[Federal Register Volume 77, Number 157 (Tuesday, August 14, 2012)]
[Proposed Rules]
[Pages 48461-48469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19773]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / 
Proposed Rules  

[[Page 48461]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 278 and 279

RIN 0584-AD88


Supplemental Nutrition Assistance Program: Farm Bill of 2008 
Retailer Sanctions

AGENCY: Food and Nutrition Service (FNS), USDA .

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department is proposing changes to the Supplemental 
Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program) 
retailer sanction regulations in accordance with amendments made to 
Sections 7, 9, and 12 of the Food and Nutrition Act of 2008 (``the 
Act'') by the Food, Conservation, and Energy Act of 2008, Public Law 
110-246 (``the 2008 Farm Bill''). The proposal would update SNAP 
retailer sanction regulations to include authority granted in the 2008 
Farm Bill to allow FNS to impose a civil penalty in addition to 
disqualification, raise the allowable penalties per violation, and 
provide greater flexibility to USDA for minor violations.

DATES: Comments must be received on or before October 15, 2012 to be 
assured of consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested 
persons to submit comments on this proposed rule. Comments may be 
submitted by one of the following methods:
     Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Preferred method; follow the on-line instructions 
for submitting comments on docket [insert docket number].
     Mail: Comments should be addressed to Andrea Gold, 
Director, Benefit Redemption Division, Rm. 426, 3101 Park Center Drive, 
Alexandria, Virginia 22302.
    All comments submitted in response to this proposed rule will be 
included in the record and will be made available to the public. Please 
be advised that the substance of the comments and the identity of the 
individuals or entities submitting the comments will be subject to 
public disclosure. Food and Nutrition Service (FNS) will make the 
comments publicly available on the Internet via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Andrea Gold, Director, Benefit 
Redemption Division, Rm. 426, 3101 Park Center Drive, Alexandria, 
Virginia 22302, 703-305-2434.

SUPPLEMENTARY INFORMATION: 

Executive Summary

I. Purpose of the Regulatory Action

    The purpose of this rule is to implement the greater flexibility 
provided by the 2008 Farm Bill in assessing SNAP sanctions against 
retail food stores and wholesale food concerns found in violation of 
program rules by imposing a civil penalty in addition to 
disqualification, raising the allowable penalties per violation, and 
providing greater flexibility to USDA for minor violations. This rule 
is necessary in order to improve the integrity of the program, deter 
participating retailers from committing program violations to ensure 
voluntary compliance, and adjust civil penalties to better reflect the 
value of redemptions. The legal authority for this proposed rule is 
addressed by Sections 7, 9 and 12 of the Act, as amended by sections 
4115 and 4132 of the 2008 Farm Bill.

II. Summary of the Major Provisions

    Trafficking Civil Penalty and Trafficking Civil Money Penalty. 
Trafficking is the exchange of SNAP benefits for cash and is the most 
serious violation of program rules and firms can be permanently 
disqualified from participating in SNAP for such violations. It 
significantly undermines the integrity of the program and diverts funds 
from their intended use. Section 12 of the Act provides FNS greater 
flexibility in assessing sanctions against retailers that traffic 
benefits by adding a new trafficking civil penalty in addition to 
permanent disqualification. This sanction is designed to recoup the 
government provided funds diverted from their intended use by basing 
the amount of the civil penalty on a retail food store's SNAP 
redemptions. Current regulations allow trafficking civil money 
penalties in lieu of permanent disqualification; not in addition to the 
disqualification. The change ensures more equitable treatment in the 
way civil penalties will be assessed while increasing the deterrent 
effect against large scale fraud that may result in significant 
administrative penalties beyond existing criminal penalties.
    Sale of Common Ineligibles. The sale of common ineligibles, such as 
paper products and cooking supplies, is the least egregious violation 
against SNAP and firms can be assessed a disqualification from 6 months 
to 10 years for such violations. Analysis by FNS indicates that many 
firms assessed a 6-month disqualification for the sale of ineligibles 
frequently go out of business because they are located in areas with 
higher concentration of SNAP recipients. This rule proposes to apply 
disqualifications only to repeat offenders or more severe violators; 
first time offenders selling only common ineligibles would be assessed 
a newly established civil penalty of $1,000 per violation in lieu of 
being disqualified. This would allow owners to take corrective actions 
to prevent such violations in the future.
    Civil Money Penalties: Hardship, Transfer of Ownership, Trafficking 
in Lieu of Permanent Disqualification. Pursuant to Section 12 of the 
Act, this rule proposes to assess civil money penalties of up to 
$100,000 per violation for hardship or transfer of ownership. The civil 
money penalty for a trafficking in lieu of permanent disqualification 
will continue to be capped at an overall limit of $59,000 per 
investigation. The rule also proposes to allow retailers an additional 
15 days to obtain and submit a collateral bond, which is currently 
required when civil money penalties are imposed. Increasing the time 
from 15 days to 30 days is in response to concerns from the retailer 
community that it has become more difficult to find financial 
institutions offering these services at competitive prices.
    Fines for Transactions Conducted without the Presence of an EBT 
Card. This rule also proposes a new fine involving EBT transactions. If 
the point-of-sale (POS) device that reads the magnetic stripe of the 
EBT card cannot read the card, the alternative methods to complete the 
transaction involve manual key entry of the EBT card number or the use 
of a voucher. In all

[[Page 48462]]

EBT transactions the card must be present. FNS receives complaints from 
SNAP recipients who have had their benefits stolen by firms who 
conducted transactions without the EBT card being present, and there is 
no rule that allows FNS to take action against these firms. This 
provision allows FNS to assess fines against firms that engage in this 
activity.

