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Supplemental Nutrition Assistance Program: Pandemic Electronic Benefits Transfer (P-EBT) Integrity (rule, 85 FR 70043, November 4, 2020)

Summary

A final rule of the Food and Nutrition Service (FNS) of the U.S Department of Agriculture, "Supplemental Nutrition Assistance Program: Pandemic Electronic Benefits Transfer (P–EBT) Integrity" (RIN 0584–AE80), printed in the Federal Register of November 4, 2020. FNS says the regulations will ensure the integrity of the supplemental allotments created by Section 1101 of the Families First Coronavirus Response Act (FFCRA). The rule recounts that on March 13, 2020, President Trump declared the COVID–19 outbreak a national emergency and that many schools began closing in March 2020. It covers P–EBT for households with a child enrolled in a covered childcare facility that is closed or has reduced attendance or hours for at least five consecutive days during a public health emergency. The rule is effective on November 4, 2020.

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Cite this document

“Supplemental Nutrition Assistance Program: Pandemic Electronic Benefits Transfer (P-EBT) Integrity (rule, 85 FR 70043, November 4, 2020).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/supplemental-nutrition-assistance-program-pandemic-electronic-benefits-6206bdef14/, SHA-256 aac9497f030f6cce436eaeeec0fb75b26303993625727a4efd626b304d97cff9.

Full text

                                                                                                                                                                                                        70043

                                             Rules and Regulations                                                                                         Federal Register
                                                                                                                                                           Vol. 85, No. 214

                                                                                                                                                           Wednesday, November 4, 2020



                                             This section of the FEDERAL REGISTER                    would also safeguard the integrity of                 schools reduce the number of days or
                                             contains regulatory documents having general            SNAP, as P–EBT operates within the                    hours that students attend school for at
                                             applicability and legal effect, most of which           SNAP infrastructure. USDA FNS is                      least five consecutive days during a
                                             are keyed to and codified in the Code of                responsible for administering P–EBT                   public health emergency, (2) households
                                             Federal Regulations, which is published under           and SNAP at the Federal level.                        with at least one child enrolled in a
                                             50 titles pursuant to 44 U.S.C. 1510.
                                                                                                     DATES: Effective Date: This final rule is             covered childcare facility and SNAP
                                             The Code of Federal Regulations is sold by              effective on November 4, 2020.                        when the covered child care facility is
                                             the Superintendent of Documents.                           Notice Date: Within 10 calendar days               closed or has reduced attendance or
                                                                                                     of November 4, 2020, SNAP authorized                  hours for at least five consecutive days
                                                                                                     firms shall be notified of the contents of            during a public health emergency, and
                                             DEPARTMENT OF AGRICULTURE                               this final rule.                                      (3) households with at least one child
                                                                                                     FOR FURTHER INFORMATION CONTACT:                      enrolled in a covered childcare facility
                                             Food and Nutrition Service                                                                                    and SNAP when one or more schools in
                                                                                                     Andrea Gold, the SNAP Retailer Policy
                                                                                                     and Management Division, USDA FNS                     the area of the covered child care
                                             7 CFR Part 284                                                                                                facility are closed or have reduced
                                                                                                     at SM.FN.RPMDHQ-WEB@usda.gov;
                                             [FNS–2020–0028]                                         703.305.2434.                                         attendance or hours for at least five
                                                                                                                                                           consecutive days during a public health
                                             RIN 0584–AE80                                           SUPPLEMENTARY INFORMATION:
                                                                                                                                                           emergency.
                                                                                                     Executive Summary                                        The USDA’s Food and Nutrition
                                             Supplemental Nutrition Assistance                                                                             Service (FNS or the Agency) works to
                                             Program: Pandemic Electronic                            Background Information                                end hunger and obesity through the
                                             Benefits Transfer (P–EBT) Integrity                     Establishment of P–EBT                                Federal administration of 15 Federal
                                             AGENCY: Food and Nutrition Service                         On January 31, 2020, Secretary Azar                nutrition assistance programs including
                                             (FNS), Agriculture Department (USDA).                   of the U.S. Department Health and                     the National School Lunch Program
                                                                                                     Human Services (HHS) declared a                       (NSLP), which provides free and
                                             ACTION: Final rule.
                                                                                                     public health emergency under section                 reduced price lunches to eligible
                                             SUMMARY: The Food and Nutrition                         319 of the Public Health Service Act (42              children, and the Supplemental
                                             Service (FNS or the Agency), an agency                  U.S.C. 247d), in response to the                      Nutrition Assistance Program (SNAP),
                                             of the U.S Department of Agriculture                    Coronavirus Disease 2019 (COVID–19).                  which provides nutrition benefits to
                                             (USDA or the Department), is issuing a                  On March 13, 2020, President Trump                    supplement the food budgets of needy
                                             final rule to add regulations that will                 declared the ongoing COVID–19                         families so they can purchase healthy
                                             ensure the integrity of the supplemental                outbreak in the U.S. to be a national                 food and move towards self-sufficiency.
                                             allotments created by Section 1101 of                   emergency. Due to COVID–19, many                      FNS was, therefore, charged by Congress
                                             the Families First Coronavirus Response                 schools nationwide began closing in                   with the implementation of P–EBT at
                                             Act (FFCRA), as amended by the                          March 2020. In order to provide some                  the Federal level. As of November 4,
                                             Continuing Appropriations Act, 2021                     financial relief to families, on March 18,            2020, 52 States 1 have been approved by
                                             and Other Extensions Act (CR) for                       2020, President Trump signed into law                 USDA to administer P–EBT.
                                             households with children who would                      the Families First Coronavirus Response               Collectively, these States have been
                                             have otherwise received free or reduced                 Act (FFCRA; Pub. L. 116–127). Section                 approved to provide over 30.1 million
                                                                                                                                                           eligible children with about $10.1
                                             price school meals under the Richard B.                 1101 of the FFCRA, as originally
                                                                                                                                                           billion in food assistance benefits.
                                             Russell National School Lunch Act, but                  enacted, authorized USDA to approve
                                                                                                                                                              Section 1101(d) of the FFCRA
                                             for school closures or reduction in the                 State plans to provide federally funded               provided States the option to deliver P–
                                             number of days or hours that students                   food assistance to each household                     EBT benefits via the Electronic Benefit
                                             attend school in response to the ongoing                containing at least one child who would               Transfer (EBT) system established for
                                             and national Coronavirus Disease 2019                   have received free or reduced price                   SNAP benefits by Section 7 of the Food
                                             (COVID–19) Public Health Emergency.                     school meals, but for school closures                 and Nutrition Act of 2008 (FNA; 7
                                             Such allotments are referred to as                      lasting at least five consecutive days                U.S.C. 2016). All States, as defined by
                                             Pandemic Electronic Benefits Transfer                   during a public health emergency
                                             (P–EBT) benefits. The CR extended the                   declaration. The U.S. Department of                      1 All 50 states, the District of Columbia, the U.S.
                                             authority for P–EBT through Fiscal Year                 Agriculture (USDA or the Department)                  Virgin Islands, and Guam are referred to as ‘‘States’’
                                             (FY) 2021, and also authorized P–EBT                    refers to these benefits created by                   for this rule, and all 53 States (as defined in section
                                             for households with at least one child                  Section 1101 of the FFCRA as Pandemic                 3(r) of the Food and Nutrition Act) were eligible to
                                                                                                                                                           administer P–EBT under section 1101 of FFCRA as
                                             enrolled in a covered child care facility               Electronic Benefits Transfer (P–EBT)                  originally enacted. Of those 53, only 52 have
                                             (as defined by Section 1101(i)(1) of the                benefits. The Continuing                              requested P–EBT. While the CR extended the option
                                             FFCRA, as amended) and the                              Appropriations Act, 2021 and Other                    to receive P–EBT benefits to other State Agencies




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                                             supplemental nutrition assistance                       Extensions Act (CR; Pub. L. 116–159)                  not covered by the original FFCRA—Puerto Rico,
                                                                                                                                                           American Samoa, and the Northern Mariana
                                             program (SNAP) when the covered child                   amended Section 1101 of the FFCRA to                  Islands—these territories manage retailer
                                             care facility is closed or has reduced                  extend the authority for P–EBT through                participation as a part of their block grants.
                                             attendance or hours or one or more                      FY 2021 (which would cover portions of                Retailers in these territories are not currently
                                                                                                                                                           subject to 7 CFR part 278 and would not be subject
                                             schools in the area of the covered child                School Years 2020/2021 and 2021/2022)                 to 7 CFR part 284. As such, for purposes of this
                                             care facility are closed or have reduced                and expanded P–EBT to include: (1)                    rule, they are not included in any reference to
                                             attendance or hours. This final rule                    Households with children whose                        States or State Agencies.



