[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Rules and Regulations]
[Pages 89831-89843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29841]



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  Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / 
Rules and Regulations  

[[Page 89831]]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271, 272, 273, 274, and 278

[FNS-2016-0003]
RIN 0584-AE45


Supplemental Nutrition Assistance Program: Photo Electronic 
Benefit Transfer (EBT) Card Implementation Requirements

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

ACTION: Final rule.

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SUMMARY: The Food and Nutrition Service (FNS) is updating the 
Supplemental Nutrition Assistance Program (SNAP or ``Program'') 
regulations to set implementation parameters, prerequisites and 
operational standards required of State agencies that intend to 
implement the photo Electronic Benefit Transfer (EBT) card option 
provided under Section 7(h)(9) of the Food and Nutrition Act of 2008 
(``the Act''). The updated regulations establish procedures to ensure 
State implementation is consistent with all Federal requirements as 
they relate to photo EBT cards, including establishing procedures to 
ensure: Any other appropriate member of the household or authorized 
representative (including any individual permitted by the household to 
purchase food on its behalf) who is not pictured on the photo EBT card 
may use the card; placing photos on EBT cards does not affect the 
eligibility process and does not impose additional conditions of 
eligibility or adversely impact the ability of appropriate household 
members to access the nutrition assistance they need. Failure by a 
State agency to adhere to the provisions of this rule may result in 
penalties, including loss of federal funding. The rule will also codify 
several other program updates to reflect the current operations of the 
program.

DATES: This rule is effective January 12, 2017.

FOR FURTHER INFORMATION CONTACT: Vicky T. Robinson, Chief, Retailer 
Management and Issuance Branch, Retailer Policy and Management 
Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, 
Alexandria, Virginia, 22302. Ms. Robinson can also be reached by 
telephone at 703-305-2476 or by email at [email protected] 
during regular business hours (8:30 a.m. to 5:30 p.m.), Monday through 
Friday.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

Purpose of the Regulatory Action

    This rule finalizes the provisions of a proposed rule published on 
January 6, 2016 (81 FR 398). With this final rule, FNS is amending the 
SNAP regulations at 7 CFR parts 271, 272, 273, 274 and 278 to codify 
and expand guidance that was issued December 29, 2014, requiring State 
agencies that intend to implement the photo EBT card option under 
Section 7(h)(9) of the Act, 7 U.S.C. 2016(h)(9), to submit a 
comprehensive Implementation Plan that addresses certain operational 
issues to ensure State implementation is consistent with all Federal 
requirements and that program access is protected for participating 
households.
    In particular, this rule clarifies that the State option to place a 
photograph on an EBT card is a function of issuance. Pursuant to this, 
State agencies are prohibited from having photo EBT card requirements 
that affect the household's eligibility or the certification process. 
Moreover, this rule clarifies the right of all household members and 
any other individual permitted by the household to use the EBT card to 
purchase food or meals on behalf of the household, regardless of 
whether their photo is on the card, and further defines the 
responsibility of State agencies to ensure that retailers understand 
photo EBT requirements when processing transactions involving SNAP.

Summary of the Major Provisions

    The final rule removes the provision concerning multiple card usage 
at the point of sale and incorporates the following minor modifications 
for clarity:
     Language added to clarify that States must issue both the 
benefits and EBT card without delay in accordance with SNAP application 
processing standards, whether or not a photo is on the card.
     Language added to clarify that expedited households are 
exempt from a mandatory photo EBT card policy until the next 
recertification.
     Language added to clarify that States may not charge 
households card replacement fees for any card issued as part of the 
implementation of the photo EBT card option.
     Language added to clarify that households have the right 
to permit other individuals to use the household's EBT card on an ad 
hoc basis for the purpose of attaining assistance with purchasing food, 
whether or not the State has a photo EBT requirement.
     Language added to specify that Implementation Plans must 
also include the text that will be added to EBT cards to state that 
anyone with a valid PIN may use the card even if he/she is not pictured 
on the card; the procedures for opting into a voluntary photo EBT card 
policy and documenting that a household voluntarily chose to have a 
photo on its EBT; and communication plans for educating and notifying 
clients and retailers of the State's photo EBT card policy.
     Language added to clarify that State agencies shall 
provide FNS additional information upon request or as may be required 
by other guidelines established by the Secretary to conduct ongoing 
evaluations.
     Clarified in preamble that State responsibilities for 
retailer education on photo EBT cards is limited to the implementation 
phase. For newly authorized retailers, FNS will update retailer 
training materials as the agency would for any new requirements 
affecting SNAP retailer operations.
     Removal of the provision requiring SNAP retailers to ask 
for identification from SNAP customers using three or more EBT cards at 
once for purchases and to report that information to the USDA Office of 
Inspector General (OIG) Fraud Hotline if fraud is suspected.

II. Background

    The Act and SNAP regulations give states the option to require that 
EBT cards contain a photo of one or more

[[Page 89832]]

household members. However, implementation involves complex legal, 
operational, and civil rights considerations; if not well planned, it 
can inhibit benefit access for eligible participants which could 
violate federal law.
    There have been significant issues with recent attempts to place 
photos on EBT cards, including confusion at stores where clients have 
been turned away because of misunderstanding/misapplication of policy; 
confusion among clients regarding who can use the card in the household 
because of the photo on the card; and confusion among State workers 
regarding proper policy for certain cases such as child only cases. As 
a result, FNS issued guidance to State agencies in December 2014 to 
provide clear parameters for implementation and ongoing operation of 
the photo EBT card option. On January 6, 2016, FNS published a proposed 
rule in the Federal Register (81 FR 398), in which the Agency proposed 
to amend SNAP regulations at 7 CFR parts 271, 272, 273, 274 and 278 to 
codify the FNS guidance.
    The rule proposed that States submit a comprehensive Implementation 
Plan to FNS for approval prior to implementing the photo EBT card 
option, and that the Implementation Plan include certain operational 
components to ensure State implementation is consistent with all 
Federal requirements and that program access is not inhibited. Because 
implementation of the photo EBT card option requires substantial 
resources, FNS proposed that State agencies also demonstrate that they 
meet minimum performance standards so FNS could evaluate whether SNAP 
households receive timely, accurate, and fair service before the State 
could implement the photo EBT card option. The rule also proposed to 
clarify that the State option to place photos on EBT cards is a 
function of issuance and not a condition of eligibility. In addition, 
the proposed rule included point-of-sale verification provisions to 
address recently identified violations by retailers and others buying 
and using multiple cards and Personal Identification Numbers (PINs) to 
stock their shelves.
    FNS solicited comments on the proposed rule for 60 days, ending 
March 7, 2016. The Agency received 84 comments from various entities, 
including: 56 advocacy organizations; 11 individuals that identified as 
SNAP participants; 8 individuals that did not identify with a State 
agency or organization; 4 grocer associations; 3 State/local government 
agencies; and 2 Electronic Funds Transfer (EFT) organizations.

III. Summary of Comments and Explanation of Revisions

    The comments FNS received were overwhelmingly supportive of the 
proposed rule, in general, and, in particular, of the recognition that 
photo EBT is a function of issuance that cannot impact households' SNAP 
eligibility. With regards to the photo EBT card implementation and 
monitoring provisions in the proposed rule, respondents expressed 
appreciation for the effort taken by FNS to protect SNAP participants' 
access to benefits, to prevent challenges in photo EBT implementation 
in the future, and to ensure that Federal reimbursement dollars are not 
wasted in the administrative costs of implementing a complex State 
option. Many respondents provided suggestions for strengthening client 
protections even further and for imposing stricter requirements on 
State agencies wishing to implement the photo EBT card option, such as 
requiring additional client exemptions from the photo, establishing a 
specific level for each performance metric that reflects a State's 
commitment and ability to provide timely assistance to eligible 
households, establishing clearer requirements for client and retailer 
education, and requiring the State agency to seek input from key 
stakeholders prior to and after implementation.
    At the same time, some of the respondents supporting the rule 
expressed opposition to the general principle of placing photos on EBT 
cards because they believe it stigmatizes people receiving government 
assistance, subjects them to unequal and greater scrutiny by store 
clerks, wastes taxpayer dollars, and is at odds with the rules of the 
commercial payments world, which EBT is intended to follow. Some 
respondents also felt that allowing States to withhold benefits is 
inconsistent with the statutory intent that photo EBT cards are a 
function of issuance, not certification.
    Four respondents expressed overall opposition to the rule, 
believing that the rule both in form and in effect restricts States' 
ability to exercise the photo EBT card option and supported, instead, 
requiring mandatory placement of photos on EBT cards and/or not 
restricting States' ability to do so. Furthermore, several other 
respondents expressed significant concerns with the proposed 
verification and reporting requirements of retailers for customers 
paying with multiple EBT cards at the point-of-sale.
    Because of the strong support for the rule and based on FNS' 
authority under Section 11 of the Act for monitoring and oversight of 
SNAP, FNS is largely adopting the proposed rule as a final rule, with 
some clarifying changes regarding the photo EBT card provisions in 
response to comments. Also, in response to comments, FNS is eliminating 
the verification requirement with respect to multiple card usage at the 
point-of-sale. Below is further discussion of the most illustrative 
comments FNS received.