III. Costs and Benefits

    USDA estimates total sanctions to be assessed from this rule to be 
approximately $175 million per year. These provisions are expected to 
affect a very few, mostly small, retailers, in each of the next 5 
years. Most of the provisions will result in larger or additional 
penalties for firms who commit program violations.
    The proposed rule is expected to improve program integrity by 
increasing sanctions and civil penalties on the small number of 
authorized firms that commit program violations. The vast majority of 
retailers--those that abide by the rules--will be unaffected by the 
proposed changes. The purposes of increased sanctions on the few 
authorized firms that willingly violate program rules will be to 
provide additional deterrence to strengthen program integrity and 
increase public confidence in stewardship of program administration.

                                 Summary of Federal Costs and Benefits Per Year
----------------------------------------------------------------------------------------------------------------
                                                                             Number of
                                        Costs (in millions of dollars)       affected            Benefits
                                                                             retailers
----------------------------------------------------------------------------------------------------------------
Implementation Costs................  0.176.............................               0
                                      (First year only).................
Denials and Withdrawals.............  0.................................               0  Improve program
                                                                                           integrity.
Trafficking Civil Penalty \1\.......  (174).............................           1,211  Improve program
                                                                                           integrity.
Sale of Common Ineligibles \1\......  (1.034)...........................             292  Improve program
                                                                                           integrity; Reduce
                                                                                           number of retailers
                                                                                           facing 6-month
                                                                                           disqualification.
New Maximum Limits on Civil Money     (0.256)...........................             100  Improve program
 Penalties \1\.                                                                            integrity.
Fines for Transactions Without EBT    *.................................             1-3  Improve program
 Cards.                                                                                    integrity.
                                     ---------------------------------------------------------------------------
    Total Cost......................  (175.1)...........................  ..............  ......................
----------------------------------------------------------------------------------------------------------------
\1\ The majority of penalties are turned over to Treasury and never collected.

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This proposed rule has been designated economically significant. 
Accordingly, the rule has been reviewed by the Office of Management and 
Budget. A summary of the regulatory impact analysis is included below. 
The full analysis is available through www.regulations.gov in the 
docket for this rule (RIN 0584-AD88).

Regulatory Impact Analysis Summary

Need for Action
    The proposed rule is needed to implement expanded authority and 
flexibility for FNS to assess SNAP retailer penalties as provided in 
the 2008 Farm Bill.
Benefits
    Implementing Farm Bill sanctions and updating regulatory language 
will strengthen deterrence of violations among retailers, help clarify 
program requirements and improve program integrity.
Costs
    FNS estimates that the cost impact of this proposed rule is 
minimal. The primary costs anticipated are those FNS will bear in 
relation to updating systems, training materials and letters to reflect 
the new regulations; as well as informing participating stores of the 
changes. The costs are expected to be minimal as the changes may be 
incorporated into planned, regularly scheduled maintenance updates and 
mailings that already exist to inform participating stores of relevant 
program changes.
    One provision in this rulemaking will also impact some third party 
providers that contract with retail food stores or wholesale food 
concerns who wish to purchase point-of-sale (POS) equipment for their 
stores to support multiple forms of payment beyond just SNAP electronic 
benefit transfer (EBT) cards. While the provision does not add any new 
rules that do not exist today, providing only an enforcement mechanism 
to ensure that third party providers follow those existing 
requirements, there will be some cost impact on the providers who have 
failed to comply with these rules to date. The vast majority of third 
party POS equipment providers, however, already meet existing 
requirements as specified in part 7 CFR 274. Therefore, FNS does not 
anticipate that this provision will have a significant cost impact.
    The rule will have no cost impact on retail food stores or 
wholesale food concerns, as the rule only implements greater authority 
and flexibility provided by the Act, but does not change what 
constitutes a violation. Those firms must continue to follow the same 
program rules as are in place today to prevent any violations.

[[Page 48463]]



                                              Accounting Statement
----------------------------------------------------------------------------------------------------------------
                                                                                Discount rate
                                          Primary estimate     Year dollar        (percent)      Period covered
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Qualitative:
The proposed changes to the retailer
 sanction regulations will improve
 program integrity by increasing the
 deterrent effect of sanctions on the
 small number of authorized firms that
 commit program violations..............
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year)...  ................              2013                 7       FY2013-2017
                                          ................              2013                 3
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year)...               175              2013                 7       FY2013-2017
                                                       175              2013                 3
----------------------------------------------------------------------------------------------------------------
From Authorized Firms to the Federal Government.
----------------------------------------------------------------------------------------------------------------

Regulatory Flexibility Act

    This rule proposes changes to SNAP by issuing regulations in 
accordance with amendments made to Sections 7, 9 and 12 of the Act. The 
proposal would codify provisions to provide FNS greater flexibility to 
assess a disqualification, civil penalty, or both; revise the caps 
currently in place on civil money penalties to reflect the new limits 
provided by the Act; and remove penalties that pertain to the issuance 
and redemption of paper coupons that are no longer relevant. Each year, 
FNS assesses a sanction, either a disqualification or a civil money 
penalty, against less than 1% of the participating stores. Of those 
impacted roughly half commit trafficking violations and will face 
stiffer sanctions as a result of this proposed rule. A portion of the 
remaining retail food stores who are disqualified for 6 months under 
the current rules due to the sale of common ineligibles would now 
receive a civil penalty instead of a disqualification. Because 
disqualifications of any duration increase the risk a business may be 
forced to close, substituting a civil penalty could potentially allow 
the sanctioned business to continue to operate.
    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review and based 
on the limited population of retail food stores impacted, this rule is 
certified not to have a significant impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and the private sector. Under Section 202 of the UMRA, the 
Department generally must prepare a written statement, including a 
cost/benefit analysis, for proposed and final rules with Federal 
mandates that may result in expenditures to State, local, or tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. When such a statement is needed for a 
rule, section 205 of the UMRA generally requires the Department to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, more cost-effective or least burdensome 
alternative that achieves the objectives of the rule.
    This rule does not contain Federal mandates (under the regulatory 
provisions of Title II of the UMRA) that impose costs on State, local, 
or tribal governments or to the private sector of $100 million or more 
in any one year. This rule is, therefore, not subject to the 
requirements of sections 202 and 205 of the UMRA.

