[Federal Register Volume 67, Number 138 (Thursday, July 18, 2002)]
[Rules and Regulations]
[Pages 47430-47432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-18051]
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Part II
Department of Housing and Urban Development
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24 CFR Part 5
Temporary Assistance for Needy Families (TANF) Program; Conforming
Changes to Annual Income Requirements for HUD's Public Housing and
Section 8 Assistance Program; Final Rule
Federal Register / Vol. 67, No. 138 / Thursday, July 18, 2002 / Rules
and Regulations
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 5
[Docket No. FR-4635-F-02]
RIN 2501-AC77
Temporary Assistance for Needy Families (TANF) Program;
Conforming Changes to Annual Income Requirements for HUD's Public
Housing and Section 8 Assistance Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule updates and clarifies HUD's annual income
requirements for its public housing and Section 8 assistance programs.
Specifically, the final rule clarifies that annual income includes
payments under the Temporary Assistance for Needy Families (TANF)
program, but only to the extent such payments qualify as ``assistance''
under the TANF program regulations issued by the Department of Health
and Human Services (HHS) and are not otherwise excluded under HUD's
regulation. This final rule follows publication of an April 20, 2001,
proposed rule and takes into consideration public comments received on
the proposed rule. After careful consideration of the comments, HUD has
decided to adopt the proposed rule without change.
DATES: Effective Date: August 19, 2002.
FOR FURTHER INFORMATION CONTACT: Patricia Arnaudo, Senior Programs
Manager, Department of Housing and Urban Development, Office of Public
and Indian Housing, 451 Seventh Street, SW, Room 4222, Washington, DC
20410; telephone (202) 708-0744 (this is not a toll-free telephone
number). Persons with hearing or speech impairments may access this
number via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On April 20, 2001 (66 FR 20368), HUD published a proposed rule to
update and clarify HUD's annual income requirements for its public
housing and Section 8 assistance programs. The changes are intended to
ensure greater conformity between HUD's annual income requirements and
the TANF program regulations, and to make the annual income
requirements easier to understand for both program participants and
public housing agencies.
A. HUD's Annual Income Requirements
HUD's regulations at 24 CFR part 5, subpart F, establish
requirements governing the determination of annual income of families
who apply for, or receive assistance under, the Section 8 and public
housing programs. The HUD regulations define ``annual income'' to mean
all amounts, monetary or not, which:
(1) Go to, or on behalf of, the family head or spouse (even if
temporarily absent) or to any other family member;
(2) Are anticipated to be received from a source outside the family
during the upcoming 12 month period; and
(3) Are not excluded under Sec. 5.609(c).
Section 5.609(b)(6) establishes the requirements determining the
amount of income when the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the
actual costs of these items. The term ``welfare assistance'' is defined
at Sec. 5.603. Specifically, this term is defined to mean ``[w]elfare
or other payments to families or individuals, based on need, that are
made under programs funded, separately or jointly, by Federal, State,
or local governments.''
B. ``Assistance'' Under the Temporary Assistance for Needy Families
(TANF) Program
HUD's definition of ``welfare assistance'' at Sec. 5.603 includes
assistance provided under the Temporary Assistance for Needy Families
(TANF) program. The TANF block grant program replaced the existing
welfare program known as Aid to Families with Dependent Children
(AFDC), which provided cash assistance to needy families on an
entitlement basis. It also replaced the related programs known as the
Job Opportunities and Basic Skills Training program (JOBS) and
Emergency Assistance (EA).
II. HUD's Proposed Rule
On April 20, 2001, HUD published a proposed rule that would make
two changes designed to clarify the relationship between HUD's annual
income requirements for its Section 8 and public housing programs, and
the TANF program definition of ``assistance.'' First, the rule would
clarify that the term ``welfare assistance,'' for purposes of
calculating annual income, includes TANF payments, but only to the
extent such payments meet the definition of ``assistance'' under 45 CFR
260.31 and are not otherwise excluded under Sec. 5.609(c).
Second, the rule would clarify the definition of ``welfare
assistance'' at Sec. 5.603. Specifically, the April 20, 2001, rule
proposed to clarify that welfare assistance includes TANF
``assistance,'' as that term is defined by the HHS regulation at 45 CFR
260.31.