State Agency Requirements for Photo EBT Card Implementation

    Minimum requirements--Several respondents, which included nine 
advocates and seven clients, requested that FNS not allow a State to 
commence with photo EBT plans if they cannot process household 
applications and issue benefits on time. The proposed rule specified 
that, prior to implementation, State agencies must demonstrate 
successful administration of SNAP based on SNAP performance standards, 
including application processing timeliness for both the 7-day 
expedited processing and the 30-day processing standards. Pursuant to 
the proposed provision at 7 CFR 274.8(f)(1), which remains unchanged in 
the final rule, States must demonstrate to FNS successful 
administration of SNAP based on SNAP performance standards to be 
eligible to implement the photo EBT card option, including successfully 
processing household benefits within the required timeframes.
    Nine advocacy organizations also wanted FNS to establish specific 
benchmarks for the performance metrics States must meet in order to 
implement the photo EBT card option. The respondents suggested it is 
critical that there be a specific performance level that must be 
established and maintained for each metric, one that reflects a State's 
commitment to providing timely assistance to eligible households, and 
its ability to do so. Respondents also wanted FNS to clarify that the 
performance metrics will be based on performance and not on improvement 
in order to best protect SNAP applicants and participants. One 
respondent suggested that the final rule should require positive 
performance in each of the three years preceding approval and 
implementation of the photo EBT system.
    While FNS understands advocates' desire for specific thresholds 
with the intent of being able to readily exclude poor performing States 
from being

[[Page 89833]]

allowed to implement the photo EBT card option, FNS has come to the 
conclusion that such a narrowly defined approach could unduly limit 
FNS' ability to evaluate a State's overall capacity for properly 
implementing the photo EBT card option. Instead, FNS believes that 
assessing the State's overall program performance would result in a 
more effective and accurate determination of a State's capability to 
implement a photo EBT card option with minimal adverse impacts to 
clients. The overall picture would, of course, take into account 
individual measurements, such as those already established through 
current FNS policy and the Quality Control (QC) process. The Agency 
will use many of these same standards, as specified at 7 CFR 
274.8(f)(1), to measure State performance levels for the purpose of 
approving photo EBT card implementation. However, it's possible a State 
could be meeting such standards and still be performing poorly overall 
or in other areas not included in current standard measurements. For 
this reason, it is important for FNS to maintain some flexibility to be 
able to address situations in which unforeseen performance issues would 
inhibit proper photo EBT card implementation.
    The final rule at 7 CFR 274.8(f)(1) remains unchanged.
    Voluntary program--Four advocacy organizations wanted FNS to 
require States to memorialize any agreement to ``opt-in'' to a 
voluntary photo EBT card policy with written documentation signed by 
the household that makes clear that it understood it had a choice and 
decided to opt-in. The provisions at 7 CFR 274.8(f)(14)(iii) list 
general types of information FNS expects in the Implementation Plans, 
including a description of the card issuance procedures and how the 
State will obtain photographs. Although FNS is not specifying in 
regulations how State agencies must meet the requirement to have 
households opt in rather than opt out of a voluntary photo EBT card 
policy, FNS is adding, in response to comments, language in 7 CFR 
274.8(f)(14)(iii) to require that the Implementation Plan include a 
description of the proposed procedures for opting into a voluntary 
photo EBT card policy and documenting that a household voluntarily 
chose to have a photo on its EBT card. Specifically, States will need 
to show how the opt-in process will protect clients' right to not have 
a photo on the card in voluntary programs. 7 CFR 274.8(f)(14)(iii) is 
changed accordingly.
    Serving clients with hardship--Several respondents, including 26 
advocacy organizations and 8 clients, wanted FNS to expand the minimum 
required exemption criteria for mandatory photo EBT programs in the 
proposed 7 CFR 274.8(f)(4). In particular, many respondents wanted FNS 
to mandate hardship and ``good cause'' exemptions to address applicants 
residing in rural areas, applicants that have a hardship that makes it 
difficult for them to travel to have their photo taken for the card, 
applicants with caregiving duties, as well as veterans, applicants with 
refugee or asylee status and those who face low-literacy barriers. 
Based on the experiences of the other States with existing photo EBT 
policies, FNS determined that there is sufficient basis to mandate 
exemptions for the most vulnerable populations. However, with respect 
to more general hardship or ``good cause'' exemptions, FNS has decided 
to remain consistent with mandatory exemptions required for other areas 
of the Program. For hardship cases that are not already exempt under 
State policy, FNS is clarifying at 7 CFR 274.8(f)(5) that State 
agencies must have a process in place to address such situations on a 
case-by-case basis. Therefore, in the final rule, FNS is maintaining 
States' discretion to establish their own hardship exemptions beyond 
the minimum required exemptions for a mandatory photo EBT program based 
on State-specific needs and 7 CFR 274.8(f)(4) is adopted as is.
    Issuance of the photo EBT card--One advocacy organization wanted 
FNS to specify that if a household meets expedited criteria, a ``photo-
less'' card must be issued to the entire household without delay. FNS 
agrees that the proposed language at 7 CFR 274.8(f)(6) does not 
sufficiently reflect the preamble language to make expedited households 
exempt from mandatory photo EBT card policies until the next 
recertification. In other words, States must not issue a photo EBT card 
to expedited households even if they can do so within 7 days. 
Therefore, FNS is revising the regulatory language at 7 CFR 
274.8(f)(6)(ii) to clarify that States must issue without delay 
benefits and a card without the photo to households that meet expedited 
criteria. A nonexempt household member may be required to comply at the 
next recertification.
    One advocacy organization wanted FNS to clarify that States must 
issue both the benefits and card without delay for expedited 
households. In line with SNAP regulations at 7 CFR 274.2(b), benefits 
are not considered available until the State provides the household 
with an active EBT card and PIN, and benefits have been posted to the 
household's EBT account and are available for spending. Accordingly, 
FNS is adding clarifying language at 7 CFR 274.8(f)(6)(iii).
    Card replacement fees--Five advocates suggested FNS clarify that 
State agencies may not charge households a replacement card fee when 
replacing non-photo EBT cards with photo EBT cards during 
implementation or for putting additional text on the card related to 
the use of photo EBT cards. State agencies are currently permitted to 
charge card replacement fees when a card has been lost, stolen, or 
damaged and the requirements of 7 CFR 274.6(b) have been met. The 
issuance of a photo EBT card is not a replacement of a lost, stolen or 
damaged card, so replacement fees would not apply. However, FNS will 
clarify in 7 CFR 274.8(f)(6)(vi) that States are prohibited from 
counting any card issued as part of the implementation of the photo EBT 
card option against the household with respect to both the card 
replacement threshold and replacement fees under 7 CFR 274.6(b).
    Prorating household benefits--Four advocacy organizations and one 
individual viewed withholding benefits for noncompliance with a photo 
EBT card requirement as a violation of the Act since photo EBT cards 
are a function of issuance, not certification, and, therefore, should 
not be allowed. One State agency viewed the proration and withholding 
requirement for mandatory photo EBT cards unduly burdensome, making it 
impractical to compel compliance. The Act clearly provides States with 
the option to mandate a photo on EBT cards. FNS has determined that 
States may enforce a mandatory policy by withholding issuance of the 
non-complying household member share of benefits only, but not by 
denying certification or withholding benefits for the entire household.
    Household compliance--Sixteen respondents, including advocacy 
organizations and clients, expressed concern that households be given 
sufficient time to comply with a photo EBT card requirement. 
Respondents suggested that FNS consider applying a standard for missed 
photo appointments similar to the regulatory requirements at 7 CFR 
273.2(h)(1)(i)(D), relating to missed interviews, to households that do 
not comply with the first appointment to get their photograph taken. 
FNS does not believe that the requirements surrounding missed 
eligibility interviews are appropriate for

