protections and implementation for HUD's Native American
programs.
Section 602 of VAWA 2022 adds several new sections to VAWA's
Housing Rights Chapter. These new sections include: section 41412 (34
U.S.C. 12492), which requires each appropriate agency to consult
appropriate stakeholders and conduct rulemaking to establish a process
for reviewing compliance with VAWA's expanded housing protections;
section 41413 (34 U.S.C. 12493), which requires HUD to establish a
Gender-Based Violence Prevention Office \4\ and a VAWA Director; and
section 41414 (34 U.S.C. 12494), which establishes anti-retaliation and
anti-coercion requirements that prohibit housing providers covered by
VAWA from discriminating against any person for exercising or enjoying,
or aiding or encouraging others in the exercise or enjoyment of, VAWA
housing rights or for opposing an act or practice made unlawful by
VAWA. Section 602 further provides the Secretary of HUD and the
Attorney General with the authority to ``implement and enforce this
chapter consistent with, and in a manner that provides, the rights and
remedies provided for in title VIII of the Civil Rights Act of 1968 (42
U.S.C. 3601 et seq.),'' commonly referred to as the Fair Housing Act.
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\4\ The language of this provision indicates that the
establishment of this Office and the VAWA Director is required,
regardless of future appropriations provided to HUD.
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Section 603 of VAWA 2022 adds a new section 41415 to VAWA (34
U.S.C. 12495) titled ``Right to report crime and emergencies from one's
home.'' The new section provides, among other things, that landlords,
homeowners, tenants, residents, occupants, and guests of, and
applicants for, housing shall not be penalized based on their requests
for assistance or based on criminal activity of which they are a victim
or otherwise not at fault under statutes, ordinances, regulations, or
policies adopted or enforced by covered governmental entities. Section
603 defines a ``covered governmental entity as any municipal, county,
or State government that receives funding under section 106 of the
Housing and Community Development Act of 1974.'' It also imposes
reporting and certification requirements on covered governmental
entities. Section 603 further provides the Secretary of HUD and the
Attorney General with the authority to ``implement and enforce this
chapter consistent with, and in a manner that provides, the same rights
and remedies as those provided for in title VIII of the Civil Rights
Act of 1968 (42 U.S.C. 3601 et seq.),'' commonly referred to as the
Fair Housing Act.
Section 605 of VAWA 2022 \5\ amends section 103(b) of the McKinney-
Vento Homeless Assistance Act (42 U.S.C. 11302(b)) to change the
criteria for survivors whom HUD must consider as ``homeless'' under
programs such as the Emergency Solutions Grants and Continuum of Care
Program; amends section 423 of the McKinney-Vento Homeless Assistance
Act (42 U.S.C. 11383) to provide that Continuum of Care grant awards
can be used for facilitating and coordinating activities to ensure and
monitor compliance with VAWA's emergency transfers provision and
confidentiality protections; and adds a new section 41416 to VAWA (34
U.S.C. 12496), which provides authorization for HUD to make training
and technical assistance grants (subject to appropriations) to support
the implementation of VAWA's Housing Rights Chapter, including
technical assistance agreements with entities whose primary purpose and
expertise is assisting survivors of sexual assault and domestic
violence or providing culturally specific services to survivors of
domestic violence, dating violence, sexual assault, and stalking.\6\
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\5\ Section 604 of VAWA 2022 amends the authorization of
transitional housing assistance grants administered by the
Department of Justice.
\6\ Sections 605(b) and (c) relate to grants that are
administered by the Department of Health and Human Services and the
Department of Justice.
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Section 606 of VAWA 2022 requires HUD to study the availability and
accessibility of housing services to survivors of human trafficking or
those
[[Page 323]]
at risk of being trafficked, who are experiencing homelessness or
housing instability.
III. Changes to Requirements and Protections Under VAWA 2022
The following sections identify specific issues on which HUD seeks
comment to inform HUD in the development of regulations or guidance, or
both, as may be applicable. For each issue, this document provides
information on relevant VAWA 2013 requirements and existing HUD
regulations, relevant VAWA 2022 changes and requirements, and HUD's
proposal for implementation.
A. Changes to VAWA Definition of ``Domestic Violence'' and Related
Terms
Pre-VAWA 2022: HUD's regulations include definitions of ``domestic
violence,'' ``dating violence,'' ``sexual assault,'' and ``stalking''
at 24 CFR 5.2003, which implement and reflect almost verbatim the
definitions in section 40002(a) of VAWA, as amended before VAWA 2022,
provided for those terms. HUD's regulatory definition of ``domestic
violence'' is the same as the definition provided by section 40002(a)
of VAWA, as amended before VAWA 2022, except that HUD's regulatory
definition of ``domestic violence'' also interpreted the statutory
phrase ``spouse or intimate partner of the victim.'' HUD's regulatory
definition provides that domestic violence includes felony or
misdemeanor crimes of violence committed by (1) a current or former
spouse or intimate partner of the victim, (2) a person with whom the
victim shares a child in common, (3) a person who is cohabitating with
or has cohabitated with the victim as a spouse or intimate partner, (4)
a person similarly situated to a spouse of the victim under the
domestic or family violence laws of the jurisdiction receiving grant
monies, or (5) any other person against an adult or youth victim who is
protected from that person's acts under the domestic or family violence
laws of the jurisdiction. HUD's regulatory definition further
interpreted ``spouse or intimate partner of the victim'' to include ``a
person who is or has been in a social relationship of a romantic or
intimate nature with the victim, as determined by the length of the
relationship, the type of relationship, and the frequency of
interaction between the persons involved in the relationship.''
