[Federal Register: December 10, 2009 (Volume 74, Number 236)]
[Rules and Regulations]
[Page 65607-65608]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de09-23]
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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