[[Page 89834]]

the purposes of allowing clients sufficient time to obtain a photo for 
the EBT card because those requirements do not provide the flexibility 
that must be part of a State's photo EBT card policy. States must 
describe the process for obtaining the photos in the Implementation 
Plan. The language in 7 CFR 274.8(f)(6)(i) requires that the time 
provided to households to come in to take a photo be sufficient and 
reasonable, and also specifies that obtaining the photo must not impact 
processing standards at 7 CFR 273.2(g) and (i). The process should be 
flexible with multiple opportunities for providing a photo, such as 
allowing clients to come in on a drop-in basis. If the non-exempt, non-
compliant household member does not provide a photo within 30 days of 
applying, the State must still issue the EBT card and provide a pro-
rated amount of benefits for the other exempt, or compliant household 
members as provided in 7 CFR 274.8(f)(7). When the non-exempt household 
member comes into compliance with the photo requirement, the household 
gets the remaining benefits back for all previous months as provided in 
7 CFR 274.8(f)(8). As mentioned, expedited households are exempt from 
the photo EBT card policy until the next recertification. As stated in 
7 CFR 274.8(f)(8), withheld benefits are expunged after one year in 
accordance with 7 CFR 274.2(h)(2). With one year to come into 
compliance, FNS believes the proposed regulations already protect 
households from being negatively impacted if circumstances delay the 
head of household's ability to provide a photo. It is also important to 
highlight that this only applies to mandatory implementation as 
voluntary participants cannot be required to be photographed under any 
circumstance. 7 CFR 274.8(f)(6) remains unchanged with respect to 
providing households sufficient time to comply with a photo EBT card 
requirement.
    Expungement--One advocacy organization wanted FNS to exempt 
benefits withheld for noncompliance from expungement until the 
household becomes compliant. Because it is possible that some 
households may never come into compliance, FNS does not believe it is 
practical to require States to hold the benefits and maintain them as a 
SNAP obligation in perpetuity. FNS continues to believe that one year 
is sufficient time for the household to come into compliance before the 
State can start expunging withheld benefits. Furthermore, all withheld 
benefits cannot be expunged at once. Benefits must be expunged at the 
allotment level just as they are under the regular expungement process 
at 7 CFR 274.2(h)(2). Similarly, the noncompliant household member 
continues to accrue withheld benefits for as long as they are 
certified. For example, if a certified member of a household does not 
comply with a mandatory photo policy for 14 months and then becomes 
compliant, the State must return 12 months of benefits to that 
household. In other words, when a noncompliant member of a household 
becomes compliant, that household is entitled to all the benefits 
withheld in accordance with 7 CFR 274.8(f)(7), up to a maximum of 12 
months' worth of benefits.
    Therefore, the final rule at 7 CFR 274.8(f)(8) remains unchanged to 
ensure benefits withheld for noncompliance are treated in accordance 
with the same timeframe used for handling all expungements under 7 CFR 
274.2(h)(2). If the noncompliant member comes into compliance, the non-
expired benefits must be issued within two business days of when the 
client has their photo taken by the State agency. Any action to 
withhold benefits from issuance is subject to fair hearings in 
accordance with 7 CFR 273.15.
    Household and authorized representative card usage--Two advocacy 
organizations would like the regulations to be more explicit in giving 
households the right to permit individuals on an ad hoc basis to use 
the household's EBT card on the household's behalf to purchase food or 
meals, whether or not their State has a photo EBT policy. While 7 CFR 
273.2(n)(3) and 274.7(a) already allow households to select other 
persons to use their Program benefits to purchase eligible food, FNS 
agrees that making this ability more explicit in the photo EBT card 
regulations would be helpful in ensuring that States do not attempt to 
place undue burdens on households by requiring a formal authorization 
process to identify individuals who may help the household purchase 
food. Current regulations allow any household member or non-member 
selected by the household to purchase food with the household's EBT 
card on the household's behalf. These non-members are not required to 
be formally designated and States shall not require households to 
provide the State information regarding individuals making purchases 
permitted by the household on an adhoc basis.
    However, clients also need to understand that neither the State nor 
FNS is responsible for any benefits lost as a result of a client freely 
giving out the household's PIN to another individual. Therefore, FNS is 
amending language at 7 CFR 274.8(f)(9) through (11) to similarly 
specify that individuals permitted by the household to purchase food or 
meals on their behalf are entitled to use the card.
    As it continues to be illegal for anyone to sell, transfer, 
acquire, receive or possess program benefits for the purpose of 
defrauding the government or individuals certified to receive benefits, 
clients are not allowed to give their EBT card and/or PIN to another 
individual for any other purpose other than to purchase food or meals 
for the certified household only.
    Client and retailer training--Several respondents, including 10 
clients, six advocacy organizations and one State agency wanted to 
ensure that client and retailer training and education materials be 
written in clear and conspicuous language, with some respondents 
specifying font, type and reading level. Some respondents also wanted 
information regarding exemptions, benefits being prorated, the ability 
for anyone in the household to use the card, etc., added to the minimum 
information specified in the proposed rule. While FNS shares the 
respondents' concerns that clients and retailers receive all the 
necessary information to ensure compliance with SNAP regulations, FNS 
does not believe such specificity is necessary. Too much information 
can have the unintended consequence of overwhelming the recipient with 
the information, hindering both accessibility and understanding of the 
information. Instead, FNS will assess the clarity in wording and 
appearance of photo EBT card training and education materials during 
the overall implementation approval process. Therefore, FNS is leaving 
the information required for client and retailer training and education 
materials unchanged in the final rule at 7 CFR 274.8(f)(10) and (11).
    Retailer education and responsibilities--Two advocacy organizations 
and two State agencies opposed the provisions in the proposed rule that 
would shift responsibility for retailer education and accountability 
from FNS to the States. They were concerned that the resources and time 
necessary to perform retailer outreach effectively is beyond the 
capacity of many State agencies, which already confront limited 
resources. While it is true that FNS oversees retailer policy and 
compliance, States implement the photo EBT process at their own option. 
The Act clearly requires States that choose to do so to be responsible 
for ensuring that any other appropriate member of the household or 
authorized

[[Page 89835]]

representative of the household may utilize the card, which includes 
ensuring that the State photo EBT policy is understood by all 
stakeholders. Furthermore, States have been directly involved with 
retailer participation with respect to equipping retailers with point-
of-sale devices, training them on EBT requirements and procedures, and 
providing customer service on EBT. Therefore, having States be 
responsible for retailer education with respect to the photo EBT cards 
is not inconsistent with past or current retailer involvement at the 
State level and fulfills the Act's requirement.
    Three advocacy organizations wanted FNS to specify that States must 
educate not only current retailers but any new retailers that come into 
the Program, while respondents, in general, recommended that FNS 
incorporate guidance on the proper handling and acceptance of photo EBT 
cards into the initial training materials for newly authorized stores 
and any refresher training produced for stores. Because of the 
divergent comments regarding whether or not States should be given 
retailer education responsibilities, FNS is limiting State 
responsibilities regarding retailer education responsibilities on photo 
EBT cards to the implementation phase. For newly authorized retailers, 
FNS will maintain its current retailer education responsibilities, 
including updating retailer training materials as the Agency would for 
any new requirements affecting SNAP retailer operations. As a result, 
the proposed retailer education and responsibility provisions remain 
unchanged in the final rule at 7 CFR 274.8(f)(11).