VAWA 2022: Section 2 of VAWA 2022 makes changes to the definitions
provided by section 40002(a) of VAWA. First, section 2(a)(1)(A) of VAWA
2022 changes the text that frames the definitions in section 40002(a)
from ``In this title:'' to ``In this title, for purposes of grants
authorized under this title.'' Second, VAWA 2022 amends the definition
of ``domestic violence'' in section 40002(a) of VAWA to include any
felony or misdemeanor crimes committed under the family or domestic
violence laws of the jurisdiction receiving grant funding, as compared
with the previous definition, which stated that ``domestic violence''
included felony or misdemeanor crimes of violence.\7\ As amended by
VAWA 2022, ``domestic violence'' in section 40002(a) of VAWA also
includes, in the case of victim services,\8\ the use or attempted use
of physical abuse or sexual abuse, or a pattern of any other coercive
behavior committed, enabled, or solicited to gain or maintain power and
control over a victim, including verbal, psychological, economic, or
technological abuse \9\ that may or may not constitute criminal
behavior, by any one of the following: (A) a current or former spouse
or intimate partner of the victim, or person similarly situated to a
spouse of the victim; (B) a person who is cohabitating, or has
cohabitated, with the victim as a spouse or intimate partner; (C) a
person who shares a child in common with the victim; or (D) a person
who commits acts against a youth or adult victim who is protected from
those acts under the family or domestic violence laws of the
jurisdiction.
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\7\ 34 U.S.C. 12291.
\8\ Section 40002 of VAWA (34 U.S.C. 12291) defines ``victim
services'' and ``services'' as: ``services provided to victims of
domestic violence, dating violence, sexual assault, or stalking,
including telephonic or web-based hotlines, legal assistance and
legal advocacy, economic advocacy, emergency and transitional
shelter, accompaniment and advocacy through medical, civil or
criminal justice, immigration, and social support systems, crisis
intervention, short-term individual and group support services,
information and referrals, culturally specific services, population
specific services, and other related supportive services.''
\9\ Section 40002 of VAWA (34 U.S.C. 12291) defines both
``economic abuse'' and ``technological abuse''.
ECONOMIC ABUSE.--The term `economic abuse', in the context of
domestic violence, dating violence, and abuse in later life, means
behavior that is coercive, deceptive, or unreasonably controls or
restrains a person's ability to acquire, use, or maintain economic
resources to which they are entitled, including using coercion,
fraud, or manipulation to--(A) restrict a person's access to money,
assets, credit, or financial information; (B) unfairly use a
person's personal economic resources, including money, assets, and
credit, for one's own advantage; or (C) exert undue influence over a
person's financial and economic behavior or decisions, including
forcing default on joint or other financial obligations, exploiting
powers of attorney, guardianship, or conservatorship, or failing or
neglecting to act in the best interests of a person to whom one has
a fiduciary duty.
TECHNOLOGICAL ABUSE.--The term `technological abuse' means an
act or pattern of behavior that occurs within domestic violence,
sexual assault, dating violence or stalking and is intended to harm,
threaten, intimidate, control, stalk, harass, impersonate, exploit,
extort, or monitor, except as otherwise permitted by law, another
person, that occurs using any form of technology, including but not
limited to: internet enabled devices, online spaces and platforms,
computers, mobile devices, cameras and imaging programs, apps,
location tracking devices, or communication technologies, or any
other emerging technologies.
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Implementation: These changes took effect on October 1, 2022.
However, according to VAWA 2022, the definitions in section 40002(a) of
VAWA are only binding ``for purposes of grants authorized under'' VAWA
such that the new ``domestic violence'' definition in VAWA 2022 or any
of the related definitions are applicable only to grant programs
authorized under VAWA, which do not include HUD programs. HUD notes
that its current regulations implementing VAWA cover much or all of the
additional conduct specified in the VAWA 2022 definition. Specifically,
HUD interprets the existing regulatory definitions of ``domestic
violence'' and ``stalking'' to include the acts contained in the
revised statutory definition of ``domestic violence.''
