[Federal Register Volume 66, Number 13 (Friday, January 19, 2001)]
[Rules and Regulations]
[Pages 6218-6226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1536]



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Part VII





Department of Housing and Urban Development





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24 CFR Parts 5, 92, et al.



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Determining Adjusted Income in HUD Programs Serving Persons with 
Disabilities: Requiring Mandatory Deductions for Certain Expenses; and 
Disallowance for Earned Income; Final Rule

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules 
and Regulations

[[Page 6218]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 5, 92, 200, 236, 574, 582, 583, 891, 982

[Docket No. FR-4608-F-02]
RIN 2501-AC72


Determining Adjusted Income in HUD Programs Serving Persons with 
Disabilities: Requiring Mandatory Deductions for Certain Expenses; and 
Disallowance for Earned Income

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This final rule amends HUD's regulations in part 5, subpart F, 
to include additional HUD programs in the list of programs that must 
make certain deductions in calculating a family's adjusted income. 
These deductions primarily address expenses related to a person's 
disability, for example medical expenses or attendant care expenses. 
The purpose of this amendment is to expand the benefits of these 
deductions to persons with disabilities served by HUD programs not 
currently covered by part 5, subpart F. Second, this rule adds a new 
regulatory section to part 5 to require for some but not all of these 
same programs the disallowance of increases in income as a result of 
earnings by persons with disabilities. HUD believes that making these 
deductions and disallowance available to persons with disabilities 
through as many HUD programs as possible will assist persons with 
disabilities in obtaining and retaining employment, which is an 
important step toward economic self-sufficiency.
    This rule follows publication of a August 21, 2000 proposed rule, 
and takes into consideration public comments received on the rule.

DATES: Effective Date: February 20, 2001.

FOR FURTHER INFORMATION CONTACT: For the HOME Investment Partnerships 
Program, contact Mary Kolesar, Office of Community Planning and 
Development, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410, telephone (202) 708-2470.
    For the Housing Choice Voucher Program, contact Patricia Arnaudo, 
Office of Public and Indian Housing, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Washington, DC 20410, telephone 
(202) 708-0744.
    For the Housing Opportunities for Persons with AIDS Program, 
contact David Vos, Office of Community Planning and Development, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Washington, DC 20410, telephone (202) 708-1934.
    For the Rent Supplement Program, contact, Willie Spearmon, Office 
of Housing, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410; telephone (202) 708-3000.
    For the Rental Assistance Payment (RAP) Program, contact Willie 
Spearmon, Office of Housing, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Washington, DC 20410; telephone 
(202) 708-3000.
    For the Section 202 Supportive Housing Program for the Elderly 
(including Section 202 Direct Loans for Housing for the Elderly and 
Persons with Disabilities), contact Aretha Williams, Office of Housing, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Washington, DC 20410, telephone (202) 708-2866.
    For Section 8 Project-Based, contact Willie Spearmon, Office of 
Housing, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410; telephone (202) 708-3000.
    For the Section 811 Supportive Housing Program for Persons with 
Disabilities, contact Gail Williamson, Office of Housing, Department of 
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 
20410, telephone (202) 708-2866.
    For the Shelter Plus Care Program, contact the State Assistance 
Division, Office of Community Planning and Development, Department of 
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 
20410, telephone (202) 708-2140.
    For the Supportive Housing Program (McKinney-Vento Act Homeless 
Assistance), contact Clifford Taffet, Office of Community Planning and 
Development, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410, telephone (202) 708-1234.
    For all of the above telephone numbers, persons with hearing or 
speech-impairments may call 1-800-877-8339 (Federal Information Relay 
Service TTY). (Other than the ``800'' number, the telephone numbers are 
not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's FY 1999 Appropriations Act, which included the Quality 
Housing and Work Responsibility Act of 1998 (as title V of the FY 1999 
HUD Appropriations Act) (the entire FY 1999 Appropriations Act, 
including title V, is Public Law 105-276, approved October 21, 1998, 
and frequently referred to as the ``Public Housing Reform Act'') 
enacted landmark measures in HUD programs, including many of the 
reforms sought by Secretary Cuomo, such as transforming public housing, 
creating additional housing assistance vouchers, merging the Section 8 
certificate and voucher programs, and enabling more families to obtain 
FHA mortgages to become homeowners. Since the Public Housing Reform Act 
became law, HUD has published many rules and notices implementing the 
important changes in HUD programs required by the Act. While the 
majority of these changes are applicable to HUD's public housing and 
Section 8 programs, HUD has been able to extend, administratively at 
times, the benefits of some of these landmark measures to HUD programs 
not specifically identified by the statute.
    On August 21, 2000 (65 FR 50842), HUD published a proposed rule 
that proposed to extend the benefits of (1) deducting certain expenses 
as provided by the Public Housing Reform Act (currently applicable only 
to public housing and Section 8 housing (tenant-based and project-
based)); and (2) disregarding certain increases in earned income as 
provided by the Public Housing Reform Act (currently applicable only to 
public housing) to persons with disabilities served by the following 
HUD programs--HOME Investment Partnerships, Housing Opportunities for 
Persons with AIDS, Supportive Housing, and Housing Choice Voucher.
    HUD proposed these benefit extensions to persons with disabilities 
because HUD believes that these deductions and the disregard of earned 
income constitute an important step in helping persons with 
disabilities find employment and retain employment. HUD is aware that 
the lack of accessible, affordable housing continues to be a barrier to 
the ability of persons with disabilities to take advantage of economic 
opportunities in many communities across the country. The availability 
of accessible, affordable housing and the location of that housing can 
be the key to persons with disabilities in obtaining employment. The 
August 21, 2000 proposed rule provides more detailed information on the 
two amendments made by the proposed rule (the extension of certain 
mandatory deductions of expenses, and the disregard of earned income) 
and HUD refers the reader to the earlier

[[Page 6219]]

rulemaking for more detailed information.

