PART 251—THE EMERGENCY FOOD ASSISTANCE PROGRAM Authority: 7 U.S.C. 7501-7516; 7 U.S.C. 2011-2036. Source: 51 FR 12823, Apr. 16, 1986, unless otherwise noted. Editorial Note: Nomenclature changes to part 251 appear at 89 FR 87228, Oct. 31, 2024. § 251.1 General purpose and scope. This part announces the policies and prescribes the regulations necessary to carry out certain provisions of the Emergency Food Assistance Act of 1983, (7 U.S.C. 612c note [51 FR 12823, Apr. 16, 1986, as amended at 64 FR 72902, Dec. 29, 1999] § 251.2 Administration. (a) Food and Nutrition Service. (b) State agencies. (c) Agreements Agreements between Department and States. (2) Agreements between State agencies and eligible recipient agencies, and between eligible recipient agencies. (d) Contents of agreements between State agencies and eligible recipient agencies and between eligible recipient agencies. (i) That eligible recipient agencies agree to operate the program in accordance with the requirements of this part, and, as applicable, part 250 of this chapter; and (ii) The name and address of the eligible recipient agency receiving USDA Foods and/or administrative funds under the agreement. (2) The following information must also be identified, either in the agreement or other written documents incorporated by reference in the agreement: (i) If the State agency delegates the responsibility for any aspect of the program to an eligible recipient agency, each function for which the eligible recipient agency will be held responsible; except that in no case may State agencies delegate responsibility for establishing eligibility criteria for organizations in accordance with § 251.5(a), establishing eligibility criteria for recipients in accordance with § 251.5(b), or conducting reviews of eligible recipient agencies in accordance with § 251.10(e); (ii) If the receiving eligible recipient agency is to be allowed to further distribute USDA Foods and/or administrative funds to other eligible recipient agencies, the specific terms and conditions for doing so, including, if applicable, a list of specific organizations or types of organizations eligible to receive USDA Foods or administrative funds; (iii) If the use of administrative funds is restricted to certain types of expenses pursuant to § 251.8(e)(2), the specific types of administrative expenses eligible recipient agencies are permitted to incur; (iv) Any other conditions set forth by the State agency. [51 FR 12823, Apr. 16, 1986, as amended at 52 FR 17933, May 13, 1987; 59 FR 16974, Apr. 11, 1994; 62 FR 53731, Oct. 16, 1997; 64 FR 72902, 72903, Dec. 29, 1999; 89 FR 87249, Oct. 31, 2024] § 251.3 Definitions. (a) The terms used in this part that are defined in part 250 of this chapter have the meanings ascribed to them therein, unless a different meaning for such a term is defined herein. (b) Charitable institution (1) Is public, or (2) Is private, possessing tax exempt status pursuant to § 251.5(a)(3); and (3) Is not a penal institution (this exclusion also applies to correctional institutions which conduct rehabilitation programs); and (4) Provides food assistance to needy persons. (c) Distribution site (d) Eligible recipient agency (1) Is public, or (2) Is private, possessing tax exempt status pursuant to § 251.5(a)(3); and (3) Is not a penal institution; and (4) Provides food assistance— (i) Exclusively to needy persons for household consumption, pursuant to a means test established pursuant to § 251.5 (b), or (ii) Predominantly to needy persons in the form of prepared meals pursuant to § 251.5(a)(2); and (5) Has entered into an agreement with the designated State agency pursuant to § 251.2(c) for the receipt of USDA Foods or administrative funds, or receives USDA Foods or administrative funds under an agreement with another eligible recipient agency which has signed such an agreement with the State agency or another eligible recipient agency within the State pursuant to § 251.2(c); and (6) Falls into one of the following categories: (i) Emergency feeding organizations (including food banks, food pantries and soup kitchens); (ii) Charitable institutions (including hospitals and retirement homes); (iii) Summer camps for children, or child nutrition programs providing food service; (iv) Nutrition projects operating under the Older Americans Act of 1965 (Nutrition Program for the Elderly), including projects that operate congregate Nutrition sites and projects that provide home-delivered meals; and (v) Disaster relief programs. (e) Emergency feeding organization (f) Food bank (g) Food pantry (h) Formula (i) State agency (j) Soup kitchen (k) Value of USDA Foods distributed [64 FR 72903, Dec. 29, 1999, as amended at 89 FR 87250, Oct. 31, 2024] § 251.4 Availability of USDA