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                                             70044            Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations

                                             this rule, that have implemented P–EBT                      D Transfer of Ownership CMP (a firm                   Due to the experience administering
                                             have opted to use the EBT system for                          is sold while serving a period of                these SEBTC demonstration projects,
                                             such delivery.                                                disqualification and must pay a                  USDA determined that it would take
                                                                                                           fine)                                            several months to modify SNAP State
                                             Routine Operation of SNAP Benefit                           D Trafficking CMP (a firm meeting                  Agency eligibility and issuance systems
                                             Issuance and Redemption                                       certain criteria may pay a fine in               to accommodate this type of model for
                                                SNAP benefits are issued and                               lieu of permanent disqualification               P–EBT. In addition, due to the ongoing
                                             redeemed using the EBT system. Each                           for trafficking)                                 and national COVID–19 Public Health
                                             SNAP household has an account into                          One of the most serious violations of              Emergency, SNAP State Agencies found
                                             which SNAP benefits are issued on a                      SNAP rules for firms is trafficking.                  themselves extremely short-staffed and
                                             monthly basis. The SNAP benefits are                     SNAP regulations at 7 CFR 271.2                       unable implement this type of major
                                             accessed by a household using an EBT                     currently define the violation of                     system modification.
                                             card and a personal identification                       trafficking. Trafficking usually means                   After consultation with SNAP State
                                             number (PIN), and may only be used to                    the exchange of SNAP benefits for cash                Agencies, and in light of the urgency of
                                             purchase SNAP eligible food as defined                   or other consideration and carries more               the ongoing and national COVID–19
                                             in 7 CFR 271.2.                                          serious sanctions for firms. The                      Public Health Emergency, USDA
                                                In addition, SNAP benefits may only                   Department monitors and takes                         permitted States to issue SNAP and P–
                                             be redeemed at firms 2 authorized by                     appropriate administrative action,                    EBT benefits using essentially the same
                                             USDA to accept SNAP benefits. Per                        including sanctions, against firms that               existing SNAP EBT mechanism every
                                             Section 9 of the FNA (7 U.S.C. 2018)                     engage in trafficking and other                       State already had in place. As a result
                                             and 7 CFR 278.1(a), firms must apply to                  violations. USDA cannot fulfill its                   of this, however, P–EBT and SNAP
                                             and be authorized by the Department to                   primary purpose of helping individuals                benefits are generally indistinguishable
                                             accept SNAP benefits as a form of                        and families in need afford a basic diet              throughout the issuance and redemption
                                             payment. The Department is responsible                   without maintaining strong program                    process.
                                             for policy and oversight related to firm                 integrity. USDA takes its role as a                      Under the process implemented by
                                             eligibility, authorization, and                          steward of public funds seriously and                 States, P–EBT benefits were generally
                                             compliance. USDA oversight includes                      emphasizes program integrity                          issued onto a household’s existing EBT
                                             integrity efforts such as findings of                    throughout all program operations,                    card if the household was already
                                             violations on the basis of evidence                      including the use of a fraud detection                receiving SNAP benefits (and therefore
                                             obtained through on-site investigations,                 system to analyze data on EBT                         already possessed an EBT card). Such
                                             inconsistent SNAP redemption data,                       transactions conducted at firms.                      SNAP households would have received
                                             and evidence obtained through a                          Implementation of P–EBT and                           P–EBT benefit issuances into their
                                             transaction report under the EBT                         Interaction With SNAP                                 existing SNAP accounts. Once P–EBT
                                             system. Per 7 CFR 278.1, 278.6, and                                                                            benefits were issued into households’
                                             278.7, firms that violate SNAP rules                        Per Section 1101(d) of the FFCRA, P–
                                                                                                      EBT benefits may be issued through the                existing SNAP accounts, P–EBT benefits
                                             may face the following:                                                                                        and SNAP benefits became comingled,
                                                                                                      same EBT system established by Section
                                             Adverse Administrative Actions                           7 of the FNA (7 U.S.C. 2016) which is                 and neither SNAP households receiving
                                                                                                                                                            P–EBT benefits nor firms accepting P–
                                             • Denial (a firm applying for SNAP                       used to issue SNAP benefits. To
                                                                                                                                                            EBT benefits were able to tell the
                                                 authorization is found ineligible                    accelerate the implementation of P–
                                                                                                      EBT, ease administrative burden for                   difference between these two types of
                                                 and may not reapply for a specific                                                                         benefits. In at least one State, new cards
                                                 period)                                              States, and more rapidly provide
                                                                                                                                                            were sent to all P–EBT recipient
                                             • Withdrawal (an authorized firm is                      emergency financial relief to families,
                                                                                                      States generally issued P–EBT benefits                households, regardless as to their
                                                 found ineligible, removed from the
                                                                                                      onto a household’s existing EBT card if               participation in SNAP.
                                                 program, and may not reapply for a
                                                                                                      the household was already receiving                      Non-SNAP households that were
                                                 specific period)
                                             • Penalties (imposed after an                            SNAP benefits (and therefore already                  eligible for P–EBT benefits generally
                                                 investigation revealed violations):                  possessed an EBT card).                               received EBT cards in the mail that were
                                               ➢ Warning Letter (the violations                          Initially, the Department planned to               loaded with only P–EBT benefits. These
                                                 found at the firm do not rise to the                 implement P–EBT using a model similar                 cards issued to non-SNAP households
                                                 level of a sanction, so the firm is                  to that used for certain Child Nutrition              functioned identically to the EBT cards
                                                 only warned)                                         Summer EBT demonstration projects                     provided to SNAP households.
                                               ➢ Sanctions (the violations found at                   (Summer EBT for Children or SEBTC) as                    Despite using the same delivery and
                                                 the firm are serious, so the firm is                 authorized by the Agriculture, Rural                  funding mechanism, P–EBT benefits are
                                                 subject to a sanction):                              Development, Food and Drug                            not SNAP benefits. SNAP was
                                               Æ Claim (the firm must repay illicitly                 Administration, and Related Agencies                  authorized and is governed by the FNA,
                                                 obtained benefits)                                   Appropriations Act, 2010 (Pub. L. 111–                while P–EBT was separately created and
                                               Æ Disqualification (the firm may not                   80). In this SEBTC model, benefits are                is governed by the FFCRA with separate
                                                 participate in the program for a                     issued to a participant’s existing EBT                appropriations for a different purpose—
                                                 specific period)                                     card into an account distinct from                    to provide supplemental allotments to
                                               Æ Civil Money Penalty (CMP; the firm                   SNAP, and the SEBTC benefits remain                   households with children who would
                                                 must pay a fine)                                     separate from SNAP benefits throughout                have otherwise received free or reduced




