03-15897. Food Stamp Program: Electronic Benefit Transfer (EBT) Systems Interoperability and Portability

AGENCY:

Food and Nutrition Service, USDA.

ACTION:

Final rule.

SUMMARY:

This action provides final rulemaking for an interim rule published on August 15, 2000. It implements legislation in accordance with the Electronic Benefit Transfer Interoperability and Portability Act of 2000. This rule finalizes revisions to the Food Stamp Program regulations to ensure that recipients can use their electronic food stamp benefits across state borders. The regulations require interoperable state electronic issuance systems and establish national standards to achieve this requirement. One hundred percent Federal funding is available to pay for the operational cost of this functionality, up to a national annual limit of $500,000. Costs beyond this level will be covered at the standard fifty percent program reimbursement rate for State administrative costs. Based on the Department's experience to date, it is not expected that costs will exceed $500,000.

DATES:

This rule is effective July 25, 2003.

FOR FURTHER INFORMATION CONTACT:

Lizbeth Silbermann, Chief, Electronic Benefit Transfer Branch, Benefit Redemption Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 22302, or telephone [phone].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

Executive Order 12372

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth 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, Federalism

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments and consult with them as they develop and carry out those policy actions. The Food and Nutrition Service (FNS) has considered the impact of this rule which requires mandatory interoperability of Food Stamp Program Electronic Benefit Transfer (EBT) Systems and portability of electronically-used benefits nationwide in accordance with specific requirements set forth in the Electronic Benefit Transfer Interoperability and Portability Act of 2000. FNS is not aware of any case where any of these provisions would in fact preempt State law and no comments were made to that effect. This rule also does not impose substantial direct compliance costs on State and local governments. Some of the provisions, although not previously required by food stamp regulations, have already been implemented by State agencies and, therefore, have no incremental costs associated with them. Furthermore, the Federal government will pay 100 percent for the cost of switching and settling interstate food stamp transactions, up to an annual nationwide limit of $500,000. Under current pricing trends, there is no indication that total costs for switching and settling interstate food stamp transactions will exceed the limit. Should this occur, however, State agencies will continue to be paid at the 50 percent reimbursement rate for the amount above the limit. The provisions implemented by this rule are mandated by the Electronic Benefit Transfer Interoperability and Portability Act of 2000, Public Law No. 106-171. Therefore, a federalism summary impact statement is not necessary under Section 6 of Executive Order 13132.

Regulatory Flexibility Act

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Eric M. Bost, Under Secretary for Food, Nutrition, and Consumer Services, has certified that this rule will not have a significant economic impact on a substantial number of small entities. State welfare agencies will be the most affected to the extent that they administer or operate EBT services for Food Stamp Program benefit delivery.

Paperwork Reduction Act

This rule does not alter the reporting or recordkeeping requirements contained in the interim rule. Those requirements have been previously approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 and assigned OMB control number 0348-0004 for the SF-270 (Request for Advance or Reimbursement) and 0348-0038 for the SF-269A (Financial Status Report—Short Form).

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have a 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 so specified in the DATES paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be followed. In the Food Stamp Program, the administrative procedures are as follows: (1) For Program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(11) and 7 CFR 273.15; (2) for State agencies—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-quality control (QC) liabilities) or 7 CFR Part 283 (for rules related to QC liabilities); (3) for Program retailers and wholesalers—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.

Public Law 104-4

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub.L. 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, FNS 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 FNS 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 contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Background

In this rule, the U.S. Department of Agriculture (Department), FNS finalizes revisions to the Food Stamp Program (FSP) regulations to require interoperability of all State EBT Systems and portability of all electronically-issued benefits. This requirement is in accordance with the Electronic Benefit Transfer Interoperability and Portability Act of 2000, Pub. L. 106-171, (hereinafter “Pub. L. 106-171”) which amended Section 7(k) of the Food Stamp Act of 1977, 7 U.S.C. 2016(k), to mandate nationwide interoperability of FSP EBT systems and portability of electronically issued benefits and directs the Secretary to establish standards to accomplish this. In accordance with the regulations promulgated by the Secretary, the Department will pay one hundred percent of the costs incurred by a State agency for switching and settling transactions, up to an annual limit of $500,000 nationwide. Pub. L. 106-171 required the Department to promulgate regulations to require interoperability and establish a uniform national standard of interoperability for Food Stamp EBT systems within 210 days of its enactment. In order to meet this requirement, interim regulations were published in the Federal Register on August 15, 2000 at 65 FR 49719. This final action takes the comments received in response to the interim rulemaking into account. Readers are referred to the interim regulation for a more complete understanding of this final action.

