[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11829-11832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5861]


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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.

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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:
    <bullet> 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.
    <bullet> Fax: 202-501-4067.
    <bullet> 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.

[[Page 11830]]

    b. The definition section, FAR 26.401, adds four definitions from 
the Act. These definitions are ``apparently wholesome food,'' ``excess 
food,'' ``food-insecure'' 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

[[Page 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.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 26, 31, and 52 as set 
forth below:
0
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

0
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

0
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

0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraph (c)(7) as paragraph (c)(8); and adding a new 
paragraph (c)(7); and
0
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.
* * * * *
0
5. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
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:

[[Page 11832]]

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.)
* * * * *
0
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 food-
insecure 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