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                                               D Hardship CMP (a firm facing a term                   the issuance and redemption process.                  school meals, but for school closures
                                                 disqualification in a low food                       However, because this SEBTC model                     related to the ongoing and national
                                                 access area may pay a fine and                       was only ever implemented as a                        COVID–19 Public Health Emergency.
                                                 continue to participate in the                       demonstration project in 7 States, most               See Section 1101 of the FFCRA.
                                                 program)                                             States were not already equipped with                 Nevertheless, the aforementioned
                                                                                                      the infrastructure needed to implement                implementation mechanisms rendered
                                               2 As defined at 7 CFR 271.2.                           P–EBT in the same manner.                             P–EBT and SNAP benefits essentially


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                                                              Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations                                                 70045

                                             indistinguishable for benefit issuance                    that providing an integrity scheme for                     The purpose of P–EBT was to provide
                                             and redemption purposes.                                  P–EBT helps ensure that P–EBT benefits                  financial relief to families in the midst
                                                                                                       are used for their intended purpose,                    of the ongoing national COVID–19
                                             Purpose of the Final Rule
                                                                                                       upholding the Congressional intent of                   Public Health Emergency. USDA
                                                Because P–EBT and SNAP benefits                        both the FFCRA and the CR.                              prioritized expediting the
                                             are essentially indistinguishable for                        The inability to impose penalties on                 implementation of P–EBT in States that
                                             benefit issuance and redemption                           all firms for misuse of P–EBT benefits                  applied. However, while making
                                             purposes when the benefits are loaded                     undermines USDA’s oversight and                         expeditious implementation possible,
                                             onto the same EBT card, neither SNAP                      integrity efforts, and would also                       the co-mingling of SNAP and P–EBT
                                             households receiving P–EBT benefits                       adversely affect SNAP oversight and                     benefits inadvertently introduced this
                                             nor firms accepting P–EBT benefits are                    integrity. For example, in FY 2019,                     anomaly into FNS integrity efforts.
                                             able to tell the difference between these                 USDA identified and sanctioned more                        If USDA did not promulgate this final
                                             two types of benefits. At the same time,                  than one thousand firms engaged in the                  rule, then USDA would not be able to
                                             the Department’s SNAP fraud detection                     trafficking of SNAP benefits.4 The                      efficiently and effectively address
                                             system also cannot distinguish between                    overwhelming majority of these cases                    misuse by firms of P–EBT benefits or
                                             these two types of benefits.                              were built, at least in part, using the                 SNAP benefits, and both P–EBT and
                                                In addition, as discussed earlier, 7                   Department’s SNAP fraud detection                       SNAP program integrity would be
                                             CFR parts 271 and 278 provide for                         system’s transaction data. Since the                    adversely impacted. Assuming that P–
                                             adverse administrative actions against                    Department’s SNAP fraud detection                       EBT benefits are trafficked at a rate
                                             firms for SNAP violations, such as                        system cannot distinguish between                       similar to SNAP benefits, USDA
                                             trafficking, but those regulations govern                 SNAP and P–EBT benefits in transaction                  estimates that $151 million in P–EBT
                                             violations involving SNAP benefits, not                   data, USDA would be unable to use this                  benefits could be trafficked.7 Currently,
                                             P–EBT benefits. Since P–EBT benefits                      vital data in program integrity work                    USDA estimates that about 3 percent of
                                             are not SNAP benefits, existing                           without considerable time-consuming                     actual EBT fraud is detected through
                                             regulations regarding the appropriate                     modifications and resources, or the                     investigations that utilize EBT
                                             use of SNAP benefits and the                              promulgation of this final rule.                        transaction data. The limited ability to
                                             consequences for misusing those                              Without this final rule, USDA’s ability              use this data would potentially cause
                                             benefits do not apply to P–EBT benefits,                  to hold violators accountable would be                  this fraud to go unchecked, which
                                             and there are currently no such                           adversely impacted. To illustrate the                   would constitute a serious integrity
                                             provisions for the misuse of P–EBT                        impact on USDA’s oversight efforts, a                   issue. Furthermore, because P–EBT
                                             benefits. However, USDA finds it                          2017 report regarding trafficking                       benefits may remain in a household’s
                                             appropriate and necessary to impose                       activities from 2012 through 2014                       account for months or even years before
                                             certain restrictions on the use of P–EBT                  revealed that approximately 12 percent,                 being expunged, USDA must address
                                             benefits for several reasons described                    or about 36,000 firms, engaged in                       these integrity problems; otherwise,
                                             below.                                                    trafficking, totaling approximately $1.1                they could persist for months or even
                                                Congress initially authorized P–EBT                    billion a year or about 1.5% of all                     years after the issuance of P–EBT
                                             as food assistance for households with                    benefits redeemed. If USDA were unable                  benefits.8 This final rule is crucial in
                                             children who lost free or reduced price                   to use EBT transaction data as is                       allowing USDA to address trafficking in
                                             school meals and since then, as                           typically done for detecting trafficking                a timely manner and ensuring P–EBT
                                             mentioned previously, has greatly                         and sanctioning trafficking firms, then                 benefits, as well as SNAP benefits, are
                                             expanded P–EBT’s scope. P–EBT                             as many as a thousand fewer firms                       used in a manner consistent with
                                             benefits are not cash assistance, nor are                 engaging in trafficking would be                        Congressional intent.
                                             they intended for misuse such as                          identified and sanctioned in a year.5                      This final rule allows USDA to
                                             trafficking. As a type of replacement for                 This would mean that such firms would                   immediately address the integrity
                                             the value of meals at schools or covered                  be able to continue to commit trafficking               issues, instead of prolonging them and
                                             child care facilities,3 P–EBT is not                      violations without consequence,                         allowing for bad actors to discover the
                                             intended for certain incongruous uses,                    resulting in as much as $31 million in                  anomaly and take advantage of it. If
                                             including the purchase of nonfood items                   fraud a year that would remain                          USDA were to notify the public of these
                                             such as alcohol and tobacco. To                           unchecked.6                                             integrity issues without implementing a
                                             safeguard the integrity of P–EBT (as well                                                                         comprehensive solution, then such a
                                             as SNAP), this final rule will ensure that                   4 Data drawn from USDA’s ‘‘Fiscal Year 2019          notice would subvert program integrity.
                                             the Department can hold firms                             Year End Summary’’ (https://fns-                        By promulgating this final rule, USDA
                                             accountable by aligning P–EBT with                        prod.azureedge.net/sites/default/files/resource-
                                                                                                       files/2019-SNAP-Retailer-Management-Year-End-
                                                                                                                                                               is ensuring that traditional mechanisms
                                             certain existing SNAP integrity                           Summary.pdf).                                           of ongoing and robust firm oversight
                                             regulations. The Department believes                         5 Data drawn from USDA’s ‘‘Fiscal Year 2019

                                                                                                       Year End Summary’’ (https://fns-                           7 Total P–EBT benefit issuance is about $10.1
                                               3 As authorized by the originally enacted Section       prod.azureedge.net/sites/default/files/resource-        billion and the estimated 2012–2014 SNAP retailer
                                             1101(b) of FFCRA and explained in Pandemic EBT            files/2019-SNAP-Retailer-Management-Year-End-           trafficking rate is 1.5% of benefits redeemed.
                                             (P–EBT) Questions and Answers (April 15, 2020)            Summary.pdf).                                              8 For administrative ease, most States chose to

                                             (available at: https://fns-prod.azureedge.net/sites/         6 The 2012–2014 retailer trafficking study           issue P–EBT benefits such that these benefits would
                                             default/files/resource-files/SNAP-COVID-                  estimated that about 36,000 retailers engage in         only be expunged from beneficiaries’ SNAP
                                             PEBTQA.pdf), the guidelines for P–EBT benefit             trafficking totaling about $1.1 billion a year          accounts after a continuous 365-day period of
                                             amounts were based on the value of the rates for          (reflecting about 1.5% of benefits redeemed). Using     inactivity per SNAP standards at 7 CFR 274.2(h)(2)