II. Discussion of Public Comments on the Proposed Rule

    The public comment period for the August 21, 2000, proposed rule 
closed on October 20, 2000. HUD received 26 comments. The commenters 
represented a broad cross-section of affected entities. Commenters 
included a wide spectrum of individuals and entities affected by or 
interested in this rulemaking. The majority of the commenters expressed 
support for the rule's proposals. Notwithstanding widespread support of 
the rule's proposals, commenters raised certain concerns about the 
rule, primarily with respect to HUD's proposal to expand the earned 
income disregard. The following presents a discussion of the 
significant comments and questions raised by the commenters and HUD's 
responses to these comments and questions.

A. Mandatory Expense Deduction From Gross Income

    Comment: This proposal is a positive step in helping persons with 
disabilities become economically self sufficient. The following 
comments reflect the types of comments submitted in support for this 
proposal.
    The expense deduction will help people with disabilities to obtain 
and keep employment.
    The expense deduction will increase the opportunity for persons 
with disabilities to access many HUD programs.
    The expense deduction will have a positive effect on persons with 
disabilities.
    The expense deduction creates incentives for residents in HUD-
assisted programs to return to the work force by adjusting their rent 
to reflect increased expenses.
    Many poor people must spend a large portion of their income on 
required services. The rule represents a positive step by ensuring that 
money spent on care for persons with disabilities and child care 
expenses is not counted as income.
    The more uniform standard of income deductions as proposed by the 
rule will simplify program administration at the local level.
    HUD Response. HUD appreciates the comments in support of the 
proposal to deduct certain expenses from gross income.
    Comment. The rule should allow for the deduction of expenses 
incurred to prevent institutionalization of a person with disabilities.
    HUD Response. The rule provides for deduction of unreimbursed 
reasonable attendant care expenses. (See Sec. 5.611(a)(3)(ii).)
    Comment. Since the intention of the rule is self-sufficiency, the 
rule should not limit the exclusion of certain expenses only to the 
extent they exceed three percent of gross income. The rule would better 
serve families if it allows for a complete exclusion of the listed 
expenses.
    HUD Response. The three percent cap is imposed by statute, and 
therefore cannot be revised by HUD through regulation. (See 42 U.S.C. 
1437a(b)(5).)
    Comment. The definition of ``adjusted income'' in Sec. 5.611 
provides the basis for determining the amount of rent to be charged to 
an eligible household after the initial determination of eligibility is 
made. As amended by the proposed rule, Sec. 5.611 ensures that 
adjustments to income for persons with disabilities would be taken into 
account in determining rent. However, if Sec. 5.609 is not similarly 
amended, some persons with disabilities whose gross incomes slightly 
exceed the program limits, but who would be eligible for substantial 
deductions for expenses of care, would be excluded from program 
eligibility.
    HUD Response. The statutory provision for these deductions relates 
to adjusted income, not income for eligibility purposes. There is no 
indication of Congressional intent to adjust eligibility limits, which 
most applicants are considerably below in any event, for such purposes.

B. Mandatory Earned Income Disregard

    Comment: This proposal is a positive step in helping persons with 
disabilities become economically self sufficient. The following 
comments reflect the types of comments submitted in support for this 
proposal.
    Persons with disabilities often have difficulty transitioning to 
employment. The earned income disregard will support these families in 
their quest for independence, and ease the transition to self-
sufficiency.
    The earned income disregard concept has worked well in conjunction 
with the Temporary Assistance for Needy Families (TANF) program. It 
should be equally valuable in helping persons with disabilities 
residing in HUD-assisted housing move toward self-sufficiency.
    Counting all income from earnings is tantamount to removing any 
incentive to work and be a contributing citizen when it would result in 
the loss or significant reduction in housing assistance benefits.
    The more residents who work, the greater the income to HUD and 
those involved in operating HUD assisted housing.
    The earned income disregard helps qualified families negotiate the 
transition from public assistance to employment. Any negative budget 
impacts caused by the disregard will be short-term in nature and will 
be offset by increased rental income (or lower subsidy levels) as 
families are able to stay successfully employed.
    HUD Response. HUD appreciates the comments in support of this 
proposal.
    Comment. Broader application of the earned income disregard may 
diminish funds available for other programs. A mandatory earned income 
disregard will, in some cases, limit housing choice. It will force 
agencies to disallow earned income that would otherwise enable families 
to qualify for better housing under the Section 8 voucher program. The 
impact of this proposed policy on the Housing Choice Voucher Program 
must be considered before finalizing the rule. The final rule needs to 
address all these concerns.
    HUD Response. HUD took these concerns into consideration in 
developing the proposed rule, and determined that any fiscal impact 
will not be significant and will be short-term. HUD believes that the 
long term benefits of this proposal--helping persons with disabilities 
obtain and retain employment--outweigh any initial short term impact. 
As several commenters pointed out, this proposal will help persons with 
disabilities move toward self-sufficiency, which will increase 
available funds for other families.
    Comment. The earned income disregard should be coordinated with 
other federal agencies (e.g., SSA, HHS, DOL) to ensure that there are 
no overlaps or inconsistencies with other applicable programs. The rule 
does not take into account the way the earned income disregard 
interfaces other federal programs affecting persons with disabilities.
    HUD Response. HUD undertook this coordination when developing its 
proposed and final rules on ``Changes in Admissions and Occupancy 
Requirements,'' published on April 30, 1999 (64 FR 23460) and March 29, 
2000 (61 FR 16692), which implemented the earned income disregard for 
public housing (see 24 CFR 960.255). The earned income disregard in 
Sec. 5.617 is modeled on Sec. 960.255.
    Comment. HUD should evaluate the effectiveness of the earned income 
disregard as an incentive for employment based on the historical

