Section 251.4 - [Effective 12/30/2024] Availability of USDA Foods(a)General. The Department shall make USDA Foods available for distribution and use in accordance with the provisions of this part and also in accordance with the terms and conditions of part 250 of this chapter to the extent that the part 250 terms and conditions are not inconsistent with this part.(b)Displacement. State agencies shall require that eligible recipient agencies receiving USDA Foods under this part shall not diminish their normal expenditures for food because of receipt of USDA Foods. Additionally, the Secretary shall withhold USDA Foods from distribution if it is determined that the USDA Foods would substitute for the same or a similar product that would otherwise be purchased in the market.(c)Allocations.(1) Allocations of USDA Foods shall be made to State agencies on the basis of the formula defined in § 251.3(h) .(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. State agencies shall: (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. The Department will furnish USDA Foods to be distributed to institutions and to needy persons in households in forms and units suitable for institutional and home use.(f)Bulk processing by States. USDA Foods may be made available to a State agency or, at the direction of the State agency, directly to private companies for processing bulk USDA Foods for use by eligible recipient agencies.(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. The State agency must ensure that the distribution, control, and use of USDA Foods are in accordance with the requirements in this part, and with the requirements in 7 CFR part 250, to the extent that requirements in 7 CFR part 250 are not inconsistent with the requirements in this part. Transfers of USDA Foods must comply with requirements in §§ 250.12(e) and 250.14(d) , as applicable. In accordance with § 250.16 , the State agency must ensure that restitution is made for the loss of USDA Foods, or for the loss or improper use of funds provided for, or obtained as an incidence of, the distribution of USDA Foods. The State agency is also subject to claims for such losses for which it is responsible, or for its failure to initiate or pursue claims against other parties responsible for such losses.(h)Distribution to eligible recipient agencies-priority system and advisory boards.(1) State agencies must distribute USDA Foods made available under this part to eligible recipient agencies in accordance with the following priorities:(i)First priority. When a State agency cannot meet all eligible recipient agencies' requests for USDA Foods, the State agency must give priority in the distribution of such USDA Foods to emergency feeding organizations as defined under § 251.3(e) . A State agency may, at its discretion, concentrate USDA Foods resources upon a certain type or types of such organizations, to the exclusion of others.(ii)Second priority. After a State agency has distributed USDA Foods sufficient to meet the needs of all emergency feeding organizations, the State agency must distribute any remaining program USDA Foods to other eligible recipient agencies which serve needy people, but do not relieve situations of emergency and distress. A State agency may, at its discretion, concentrate USDA Foods resources upon a certain type or types of such organizations, to the exclusion of others.(2)Delegation. When a State agency has delegated to an eligible recipient agency the authority to select other eligible recipient agencies, the eligible recipient agency exercising this authority must ensure that any USDA Foods are distributed in accordance with the priority system set forth in paragraphs (h)(1)(i) and (h)(1)(ii) of this section. State agencies and eligible recipient agencies will be deemed to be in compliance with the priority system when eligible recipient agencies distribute USDA Foods to meet the needs of all emergency feeding organizations under their jurisdiction prior to making USDA Foods available to eligible recipient agencies which are not emergency feeding organizations.(3)Existing networks. Subject to the constraints of paragraphs (h)(1)(i) and (h)(1)(ii) of this section, State agencies may give priority in the distribution of USDA Foods to existing food bank networks and other organizations whose ongoing primary function is to facilitate the distribution of food to low-income households, including food from sources other than the Department.(4)State advisory boards. Each State agency receiving USDA Foods is encouraged to establish a State advisory board representing all types of entities in the State, both public and private, interested in the distribution of such USDA Foods. Such advisory boards can provide valuable advice on how resources should be allocated among various eligible outlet types, what areas have the greatest need for food assistance, and other important issues that will help States to use their program resources in the most efficient and effective manner possible. A State agency may expend TEFAP administrative funds to support the activities of an advisory board in accordance with § 251.8 of this part.(i)Distribution of non-USDA foods. Eligible recipient agencies may incorporate the distribution of foods which have been donated by charitable organizations or other entities with the distribution of USDA Foods or distribute them separately.(j)Interstate cooperation. State agencies may enter into interagency cooperative agreements to provide jointly or to transfer USDA Foods to an eligible recipient agency that has signed an agreement with the respective State agencies when such organization serves needy persons in a contiguous area which crosses States' borders.(k)Distribution in rural and Tribal areas. FNS encourages State agencies and eligible recipient agencies to implement or expand USDA Foods distributions in rural, remote, and Tribal areas of the State wherever possible.(l)Public posting of availability of USDA Foods. State agencies must make publicly available the list of eligible recipient agencies that have an agreement with the State agency and the State's uniform Statewide eligibility criteria to receive USDA Foods for household consumption as per § 251.5(b) , to ensure that eligible populations understand eligibility criteria and are able to identify where they may access USDA Foods. At minimum, State agencies must publicly post the names, addresses, and contact telephone numbers for all eligible recipient agencies that have an agreement with the State agency. The information must be posted on a publicly available internet web page and be updated on an annual basis or whenever changes to eligibility criteria are made.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 81 FR 23115 , 4/19/2016; 89 FR 87250 , 12/30/2024 Approved by the Office of Management and Budget under control number 0584-0313 and 0584-0341