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                                             free school meals. All States that issued P–EBT           an arithmetic mean, the average trafficking retailer    as they were when P–EBT State Plans were
                                             benefits after the original enactment of the FFCRA        traffics about $31,000 in a year. USDA identified       submitted. Every time a beneficiary accesses their
                                             did so in amounts corresponding to the value of the       and sanctioned about 1,000 firms for trafficking in     benefits, this 365-day expungement clock is reset.
                                             rates for free school meals. The CR subsequently          FY 2019 using EBT transaction data analysis as an       Some beneficiaries may choose to conserve their P–
                                             amended Section 1101(i) of the FFCRA to define            investigative tool. If this USDA work were              EBT benefits, using them sparingly over a
                                             ‘‘free rate’’ separately for breakfast and lunch, based   hampered, then these firms could continue               protracted period. Therefore, although P–EBT is
                                             on the rates of those free meals under Section 4 of       trafficking activities at the same or a greater rate,   currently authorized through September 30, 2020,
                                             the Child Nutrition Act of 1966 and the Richard B.        resulting in as much as $31 million in trafficking      P–EBT benefits could remain on EBT cards years
                                             Russell National School Lunch Act, respectively.          being unchecked.                                        after that date.



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                                             70046            Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations

                                             and enforcement are maintained to                        of the FFCRA, as amended by the                         benefits (e.g., trafficking only P–EBT
                                             protect the integrity of both P–EBT and                  Continuing Appropriations Act, 2021                     benefits or trafficking a combination of
                                             SNAP and that the current lack of P–                     and Other Extensions Act (CR; Pub. L.                   P–EBT and SNAP benefits), then that
                                             EBT integrity regulations is addressed                   116–159) or any subsequent legislation,                 firm shall be subject to the appropriate
                                             without further unnecessary and                          are subject to integrity regulations, as                sanction (e.g., permanent
                                             harmful delay. This will allow USDA to                   enumerated below. This change will                      disqualification or a civil money penalty
                                             continue detecting and pursuing                          ensure that P–EBT (as well as SNAP) is                  in lieu of permanent disqualification).
                                             administrative remedies to ensure there                  administered in a manner that                           Firms shall not be subject to multiple
                                             is no increase in trafficking and other                  safeguards against fraud and abuse. This                sanctions for a single investigation that
                                             violations.                                              final rule renames the previously                       involves both P–EBT and SNAP benefits
                                                Importantly, given the urgency of the                 reserved part 284 as ‘‘Miscellaneous’’                  (i.e., firms shall not be subject to one
                                             issue, it is most efficient for P–EBT                    and creates § 284.1, titled ‘‘Pandemic                  sanction for misuse of P–EBT benefits
                                             regulations to adopt the structure and                   Electronic Benefits Transfer (P–EBT),’’                 and a separate sanction for misuse of
                                             meaning of SNAP regulations instead of                   therein.                                                SNAP benefits based on a single
                                             crafting an entirely new regulatory                         The following crosswalk summarizes                   investigation).
                                             scheme and implementing massive                          the provisions of this new § 284.1. The
                                             system changes that would accompany                      left column lists the citation for each                    While this final rule promulgates
                                             such a new regulatory scheme. Such                       final rule provision, the center column                 provisions for P–EBT benefits that
                                             separate undertakings solely for P–EBT                   summarizes the effect of the provision,                 generally track the corresponding SNAP
                                             are impractical and potentially                          and the right column indicates the                      benefit provisions, one exception is the
                                             ineffective because of the time, cost, and               preexisting SNAP integrity regulation to                P–EBT benefits provision concerning
                                             effort involved.                                         which the final rule provision refers. In               judicial review. As P–EBT benefits arise
                                                For the reasons discussed, this final                 using phrases such as ‘‘involving P–EBT                 from FFCRA, as amended regulations at
                                             rule establishes integrity regulations (as               benefits’’, the Department means that                   § 284.1(g) will provide for judicial
                                             enumerated in this final rule) for P–EBT                 the activity at issue involves P–EBT                    appeal rights pursuant the
                                             benefits as detailed further below in the                benefits as well as SNAP benefits, or                   Administrative Procedure Act (5 U.S.C.
                                             ‘‘Summary of P–EBT Regulations’’                         only P–EBT benefits. Under 7 CFR                        702 through 706) as opposed to section
                                             section.                                                 278.6, a firm that commits serious                      14 of the FNA. Currently, judicial
                                                                                                      violations may be subject to a period of                review requests for civil cases filed
                                             Summary of P–EBT Regulations                             disqualification or a civil money                       pursuant to the Administrative
                                               This final rule establishes that P–EBT                 penalty. Under this final rule, if a firm               Procedure Act have a six-year statute of
                                             benefits issued pursuant to Section 1101                 commits violations involving P–EBT                      limitations. See 28 U.S.C. 2401(a).

                                               Citation in this final rule                                  Purpose of final rule provision                                Reference to preexisting regulation

                                             7 CFR 284.1(a) ................    background on P–EBT and the function of this section .................................   n/a.
                                             7 CFR 284.1(b)(1) ............     definition of trafficking applies to activities described in such definition in-         7 CFR 271.2.
                                                                                   volving P–EBT benefits.
                                             7 CFR 284.1(b)(2) ............     definition of firm’s practice applies to activities described in such definition         7 CFR 271.2.
                                                                                   involving P–EBT benefits.
                                             7 CFR 284.1(b)(3) ............     definition of involving P–EBT benefits or involve P–EBT benefits means ac-               n/a.
                                                                                   tivities involving P–EBT benefits as well as SNAP benefits, or only P–
                                                                                   EBT benefits.
                                             7 CFR 284.1(c) .................   requirements and restrictions on the participation of retail food stores and             7 CFR 278.2, 278.3, and 278.4.
                                                                                   wholesale food concerns and the redemption of coupons apply to activi-
                                                                                   ties involving P–EBT benefits, including the restriction that P–EBT bene-
                                                                                   fits may only be accepted by an authorized firm and only in exchange for
                                                                                   eligible food.
                                             7 CFR 284.1(d) ................    a firm may be subject to denial or withdrawal for any violations involving P–            7 CFR 278.1.
                                                                                   EBT benefits as specified in the subparagraphs.
                                             7 CFR 284.1(d)(1) ............     firms with certain sanctions for violations involving P–EBT benefits must                7 CFR 278.1(b)(4).
                                                                                   submit a collateral bond or irrevocable letter or credit as a condition of
                                                                                   authorization; the calculation of the value of such collateral bonds or ir-
                                                                                   revocable letters or credit shall also include the amount of P–EBT re-
                                                                                   demptions.
                                             7 CFR 284.1(d)(2) ............     authorization will be denied or withdrawn for activities indicating a lack of            7 CFR 278.1(b)(3), (k)(3) and (6), and
                                                                                   necessary business integrity and reputation, including activities involving             (l)(1)(iv).
                                                                                   P–EBT benefits.
                                             7 CFR 284.1(d)(3) ............     authorization will be denied or withdrawn for failure to pay fines, penalties,           7 CFR 278.1(k)(7) and (l)(1)(v) and
                                                                                   and claims imposed for violations involving P–EBT benefits.                             (vi).
                                             7 CFR 284.1(e) ................    a firm may be subject to disqualification, monetary penalties, and/or fines              7 CFR 278.6.
                                                                                   for any violations that include activities involving P–EBT benefits as spec-
                                                                                   ified in the subparagraphs.
                                             7 CFR 284.1(e)(1) ............     permanent disqualification or civil monetary penalty in lieu of permanent                7 CFR 278.6(e)(1)(i) and (i).