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experience of the public housing program before extending it to 
additional programs. Empirical studies are needed to validate the 
effectiveness of rent-based work incentives such as the mandatory 
earned income disregard.
    HUD Response. HUD believes that at this time the expansion of 
earned income disregard to persons with disabilities is an appropriate 
incentive for employment, and has determined that the costs of 
implementation of this expanded benefit to persons with disabilities 
are not significant.
    Comment. The Public Housing Reform Act specifically directs that 
the earned income disregard be applied to public housing. HUD must 
articulate in the final rule a sufficient justification for 
interpreting the statute so broadly as to allow extension of the earned 
income disregard to other programs as contemplated by the rule. The 
proposed rule did not provide this justification.
    HUD Response. Section 3(b) of the U.S. Housing Act of 1937 gives 
the Secretary the authority to define ``income'' and therefore through 
this definition of income allows the Secretary to apply the earned 
income disregard to HUD's housing voucher program. For the HOME 
Program, section 104(9) and (1) of the Cranston-Gonzalez National 
Affordable Housing Act (42 U.S.C. 12704) states that the varying median 
income definitions of low-and very low-income families shall be 
determined by the Secretary. For the HOPWA program, Section 859(a) of 
the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12908) 
cites to section 8 of the U.S. Housing Act of 1937 to the end that 
rental assistance ``shall be provided to the extent practicable in the 
manner provided for under section.'' This provision refers to rental 
assistance, not income, and vests in the administrator discretion 
whether it would be practicable to follow the temporary ineligibility 
of section 8 income disregards. For the Supportive Housing for the 
Homeless program, the authorizing statute contains no income 
limitations. Section 426(d) of the McKinney-Vento Homeless Assistance 
Act (42 U.S.C. 11386) states that assisted tenants may be required to 
pay an occupancy charge in an amount determined by the recipient 
providing the project, which may not exceed the amount determined under 
section 3(a) of the U.S. Housing of Act of 1937. Therefore, HUD can 
amend the regulations for this program to provide for use by the 
housing provider of earned income disregards in establishing its 
occupancy charges.
    Comment. Several commenters requested that HUD extend the earned 
income disregard to programs other than the four programs provided in 
the August 21, 2000 proposed rule. Their comments included the 
following:
    The earned income disregard should be extended to all Section 8 
participants, including those receiving Moderate Rehabilitation and 
Project Based assistance.
    The earned income disregard should be extended to all Section 8 
program participants, regardless of how the actual program title is 
styled. Program administration will be much easier if the earned income 
disregard is made applicable to all Section 8 programs.
    The earned income disregard should be extended to persons 
participating in the Section 811 program.
    The earned income disregard should be extended to all households 
served under Section 202.
    The earned income disregard should be extended to Shelter Plus Care 
recipients.
    The earned income disregard should be extended to all persons with 
disabilities, regardless of the program under which they are 
participating.
    The income disregard should be extended to all persons with 
disabilities in all types of HUD housing.
    HUD Response. As discussed in the preamble to the August 21, 2000, 
proposed rule, HUD extended the earned income disregard to persons with 
disabilities in four programs (the HOME Investment Partnerships 
Program, the Housing Opportunities for Persons with AIDS, Supportive 
Housing Program, and the Housing Choice Voucher Program) because HUD 
had the requisite statutory authority to do so. At this time, HUD does 
not have the statutory authority to extend the earned income disregard 
to other programs but is seeking such authority.
    Comment. The rule does not contain a suitable implementation 
strategy. There are many questions with regard to implementation of the 
earned income disregard. HUD should postpone the effective date of any 
proposed extension of the earned income disregard until HUD can provide 
additional guidance to PHAs.
    HUD Response. As is appropriate for rules, the rule establishes the 
requirements for application of the earned income disregard. The 
specifics of how this is to be implemented by public housing agencies 
(PHAs) will be set out in guidance issued by HUD. HUD issued guidance 
to PHAs on this subject in connection with the publication of the final 
rule on Admissions and Occupancy. HUD expects to issue further 
guidance.
    Comment. The Federal government should not substitute its own 
judgment for that of local housing providers since only at the local 
level can the costs and benefits of the mandatory income disregard be 
effectively weighed. Whether or not to incorporate the income disregard 
into specific programs is a matter best reserved to local discretion.
    HUD Response. Consistent with the Public Housing Reform Act, HUD 
has left considerable discretion to PHAs on the manner of 
implementation of various requirements imposed by the statute. However, 
it is primarily the responsibility of Congress and HUD to determine 
which categories of families will be eligible for certain benefits. 
Determining whether persons with disabilities will be eligible for the 
earned income disregard is a determination that should be made by HUD 
to ensure consistency and fairness in application across the nation, 
and not a decision that should be made solely at the local level.
    Comment. Notwithstanding its beneficial effect on program 
participants, an expanded earned income disregard will have a negative 
fiscal impact on local housing providers. HUD should raise 
administrative allowances to compensate agencies for the increased cost 
of managing earned income disregard provisions. The expanded earned 
income disregard will force housing providers to incur greater 
administrative costs. HUD should therefore include provisions in the 
rule to ``make them whole.'' Additionally, the use of a selective 
earned income disregard based on disability and specific program 
participation status places an undue administrative burden on housing 
providers since they must compute the earned income disregard in some 
cases, but not in others. Agencies that administer both Section 8 and 
Public Housing Programs will find it very difficult to train staff to 
compute rent one way for Section 8 and another way for Public Housing.
    HUD Response. HUD believes that any negative fiscal impact on local 
housing providers will not be significant. HUD recognizes that with the 
start-up of implementation of any new requirement or responsibility, 
there is an increase in administrative burden, but as the processes for 
implementation are established and once those processes are underway, 
the administrative burden lessens.
    Comment. The proposed earned income disregard will likely result in 
some individuals in a building receiving a benefit while others do not. 
This will