Implementation Plan

    There were several areas where respondents recommended stricter 
parameters and/or additional or more specific requirements. In many of 
these instances, FNS believes States should continue to be allowed some 
discretion, consistent with other areas of the Program. Furthermore, 
many of the comments involved general concerns with ensuring States 
make it clear how they would implement certain aspects of the photo EBT 
card option, as well as make the policies clear to clients. To that 
end, FNS is specifically including communication plans for educating 
and notifying clients and retailers to the language at 7 CFR 
274.8(f)(14)(iii).
    Ultimately, FNS does not believe it would be beneficial to be too 
specific with regard to each requirement that is included in the 
Implementation Plan. Comments received on the Implementation Plan 
provisions at 7 CFR 274.8(f)(14) are summarized as follows:
    Demonstrate a genuine problem that will be rectified by the photo 
on the EBT card--Six advocacy organizations wanted States to be 
required to prove the cost effectiveness and efficiency of a photo EBT 
program, and/or demonstrate that the photo EBT policy will remedy a 
specific problem. FNS believes such a showing is not required and is 
unduly burdensome on a State.
    Stakeholder input--Ten advocacy organizations and one grocer 
association wanted FNS to require States to seek and include feedback 
from other stakeholders, such as anti-hunger, client, or related 
advocacy groups, EBT vendors, and grocer associations, in the 
Implementation Plan. FNS agrees that it would benefit States to obtain 
input from organizations that might have further insight into on-the-
ground operations and would highly encourage it. While States are not 
required to collaborate prior to or after implementation of a 
regulatory requirement, FNS believes obtaining feedback from 
stakeholder organizations and/or including them in the State's efforts 
to communicate effectively with clients and retailers is invaluable, 
and FNS's evaluation of the Implementation Plan will take into 
consideration any such collaboration that has influenced development of 
the plan. For example, as part of the communication plan, States should 
identify any organizations that will be assisting the State with 
developing and/or distributing materials and information, as well as 
indicate any collaboration with and input obtained from stakeholders in 
the development of the communication plan to clients and retailers. As 
a result, FNS is adding language at 7 CFR 274.8(f)(14)(iii) to indicate 
that States must include information regarding any stakeholder 
collaborations in the Implementation Plan as well.
    Limited English Proficient (LEP) SNAP clients--Four advocacy 
organizations wanted Implementation Plans to detail the State's 
training plan for LEP clients. They also asked that examples of letters 
and other materials communicating the policy to clients and retailers 
should include appropriate translations. FNS agrees with the spirit of 
this recommendation, and notes that the photo EBT card materials and 
information are subject to the language requirements in 7 CFR 272.4(b) 
regarding translation and interpretation, and States are prohibited 
from unlawfully discriminating against any applicants or participants 
as specified in 7 CFR 272.6(b)(1). In addition, 7 CFR 274.8(f)(14)(v) 
requires States to demonstrate how the photo EBT card materials comply 
with civil rights laws. FNS will review States' Implementation Plans to 
ensure that SNAP recipient training, materials, and information provide 
meaningful access to LEP individuals and conform to the requirements of 
Title VI of the Civil Rights Act of 1964. FNS will also obtain 
translations of all materials that will be used to inform clients, 
retailers, and other stakeholders. For clarification purposes, FNS is 
referencing language requirements and civil rights laws at 7 CFR 
274.8(f)(14)(iii) and (v), respectively, in the final rule.
    Retroactive implementation plans--Two grocer associations and two 
advocacy organizations wanted FNS to require States with current photo 
EBT programs to retroactively submit Implementation Plans. FNS is 
actively involved in ensuring that the current photo EBT card programs 
are meeting all FNS requirements. FNS believes that the efforts in 
those States should be focused on correcting any compliance issues 
rather than developing an implementation plan for a program that is 
already operating, so FNS will not be requiring those states to submit 
an Implementation Plan.
    Disaster Plan--One grocer association suggested that FNS require 
States to address the use of photo EBT cards in their disaster plans. 
FNS strongly encourages States choosing to place photos on EBT cards to 
plan for and develop procedures for how the State will issue EBT cards 
in the event of a disaster. FNS is not requiring States to include 
processes for addressing photo EBT cards in their disaster plans 
because Section 5(h)(3)(B) of the Food and Nutrition Act gives the 
Secretary the authority to adjust issuance methods to be consistent 
with what is practicable under actual conditions in the affected area.
    Conditional Approval of Implementation Plan--FNS is also clarifying 
at 7 CFR 274.8(f)(14)(i) that if a State's Implementation Plan is not 
sufficient for successful implementation of the photo EBT card option, 
FNS may issue a denial or an approval subject to conditions.

Post-Implementation Assessment

    One advocacy organization specifically requested that FNS expand 
the data collected as part of the post-implementation assessment and 
evaluation to include the types of households impacted by the State's 
photo EBT card policy, not just the numbers or percentages, in order to 
help identify a group/type of household member that needs to be 
exempted from

[[Page 89836]]

the policy. Other respondents more generally suggested that FNS monitor 
the impact on various groups as part of ongoing monitoring provided for 
in 7 CFR 274.8(f)(17). FNS notes that many vulnerable groups are 
already exempt from mandatory photo EBT card policies under 7 CFR 
274.8(f)(4). These groups include, at a minimum, the elderly, the 
disabled, children under 18, homeless households, and victims of 
domestic violence. States may also establish additional exemptions. 
Therefore, FNS believes that the value gained from requiring States to 
obtain data on these groups would not be substantial. As a result, the 
minimum information required in the post-implementation report remains 
unchanged in the final rule.
Ongoing Monitoring
    FNS received several comments in response to questions posed in the 
proposed rule asking how FNS should verify appropriate implementation 
on an ongoing basis, and whether there is other data that should be 
required from States on an ongoing basis and how frequently States 
should be required to report. Respondents suggested several areas for 
ongoing monitoring such as tracking the impact of photo EBT policies on 
LEP households, the elderly, individuals with disabilities, and non-
applicant heads of households; tracking client complaints; seeking 
advocate feedback on an ongoing basis; and periodically surveying 
stores after implementation to validate that the photo EBT requirements 
are understood. Respondents also suggested annual reporting and more 
frequent reporting during the first year of photo EBT operations. While 
FNS understands the desire for more detailed data, unfortunately, such 
data are not readily available to the States or reliable because they 
are not collected in any systematic way.
    Nine advocacy organizations wanted FNS to stipulate that any State 
agency which decides to implement the photo EBT card option must 
continue to meet metrics set forth by the Department or suspend photo 
EBT. The proposed provisions at 7 CFR 274.8(f)(17)-(18) stipulate that 
FNS would continue to monitor and evaluate the operation of the photo 
EBT card option and, should there be problems with the State's 
implementation, FNS may require corrective action by the State. If that 
were to fail, FNS would consider other possible actions, including 
suspension of the States' photo EBT policy. As with all SNAP statutory, 
regulatory, and policy provisions, FNS has established processes for 
ensuring States are meeting SNAP requirements, such as through the 
Management Evaluation (ME) reviews. FNS intends to follow these same 
processes with respect to the photo EBT card option. Should FNS find 
that a State is not meeting any of the SNAP performance standards after 
implementation, the State's photo EBT card policy would be examined to 
determine its impact on any deficiencies found and whether the photo 
EBT card policy and implementation should be included in the 
appropriate actions to remedy the situation.
    Two advocacy organizations suggested FNS classify any adoption of 
photo EBT cards as a major systems change so that it automatically 
requires the State to collect the data specified at 7 CFR 272.15. 
Conversely, two individual respondents and one State agency expressed 
concern that the proposed reporting requirements were excessively 
burdensome to State agencies and that the rule provided seemingly 
unbounded discretion to the Secretary for ongoing monitoring.
    FNS appreciates the thoughtful feedback respondents provided. 
Although Section 11 of the Act provides the Secretary with broad 
authority for the monitoring and oversight of SNAP, FNS understands 
that some specific parameters with regard to ongoing monitoring of the 
photo EBT option would be helpful for all stakeholders involved. FNS 
has determined that more specific requirements would be best addressed 
through separate guidance to allow for flexibility. With respect to 
classifying the photo EBT card option as a major change, FNS determined 
prior to publishing the Major Change rule (81 FR 2725 (January 19, 
2016)) that it would not be the appropriate process for implementing 
photo EBT card operating standards because major changes, as defined in 
the rule, specifically relate to SNAP certification processes, and how 
process or technology changes impact the ability of SNAP applicants and 
participants to interact with the State agency or be certified for 
benefits. The photo EBT card option is a function of issuance, not 
certification, and therefore, cannot impact whether or not a household 
is eligible for SNAP participation.
    As with comments received regarding the Implementation Plan 
requirements and performance standards, FNS will consider comments on 
the proposed rule regarding ongoing monitoring in the development of 
any criteria or further guidance for evaluating States' photo EBT card 
policies on an ongoing basis. The final rule clarifies at 7 CFR 
274.8(f)(17) that State agencies will be required to provide FNS 
additional information upon request to conduct ongoing evaluations.

Modifying Implementation of Photo EBT Card Option

    In response to FNS' specific question seeking comments on whether a 
State should be required to stop or suspend placing photos on EBT cards 
if the State agency fails to establish procedures to ensure that all 
members of the household or any authorized representatives are able to 
use the card, four advocacy organizations supported FNS taking action 
to suspend a State's Photo EBT card policy. One respondent urged FNS to 
establish and enforce a penalty that is real and meaningful when States 
ignore or defy Federal enforcement, and to render a State ineligible to 
continue its photo EBT card policy if it is found to have a negative 
impact on a State's ability to process SNAP applications and issue 
benefits in a timely manner. Another respondent suggested that review 
of the photo EBT card policies be added as a part of the State Agency 
Management Evaluation (ME).
    In the absence of a concrete alternative process for assessing and 
imposing penalties for noncompliance with the photo EBT card 
requirements or for other deficiencies that may be the result of the 
State's photo EBT card policy, FNS will continue to follow existing 
procedures for evaluating and addressing situations when a State agency 
is not meeting standards contained in the Act, regulations, and/or the 
State Plan of Operation, including procedures for ME reviews, 
corrective actions, and suspension/disallowance of federal 
administrative funding. As a result, the final rule remains unchanged 
with regard to State noncompliance and penalties.

