As stated above, there is no federal authority to use past SUAs after the October 1, 2022 effective date of the new federally-approved allowance amounts. For New York to continue the State option to use the SUA in lieu of the actual utility cost portion of SNAP household shelter expenses, new allowances must be in place. Otherwise, the State may be forced to use the actual utility cost portion of the shelter expenses of each SNAP household. This policy would result in all 58 social services districts (districts) in New York State having to require up to 1.6 million SNAP households to provide verification of the actual utility cost portions of their shelter expenses. This policy would create a tremendous burden on both districts as well as recipient households. In addition, as actual utility costs are generally significantly less than the SUAs, SNAP households would have a much smaller shelter deduction resulting in a sizeable reduction in their SNAP benefits. This reduction in SNAP benefits for up to 1.6 million SNAP households would result in significant harm to the health and welfare of these households.

It is noted that the regulatory amendments are being promulgated pursuant to a combined Notice of Emergency Adoption and Proposed Rule Making, instead of a Notice of Proposed Rule Making, due to time constraints. On August 1, 2022, the USDA approved the Office of Temporary and Disability Assistance’s (OTDA’s) SUA calculation methodology and the resulting federal fiscal year 2023 SUAs for heating/air conditioning, basic utilities and telephone effective October 1, 2022. This did not provide sufficient time for OTDA to publish a Notice of Proposed Rule Making and for the new SUAs to become effective on October 1, 2022. An emergency adoption is necessary to help ensure that the new SUAs are effective on October 1, 2022. Although these regulations are being promulgated on an emergency basis to protect the public health and general welfare, OTDA will receive public comments on its combined Notice of Emergency Adoption and Proposed Rule Making until 60 days after publication of this notice.

(a) The standard allowance for heating/cooling consists of the costs for heating and/or cooling the residence, electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone. The standard allowance for heating/cooling is available to households which incur heating and/or cooling costs separate and apart from rent and are billed separately from rent or mortgage on a regular basis for heating and/or cooling their residence, or to households entitled to a Home Energy Assistance Program (HEAP) payment or other Low Income Home Energy Assistance Act (LIHEAA) payment. A household living in public housing or other rental housing which has central utility meters and which charges the household for excess heating or cooling costs only is not entitled to the standard allowance for heating/cooling unless they are entitled to a HEAP or LIHEAA payment. Such a household may claim actual costs which are paid separately. Households which do not qualify for the standard allowance for heating/cooling may be allowed to use the standard allowance for utilities or the standard allowance for telephone. As of October 1, [2021] 2022, but subject to subsequent adjustments as required by the United States Department of Agriculture (USDA), the standard allowance for heating/cooling for SNAP applicant and recipient households residing in New York City is [$852] $1,002; for households residing in either Suffolk or Nassau Counties, it is [$792] $932; and for households residing in any other county of New York State, it is [$703] $827.

(b) The standard allowance for utilities consists of the costs for electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone. It is available to households billed separately from rent or mortgage for one or more of these utilities other than telephone. The standard allowance for utilities is available to households which do not qualify for the standard allowance for heating/cooling. Households which do not qualify for the standard allowance for utilities may be allowed to use the standard allowance for telephone. As of October 1, [2021] 2022, but subject to subsequent adjustments as required by the USDA, the standard allowance for utilities for SNAP applicant and recipient households residing in New York City is [$336] $395; for households residing in either Suffolk or Nassau Counties, it is [$311] $366; and for households residing in any other county of New York State, it is [$285] $335.

(c) The standard allowance for telephone consists of the cost for basic service for one telephone. The standard allowance for telephone is available to households which do not qualify for the standard allowance for heating/cooling or the standard allowance for utilities. As of October 1, [2021] 2022, but subject to subsequent adjustments as required by the USDA, the standard allowance for telephone for all SNAP applicant and recipient households residing in New York State is $31.

1. Statutory authority:

The United States Code (U.S.C.), at 7 U.S.C. § 2014(e)(6)(C), provides that in computing shelter expenses for budgeting under the federal Supplemental Nutrition Assistance Program (SNAP), a State agency may use a standard utility allowance (SUA) as provided in federal regulations.