Foods. (a) General. (b) Displacement. (c) Allocations. (2) FNS shall promptly notify State agencies regarding their allocation of USDA Foods to be made available under this part. (3) State agencies shall notify the appropriate FNSRO of the amount of the USDA Foods they will accept not later than 30 days prior to the beginning of the shipping period. (4) FNS will make allocations of USDA Foods or food funding available to State agencies for two fiscal years. States will be allowed to carry over unexpended balances of USDA Foods funding from one fiscal year into the next fiscal year. (5) A State's USDA Foods funding allocation remaining at the end of the fiscal year after the fiscal year in which it was initially appropriated will expire and will be unavailable to the State. (d) Quantities requested. (1) Request USDA Foods only in quantities which can be utilized without waste in providing food assistance to needy persons under this part; (2) Ensure that no eligible recipient agency receives USDA Foods in excess of anticipated use, based on inventory records and controls, or in excess of its ability to accept and store such USDA Foods; and (e) Initial processing and packaging. (f) Bulk processing by States. (1) The Department will reimburse the State agency at the current flat rate for such processing. (2) Minimum yields and product specifications established by the Department shall be met by the processor. (3) The State shall require the processor to meet Federal, State, and local health standards. (4) Processors and State agencies shall also meet the basic minimum requirements of § 250.30. (g) Distribution and control of USDA Foods. (h) Distribution to eligible recipient agencies—priority system and advisory boards. (i) First priority. (ii) Second priority. (2) Delegation. (3) Existing networks. (4) State advisory boards. (i) Distribution of non-USDA foods. (j) Interstate cooperation. (k) Distribution in rural and Tribal areas. (l) Public posting of availability of USDA Foods. (Approved by the Office of Management and Budget under control number 0584-0313 and 0584-0341) [51 FR 12823, Apr. 16, 1986, as amended at 52 FR 17933, May 13, 1987; 52 FR 42634, Nov. 6, 1987; 59 FR 16974, Apr. 11, 1994; 64 FR 72904, Dec. 29, 1999; 81 FR 23115, Apr. 19, 2016; 89 FR 87250, Oct. 31, 2024; 89 FR 104393, Dec. 23, 2024] § 251.5 Eligibility determinations. (a) Criteria for determining eligibility of organizations. (1) Agencies distributing USDA Foods to households for home consumption. (2) Agencies providing prepared meals. (3) Tax-exempt status. (i) Be currently operating another Federal program requiring tax-exempt status under the Internal Revenue Code (IRC), or (ii) Possess documentation from the Internal Revenue Service (IRS) recognizing tax-exempt status under the IRC, or (iii) If not in possession of such documentation, be automatically tax exempt as “organized or operated exclusively for religious purposes” under the IRC, or (iv) If not in possession of such documentation, but required to file an application under the IRC to obtain tax-exempt status, have made application for recognition of such status and be moving toward compliance with the requirements for recognition of tax-exempt status. If the IRS denies a participating organization's application for recognition of tax-exempt status, the organization must immediately notify the State agency or the eligible recipient agency, whichever is appropriate, of such denial, and that agency will terminate the organization's agreement and participation immediately upon receipt of such notification. If documentation of IRS recognition of tax-exempt status has not been obtained and forwarded to the appropriate agency within 180 days of the effective date of the organization's approval for participation in TEFAP, the State agency or eligible recipient agency must terminate the organization's participation until such time as recognition of tax-exempt status is actually obtained, except that the State agency or eligible recipient agency may grant a single extension not to exceed 90 days if the organization can demonstrate, to the State agency's or eligible recipient agency's satisfaction, that its inability to obtain tax-exempt status within the 180 day period is due to circumstances beyond its control. It is the responsibility of the organization to document that it has complied with all IRS requirements and has provided all information requested by IRS in a timely manner. (b) Criteria for determining recipient eligibility. (1) Enable the State agency to ensure only households that need food assistance because of inadequate household income receive USDA Foods; (2) Include income-based standards and the methods by which households may demonstrate eligibility under such standards. Income-based standards must include a maximum