Provisions Regarding Public Posting of Implementation Plans, Non-
Applicants, and Retailer ``Testers''

    In the proposed rule, FNS posed other specific questions for 
comment. These questions involved whether there are concerns with 
posting approved Implementation Plans on the FNS public Web site, 
whether there was a potential benefit for allowing non-applicants to 
have their photograph taken under a voluntary implementation, and 
whether stakeholders believe ``testers'' to be a worthwhile method for 
verifying appropriate implementation at authorized retailer locations. 
Ten advocacy organizations and two State agencies agreed with the 
rationale that approved Implementation Plans are public information and 
should be

[[Page 89837]]

posted on the FNS Web site, and with prohibiting the taking of photos 
of non-applicants under a voluntary photo EBT card policy as proposed 
in 7 CFR 274.8(f)(3)(iii). One commenter suggested photographs of non-
applicants be allowed only on alternate cards, where an alternate card 
is required by the state agency or requested by the household to be 
issued to a person who is not a member of the SNAP household. With 
regard to ``testers,'' respondents, in general, including six advocacy 
organizations, two grocers associations, one electronic funds 
association and one State agency, supported using the method to 
determine if any barriers have been created due to a State's photo EBT 
card policy. However, the two grocers associations felt that the method 
should be used only if retailers were not subjected to any penalties 
for a poor outcome, while the State agency suggested the method be a 
State option, given the administrative costs involved, and only if 
retailers faced sanctions for failing to adhere to State or Federal 
policies.
    Based on the above comments, FNS will not require States to use 
``testers'' to verify proper implementation of photo EBT card policies 
at retailer locations. However, FNS encourages States to consider such 
a method when developing their overall strategies to ensure benefit 
access is not being held up or denied in the checkout lines. Therefore, 
the final rule remains unchanged with respect to posting approved 
Implementation Plans and prohibiting States from placing non-applicant 
photos on EBT cards. With respect to ``testers'', FNS is adding 
language at 7 CFR 274.8(f)(16)(i)(B) as an option for monitoring 
retailer compliance.

Provisions Beyond 7 CFR 274.8(f)

    Card Text--Twenty-two respondents, including 10 advocacy 
organizations, eight clients, two grocers associations, one individual, 
and one State agency, commented with respect to the proposed 
requirement at 7 CFR 274.8(b)(5)(ii) that States with photo EBT cards 
add text to all of the State's EBT cards informing retailers and 
clients that all household members and authorized representatives, 
including individuals permitted by the household to purchase food or 
meals on its behalf, are allowed to use the EBT card even if their 
photo is not on the card or no photo is on the card. All respondents 
supported the requirements, but some wanted FNS to mandate specific 
wording to be placed on the cards rather than allow States to develop 
alternative language. Through the Implementation Plan approval process, 
FNS will look closely at the wording States intend to place on the 
cards to ensure that it is clear and conveys the appropriate 
information. Because the wording may be impacted by the space available 
on the card or may evolve over time based on subsequent State 
experiences, FNS is maintaining State discretion to propose their own 
text to place on EBT cards in the final rule. However, FNS will add 
language at 7 CFR 274.8(f)(14)(iii) to specify that the Implementation 
Plan must also include the text required by 7 CFR 274.8(b)(5)(ii).
    Respondents also asked FNS to require States to place a 24-hour 
toll-free emergency number for retailers to call with questions about 
photo EBT requirements as well as a number for clients to call if they 
are being denied the right to use the household photo EBT card. In 
addition, respondents suggested requiring a Web site on the card where 
retailers and clients could go for information on the State's photo EBT 
card policy. All States already have toll-free customer service numbers 
for both clients and retailers, some of which operate 24 hours. Many 
States also have or plan to have EBT client Web sites. Furthermore, 
these toll-free numbers and Web sites are already on many of the 
State's EBT cards. Again, FNS believes States should continue to have 
the same discretion in this area as they do for addressing all other 
EBT customer service issues. However, FNS will review photo EBT card 
Implementation Plans to ensure States will have a process in place for 
clients and retailers to get their issues related to the photo EBT 
program addressed as well as to ensure that clients and retailers are 
informed of this process.
    Using multiple cards for SNAP purchases--In an attempt to address 
the existence of violating retailers and others buying and using 
multiple cards and PINs to stock their shelves, the proposed rule 
included a provision at 7 CFR 272.8(h) to require SNAP retailers to ask 
for identification from SNAP customers using three or more EBT cards at 
once for purchases and to report that information to the USDA OIG Fraud 
Hotline if fraud is suspected. Many concerns with this proposed policy 
were raised by the three grocers associations, one State agency and one 
advocacy organization. FNS agrees with respondents' concerns that such 
a requirement would present significant challenges for SNAP retailers 
for a variety of reasons. In particular, FNS agrees with a respondent's 
comment that it would not be prudent to require clerks, who are 
sometimes as young as 16 years old, to enter into what could 
potentially be a confrontational situation with a customer.
    Alternatively, one respondent suggested that multiple card use not 
be allowed for a single transaction or by an individual for multiple 
transactions. Other respondents commented that there are circumstances 
where an individual could be using multiple EBT cards to legally 
purchase food for SNAP recipients and a limitation on the number of 
cards an individual may use at one time may create access issues for 
some recipients. Based on the comments received, FNS is removing this 
provision in the final rule and will consider prohibiting the use of 
multiple cards for future rulemaking. Although customers may use 
multiple EBT cards at the point of sale, retailers should continue to 
report any suspicious activity to the USDA OIG Fraud Hotline. The final 
rule is modified accordingly at 7 CFR 278.2(h).

IV. Procedural Matters

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 final rule has been designated 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 (FNS-2016-0003).

Regulatory Impact Analysis Summary

    As required for all rules that have been designated as Significant 
by the Office of Management and Budget, a Regulatory Impact Analysis 
(RIA) was developed for this final rule. The full RIA is included in 
the supporting documents of the rule docket at www.regulations.gov. The 
following summarizes the conclusions of the regulatory impact analysis.
    Need for Action: This final rule would incorporate into regulation 
and expand on guidance that was issued December 29, 2014 to certain 
State agencies. Based on observed implementation to date,

[[Page 89838]]

there is cause for concern about possible negative impacts of photo EBT 
programs on client access and civil rights, both as programs are first 
implemented and over time. This guidance requires States that intend to 
implement the photo EBT card option to submit a comprehensive 
Implementation Plan for FNS approval that addresses key operational 
issues to ensure State implementation complies with all Federal 
requirements and that program access is protected for participating 
households. In this final rule, the Department clarifies that the State 
option to place a photo on an EBT card is a function of issuance. 
Pursuant to this, State agencies are prohibited from having photo EBT 
requirements that affect the eligibility process. This includes 
ensuring that the photo EBT option is implemented in a manner that does 
not impose additional conditions of eligibility or adversely impact the 
ability of eligible Americans to access the nutrition assistance they 
need.
    Benefits: The Department believes the provisions in this final rule 
provide qualitative benefits to State agencies, SNAP participants, and 
authorized retailers. The Act and existing program regulations provide 
that States that implement a photo on the EBT card must establish 
procedures to ensure that any other appropriate member of the household 
or any authorized representative of the household may use the card. 
This final rule provides clear parameters for States wishing to 
implement photo EBT to ensure that State implementation is consistent 
with all Federal requirements and that program access is protected for 
participating households, which safeguard the rights of clients, 
provide training to staff, clients, and retailers, and improve program 
administration.
    Costs: States choosing the photo EBT option may incur additional 
administrative costs, which may vary based on the size and scope of the 
State's operations and whether implementation of the photo EBT card 
option is mandatory or voluntary. Regardless of whether the option is 
mandatory or voluntary, all States that implement photo EBT cards will 
incur certain implementation costs to include: Preparing an 
Implementation Plan; communications and training for program staff, 
clients, and retailers; ongoing training costs to maintain an 
understanding of photo EBT card policies; programming costs for 
mandatory policies; and costs for the post implementation assessment, 
evaluation and on-going monitoring. States with a mandatory photo EBT 
policy will also incur costs associated with prorating and storing 
benefits for noncompliant household members that choose not to be 
photographed. The Department estimates the total cost to be 
approximately $9.3 million, shared 50/50 by the State and the Federal 
government, over five years, assuming six States choose to implement a 
mandatory photo EBT card policy. Costs would be lower if some or all of 
these States choose to implement voluntary, rather than mandatory, 
photo EBT card policies. The estimate of six States is based on 
information from State legislatures that are either currently 
considering or discussing the possibility of considering such a policy. 
Given the projected timelines for these legislative actions, the 
Department assumes that the costs of implementing a photo EBT card 
policy will be phased in over a five year period, as all six States are 
unlikely to approve and implement the policy in the same year. The 
States that have already implemented photo EBT as a State option will 
not be required to retroactively submit Implementation Plans, but may 
continue to incur minimal costs associated with ongoing training and 
monitoring required for program staff, clients, and retailers.