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                                                                                   disqualification for trafficking applies to trafficking that involves P–EBT
                                                                                   benefits.
                                             7 CFR 284.1(e)(2) ............     permanent disqualification for violations involving P–EBT benefits, such as              7 CFR 278.6(e)(1)(ii).
                                                                                   the sale of ineligible items, when the firm had already been sanctioned at
                                                                                   least twice.
                                             7 CFR 284.1(e)(3) ............     sanctions for unauthorized acceptance apply to transactions involving P–                 7 CFR 278.6(e)(2)(v), (e)(3)(iv), and
                                                                                   EBT benefits.                                                                           (m).



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                                                              Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations                                                70047

                                               Citation in this final rule                                  Purpose of final rule provision                               Reference to preexisting regulation

                                             7 CFR 284.1(e)(4) ............     5-year disqualification for certain firms when collective redemptions exceed          7 CFR 278.6(e)(2)(ii), (iii), and (iv).
                                                                                   food sales in a certain time period; the amount of redemptions shall also
                                                                                   include the amount of P–EBT redemptions.
                                             7 CFR 284.1(e)(5) ............     3-year disqualification for any of the violations described in § 278.6(e)(2)          7 CFR 278.6(e)(3)(ii).
                                                                                   when FNS had not previously advised the firm of the possibility that viola-
                                                                                   tions were occurring and of the possible consequences of violating the
                                                                                   regulations, when those violations involve P–EBT benefits.
                                             7 CFR 284.1(e)(6) ............     1-year disqualification for transactions involving P–EBT benefits where re-           7 CFR 278.6(e)(4)(ii) and 278.2(f).
                                                                                   tailer accepted benefits in payment for items sold on credit.
                                             7 CFR 284.1(e)(7) ............     disqualifications for sale of ineligible foods applies to transactions involving      7    CFR      278.6(e)(2)(i),    (e)(3)(i),
                                                                                   P–EBT benefits.                                                                      (e)(4)(i), and (e)(5).
                                             7 CFR 284.1(e)(8) ............     periods of disqualification imposed against firms will be doubled when such           7 CFR 278.6(e)(6).
                                                                                   firms have been sanctioned for committing violations involving P–EBT
                                                                                   benefits.
                                             7 CFR 284.1(e)(9) ............     warning letters shall be issued to firms when such firms commit violations            7 CFR 278.6(e)(7).
                                                                                   involving P–EBT benefits, which are too limited to warrant a period of dis-
                                                                                   qualification.
                                             7 CFR 284.1(e)(10) ..........      calculation of hardship and transfer of ownership civil money penalties in-           7 CFR 278.6(g).
                                                                                   cludes consideration of the firm’s average monthly redemption of P–EBT
                                                                                   benefits.
                                             7 CFR 284.1(e)(11) ..........      calculation of trafficking civil money penalties includes consideration of the        7 CFR 278.6(j).
                                                                                   firm’s average monthly redemption of P–EBT benefits.
                                             7 CFR 284.1(f) .................   standards regarding the determination and disposition of claims apply to              7 CFR 278.7.
                                                                                   claims based on P–EBT benefits.
                                             7 CFR 284.1(g) ................    firms aggrieved by administrative action under § 284.1(d), (e), and (f) may           7 CFR part 279.
                                                                                   request administrative review in accordance with part 279, subpart A.
                                                                                   Firms aggrieved by the determination of such an administrative review
                                                                                   may seek judicial review under 5 U.S.C. 702 through 706.



                                             Procedural Matters                                       Executive Order 12866 and Executive                     that is likely to: (1) Have an annual
                                                                                                      Order 13563                                             effect on the economy of $100 million
                                             Administrative Procedure Act (APA)
                                                                                                         Executive Orders 12866 and 13563                     or more or adversely affect, in a material
                                             Statement
                                                                                                      direct agencies to assess all costs and                 way, the economy, a sector of the
                                                The Administrative Procedure Act of                                                                           economy, productivity, competition,
                                             1946, as amended (APA; 5 U.S.C. 553),                    benefits of available regulatory
                                                                                                      alternatives and, if regulation is                      jobs, the environment, public health or
                                             generally requires that agencies go                                                                              safety, or State, local, or Tribal
                                             through notice-and-comment                               necessary, to select regulatory
                                                                                                      approaches that maximize net benefits                   governments or communities; (2) create
                                             rulemaking before finalizing regulations                                                                         a serious inconsistency or otherwise
                                             and have a 30-day delayed effective date                 (including potential economic,
                                                                                                                                                              interfere with an action taken or
                                             for final rules. The APA, however,                       environmental, public health, and safety
                                                                                                                                                              planned by another agency; (3)
                                             allows for exemptions to these                           effects, distributive impacts, and
                                                                                                                                                              materially alter the budgetary impact of
                                             requirements. This final rule is being                   equity). Executive Order 13563
                                                                                                                                                              entitlements, grants, user fees, or loan
                                             promulgated under one of these                           emphasizes the importance of
                                                                                                                                                              programs or the rights and obligations of
                                             exemptions, as described below.                          quantifying both cost and benefits, of
                                                                                                                                                              recipients thereof; or (4) raise novel
                                                                                                      reducing cost, of harmonizing rules, and
                                             APA Exemption for Rules Pertaining to                                                                            legal or policy issues arising out of legal
                                                                                                      of promoting flexibility.
                                             Benefits                                                                                                         mandates, the President’s priorities, or
                                                                                                         The Office of Management and Budget
                                                                                                                                                              the principles set forth in E.O. 12866.
                                                The APA provides that the notice-                     (OMB) has reviewed this final rule and
                                                                                                                                                              This final rule does not meet any of
                                             and-comment and 30-day delay in the                      determined that it is not significant
                                                                                                                                                              these criteria.
                                             effective date provisions do not apply                   under Executive Order 12866 (E.O.                          The Department does not anticipate
                                             when a rule concerns ‘‘a matter relating                 12866). E.O. 12866 defines a                            that this final rule will impose any
                                             to agency management or personnel or                     ‘‘significant regulatory action’’ as one                additional costs on firms, beneficiary
                                             to public property, loans, grants,                                                                               households, SNAP State Agencies, or
                                             benefits, or contracts.’’ 5 U.S.C.                       comply with the APA requirements when
                                                                                                      promulgating SNAP regulations under the FNA,
                                                                                                                                                              any other stakeholders. USDA estimates
                                             553(a)(2). P–EBT is a food assistance                                                                            that failure to promulgate and
                                                                                                      this final rule is promulgated under the FFCRA, not
                                             benefit created by the FFCRA and,                        the FNA. Therefore, this final rule regarding P–EBT     implement this final rule would
                                             therefore, USDA has the authority under                  benefits is exempt from the APA notice-and-             significantly hamper the agency’s ability
                                             FFCRA to issue a final rule pertaining                   comment and 30-day delay in the effective date
                                                                                                                                                              to enforce regulation and law in
                                             to P–EBT without notice-and-comment                      provisions under 5 U.S.C. 553(a)(2). Furthermore,
                                                                                                      while notice-and-comment rulemaking remains an          maintaining SNAP integrity. USDA
                                             or a delayed effective date.9                            option for matters involving benefits, USDA is          considered the regulatory alternatives of
                                                                                                      choosing to promulgate a final rule for P–EBT           taking no action or promulgating this




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                                                9 Previously, USDA utilized APA notice-and-           benefits under the authority in 5 U.S.C. 553(a)(2)
                                             comment rulemaking procedures regardless of the          because the additional time to undergo notice-and-
                                                                                                                                                              final rule instead as a notice of proposed
                                             APA exemption for benefits, pursuant to the              comment would further undermine integrity. Firms        rulemaking, but these approaches were
                                             ‘‘Public Participation in Rule Marking: Statement of     are already subject to certain requirements             rejected for the reasons provided in the
                                             Policy’’ (Statement of Policy), published on July 24,    regarding the redemption of SNAP benefits on EBT        preamble. As this rule was designated
                                             1971 (36 FR 13804). However, this Statement of           cards; therefore, carrying over those requirements to
                                             Policy was rescinded in 2013. 78 FR 64194 (Oct. 28,      P–EBT benefits that are often comingled with SNAP
                                                                                                                                                              not significant, no additional regulatory
                                             2013). Additionally, while Section 4(c) of the FNA       benefits on the same EBT cards does not warrant         impact analysis has been performed for
                                             (7 U.S.C. 2013(c)) generally requires USDA FNS to        departure from 5 U.S.C. 553(a)(2).                      this rule.