HUD's regulatory definition of ``domestic violence'' is broad as it
provides that ``domestic violence includes felony or misdemeanor crimes
of violence committed by'' a list of certain relations, such as a
person similarly situated to a spouse of the victim, and captures
felony or misdemeanor crimes of violence committed ``by any other
person against an adult or youth victim who is protected from that
person's acts under the domestic or family violence laws of the
jurisdiction.'' Furthermore, HUD's existing definition of ``stalking''
broadly covers any ``course of conduct directed at a specific person
that would cause a reasonable person to (1) fear for the person's
individual safety or the safety of others; or (2) suffer substantial
emotional distress.'' Given HUD's broad and inclusive definitions of
these terms, HUD believes that the specific acts that VAWA 2022 made
explicitly part of the VAWA ``domestic violence'' definition can be
reasonably interpreted to be covered by HUD's existing VAWA
regulations.
Accordingly, assisted housing providers, grantees, public housing
authorities, owners and managers of the covered housing programs are
advised to apply HUD's VAWA requirements in a manner that encompasses
the ``domestic violence'' definition provided by VAWA as of October 1,
2022. HUD considers its existing regulatory definition of ``domestic
violence'' to be broad enough to, in most
[[Page 324]]
circumstances, include the additional acts referred to in the VAWA 2022
reauthorization--including technological abuse, economic abuse, and a
pattern of any other coercive behavior committed, enabled, or solicited
to gain or maintain power and control over a victim that may or may not
constitute criminal behavior. Further, HUD will consider implementing
changes to update HUD's ``domestic violence'' definition to include the
related definitions of ``economic abuse'' and ``technological abuse''
applicable to HUD's programs as part of HUD's upcoming rulemaking.
Specific Request for Comment. HUD specifically requests comment
from assisted housing providers, grantees, public housing authorities,
owners and managers, and other interested members of the public on (1)
common forms of economic and technological abuse that affect survivors'
rental assistance and continued tenancy, and (2) how HUD policy can
help prevent or mitigate such violence against survivors and best
practices or appropriate services to assist survivors.
B. Additional Covered Housing Programs
Pre-VAWA 2022: VAWA 2013 expanded VAWA's protections to additional
HUD programs beyond those covered by VAWA 2005. HUD's VAWA 2013 final
rule amended the ``covered housing programs'' as defined at 24 CFR
5.2003 to list the following as HUD programs subject to VAWA statutory
requirements and protections and the corresponding program regulations:
<bullet> Section 202 Supportive Housing for the Elderly (12 U.S.C.
1701q), with implementing regulations at 24 CFR part 891.
<bullet> Section 811 Supportive Housing for Persons with
Disabilities (42 U.S.C. 8013), with implementing regulations at 24 CFR
part 891.
<bullet> Housing Opportunities for Persons With AIDS (HOPWA)
program (42 U.S.C. 12901 et seq.), with implementing regulations at 24
CFR part 574.
<bullet> HOME Investment Partnerships (HOME) program (42 U.S.C.
12741 et seq.), with implementing regulations at 24 CFR part 92.
<bullet> Homeless programs under title IV of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11360 et seq.), including the
Emergency Solutions Grants program (with implementing regulations at 24
CFR part 576), the Continuum of Care program (with implementing
regulations at 24 CFR part 578), and the Rural Housing Stability
Assistance program (with regulations forthcoming).
<bullet> Multifamily rental housing under section 221(d)(3) of the
National Housing Act (12 U.S.C. 17151(d)) with a below-market interest
rate (BMIR) pursuant to section 221(d)(5), with implementing
regulations at 24 CFR part 221.
<bullet> Multifamily rental housing under section 236 of the
National Housing Act (12 U.S.C. 1715z-1), with implementing regulations
at 24 CFR part 236.
<bullet> HUD programs assisted under the United States Housing Act
of 1937 (42 U.S.C. 1437 et seq.); specifically, public housing under
section 9 of the 1937 Act (42 U.S.C. 1437d) (with regulations at 24 CFR
chapter IX), tenant-based and project-based rental assistance under
section 8 of the 1937 Act (42 U.S.C. 1937f) (with implementing
regulations at 24 CFR chapters VIII and IX), and the Section 8 Moderate
Rehabilitation Single Room Occupancy (with implementing regulations at
24 CFR part 882, subpart H).
<bullet> The Housing Trust Fund (12 U.S.C. 4568) (with implementing
regulations at 24 CFR part 93).
While not included in the VAWA 2013 statute, HUD included the
Housing Trust Fund in its regulatory definition of ``covered housing
program'' by using its general rulemaking authority. This document
refers to these programs as ``2013 HUD covered programs''.
VAWA 2022: VAWA 2022 amended the statutory definition of ``covered
housing program,'' to add the following programs relevant to HUD: \10\
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\10\ This list does not include programs that are controlled by
the U.S. Department of Veterans Affairs and U.S. Department of
Agriculture.