Regulatory Flexibility Act

    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, the 
Administrator of FNS certifies that this final rule would not have a 
significant impact on a substantial number of small entities. This 
final rule primarily impacts State agencies. As part of the 
requirements, State agencies would have to educate retailers about the 
photo EBT card. There will not be a substantial impact on small 
entities such as small retailers since the treatment of clients with 
EBT cards and photo EBT cards do not vary. Minimal changes will be 
required of retailers. Retailers will need to be aware that some 
clients may present photo EBT cards but clients shall not be treated 
any differently. This is not expected to create a burden on retailers.

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 by State, local or Tribal 
governments, in the aggregate, or the private sector, of $146 million 
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 
at http://www.bea.gov/iTable) 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 most cost effective or least burdensome 
alternative that achieves the objectives of the rule. This final rule 
does not contain Federal mandates (under the regulatory provisions of 
Title II of the UMRA) for State, local and Tribal governments or the 
private sector of $146 million or more in any one year. Thus, the final 
rule is 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.

Federalism Summary Impact Statement

    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 13121.
    The Department 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 and timely implementation. This is intended to have retroactive 
effect in that State agencies that have already implemented

[[Page 89839]]

a photo EBT card must meet all requirements of this final rule except 
the requirement to submit an Implementation Plan prior to State's 
planned implementation date. Prior to any judicial challenge to the 
provisions of the final rule, all applicable administrative procedures 
must be exhausted.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 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.
    On February 18, 2015, the Food and Nutrition Service held an 
information session. During the information session, no comments were 
received on the proposal. Reports from these sessions are part of the 
USDA annual reporting on Tribal Consultation and Collaboration. USDA 
offers these and similar opportunities, such as webinars and 
teleconferences, for collaborative conversations with Tribal leaders 
and their representatives concerning ways to improve rules with regard 
to their effect on Indian country on a quarterly basis as part of its 
yearly Tribal information sharing schedule.
    The Food and Nutrition Service has assessed the impact of this rule 
on Indian tribes and determined that this rule does not, to our 
knowledge, have tribal implication that require tribal consultation 
under EO 13175. If a Tribe requests consultation, the Food and 
Nutrition Service will work with the Office of Tribal Relations to 
ensure meaningful consultation is provided where changes, additions and 
modifications identified herein are not expressly mandated by Congress.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with USDA Regulation 
4300-4, ``Civil Rights Impact Analysis,'' to identify any major civil 
rights impacts the rule might have on program participants on the basis 
of religion, age, race, color, national origin, sex, political beliefs, 
or disability. After a careful review of the rule's intent and 
provisions and understanding the intent of this rule is to in part to 
protect the civil rights of clients, FNS has determined that this rule 
is not expected to adversely affect the participation of protected 
individuals in the Supplemental Nutrition Assistance Program. 
Discrimination in any aspect of the Program administration is 
prohibited by these regulations, according to the Act. Enforcement may 
be brought under any applicable Federal law. Title VI complaints shall 
be processed in accord with 7 CFR part 15. Where State agencies have 
options, and they choose to implement a certain provision, they must 
implement it in such a way that it complies with the regulations at 7 
CFR 272.6.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chap. 35; 5 
CFR 1320) requires the Office of Management and Budget (OMB) to 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.
    In accordance with PRA, this final rule does not contain 
information collections that are subject to review and approval by OMB.
    This rule requires State agencies to submit to FNS an 
Implementation Plan, a post implementation evaluation of the photo EBT 
implementation, and related ongoing measures. As the PRA requirements 
are applicable to collection of information from ten or more 
respondents, there are no information collection requirements that are 
subject to OMB review at this time. Should the number of estimated 
respondents reach ten or more, FNS will publish a notice for comment 
and submit the applicable requirements to OMB for review and approval.

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.

List of Subjects

7 CFR Part 271

    Food stamps, Grant programs--Social programs, Reporting and 
recordkeeping requirements.

7 CFR Part 272

    Alaska, Civil rights, SNAP, Grant programs--social programs, 
Penalties, Reporting and recordkeeping requirements, Unemployment 
compensation, Wages.

7 CFR Part 273

    Administrative practice and procedure, Aliens, Claims, Employment, 
Food stamps, Fraud, Government employees, Grant programs--social 
programs, Income taxes, Reporting and recordkeeping requirements, 
Students, Supplemental Security Income (SSI), Wages.

7 CFR Part 274

    Food stamps, Grant programs--social programs, Reporting and 
recordkeeping requirements.

7 CFR Part 278

    Banks, banking, Food stamps, Grant programs--social programs, 
Penalties, Reporting and recordkeeping requirements, Surety bonds.

    Accordingly, 7 CFR parts 271, 272, 273, 274, 278 are amended as 
follows:

0
1. The authority citation for parts 271, 272, 273, 274 and 278 
continues to read as follows:

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

PART 271--GENERAL INFORMATION AND DEFINITIONS

0
2. In Sec.  271.2, revise the definition of Identification (ID) card to 
read as follows:


Sec.  271.2   Definitions.

* * * * *
    Identification (ID) card means a card for the purposes of 7 CFR 
278.2(j).
* * * * *

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES


Sec.  272.1   [Amended]

0
3. In Sec.  272.1, remove and reserve paragraphs (g)(30) and (47).

PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOULDS

0
4. In Sec.  273.2:
0
a. Amend paragraph (a)(1) by adding to the end of the third sentence 
the words, ``, including in the implementation of a photo EBT card 
policy'' and by adding a new sentence between the third and fourth 
sentences.
0
b. Amend paragraph (a)(2) by adding a new sentence before the last 
sentence.
0
c. Amend paragraph (e)(1) by adding a new sentence after the third 
sentence.
0
d. Amend paragraph (n)(2) by removing in the third sentence the

[[Page 89840]]

words, ``and on the food stamp identification (ID) card, as provided in 
7 CFR 274.10(a)(1) of this chapter'' and by removing the last sentence.
0
e. Amend the first sentence of paragraph (n)(3) by removing the words, 
``ID card and benefits'' and adding in its place the words, ``EBT 
card''.
    The additions read as follows:


Sec.  273.2   Office operations and application processing.

    (a) * * *
    (1) * * * The State agency's photo EBT card policy must not affect 
the certification process for purposes of determining eligibility 
regardless of whether an individual has his/her photo placed on the EBT 
card. * * *
    (2) * * * States must meet application processing timelines, 
regardless of whether a State agency implements a photo EBT card 
policy. * * *
* * * * *
    (e) * * * State agencies may not require an in person interview 
solely to take a photo. * * *
* * * * *

PART 274--ISSUANCE AND USE OF PROGRAM BENEFITS

0
5. In Sec.  274.8:
0
a. Redesignate paragraphs (b)(5)(ii) through (iv) as paragraphs 
(b)(5)(iii) through (v), respectively, and add a new paragraph 
(b)(5)(ii).
0
b. Add paragraph (f).
    The additions read as follows:


Sec.  274.8   Functional and technical EBT system requirements.