[[Page 6221]]

lead to friction between tenants and increase management difficulty.
    HUD Response. HUD believes that any friction that may be voiced by 
tenants will be minimal. As HUD noted in the preamble to the August 21, 
2000 proposed rule, estimates concerning unemployment indicate that the 
unemployment rate among persons with significant disabilities is in the 
range of 70% to 75%, among the highest of disadvantaged groups in the 
nation. HUD believes that the amendments made by this rule may help to 
lower this rate for persons residing in HUD assisted housing.
    Comment. HUD's earned income disregard policy needs to go further 
by expanding the amount of income that is excluded and graduating the 
level of the disregard to allow for a transitional period. The earned 
income disregard should incorporate a transition period and be 
applicable to other forms of public assistance. The time period under 
which earned income may be disregarded is too short since many persons 
with disabilities cycle in and out of employment. The 48 month, once in 
a lifetime exclusion contained in the rule should be modified to 
address the cyclical employment pattern of many persons with 
disabilities.
    HUD Response. The amount of income that is eligible for exclusion 
is established by statute (see 42 U.S.C. 1437a(b)(5)). The 48 month 
period arose from considerable public comment on the comparable 
regulatory provision for public housing (Sec. 960.255) in the rule on 
Admissions and Occupancy (see 61 FR 16704). Given the considerable 
public comment on the period of time in which earned income may be 
disregarded, HUD declines to modify that period at this time.
    Comment. The rule should allow child support paid by a non-
custodial parent who earns income or is engaged in educational 
activities to be excluded from income.
    HUD Response. The commenter makes a valid point, but such a change 
is outside the scope of this rulemaking and needs to be addressed in 
separate rulemaking.
    Comment. While the earned income disregard is an incentive for 
persons to become employed who are not working, the rule is a 
disincentive for persons working part-time to become employed full-
time. Social Security payment restrictions also compound this problem. 
More needs to be done to provide income disallowances to help part-time 
workers become employed full-time.
    HUD Response. HUD recognizes that the earned income disregard 
provided by statute will not serve as an incentive to all families in 
all situations. The statutory earned income disregard is limited to 
income increases as a result of employment of a member of the family 
who was previously unemployed for one or more years. (See section 3(d) 
of the U.S. Housing Act of 1937; 42 U.S.C. 1437a(d).) HUD, however, 
recognizes that some part-time employment should not be considered 
``previous employment'' and has defined by regulation the term 
``previously unemployed'' to include a person who has earned, in the 
twelve months previous to employment no more than would be received for 
10 hours of work per week for 50 weeks at the established minimum wage. 
(See Sec. 5.617 of this rule, and Sec. 960.255 of the public housing 
regulations.)
    Comment. In determining if a person with a disability is previously 
unemployed for the mandatory period prior to beginning employment, the 
rule should specifically include time during which the person received 
public assistance.
    HUD Response. Consistent with the statutory language, the rule 
includes increases in annual incomes resulting during or within six 
months after receiving assistance, benefits or services under any state 
program for temporary assistance for needy families funded under part A 
of title IV of the Social Security Act, as determined by the 
responsible entity in consultation with the local agencies 
administering temporary assistance for needy families (TANF) and 
welfare-to-work programs. (See Sec. 5.617 of this rule, and 
Sec. 960.255 of the public housing regulations.)
    Comment. The earned income disregard should contain a grandfather 
clause to allow individuals that are employed at the time of their 
admission to subsidized housing to take advantage of the offset. The 
earned income disregard should not be available to persons who are 
employed at the time they enter assisted housing.
    HUD Response. The statute establishes the requirements for 
eligibility of the earned income disregard and the rule in defining 
``qualified family'' and ``previously unemployed'' reflects the 
statutory eligibility requirements. (See Sec. 5.617(a).)
    Comment. The definition of ``qualified family'' in the rule is 
inconsistent with other regulatory provisions. Section 5.617(b) should 
be changed to make clear that it includes a family with any adult 
member with a disability, not just the head of household or spouse, as 
eligible for the income disregard.
    HUD Response. HUD believes that there is no ambiguity here. The 
definition of ``qualified family'' in Sec. 5.617 makes no reference to 
the head of household or spouse, but simply ``a family member.'' 
Section 960.255, upon which Sec. 5.617 is modeled, also does not refer 
to the head of household or spouse. HUD believes both regulations are 
clear and no further modification is needed.
    Comment. HUD's income disregard program should dovetail with the 
Plan to Achieve Self-Sufficiency (PASS) program so that persons with 
disabilities continue to receive the disregard benefit even after they 
are no longer participating in PASS. The income disregard should apply 
to all families with a member participating in the PASS program. The 
earned income disregard should apply as long as any household member, 
not just a family member with a disability, is receiving TANF benefits. 
The earned income disregard should specifically allow eligibility when 
any family member receives any type of government support, not limited 
to TANF. The earned income disregard should be applicable to those 
families receiving ``welfare to work'' funds.
    HUD Response. The contours of the earned income disregard are 
established by statute. The statute, however, includes as eligible for 
the earned income disregard a family whose annual income increases, 
during or within six months, after receiving assistance, benefits or 
services under any state program for temporary assistance for needy 
families funded under part A of title IV of the Social Security Act, as 
determined by the responsible entity in consultation with the local 
agencies administering temporary assistance for needy families (TANF) 
and welfare-to-work programs.

C. Specific Issue for Comment

    Expansion of the earned income disregard to all families. In the 
August 21, 2000 proposed rule, HUD advised that although this rule 
limited the extension of the earned income disregard to persons with 
disabilities, HUD is analyzing the extension of the earned income 
disregard to all families served by HUD and HUD specifically solicited 
comment on this issue. (See 65 FR 50844, column one.)
    Comment. A few commenters submitted comments on this issue and 
their comments were as follows:
    The Public Housing Reform Act does not limit the earned income 
disregard strictly to persons with disabilities. If HUD is going to 
extend the income disregard to other programs, it should

[[Page 6222]]

not be restricted solely to persons with disabilities.
    The earned income disregard should be extended to all families not 
only families with persons with disabilities. However, application of 
the earned income disregard to all families may diminish the 
availability of funds for expanding the number of families 
participating in the Section 8 or other HUD programs. For this reason, 
we urge HUD to seek the necessary appropriations from Congress to 
ensure the expansion of this disregard to all programs.
    The earned income disregard should be extended to all households 
served under HOPWA.
    HUD Response. HUD appreciates the comments on this issue, and is 
continuing to study this matter.