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                                             70048            Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations

                                             Regulatory Flexibility Act Certification                 Executive Order 12988, Civil Justice                  Federal Government and Indian Tribes.
                                                                                                      Reform                                                The Department has considered the
                                                The Regulatory Flexibility Act (RFA)                                                                        impact of this final rule on Indian
                                             generally requires that agencies must                      This final rule has been reviewed
                                                                                                      under Executive Order 12988 (E.O.                     Tribes and has determined that this rule
                                             prepare a regulatory flexibility analysis                                                                      does not have Tribal implications.
                                             that meets the requirements of the RFA                   12988), Civil Justice Reform. This rule is
                                                                                                      intended to have preemptive effect with               Although Tribal consultation and
                                             and publish such an analysis in the                                                                            coordination is not required under E.O.
                                                                                                      respect to any State or local laws,
                                             Federal Register. Specifically, the RFA                                                                        13175, USDA commits to review of this
                                                                                                      regulations, or policies which conflict
                                             normally requires agencies to describe                                                                         rule at the Department’s next scheduled
                                                                                                      with its provisions or which would
                                             the impact of a rulemaking on small                                                                            Tribal listening session in case
                                                                                                      otherwise impede its full and timely
                                             entities by providing a regulatory                                                                             unexpected Tribal government issues or
                                                                                                      implementation. This final rule is not
                                             impact analysis. Such an analysis must                                                                         concerns emerge during
                                                                                                      intended to have retroactive effect. Prior
                                             address the consideration of regulatory                                                                        implementation.
                                                                                                      to any judicial challenge to the
                                             options that would lessen the economic
                                                                                                      provisions of the final rule, all                     Paperwork Reduction Act
                                             effect of the rule on small entities. The
                                                                                                      applicable administrative procedures
                                             RFA defines a ‘‘small entity’’ as (1) a                                                                          The Paperwork Reduction Act of 1995
                                                                                                      must be exhausted.
                                             proprietary firm meeting the size                                                                              (44 U.S.C. Chap. 35; 5 CFR part 1320)
                                             standards of the Small Business                          Executive Order 12372,                                requires the Office of Management and
                                             Administration (SBA); (2) a nonprofit                    Intergovernmental Review                              Budget (OMB) approve collections of
                                             organization that is not dominant in its                    Executive Order 12372 (E.O. 12372)                 information by a Federal agency before
                                             field; or (3) a small government                         requires intergovernmental consultation               they can be implemented.
                                             jurisdiction with a population of less                   with State and local governments that                   In accordance with 44 U.S.C.
                                             than 50,000. Except for such small                       would provide non-Federal funds for, or               3518(c)(1)(B)(ii), any information
                                             government jurisdictions, neither State                  that would be directly affected by,                   requests or requirements in this rule are
                                             nor local governments are ‘‘small                        proposed Federal financial assistance or              not subject to the requirements of the
                                             entities.’’ Similarly, for purposes of the               direct Federal development. This is a                 Paperwork Reduction Act because such
                                             RFA, individual persons are not small                    final rule regarding benefits fully                   collections of information are pursuant
                                             entities. The requirement to conduct a                   funded by the Federal Government and                  to an administrative action or
                                             regulatory impact analysis does not                      is therefore excluded from the scope of               investigation by an agency of the United
                                             apply if the agency ‘‘certifies that the                 E.O. 12372.                                           States against specific individuals or
                                             rule will not, if promulgated, have a                                                                          entities. The Secretary hereby certifies
                                             significant economic impact on a                         Executive Order 13132, Federalism                     that this rule does not impose reporting
                                             substantial number of small entities.’’                     Executive Order 13132 (E.O. 13132)                 or recordkeeping requirements subject
                                             The Department hereby certifies that                     requires Federal agencies to consider                 to the approval by the Office of
                                             this final rule will not have a significant              the impact of their regulatory actions on             Management and Budget under the
                                             economic impact on a substantial                         State and local governments. Where                    requirements of the Paperwork
                                             number of small entities.                                such actions have federalism                          Reduction Act.
                                                                                                      implications, imposes substantial direct
                                             Congressional Review Act                                 compliance costs on State and local                   E-Government Act Compliance
                                               Pursuant to the Congressional Review                   government, and are not required by                     USDA is committed to the E-
                                             Act (CRA; Pub. L. 104–121), OMB has                      statute, agencies are directed to provide             Government Act, which requires
                                             designated this action as not a major                    a statement for inclusion in the                      Government agencies in general to
                                             rule, as defined by 5 U.S.C. 804(2). The                 preamble to the regulations describing                provide the public the option of
                                             CRA defines a ‘‘major rule’’ as any rule                 the agency’s considerations in terms of               submitting information or transacting
                                             that has resulted in or is likely to result              the three categories called for under                 business electronically to the maximum
                                             in: an annual effect on the economy of                   Section (6)(b)(2)(B) of E.O. 13132.                   extent possible. An electronic copy of
                                                                                                         The Department has considered the                  this final rule will be made available
                                             $100,000,000 or more; a major increase
                                                                                                      impact of this final rule on State and                through the agency’s website.
                                             in costs or prices for consumers,
                                                                                                      local governments and has determined
                                             individual industries, Federal, State, or                                                                      Unfunded Mandates Reform Act
                                                                                                      that this rule does not have federalism
                                             local government agencies, or                                                                                     This final rule contains no Federal
                                                                                                      implications. Therefore, a federalism
                                             geographic regions; or, significant                      impact summary is not required.                       mandates (under the regulatory
                                             adverse effects on competition,                                                                                provision of title II of the Unfunded
                                             employment, investment, productivity,                    Executive Order 13175, Consultation
                                                                                                                                                            Mandates Reform Act of 1995) for State,
                                             innovation, or on the ability of U.S.-                   and Coordination With Indian Tribal
                                                                                                                                                            local, and Tribal governments or the
                                             based enterprises to compete with                        Governments
                                                                                                                                                            private sector. Therefore, this final rule
                                             foreign-based enterprises in domestic                      Executive Order 13175 (E.O. 13175)                  is not subject to the requirements of
                                             and export markets.                                      requires Federal agencies to consult and              section 202 and 205 of the Unfunded
                                             Executive Order 13771                                    coordinate With Tribes on a                           Mandates Reform Act.
                                                                                                      government-to-government basis on
                                                Executive Order 13771 directs                         policies that have Tribal implications,               Civil Rights Impact Analysis
                                             agencies to reduce regulation and                        including regulations, legislative                       USDA FNS has reviewed this final




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                                             control regulatory costs and provides                    comments or proposed legislation, and                 rule in accordance with USDA
                                             that the cost of planned regulations be                  other policy statements or actions that               Regulation 4300–4, ‘‘Civil Rights Impact
                                             prudently managed and controlled                         have substantial direct effects on one or             Analysis,’’ to identify any major civil
                                             through a budgeting process. This rule                   more Indian Tribes, on the relationship               rights impacts this final rule might have
                                             is not an E.O. 13771 regulatory action                   between the Federal Government and                    on SNAP or P–EBT participants on the
                                             because it is not significant under E.O.                 Indian Tribes, or on the distribution of              basis of age, race, color, national origin,
                                             12866.                                                   power and responsibilities between the                sex or disability. After review and