* * * * *
    (b) * * *
    (5) * * *
    (ii) State agencies that implement the photo EBT card option in 
accordance with paragraph (f) of this section must print on the EBT 
cards the text ``Any user with valid PIN can use SNAP benefits on card 
and need not be pictured.'' or similar alternative text approved by 
FNS.
* * * * *
    (f) State agency requirements for photo EBT card implementation--
(1) Minimum requirements. Prior to implementation, State agencies must 
be performing sufficiently well in program administration to be 
eligible to implement the photo EBT card option.
    Prior to implementation, State agencies must demonstrate to FNS 
successful administration of SNAP based on SNAP performance standards. 
Successful program administration will take into account at a minimum 
the metrics related to program access, the State's payment error rate, 
the State's Case and Procedural Error Rate, application processing 
timeliness, including both the 7-day expedited processing and the 30-
day processing standards, timeliness of recertification actions, and 
other metrics, as determined by the Secretary, that may be relevant to 
the State agency's implementation of photo EBT cards.
    (2) Function of issuance. The photo EBT card option is a function 
of issuance and not a condition of eligibility. Any implementation of 
the option to place a photo on the EBT card must not impact the 
certification of households. An application will be considered complete 
with or without a photo and a case shall be certified regardless of the 
status of a photo in accordance with timeframes established under 7 CFR 
273.2. If a State agency chooses to implement a voluntary photo EBT 
card policy, issuance shall not be impacted. If a State agency chooses 
to implement a mandatory photo EBT card policy, a State agency may not 
deny or terminate a household because a household member who is 
exempted by paragraph (f)(4) of this section does not comply with the 
requirement to place a photo on the EBT card.
    (3) Mandatory vs. voluntary. (i) State agencies shall have the 
option to implement a photo on EBT cards on a mandatory or voluntary 
basis. Regardless of whether the photo is mandatory or voluntary, the 
certification process must not be altered in order to facilitate 
photos, and clients must be informed that certification will not be 
impacted by whether or not a photo is on the card.
    (ii) Under mandatory implementation, State agencies must exempt 
certain clients, as stated in paragraph (f)(4) of this section. State 
agencies must establish which member(s) of the household would be 
required to be photographed and the procedures that allow eligible 
nonexempt household members who do not agree to the photo to come into 
compliance at a later time.
    (iii) Under voluntary implementation, clients must be clearly 
informed of the voluntary nature of the option. All applicant members 
of households, whether or not they are in an exempted category, must 
opt in to have a photo on their EBT card. States shall not require a 
photo be taken if the State is implementing a voluntary option.
    (4) Exemptions. Under a mandatory implementation, the State agency 
must exempt, at a minimum, the elderly, the disabled, children under 
18, homeless households, and victims of domestic violence. A victim of 
domestic violence shall be able to self-attest and cannot be required 
to submit documentation to prove domestic violence. The ability to 
self-attest must be applied equally regardless of if the victim is a 
female or male. Non-applicants cannot have a photo taken for an EBT 
card whether or not they desire to have their photo taken. A State 
agency may establish additional exempted categories.
    (5) Serving clients with hardship. State agencies must have 
sufficient capacity to issue photo EBT cards and a process or procedure 
in place to address, on a case-by-case basis, household hardship 
situations as determined by the State agency so that such household 
benefits are not unduly withheld. Examples of hardship conditions 
include, but are not limited to: Illness, transportation difficulties, 
care of a household member, hardships due to residency in a rural area, 
prolonged severe weather, or work or training hours which prevent the 
household from being available during the hours that photos are taken 
in-office. These are households that do not already fall under the 
mandatory exemptions or other exemptions established by the State under 
paragraph (f)(4) of this section .
    (6) Issuance of photo EBT card. (i) States can require households 
to come in to be photographed, but cannot do so for the purposes of 
certification. The amount of time provided to households to come in and 
be photographed needs to be sufficient and reasonable and be documented 
in the Implementation Plan as required in paragraph (f)(14) of this 
section.
    (ii) Regardless of whether the State's photo EBT card policy is 
voluntary or mandatory, if a household meets expedited criteria, the 
State must issue the EBT card without a photo and provide the full 
benefit allotment to the entire household without delay. The State 
agency may require a nonexempt head of household member to comply at 
the next recertification.
    (iii) Card issuance procedures for new SNAP households must ensure 
adherence to application processing standards as required at 7 CFR 
273.2(g) and (i) and benefit issuance standards at Sec.  274.2(b).
    (iv) State agencies shall not store photos that are collected in 
conjunction with its photo EBT card policy but are not placed on an EBT 
card.
    (v) The process for issuing and activating photo EBT cards must not 
disrupt, inhibit or delay access to benefits nor cause a gap in access 
for ongoing benefits for eligible households.
    (vi) Any card issued as part of the implementation of the photo EBT 
card option may not count against the

[[Page 89841]]

household with respect to card replacement fees or the card replacement 
threshold defined in Sec.  274.6(b).
    (7) Prorating household benefits when photo EBT cards are 
mandatory. For multi-person households, State agencies shall not 
withhold benefits for an entire household because nonexempt household 
members do not comply with the photo EBT card policy. If benefits of 
the nonexempt household member(s) are to be withheld, a prorated share 
of benefits shall be issued to the household member(s) that are in 
compliance with or are exempt from the photo requirement. For example, 
if there are four household members and one household member is not in 
compliance with the photo requirement, 3-4 of the household's monthly 
benefit allotment must be issued, and 1-4 of the benefit allotment must 
be held in abeyance and allowed to accrue until the household member 
complies. For a single person household, the State agency would hold 
all the benefits in abeyance until the household complies.
    (8) Benefits held for noncompliance. Benefits held for 
noncompliance with the photo EBT card requirement must be withheld from 
issuance in accordance with paragraph (f)(7) of this section. Benefits 
withheld for noncompliance shall not remain authorized for perpetuity, 
and States must treat such benefits in accordance with the same 
timeframe used for handling expungements under Sec.  274.2(h)(2). If 
the noncompliant member comes into compliance, the non-expired benefits 
must be issued within two business days of when the State agency 
obtains the client photo. Any action to withhold benefits from issuance 
is subject to fair hearings in accordance with 7 CFR 273.15.
    (9) Household and authorized representative card usage. The State 
agency must establish procedures to ensure that all appropriate 
household members and authorized representatives (including individuals 
permitted by the household to purchase food or meals on their behalf, 
as provided for in 7 CFR 273.2(n)(3) and Sec.  274.7(a)), can access 
SNAP benefits for the household regardless of who is pictured on the 
card or if there is no picture. States shall not require households to 
notify or provide the State information regarding individuals making 
purchases permitted by the household on an ad-hoc basis.
    (10) Client and staff training. State agencies must ensure staff 
and clients are properly trained on photo EBT card requirements. At a 
minimum, this training shall include: Whether the State option is 
voluntary or mandatory, who must comply with the photo requirement, 
which household members are exempt, and that all appropriate household 
members and authorized representatives (including individuals permitted 
by the household to purchase food or meals on its behalf) are able to 
use the card regardless of who is pictured on the card or if there is 
no picture.
    (i) All staff and client training materials must clearly describe 
the following statutory and regulatory requirements:
    (A) Retailers must allow all appropriate household members and 
authorized representatives (including individuals permitted by the 
household to purchase food or meals on its behalf), regardless of 
whether they are pictured on the card, to utilize the card without 
having to submit additional verification of identity as long as the 
transaction is secured by the use of the PIN;
    (B) EBT cards with or without a photo are valid in any State; and
    (C) Retailers must treat all SNAP clients in the same manner as 
non-SNAP clients;
    (ii) State agencies may not specifically reference which categories 
of individuals are exempt from the photo EBT requirement in any 
materials to retailers.
    (11) Retailer education and responsibility. State agencies must 
conduct sufficient education of retailers if photos are used on cards. 
The State agency must clearly inform all retailers in the State and 
contiguous areas of implementation. State agency communications with 
retailers must clearly state:
    (i) All household members and authorized representatives (including 
individuals permitted by the household to purchase food or meals on its 
behalf) are entitled to use the EBT card regardless of the picture on 
the card if the EBT card is presented with the valid PIN;
    (ii) Retailers must treat all SNAP clients in the same manner as 
non-SNAP clients in accordance with 7 CFR 278.2(b);
    (iii) Retailers must not prohibit individuals who have a EBT card 
and valid PIN, including but not limited to authorized representatives 
(including individuals permitted by the household to purchase food or 
meals on its behalf), from using an EBT card because they are not 
pictured on the card or there is no picture on the card;
    (iv) EBT cards from any State are valid with or without a photo.
    (12) Interoperability. Interoperability of EBT cards will remain 
the same regardless of whether or not there is a photo and regardless 
of which State issued the card. State agencies must conduct sufficient 
education of clients and retailers, including retailers in contiguous 
areas, to inform them that the photo EBT cards remain interoperable and 
authorized retailers must accept EBT cards from all States as long as 
the user has a valid PIN.
    (13) Advance Planning Document. Appropriate implementation and 
administration of the photo EBT card consistent with all applicable 
requirements is an allowable State administrative cost that FNS shall 
reimburse at 50 percent in accordance with 7 CFR part 277. Increased 
costs related to placing photos on the EBT card, whether contractual or 
produced from other sources, require an Implementation Advance Planning 
Document Update.
    (14) Implementation Plan. (i) State agencies must submit an 
Implementation Plan for approval prior to implementation that 
delineates how the State agency will operationalize the photo EBT 
option. FNS shall review the plan and issue an approval, request 
modifications prior to granting approval or issue an approval subject 
to conditions. In cases where FNS finds that the steps outlined in the 
Implementation Plan are not sufficient for a successful implementation, 
FNS may deny the Implementation Plan or issue an approval subject to 
conditions, such as requiring the State agency to implement a 
successful pilot in a selected region of the State before a statewide 
implementation. Should a State be required to implement a pilot before 
statewide implementation, that requirement would be documented in the 
State's Implementation Plan approval, along with any information the 
State must report to FNS before expansion approval would be provided by 
FNS.
    (ii) State agencies must demonstrate successful administration of 
SNAP based on SNAP performance standards as established in paragraph 
(f)(1) of this section. State agencies shall not issue EBT cards with 
photos before the State's Implementation Plan is approved and the State 
agency has also received FNS authorization to proceed to issue photo 
EBT cards.
    (iii) The Implementation Plan shall include but not be limited to:
    (A) A description of card issuance procedures;
    (B) The text required at paragraph (b)(5)(ii) of this section;
    (C) A detailed description of how client protections and ability to 
use SNAP benefits will be preserved;