The Code of Federal Regulations (C.F.R.), at 7 C.F.R. § 273.9(d)(6)(iii), provides for SUAs in accordance with SNAP. Clause (A) of this subparagraph states that with federal approval from the Food and Nutrition Services (FNS) of the United States Department of Agriculture (USDA), a State agency may develop SUAs to be used in place of actual costs in calculating a household's excess shelter deduction. Federal regulations allow for the following types of SUAs: a SUA for all utilities that includes heating or cooling costs; a limited utility allowance that includes electricity and fuel for purposes other than heating or cooling, water, sewerage, well and septic tank installation and maintenance, telephone, and garbage or trash collection; and an individual standard for each type of utility expense. Clause (B) of the subparagraph provides that a State agency must review the SUAs annually and adjust them to reflect changes in costs. State agencies also must provide the amounts of the SUAs to the FNS when the SUAs are changed and submit the methodologies used in developing and updating the SUAs to the FNS for approval whenever the methodologies are developed or changed.

Social Services Law (SSL) § 17(a)-(b) and (k) provide, in part, that the Commissioner of the Office of Temporary and Disability Assistance (OTDA) shall “exercise such other powers and perform such other duties as may be imposed by law.”

SSL § 20(3)(d) authorizes OTDA to promulgate regulations to carry out its powers and duties.

SSL § 95 authorizes OTDA to administer SNAP in New York State (NYS) and to perform such functions as may be appropriate, permitted or required by or pursuant to federal law.

2. Legislative objectives:

It was the intent of the Legislature to implement the federal SNAP Act in NYS in order to provide SNAP benefits to eligible NYS residents.

3. Needs and benefits:

The regulatory amendments set forth the SUAs within NYS as of October 1, 2022. OTDA is amending its SUAs in 18 NYCRR § 387.12(f)(3)(v)(a)–(b) to reflect an increase in fuel and utility costs, which is indicated in the Consumer Price Index (CPI) fuel and utilities values (which includes components for water, sewage and trash collection). Specifically, OTDA is amending the standard allowance for heating/cooling for SNAP applicant and recipient households residing in New York City from $852 to $1,002; the standard allowance for heating/cooling for such households residing in either Nassau or Suffolk Counties from $792 to $932; and for such households residing in any other county of NYS $703 to $827. OTDA is also amending the standard allowance for utilities for SNAP applicant and recipient households residing in New York City from $336 to $395; the standard allowance for utilities for such households residing in either Nassau or Suffolk Counties from $311 to $366; and for such households residing in any other county of NYS from $285 to $335. The standard allowance for telephone, as set forth in 18 NYCRR § 387.12(f)(3)(v)(c), will remain $31 for all counties in the State.

The following chart sets forth the SUA categories; the past SUAs (“Past SUA”) that were in effect for federal fiscal year (FFY) 2022, from October 1, 2021 through September 30, 2022; and the new SUAs (“New SUA”) that are in effect for FFY 2023, effective October 1, 2022:

The aforementioned values have been determined in accordance with the current methodology approved by USDA for adjusting New York State’s SUA values.

To determine the Heating/Cooling and Limited Utility SUA values for FFY 2023, the Consumer Price Index (CPI) Fuel and Utility value for All Urban Consumers, Not Seasonally Adjusted, for June 2022 was compared to the same CPI Fuel and Utility value for June 2021. (The June 2021 CPI value was used to determine the adjustment for the current FFY 2022 SUA values). The June 2022 CPI-U Fuel and Utility value is 17.624 percent higher than the June 2021 value. Consequently, the SUA figures provided above are 17.624 percent higher than the current FFY 2022 SUA. Rounded to the nearest whole dollar, the resultant values are reflected in the chart above.

To determine the Telephone SUA value for FFY 2023, the Consumer Price Index (CPI) Telephone Services value for All Urban Consumers, Not Seasonally Adjusted, for June 2022 was compared to the same CPI Telephone Services value for June 2021, the CPI value that was used to determine the current FFY 2022 SUA value. The percentage change between June 2021 and June 2022 was then applied to OTDA’s current SUA figure and rounded; the June 2022 CPI-U Telephone Services value is 0.067 percent lower than the June 2021 value. Rounded to the nearest whole dollar, this means that the Telephone SUA value for FFY 2023 will remain $31 statewide.

OTDA has all required approvals from the FNS pertaining to these changes and is required to apply the SUAs for FFY 2023 in its SNAP budgeting effective October 1, 2022. As of October 1, 2022, OTDA does not have federal approval or authority to apply past SUAs in its prospective SNAP budgeting.

It is of great importance that the federally-approved SUAs for the SNAP are applied to SNAP benefit calculations effective October 1, 2022, and thereafter until new amounts eventually are approved by the USDA. The new federally-approved SUA amounts for heating/cooling, utilities and telephone must be implemented by the October 1, 2022 deadline. The use of a SUA that is not authorized by the USDA could result in severe fiscal sanctions by the federal government against the State. These emergency amendments protect the public health and general welfare by setting forth the federally-approved SUAs effective as of October 1, 2022.