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                                                              Federal Register / Vol. 85, No. 214 / Wednesday, November 4, 2020 / Rules and Regulations                                         70049

                                             analysis of the final rule and available                 ■ For the reasons set out in the                      benefit redemptions when calculating
                                             data, it has been determined that this                   preamble, 7 CFR part 284 is added to                  the average monthly benefit redemption
                                             final rule will neither adversely nor                    read as follows:                                      volume.
                                             disproportionately impact any protected                                                                           (2) Authorization shall be denied or
                                             group. As this final rule has not been                   PART 284—MISCELLANEOUS                                withdrawn based on a determination by
                                             designated a ‘‘significant regulatory                    Sec.                                                  the Food and Nutrition Service (FNS)
                                             action,’’ a separate Civil Rights Impact                 284.1 Pandemic Electronic Benefits                    that a firm lacks or fails to maintain
                                             Analysis (CRIA) is not required per                           Transfer (P–EBT).                                necessary business integrity and
                                             Section 7(a) of USDA Regulation 4300–                    284.2 [Reserved]                                      reputation, in accordance with the
                                             4, ‘‘Civil Rights Impact Analysis.’’                       Authority: Pub. L. 116–127, 134 Stat. 178.          standards and time periods described at
                                             USDA Non-Discrimination Policy                                                                                 § 278.1(b)(3), (k)(3), and (l)(1)(iv) of this
                                                                                                      § 284.1 Pandemic Electronic Benefits                  chapter. When making such
                                                In accordance with Federal civil                      Transfer (P–EBT).                                     determinations, FNS shall consider the
                                             rights law and USDA civil rights                            (a) Overview. Section 1101 of the                  criteria referred to in § 278.1(b)(3),
                                             regulations and policies, the USDA, its                  Families First Coronavirus Response                   (k)(3), and (l)(1)(iv) where the
                                             Agencies, offices, and employees, and                    Act (FFCRA; Pub. L. 116–127), as                      underlying activities involve P–EBT
                                             institutions participating in or                         amended, authorized supplemental                      benefits.
                                             administering USDA programs are                          allotments to certain households. These                  (3) Firm authorization shall be denied
                                             prohibited from discriminating based on                  benefits shall be referred to as Pandemic             or withdrawn for failure to pay any
                                             race, color, national origin, religion, sex,             Electronic Benefits Transfer (P–EBT)                  claims, fines, or civil money penalties in
                                             gender identity (including gender                        benefits throughout this section. This                the manner described at § 278.1(k)(7)
                                             expression), sexual orientation,                         section establishes the retailer integrity            and (l)(1)(v) and (vi) of this chapter
                                             disability, age, marital status, family/                 regulations for P–EBT for retailers in                where such sanctions were imposed for
                                             parental status, income derived from a                   any State as defined in Section 3(r) of               violations involving P–EBT benefits.
                                             public assistance program, political                     the Food and Nutrition Act.                              (e) Penalties. For firms that commit
                                             beliefs, or reprisal or retaliation for prior               (b) Definitions. For this section:                 certain violations described at §§ 278.6
                                             civil rights activity, in any program or                    (1) Trafficking means the activities
                                                                                                                                                            and 278.2 of this chapter where such
                                             activity conducted or funded by USDA                     described in the definition of trafficking
                                                                                                                                                            violations involve P–EBT benefits, FNS
                                             (not all bases apply to all programs).                   at § 271.2 of this chapter when such
                                                                                                                                                            shall take the corresponding action
                                             Remedies and complaint filing                            activities involve P–EBT benefits.
                                                                                                         (2) Firm’s practice means the                      prescribed at § 278.6 or § 278.2 for that
                                             deadlines vary by program or incident.                                                                         violation. For the purposes of assigning
                                                Persons with disabilities who require                 activities described in the definition of
                                                                                                      firm’s practice at § 271.2 of this chapter            a period of disqualification, a warning
                                             alternative means of communication for
                                                                                                      when such activities involve P–EBT                    letter shall not be considered to be a
                                             program information (e.g., Braille, large
                                                                                                      benefits.                                             sanction. Specifically, FNS shall:
                                             print, audiotape, American Sign
                                             Language) should contact the                                (3) Involving P–EBT benefits or                       (1) Disqualify a firm permanently, as
                                             responsible Agency or USDA’s TARGET                      involve P–EBT benefits means activities               described at § 278.6(e)(1)(i) of this
                                             Center at (202) 720–2600 (voice and                      involving P–EBT benefits as well as                   chapter, for trafficking, as defined at
                                             TTY) or contact USDA through the                         supplemental nutrition assistance                     § 284.1(b)(1) of this chapter, or impose
                                             Federal Relay Service at (800) 877–8339.                 program (SNAP) benefits, or only P–EBT                a civil money penalty in lieu of
                                             Additionally, program information may                    benefits.                                             permanent disqualification, as described
                                             be made available in languages other                        (c) Participation of retail food stores            at § 278.6(i) of this chapter, where such
                                             than English.                                            and wholesale food concerns, and                      compliance policy and program is
                                                To file a program discrimination                      redemption of P–EBT benefits.                         designed to prevent violations of
                                             complaint, complete the USDA Program                     Requirements and restrictions on the                  regulations of this section;
                                             Discrimination Complaint Form, AD–                       participation of retail food stores and                  (2) Disqualify a firm permanently, as
                                             3027, found online at http://                            wholesale food concerns and the                       described at § 278.6(e)(1)(ii) of this
                                             www.ascr.usda.gov/complaint_filing_                      redemption of coupons described at                    chapter, for any violation involving P–
                                             cust.html and at any USDA office or                      §§ 278.2, 278.3 and 278.4 of this                     EBT benefits committed by a firm that
                                             write a letter addressed to USDA and                     chapter, including the acceptance of                  had already been sanctioned at least
                                             provide in the letter all of the                         coupons for eligible food at authorized               twice before under this section or part
                                             information requested in the form. To                    firms, also apply to activities involving             278 of this chapter;
                                             request a copy of the complaint form,                    P–EBT benefits.                                          (3) Disqualify the firm for 5 years, as
                                             call (866) 632–9992. Submit your                            (d) Firm eligibility standards. A firm             described at § 278.6(e)(2)(v) of this
                                             completed form or letter to USDA by: (1)                 may be subject to the following actions               chapter, or for 3 years, as described at
                                             Mail: U.S. Department of Agriculture,                    described at § 278.1 of this chapter for              § 278.6(e)(3)(iv) of this chapter, for
                                             Office of the Assistant Secretary for                    noncompliance or violations involving                 unauthorized acceptance violations
                                             Civil Rights, 1400 Independence                          P–EBT benefits:                                       involving P–EBT benefits, and impose
                                             Avenue SW, Washington, DC 20250–                            (1) The requirements described at                  fines, as described at § 278.6(m) of this
                                             9410; (2) fax: (202) 690–7442; or (3)                    § 278.1(b)(4) of this chapter regarding a             chapter, for unauthorized acceptance
                                             email: program.intake@usda.gov.                          collateral bond or irrevocable letter of              violations involving P–EBT benefits;
                                                USDA is an equal opportunity                          credit for applicant firms with certain                  (4) Disqualify the firm for 5 years in




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                                             provider, employer, and lender.                          sanctions apply to applicant firms with               circumstances described at § 278.6(e)(2)
                                                                                                      sanctions imposed for violations                      of this chapter when the amount of
                                             List of Subjects in 7 CFR Part 284                       involving P–EBT benefits. The amount                  redemptions, which shall also include
                                               Administrative practice and                            of the collateral bond or irrevocable                 the amount of P–EBT redemptions,
                                             procedure, Food stamps, Grant                            letter of credit shall be calculated in               exceed food sales for the same period of
                                             programs-social programs, Pandemic,                      accordance with § 278.1(b)(4)(i)(D) and               time, as described at § 278.6(e)(2)(ii),
                                             Penalties.                                               shall also include the amount of P–EBT                (iii), and (iv);