Readers should note that another EBT rule was published in the Federal Register at around the same time that the interim interoperability rule was published. That rule, EBT Provisions of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (65 FR 59105, October 4, 2000), redesignated several paragraphs in the EBT regulations. Therefore, readers should refer to the Code of Federal Regulations (CFR) for the most accurate regulatory citations of provisions implemented by the interim rule. Furthermore, this rule reinstates a paragraph from the August 15, 2000 interim Interoperability rule that was inadvertently deleted by the October 4, 2000 EBT Provisions of the PRWORA rule regarding the interoperability funding provisions.

Comments on the interim rule were solicited through November 13, 2000. Eight comment letters were received in response to the interim rule. Comments were received from 5 State agencies, one retailer association, one EBT processor, and one public interest group. This final rule makes one revision to the interim regulations, taking into consideration all comments received.

In general, the commenters supported EBT system interoperability and food stamp benefit portability. Various provisions of the interim rule mandated interoperability of FSP EBT systems and the portability of FSP benefits by requiring: The use of the EBT standard message format; the establishment of the necessary telecommunication links; the use of an Issuer Identification Number on the State's EBT card; and the use of the Retailer EBT Data Exchange (REDE) system. The rule also provides for 100 percent enhanced Federal funding for the cost of switching and settling interstate EBT food stamp transactions, up to an annual nationwide limit of $500,000. The specific provisions are discussed below.

Interoperability Mandate

The interim rule mandated that each State agency implement the functionality for nationwide interoperability of their EBT systems and portability of electronically-issued food stamp benefits by October 1, 2002. The interim rule provided for exemptions from the deadline for State agencies with signed contracts before October 16, 2000 until they re-negotiate or reprocure their EBT contracts. The rule also exempted Smart Card systems from the mandate until the Department determines that a practicable technological method is available for interoperability with on-line systems. We received no comments opposing the mandate. Three commenters expressed support for the interoperability and portability of FSP benefits because it ensures that food stamp recipients will be able to use their food stamp benefits at authorized retail stores across the country in the same way they were able to use paper food coupons.

System Standards for Interoperability

The interim rule established uniform national standards of interoperability and portability based on the standards used by a majority of State agencies. Although the Departmental standards are based on the Quest Operating Rules (hereinafter “Quest”), which have already been adopted by a majority of State agencies, the Department did not adopt Quest in its entirety. Instead the Department chose to require only those components that are essential to interoperability. One commenter supported this decision because it allows the Quest standards to be modified to reflect the emerging industry practices without the burden of obtaining a change in federal regulation. However, two other commenters opposed it, believing that all State agencies should follow the Quest rules to ensure standardization and, therefore, nationwide interoperability.

The Department is aware of no other technical standards, other than those established in the rule, that are fundamental to the achievement of nationwide interoperability. Furthermore, the Quest rules contain requirements that are not essential to interoperability but that would require procedural and card modifications at an expense to the State agencies that have chosen not to adopt the Quest rules. If the Department were to require all State agencies to adopt the Quest rules in their entirety, this would impose added burdens, costs, and rigidity without strong justification. Accordingly, this rule maintains the interoperability standards established in the interim rule and does not specifically require State agencies to adopt Quest.

ISO 8583 Message Format

The interim final rule required State agencies to use the International Organization for Standards (ISO) 8583 message format, modified for EBT, in order to facilitate interstate transactions. One commenter opposed language which requires State agencies to adopt the ISO 8583 message format in “a version mutually agreed to between the authorization agent and the party connected for all transactions.” Instead, the commenter supported adoption of the ISO standard currently being developed by the American National Standards Institute (ANSI) X9A11 EBT Working Group. The Department would like to clarify that the provision requires State agencies to use the ISO 8583 message format as updated by the American National Standards Institute (ANSI). The requirement refers to the base 8583 message format in order to provide enough flexibility to ensure automatic updates of the message format by State agencies without the need to issue new regulations in the future. The Department, therefore, would expect State agencies to update the message format specifications of their respective EBT systems in accordance with the most current version of the ISO 8583 message format upon adoption by ANSI or reprocurement of a State EBT contract.

Issuer Identification Number (IIN)

The interim final rule requires that the Primary Account Number (PAN) on the State-issued EBT card be standardized to include State routing information so that transactions can be routed to the appropriate State system for authorization, regardless of the transaction's point of origin. There were no comments opposing the requirement to include the Issuer Identification Number (IIN) in the PAN. However, one commenter requested clarification regarding the use of the term “IIN”, and opposed the requirements regarding the distribution and updating of the State IIN files.