III. Findings and Certifications

Environmental Impact

    In accordance with 24 CFR 50.19(c)(1) of HUD's regulations, this 
rule does not direct, provide for assistance or loan and mortgage 
insurance for, or otherwise govern or regulate, real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, or manufactured 
housing. Therefore, this rule is categorically excluded from the 
requirements of the National Environmental Policy Act (42 U.S.C. 4321 
et seq.).

Regulatory Planning and Review

    The Office of Management and Budget has reviewed this proposed rule 
under Executive Order 12866 (captioned ``Regulatory Planning and 
Review'') and determined that this rule is a ``significant regulatory 
action'' as defined in section 3(f) of the Order (although not an 
economically significant regulatory action under the Order). Any 
changes made to this rule as a result of that review are identified in 
the docket file, which is available for public inspection during 
regular business hours (7:30 a.m. to 5:30 p.m.) at the Office of the 
General Counsel, Rules Docket Clerk, Room 10276, U.S. Department of 
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 
20410-0500.

Regulatory Flexibility Act

    The Secretary has reviewed this rule before publication and by 
approving it certifies, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), that this rule would not have a significant 
economic impact on a substantial number of small entities. This rule is 
limited to expanding existing mandatory expense deductions and earned 
income disregard to the calculation of income for persons with 
disabilities in other HUD programs by which the program participants 
will benefit, and the owners of the housing assisted by these programs 
will benefit from the uniformity in the program administration this 
rule presents.

Executive Order 13132, Federalism

    This rule does not have federalism implications and does not impose 
substantial direct compliance costs on State and local governments or 
preempt State law within the meaning of Executive Order 13132 (entitled 
``Federalism'').

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) requires Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and on 
the private sector. This rule does not impose, within the meaning of 
the UMRA, any Federal mandates on any State, local, or tribal 
governments or on the private sector.

List of Subjects

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.

24 CFR Part 92

    Administrative practice and procedure, Grant programs--housing and 
community development, Grant programs--Indians, Low and moderate income 
housing, Manufactured homes, Rent subsidies, Reporting and 
recordkeeping requirements.

24 CFR Part 200

    Administrative practice and procedure, Claims, Equal employment 
opportunity, Fair housing, Home improvement, Housing standards, Lead 
poisoning, Loan programs--housing and community development, Mortgage 
insurance, Organization and functions (Government agencies), Penalties, 
Reporting and recordkeeping requirements, Social security, Unemployment 
compensation, Wages.

24 CFR Part 236

    Grant programs--housing and community development, Low and moderate 
income housing, Mortgage insurance, Rent subsidies, Reporting and 
recordkeeping requirements.

24 CFR Part 574

    AIDS/HIV, Community facilities, Disabled, Grant programs--health 
programs, Grant programs--housing and community development, Grant 
programs--social programs, Homeless, Housing, Low and moderate income 
housing, Nonprofit organizations, Rent subsidies, Reporting and 
recordkeeping requirements, Technical assistance.

24 CFR Part 582

    Homeless, Rent subsidies, Reporting and recordkeeping requirements.

24 CFR Part 583

    Homeless, Rent subsidies, Reporting and recordkeeping requirements.

4 CFR Part 891

    Aged, Civil rights, Grant programs--housing and community 
development, Individuals with disabilities, Loan programs--housing and 
community development, Low and moderate income housing, Mental health 
programs, Rent subsidies, Reporting and recordkeeping requirements.

24 CFR Part 982

    Grant programs--Housing and community development, Housing, Rent 
subsidies.

    Accordingly, HUD amends parts 5, 92, 200, 236, 574, 582, 583, 891 
and 982 of title 24 of the Code of Federal Regulations as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

    1. The authority citation for part 5 continues to read as follows:

    Authority: 42 U.S.C. 3535(d), unless otherwise noted.


    2. The heading for subpart F is revised to read as follows:

Subpart F--Section 8 and Public Housing, and Other HUD Assisted 
Housing Serving Persons with Disabilities: Family Income and Family 
Payment; Occupancy Requirements for Section 8 Project-Based 
Assistance

    3. Section 5.601 is revised to read as follows:


Sec. 5.601  Purpose and applicability.

    This subpart states HUD requirements on the following subjects:
    (a) Determining annual and adjusted income of families who apply 
for or

[[Page 6223]]

receive assistance in the Section 8 (tenant-based and project-based) 
and public housing programs;
    (b) Determining payments by and utility reimbursements to families 
assisted in these programs;
    (c) Additional occupancy requirements that apply to the Section 8 
project-based assistance programs. These additional requirements 
concern:
    (1) Income-eligibility and income-targeting when a Section 8 owner 
admits families to a Section 8 project or unit;
    (2) Owner selection preferences; and
    (3) Owner reexamination of family income and composition;
    (d) Determining adjusted income, as provided in Sec. 5.611(a) and 
(b), for families who apply for or receive assistance under the 
following programs: HOME Investment Partnerships Program (24 CFR part 
92); Rent Supplement Payments Program (24 CFR part 200, subpart W); 
Rental Assistance Payments Program (24 CFR part 236, subpart D); 
Housing Opportunities for Persons with AIDS (24 CFR part 574); Shelter 
Plus Care Program (24 CFR part 582); Supportive Housing Program 
(McKinney Act Homeless Assistance) (24 CFR part 583); Section 202 
Supportive Housing Program for the Elderly (24 CFR 891, subpart B); 
Section 202 Direct Loans for Housing for the Elderly and Persons with 
Disabilities (24 CFR part 891, subpart E) and the Section 811 
Supportive Housing for Persons with Disabilities (24 CFR part 891, 
subpart C). Unless specified in the regulations for each of the 
programs listed in paragraph (d) of this section or in another 
regulatory section of this part 5, subpart F, the regulations in part 
5, subpart F, generally are not applicable to these programs; and
    (e) Determining earned income disregard for persons with 
disabilities, as provided in Sec. 5.617, for the following programs: 
HOME Investment Partnerships Program (24 CFR part 92); Housing 
Opportunities for Persons with AIDS (24 CFR part 574); Supportive 
Housing Program (McKinney Act Homeless Assistance) (24 CFR part 583); 
and the Housing Choice Voucher Program (24 CFR part 982).

