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. 


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11830 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

b. The definition section, FAR 26.401, 

adds four definitions from the Act. 

These definitions are ‘‘apparently 

wholesome food,’’ ‘‘excess food,’’ ‘‘foodinsecure’’ and ‘‘nonprofit organization’’. 

The definition for ‘‘apparently 

wholesome food’’ was expanded to 

incorporate the language from section 

(b)(2) of the Bill Emerson Good 

Samaritan Food Donation Act. 

c. The policy section, FAR 26.402, 

states that the Government encourages 

executive agencies and their contractors, 

to the maximum extent practicable and 

safe, to donate excess apparently 

wholesome food to nonprofit 

organizations that provide assistance to 

food-insecure people in the United 

States. 

d. The procedures section, FAR 

26.403, provides the details regarding 

encouraging donations by the contractor 

to nonprofit organizations, costs and 

liability. For costs, it is stated that the 

head of the executive agency shall not 

assume responsibility of the related 

costs for the donation by the contractor 

to the nonprofit organization, nor will 

the Government reimburse any costs 

incurred by the contractor for donations 

of Federal excess food and states that 

these costs are unallowable in 

accordance with the change to FAR 

31.205–1(f)(8). Finally, for liability, the 

section states how the executive agency 

and the contractor making donations 

pursuant to the Act are exempt from the 

civil and criminal liability to the extent 

provided under subsection (c) of the Bill 

Emerson Good Samaritan Food 

Donation Act (42 U.S.C. 1791). 

e. Section FAR 26.404 prescribes that 

the contracting officer shall insert the 

clause in solicitations and contracts 

greater than $25,000 for the provision, 

service, or sale of food in the United 

States (i.e., food supply or food service). 

2. Subpart 31.2, Contracts with 

Commercial Organizations: New 

language is added to Subpart 31.2 — 

Contracts with Commercial 

Organizations, section 31.205, Selected 

Costs, and section FAR 31.205–1, Public 

relations and advertising costs. FAR 

31.205–1(e) lists allowable public 

relations costs in paragraph (3) which 

includes the costs of participating in 

community service activities. Since it is 

possible to have a cost type contract that 

may include food supplies and/or 

services and the Act specifically states 

that the head of the executive agency 

shall not assume responsibility for the 

costs and logistics of collecting, 

transporting, maintaining the safety of, 

or distributing excess, apparently 

wholesome food to food-insecure people 

in the United States under this Act, 

section 31.205–1(f), for unallowable 

public relations and advertising costs 

adds paragraph (8) to state any costs 

associated with the donation of excess 

food to nonprofit organizations are 

unallowable. 

3. Part 52—Solicitation Provisions 

and Contract clauses: Two clauses are 

revised and one new clause is added. 

a. FAR 52.212–5, Contract Terms and 

Conditions Required to Implement 

Statutes or Executive Orders— 

Commercial Items, is revised. This 

clause incorporates by reference only 

those clauses required to implement 

provisions of law or executive orders 

applicable to the acquisition of 

commercial items. Paragraph (c) allows 

the contracting officer to indicate 

which, if any, of the additional clauses 

are applicable to the specific 

acquisition. Paragraph (c)(7) adds the 

clause 52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations, if 

applicable, and the remaining clause is 

renumbered. Also, in order to 

incorporate the subcontractor 

‘‘Flowdown’’ provision of the clause, 

paragraph (e) requires the Contractor to 

flow down specific FAR clauses in a 

subcontract for commercial items. 

Paragraph (e)(1)(xii) is revised to add 

the 52.226–6 clause and the remaining 

clause is renumbered. 

b. FAR 52.213–4, Terms and 

Conditions—Simplified Acquisitions 

(Other Than Commercial Items), is 

revised. The contracting officer may use 

the clause in simplified acquisitions 

exceeding the micro-purchase threshold 

that is for other than commercial items. 

Paragraph (b)(2) of the clause lists 

additional clauses that may apply. 

Paragraph (b)(2)(iii) adds the clause 

52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations, if 

applicable, and the remaining clause is 

renumbered. 

c. FAR 52.226–6, Promoting Excess 

Food Donation to Nonprofit 

Organizations, is a new clause. 