Specifically, the commenter requested clarification as to whether an “IIN” is the same as a Bank Identification Number (BIN). We consider the two terms to be interchangeable. We chose to use the term, “IIN,” because the number is used to route transactions to the various State authorization systems and not to banking institutions as the term “BIN” implies.

The commenter also opposed language which requires each State agency to be responsible for distributing all State IINs to each retailer, processor, or acquirer that is directly connected to the State's authorization system. Instead, the commenter believes that State IIN distribution should be the responsibility of the Federal government to avoid excessive and redundant updates. We are in agreement that redundant updates of IIN information should be avoided. However, in the time since FNS published the interim rule, several State agencies implemented interoperability without any indications of redundant IIN distribution, nor was redundant IIN distribution raised as a possible issue by any of the parties involved.

Although the Department is directing the interoperability provisions to all 53 State agencies, most State agencies delegate responsibilities to their prime EBT contractor or other designated agent of the State. This results in many fewer entities involved in the IIN dissemination process. Furthermore, because FNS does not have a direct relationship with the processors or acquirers that are directly connected to the State agency's authorization system, having FNS be responsible for distributing IINs to those entities would place a greater burden on State agencies. Each State agency would be responsible for ensuring that FNS has the most current listing and contact information of such entities. State agencies would also need to inform FNS when a new processor or acquirer enters the system and necessitates the IIN information. Therefore, the requirement that each State agency be responsible for the distribution of State IINs is unchanged in this rule.

The commenter further questioned how a State agency could ensure that parties not directly connected to its system update their IIN information. Because of the several different levels of third party service providers and acquirers involved in the routing of EBT transactions, we understand the commenter's concern with getting information updated throughout the system. State agencies must, therefore, use the required third party processor (TPP) agreements to ensure that IIN files or routing tables are updated by all entities involved. These are the agreements each State agency is required to enter into with a TPP or acquirer directly connected to its authorization system. Once the agreements are in place, each TPP or acquirer has primary responsibility for having all the State IINs loaded into its system.

Third Party Processor

One comment was received regarding the third party processor interface requirements. The interim rule requires each terminal operator to interface directly with a State authorization system or with a third party service provider to obtain access to one or more State authorization systems. The commenter opposed the provision, believing that it does not allow retailers to connect directly to a State agency's EBT processor. We would like to clarify that, by referencing direct interfaces with a State's authorization systems, we are referring to interfaces with a State agency's EBT processor or transaction switching agent. The purpose of the provision is to ensure that terminal operators make the necessary accommodations that will enable them to accept EBT cards from all States without requiring a system with multiple connections. Therefore, giving terminal operators the option to directly connect with a State's authorization system or with a third party processor provides them with the flexibility to establish the required interfaces in an efficient manner.

FNS REDE System

The interim final rule requires State agencies or their designated agent to access the FNS automated REDE system to update retailer authorization information on a daily basis. The requirement ensures that State agencies' EBT systems are using the most current Federally posted information on retailer authorizations nationwide when approving in-State and out-of-State EBT transactions. The requirement also helps to improve the efficiency of retailer operations overall. One commenter considered the requirement an unnecessary, time-consuming, and unfunded mandate due to the added time needed for additional “checks.” We would like to clarify that transactions do not actually touch the national REDE file. Instead, the contractor uses the REDE file to update its own retailer database which is used to authorize transactions. While we understand that this is a new requirement, most State agencies or their vendors were already accessing REDE voluntarily prior to the publication of the interim rule because the manual process of receiving updated information via telefax or e-mail was more cumbersome. Currently, all State agencies that operate an EBT system are using the FNS automated REDE system. None of these State agencies have indicated that the system is overly burdensome. Furthermore, the requirement that State agencies access the REDE system on a daily basis is consistent with the level of importance we place on ensuring that food stamp benefits be approved only at authorized retailer locations.

The commenter also asked for clarification on State agencies' responsibility for the accuracy of the REDE file. This provision does not make State agencies responsible for the accuracy of the REDE file, but rather for downloading REDE updates on a daily basis.

Border Stores and Manual Vouchers

Except where necessary for border store access, the interim final rule excludes manual transactions from the interoperability requirements. In general, commenters were in support of the requirement that manual transactions continue to be interoperable in border stores necessary for access, with one commenter stating that all EBT retailers should be able to process interstate manual transactions nationwide. However, two commenters opposed the requirement that any retailer be required to process interstate manual transactions because of the administrative burden to the retailer. Although we understand this concern, border store retailers are already required to have the capability to participate in the neighboring State EBT system via a manual voucher process when the system is down or if the retailer is not equipped with a POS device. The requirement is in place because border stores, by definition, are necessary for clients to be able to make food stamp purchases without having to travel excessive distances. State agencies must, therefore, ensure that there is a process in place for these clients to purchase food regardless of system availability at the time. Given the high degree of client dependence on these stores and because the interim rule does not place an additional burden on these retailers, the Department is maintaining the manual voucher requirement in the final rule.