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<bullet> Direct loan program under section 202 of the Housing Act
of 1959 (12 U.S.C. 1701q);
<bullet> Assistance from the Housing Trust Fund established under
section 1338 of the Federal Housing Enterprises Financial Safety and
Soundness Act of 1992 (12 U.S.C. 4501); and
<bullet> Any other Federal housing programs providing affordable
housing to low- and moderate-income persons by means of restricted
rents or rental assistance, or more generally providing affordable
housing opportunities, as identified by the appropriate agency through
regulations, notices, or any other means (referred to as a ``catch
all'' provision).
This document refers to these programs as ``VAWA 2022 HUD covered
programs''.
Implementation: Consistent with VAWA 2022, HUD will implement
changes through regulations, notices, or any other means in identifying
when VAWA applies to a HUD program. The inclusion of new programs into
the ``covered housing program'' definition means new grantees, owners,
and managers will need to apply VAWA's protections and requirements to
their programs as identified through regulations, notices, or any other
means identifying when VAWA applies to a HUD housing program. When HUD
initially applied VAWA protections and requirements to the ``2013 HUD
covered programs,'' HUD did so by notice-and-comment rulemaking. For
the new programs, specifically the direct loan program under section
202 and the broad catch-all category, HUD will issue regulations,
notices, or any other means to identify when VAWA applies to a HUD
housing program. Under VAWA 2022, HUD also has the discretion to
identify additional covered housing programs that are subject to VAWA
through regulations, notices, or any other means. For the Housing Trust
Fund program, HUD already applied the VAWA requirements in effect at
that time to those grantees. As part of rulemaking, HUD will update the
regulations that apply to the Housing Trust Fund program, and other HUD
covered housing programs, to incorporate VAWA 2022 requirements. HUD
offices that previously issued notices with lists of covered housing
programs will issue new notices with revised lists.
C. Compliance Reviews--NEW Provision Applicable to HUD in 2022
Pre-VAWA 2022: Before VAWA 2022, the housing title of VAWA did not
include statutory requirements for compliance reviews, and HUD does not
currently have regulations addressing VAWA compliance reviews
specifically, although all HUD programs are subject to general
performance or compliance review requirements provided by program-
specific regulations, 2 CFR part 200, or both. HUD programs are also
subject to compliance reviews conducted by HUD's Office of Fair Housing
and Equal Opportunity (FHEO) pursuant to civil rights authorities. See,
e.g., 24 CFR part 1 (Title VI of the Civil Rights Act); 24 CFR part 8
(Section 504 of the Rehabilitation Act); 24 CFR part 145 (Age
Discrimination Act).
VAWA 2022: Section 602 of VAWA 2022 adds a new section 41412 to
VAWA (34 U.S.C. 12492), which requires Federal agencies to establish a
process to review compliance with the applicable requirements in title
IV of VAWA (34 U.S.C. chapter 121, subchapter III, Part L). The new
section requires agencies to incorporate this
[[Page 325]]
process into their existing compliance review processes where possible,
enumerates six items for examination, provides that each agency ``shall
conduct the review . . . on a regular basis, as determined by the
appropriate agency,'' and requires that agencies ensure that they
publicly disclose an agency-level assessment of the information
collected during the compliance review process. The six items for
examination are: (1) compliance with requirements prohibiting the
denial of assistance, tenancy, or occupancy rights on the basis of
domestic violence, dating violence, sexual assault, or stalking; (2)
compliance with confidentiality provisions set forth in section
41411(c)(4) of VAWA (34 U.S.C. 12491(c)(4)); (3) compliance with the
notification requirements set forth in section 41411(d)(2) of VAWA (34
U.S.C. 12491(d)(2)); (4) compliance with the provisions for accepting
documentation set forth in section 41411(c) of VAWA (34 U.S.C.
12491(c)); (5) compliance with emergency transfer requirements set
forth in section 41411(e) of VAWA (34 U.S.C. 12491(e)); and (6)
compliance with the prohibition on retaliation set forth in section
41414 of VAWA (34 U.S.C. 12494). The new section 41412 of VAWA also
requires each appropriate agency to develop regulations in consultation
with ``appropriate stakeholders'' \11\ to implement these changes
related to compliance review.
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\11\ Section 41412(b)(2) of VAWA provides that ``appropriate
stakeholders'' include, but are not limited to, ``(A) individuals
and organizations with expertise in the housing needs and
experiences of victims of domestic violence, dating violence, sexual
assault and stalking; and (B) individuals and organizations with
expertise in the administration or management of covered housing
programs, including industry stakeholders and public housing
agencies.''.
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Implementation: These changes will be implemented by regulations to
the extent necessary. Section 41412 of VAWA (34 U.S.C. 12492) requires
the issuance of regulations no later than two years after the date of
enactment of VAWA 2022, March 15, 2024. Section 41412 further requires
that these implementing regulations define standards of compliance
under HUD covered programs, include detailed reporting requirements on
emergency transfers,\12\ and include standards for corrective action
plans where compliance standards have not been met. To the extent
possible, HUD will identify existing compliance review procedures that
already allow for such reviews, including those currently administered
by FHEO.
