[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-8503] [[Page Unknown]] [Federal Register: April 11, 1994] VOL. 59, NO. 69 Monday, April 11, 1994 DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 273 [Amendment No. 353] RIN 0584-AA96 FSP; Income Exemption for Homeless Households in Transitional Housing Required by the Mickey Leland Childhood Hunger Relief Act AGENCY: Food and Nutrition Service, USDA. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This rule proposes to amend Food Stamp Program regulations to implement section 13914 of the Omnibus Budget Reconciliation Act of 1993 (Mickey Leland Childhood Hunger Relief Act), which amended section 5(k)(2)(F) of the Food Stamp Act of 1977 to require that the full value of any public or general assistance housing payments made to a third party on behalf of a household residing in transitional housing for the homeless be excluded from the household's income for food stamp purposes. The provision in this rule supersedes an earlier proposed regulatory change contained in a rulemaking published in the Federal Register on February 3, 1992. The earlier proposed rule would have implemented section 1721 of the Mickey Leland Memorial Domestic Hunger Relief Act and section 906 of the Food, Agriculture, Conservation, and Trade Act Amendments of 1991, which allowed households living in transitional housing to exclude from their income for food stamp purposes only a portion of any public or general assistance housing payments made to a third party on their behalf. DATES: Comments must be received on or before June 10, 1994 to be assured of consideration. ADDRESSES: Comments should be submitted to Judith M. Seymour, Eligibility and Certification Rulemaking Section, Certification Policy Branch, Program Development Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 22302. Comments may also be datafaxed to the attention of Ms. Seymour at (703) 305-2454. All written comments will be open for inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia, Room 720. FOR FURTHER INFORMATION CONTACT: Questions regarding the proposed rulemaking should be addressed to Ms. Seymour at the above address or by telephone at (703) 305-2496. SUPPLEMENTARY INFORMATION: Classification Executive Order 12866 This proposed rule is being issued in conformance with Executive Order 12866. Executive Order 12372 The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule and related notice(s) to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials. Regulatory Flexibility Act This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.). Ellen Haas, the Assistant Secretary for Food and Consumer Services, has certified that this final rule does not have a significant economic impact on a substantial number of small entities. State and local welfare agencies will be the most affected to the extent that they administer the Program. Paperwork Reduction Act This proposed rule does not contain reporting or recordkeeping requirements subject to approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1980 (44 U.S.C. 3507). Executive Order 12778 This proposed rule has been reviewed under Executive Order 12778, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the ``effective date'' paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program the administrative procedures are as follows: (1) For program benefit recipients--State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(10) and 7 CFR 273.15; (2) For State agencies--administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non- quality control (QC) liabilities); (3) For program retailers and wholesalers--administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8. Background On February 3, 1992, the Department published a proposed rule at 57 FR 3961 to implement section 1721 of the Mickey Leland Domestic Hunger Relief Act (Pub.L. 101-624, Title XVII, 104 Stat. 3786, November 28, 1990) (the 1991 Leland Act) and section 906 of the Food, Agriculture, Conservation, and Trade Act Amendments of 1991 (Pub.L. 102-237, 105 Stat. 1818, December 13, 1991). The proposed provision would have revised, in its entirety, paragraph (c)(1)(ii)(D) of 7 CFR 273.9 to allow an income exclusion for households living in transitional housing of an amount equal to 50 percent of the maximum shelter allowance provided to families receiving Aid to Families with Dependent Children (AFDC) residing in permanent housing under a State agency's approved AFDC plan which included an identifiable AFDC shelter allowance or component. The proposed rule specified that this provision would not apply to those States which did not have a separately identifiable shelter allowance or component in their approved AFDC plans. Comments were solicited on the provisions of the proposed rulemaking through March 4, 1992, and a total of three comments were received. Subsequent to publication of the proposed rule and prior to the publication of a final rule, section 13914 of Chapter 3 Title XIII of the Omnibus Budget Reconciliation Act of 1993, Public Law 103-66 (the Mickey Leland Childhood Hunger Relief Act), (the 1993 Leland Act) revised section 5(k)(2)(F) of the Food Stamp Act, 7 U.S.C. 2014(k)(2)(F), to require that the full amount of any public assistance/general assistance (PA/GA) housing assistance payments made to a third party on behalf of a household residing in transitional housing for the homeless be excluded from a household's income for food stamp purposes. Because section 13914 of the 1993 Leland Act supersedes section 1721 of the 1991 Leland Act and section 906 of the Food, Agriculture, Conservation, and Trade Act Amendments of 1991, the Department is not finalizing the provision of the February 3, 1992 proposed rule. Instead, the Department is proposing a new revision of paragraph (c)(1)(ii)(D) of 7 CFR 273.9 that implements section 13914 of the 1993 Leland Act. In regard to the three comments received on the February 3, 1992 proposed rule, two are still pertinent to this rulemaking and the Department addresses them below. The third comment referred to the regulatory language of the proposed