Benefit Conversion

The interim rule requires State agencies to have the capability to convert electronic benefits to paper coupons when the household relocates to a State that is not interoperable with, and where electronic benefits are not portable from, the household's current State of residence. One commenter opposed the requirement because retailers are increasingly reluctant to accept coupons from recipients and banks are refusing to redeem coupons for retailers. Although other commenters did not oppose the requirement under current EBT implementation realities, they wanted acknowledgement that coupons will soon become obsolete.

The Department is indeed preparing for the time when paper coupons will no longer be needed. The Department is also sympathetic to State agency concerns that as EBT is implemented in the remaining State agencies, coupons will become increasingly unfamiliar to both clients and retailers. Currently, there are only six State agencies that do not have a Statewide EBT system in place. Four of these State agencies are scheduled to have EBT fully implemented within the next year, at which time approximately 95 percent of all food stamp benefits will be issued electronically.

The Department is also mindful, however, of Ohio and Wyoming's indefinite off-line exemptions from the interoperability requirements. Although many third party processor stores in these two States are able to accept out-of-State EBT cards, no retailers in the other States can accept the Ohio and Wyoming EBT smartcards. Therefore, the long-term impacts of eliminating the benefit conversion requirement would affect Ohio and Wyoming clients who move to another State. Estimates indicate that one percent of a State agency's caseload moves to another State in a given year. Currently, Ohio converts to coupons approximately $92,000 in benefits a year. Wyoming converts approximately $4,000 in benefits a year.

Given the limited instances in which benefit conversion would be necessary, the Department is convinced that requiring each State agency to have a benefit conversion process in place is no longer justified. Therefore, the Department is making optional the requirement that State agencies be able to convert electronic benefits to paper coupons when a household relocates to a State that is not interoperable with the household's current State of residence. However, clients must still be able to use their remaining electronic benefits upon relocation.

State agencies that wish to rely on third party processor access when a client moves to another State will need to assist clients in finding a store where their out-of-State benefits can be used and, if necessary, work with other State EBT directors, store managers, or third party processors to get the State's IIN loaded into a store's IIN files or routing tables.

Since it is not yet technically feasible for EBT smartcards to be interoperable at this time, Ohio and Wyoming State agencies will need to continue converting benefits to coupons whenever a household moves to another State.

Funding Provisions

Pub. L. 106-171 provided one hundred percent Federal funding for the cost of switching and settling interstate food stamp transactions. The total amount of funding available annually is limited to $500,000. The $500,000 funding limit was based on a study of interoperability fees conducted by the National Automated Clearing House Association (NACHA). Four commenters opposed the funding limit stating that interoperability should be an obligation of the Federal government.

The Department does not have the discretion to change the amount of one hundred percent funding available for interoperability costs incurred by State agencies. Although only about half of all State agencies have requested interoperability funding to date, there is no indication that total interoperability costs will exceed the $500,000 limit given current pricing trends. In the event that interoperability costs do exceed the funding limit, State agencies will continue to be reimbursed at the fifty percent rate for the amount over the limit. Should such an instance occur, the Department expects the additional cost to individual State agencies to be nominal.

Other comments were raised regarding one hundred percent reimbursement for administrative fees related to interoperability that are passed onto State agencies. Public Law 106-171 (7 U.S.C. 2016(k)(6)A)) specifically states, “the Secretary shall pay 100 percent of the costs incurred by a State agency under this Act for switching and settling interstate transactions * * *.” Therefore, the legislation does not give the Department authority to provide one hundred percent Federal reimbursement for administrative costs related to interoperability. Accordingly, one hundred percent Federal funding for interoperability costs will continue to be limited to costs incurred specifically for switching and settling interstate food stamp transactions.

Two commenters expressed concern over the nature, amount and organization of billing information required to receive enhanced interoperability funding. The Department distributes to State agencies more detailed information on these requirements each fiscal year as part of the “Request for Interoperability Funding, Administrative Procedures.” This document includes specific procedures outside the regulatory process. We have worked closely with State agencies since the publication of the interim rule to make the request and payment process for interoperability funding as streamlined as possible within our regulatory constraints. As a result, we believe we have achieved a process that is agreeable to all parties involved and welcome continued input.

