11828 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

22.404–5 [Amended] 

■ 2. Amend section 22.404–5 in 

paragraph (c)(3) by removing 

‘‘submitted proposals’’ and adding 

‘‘have not been eliminated from the 

competition’’ in its place. 

[FR Doc. E9–5873 Filed 3–17–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 25 and 52 

[FAC 2005–31; FAR Case 2008–021; Item 

IV; Docket 2009-0005; Sequence 1] 

RIN 9000–AL16 

Federal Acquisition Regulation; FAR 

Case 2008–021, Least Developed 

Countries that are Designated 

Countries 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement a 

revision by the United States Trade 

Representative (USTR) to the list of 

Least Developed Countries that are 

designated countries under the Trade 

Agreements Act of 1979. 

DATES: Effective Date: March 19, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–31, FAR case 2008–021. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The list of Least Developed Countries 

is derived from a United Nations list of 

Least Developed Countries. The USTR 

has revised the list of Least Developed 

Countries that are designated as eligible 

countries under the Trade Agreements 

Act of 1979, as amended, to add Liberia 

and to remove Cape Verde. 

This final rule amends the FAR to 

revise (a) the definitions of ‘‘designated 

country’’ and ‘‘least developed country’’ 

at FAR 25.003 and (b) the definition of 

‘‘designated country’’ in the clauses at 

FAR 52.225–5, Trade Agreements, and 

52.225–11, Buy American Act— 

Construction Materials Under Trade 

Agreements. 

This is not a significant regulatory 

action and, therefore, was not 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 Regulatory Flexibility Act does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501 and Pub. L. 98–577, and 

publication for public comments is not 

required. However, the Councils will 

consider comments from small entities 

concerning the affected FAR Parts 25 

and 52 in accordance with 5 U.S.C. 610. 

Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 601, et seq. (FAC 2005–31, FAR 

case 2008–021), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose 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 25 and 

52 

Government procurement. 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 25 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 25 and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 25—FOREIGN ACQUISITION 

■ 2. Amend section 25.003 by revising 

paragraph (3) of the definition 

‘‘Designated country’’ and the definition 

‘‘Least developed country’’ to read as 

follows: 

25.003 Definitions. 

* * * * * 

Designated country means any of the 

following countries: 

* * * * * 

(3) A least developed country 

(Afghanistan, Angola, Bangladesh, 

Benin, Bhutan, Burkina Faso, Burundi, 

Cambodia, Central African Republic, 

Chad, Comoros, Democratic Republic of 

Congo, Djibouti, East Timor, Equatorial 

Guinea, Eritrea, Ethiopia, Gambia, 

Guinea, Guinea-Bissau, Haiti, Kiribati, 

Laos, Lesotho, Liberia, Madagascar, 

Malawi, Maldives, Mali, Mauritania, 

Mozambique, Nepal, Niger, Rwanda, 

Samoa, Sao Tome and Principe, 

Senegal, Sierra Leone, Solomon Islands, 

Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia); 

or 

* * * * * 

Least developed country means any of 

the following countries: Afghanistan, 

Angola, Bangladesh, Benin, Bhutan, 

Burkina Faso, Burundi, Cambodia, 

Central African Republic, Chad, 

Comoros, Democratic Republic of 

Congo, Djibouti, East Timor, Equatorial 

Guinea, Eritrea, Ethiopia, Gambia, 

Guinea, Guinea-Bissau, Haiti, Kiribati, 

Laos, Lesotho, Liberia, Madagascar, 

Malawi, Maldives, Mali, Mauritania, 

Mozambique, Nepal, Niger, Rwanda, 

Samoa, Sao Tome and Principe, 

Senegal, Sierra Leone, Solomon Islands, 

Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 3. Amend section 52.212–5 by 

revising the date of the clause and 

paragraph (b)(31) to read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND CONDITIONS 

REQUIRED TO IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (MAR 2009) 

* * * * * 

(b) * * * 

ll (31) 52.225–5, Trade Agreements 

(MAR 2009) (19 U.S.C. 2501, et seq., 19 

U.S.C. 3301 note). 

* * * * * 

■ 4. Amend section 52.225-5 by revising 

the date of the clause and in paragraph 

(a) in the definition ‘‘Designated 

country’’, revising paragraph (3) to read 

as follows: 

52.225–5 Trade Agreements. 