HUD proposed these clarifications to make the annual income
requirements easier to understand for program participants and public
housing agencies. The amendments were also designed to ensure greater
conformity between the annual income requirements and the TANF program
regulations.
III. This Final Rule
This final rule follows publication of the April 20, 2001, proposed
rule, and takes into consideration the public comments received on the
proposed rule. This final rule adopts the proposed rule and makes no
changes.
IV. Discussion of Public Comments on the April 20, 2001, Proposed Rule
The public comment period on the April 20, 2001, proposed rule
closed on June 19, 2001. HUD received three comments, two from public
housing agencies (PHAs) and one from a nonpartisan research
organization.
This section of the preamble presents a summary of the significant
issues raised by the public commenters on the April 20, 2001, proposed
rule and HUD's responses to these comments.
One commenter wrote to express support for the proposed change to
the definition of the term ``welfare assistance'' to include the TANF
program definition of ``assistance'' under HHS regulation 45 CFR
260.31. The commenter wrote that the proposed changes will reduce
conflicting interpretations of ``welfare assistance'' given to families
who receive both TANF and housing assistance.
Comment: Modification to exclude TANF-funded food assistance for
legal immigrants. One commenter, who expressed support for the proposed
rule, recommended one modification to the proposed rule. The suggested
modification was to exclude TANF-funded food assistance for legal
immigrants that some states have chosen to provide after the 1996
restrictions.
HUD Response: HUD declines to adopt the suggestion to specifically
exclude this type of assistance. The purpose of this rule is to clarify
the relationship between HUD's annual income requirements for assisted
housing purposes and the TANF
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program definition of assistance, not to add additional exclusions to
the definition of annual income. The rule provides that annual income
includes TANF payments, but only to the extent such payments meet the
definition of ``assistance'' under regulations promulgated by HHS at 45
CFR 260.31, and are not otherwise excluded under 24 CFR 5.609(c).
Therefore, if a specific type of assistance does not meet the
definition of assistance under the TANF regulation, then it would be
excluded for HUD purposes.
Comment: HUD should clarify the interaction of the revised
definition of ``welfare assistance'' with existing rules. The commenter
suggested that HUD clarify the interaction of the revised definition of
``welfare assistance'' with existing rules on exclusions from income.
In addition, the clarification should be included in the preamble to
the final rule as well as in the implementing instructions.
HUD Response: The preamble to the proposed rule clarified that
``welfare assistance'' included TANF payments, but only to the extent
such payments meet the definition of ``assistance'' under 45 CFR 260.31
and are not otherwise excluded under 24 CFR 5609(c). This is also
reflected in the revised regulation at 24 CFR 5.609(b)(6)(i)(B). HUD
believes that this language is sufficient to address the interaction of
the revised definition of ``welfare assistance'' with existing
regulations. As a result, HUD has not adopted this suggestion.
Comment: HUD should give specific examples (without limitation) of
the types of common TANF payments that would be excluded from income by
the new rule. The commenter used as an example that the proposed rule
would exclude TANF funded one-time payments such as utility arrears,
because such one-time or short-term payments are excluded from the TANF
definition of assistance. The commenter would like to see other
specific examples of payments that are excluded.
HUD Response: HUD has not adopted this suggestion. HUD will not
give specific examples within the regulation. The TANF program
regulations are discussed in the preamble, and will only be referenced
by citation in the HUD regulations. It is important that PHAs and local
TANF agencies work closely if there are questions related to
interpretation of HUD or TANF regulations. HUD will also consider
developing additional guidance on this subject which would be available
on the HUD website and in future issuances.
Comment: The proposed rule also invited comments on the utility of
HUD's previous guidance (PIH 2000-11) on the development of cooperative
agreements between PHAs and welfare offices, and on whether other
guidance and training is needed to further public housing and welfare
coordination. One commenter thought it would be helpful to request that
PHAs, on a voluntary basis, submit to HUD copies of cooperative
agreements to share ideas with other PHAs. Further, the commenter
suggested that there is a great need for further guidance and training
for PHAs and welfare agencies on areas of beneficial coordination such
as Family Self-Sufficiency (FSS), earnings disregards and other rent-
based work incentives, Section 3 requirements, etc.
HUD Response: HUD appreciates the comments and will take them into
consideration.
