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PA Bulletin, Doc. No. 22-660




[7 PA. CODE CH. 160]

State Food Purchase Program Regulations

[52 Pa.B. 2699]
[Saturday, May 7, 2022]

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

Statutory Authority

 This final-form 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 final-form rulemaking increases 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 final-form rulemaking amends 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 counties in this Commonwealth 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% allows 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 (7 CFR 249.6(a)(3) (relating to participant eligibility)) within this Commonwealth.

 Increasing the income eligibility threshold for the Program allows 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 COVID-19 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, Feeding America projects 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 https://feeding

 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—allows food banks to more easily and efficiently serve the increasing numbers of people who are seeking out their services. Lastly, this final-from rulemaking brings this Commonwealth 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 final-form rulemaking formally amends 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)).

Comments to the Proposed Rulemaking

 The Department published a notice of proposed rulemaking at 51 Pa.B. 6399 (October 9, 2021), for 30 days of public comment. The Department did not receive any public comments relating to the proposed rulemaking. The Independent Regulatory Review Commission (IRRC) reviewed the proposed rulemaking and informed the Department that it had no objections, comments or recommendations to offer on the proposed rulemaking. The Department did not receive any comments from the House Agriculture and Rural Affairs Committee or the Senate Agriculture and Rural Affair Committee as part of their review of the proposed rulemaking under the Regulatory Review Act (71 P.S. §§ 745.1—745.14).

Fiscal Impact

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

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

Private sector. This final-form 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 final-form rulemaking will have no fiscal impact on the general public.

Paperwork Requirements

 This final-form rulemaking will have no impact on the paperwork handled by the Department.

Effective Date

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

Additional Information

 Additional information may be obtained from Caryn Long Earl, Director, Bureau of Food Assistance, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408, (717) 772-2688,

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 the proposed rulemaking, published at 51 Pa.B. 6399, to IRRC and to the Chairpersons of the House and Senate Agriculture and Rural Affairs Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, the Department shall submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested. No comments were received.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on February 18, 2022, the final-form rulemaking was deemed approved by the House and Senate Agriculture and Rural Affairs Committees. Under section 5.1(e) of the Regulatory Review Act, on March 20, 2022, because it had no comments on the proposed rulemaking and the Department did not amend the rulemaking, IRRC deemed the final-form rulemaking approved under section 5(g) of the Regulatory Review Act.


 The Department finds that:

 (1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).

 (2) A public comment period was provided as required by law and no comments were received.

 (3) This final-form rulemaking does not include any amendments that would enlarge the scope of the proposed rulemaking published at 51 Pa.B. 6399.

 (4) These regulations are necessary and appropriate for the administration of the authorizing statute.


 The Department, acting under its authorizing statute, orders that:

 (a) The regulations of the Department, 7 Pa. Code Chapter 160, are amended by amending §§ 160.5(b) and 160.13 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Department shall submit this final-form rulemaking to the Office of the Attorney General and the Office of General Counsel for approval as required by law.

 (c) The Department shall submit this final-form rulemaking to IRRC and the applicable standing committees as required by law.

 (d) The Department shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.

 (e) This final-form rulemaking shall take effect immediately upon publication in the Pennsylvania Bulletin.


 (Editor's Note: See 52 Pa.B. 2087 (April 2, 2022) for IRRC's approval order.)

Fiscal Note: Fiscal Note 2-195 remains valid for the final adoption of the subject regulations.

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 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 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. 22-660. Filed for public inspection May 6, 2022, 9:00 a.m.]

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