[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65607-65608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28933]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 26, 31, and 52

[FAC 2005-38; FAR Case 2008-017; Item IV; Docket 2009-0007, Sequence 1]
RIN 9000-AL49


Federal Acquisition Regulation; FAR Case 2008-017, Federal Food 
Donation Act of 2008 (Pub. L. 110-247)

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

[[Page 65608]]


ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have adopted, as final, with 
no changes, an interim rule amending the Federal Acquisition Regulation 
(FAR) to implement the Federal Food Donation Act of 2008 (Pub. L. 110-
247), which encourages executive agencies and their contractors, in 
contracts for the provision, service, or sale of food, to the maximum 
extent practicable and safe, to donate apparently wholesome excess food 
to nonprofit organizations that provide assistance to food-insecure 
people in the United States.

DATES: Effective Date: December 10, 2009.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael Jackson, Procurement Analyst, at (202) 208-4949. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-38, FAR 
case 2008-017.

SUPPLEMENTARY INFORMATION:

A. Background

    The Federal Food Donation Act of 2008 (Pub. L. 110-247) encourages 
Federal agencies and their contractors to donate excess food to 
nonprofit organizations serving the needy. The Act requires Federal 
contracts above $25,000 for the provision, service, or sale of food in 
the United States, to include a clause that encourages, but does not 
require, the donation of excess food to nonprofit organizations. The 
Act would also extend to the Government and the contractor, when 
donating food, the same civil or criminal liability protection provided 
to donors of food under the Bill Emerson Good Samaritan Food Donation 
Act of 1996.
    The final rule is applicable to contracts above $25,000 for the 
provision, service, or sale of food in the United States (i.e., food 
supply or food service). The type of solicitations and contract actions 
anticipated to be applicable to this law will mostly be for fixed-price 
commercial services; however, there may be circumstances when a 
noncommercial and/or cost-reimbursement requirement may apply. For 
example, on an indefinite-delivery, indefinite-quantity cost-
reimbursement contract for logistical support to be performed in the 
United States, there may be a task order needed to provide food service 
to feed personnel.
    The interim rule was published in the Federal Register at 74 FR 
11829 on March 19, 2009, with an effective date of March 19, 2009, and 
a request for comments by May 18, 2009. Three respondents submitted 
comments in response to the interim rule. Below are the comments 
received on the interim rule along with the responses.
    Comment 1, FAR matrix. One commenter had several comments about 
errors in the FAR matrix.
    Response: There were several inadvertent errors that were made on 
the FAR clause matrix. These errors have been corrected and are 
reflected in the FAR clause matrix issued with the final rule.
    Comment 2, Applicability for non-appropriated funds. The commenter 
expresses uncertainty as to whether this rule is applicable to their 
typical (non-appropriated funds) cafeteria contracts. The clause at FAR 
52.226-6 is to be included in solicitations and contracts greater than 
$25,000 for the provision, service, or sale of food in the United 
States. Is the $25,000 threshold intended to mean that amount of the 
appropriated funding, or can it also be satisfied by the sales volume? 
Will there be additional GSA financial management regulation guidance 
planned?
    Response: The FAR only covers contracts made with appropriated 
funds. The rule is applicable to contracts greater than $25,000 for the 
provision, service, or sale of food in the United States. This means 
the dollar amount of the contract only, not sales volume. GSA has 
jurisdiction over changes to the Federal Management Regulation (FMR) 
and we anticipate a change in the FMR to address this requirement.
    Comment 3, Implementation of the Federal Food Donation Act of 2008. 
The benefits of this rule's implementation are evident based on the 
widespread support the Act received. The assistance it will provide to 
food insecure persons is truly important. This is especially crucial 
during these difficult economic times. Food suppliers will receive the 
listed benefits, as well as be protected against litigation by the Bill 
Emerson Good Samaritan Food Donation Act. Based on these reasons, we 
urge you to encourage the passage of this rule and implement it as 
quickly as possible.
    Response: The interim rule was effective on the publication date of 
March 19, 2009. This means the rule has been implemented and is 
effective as of that date. The final rule adopts the interim rule as 
final, without change.
    This is a significant regulatory action and, therefore, was subject 
to review under Section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This rule is not a major 
rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because this rule is not 
mandatory for contractors, including small businesses.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) does not apply because 
the final rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. chapter 35, et seq.

List of Subjects in 48 CFR Parts 26, 31, and 52

    Government procurement.

    Dated: November 30, 2009.
Al Matera,
Director, Acquisition Policy Division.

Interim Rule Adopted as Final Without Change

0
Accordingly, the interim rule amending 48 CFR Parts 26, 31, and 52 
which was published in the Federal Register at 74 FR 11829 on March 19, 
2009, is adopted as a final rule without change.
[FR Doc. E9-28933 Filed 12-9-09; 8:45 am]
BILLING CODE 6820-EP-S