Basic terms and conditions for 

52.226–6: This clause fully addresses 

the terms and conditions as the 

following: when it is applicable, the 

contractor is encouraged to donate 

excess food to nonprofit organizations; 

the contractor, including subcontractors, 

shall assume all the related costs and 

support to donate the food and the 

contractor will not be reimbursed for 

any costs incurred or associated with 

the donation; that any costs incurred are 

unallowable; and the contractor 

including any subcontractors shall be 

exempt from civil and criminal liability 

to the extent provided under the Bill 

Emerson Good Samaritan Food 

Donation Act (42 U.S.C. 1791). 

Additional terms and conditions for 

52.226–6: There are two additional 

terms and conditions included in the 

clause that go beyond the Act. In 

paragraph (d), Liability, the last 

sentence is added to state that nothing 

in this clause shall be construed to 

supersede State or local health 

regulations. This language was taken 

from the Bill Emerson Good Samaritan 

Act. It makes it clear to the contractor 

that they must comply with these 

regulations, too. In paragraph (e), 

‘‘Flowdown’’ is added to encourage the 

subcontractors to participate in the 

Federal excess food donation program 

for actions greater than $25,000. 

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 interim rule is not expected to 

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. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 26, 

31, 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 2008–017), in all 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. 

D. Determination to Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because the 

provision of the Federal Food Donation 

Act of 2008 was enacted on June 20, 

2008. The Act requires that the FAR be 

revised to implement this Act no later 


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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11831 

than 180 days after the date of 

enactment. The Councils believe that 

the interim rule in the FAR will provide 

the Contracting Officer the relevant 

regulatory guidance needed when 

addressing requirements outlined in this 

rule. This interim rule is applicable to 

all solicitations and contracts greater 

than $25,000 for the provision, service, 

or sale of food in the United States 

issued on or after the effective date of 

the rule. However, pursuant to Pub. L. 

98–577 and FAR 1.501, the Councils 

will consider public comments received 

in response to this interim rule in the 

formation of the final rule. 

List of Subjects in 48 CFR Parts 26, 31, 

and 52 

Government procurement. 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 26, 31, and 52 as 

set forth below: 

■ 1. The authority citation for 48 CFR 

parts 26, 31, 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 26—OTHER SOCIOECONOMIC 

PROGRAMS 

■ 2. Add Subpart 26.4 to read as 

follows: 

Subpart 26.4—Food Donations to 

Nonprofit Organizations 

Sec. 

26.400 Scope of subpart. 

26.401 Definitions. 

26.402 Policy. 

26.403 Procedures. 

26.404 Contract clause. 

26.400 Scope of subpart. 

This section implements the Federal 

Food Donation Act of 2008 (Pub. L. 

110–247). 

26.401 Definitions. 

As used in this subpart— 

Apparently wholesome food means 

food that meets all quality and labeling 

standards imposed by Federal, State, 

and local laws and regulations even 

though the food may not be readily 

marketable due to appearance, age, 

freshness, grade, size, surplus, or other 

conditions, in accordance with (b)(2)of 

the Bill Emerson Good Samaritan Food 

Donation Act (42 U.S.C. 1791(b)). 

Excess food means food that— 

(1) Is not required to meet the needs 

of the executive agencies; and 

(2) Would otherwise be discarded. 

Food-insecure means inconsistent 

access to sufficient, safe, and nutritious 

food. 

Nonprofit organization means any 

organization that is— 

(1) Described in section 501(c) of the 

Internal Revenue Code of 1986; and 

(2) Exempt from tax under section 

501(a) of that Code. 

26.402 Policy. 

The Government encourages 

executive agencies and their contractors, 

to the maximum extent practicable and 

safe, to donate excess apparently 

wholesome food to nonprofit 

organizations that provide assistance to 

food-insecure people in the United 

States. 

26.403 Procedures. 

(a) In accordance with the Federal 

Food Donation Act of 2008 (Pub. L. 

110–247) an executive agency shall 

comply with the following: 

(1) Encourage donations. In the 

applicable contracts stated at section 

26.404, encourage contractors, 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. 