As stated above, there is no federal authority to use past SUAs after the October 1, 2022 effective date of the new federally-approved allowance amounts. For New York to continue the State option to use the SUA in lieu of the actual utility cost portion of SNAP household shelter expenses, new allowances must be in place. Otherwise, the State may be forced to use the actual utility cost portion of the shelter expenses of each SNAP household. This policy would result in all 58 social services districts (districts) in NYS having to require up to 1.6 million SNAP households to provide verification of the actual utility cost portions of their shelter expenses. This policy would create a tremendous burden on both districts as well as recipient households. In addition, as actual utility costs are generally significantly less than the SUAs, SNAP households would have a much smaller shelter deduction resulting in a sizeable reduction in their SNAP benefits. This reduction in SNAP benefits for up to 1.6 million SNAP households would result in significant harm to the health and welfare of these households.

4. Costs:

The regulatory amendments will not result in any impact to the State financial plan, they will not impose costs upon the districts because SNAP benefits are 100 percent federally-funded, and they comply with federal statute and regulation to implement federally-approved SUAs.

5. Local government mandates:

The regulatory amendments do not impose any mandates upon districts since the amendments simply set forth the federally-approved SUAs, effective October 1, 2022. Additionally, the calculation of SNAP budgets, which incorporates the SUAs, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using OTDA’s Welfare Management System. To the extent that these processes are not automated, the regulatory amendments do not impose any additional requirements upon the districts in terms of calculating SNAP budgets.

6. Paperwork:

The regulatory amendments do not impose any new forms, new reporting requirements or other paperwork upon the State or the districts.

7. Duplication:

The regulatory amendments do not duplicate, overlap or conflict with any existing State or federal statutes or regulations.

8. Alternatives:

An alternative to the regulatory amendments would be to refrain from implementing the revised SUAs. However, this alternative is not a viable option because if NYS were to opt not to implement the new SUAs or were otherwise judicially precluded from doing so, then NYS would be out of compliance with federal statutory and regulatory requirements.

9. Federal standards:

The regulatory amendments do not conflict with or exceed minimum standards of the Federal Government.

10. Compliance schedule:

Since the regulatory amendments set forth the federally-approved SUAs effective October 1, 2022, the State and all districts will be in compliance with the regulatory amendments upon the adoption date of the regulatory amendments.

A RFASB&LG is not required for the regulatory amendments because the regulatory amendments to 18 NYCRR § 387.12(f)(3)(v)(a)-(c) will neither have an adverse economic impact upon, nor impose reporting, recordkeeping, or other compliance requirements upon small businesses or social services districts (districts). The regulatory amendments set forth the federally-approved standard utility allowances for the Supplemental Nutrition Assistance Program effective October 1, 2022. As it is evident from the nature of the regulatory amendments that they will not have an adverse impact upon or impose reporting, recordkeeping, or other compliance requirements upon small businesses or districts, no further measures were needed to ascertain those facts and, consequently, none were taken.

A RAFA is not required for the regulatory amendments to 18 NYCRR § 387.12(f)(3)(v)(a)-(c) because the regulatory amendments will neither have an adverse impact upon, nor impose reporting, recordkeeping, or other compliance requirements upon rural social services districts (rural districts) or private entities in rural areas. The regulatory amendments set forth the federally-approved standard utility allowances for the Supplemental Nutrition Assistance Program effective October 1, 2022. As it is evident that the regulatory amendments will not have an adverse impact upon or impose reporting, recordkeeping, or other compliance requirements upon rural districts or private entities in rural areas, no further measures were needed to ascertain those facts and, consequently, none were taken.

A JIS is not required for the regulatory amendments. It is apparent from the nature and the purpose of the regulatory amendments that they do not have a substantial adverse impact on jobs and employment opportunities in either the public or the private sectors in New York State (NYS). The regulatory amendments have no effect on small businesses. The regulatory amendments do not affect, in any significant way, the jobs of the workers in the social services districts (districts) or the State. These regulatory amendments set forth the federally-approved standard utility allowances (SUAs) for the Supplemental Nutrition Assistance Program (SNAP) as of October 1, 2022. The calculation of SNAP budgets, which incorporates the SUAs, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using the Office of Temporary and Disability Assistance’s Welfare Management System. To the extent these processes are not automated, the regulatory amendments do not impose any additional requirements upon the districts in terms of calculating SNAP budgets. Thus, the regulatory amendments do not have any adverse impact on jobs and employment opportunities in either the public or private sectors of NYS.