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\12\ While HUD intends to issue rulemaking defining more
specifically the compliance requirements set out by statute, HUD's
existing regulations implementing VAWA 2013 already require that
covered housing providers maintain records with respect to emergency
transfer requests. See 24 CFR 5.2005(e)(12). HUD, therefore, intends
to seek approval under the Paperwork Reduction Act to collect such
information while HUD updates its regulations to describe compliance
standards.
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D. Prohibiting Retaliation Against Victims--New Provision
Pre-VAWA 2022: VAWA 2013 did not address protections against
retaliation for survivors and other persons who oppose acts made
unlawful by VAWA, who seek to enforce VAWA's protections, or who
participate in enforcement proceedings. Thus, HUD's VAWA 2013 final
rule did not, and HUD's existing VAWA regulations at 24 CFR part 5,
subpart L, do not address these protections and related requirements.
VAWA 2022: Section 602 of VAWA 2022 adds a new section 41414 to
VAWA (34 U.S.C. 12494), which provides that no public housing agency or
owner or manager of housing assisted under a covered housing program
shall discriminate against any person because that person has opposed
any act or practice made unlawful by the housing title of VAWA (34
U.S.C. chapter 121, subchapter III, Part L), or because that person
testified, assisted, or participated in any related matter. The new
section also provides that no public housing agency or owner or manager
of housing assisted under a covered housing program shall coerce,
intimidate, threaten, interfere with, or retaliate against any person
who exercises or assists or encourages a person to exercise any rights
or protections under the housing title of VAWA. Section 602 further
includes an implementation provision, which states that the Secretary
of HUD and the Attorney General ``shall implement and enforce this
chapter consistent with, and in a manner that provides, the rights and
remedies provided for in title VIII of the Civil Rights Act of 1968 (42
U.S.C. 3601 et seq.).''
Implementation: These changes took effect on October 1, 2022. HUD
does not consider rulemaking to be necessary to enable Office of Fair
Housing and Equal Opportunity's enforcement of the new requirements as
of October 1, 2022, although HUD may conduct rulemaking to further
implement this provision. Additionally, HUD's regulations at 24 CFR
part 103 provide for HUD's Fair Housing Act complaint processing
requirements, including complaint filing, investigation, and
conciliation, and, at 24 CFR part 180, they provide for HUD's
consolidated hearing procedures and requirements for civil rights
matters. The regulations have long been used successfully to process
fair housing complaints. In accordance with the plain language of
section 602 requiring implementation and enforcement of the chapter
consistent with title VIII of the Civil Rights Act of 1968 (42 U.S.C.
3601 et seq.), HUD will enforce the Housing Rights Chapter of VAWA
2022, including section 602, using HUD's existing Fair Housing Act
complaint process. While HUD plans to issue guidance and prepares to
help answer questions from grantees and Federal financial assistance
recipients on this process, grantees, PHAs, owners and managers of
housing assisted under VAWA 2022 covered housing programs should ensure
that policies and practices include the statutory non-retaliation
requirement and prohibition on coercion. HUD may further implement this
provision through rulemaking if the specific needs of enforcement of
VAWA requires additional processes or clarity. HUD will also implement
this provision for grantees of covered housing programs as well as
PHAs, owners, and managers of housing assisted under VAWA 2022 covered
housing programs through rulemaking to include program enforcement
mechanisms.
E. The Right To Report Crime and Emergencies--New Provision
Pre-VAWA 2022: VAWA 2013 did not address protections against actual
or threatened penalties for persons requesting law enforcement or
emergency assistance. Thus, HUD's existing VAWA regulations at 24 CFR
part 5, subpart L, do not address these protections and related
requirements. In 2016, however, HUD did issue guidance on applying the
Fair Housing Act standards to the enforcement of local nuisance or
crime-free ordinances, including in instances in which such ordinances
operate to require evictions or otherwise penalize people for
requesting law enforcement or emergency assistance.\13\ The guidance
outlines how a local government may violate the Fair Housing Act by
enforcing nuisance or crime-free ordinances in a manner that is
intentionally discriminatory or results in an unjustified
discriminatory effect based on protected class. Additionally, HUD has
taken action under both the Fair Housing Act and Title VI of the
[[Page 326]]
Civil Rights Act of 1964 against localities and recipients of Federal
financial assistance from HUD for discriminatory enactment and
enforcement of nuisance or crime-free ordinances.
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\13\ Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Enforcement of Local Nuisance and
Crime-Free Housing Ordinances Against Victims of Domestic Violence,
Other Crime Victims, and Others Who Require Police or Emergency
Services, September 13, 2016, <a href="https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF">https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF</a>.