Executive Order 12372

    SNAP is listed in the Catalog of Federal Domestic Assistance under 
No. 10.551. For the reasons set forth in the Final Rule codified in 7 
CFR part 3015, Subpart V and related Notice (48 FR 29115), this Program 
is excluded from the scope of Executive Order 12372, which requires 
intergovernmental consultation with state and local officials.

Executive Order 13132

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under section (6)(b)(2)(B) of Executive Order 13132. FNS has 
considered the impact of this rule on State and local governments and 
has determined that this rule does not have federalism implications. 
This rule does not impose substantial or direct compliance costs on 
State and local governments. Therefore, under Section 6(b) of the 
Executive Order, a federalism summary impact statement is not required.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is intended to have preemptive effect with 
respect to any State or local laws, regulations or policies which 
conflict with its provisions or which would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect 
unless specified in the DATES section of the final rule. Prior to any 
judicial challenge to the provisions of this rule or the application of 
its provisions, all applicable administrative procedures must be 
exhausted.

[[Page 48464]]

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13175 requires Federal agencies to consult and coordinate with 
tribes on a government-to-government basis on policies that have tribal 
implications, including regulations, legislative comments or proposed 
legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. In late 2010 and early 2011, USDA engaged 
in a series of consultative sessions to obtain input by Tribal 
officials or their designees concerning the impact of this rule on the 
tribe or Indian Tribal governments. The Joint Consultation sessions 
were coordinated by USDA's Office of Tribal Relations and held on the 
following dates and locations:
1. Rapid City, SD--October 28-29, 2010
2. Oklahoma City, OK--November 3-4, 2010
3. Minneapolis, MN--November 8-9, 2010
4. Seattle, WA--November 22-23, 2010
5. Nashville, TN--November 29-30, 2010
6. Albuquerque, NM--December 1-2, 2010
7. Anchorage, AK--January 10-11, 2011

    There were no comments about this regulation during any of the 
aforementioned Tribal Consultation sessions.
    Reports from these consultations are part of the USDA annual 
reporting on Tribal consultation and collaboration. FNS will respond in 
a timely and meaningful manner to Tribal government requests for 
consultation concerning this rule. Currently, FNS provides regularly 
scheduled quarterly consultation sessions through the end of FY2012 as 
a venue for collaborative conversations with Tribal officials or their 
designees.

Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with Departmental 
Regulations 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1, 
``Regulatory Decision Making Requirements.'' This rule is not intended 
to have a differential impact on minority owned or operated business 
establishments, and woman owned or operated business establishments 
that participate in SNAP. FNS does not collect or maintain any data on 
the nationality, ethnicity, or gender of owners of participating retail 
food stores. Therefore, those factors have no impact on how the Agency 
identifies fraud or implements sanctions against firms found violating 
program rules.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires the Office of Management and Budget (OMB) approve all 
collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
This rule does not contain information collection requirements subject 
to approval by OMB under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    The Food and Nutrition Service is committed to complying with the 
E-Government Act, to promote the use of the Internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.
Background
    This rulemaking proposes to implement the greater flexibility 
provided by the 2008 Farm Bill section 4132 in assessing sanctions and 
civil penalties against retail and wholesale food concerns that violate 
program rules. Furthermore, in accordance with Section 4115 (Issuance 
and Use of Program Benefits) of the 2008 Farm Bill, this rulemaking 
proposes to update 7 CFR parts 278 and 279 to reflect the Program's 
issuance of benefits through EBT systems. FNS recognizes that this 
proposed rule amends a few but not all of the references to coupon(s) 
and food stamp(s) in part 278 to reflect the Act's de-obligation of 
coupons. FNS plans to address this technical discrepancy in future 
rulemaking.

7 CFR Part 278--Participation of Retail Food Stores

    The general provisions addressed in part 278 are required by 
Sections 9 and 12 of the Act, as amended by the 2008 Farm Bill. The 
discussion below and the subsequent regulatory language for this part 
provide additional details to address operational processes and clarify 
current policy to align the regulations with authority provided in the 
Act.

Denial and Withdrawals

    The current regulations governing retail food store and wholesale 
food concern participation in SNAP stipulates that FNS shall deny new 
applicants or withdraw participating firms that fail to pay civil money 
penalties or fines assessed under part 278. In accordance with the Act, 
FNS proposes to revise the denial and withdrawal language to extend 
this authority to unpaid portions of the newly introduced civil 
penalties in addition to those already covered. In addition, the 
language would be revised to clarify that FNS may deny or withdraw a 
firm if any member of ownership committed an intentional program 
violation and was disqualified as a SNAP recipient. This provision is 
necessary because a person, who violates program rules as a recipient, 
lacks the necessary business integrity and responsibility expected of a 
store owner who must train employees and oversee operations to ensure 
that SNAP EBT transactions are conducted in accordance with Department 
rules. Allowing a formerly disqualified program recipient the ability 
to conduct transactions would create an unnecessary risk to the 
integrity of the program.
    In addition, Sec.  278.2(b) specifies FNS policy on equal treatment 
at the food retailer, ensuring that program recipients are treated in 
the same manner as non-program recipients. This proposed rule 
introduces a new provision that would allow FNS to deny or withdraw a 
firm for failing to adhere to Sec.  278.2(b) by singling out program 
recipients for inequitable treatment compared to a firm's other 
customers. This provision is in response to complaints submitted to FNS 
of stores that implement policies targeted against SNAP recipients and 
not applied equally to all customers. An example would be stores that 
institute a minimum purchase requirement for customers using SNAP as a 
form of payment, but fail to apply the same requirement on credit, 
cash, or debit card customers. Retail food stores and wholesale food 
concerns found out of compliance with this provision would be provided 
an opportunity to come into compliance prior to being withdrawn.
    FNS estimates that half of all participating firms opt to purchase 
POS equipment from third party providers and do not utilize government 
provided POS equipment. A small percentage of those firms have 
purchased POS equipment from providers that fail to properly adhere to 
existing requirements for equipment in part 274. Those requirements 
include informing the recipient as to the transaction and their 
remaining balance, prohibiting the recipient's personal information 
from being printed on a receipt to protect