(2) Costs. (i) In any case in which a 

contractor enters into a contract with an 

executive agency under which 

apparently wholesome food is donated 

to food-insecure people in the United 

States, the head of the executive agency 

shall not assume responsibility for the 

costs and logistics of collecting, 

transporting, maintaining the safety of, 

or distributing excess, apparently 

wholesome food to food-insecure people 

in the United States under this Act. 

(ii) The Government will not 

reimburse any costs incurred by the 

contractor against this contract or any 

other contract for the donation of 

Federal excess foods. Any costs 

incurred for Federal excess food 

donations are not considered allowable 

public relations costs in accordance 

with 31.205–1(f)(8). 

(3) Liability. An executive agency 

(including an executive agency that 

enters into a contract with a contractor) 

and any contractor making donations 

pursuant to this Act shall be exempt 

from civil and criminal liability to the 

extent provided under the Bill Emerson 

Good Samaritan Food Donation Act (42 

U.S.C. 1791). 

26.404 Contract clause. 

Insert the clause at 52.226–6, 

Promoting Excess Food Donation to 

Nonprofit Organizations, in solicitations 

and contracts greater than $25,000 for 

the provision, service, or sale of food in 

the United States. 

PART 31—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

■ 3. Amend section 31.205–1 by 

revising paragraph (e)(3); and adding 

paragraph (f)(8) to read as follows: 

31.205–1 Public Relations and advertising 

costs. 

(e) * * * 

(3) Costs of participation in 

community service activities (e.g., blood 

bank drives, charity drives, savings 

bond drives, disaster assistance, etc.) 

(But see paragraph (f)(8) of this section.) 

* * * * * 

(f) * * * 

(8) Costs associated with the donation 

of excess food to nonprofit organizations 

in accordance with the Federal Food 

Donation Act of 2008 (Pub. L. 110– 

247)(see FAR subpart 26.4). 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 4. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraph (c)(7) as 

paragraph (c)(8); and adding a new 

paragraph (c)(7); and 

■ c. Redesignating paragraph (e)(1)(xii) 

as paragraph (e)(1)(xiii) and adding a 

new paragraph (e)(1)(xii). 

The revised and added text reads 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) 

* * * * * 

(c) * * * 

(7) 52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations. (MAR 

2009) (Pub. L. 110–247). 

* * * * * 

(e)(1) * * * 

(xii) 52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations. (MAR 

2009) (Pub. L. 110–247). Flow down required 

in accordance with paragraph (e) of FAR 

clause 52.226–6. 

* * * * * 

■ 5. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; and 

■ b. Redesignating paragraphs (b)(2)(iii) 

and (b)(2)(iv) as paragraphs (b)(2)(iv) 

and (b)(2)(v), respectively; and adding a 

new paragraph (b)(2)(iii). 

The revised and added text reads as 

follows: 


pwalker on PROD1PC71 with RULES2
11832 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

TERMS AND CONDITIONS—SIMPLIFIED 

ACQUISITIONS (OTHER THAN 

COMMERCIAL ITEMS) (MAR 2009) 

* * * * * 

(b) * * * 

(2) * * * 

(iii) 52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations. (MAR 

2009) (Pub. L. 110–247) (Applies to contracts 

greater than $25,000 that provide for the 

provision, the service, or the sale of food in 

the United States.) 

* * * * * 

■ 6. Add section 52.226–6 to read as 

follows: 

52.226–6 Promoting Excess Food 

Donation to Nonprofit Organizations. 

As prescribed in 26.404, insert the 

following clause: 

PROMOTING EXCESS FOOD DONATION 

TO NONPROFIT ORGANIZATIONS(MAR 

2009) 

(a) Definitions. As used in this clause— 

Apparently wholesome food means food 

that meets all quality and labeling standards 

imposed by Federal, State, and local laws 

and regulations even though the food may 

not be readily marketable due to appearance, 

age, freshness, grade, size, surplus, or other 

conditions. 

Excess food means food that— 

(1) Is not required to meet the needs of the 

executive agencies; and 

(2) Would otherwise be discarded. 

Food-insecure means inconsistent access to 

sufficient, safe, and nutritious food. 

Nonprofit organization means any 

organization that is— 

(1) Described in section 501(c) of the 

Internal Revenue Code of 1986; and 

(2) Exempt from tax under section 501(a) 

of that Code. 