National Switch

We received three comments regarding FNS administration and control of a national switch (Gateway). Two commenters supported the development of a national switch while one commenter opposed it. In accordance with Pub. L. 106-171, the Department employed Phoenix Maximus to examine the feasibility of developing a Federal Gateway for handling interstate food stamp transactions. Although the report did not find technical barriers to having FNS support its own EBT transaction switch, it found that such an undertaking would not be cost effective. The Benton International Study of the interoperability costs of EBT transactions estimates that nationwide interoperability fees would amount to approximately $450,000 annually using private switches. In contrast, Phoenix Maximus estimates that the annual cost of operating a Federal EBT Gateway would be approximately $17 million. Another $2.2 million would be needed for initial implementation costs. Therefore, the Department is convinced that it would not be fiscally prudent to pursue the development of a Federal EBT Gateway at this time. As EBT expands across all States as the prevailing method for issuing food stamp benefits, we will continue to look into ways to make interoperability efficient and cost effective for all parties involved.

Disposition of Disputes, Error Resolution and Adjustments

Two commenters raised issues regarding the handling of disputes, error resolution, and adjustments across State lines. One commenter favored a specific reference to the Quest rules while the other commenter favored having FNS take the lead in facilitating standards for error resolution. The Department has chosen to define standards for error resolution within a separate rulemaking body. The EBT Benefit Adjustments Final Rule, published on July 5, 2000 at 65 FR 41321 specifically addresses the process for making retailers or clients whole when a system error occurs.

List of Subjects in 7 CFR Part 274

• Administrative practice and procedure
• Food stamps
• Fraud
• Grant programs—social programs
• Reporting and record keeping requirements
• State liabilities

Accordingly, the interim rule amending 7 CFR parts 272 and 274 which was published at 65 FR 49719 on August 15, 2000, as amended by the final rule which was published at 65 FR 59105 on October 4, 2000 is adopted as a final rule with the following changes:

PART 274—ISSUANCE AND USE OF COUPONS

1. The authority citation for 7 CFR Part 274 continues to read as follows:

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

2. In § 274.12:

a. Paragraph (g)(6)(i) is amended by revising the second sentence; and

b. Paragraph (l)(6) is correctly reinstated.

The revision and reinstatement read as follows:

§ 274.12

Electronic Benefit Transfer issuance system approval standards.

* * * * *

(g) * * *

(6) * * *

(i) * * * States must provide a means for a client to be able to use their benefits upon relocation. A State agency may convert electronic benefits to paper coupons if a household is relocating to a State that is not interoperable and where electronic benefits are not portable from the household's current State of residence, or assist clients in finding an authorized retail location where out-of-State electronic benefits can be used. * * *

* * * * *

(l) * * *

(6) State agencies may receive one hundred percent federal funding for the costs they incur for switching and settling all food stamp interstate transactions. For purposes of this section, the term “switching” means the routing of an interstate transaction that consists of transmitting the details of a transaction electronically recorded through the use of an EBT card in one State to the issuer of the card that is in another State; and the term “settling” means movement, and reporting such movement, of funds from an EBT card issuer located in one to a retail food store, or wholesale food concern, that is located in another State, to accomplish an interstate transaction. The total amount of one hundred percent funding available annually is limited to $500,000 nationwide. Once the $500,000 limitation is exceeded, federal financial participation reverts to the standard fifty percent program reimbursement rate and procedure. In order to qualify for this funding, the State agency must:

(i) Adhere to the standard of interoperability and portability adopted by a majority of State agencies for interoperability costs incurred for the period from February 11, 2000 through September 30, 2002;

(ii) Meet standards of interoperability and portability under paragraphs (e) and (h) of this section for costs incurred after September 30, 2002;

(iii) Sign and submit, in each fiscal year for which the State agency requests enhanced funding, an Interoperability Funding Agreement to comply with the administrative procedures established by the Department. The State agency must submit the signed agreement to the Department before the end of the fiscal year in which costs are incurred in order to qualify for payment for that fiscal year, and

(iv) Submit requests for payment on a quarterly basis after the end of the quarter in which interoperability costs are incurred, in accordance with the Department's administrative procedures. Requests for payments shall be due February 15 (for the period October through December), May 15 (January through March), August 15 (April through June), and November 15 (July through September). Requests for payment submitted after the required date for a quarter shall not be considered until the following quarter, when such requests for payments are scheduled to be processed.

* * * * *

Dated: June 17, 2003.

Eric M. Bost,

Under Secretary, Food, Nutrition, and Consumer Services.