Federal Acquisition Regulation; FAR Case 2008-017, Federal Food Donation Act of 2008 (Pub. L. 110-247), 65607-65608 [E9-28933]

Download as PDF Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Rules and Regulations mstockstill on DSKH9S0YB1PROD with RULES2 applications can operate in an IPv6 environment without costly upgrades. The final rule is necessary to amend the FAR to require IPv6 capable products be included in IT procurements. In addition, establishing FAR language ensures that all new information technology systems and applications purchased by the Federal Government will be able to operate in an IPv6 environment, to the maximum extent practical. The Councils believe that the final rule fully captures the intent of OMB Memorandum M–05–22. b. Comment: One respondent questioned whether any of the proposed amendments to FAR parts 7, 12 and 39 need to refer to the ‘‘additional requirement’’ at all. It is likely the ‘‘additional requirements’’ are those the CIO Council is or may be developing to address internal, non-procurement related transition activities (see Attachment C to OMB memorandum). Instead of referring broadly to the OMB memorandum in the proposed FAR amendments, it might make sense to refer narrowly to the section of the memorandum entitled ‘‘Selecting Products and Capabilities,’’ the only portion of the memorandum that directly addresses acquisition of IPv6 compliant information technology. FAR parts 7 and 12 both refer to the OMB memorandum and to ‘‘additional requirements’’ and FAR part 39 refers only to the OMB memorandum and not ‘‘additional requirements’’. Response: This final rule has been revised to remove references to ‘‘additional requirements’’. New FAR 11.002(g) refers to NIST Special Publication 500–267. Previous Web references have been deleted and a reference to OMB Memorandum M–05– 22 has been retained. 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 the Government expects that commercially available items will be required, with no additional testing being necessary. The Chief Counsel for Advocacy, Office of Advocacy, within the Small Business Administration (SBA) was consulted by VerDate Nov<24>2008 17:21 Dec 09, 2009 Jkt 220001 the Councils on the impact of this rule on small businesses. SBA conducted its own informal survey with small businesses and their conclusion is that there is no negative impact on small businesses.There are no known significant alternatives that will accomplish the objectives of this rule. No alternatives were proposed during the public comment period. 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 7, 11, 12, and 39 Government procurement. 65607 must include reference to the appropriate technical capabilities defined in the USGv6 Profile (NIST Special Publication 500–267) and the corresponding declarations of conformance defined in the USGv6 Test Program. The applicability of IPv6 to agency networks, infrastructure, and applications specific to individual acquisitions will be in accordance with the agency’s Enterprise Architecture (see OMB Memorandum M–05–22 dated August 2, 2005). * * * * * PART 12—ACQUISITION OF COMMERCIAL ITEMS 4. Amend section 12.202 by adding paragraph (e) to read as follows: ■ 12.202 Market research and description of agency need. * Dated: November 30, 2009. Al Matera, Director, Acquisition Policy Division. Therefore, DoD, GSA, and NASA amend 48 CFR parts 7, 11, 12, and 39 as set forth below: ■ 1. The authority citation for 48 CFR parts 7, 11, 12, and 39 continues to read as follows: ■ * * * * (e) When acquiring information technology using Internet Protocol, agencies must include the appropriate Internet Protocol compliance requirements in accordance with 11.002(g). PART 39—ACQUISITION OF INFORMATION TECHNOLOGY 5. Amend section 39.101 by adding paragraph (e) 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 7—ACQUISITION PLANNING 39.101 2. Amend section 7.105 by adding paragraph (b)(4)(iii) to read as follows: ■ 7.105 Contents of written acquisition plans. (b) * * * (4) * * * (iii) For information technology acquisitions using Internet Protocol, discuss whether the requirements documents include the Internet Protocol compliance requirements specified in 11.002(g) or a waiver of these requirements has been granted by the agency’s Chief Information Officer. * * * * * PART 11—DESCRIBING AGENCY NEEDS Policy. * * * * * (e) When acquiring information technology using Internet Protocol, agencies must include the appropriate Internet Protocol compliance requirements in accordance with 11.002(g). [FR Doc. E9–28931 Filed 12–9–09; 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 3. Amend section 11.002 by redesignating paragraph (g) as paragraph (h), and adding a new paragraph (g) to read as follows: [FAC 2005–38; FAR Case 2008–017; Item IV; Docket 2009–0007, Sequence 1] 11.002 Federal Acquisition Regulation; FAR Case 2008–017, Federal Food Donation Act of 2008 (Pub. L. 110–247) ■ Policy. * * * * * (g) Unless the agency Chief Information Officer waives the requirement, when acquiring information technology using Internet Protocol, the requirements documents PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 RIN 9000–AL49 AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). E:\FR\FM\10DER2.SGM 10DER2 65608 ACTION: Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Rules and Regulations Final rule. 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: mstockstill on DSKH9S0YB1PROD with RULES2 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 costreimbursement 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 VerDate Nov<24>2008 17:21 Dec 09, 2009 Jkt 220001 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 nonappropriated funds. The commenter expresses uncertainty as to whether this rule is applicable to their typical (nonappropriated 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, PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 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 DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 31 [FAC 2005–38; FAR Case 2006–021; Item V; Docket 2009-0043, Sequence 1] RIN 9000–AK84 Federal Acquisition Regulation; FAR Case 2006–021, Postretirement Benefits (PRB), FAS 106 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 E:\FR\FM\10DER2.SGM 10DER2

Agencies

[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.

-----------------------------------------------------------------------

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