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VAWA 2022: Section 603 of VAWA 2022 adds a new section 41415 to
VAWA (34 U.S.C. 12495), which protects the right to report crime and
emergencies from one's home. The new section provides that landlords,
homeowners, tenants, residents, occupants, and guests of, and
applicants for, housing (``listed protected persons'') ``shall have''
the right to seek law enforcement or emergency assistance on their own
behalf or on behalf of another person in need of assistance. This
section also prohibits application of actual or threatened penalties
\14\ to the listed protected persons based on their requests for
assistance or based on criminal activity of which they are a victim or
otherwise not at fault under the laws or policies adopted or enforced
by covered governmental entities. ``Covered governmental entities'' are
defined as any municipal, county, or State government that receives
funding under section 106 of the Housing and Community Development Act
of 1974.
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\14\ Penalties prohibited under section 603 include (1) actual
or threatened assessment of monetary or criminal penalties, fines,
or fees; (2) actual or threatened eviction; (3) actual or threatened
refusal to rent or renew tenancy; (4) actual or threatened refusal
to issue an occupancy permit or landlord permit; and (5) actual or
threatened closure of the property, or designation of the property
as a nuisance or a similarly negative designation.
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Additionally, section 603 provides that covered governmental
entities must report on their laws or policies (or laws or policies
adopted by subgrantees) that impose penalties on the listed protected
persons based on requests for law enforcement or emergency assistance
or based on criminal activity that occurred at a property. These
entities must also certify compliance with these protections or explain
how they will come into compliance or ensure compliance among
subgrantees \15\ within 180 days of providing their report.
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\15\ There are additional compliance requirements for covered
governmental entities that distribute funds to subgrantees. For
these entities' reports on their laws and policies that impose
penalties on the listed protected persons, compliance includes
inquiring about the existence of laws and policies adopted by
subgrantees that impose penalties on landlords, homeowners, tenants,
residents, occupants, guests, or housing applicants based on
requests for law enforcement or emergency assistance or based on
criminal activity that occurred at a property.
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Section 603 also includes an implementation provision that provides
that the Secretary of HUD and the Attorney General ``shall implement
and enforce this chapter consistent with, and in a manner that
provides, the same rights and remedies as those provided for in title
VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et seq.).''
Implementation: Section's 603 protections took effect October 1,
2022. HUD will issue guidance and help answer questions from grantees
and Federal financial assistance recipients on this process. HUD also
anticipates issuing implementing regulations, to include any costs of
conforming to the requirements that may be allowable under HUD programs
affected by this provision, including the CDBG program.
While HUD prepares to issue guidance and help answer questions from
grantees and Federal financial assistance recipients on this process,
any municipal, county, or State government that receives funding under
section 106 of the Housing and Community Development Act of 1974 (42
U.S.C. 5306) must not, as of October 1, 2022, engage in any practices
that violate the right to report provided for in section 603 of VAWA
2022. In addition, any municipal, county, or State government that
receives funding under section 106 of the Housing and Community
Development Act of 1974 (42 U.S.C. 5306) must conduct the required
review and reporting \16\ of their laws and policies (and, in some
cases, laws and policies of subgrantees) to ensure that their laws and
policies do not conflict with the statutory right to report. HUD will
issue further guidance regarding the timing and process of this
reporting.
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\16\ Reporting would be required only after HUD conducts
appropriate Paperwork Reduction Act process and issuance of
reporting procedures.
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The Paperwork Reduction Act (PRA) of 1995 requires that Federal
agencies, including HUD, seek and obtain Office of Management and
Budget (OMB) approval before providing forms to grantees to be used to
collect information from the public, including information related to
record-keeping, certifications, and reports. HUD, therefore, intends to
seek approval under the PRA to collect such information from covered
governmental entities required for reporting under section 603 while
HUD updates its regulations related to record-keeping, certifications,
and reports.
In the meantime, any municipal, county, or State government that
receives funding under section 106 of the Housing and Community
Development Act of 1974 (42 U.S.C. 5306) is advised to update
applicable policies and practices to include the statutory right to
report to avoid potential liability under the law.
In 2016, HUD issued guidance on applying the Fair Housing Act to
local nuisance or crime-free ordinances that discriminate because of a
protected characteristic.\17\ The guidance outlines how a local
government may violate the Fair Housing Act by enforcing nuisance or
crime-free ordinances in a manner that is intentionally discriminatory
or results in an unjustified discriminatory effect. The Fair Housing
Act continues to apply.\18\ HUD's regulations at 24 CFR part 103
provide HUD's Fair Housing Act complaint processing requirements,
including complaint filing, investigation, and conciliation. Also, at
24 CFR part 180, the regulations provide for HUD's consolidated hearing
procedures and requirements for civil rights matters. HUD will continue
enforcement under the Fair Housing Act and other applicable civil
rights authorities, including title VI and section 504, for any
violation committed by a local government for enforcing nuisance or
crime-free ordinances. In addition, in accordance with the plain
language of section 603, requiring implementation and enforcement of
the chapter consistent with Title VIII of the Civil Rights Act of 1968
(42 U.S.C. 3601 et seq.) and HUD's current enforcement of these
protections, HUD will enforce the Housing Rights Chapter of VAWA 2022,
including section 603, using its existing Fair Housing Act complaint
process.