[[Page 48465]]

their privacy, and providing accurate information to FNS to better help 
FNS identify and target program fraud. In particular, FNS requires that 
each POS device is identified by a unique terminal ID and that the 
unique ID is reported to FNS along with transaction information. 
Failure to provide unique terminal ID's makes it more difficult for FNS 
to monitor transaction activity within a firm and may lead to 
inaccurate assessments that divert FNS resources from taking 
appropriate actions against stores that violate the Program. This 
proposed rule would allow FNS to deny or withdraw a firm that opts to 
purchase or lease POS equipment from a third party provider that fails 
to comply with part 274, particularly with the requirement to provide 
unique terminal ID's. There are many third party equipment providers 
and almost all comply with these requirements; therefore, this change 
is not expected to result in a significant number of retailer 
withdrawals. FNS would inform retailers in advance of this requirement 
so they can use this information to ensure that the provider from whom 
they elect to purchase equipment meets the requirements. Moreover, 
retail food stores and wholesale food concerns found out of compliance 
with this provision would be provided an opportunity to switch 
providers to avoid being withdrawn.

Trafficking Civil Penalty and Trafficking Civil Money Penalty

    Trafficking is the exchange of SNAP benefits for cash and is the 
most serious violation of program rules. Trafficking represents 
collusion between a retail food concern and a program recipient. The 
firm conducts a transaction through the EBT system and provides the 
recipient with cash, typically at a discounted rate, that both deprives 
the recipient of the full value of their benefits intended for eligible 
food products necessary to help provide the nutritional needs of their 
household, as well as provides a profit directly to the firm. It 
significantly undermines the integrity of the program and diverts funds 
from their intended use. As a result, Congress has been clear in its 
intent that the administrative penalties for trafficking be severe and 
has stipulated that such violations result in the permanent 
disqualification of a firm.
    In the Food Stamp Act of 1977, Congress granted FNS the authority 
to either disqualify a firm for program violations or impose a civil 
money penalty, but not both. With the Food and Nutrition Act of 2008, 
Congress removed this constraint, specifically providing USDA greater 
flexibility in assessing sanctions both for retail food stores and 
wholesale food concerns with lesser violations as well as for retail 
food stores and wholesale food concerns that commit the most egregious 
offenses, such as trafficking. Pursuant to that change, this proposed 
rule would add a new trafficking civil penalty in addition to the 
permanent disqualification. With this rule, the Department is proposing 
a civil penalty that is calculated based on a firm's SNAP redemptions, 
thereby adjusting to the size and scope of the fraud, much as existing 
provisions do for civil money penalties, such as those associated with 
transfer of ownership.
    The new proposed trafficking civil penalty is not related to a 
firm's future participation, but is designed to recoup the government 
provided funds diverted from their intended use. Thus, this rule would 
also clarify that, as the trafficking civil penalty and trafficking 
civil money penalty in lieu of permanent disqualification serve 
different purposes, they are not mutually exclusive and can both be 
assessed against a violating retailer. That is, if a firm is granted a 
trafficking civil money penalty in lieu of permanent disqualification, 
the firm would still be responsible for paying the trafficking civil 
penalties assessed pursuant to the violations that had occurred. The 
proposed methodology for calculating the trafficking civil penalty is 
based on a retail food store's redemptions, ensuring that the penalty 
is reflective of a firm's size and sales volume. The proposed rule, 
therefore, ensures not only equitable treatment by assessing fines 
proportional to the violation, but also increases the deterrent effect 
against large scale fraud that may result in significant administrative 
penalties beyond existing criminal penalties.
    Furthermore, this rule would provide that, if a firm was previously 
granted a trafficking civil money penalty in lieu of permanent 
disqualification, and again was found trafficking on a second occasion, 
the firm would no longer qualify for a trafficking civil money penalty 
in lieu of disqualification.

Sale of Common Ineligibles

    Current regulations at 7 CFR 278.6 outline the penalties assessed 
against stores found violating the program rules, including those for 
the sale of common ineligibles. In today's environment, if the 
violations are too minor to warrant a sanction, FNS sends the store an 
official warning letter describing what FNS found during its 
investigation, thus providing the store an opportunity to take 
corrective action and come into compliance. However, if during an 
investigation FNS finds that non-trafficking violations are 
sufficiently extensive or pervasive as to suggest that it is the common 
practice of a firm, FNS assesses an administrative disqualification 
that can range from 6 months to 10 years, depending on the seriousness 
of the violations and whether the retailer has had previous violations. 
The longer disqualification time periods are reserved for either more 
egregious violations, such as the sale of alcohol or tobacco products 
for benefits, or if the firm had been previously sanctioned and has a 
history of program violations. If FNS establishes that it is common 
practice for a firm to sell common ineligibles for SNAP benefits, those 
firms are typically disqualified for six months for the first 
violation.
    In providing greater flexibility for the Department to increase the 
penalties against trafficking violations, the Act also allows USDA to 
expand the progressive scale of penalties faced by firms whose 
violations are less severe. The sale of common ineligibles is the least 
egregious violation that is issued a sanction by FNS. Common 
ineligibles typically consist of paper products, cooking supplies, or 
household products. Research by FNS has indicated that many firms 
assessed a 6-month disqualification, due to the usual practice of 
selling common ineligibles, tend to close and/or undergo a change in 
ownership. This occurs because the firms are typically located in areas 
that have a higher concentration of SNAP recipients; therefore, even a 
limited 6-month suspension can result in the firm no longer being 
economically viable. Consequently, this rule proposes to apply 
disqualifications only to those repeat offenders or more severe 
violators; first time offenders that sell only common ineligibles would 
be assessed a newly established civil penalty and no longer be 
disqualified.
    The proposed civil penalty is $1,000 per violation and must be paid 
within 30 calendar days after FNS's final determination. This civil 
penalty is proposed as a flat fine, instead of being based on 
redemption volume, to reflect that the sale of common ineligibles for 
first time offenders is a minor violation, typically the result of 
negligence or oversight in training on the behalf of management, as 
opposed to more egregious violations, with the clear intent to defraud 
the government, that are based on redemption volume. The proposed civil 
penalty would allow retail food stores to pay the civil penalty, 
without enduring a disqualification, take corrective action, and re-
evaluate their training

[[Page 48466]]

methodology to ensure that there are no repeat offenses.