    4. In Sec. 5.603, paragraph (a)(1) is revised and a new definition 
of ``responsible entity'' is added to paragraph (b) to read as follows:


Sec. 5.603  Definitions.

* * * * *
    (a) Terms found elsewhere in part 5.
    (1) Subpart A. The terms 1937 Act, elderly person, public housing, 
public housing agency (PHA), responsible entity and Section 8 are 
defined in Sec. 5.100.
* * * * *
    (b) * * *
    Responsible entity. For Sec. 5.611, in addition to the definition 
of ``responsible entity'' in Sec. 5.100, and for Sec. 5.617, in 
addition to only that part of the definition of ``responsible entity'' 
in Sec. 5.100 which addresses the Section 8 program covered by 
Sec. 5.617 (public housing is not covered by Sec. 5.617), ``responsible 
entity'' means:
    (1) For the HOME Investment Partnerships Program, the participating 
jurisdiction, as defined in 24 CFR 92.2;
    (2) For the Rent Supplement Payments Program, the owner of the 
multifamily project;
    (3) For the Rental Assistance Payments Program, the owner of the 
Section 236 project;
    (4) For the Housing Opportunities for Persons with AIDS (HOPWA) 
program, the applicable ``State'' or ``unit of general local 
government'' or ``nonprofit organization'' as these terms are defined 
in 24 CFR 574.3, that administers the HOPWA Program;
    (5) For the Shelter Plus Care Program, the ``Recipient'' as defined 
in 24 CFR 582.5;
    (6) For the Supportive Housing Program, the ``recipient'' as 
defined in 24 CFR 583.5;
    (7) For the Section 202 Supportive Housing Program for the Elderly, 
the ``Owner'' as defined in 24 CFR 891.205;
    (8) For the Section 202 Direct Loans for Housing for the Elderly 
and Persons with Disabilities), the ``Borrower'' as defined in 24 CFR 
891.505; and
    (9) For the Section 811 Supportive Housing Program for Persons with 
Disabilities, the ``owner'' as defined in 24 CFR 891.305.
* * * * *
    5. Revise Sec. 5.611 to read as follows:


Sec. 5.611  Adjusted income.

    Adjusted income means annual income (as determined by the 
responsible entity, defined in Sec. 5.100 and Sec. 5.603) of the 
members of the family residing or intending to reside in the dwelling 
unit, after making the following deductions:
    (a) Mandatory deductions. In determining adjusted income, the 
responsible entity must deduct the following amounts from annual 
income:
    (1) $480 for each dependent;
    (2) $400 for any elderly family or disabled family;
    (3) The sum of the following, to the extent the sum exceeds three 
percent of annual income:
    (i) Unreimbursed medical expenses of any elderly family or disabled 
family; and
    (ii) Unreimbursed reasonable attendant care and auxiliary apparatus 
expenses for each member of the family who is a person with 
disabilities, to the extent necessary to enable any member of the 
family (including the member who is a person with disabilities) to be 
employed. This deduction may not exceed the earned income received by 
family members who are 18 years of age or older and who are able to 
work because of such attendant care or auxiliary apparatus; and
    (4) Any reasonable child care expenses necessary to enable a member 
of the family to be employed or to further his or her education.
    (b) Additional deductions. (1) For public housing, a PHA may adopt 
additional deductions from annual income. The PHA must establish a 
written policy for such deductions.
    (2) For the HUD programs listed in Sec. 5.601(d), the responsible 
entity shall calculate such other deductions as required and permitted 
by the applicable program regulations.

    6. A new Sec. 5.617 is added to read as follows:


Sec. 5.617  Self-sufficiency incentives for persons with disabilities--
Disallowance of increase in annual income.

    (a) Applicable programs. The disallowance of increase in annual 
income provided by this section is applicable only to the following 
programs: HOME Investment Partnerships Program (24 CFR part 92); 
Housing Opportunities for Persons with AIDS (24 CFR part 574); 
Supportive Housing Program (24 CFR part 583); and the Housing Choice 
Voucher Program (24 CFR part 982).
    (b) Definitions. The following definitions apply for purposes of 
this section.
    Disallowance. Exclusion from annual income.
    Previously unemployed includes a person with disabilities who has 
earned, in the twelve months previous to employment, no more than would 
be received for 10 hours of work per week for 50 weeks at the 
established minimum wage.
    Qualified family. A disabled family residing in housing assisted 
under one of the programs listed in paragraph (a) of this section or 
receiving tenant-based rental assistance under one of the programs 
listed in paragraph (a) of this section:
    (1) Whose annual income increases as a result of employment of a 
family member who is a person with

[[Page 6224]]

disabilities and who was previously unemployed for one or more years 
prior to employment;
    (2) Whose annual income increases as a result of increased earnings 
by a family member who is a person with disabilities during 
participation in any economic self-sufficiency or other job training 
program; or
    (3) Whose annual income increases, as a result of new employment or 
increased earnings of a family member who is a person with 
disabilities, during or within six months after receiving assistance, 
benefits or services under any state program for temporary assistance 
for needy families funded under Part A of Title IV of the Social 
Security Act, as determined by the responsible entity in consultation 
with the local agencies administering temporary assistance for needy 
families (TANF) and Welfare-to-Work (WTW) programs. The TANF program is 
not limited to monthly income maintenance, but also includes such 
benefits and services as one-time payments, wage subsidies and 
transportation assistance--provided that the total amount over a six-
month period is at least $500.
    (c) Disallowance of increase in annual income.--(1) Initial twelve 
month exclusion. During the cumulative twelve month period beginning on 
the date a member who is a person with disabilities of a qualified 
family is first employed or the family first experiences an increase in 
annual income attributable to employment, the responsible entity must 
exclude from annual income (as defined in the regulations governing the 
applicable program listed in paragraph (a) of this section) of a 
qualified family any increase in income of the family member who is a 
person with disabilities as a result of employment over prior income of 
that family member.
    (2) Second twelve month exclusion and phase-in. During the second 
cumulative twelve month period after the date a member who is a person 
with disabilities of a qualified family is first employed or the family 
first experiences an increase in annual income attributable to 
employment, the responsible entity must exclude from annual income of a 
qualified family fifty percent of any increase in income of such family 
member as a result of employment over income of that family member 
prior to the beginning of such employment.
    (3) Maximum four year disallowance. The disallowance of increased 
income of an individual family member who is a person with disabilities 
as provided in paragraph (c)(1) or (c)(2) is limited to a lifetime 48 
month period. The disallowance only applies for a maximum of twelve 
months for disallowance under paragraph (c)(1) and a maximum of twelve 
months for disallowance under paragraph (c)(2), during the 48 month 
period starting from the initial exclusion under paragraph (c)(1) of 
this section.
    (d) Inapplicability to admission. The disallowance of increases in 
income as a result of employment of persons with disabilities under 
this section does not apply for purposes of admission to the program 
(including the determination of income eligibility or any income 
targeting that may be applicable).

PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM

    7. The authority citation for part 92 continues to read as follows:

    Authority: 42 U.S.C. 3535(d) and 12701-12839.


    8. In Sec. 92.203, a new paragraph (d)(3) is added to read as 
follows:


Sec. 92.203  Income determinations.

* * * * *
    (d) * * *
    (3) The participating jurisdiction must follow the requirements in 
Sec. 5.617 when making subsequent income determinations of persons with 
disabilities who are tenants in HOME-assisted rental housing or who 
receive tenant-based rental assistance.

PART 200--INTRODUCTION TO FHA PROGRAMS

    9. The authority citation for part 200 continues to read as 
follows:

    Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).


    10. Section 200.1303 is revised to read as follows;


Sec. 200.1303  Annual income exclusions for the Rent Supplement 
Program.

    (a) The exclusions to annual income described in 24 CFR 5.609(c) 
apply to those rent supplement contracts governed by the regulations at 
24 CFR part 215 in effect immediately before May 1, 1996 (contained in 
the April 1, 1995 edition of 24 CFR, parts 200 to 219), in lieu of the 
annual income exclusions described in 24 CFR 215.21(c) (contained in 
the April 1, 1995 edition of 24 CFR, parts 200 to 219).
    (b) The mandatory deductions described in 24 CFR 5.611(a) also 
apply to the rent supplement contracts described in paragraph (a) of 
this section in lieu of the deductions provided in the definition of 
``adjusted income'' in 24 CFR 215.1 (as contained in the April 1, 1995 
edition of 24 CFR, parts 200 to 219).
    (c) The definition of ``persons with disabilities'' in paragraph 
(c) of this section replaces the terms ``disabled person'' and 
``handicapped person'' used in the regulations in 24 CFR part 215, 
subpart A (as contained in the April 1, 1995 edition of 24 CFR, parts 
200 to 219). Person with disabilities, as used in this part, has the 
same meaning as provided in 24 CFR 891.305.

PART 236--MORTGAGE INSURANCE AND INTEREST REDUCTION PAYMENT FOR 
RENTAL PROJECTS

    11. The authority citation for part 236 continues to read as 
follows:

    Authority: 12 U.S.C. 1701-1715z-1; 42 U.S.C. 3535(d).

Subpart D--Rental Assistance Payments

    12. Section 236.710 is revised to read as follows;


Sec. 236.710  Qualified tenant.

    (a) The benefits of rental assistance payments are available only 
to an individual or a family who is renting a dwelling unit in a 
project that is subject to a contract entered into under the 
requirements of this subpart or who is occupying such a dwelling unit 
as a cooperative member. To qualify for the benefits of rental 
assistance payments, the individual or family must satisfy the 
definition of Qualified Tenant found in Sec. 236.2 of subpart A 
(contained in the April 1, 1995 edition of 24 CFR, parts 220 to 499; 
see the Savings clause at Sec. 236.1(c)).
    (b) To receive rental assistance under this subpart, the income of 
the individual or family must be determined to be too low to permit the 
individual or family to pay the approved Gross Rent with 30 percent of 
the individual's or family's Adjusted Monthly Income, as defined in 
Sec. 236.2 of subpart A (contained in the April 1, 1995 edition of 24 
CFR, parts 220 to 499). Determination of the Adjusted Monthly Income 
must include the deductions required for adjusted income in 24 CFR 
5.611(a) in lieu of the deductions provided in the definition of 
``adjusted income'' in 24 CFR 236.2 (contained in the April 1, 1995 
edition of 24 CFR, parts 220 to 499; see the Savings clause at 
Sec. 236.1(c)).
    (c) For requirements concerning the disclosure and certification of 
Social Security Numbers, see 24 CFR part 5, subpart B. For requirements 
regarding

[[Page 6225]]

the signing and submitting of consent forms for the obtaining of wage 
and claim information from State Wage Information Collection Agencies, 
see 24 CFR part 5, subpart B. For restrictions on financial assistance 
to noncitizens with ineligible immigration status, see 24 CFR part 5, 
subpart E.
    (d) The definition of ``persons with disabilities'' in paragraph 
(d) of this section replaces the terms ``disabled person'' and 
``handicapped person'' used in the regulations in 24 CFR part 236, 
subpart A (contained in the April 1, 1995 edition of 24 CFR, parts 220 
to 499; see the Savings clause at Sec. 236.1(c)). Person with 
disabilities, as used in this part, has the same meaning as provided in 
24 CFR 891.305.

PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS

    13. The authority citation for part 574 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 12901-12912.


    14. Paragraphs (d)(1) and (d)(3) of Sec. 574.310 are revised to 
read as follows:


Sec. 574.310  General standards for eligible housing activities.