[[Page 89842]]

    (D) Specific information about exempted recipients, the State 
agency's exemption criteria, and how it will address the needs of 
household members with hardships;
    (E) A description of how the State agency will obtain photographs 
for the EBT card;
    (F) The procedures for opting into a voluntary photo EBT card 
policy and how the State agency will document that a household 
voluntarily chose to have a photo on its EBT card;
    (G) Training materials and training plans for State agency staff;
    (H) A description of any planned stakeholder assistance with 
implementation;
    (I) Communication plans for informing clients, retailers and other 
stakeholders of the State agency's photo EBT card policy, including 
copies of letters and other materials communicating the policy to 
clients, retailers, and other stakeholders. Communication plans must 
describe compliance with language requirements at 7 CFR 272.4(b);
    (J) A timeline for the implementation; and
    (K) Draft memoranda of understanding if the State agency plans to 
share SNAP client data in accordance with 7 CFR 272.1(c) for purposes 
of implementing its photo EBT card option. The memoranda of 
understanding must state how any information collected will be securely 
stored and that the information can only be shared for the purpose of 
SNAP in accordance with 7 CFR 272.1(c).
    (iv) The Implementation Plan shall also address the anticipated 
timetable with specific action steps for the State agency and 
contractors, if any, that may be involved regarding implementation of 
the photo EBT card option, the State agency's capacity to issue photo 
EBT cards, and the logistics that shall allow for activation of the 
photo EBT card simultaneously or followed by deactivation of the active 
non-photo EBT card. This shall also include the description of the 
capacity at the facility where the photo EBT cards will be produced, 
both for transition and ongoing production, and confirmation that the 
State agency and any contractor will continue to meet regulatory time 
requirements for all EBT card issuances and replacements, including for 
expedited households. The Implementation Plan must also include 
indicators related to the photo EBT card implementation that the State 
will collect and analyze for the post implementation evaluation 
required by paragraph (f)(16) of this section in addition to the 
State's approach for continued oversight, which may include activities 
as such as the use of test shoppers.
    (v) The State agency shall provide all applicable proposed written 
policy for staff to implement the photo EBT card option to FNS for 
review. State agencies shall include copies of all materials that will 
be used to inform clients, retailers and other stakeholders regarding 
photo EBT card implementation. In addition, the State agencies shall 
provide a detailed description of how the notifications, communication, 
policies, and procedures regarding the implementation of any new photo 
EBT card option will comply with applicable civil rights laws specified 
at 7 CFR 272.4(b)and 272.6(a).
    (vi) The State agency's Implementation Plan shall also include: (A) 
An education component for retailers and clients to ensure all eligible 
household members and authorized representatives (including individuals 
permitted by the household to purchase food or meals on their behalf) 
are able to use the EBT card, and understand the timeframes associated 
with the implementation and rollout.
    (B) A description of the resources that will be in place to handle 
comments, questions and complaints from clients, retailers, and 
external stakeholders, and
    (C) A description of procedures to address unexpected events 
related to the photo EBT card option.
    (vii) Upon approval of the Implementation Plan by FNS, the State 
may proceed with tasks described in the Implementation Plan, as 
modified by the approval, but may not proceed to issuing actual cards 
until it receives FNS authorization to do so. FNS may also require the 
State to implement in a phased manner, which may include criteria as 
determined by the Secretary.
    (15) Authorization to issue photo EBT cards. States agencies shall 
not be permitted to issue EBT cards with photos until FNS provides an 
explicit authorization to issue photo EBT cards. After an 
Implementation Plan is approved, FNS will review the State agency's 
actions at an appropriate time interval to ensure that the process and 
steps outlined by the State agency in the Implementation Plan are 
fulfilled. In cases where the State agency has not acted consistently 
with the process and steps outlined in its photo EBT card 
Implementation Plan, FNS may deny authorization for the State agency to 
issue EBT cards with photos until the State agency has done so 
successfully.
    (16) Post implementation assessment and evaluation. State agencies 
must submit to FNS a post-implementation assessment that provides FNS 
with a report of the results of its implementation, including any 
issues that arose and how they were resolved, the degree to which State 
agency staff, clients and retailers properly understood and implemented 
the new provisions.
    (i) This report shall be delivered to FNS within 120 days of 
implementation. This report shall cover the first 90 days of 
implementation. The Department also reserves the right to conduct its 
own review of the State agency's implementation. The State agency's 
post-implementation report shall include at a minimum:
    (A) A survey of clients conducted by an independent evaluator to 
demonstrate the clients' clear understanding of the State agency's 
photo EBT policy;
    (B) A survey of retailers conducted by an independent evaluator 
that demonstrates evidence that at least 80 percent of retailers, 
including smaller independent retailers, demonstrate a full 
understanding of the policies related to the photo EBT card, which may 
include the use of test shoppers;
    (C) The amount and percent of benefits held for noncompliance if 
mandatory;
    (D) The number and percent of households with photo EBT cards;
    (E) The number of households affected by withholding for 
noncompliance, if mandatory;
    (F) The number and percent of households exempt from the photo EBT 
card requirement if mandatory;
    (G) The number and percent of exempted households who opted for 
photo EBT cards if mandatory;
    (H) The number and scope of complaints related to the 
implementation of the policy;
    (I) The State agency's Case and Procedural Error Rate; and
    (J) SNAP performance metrics as established in paragraph (f)(1) of 
this section and other SNAP performance metrics that may have been 
adversely affected by the implementation of the State agency's photo 
EBT card option, as determined by the Secretary.
    (ii) [Reserved]
    (17) Ongoing monitoring. FNS will continue to monitor and evaluate 
the operation of the option. State agencies shall provide FNS 
additional information upon request or as may be required by other 
guidelines established by the Secretary to conduct such evaluations.
    (18) Modifying implementation of photo EBT card option. If any 
review or evaluation of a State's operations, including photo EBT 
operation implementation, finds deficiencies, FNS

[[Page 89843]]

may require a corrective action plan consistent with 7 CFR 275.16 to 
reduce or eliminate deficiencies. If a State does not take appropriate 
actions to address the deficiencies, FNS would consider possible 
actions such as requiring an updated photo EBT Implementation Plan, 
suspension of the photo EBT policy and/or withholding funds in 
accordance with 7 CFR 276.4.

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

0
6. In Sec.  278.2, revise paragraph (h) and remove and reserve 
paragraphs (i) and (k).
    The revision reads as follows:


Sec.  278.2   Participation of retail food stores.

* * * * *
    (h) Identifying benefit users. Retailers must accept payment from 
EBT cardholders who have a valid PIN regardless of which State the card 
is from or whether the individual is pictured on the card. Where photo 
EBT cards are in use, the person presenting the photo EBT card need not 
be pictured on the card, nor does the individual's name need to match 
the one on the card if the State includes names on the card. However, 
benefits may not knowingly be accepted from persons who have no right 
to possession of benefits. If fraud is suspected, retailers shall 
report the individual to the USDA OIG Fraud Hotline.
* * * * *

    Dated: December 7, 2016.
Audrey Rowe,
Acting Under Secretary for Food, Nutrition, and Consumer Services.
[FR Doc. 2016-29841 Filed 12-12-16; 8:45 am]
 BILLING CODE 3410-30-P