Civil Money Penalties: Hardship, Transfer of Ownership, Trafficking in 
Lieu of Permanent Disqualification

    The current regulations reference parts of the Act that had imposed 
limits on the amount FNS could assess through a civil money penalty, 
applying caps that were based on individual violations and, in some 
cases, in a single overall investigation. The maximum limits currently 
used by FNS are $11,000 per violation for hardship civil money 
penalties and transfer of ownership civil money penalties and $32,000 
per violation, with an overall limit of $59,000 per investigation, for 
trafficking civil money penalties in lieu of permanent 
disqualification. In the Act, Congress removed the limitations for 
hardship civil money penalties and provided new language that allows 
the Secretary to issue a penalty of up to $100,000 per violation. This 
rule revises the caps placed on calculations for hardship and transfer 
of ownership civil money penalties to bring the regulations in 
compliance with the Act. The cap for trafficking civil money penalty in 
lieu of permanent disqualification will remain unchanged.
    In addition, the Act removed specific language referencing revised 
penalties assessed if the removal of a retail food store or wholesale 
food concern for non-trafficking violations would cause a hardship to 
SNAP recipients. Nevertheless, pursuant to the flexibility provided to 
the USDA by Section 12 of the Act, the USDA proposes to retain the 
qualification criteria for the hardship civil money penalty as it 
exists in current regulations. Today, upon request by the violating 
retailer and after FNS assesses whether a retailer qualifies, the 
hardship civil money penalty is assessed against retail food stores or 
wholesale food concerns that serve areas with limited food access or 
provide inventories that are not readily available in a given area, as 
their removal would cause a hardship to SNAP recipients. Typically, 
hardship civil money penalties are assessed against retail food stores 
and wholesale food concerns that sell common ineligibles. As this rule 
replaces the current 6-month disqualification with a new civil penalty 
for those situations, FNS estimates that, while hardship civil money 
penalties are not common today, they will be even less common going 
forward. However, as some geographic areas continue to struggle with 
adequate food access, USDA will be keeping the hardship provision in 
the regulations to better address unforeseen circumstances that may 
arise.
    Furthermore, when imposing a hardship civil money penalty, current 
regulations require a retailer to submit a collateral bond within 15 
days to be eligible for reinstatement. The proposed rule would extend 
this time frame to allow retailers up to 30 days to submit a collateral 
bond. This change is necessary to respond to concerns from the retailer 
community indicating that it is becoming more difficult to find 
financial institutions offering these services at a competitive price 
within the time allotted. The additional time proposed in this rule 
would allow retailers more time to shop for these services.

Eliminating Fines for the Acceptance of Loose Coupons

    This rule would eliminate provisions of part 278 that were enacted 
to address violations that occurred as a result of how retail food 
stores and wholesale food concerns accepted and redeemed paper coupons. 
Section 12(e)(3) of the Act continues to give the Secretary discretion 
to impose a fine against any retail food store or wholesale food 
concern that accepts food coupons not accompanied by the corresponding 
book cover; however, the 2008 Farm Bill de-obligated paper coupons, and 
such coupons are no longer issued, accepted, or redeemable. As a 
result, this rule proposes to eliminate a fine for accepting loose 
coupons at Sec.  278.6(l).

Fines for Transactions Conducted Without the Presence of an EBT Card

    Pursuant to Section 7(h)(2) of the Act, this rule proposes to 
impose a fine for conducting a transaction without an EBT card being 
present. Current rules require that a card be present at the time of 
transaction. This new fine would apply to those retailers that conduct 
transactions without having the card present.
    To complete a transaction, a program recipient must present their 
EBT card, swipe the card through a POS device, and enter their personal 
identification number (PIN). The PIN identifies the individual as the 
one responsible for that card and authorizes the transaction. If a POS 
device is not working, the magnetic stripe of an EBT card is not 
reading, or if a business does not have ready access to a phone line, 
the EBT system offers alternative methods for completing the 
transaction. The typical alternative methods involve manual key entry 
of the EBT card number or the use of a manual voucher process, the 
latter of which is more common among delivery routes, farmers' markets, 
or traditional stores experiencing a system outage. However, the 
alternative methods do not change the requirement for the recipient and 
card to be present at the POS. Today, FNS receives complaints that 
program recipients who have benefits stolen by firms who conduct 
transactions without the EBT card being present or the knowledge and 
consent of the recipient. This may be enabled by households providing 
their card and PIN number to a retail food concern despite training by 
State Agencies not to ever divulge their PIN. Nevertheless, this is a 
violation of the regulations and this rule would allow FNS to assess 
penalties against firms that engage in this activity.

7 CFR Part 279--Administrative and Judicial Review

    The Department is proposing to update this part to align the 
regulations with the Act by updating the FNS Administrative Review 
Branch mailing address and revising references to Sec.  278.6(e)(8), 
which is being moved as part of the changes, and removing some of the 
references to coupon claims as the Act de-obligated coupons and 
prohibits them from being issued, accepted or redeemed.

List of Subjects

7 CFR Part 278

    Approval and participation of retail food stores and wholesale food 
concerns, food stamps; participation of financial institutions, 
disqualification and imposition of civil penalties or fines for retail 
food stores and wholesale food concerns; and disposition of claims; 
penalties.

