[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.

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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