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                                                (5) Disqualify the firm for 3 years as                § 284.2   [Reserved]                                  II. Section-by-Section Analysis
                                             described at § 278.6(e)(3)(ii) of this                                                                         § 125.15 May an SDVO SBC have
                                                                                                      Pamilyn Miller,
                                             chapter for situations described at                                                                            affiliates?
                                                                                                      Administrator, Food and Nutrition Service.
                                             § 278.6(e)(2) of this chapter involving P–
                                             EBT benefits;
                                                                                                      [FR Doc. 2020–24303 Filed 11–3–20; 8:45 am]              Section 125.15 provides that an SDVO
                                                                                                      BILLING CODE 3410–30–P                                SBC may have affiliates. This rule is
                                                (6) Disqualify the firm for 1 year for                                                                      redundant because whether an SDVO
                                             credit account violations as described at                                                                      SBC can have an affiliate is addressed
                                             §§ 278.6(e)(4)(ii) and 278.2(f) of this                                                                        in 13 CFR 121.103, the general rules of
                                             chapter, where such violations involve                   SMALL BUSINESS ADMINISTRATION                         affiliation.
                                             P–EBT benefits;
                                                                                                      13 CFR Part 125                                       § 125.16 May 8(a) program
                                                (7) Disqualify the firm for ineligibles                                                                     participants, HUBZone SBCs, small and
                                             violations for such circumstances and                                                                          disadvantaged businesses, or women-
                                             corresponding time periods as described                  RIN 3245–AH14
                                                                                                                                                            owned small businesses qualify as
                                             at § 278.6(e)(2)(i), (e)(3)(i), (e)(4)(i), and           Regulatory Reform Initiative:                         SDVO SBCs?
                                             (e)(5) of this chapter, where such                       Government Contracting Programs                          Section 125.16 states that an SDVO
                                             violations involve P–EBT benefits;                                                                             SBC may qualify for other SBA
                                                (8) Double the appropriate period of                  AGENCY: U.S. Small Business                           contracting programs. This regulation is
                                             disqualification for a violation, as                     Administration.                                       unnecessary because the requirements
                                             described at § 278.6(e)(6) of this chapter,              ACTION: Final rule.                                   for an SDVO SBC to qualify for other
                                             where such violation involves P–EBT                                                                            programs are addressed in the rules on
                                             benefits, when the firm has once before                  SUMMARY: With this deregulatory action,               eligibility for those specific programs.
                                             been assigned a sanction under this                      the U.S. Small Business Administration
                                                                                                                                                            § 125.19 Does SDVO SBC status
                                             section or part 278 of this chapter;                     (SBA) is removing from the Code of
                                                                                                                                                            guarantee receipt of a contract?
                                                (9) Issue a warning letter to the                     Federal Regulations (CFR) four
                                                                                                      regulations in the Service-Disabled                     Section 125.19 states that an SDVO
                                             violative firm when violations are too                                                                         SBC is not guaranteed receipt of a
                                                                                                      Veteran-Owned (SDVO) Small Business
                                             limited to warrant a period of                                                                                 contract. This provision is unnecessary
                                                                                                      Concern (SBC) Program that are no
                                             disqualification, as described at                        longer necessary because they are                     because nothing in SBA’s regulations
                                             § 278.6(e)(7) of this chapter, where such                unnecessary or redundant. The removal                 indicates that qualifying as an SDVO
                                             violations involve P–EBT benefits;                       of these regulations assists the public by            SBC entitles a firm to a contract.
                                                (10) Impose a civil money penalty for                 simplifying SBA’s regulations in the                  § 125.20 Who decides if a contract
                                             hardship or transfer of ownership, as                    CFR.                                                  opportunity for SDVO competition
                                             described at § 278.6(g) of this chapter, in                                                                    exists?
                                                                                                      DATES: This rule is effective December 4,
                                             amounts calculated using the described
                                                                                                      2020.                                                   Section 125.20 is redundant because
                                             formula at § 278.6(g), which shall also
                                                                                                      FOR FURTHER INFORMATION CONTACT:                      13 CFR 125.22 and 125.23 already
                                             include the relevant amount of P–EBT                                                                           provide that contracting officers make
                                             redemptions when calculating the                         Khem Sharma, Chief, Office of Size
                                                                                                      Standards, (202) 205–7189 or                          SDVO SBC competition decisions.
                                             average monthly benefit redemptions;
                                             and                                                      khem.sharma@sba.gov.                                  III. Compliance With Executive Orders
                                                                                                      SUPPLEMENTARY INFORMATION:                            12866, 13771, 12988, and 13132, the
                                                (11) Impose a civil money penalty in
                                                                                                                                                            Paperwork Reduction Act (44 U.S.C.,
                                             lieu of permanent disqualification for                   I. Background Information                             Ch. 35), and the Regulatory Flexibility
                                             trafficking as described at § 278.6(j) of                                                                      Act (5 U.S.C. 601–612)
                                             this chapter in an amount calculated                        On February 4, 2020, SBA published
                                             using the described formula at § 278.6(j),               a proposed rule with request for                      A. Executive Order 12866
                                             which shall also include the relevant                    comments in the Federal Register to
                                                                                                                                                              The Office of Management and Budget
                                             amount of P–EBT redemptions when                         remove four regulations from the SDVO
                                                                                                                                                            (OMB) has determined that this rule
                                                                                                      SBC program. 85 FR 6106. This program
                                             calculating the average monthly benefit                                                                        does not constitute a significant
                                                                                                      allows agencies to set aside contracts for
                                             redemptions.                                                                                                   regulatory action for purposes of
                                                                                                      SDVO SBCs. Under this program,
                                                (f) Claims. The standards for                                                                               Executive Order 12866 and is not a
                                                                                                      Federal Agencies may also award sole
                                             determination and disposition of claims                                                                        major rule under the Congressional
                                                                                                      source contracts to SDVO SBCs so long
                                                                                                                                                            Review Act, 5 U.S.C. 801, et seq.
                                             described at § 278.7 of this chapter                     as the award can be made at a fair and
                                             apply to P–EBT benefits.                                 reasonable price and the anticipated                  B. Executive Order 13771
                                                (g) Administrative and Judicial                       total value of the contract, including any              This rule is expected to be an
                                             review. Firms aggrieved by                               options, is below $4 million ($6.5                    Executive Order 13771 deregulatory
                                             administrative action under paragraphs                   million for manufacturing contracts).                 action with an annualized net savings of
                                             (d), (e), and (f) of this section may                    For purposes of this program, veterans                $33,669 and a net present value of
                                             request administrative review of the                     and service-related disabilities are                  $480,986, both in 2016 dollars.
                                                                                                      defined as they are under the statutes                  The four regulations in the SDVO
                                             administrative action with FNS in




khammond on DSKJM1Z7X2PROD with RULES
                                                                                                      governing veterans’ affairs, 38 U.S.C.                program are either unnecessary or
                                             accordance with part 279, subpart A, of
                                                                                                      101.                                                  redundant. Their removal will assist the
                                             this chapter. Firms aggrieved by the
                                             determination of such an administrative                     SBA received no comments to the                    public by simplifying the SBA’s
                                                                                                      proposed rule. As such, SBA is                        regulations in the CFR and reduce the
                                             review may seek judicial review of the
                                                                                                      finalizing the rule by removing four                  time spent reviewing them. The cost
                                             determination under 5 U.S.C. 702
                                                                                                      regulations that are unnecessary or                   saving calculation assumes 2 percent of
                                             through 706.
                                                                                                      covered elsewhere in the CFR.                         the 21,750 SDVO small businesses per


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