7 CFR Part 279

    Administrative practice and procedure; administrative review, 
judicial review.

    For reason set forth in the preamble, 7 CFR parts 278 and 279 are 
proposed to be amended as follows:
    1. The authority citation for 7 CFR parts 278 and 279 continues to 
read as follows:

    Authority:  7 U.S.C. 2011-2036.

PART 278--PARTICIPATION OF RETAIL FOOD STORES, WHOLESALE FOOD 
CONCERNS AND INSURED FINANCIAL INSTITUTIONS

    2. In Sec.  278.1:
    a. Amend paragraph (b)(3)(vi) by removing the period and adding the 
phrase ``, including the commission of intentional program violations 
while receiving benefits in the Supplemental Nutrition Assistance 
Program.'' at the end.

[[Page 48467]]

    b. Revise paragraph (k)(7);
    c. Add paragraph (k)(8);
    d. Add paragraph (k)(9);
    e. Revise paragraph (l)(1)(v);
    f. Remove paragraph (1)(l)(vi) and redesignate paragraph 
(l)(1)(vii) as paragraph (l)(1)(vi);
    g. Add new paragraphs (l)(1)(vii) and (l)(1)(viii).
    The revisions and additions read as follows:


Sec.  278.1  Approval of retail food stores and wholesale food 
concerns.

* * * * *
    (k) * * *
    (7) The firm has failed to pay any civil penalties assessed under 
Sec.  278.6(e)(1) or (e)(6); pay a transfer of ownership or hardship 
civil money penalty assessed under Sec.  278.6(g); pay any fines 
assessed under Sec.  278.6(m) or Sec.  278.6(l); or pay in full any 
fiscal claim assessed against the firm under Sec.  278.7.
    (8) The firm has failed to adhere to the equal treatment provisions 
as specified in Sec.  278.2(b).
    (9) The firm utilizes any access device that fails to comply with 
Sec.  274.8(b)(6) and (b)(7) or fails to provide unique terminal 
identification to the EBT system.
* * * * *
    (l) * * *
    (1) * * *
    (v) The firm has failed to pay any civil penalties assessed under 
Sec.  278.6(e)(1) or (e)(6); pay a transfer of ownership or hardship 
civil money penalty assessed under Sec.  278.6(g); pay any fines 
assessed under Sec.  278.6(m) or Sec.  278.6(l); or pay in full any 
fiscal claim assessed against the firm under Sec.  278.7; or
    (vi) The firm is required under State and/or local law to charge 
tax on eligible food purchased with benefits or to sequence or allocate 
purchases of eligible foods made with benefits and cash in a manner 
inconsistent with Sec.  272.1 of these regulations.
    (vii) The firm has failed to adhere to the equal treatment 
provisions as specified in Sec.  278.2(b).
    (viii) The firm utilizes any access device that fails to comply 
with Sec.  274.8(b)(6) and (7) or fails to provide unique terminal 
identification to the EBT system.
* * * * *
    3. In Sec.  278.2, remove paragraphs (c) and (d) and redesignate 
paragraphs (e) through (l) as paragraphs (c) through (j), respectively.
    4. Remove Sec.  278.2(e)(2).
    5. Remove and reserve Sec. Sec.  278.3 and 278.4.
    6. In Sec.  278.6:
    a. Amend the section heading by adding the words ``civil 
penalties'' and removing the words ``in lieu of disqualifications'';
    b. Revise the heading of paragraph (a);
    c. Revise the first sentence of paragraph (a);
    d. Amend paragraph (b)(1) by removing the words ``disqualification 
or imposition of a civil money penalty'' wherever they appear and add 
in its place the words ``disqualification or imposition of a civil 
penalty or civil money penalty'' and by removing the words ``The firm 
shall make its response, if any, to the officer in charge of the FNS 
field office which has responsibility for the project area in which the 
firm is located'' in the seventh sentence and adding in its place the 
words ``The firm shall make its response to FNS.''
    e. Revise the first sentence of paragraph (b)(2)(i);
    f. Revise the first and second sentences of paragraph (c);
    g. Amend paragraph (d) by removing the word ``regional'' in the 
first sentence;
    h. Revise paragraph (e)(1);
    i. Redesignate paragraph (e)(4)(ii) as paragraph (e)(4)(iii) and 
add a new paragraph (e)(4)(ii);
    j. Amend paragraph (e)(5) by removing the period adding the words 
``and FNS had previously advised the firm of the possibility that 
violations were occurring and of the possible consequences of violating 
regulations'' at the end of the paragraph;
    k. Redesignate paragraph (e)(6) to (e)(8) as paragraphs (e)(7) to 
(e)(9) and add a new paragraph (e)(6);
    l. Revise paragraphs (g) and (h);
    m. Revise the introductory text of paragraph (i);
    n. Revise paragraphs (j) and (l);
    The revisions and additions read as follows:


Sec.  278.6  Disqualification of retail food stores and wholesale food 
concerns, and imposition of civil penalties and civil money penalties.

