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PA Bulletin, Doc. No. 21-1690



[ 7 PA. CODE CH. 160 ]

State Food Purchase Program Regulations

[51 Pa.B. 6399]
[Saturday, October 9, 2021]

 The Department of Agriculture (Department) proposes to amend Chapter 160 (relating to State Food Purchase Program) to read as set forth in Annex A.

Statutory Authority

 This proposed rulemaking is authorized under the general authority in section 3(a) of the State Food Purchase Program Act (act) (62 P.S. § 4043(a)) and the specific regulatory authority set forth in section 9 of the act (62 P.S. § 4049).

Purpose of the Regulation

 This proposed rulemaking will increase the income threshold cap for the State Food Purchase Program (Program) from the current 150% of the poverty level established by the United States Department of Agriculture (USDA) to 185%. This proposed rulemaking will amend the heading of Part VII from ''Bureau of Government Donated Food'' to ''Bureau of Food Assistance'' to align the name change of the Bureau.


 On October 7, 2020, the Emergency Food Assistance Advisory Committee recommended that the income threshold for the Program be increased from the current 150% to 185% of the poverty level established by the USDA. Specifically, § 160.5(b) (relating to eligibility of persons to participate) presently provides that ''persons shall be eligible to be Program participants if their incomes do not exceed 150% of the poverty levels established by the USDA.'' Presently, 66 out of 67 Pennsylvania counties do not have procedures and guidelines for determining the eligibility level for Program participants. Those counties, therefore, rely upon the Department's existing regulations. (Montgomery County has established its own poverty income level at 185%.) These regulations were adopted on October 28, 1994, and have been effective since October 29, 1994. The Department believes for the following reasons, it is appropriate to amend this regulation.

 Increasing the threshold to 185% would allow the charitable feeding network to feed more food insecure Pennsylvanians who make just above the current income limit and would bring the Program in line with the eligibility limits set for several other food assistance programs, including the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) (7 CFR 246.7(d)(1) (relating to certification of participants)), reduced-price school breakfasts and school lunches provided through the National School Lunch and Breakfast Programs (7 CFR 245(3) (relating to determining eligibility for free and reduced price meals and free milk in schools)), the WIC Farmers' Market Nutrition Program (7 CFR 248.6(a) (relating to recipient eligibility) and the Senior Farmers' Market Nutrition Program and (7 CFR 249.6(a)(3) (relating to participant eligibility)) within this Commonwealth.

 Increasing the income eligibility threshold for the Program would allow the Department to administratively raise this Commonwealth's income eligibility threshold for The Emergency Food Assistance Program (TEFAP). Under the USDA's regulations in 7 CFR 251.5(b) (relating to eligibility determinations), state agencies must set income-based standards for TEFAP eligibility and determine the methods by which households may demonstrate eligibility under these standards. Currently, the income limit for TEFAP in this Commonwealth is kept commensurate with the Program and increasing it to 185% would bring this Commonwealth in line with the TEFAP income limit of 20 other states, including Delaware, the District of Columbia, New Jersey and West Virginia. Currently, only 17 states (including Pennsylvania) have an income threshold set at or below 150%.

 According to 2019 food insecurity data provided by Feeding America, 10.6% of all residents in this Commonwealth—1,353,730 people—did not always know where their next meal was coming from. That number included 383,500—or 14.6%—of all children in this Commonwealth. In 2020, as a result of the novel coronavirus (COVID-19) pandemic, these numbers grew substantially. According to a series of data analysis reports compiled by Feeding America looking at the impact of coronavirus on food insecurity, the number of Pennsylvanians facing food insecurity is projected to have grown to 13.8% in 2020, an increase of 30%. Even more startling, they project that the percentage of children in our State facing food insecurity rose to 20.4%, an increase of 40% in just 1 year. (See, 2019 and 2020 data looking at impact of coronavirus on food insecurity at

 With a growing number of food insecure Pennsylvanians, and a decreasing supply of food that is not tied to an income test, there are fewer and fewer food resources currently available to those who are food insecure but make just too much to qualify. Increasing the income threshold to 185% of the poverty level for the Program—and by administrative extension to TEFAP—will allow food banks to more easily and efficiently serve the increasing numbers of people who are seeking out their services. Lastly, this proposed rulemaking will bring us more in line with the income eligibility thresholds of several other Federal food assistance programs and with many of our neighboring states in the Mid-Atlantic Region.

 This proposed rulemaking seeks to formally amend the name ''Bureau of Government Donated Food'' as presently set forth in the heading of Part VII and in § 160.13 (relating to filing the grant agreement) to the ''Bureau of Food Assistance.'' On May 15, 2019, the Executive Board, by Resolution No. OR-19-007, approved the change to the Bureau's name as requested by the Secretary of Agriculture under sections 212 and 709(b) of The Administrative Code of 1929 (71 P.S. §§ 72 and 249(b)).

 In summary, the Department is satisfied there is a need for this proposed rulemaking and that it is otherwise consistent with Executive Order 1996-1, Regulatory Review and Promulgation.

Fiscal Impact

Commonwealth. The Department does not expect that this proposed rulemaking will have a fiscal impact on the Department or other Commonwealth agencies.

Political subdivisions. This proposed rulemaking will have no appreciable fiscal impact on political subdivisions of this Commonwealth.

Private sector. This proposed rulemaking will not have a fiscal impact on the private sector other than for those who elect to participate in the Program as previously set forth.

General public. This proposed rulemaking will have no fiscal impact on the general public.

Paperwork Requirements

 This proposed rulemaking will have no impact on the paperwork handled by the Department.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on September 29, 2021, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs. A copy of this material is available to the public upon request and is available on the Department's web site at

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to this proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Department, the General Assembly and the Governor.

Effective Date

 This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

Public Comments

 Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking within 30 days after the date of publication in the Pennsylvania Bulletin. Public comments should be addressed to Caryn Long Earl, Director, Bureau of Food Assistance, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408.

Contact Person

 The contact person for technical questions about this proposed rulemaking is Assistant Counsel, Jorge M. Augusto, (717) 787-8744,


Fiscal Note: 2-195. No fiscal impact; (8) recommends adoption.

Annex A




§ 160.5. Eligibility of persons to participate.

 (a) Primary determinant. If the county government, lead agency or emergency food provider administering the Program within a particular county has established procedures and guidelines for determining whether persons are eligible to participate in the Program, these procedures and guidelines shall be the sole determinant of eligibility.

 (b) Department guidelines. In counties where the county government, lead agency or emergency food provider administering the Program does not have procedures and guidelines for determining the eligibility of persons to be Program participants, persons shall be eligible to be Program participants if their incomes do not exceed [150%] 185% of the poverty levels established by the USDA.

§ 160.13. Filing the grant agreement.

 (a) Place and time. The grant agreement shall be completed by the county government, the lead agency or the appropriate emergency food provider and returned to the Department of Agriculture, Bureau of [Government Donated Food] Food Assistance, 2301 North Cameron Street, Room 401, Harrisburg, PA 17110-9408 by June 1 immediately preceding the start of the fiscal year, or 30 days prior to the commencement of the grant agreement if the grant agreement is to commence on a date other than the start of the fiscal year.

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[Pa.B. Doc. No. 21-1690. Filed for public inspection October 8, 2021, 9:00 a.m.]

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