* * * * * 

TRADE AGREEMENTS (MAR 2009) 

(a) * * * 

Designated Country * * * 

(3) A least developed country (Afghanistan, 

Angola, Bangladesh, Benin, Bhutan, Burkina 

Faso, Burundi, Cambodia, Central African 

Republic, Chad, Comoros, Democratic 

Republic of Congo, Djibouti, East Timor, 

Equatorial Guinea, Eritrea, Ethiopia, Gambia, 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11829 

Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, 

Lesotho, Liberia, Madagascar, Malawi, 

Maldives, Mali, Mauritania, Mozambique, 

Nepal, Niger, Rwanda, Samoa, Sao Tome and 

Principe, Senegal, Sierra Leone, Solomon 

Islands, Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia); or 

* * * * * 

■ 5. Amend section 52.225-11 by 

revising the date of the clause and in 

paragraph (a) in the definition 

‘‘Designated country’’, revising 

paragraph (3) to read as follows: 

52.225–11 Buy American Act— 

Construction Materials Under Trade 

Agreements. 

* * * * * 

BUY AMERICAN ACT—CONSTRUCTION 

MATERIALS UNDER TRADE AGREEMENTS 

(MAR 2009) 

(a) * * * 

Designated Country * * * 

(3) A least developed country (Afghanistan, 

Angola, Bangladesh, Benin, Bhutan, Burkina 

Faso, Burundi, Cambodia, Central African 

Republic, Chad, Comoros, Democratic 

Republic of Congo, Djibouti, East Timor, 

Equatorial Guinea, Eritrea, Ethiopia, Gambia, 

Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, 

Lesotho, Liberia, Madagascar, Malawi, 

Maldives, Mali, Mauritania, Mozambique, 

Nepal, Niger, Rwanda, Samoa, Sao Tome and 

Principe, Senegal, Sierra Leone, Solomon 

Islands, Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia); or 

* * * * * 

[FR Doc. E9–5867 Filed 3–18–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 26, 31, and 52 

[FAC 2005–31; FAR Case 2008–017; Item 

V; Docket 2009-0007, Sequence 1] 

RIN 9000–AL15 

Federal Acquisition Regulation; FAR 

Case 2008–017, Federal Food Donation 

Act of 2008 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on 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: March 19, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before May 18, 

2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–31, FAR case 

2008–017, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov.Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2008–017’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2008–017. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2008– 

017’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–31, FAR case 

2008–017, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: 

Michael Jackson, Procurement Analyst, 

at (202) 208–4949 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2008–017. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Federal Food Donation Act of 

2008 (Pub. L. 110–247) (Act) 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 interim rule is applicable to 

contracts above $25,000 (greater than 

$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 (IDIQ) 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. This FAR change applies to 

solicitations issued on or after the 

effective date of this interim rule (see 

FAR 1.108(d)). Agencies will have to 

update their automated contract systems 

to include the clause if the contract calls 

for the provision, service, or sale of food 

in the United States. The statute 

instructed that the FAR be revised to 

cover the lease or rental of Federal 

property to a private entity for events at 

which food is provided in the United 

States. However, the FAR covers the 

acquisition of supplies and services 

(FAR 1.104), but does not cover the 

outlease of real property. The GSA has 

jurisdiction over changes to the Federal 

Management Regulation (FMR) and we 

anticipate a change in the FMR to 

address this requirement. The proposed 

revisions are to the FAR parts 26, 31, 

and 52. The detailed explanation of the 

interim rule follows: 

1. Part 26—Other Socioeconomic 

Programs: Adds a new Subpart 26.4, 

Food Donations to Nonprofit 

Organizations. 

a. The Councils anticipate that the 

majority of solicitation and contract 

actions that may be applicable to this 

Act are fixed-price commercial services; 

therefore, Subpart 26.4 is the most 

appropriate place to implement this Act. 

This subpart applies to all contracts 

greater than $25,000 for the provision, 

service, or sale of food in the United 

States. Executive agencies and 

contractors are encouraged to donate 

excess, apparently wholesome food to 

nonprofit organizations that provide 

assistance to food-insecure people in the 

United States. Instead of using ‘‘above 

$25,000’’ as stated in the Act, the rule 

uses ‘‘greater than $25,000’’ which is 

used throughout the FAR. 


pwalker on PROD1PC71 with RULES2