    (a) Authority to disqualify and subject to a civil penalty and 
civil money penalty. FNS may assess a civil penalty and civil money 
penalty against and disqualify any authorized retail food store or 
wholesale food concern from further participation. For the purposes of 
this part, civil money penalty refers to a civil penalty issued for 
hardship, transfer of ownership, or trafficking in lieu of 
disqualification. * * *
* * * * *
    (b) * * *
    (2) * * *
    (i) The charge letter shall advise a firm being considered for 
permanent disqualification based on evidence of trafficking as defined 
in Sec.  271.2 that the firm must notify FNS if the firm desires FNS to 
consider the sanction of a trafficking civil money penalty in lieu of 
permanent disqualification and that if granted, the trafficking civil 
money penalty in lieu of permanent disqualification is in addition to 
any other civil penalties assessed under Sec.  278.6(e). * * *
* * * * *
    (c) Review of evidence. The letter of charges, the response, and 
any other information available to FNS shall be reviewed and considered 
by the appropriate FNS office, which shall then issue the 
determination. In the case of a firm subject to permanent 
disqualification and civil penalty under paragraph (e)(1) of this 
section, the determination shall inform such a firm that action to 
permanently disqualify the firm shall be effective immediately upon the 
date of receipt of the notice of determination from FNS, regardless of 
whether a request for review is filed in accordance with part 279 of 
this chapter; however, any civil penalties shall be held in abeyance 
pending the outcome of administrative or judicial review. * * *
* * * * *
    (e) Penalties. FNS shall take action as follows against any firm 
determined to have violated the Act or regulations. For the purposes of 
assigning a period of disqualification, a warning letter shall not be 
considered to be a sanction. A civil money penalty, a civil penalty, 
and a disqualification shall be considered sanctions for such purposes. 
FNS shall:
    (1) Disqualify a firm permanently and assess a civil penalty in 
accordance with Sec.  278.6(g) if personnel of the firm have trafficked 
as defined in Sec.  271.2; or only disqualify a firm permanently if:
    (i) Violations such as, but not limited to, the sale of ineligible 
items occurred and the firm had twice before been sanctioned.
    (ii) It is determined that personnel of the firm knowingly 
submitted information on the application that contains false 
information of a substantive nature that could affect the eligibility 
of the firm for authorization in the program, such as, but not limited 
to, information related to:
    (A) Eligibility requirements under Sec.  278.1(b), (c), (d), (e), 
(f), (g) and (h);
    (B) Staple food stock;
    (C) Annual gross sales for firms seeking to qualify for 
authorization under Criterion B as specified in the Food Stamp Act of 
1977, as amended;
    (D) Annual staple food sales;
    (E) Total annual gross retail food sales for firms seeking 
authorization as co-located wholesale/retail firms;

[[Page 48468]]

    (F) Ownership of the firm;
    (G) Employer Identification Numbers and Social Security Numbers;
    (H) Food Stamp Program history, business practices, business 
ethics, WIC disqualification or authorization status, when the store 
did (or will) open for business under the current ownership, business, 
health or other licenses, and whether or not the firm is a retail and 
wholesale firm operating at the same location; or
    (I) Any other information of a substantive nature that could affect 
the eligibility of a firm. * * *
    (4) * * *
    (ii) It is to be the second sanction for the firm and evidence 
shows that personnel of the firm have committed violations, such as the 
sale of common nonfood items in amounts normally found in a shopping 
basket; or
* * * * *
    (6) Impose a civil penalty if it is to be the first sanction for 
the firm and evidence shows that personnel of the firm have committed 
violations such as but not limited to the sale of common nonfood items 
due to carelessness or poor supervision by the firm's ownership or 
management and FNS had not previously advised the firm of the 
possibility that violations were occurring and of the possible 
consequences of violating regulations. The civil penalty shall be 
$1,000 for each violation and must be paid in full within 30 days of 
the individual's or legal entity's receipt of FNS' notification to pay 
the penalty. FNS may withdraw the authorization of any firm that has 
failed to pay the civil penalty in full within 30 days, as specified 
under Sec.  278.1(l).
* * * * *
    (g) Amount of trafficking civil penalties and civil money penalties 
for hardship and transfer of ownership. FNS shall determine the amount 
of the trafficking civil penalty and hardship and transfer of ownership 
civil money penalty as follows:
    (1) Determine the firm's average monthly redemptions of benefits 
for the 12-month period ending with the month immediately preceding the 
month during which the firm was charged with violations.
    (2) Multiply the average monthly redemption figure by 10 percent.
    (3) Multiply the product by arrived at in paragraph (g)(2) by the 
number of months for which the firm would have been disqualified under 
paragraph (e) of this section. Firms disqualified permanently for 
trafficking shall multiply the product arrived at in paragraph (g)(2) 
by 120 when determining the amount of a trafficking civil penalty. 
Firms disqualified permanently for trafficking shall multiply the 
product arrived at in paragraph (g)(2) by 240, to reflect double the 
penalty for a ten year disqualification, when determining a transfer of 
ownership civil money penalty in accordance with Sec.  278.6(f). The 
penalty may not exceed an amount specified in Sec.  3.91(b)(3)(i) of 
this title for each violation.
    (h) Notifying the firm of trafficking civil penalties and civil 
money penalties for hardship and transfer of ownership. A firm has 15 
days from the date that FNS notifies the firm in writing in which to 
pay the penalty, or to notify FNS in writing of its intent to pay in 
installments as specified by the Agency. For hardship civil money 
penalties, FNS shall:
    (1) Require the firm to present to FNS a collateral bond as 
specified in Sec.  278.1(b)(4), within 30 days, and the civil money 
penalty must be paid in full by the end of the period for which the 
firm would have been disqualified;
    (2) Disqualify the firm for the period determined to be appropriate 
under paragraph (e) of this section if the firm refuses to pay any of 
the civil money penalty;
    (3) Disqualify the firm for a period corresponding to the unpaid 
part of the civil money penalty if the firm does not pay the civil 
money penalty in full or in installments as specified by FNS; or
    (4) Disqualify the firm for the prescribed period if the firm does 
not present a collateral bond or irrevocable letter of credit within 
the required 30 days. Any payment on the hardship civil money penalty 
which has been received by FNS shall be returned to the firm. If the 
firm presents the required bond or irrevocable letter of credit during 
the disqualification period, the civil money penalty may be reinstated 
for the duration of the disqualification period.
    (i) Criteria for eligibility for a civil money penalty in lieu of 
permanent disqualification for trafficking. FNS may impose a civil 
money penalty in lieu of a permanent disqualification for trafficking 
as defined in Sec.  271.2 if the firm timely submits to FNS substantial 
evidence which demonstrates that the firm had established and 
implemented an effective compliance policy and program to prevent 
violations of the Program. A civil money penalty is in lieu of the 
permanent disqualification does not replace, but is in addition to, the 
trafficking civil penalty described in Sec.  278.6(e)(1). Firms 
assessed a civil money penalty under this paragraph shall be subject to 
the applicable penalties included in Sec.  278.6(e)(2) through (e)(7) 
for the sale of ineligible items. In determining the minimum standards 
of eligibility of a firm for a civil money penalty in lieu of a 
permanent disqualification for trafficking, the firm shall, at a 
minimum, establish by substantial evidence its fulfillment of each of 
the following criteria:
    Criterion 1. The firm shall have developed an effective compliance 
policy as specified in Sec.  278.6(i)(1); and
    Criterion 2. The firm had developed and instituted an effective 
personnel training program as specified in Sec.  278.6(i)(2) and that 
both its compliance policy and program were in operation at the 
location where the violation(s) occurred prior to the occurrence of 
violations cited in the charge letter sent to the firm; and
    Criterion 3. The firm's ownership was not aware of, did not 
approve, did not benefit from, or was not in any way involved in the 
conduct or approval of the trafficking violations; and
    Criterion 4. It is the first occasion of any trafficking violations 
at the firm, regardless of whether the firm's management was aware of, 
approved of, benefited from, or was in any way involved in the conduct 
or approval of the trafficking violations. Upon the second occasion of 
trafficking, regardless of whether the violations were committed by 
firm management or employees, a firm shall not be eligible for a civil 
money penalty in lieu of permanent disqualification. Notwithstanding 
the above provision, if trafficking violations consisted of the sale of 
firearms, ammunition, explosives, or controlled substances, as defined 
in 21 U.S.C. 802, and such trafficking was conducted by ownership or 
management of the firm, the firm shall not be eligible for a civil 
money penalty in lieu of permanent disqualification. For purposes of 
this section, a person is considered to be part of firm management if 
that individual has substantial supervisory responsibilities with 
regard to directing the activities and work assignments of store 
employees. Such supervisory responsibilities shall include the 
authority to hire employees for the store or to terminate the 
employment of individuals working for the store.
* * * * *
    (j) Amount of civil money penalty in lieu of permanent 
disqualification for trafficking. A civil money penalty assessed in 
accordance with Sec.  278.6(i) shall not exceed the amount specified in 
Sec.  3.91(b)(3)(ii) of this title for each violation and shall not 
exceed the