* * * * *
    (d) Resident rent payment. * * *
    (1) 30 percent of the family's monthly adjusted income (adjustment 
factors include the age of the individual, medical expenses, size of 
family and child care expenses and are described in detail in 24 CFR 
5.609). The calculation of the family's monthly adjusted income must 
include the expense deductions provided in 24 CFR 5.611(a), and for 
eligible persons, the calculation of monthly adjusted income also must 
include the disallowance of earned income as provided in 24 CFR 5.617, 
if applicable;
* * * * *
    (3) If the family is receiving payments for welfare assistance from 
a public agency and a part of the payments, adjusted in accordance with 
the family's actual housing costs, is specifically designated by the 
agency to meet the family's housing costs, the portion of the payment 
that is designated for housing costs.
* * * * *

PART 582--SHELTER PLUS CARE

    15. The authority citation for part 582 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 11403-11407b.


    16. Section 582.310 is revised to read as follows:


Sec. 582.310  Resident rent.

    (a) Amount of rent. Each participant must pay rent in accordance 
with section 3(a)(1) of the U.S. Housing Act of 1937 (42 U.S.C. 
1437a(a)(1)), except that in determining the rent of a person occupying 
an intermediate care facility assisted under title XIX of the Social 
Security Act, the gross income of this person is the same as if the 
person were being assisted under title XVI of the Social Security Act.
    (b) Calculating income. (1) Income of participants must be 
calculated in accordance with 24 CFR 5.609 and 24 CFR 5.611(a).
    (2) Recipients must examine a participant's income initially, and 
at least annually thereafter, to determine the amount of rent payable 
by the participant. Adjustments to a participant's rental payment must 
be made as necessary.
    (3) As a condition of participation in the program, each 
participant must agree to supply the information or documentation 
necessary to verify the participant's income. Participants must provide 
the recipient information at any time regarding changes in income or 
other circumstances that may result in changes to a participant's 
rental payment.

PART 583--SUPPORTIVE HOUSING PROGRAM

    17. The authority citation for part 583 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 11389.


    18. In Sec. 583.315, paragraph (a) is revised to read as follows:


Sec. 583.315  Resident rent.

    (a) Calculation of resident rent. Each resident of supportive 
housing may be required to pay as rent an amount determined by the 
recipient which may not exceed the highest of:
    (1) 30 percent of the family's monthly adjusted income (adjustment 
factors include the number of people in the family, age of family 
members, medical expenses and child care expenses). The calculation of 
the family's monthly adjusted income must include the expense 
deductions provided in 24 CFR 5.611(a), and for persons with 
disabilities, the calculation of the family's monthly adjusted income 
also must include the disallowance of earned income as provided in 24 
CFR 5.617, if applicable;
    (2) 10 percent of the family's monthly gross income; or
    (3) If the family is receiving payments for welfare assistance from 
a public agency and a part of the payments, adjusted in accordance with 
the family's actual housing costs, is specifically designated by the 
agency to meet the family's housing costs, the portion of the payment 
that is designated for housing costs.
* * * * *

PART 891--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS WITH 
DISABILITIES

    19. The authority citation for part 891 continues to read as 
follows:

    Authority: 12 U.S.C. 1701q, 42 U.S.C. 1437f, 3535(d) and 8013.


    20. In Sec. 891.105, the definitions of Annual Income, Total Tenant 
Payment, and Utility Allowance are revised and a new definition of 
Adjusted Income is added to read as follows:


Sec. 891.105  Definitions.

* * * * *
    Adjusted income as defined in part 5, subpart F of subtitle A of 
this title.
    Annual income as defined in part 5, subpart F of subtitle A of this 
title. In the case of an individual residing in an intermediate care 
facility for the developmentally disabled that is assisted under title 
XIX of the Social Security Act and this part, the annual income of the 
individual shall exclude protected personal income as provided under 
that Act. For purposes of determining the total tenant payment, the 
income of such individuals shall be imputed to be the amount that the 
household would receive if assisted under title XVI of the Social 
Security Act.
* * * * *
    Total tenant payment means the monthly amount defined in, and 
determined in accordance with part 5, subpart F of subtitle A of this 
title.
    Utility allowance is defined in part 5, subpart F of this subtitle 
A of this title and is determined or approved by HUD.
* * * * *

    21. In part 891, revise the heading of subpart E to read as 
follows:

Subpart E--Loans for Housing for the Elderly and Persons with 
Disabilities

    22. In Sec. 891.520, the definitions of Gross Rent, Tenant Rent, 
Total Tenant Payment, Utility Allowance, and Utility Reimbursement are 
revised and a new definition of Adjusted Income is added to read as 
follows:

[[Page 6226]]

Sec. 891.520  Definitions applicable to 202/8 projects.

* * * * *
    Adjusted income as defined in part 5, subpart F of subtitle A of 
this title.
* * * * *
    Gross rent is defined in part 5, subpart F of subtitle A of this 
title.
* * * * *
    Tenant rent means the monthly amount defined in, and determined in 
accordance with part 5, subpart F of subtitle A of this title.
    Total tenant payment means the monthly amount defined in, and 
determined in accordance with part 5, subpart F of subtitle A of this 
title.
    Utility allowance is defined in part 5, subpart F of subtitle A of 
this title and is determined or approved by HUD.
    Utility reimbursement is defined in part 5, subpart F of subtitle A 
of this title.
* * * * *

PART 982--SECTION 8 TENANT BASED ASSISTANCE: HOUSING CHOICE VOUCHER 
PROGRAM

    23. The authority citation for part 982 continues to read as 
follows:

    Authority: 42 U.S.C. 1437f and 3535(d).

    24. In Sec. 982.201, paragraph (b)(3) is revised to read as 
follows:


Sec. 982.201  Eligibility and targeting.

* * * * *
    (b) * * *
    (3) The annual income (gross income) of an applicant family is used 
both for determination of income-eligibility under paragraph (b)(1) of 
this section and for targeting under paragraph (b)(2)(i) of this 
section. In determining annual income of an applicant family which 
includes persons with disabilities, the determination must include the 
disallowance of increase in annual income as provided in 24 CFR 5.617, 
if applicable.
* * * * *

    Dated: January 10, 2001.
Andrew Cuomo,
Secretary.
[FR Doc. 01-1536 Filed 1-18-01; 8:45 am]
BILLING CODE 4210-33-P