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\17\ Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Enforcement of Local Nuisance and
Crime-Free Housing Ordinances Against Victims of Domestic Violence,
Other Crime Victims, and Others Who Require Police or Emergency
Services, September 13, 2016, <a href="https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF">https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF</a>.
\18\ As a reminder, local governments who are recipients of
Federal financial assistance must also comply with, among other
laws, Title VI of the Civil Rights Act of 1964 and section 504 of
the Rehabilitation Act.
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F. Changes to the McKinney-Vento Homeless Assistance Act Definition of
Homelessness
Pre-VAWA 2022: HUD's current definition of ``homeless'' for
programs authorized by the McKinney-Vento Homeless Assistance Act is
based on the statutory definition of homeless provided in section 103
of that Act. Although survivors have always been able to qualify as
homeless under this definition, a new subsection (b) was added in 2009
to clarify that ``Notwithstanding any other provision of this section,
the Secretary shall consider to be homeless any individual or family
who is fleeing, or is attempting
[[Page 327]]
to flee, domestic violence, dating violence, sexual assault, stalking,
or other dangerous or life-threatening conditions in the individual's
or family's current housing situation, including where the health and
safety of children are jeopardized, and who have no other residence and
lack the resources or support networks to obtain other permanent
housing.'' HUD implemented this provision as part of its final rules
defining ``homeless,'' and an additional eligibility category for this
population now appears as paragraph (4) of the homeless definitions
provided at 24 CFR 91.5, 576.2, and 578.3.
VAWA 2022: Section 605 of VAWA 2022 amended section 103(b) of the
McKinney-Vento Homeless Assistance Act to require HUD to consider as
homeless any individual or family who--
(1) is experiencing trauma or a lack of safety related to, or
fleeing or attempting to flee, domestic violence, dating violence,
sexual assault, stalking, or other dangerous, traumatic, or life-
threatening conditions related to the violence against the individual
or a family member in the individual's or family's current housing
situation, including where the health and safety of children are
jeopardized;
(2) has no other safe residence; and
(3) lacks the resources to obtain other safe permanent housing.
Implementation: Rulemaking will be needed to require Emergency
Solutions Grants (ESG) recipients and subrecipients, Continuums of Care
(CoCs), and CoC Program recipients and subrecipients to make
corresponding changes to the applicable written standards, coordinated
entry policies, and documentation policies used to qualify individual
and families as homeless under the CoC Program. That said, because HUD
must recognize as ``homeless'', families and individuals who meet the
new statutory criteria in section 103(b) of the McKinney-Vento Homeless
Assistance Act as of October 1, 2022, ESG and CoC recipients may
implement the new definition prior to HUD rulemaking, provided that ESG
recipients and CoCs update the relevant written standards and policies
as needed to reflect the new statutory criteria.
G. Gender-Based Violence Prevention Office and VAWA Director--New
Provision
Pre-VAWA 2022: VAWA 2013 did not require HUD to create a specific
office or position for VAWA-related matters. Thus, HUD's implementation
of VAWA 2013 did not address these matters.
VAWA 2022: Section 602 of VAWA 2022 directed HUD's Secretary to
establish a Gender-based Violence Prevention Office with a Violence
Against Women Act Director. The Director shall support implementation
of VAWA's housing provisions, coordinate with other federal agencies
and with state and local governments, ensure the provision of technical
assistance and support for agencies and housing providers, implement
internal systems to track, monitor and address compliance failures, and
address the housing needs and barriers faced by persons who have been
victims of sexual assault, sexual coercion or sexual harassment by a
public housing agency, owner, or manager of housing assisted under a
covered housing program.
Implementation: No regulatory action is needed for this section to
be implemented. Congress was authorized to appropriate such sums as may
be necessary to carry out this section for fiscal years 2023 through
2027.
H. Continuum of Care Program Eligible Activities
Pre-VAWA 2022: VAWA 2013 and HUD's implementing regulations added
homeless programs under title IV of the McKinney-Vento Homeless
Assistance Act to the statutory and regulatory definitions of ``covered
housing program'' \19\ HUD's 2016 VAWA final rule also revised and
added regulations addressing the VAWA requirements for the Continuum of
Care Program in 24 CFR part 578.
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\19\ See 24 CFR 5.2003.
