[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14713] [[Page Unknown]] [Federal Register: June 16, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 272 and 273 [Amendment No. 355] RIN 0584-AB79 Food Stamp Program: Utility Reimbursement Exclusion AGENCY: Food and Nutrition Service, USDA. ACTION: Interim Rule and request for comments. ----------------------------------------------------------------------- SUMMARY: This action excludes certain utility reimbursements made by the Department of Housing and Urban Development (HUD) and Farmers Home Administration (FmHA) from income consideration in determining Food Stamp Program eligibility and benefits. This action will result in increased benefits to households that receive the reimbursements, a consistent nationwide policy, greater consistency in the treatment of housing and energy assistance payments, and more consistency with the Aid to Families with Dependent Children (AFDC) Program. DATES: This rule is effective and must be implemented no later than August 1, 1994. Comments must be received on or before August 15, 1994 to be assured of consideration. ADDRESSES: Comments should be submitted to Judith M. Seymour, Eligibility and Certification Regulation 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 public 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 The Food and Nutrition Service is issuing this interim rule in conformance with Executive Order 12866 and it has been designated ``economically significant.'' 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 in 7 CFR part 3015, Subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials. Regulatory Flexibility Act This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Ellen Haas, the Assistant Secretary for Food and Consumer Services, has certified that this 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 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). Regulatory Impact Analysis Need for Action This rule is required to eliminate inconsistent policies resulting from litigation, promote equity in the treatment of housing and energy assistance, and increase consistency with the Aid to Families with Dependent Children program. Benefits This action increases benefits to low-income households responsible for paying utility expenses separately from their rent who receive utility reimbursements from HUD and FmHA. Costs It is estimated that this action will increase the cost of the Food Stamp Program by approximately $13 million for each month of its implementation in FY 1994 and $160 million in FY 1995. Executive Order 12778 This 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)(1) 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) or Part 284 (for rules related to 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. Public Participation and Effective Date The provisions of this rulemaking are required to be effective and implemented no later than August 1, 1994. Because of the need to establish a consistent nationwide policy with respect to the treatment of the specified utility reimbursements, Ellen Haas, Assistant Secretary for Food and Consumer Services, has determined, pursuant to 5 U.S.C. 553, that public comment on this rulemaking prior to implementation is impracticable. However, because we believe that the administration of the rule may be improved by public comment, comments are solicited on this rule for 60 days. All comments will be analyzed, and any appropriate changes to the rule will be incorporated in the subsequent publication of a final rule. Background The HUD utility reimbursements excluded from Food Stamp Program (Program) income consideration by this rule are provided pursuant to the United States Housing Act of 1937 (the Housing Act), 42 U.S.C. 1437, to comply with a provision of the Housing Act (42 U.S.C. 1437a(a)(1)) that requires HUD to limit the shelter costs of tenants in Federally assisted housing to 30 percent of their income. In calculating a tenant's rent payment, HUD has interpreted the term ``rent'' to include the cost of utilities and other services, including electricity, gas, heating fuel, water and sewerage, and trash and garbage collection (24 CFR 813.102, 965.472, 965.476). In some housing, utilities are included in the tenant's rent. In units in which the utilities are paid directly by the tenant, HUD permits a deduction to be made from the rent paid to the owner on account of the separate payment being made to the utility supplier. This deduction, provided for in 24 CFR 813.102 and 913.102, for the estimated value of utilities and charges for other housing services payable directly by the family is called a ``utility allowance.'' The amount of the utility allowance is based, not on an individual family's expenses, but on a community- wide standard. Therefore, the tenant's actual utility costs may be more or less than the allowance. For most tenants, the amount of the utility allowance is less than the amount they are required to pay toward their rent including utilities. In most cases, the utility allowance involves no direct payment to the household, but is merely a credit reducing the household's contribution to the landlord. If the utility allowance exceeds the rent that can be charged for a dwelling, the excess is paid in the form of a ``utility reimbursement'' or rebate to the household. Similar reimbursements are made to some rural low-income households by the Farmers Home Administration (FmHA) of the Department of Agriculture as part of its Rental Assistance Program which provides, pursuant to 7 CFR pt. 1930, subpt. C; pt. 1944, subpt. E, loans for housing in rural areas. Under the FmHA Program, the borrower (the owner of the property) may apply for Rental Assistance for each tenant in the project who meets the eligibility criteria. The Rental Assistance payment equals the difference between 30 percent of the household's income and the sum of the rent plus the utility allowance for the project. If the tenant pays the utilities, the total Rental Assistance payment from FmHA is made to the owner, who is obligated to pass on to the tenant the portion allocated to utilities. When FmHA's utility allowance is more than 30 percent of the household's adjusted income, the landlord is obligated to forward the difference to the tenant as a utility reimbursement. Under section 5(d) of the Food Stamp Act of 1977 (7 U.S.C. 2014(d)), any income received by the household directly or indirectly must be counted in determining the household's eligibility and benefits, except for the exclusions listed in the Act. Neither the Food Stamp Act nor current regulations specifically address the treatment