Comment: The proposed clarification does not show the exclusions as
defined under the new definition of ``Welfare Assistance.'' One
commenter noted that the ``welfare assistance'' definition underwent a
change in the year 2000, which excluded (for the purposes of the FSS
program only) the following:
(1) Amounts solely directed to meet housing expenses.
(2) Amounts for health care.
(3) Food stamps and emergency rental and utilities assistance.
(4) SSI, SSDI, or Social Security.
The commenter wrote that HUD's proposed clarification does not show
any of the above line items as being excluded. The commenter stated,
``welfare assistance, if once again included in the above items, may
cause many families who are moving toward self sufficiency to be
derailed.'' The commenter would like to see these items remain excluded
from the definition of ``welfare assistance'' for the FSS program.
HUD Response: The definition for ``welfare assistance'' for
purposes of the FSS program only (24 CFR 984.103) was changed by the
final rule (Changes to Admission and Occupancy Requirements in the
Public Housing and Section 8 Housing Assistance Programs, published in
the Federal Register on March 29, 2000 (65 FR 16692)), to refer only to
cash maintenance payments for ongoing basic needs, funded under Federal
or State welfare programs such as the TANF program. This definition,
for purposes of the FSS program only, remains unchanged and is not
affected by this final rule.
V. Findings and Certifications
Environmental Impact
This final rule involves the discretionary establishment of income
limits and exclusions with regard to eligibility for or calculation of
HUD housing assistance or rental assistance, which does not constitute
a development decision that affects the physical condition of specific
project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6),
this rule is categorically excluded from environmental review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this rule and in so doing
certifies that this rule would not have a significant economic impact
on a substantial number of small entities. There are no anti-
competitive discriminatory aspects of the rule with regard to small
entities, and there are no unusual procedures that would need to be
complied with by small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of Section 6 of the Executive Order. This rule would not have
federalism implications and would not impose substantial direct
compliance costs on State and local governments or preempt State law
within the meaning of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and the private sector. This rule would not impose any
Federal mandates on any State, local, or tribal governments, or the
private sector within the meaning of the Unfunded Mandates Reform Act
of 1995.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance numbers for these
programs are 14.850 and 14.871.
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List of Subjects in 24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs--housing and community
development, Grant programs--Indians, Individuals with disabilities,
Loan programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Pets, Public housing, Rent
subsidies, Reporting and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, 24 CFR part
5 is amended as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
1. The authority citation for 24 CFR part 5 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
Subpart F--Section 8 and Public Housing; Family Income and Family
Payment; Occupancy Requirements for Section 8 Project-Based
Assistance
2. The authority citation for subpart F continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, and
3535(d).
3. In Sec. 5.603(b), revise the definition of ``Welfare
assistance'' to read as follows:
Sec. 5.603 Definitions.
* * * * *
(b) * * *
Welfare assistance. Welfare or other payments to families or
individuals, based on need, that are made under programs funded,
separately or jointly, by Federal, State or local governments
(including assistance provided under the Temporary Assistance for Needy
Families (TANF) program, as that term is defined under the implementing
regulations issued by the Department of Health and Human Services at 45
CFR 260.31).
* * * * *
4. Revise Sec. 5.609(b)(6) to read as follows:
Sec. 5.609 Annual income.
* * * * *
(b) * * *
(6) Welfare assistance payments.
(i) Welfare assistance payments made under the Temporary Assistance
for Needy Families (TANF) program are included in annual income only to
the extent such payments:
(A) Qualify as assistance under the TANF program definition at 45
CFR 260.31; and
(B) Are not otherwise excluded under paragraph (c) of this section.
(ii) If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the
actual cost of shelter and utilities, the amount of welfare assistance
income to be included as income shall consist of:
(A) The amount of the allowance or grant exclusive of the amount
specifically designated for shelter or utilities; plus
(B) The maximum amount that the welfare assistance agency could in
fact allow the family for shelter and utilities. If the family's
welfare assistance is ratably reduced from the standard of need by
applying a percentage, the amount calculated under this paragraph shall
be the amount resulting from one application of the percentage.
* * * * *
Dated: July 8, 2002.
Mel Martinez,
Secretary.
[FR Doc. 02-18051 Filed 7-17-02; 8:45 am]
BILLING CODE 4210-33-P