income eligibility threshold at or between 185 percent to 300 percent of the U.S. Federal Poverty Guidelines published annually by the U.S. Department of Health and Human Services (HHS). States may propose alternative income-based eligibility standards above this threshold with supporting rationale, subject to approval by FNS; and (3) Include a requirement that the household reside in the geographic location served by the State agency at the time of applying for assistance, and the method for how residency will be determined. Length of residency, address, or identification documents shall not be used as an eligibility criterion. (c) Delegation of authority. [64 FR 72904, Dec. 29, 1999, as amended at 89 FR 87250, Oct. 31, 2024] § 251.6 Distribution plan. (a) Contents of the plan. (1) A designation of the State agency responsible for distributing USDA Foods and administrative funds provided under this part, and the address of such agency; (2) A plan of operation and administration to expeditiously distribute USDA Foods received under this part; (3) A description of the standards of eligibility for recipient agencies, including any subpriorities within the two-tier priority system; (4) A description of the criteria established in accordance with § 251.5(b) which must be used by eligible recipient agencies in determining the eligibility of households to receive USDA Foods for home consumption; (5) At the option of the State agency, a plan of operation for one or more Farm to Food Bank Projects in partnership with one or more emergency feeding organizations located in the State, as described in § 251.13. The plan must include all items listed at § 251.13(e); and (6) A plan, which may include the use of a State advisory board established under § 251.4(h)(4), that provides emergency feeding organizations or eligible recipient agencies within the State an opportunity to provide input on the USDA Foods preferences and needs of the emergency feeding organization or eligible recipient agency. (b) Plan submission and amendments. (c) Amendments. [64 FR 72905, Dec. 29, 1999, as amended at 74 FR 62474, Nov. 30, 2009; 84 FR 53002, Oct. 4, 2019; 89 FR 87251, Oct. 31, 2024] § 251.7 Formula adjustments. (a) Commodity adjustments. (b) Funds adjustments. [64 FR 72905, Dec. 29, 1999, as amended at 89 FR 87251, Oct. 31, 2024] § 251.8 Payment of funds for administrative costs. (a) Availability and allocation of funds. (b) Uniform Federal Assistance regulations. (c) Payment to States. (2) Upon notification by the FNS Regional Office that an agreement has been entered into in accordance with § 251.2(c) of this part, FNS shall issue a grant award pursuant to procedures established by FNS, and promptly make funds available to each State agency within the State's allocation through issuance of a letter of credit. To the extent funds are available and subject to the provisions of paragraph (f) of this section, funds will be made available to State agencies on an advance basis. (3) Each State agency shall return to FNS any funds made available under this section either through the original allocation or through subsequent reallocations which are unobligated as of the end of the fiscal year for which they were made available. Such return shall be made as soon as practicable but in no event later than 30 days following demand made by FNS. (d) Priority for eligible recipient agencies distributing USDA Foods. (e) Use of funds Allowable administrative costs. (i) The intrastate and interstate transport, storing, handling, repackaging, processing, and distribution of foods (including donated wild game); except that for interstate expenditures to be allowable, the foods must have been specifically earmarked for the particular State or eligible recipient agency which incurs the cost; (ii) Costs associated with determinations of eligibility, verification, and documentation; (iii) Costs of providing information to persons receiving USDA Foods concerning the appropriate storage and preparation of such foods; (iv) Costs involved in publishing announcements of times and locations of distribution; and (v) Costs of recordkeeping, auditing, and other administrative procedures required for program participation. (2) State restriction of administrative costs. (3) Agreements. (4) Pass-through requirement-local support to emergency feeding organizations. (A) Provided by the State agency to emergency feeding organizations that have signed an agreement with the State agency as either reimbursement or advance payment for administrative costs incurred by emergency feeding organizations in accordance with paragraph (e)(1) of this section, except that such emergency feeding organizations may retain advance payments only to the extent that they actually incur such costs; or (B) Directly expended by the State agency to cover administrative costs incurred by, or on behalf of, emergency feeding organizations in accordance with paragraph (e)(1) of this section. (ii) Any funds allocated to or expended by the State agency to cover costs incurred by eligible recipient agencies which are not emergency feeding organizations shall not count toward meeting the pass-through requirement. (iii) State agencies must not charge for USDA Foods made available under this part to eligible recipient agencies. (f) Recovery and reallocation. [51 FR 12823, Apr. 16, 1986, as amended at 59 FR 16974, Apr. 11, 1994; 64 FR 72906, Dec. 29, 1999; 74 FR 62474, Nov. 30, 2009; 81 FR 23115, Apr. 19, 2016; 89 FR 87251, Oct. 31, 2024] § 251.9 Matching of funds. (a) State matching requirement. (b) Exceptions. (c) Applicable contributions. (1) Cash. (2) In-kind. (ii) In order for a third-party in-kind contribution to qualify as a State-level administrative cost for purposes of meeting the match, all of the following criteria shall be met: (A) In its administration of food assistance programs, the State has performed this type of function over a sustained period of time in the past; (B) The function was not previously performed by the State on behalf of eligible recipient agencies; and (C) The State would normally perform the function as part of its responsibility in administering TEFAP or related food assistance programs if it were not provided as an in-kind contribution. (d) Assessment fees. (e) Reporting requirements. (f) Failure to match. [52 FR 17934, May 13, 1987, as amended at 59 FR 16975, Apr. 11, 1994; 64 FR 72906, Dec. 29, 1999; 81 FR 23115, Apr. 19, 2016; 89 FR 87251, Oct. 31, 2024] § 251.10 Reports and recordkeeping. (a) Records USDA Foods. (2) Administrative funds. (3) Eligible recipient agency list. (4) Information about households receiving USDA Foods for home consumption. (5) Record retention. (b) Reports Submission of Form FNS-667. (2) Reports of excessive inventory. (3) Report of eligible recipient agency list. (4) Recipients of USDA Foods for home consumption. (c) Confidentiality of applicants and participants Confidential applicant and participant information. (2) Limits on disclosure of information obtained from applicants or participants. (3) Limits on disclosing the identity of persons making a complaint or allegation against an individual participating in or administering the program. [89 FR 87251, Oct. 31, 2024] § 251.11 State monitoring system. (a) Each State agency must monitor the operation of the program to ensure that it is being administered in accordance with Federal and State requirements. State agencies may not delegate this responsibility. (b) Unless specific exceptions are approved in writing by FNS, the State agency monitoring system must include: (1) An annual review of at least 25 percent of all eligible recipient agencies which have signed an agreement with the State agency pursuant to § 251.2(c), provided each such agency must be reviewed no less frequently than once every four years; and (2) An annual review of one-tenth or 20, whichever is fewer, of all eligible recipient agencies which receive USDA Foods and/or administrative funds pursuant to an agreement with another eligible recipient agency. Reviews must be conducted, to the maximum extent feasible, simultaneously with actual distribution of USDA Foods and/or meal service, and eligibility determinations, if applicable. State agencies must develop a system for selecting eligible recipient agencies for review that ensures deficiencies in program administration are detected and resolved in an effective and efficient manner. (c) Each review must encompass, as applicable, eligibility determinations, food ordering procedures, storage and warehousing practices, inventory controls, approval of distribution sites, reporting and recordkeeping requirements, and civil rights. (d) Upon concurrence by FNS, reviews of eligible recipient agencies which have been conducted by FNS Regional Office personnel may be incorporated into the minimum coverage required by paragraph (b) of this section. (e) If deficiencies are disclosed through the review of an eligible recipient agency, the State agency must submit a report of the review findings to the eligible recipient agency and ensure that corrective action is taken to eliminate the deficiencies identified. [89 FR 87252, Oct. 31, 2024] § 251.12 Limitation on unrelated activities. (a) Activities unrelated to the distribution of USDA Foods or meal service may be conducted at distribution sites as long as: (1) The person(s) conducting the activity makes clear that the activity is not part of TEFAP and is not endorsed by the Department. Nutrition education materials, such as recipes or other information about USDA