rule, which has been superseded, and therefore is no longer pertinent and will not be addressed. The first commenter wrote to support the Department's decision to make the definition of ``transitional housing'' flexible. In the preamble of the proposed rule (57 FR 3962), the Department chose not to promulgate regulations which would define the term ``transitional housing.'' The Department felt that the intent of the 1991 Leland Act would best be served by allowing State agencies to make case-by-case determinations as to whether housing for homeless households was transitional or permanent using the Department of Housing and Urban Development's (HUD) definition of transitional housing as an evaluation criterion. The commenter was pleased with this decision as HUD's flexible definition does not require the absence of cooking facilities for housing to be considered transitional and does not exclude any specific type of housing. The commenter noted that the omission of any type of temporary housing, such as welfare hotels, from this provision would unfairly make eligibility for the exclusion contingent upon the chance assignment of households to temporary housing. The Department notes that the definition of transitional housing set forth in and referred to in the February 3, 1992 proposed rule, set forth in section 422(12)(A) of the Stewart B. McKinney Homeless Assistance Act, Public Law 100-77, 42 U.S.C. 11382(12)(A), was repealed by section 1403(a) of the Housing and Community Development Act of 1992, Public Law 102-550, Title XIV (Stewart B. McKinney Homeless Housing Assistance Amendments Act of 1992) 106 Stat. 4013, October 28, 1992 (the 1992 McKinney Act). Section 424(b) of the 1992 McKinney Act, 42 U.S.C. 11384(b), now states that housing is transitional if its purpose ``is to facilitate the movement of homeless individuals and families to permanent housing within 24 months or such longer period as the Secretary [of Housing and Urban Development] determines necessary.'' Like its predecessor, the current definition of transitional housing does not exclude specific types of housing and does not require the presence of cooking facilities for a dwelling to be considered housing. The Department wishes to emphasize in this proposed rule that it still intends to afford State agencies latitude in determining whether housing is transitional. The second commenter asked that the Department write a provision that would allow food stamps to be issued to homeless households in transitional housing on an immediate, emergency basis, perhaps by issuing only half the amount of stamps for which households may be eligible. The commenter argued that households often encounter delays in receiving benefits because of problems providing information that has been lost in their moves. The commenter also felt that five working days is a unduly long time to wait to receive food stamps, especially if a weekend is involved. The Food Stamp Act of 1977, as amended, is specific regarding the procedures for expedited service of benefits. Section 11(e)(9) of the Food Stamp Act, 7 U.S.C. 2020(e)(9), allows State agencies to have up to five days (calendar days, not working days) after the date of application to issue benefits to a household eligible for expedited service. The Department has no authority to change this time period. However, State agencies are not prohibited from issuing benefits to household eligible for expedited services in less than five days so long as the procedural and other requirements for expedited service are met. Implementation Section 13971 of the 1993 Leland Act requires that the provisions of this rulemaking be effective September 1, 1994. Prior to September 1, 1994, State agencies should continue to follow the requirements of section 1781 of the 1991 Leland Act, which allows households living in transitional housing to exclude from their income for food stamp purposes only a portion of any PA/GA housing assistance payments made to third parties on their behalf. On September 1, 1994, State agencies must implement the provision of this rulemaking, which allows households living in transitional housing to exclude from their income for food stamp purposes only the full amount of any PA/GA housing assistance payments made to third parties on their behalf. Any variances resulting from implementation of the provision of this amendment shall be excluded from Quality Control error analysis for 120 days from this required implementation date in accordance with 7 CFR 275.12(d)(2)(vii). The provision must be implemented for all households that newly apply for Program benefits on or after the required implementation date. The current caseload shall be converted to these provisions at the household's request, at the time of recertification, or when the case is next reviewed, whichever occurs first. The State agency must provide restored benefits to such households back to the required implementation date or the date of application whichever is later. If for any reason a State agency fails to implement on the required implementation date, restored benefits shall be provided, if appropriate, back to the required implementation date or the date of application whichever is later. List of Subjects in 7 CFR Part 273 Administrative practice and procedure, Aliens, Claims, Food stamps, Fraud, Grant programs-social programs, Penalties, Records, Reporting and recordkeeping requirements, Social security, Students. Accordingly, part 273 is proposed to be amended as follows: 1. The authority citation for part 273 continues to read as follows: Authority: 7 U.S.C. 2011-2032. PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS 2. In Sec. 273.9, paragraph (c)(1)(ii)(D) is revised to read as follows: Sec. 273.9 Income and deductions. * * * * * (c) Income exclusions. * * * (1) * * * (ii) * * * (D) Housing assistance payments made to a third party on behalf of a household residing in transitional housing for the homeless; * * * * * Dated: March 31, 1994. Ellen Haas, Assistant Secretary for Food and Consumer Services. [FR Doc. 94-8503 Filed 4-8-94; 8:45 am] BILLING CODE 3410-30-U