of HUD and FmHA utility reimbursements. It is clear that Federal energy assistance payments are excluded by section 5(d)(11) of the Food Stamp Act. However, the HUD and FmHA reimbursements are not provided specifically for energy assistance alone. Current policy requires counting these HUD utility reimbursements as income. This policy is applicable nationwide except in jurisdictions in which the reimbursements are excluded by judicial decision. In the past, it was our policy that utility reimbursements did not qualify as energy assistance. In response to questions concerning the payments, we issued Policy Memo 90-6 addressing HUD payments and Policy Memo 3-91-04 regarding FmHA payments. Policy Memo 90-6 provides that any amount paid by HUD directly to the household as a utility reimbursement or indirectly to the utility provider must be counted as income to the household. Under Policy Memo 3-91-04, the utility reimbursement paid by the landlord to the tenant is counted as income to the household. This policy has been maintained over several years and has been successfully defended in court on a number of occasions. While we believe the current policy is a permissible interpretation of the statute, we believe it is not in the best interest of the Program to continue to litigate this issue. In reexamining the policy, we have determined that there are several compelling reasons to change the policy so as to exclude the utility reimbursements in the future. First, although the HUD and FmHA utility reimbursements are not provided specifically for energy assistance, a substantial portion of a household's utility expense is for heating and cooling. A change in policy to exclude the utility reimbursements is not inconsistent with the specific exclusion in section 5(d)(11) of the Food Stamp Act and 7 CFR 273.9(c)(11) for Federal energy assistance. Excluding the utility reimbursements under the existing regulatory provision would achieve consistency in the treatment of Federal energy assistance. Second, the current policy is inconsistent with the policy of the Aid to Families with Dependent Children (AFDC) Program in most States. Increasing consistency between the Food Stamp and AFDC Programs is a Department priority because it makes the Programs simpler to administer and more understandable to households. Maintaining the current policy also causes inconsistent treatment of households in subsidized housing between those in traditional housing whose utilities are included in their rent and households who are responsible for paying their own utility expenses. Excluding the utility reimbursements would provide greater consistency in treatment of various forms of housing assistance. Finally, a change in policy eliminates the need to maintain at least two distinct and conflicting policies for the foreseeable future because courts in some jurisdictions have affirmed the current policy and others have found it insupportable. Therefore, this rule amends 7 CFR 273.9(c)(11) to provide that payments or allowances made for the purpose of providing energy assistance under any Federal law, including HUD and FmHA reimbursements, are excluded from income. We are making a conforming amendment to 7 CFR 273.10(d)(1)(i) to provide that a utility expense which is reimbursed or paid by an excluded payment, including HUD or FmHA utility payments, shall not be deductible. In accordance with Section 5(e) of the Act, 7 U.S.C. 2014(e), households that receive these payments will be entitled to use a standard utility allowance that includes a heating or cooling component only if they incur heating or cooling costs that exceed the amount of the excluded payment. Implementation This rule is effective and must be implemented no later than August 1, 1994. For quality control purposes, any variances resulting from the implementation of the rule shall be excluded from error analysis for 120 days from the required implementation date, in accordance with 7 CFR 275.12(d)(2)(vii), as modified by section 13951(c)(2) of Pub. L. 103-66. Section 13951(c)(2) extended the variance exclusion period of Section 16(c)(3)(A) of the Act, 7 U.S.C. 2025 (c)(3)(A), from a maximum of 90 days to 120 days. The provisions 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 household request, at the time of recertification, or when the case is next reviewed, whichever occurs first, and the State agency must provide restored benefits back to the required implementation date. 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 7 CFR Part 272 Alaska, Civil rights, Food stamps, Grant programs--social programs, Reporting and recordkeeping requirements. 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, 7 CFR parts 272 and 273 are amended as follows: 1. The authority citation for Parts 272 and 273 continues to read as follows: Authority: 7 U.S.C. 2011-2032. PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES 2. In Sec. 272.1, a new paragraph (g)(134) is added to read as follows: Sec. 272.1 General terms and conditions. * * * * * (g) Implementation. * * * (134) Amendment No. 355. The provisions of Amendment No. 355 are effective and must be implemented on August 1, 1994. Any variance resulting from implementation of the provisions of this amendment shall be excluded from error analysis for 120 days from this required implementation date in accordance with 7 CFR 275.12(d)(2)(vii) as modified by section 13951(c)(2) of Pub. L. 103-66. The provisions 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 household request, at the time of recertification, or when the case is next reviewed, whichever occurs first, and the State agency must provide restored benefits back to the required implementation date. 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. PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS Sec. 273.9 [Amended] 3. In 273.9, the first sentence of paragraph (c)(11) introductory text is amended by adding the words ``, including utility reimbursements made by the Department of Housing and Urban Development and the Farmers Home Administration'' before the period. 4. In 273.10, paragraph (d)(1)(i) is amended by adding a sentence at the end of the paragraph to read as follows: Sec. 273.10 Determining household eligibility and benefit levels. * * * * * (d) Determining deductions. * * * (1) Disallowed expenses. (i) * * * A utility expense which is reimbursed or paid by an excluded payment, including HUD or FmHA utility reimbursements, shall not be deductible. * * * * * Dated: June 13, 1994. Ellen Haas, Assistant Secretary for Food and Consumer Services. [FR Doc. 94-14713 Filed 6-15-94; 8:45 am] BILLING CODE 3410-30-U