[[Page 48469]]

amount specified in Sec.  3.91(b)(3)(ii) of this title for all 
violations occurring during a single investigation. FNS shall determine 
the amount of the civil money penalty as follows:
    (1) Determine the firm's average monthly redemptions for the 12-
month period ending with the month immediately preceding the month 
during which the firm was charged with violations;
    (2) Multiply the average monthly redemption figure by 10 percent;
    (3) Multiply the product by 120, in accordance with Sec.  278.6(f), 
to reflect double the penalty for a ten year disqualification;
    (4) If a second trafficking offense is committed by the firm, the 
firm shall not be eligible for a civil money penalty in lieu of 
permanent disqualification.
* * * * *
    (l) Fines for acceptance of benefits without an EBT Card being 
present. FNS may impose a fine against any retail food store or 
wholesale food concern that accepts benefits that are not accompanied 
by an EBT card being present and with the intent of conducting a 
transaction without a recipient's knowledge or consent. The fine to be 
assessed against a firm found to be accepting benefits without an EBT 
card being present shall be $1,000 per investigation plus an amount 
equal to double the value of each transaction that occurred without an 
EBT card being present, and may be assessed in addition to any fiscal 
claim or civil penalty established by FNS under Sec.  278.6(e)(1) 
through (e)(6), Sec.  278.6(g), or Sec.  278.6(j). The fine shall be 
paid in full within 30 days of receipt of FNS' notification to pay the 
fine. The Attorney General of the United States may institute judicial 
action in any court of competent jurisdiction against the store or 
concern to collect the fine. FNS may withdraw the authorization of the 
store, as well as other authorized locations of a multi-unit firm which 
are under the same ownership, for failure to pay such a fine as 
specified under Sec.  278.6(l).
    7. In Sec.  278.7, remove paragraphs (d) through (g);
    8. Remove Sec.  278.8 and redesignate Sec.  278.9 as Sec.  278.8;
    9. In the newly redesignated Sec.  278.8, remove paragraph (a) and 
redesignate paragraphs (b) through (m) as (a) through (l), 
respectively;
    10. Remove Sec.  278.10.

PART 279--ADMINISTRATIVE AND JUDICIAL REVIEW--FOOD RETAILERS AND 
FOOD WHOLESALERS

    11. In Sec.  279.1:
    a. Paragraph (a)(2), remove the reference to ``Sec.  278.6(e)(8)'' 
and add in its place the reference ``Sec.  278.6(e)(9)'';
    b. Revise paragraph (a)(4) to read as follows:


Sec.  279.1  Jurisdiction and authority.

* * * * *
    (a) * * *
    (4) Denial of all or part of any claim asserted by a firm against 
FNS under Sec.  278.7(c) of this chapter;
* * * * *
    12. In Sec.  279.2, revise paragraph (a) to read as follows:


Sec.  279.2  Manner of filing requests for review.

    (a) Submitting requests for review. Requests for review submitted 
by firms shall be mailed to or filed with the Branch Chief, 
Administrative Review Branch, U.S. Department of Agriculture, Food and 
Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302.
* * * * *
    13. In Sec.  279.6, revise paragraph (a) to read as follows:


Sec.  279.6  Legal advice and extensions of time.

    (a) Advice from the Office of the General Counsel. If any request 
for review involves any doubtful questions of law, FNS shall obtain the 
advice of the Department's Office of the General Counsel.
* * * * *
    14. In Sec.  279.7, remove the reference to ``Sec.  278.6(e)(8)'' 
and add in its place the reference ``Sec.  278.6(e)(9)''

    Dated: July 10, 2012.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2012-19773 Filed 8-13-12; 8:45 am]
BILLING CODE 3410-30-P