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VAWA 2022: Section 605 amends section 423(a) of the McKinney-Vento
Homeless Assistance Act to add the following expressly eligible
Continuum of Care Program activity:
(13) Facilitating and coordinating activities to ensure compliance
with [the emergency transfer plan requirement in 34 U.S.C. 12491(e)]
and monitoring compliance with [the confidentiality protections of the
confidentiality requirement in 34 U.S.C. 12491(c)(4)].
Implementation: The statutory change took effect on October 1,
2022, although HUD will need to make a conforming change to the
Continuum of Care program regulations at 24 CFR part 578. Because this
new eligible activity category is distinct from the eligible activity
categories that authorize and limit the use of Continuum of Care
Program funds for ``payment of administrative costs'' under section
423(a)(10), (11), and (12) of the McKinney-Vento Homeless Assistance
Act, HUD does not consider this new activity category to be subject to
the CoC Program's spending caps on administrative costs.
I. VAWA Training and Technical Assistance
Pre-VAWA 2022: VAWA 2013 did not address training, technical
assistance, and technical assistance agreements to support VAWA
implementation for HUD covered programs. Thus, HUD's VAWA 2013 final
rule did not amend HUD's regulations to address these matters. However,
HUD's VAWA 2013 final rule summarized public commenters' requests that
HUD provide guidance and technical assistance to PHAs about domestic
violence and VAWA regulations. HUD responded that HUD intended to
provide guidance and technical assistance to aid-covered housing
providers in implementing VAWA.\20\
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\20\ 81 FR 80780.
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VAWA 2022: Section 605 of VAWA 2022 added a provision authorizing
appropriations in ``such sums as may be necessary for fiscal years 2023
through 2027'' for training and technical assistance to support VAWA
implementation, including technical assistance agreements with entities
whose primary purpose and expertise is assisting survivors of sexual
assault and domestic violence or providing culturally specific services
to victims of domestic violence, dating violence, sexual assault, and
stalking.
Implementation: Section 605(d) of VAWA 2022 took effect October 1,
2022. No regulatory action is needed to implement this provision.
Specific Request for Comment. HUD specifically requests comment on
entities' needs for training and technical assistance; training and
technical assistance in this context means to support the
implementation of VAWA as envisioned by VAWA 2022.
J. Study and Report on Housing and Service Needs of Survivors of
Trafficking and Individuals at Risk for Trafficking
Pre-VAWA 2022: VAWA 2013 did not require HUD to study the housing
and service needs of survivors of trafficking and individuals at risk
for trafficking. Thus, HUD's VAWA 2013 final rule did not address these
matters.
VAWA 2022: Section 606 of VAWA 2022 requires that HUD study the
availability and accessibility of housing and services for survivors of
trafficking or those at risk of being trafficked, who are experiencing
homelessness or housing instability. The provisions under Section 606
of VAWA 2022
[[Page 328]]
outline the key requirements for the study: a definition for the terms
``survivor of a severe form of trafficking'' and ``survivor of
trafficking,'' \21\ the requirements for coordination \22\ and
consultation \23\ while conducting the study, and the contents of the
study.\24\ Lastly, section 606 of VAWA 2022 provides that not later
than September 15, 2023, the Secretary shall submit a report containing
the contents of the study to the Committee on Banking, Housing, and
Urban Affairs of the Senate and the Committee on Financial Services of
the House of Representatives, as well as making the report publicly
available.
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\21\ Section 606 applies the same meaning given to the
respective terms as in section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102).
\22\ The Secretary shall coordinate with: (i) the Interagency
Task Force to Monitor and Combat Trafficking established under
section 105 of the Trafficking Victims Protection Act of 2000 (22
U.S.C. 7103), (ii) the United States Advisory Council on Human
Trafficking, (iii) the Secretary of Health and Human Services; and
(iv) the Attorney General.
\23\ The Secretary shall consult with: (i) the National Advisory
Committee on the Sex Trafficking of Children and Youth in the United
States; (ii) survivors of trafficking; (iii) direct service
providers, including--(I) organizations serving runaway and homeless
youth; (II) organizations serving survivors of trafficking through
community-based programs; and (III) organizations providing housing
services to survivors of trafficking--and (iv) housing and
homelessness assistance providers, including recipients of grants
under (I) the Continuum of Care program authorized under subtitle C
of title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11381 et seq.) and (II) the Emergency Solutions Grants program
authorized under subtitle B of title IV of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11371 et seq.).
\24\ See section 606(b)(3).
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Implementation: Section 606 of VAWA 2022 was effective upon
enactment of VAWA 2022. No regulatory action is needed to implement
this provision. HUD began work on the study in Spring 2022, including
conducting the required consultations with stakeholders, and expects to
complete the report on schedule.
IV. Solicitation of Comment
In this document, HUD has highlighted certain issues for which
comment is specifically sought but welcomes comment on any aspect of
this document.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-28073 Filed 1-3-23; 8:45 am]
BILLING CODE 4210-67-P
</pre></body>
</html>Indexed from Federal Register on January 4, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.