(b) In accordance with the Federal Food 

Donation Act of 2008 (Pub. L. 110–247), the 

Contractor is encouraged, to the maximum 

extent practicable and safe, to donate excess, 

apparently wholesome food to nonprofit 

organizations that provide assistance to foodinsecure people in the United States. 

(c) Costs. (1) The Contractor, including any 

subcontractors, shall assume the 

responsibility for all the costs and the 

logistical support to collect, transport, 

maintain the safety of, or distribute the 

excess, apparently wholesome food to the 

nonprofit organization(s) that provides 

assistance to food-insecure people. 

(2) The Contractor will not be reimbursed 

for any costs incurred or associated with the 

donation of excess foods. Any costs incurred 

for excess food donations are unallowable. 

(d) Liability. The Government and the 

Contractor, including any subcontractors, 

shall be exempt from civil and criminal 

liability to the extent provided under the Bill 

Emerson Good Samaritan Food Donation Act 

(42 U.S.C. 1791). Nothing in this clause shall 

be construed to supersede State or local 

health regulations (subsection (f) of 42 U.S.C. 

1791). 

(e) Flowdown. The Contractor shall insert 

this clause in all contracts, task orders, 

delivery orders, purchase orders, and other 

similar instruments greater than $25,000 with 

its subcontractors or suppliers, at any tier, 

who will perform, under this contract, the 

provision, service, or sale of food in the 

United States. 

(End of clause) 

[FR Doc. E9–5861 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 3, 47, and 52 

[FAC 2005–31; Item VI; Docket FAR–2009– 

0003; Sequence 2] 

Federal Acquisition Regulation; 

Technical Amendments 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: This document makes 

amendments to the Federal Acquisition 

Regulation in order to make editorial 

changes. 

DATES: Effective Date: March 19, 2009. 

FOR FURTHER INFORMATION CONTACT: The 

Regulatory Secretariat, Room 4041, GS 

Building, Washington, DC, 20405, (202) 

501–4755, for information pertaining to 

status or publication schedules. Please 

cite FAC 2005–31, Technical 

Amendments. 

List of Subjects in 48 CFR Parts 3, 47, 

and 52 

Government procurement. 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amends 48 CFR parts 3, 47, and 52 as 

set forth below: 

■ 1. The authority citation for 48 CFR 

parts 3, 47, 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 3—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Revise section 3.503–2 to read as 

follows: 

3.503–2 Contract clause. 

The contracting officer shall insert the 

clause at 52.203–6, Restrictions on 

Subcontractor Sales to the Government, 

in solicitations and contracts exceeding 

the simplified acquisition threshold. For 

the acquisition of commercial items, the 

contracting officer shall use the clause 

with its Alternate I. 

PART 47—TRANSPORTATION 

47.103–1 [Amended] 

■ 3. Amend section 47.103–1 by 

removing from paragraph (c) ‘‘ATTN: 

FBA, 1800 F Street, NW., Washington, 

DC 20405’’ and adding ‘‘Transportation 

Audit Division (QMCA), Crystal Plaza 4, 

Room 300, 2200 Crystal Drive, 

Arlington, VA 22202.’’ in its place. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 4. Amend section 52.225–11 by 

revising the date in Alternate I; and 

revising paragraph (b)(1) of Alternate I 

to read as follows: 

52.225–11 Buy American Act— 

Construction Materials under Trade 

Agreements. 

* * * * * 

Alternate I (MAR 2009). * * * 

* * * * * 

(b) Construction materials. (1) This clause 

implements the Buy American Act (41 U.S.C. 

10a - 10d) by providing a preference for 

domestic construction material. In addition, 

the Contracting Officer has determined that 

the WTO GPA and all the Free Trade 

Agreements except NAFTA and the Bahrain 

FTA apply to this acquisition. In accordance 

with 41 U.S.C. 431, the component test of the 

Buy American Act is waived for construction 

material that is a COTS item (See FAR 

12.505(a)(2)). Therefore, the Buy American 

Act restrictions are waived for designated 

country construction materials other than 

Bahrainian or Mexican construction 

materials. 

* * * * * 

[FR Doc. E9–5857 Filed 3–18–09; 8:45 am] 

BILLING CODE 6820–EP–S 


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