Foods, dates of future distributions, hours of operations, or information about other Federal, State, or local government programs or services for the needy may be distributed without a clarification that the information is not endorsed by the Department; (2) The person(s) conducting the activity makes clear that cooperation is not a condition of the receipt of USDA Foods for home consumption or prepared meals containing USDA Foods (cooperation includes contributing money, signing petitions, or conversing with the person(s)); (3) The activity is not conducted in a manner that disrupts the distribution of USDA Foods or meal service, and; (4) The activity does not involve information unrelated to TEFAP being placed in or printed on bags, boxes, or other containers in which USDA Foods are distributed. (b) Eligible recipient agencies and distribution sites shall ensure that activities unrelated to the distribution of USDA Foods or meal service are conducted in a manner consistent with paragraph (a) of this section. (c) Except as provided in paragraph (d) of this section, State agencies shall immediately terminate from further participation in TEFAP operations any eligible recipient agency that distributes or permits distribution of materials in a manner inconsistent with the provisions of paragraph (a) of this section. (d) The State agency may withhold termination of an eligible recipient agency's or distribution site's TEFAP participation if the State agency cannot find another eligible recipient agency to operate the distribution in the area served by the violating organization. In such circumstances, the State agency shall monitor the violating organization to ensure that no further violations occur. [89 FR 87252, Oct. 31, 2024] § 251.13 Farm to Food Bank Projects. (a) Definition of project. (b) Availability and allocation of funds. (1) Funds made available to the Department for Farm to Food Bank Projects will be distributed to State agencies that have submitted an approved amendment to their State plan. The amendment must describe a plan of operation for a Farm to Food Bank Project and include all elements listed in paragraph (e) of this section. The plan of operation must be updated and resubmitted on an annual basis by the dates requested by FNS. (2) Funds for Farm to Food Bank Projects will be distributed each fiscal year to State agencies using the funding formula defined in § 251.3(h). (3) Funds will be available to State agencies for one year from the date of allocation. (c) Purpose and use of funds. (1) Farm to Food Bank Projects must have a purpose of: (i) Reducing food waste at the agricultural production, processing, or distribution level through the donation of food; (ii) Providing food to individuals in need; and (iii) Building relationships between agricultural producers, processors, and distributors and emergency feeding organizations through the donation of food. (2) Project funds may only be used for costs associated with harvesting, processing, packaging, or transportation of unharvested, unprocessed, or unpackaged foods donated by agricultural producers, processors, or distributors for use by emergency feeding organizations. (3) Project funds cannot be used to purchase foods or for agricultural production activities such as purchasing seeds or planting crops. (d) Matching of funds State matching requirement. (2) Allowable contributions. (3) Emergency feeding organization contributions. (4) Food donations. (e) Plans of Operation for Farm to Food Bank Projects. (1) A high-level summary of the Farm to Food Bank Project. (2) A description of the types of foods expected to be donated through the Project. (3) A list of emergency feeding organizations within the State that will operate the Project in partnership with the State agency. (4) A list of any State agencies that will operate the Project as a part of a cooperative agreement. (5) A description of the Project that includes how the Project will: (i) Reduce food waste at the agricultural production, processing, or distribution level through the donation of food; (ii) Provide food to individuals in need; and (iii) Build relationships between agricultural producers, processors, and distributors and emergency feeding organizations through the donation of food. (6) The fiscal year in which the Project will begin operating; and (7) A description of how the match requirement will be met. (f) Reallocation of funds. (g) Reporting requirements. (h) Cooperative agreements. [89 FR 87252, Oct. 31, 2024] § 251.14 Miscellaneous. (a) USDA Foods not income. (b) Nondiscrimination. (c) Use of volunteer workers and non-USDA foods. (d) Maintenance of effort. (e) Recruitment activities related to the Supplemental Nutrition Assistance Program (SNAP). [89 FR 87252, Oct. 31, 2024]