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110th Congress
                                 SENATE
                                                                 Report
 2nd Session                                                    110-338
_______________________________________________________________________

                                     

                                                       Calendar No. 748

                   FEDERAL FOOD DONATION ACT OF 2008

                               ----------                              

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                              to accompany

                                S. 2420


  TO ENCOURAGE THE DONATION OF EXCESS FOOD TO NONPROFIT ORGANIZATIONS 
THAT PROVIDE ASSISTANCE TO FOOD-INSECURE PEOPLE IN THE UNITED STATES IN 
    CONTRACTS ENTERED INTO BY EXECUTIVE AGENCIES FOR THE PROVISION, 
                        SERVICE, OR SALE OF FOOD




                  May 22, 2008.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
                         Troy H. Cribb, Counsel
                      Nora K. Adkins, GAO Detailee
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
               Richard A. Beutel, Minority Senior Counsel
                  Trina Driessnack Tyrer, Chief Clerk



                                                       Calendar No. 748
110th Congress
                                 SENATE
                                                                 Report
 2nd Session                                                    110-338

======================================================================



 
                   FEDERAL FOOD DONATION ACT OF 2008

                                _______
                                

                  May 22, 2008.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2420]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2420) to encourage 
the donation of excess food to nonprofit organizations that 
provide assistance to food-insecure people in the United States 
in contracts entered into by executive agencies for the 
provision, service, or sale of food, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. PURPOSE AND SUMMARY

    The purpose of S. 2420 is to encourage federal agencies and 
their contractors to donate excess food to nonprofit 
organizations serving the needy. The bill requires federal 
contracts above $25,000 for the provision of food, or for the 
lease or rental of federal property to a private entity for 
events at which food is provided, to include a clause that 
encourages--but does not require--the donation of excess food 
to nonprofit organizations.
    As reported, the bill 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.\1\
---------------------------------------------------------------------------
    \1\42 U.S.C. 1791(b).
---------------------------------------------------------------------------

              II. BACKGROUND AND NEED FOR THE LEGISLATION

    Research from the United States Department of Agriculture 
(USDA) has found that more than one-quarter of all the food 
produced for human consumption in America is currently 
discarded.\2\ At the same time this waste is occurring, 11 
percent (12.6 million households) of U.S. households are food 
insecure.\3\ These households, at some time during the year, 
had difficulty providing enough food for all their members due 
to a lack of resources.\4\ About a third of these food-insecure 
households (4.4 million, or 3.9 percent of all U.S. households) 
were food insecure to the extent that one or more household 
members were hungry, at least some time during the year, 
because they could not afford enough food.\5\ The Committee 
believes that one way to address hunger is to encourage federal 
agencies and their contractors to donate excess foods to 
nonprofit organizations serving the needy.
---------------------------------------------------------------------------
    \2\United States Department of Agriculture, Waste Not, Want Not, 
October, 2001. Can be found at http://www.epa.gov/epaoswer/non-hw/
reduce/wast_not.pdf.
    \3\United States Department of Agriculture, Household Food Security 
in the United States, 2005. Can be found at http://www.ers.usda.gov/
publications/err29/err29.pdf.
    \4\Id.
    \5\Id.
---------------------------------------------------------------------------
    Nonprofits in the business of food rescue serve millions of 
people. City Harvest, in New York City, for example, picks up 
excess food from places such as restaurants, groceries, 
manufacturers, wholesalers, and greenmarkets, and delivers the 
food to soup kitchens, food pantries, day care and senior 
citizen centers, homeless shelters and other places that serve 
those in need. In fiscal year 2008, City Harvest rescued 
approximately 20 million pounds of excess, nutritious food.\6\ 
Rock and Wrap it Up!, a national food rescue organization 
headquartered in New York and supporter of this legislation, 
collects leftover food from professional sporting events and 
concerts. Last year they collected approximately 350,000 pounds 
of food for a total of one million meals.\7\ These 
organizations, though, find it difficult to keep up with 
demand.
---------------------------------------------------------------------------
    \6\City Harvest Inc., About Us. Can be found at http://
www.cityharvest.org/home.aspx?catid=0&pg;=1.
    \7\Rock and Wrap it Up!. Can be found at http://
www.rockandwrapitup.org/index/.
---------------------------------------------------------------------------
    According to a new report released by the U.S. Conference 
of Mayors on December 17, 2007, request for emergency food 
assistance from food pantries, emergency kitchens and home-
delivered meal programs increased an average of 10 percent over 
the last year.\8\ At the same time food costs are increasing. A 
recent Congressional Research report found U.S. food prices 
rose 4% in 2007 and are expected to increase by 3.5% to 4.5% in 
2008.\9\ America's food banks are straining to meet their needs 
with the increase in both food requests and food costs. For 
example, a December 8, 2007 Washington Post article reported 
that the Capitol Area Food Bank, the emergency food system for 
Washington D.C., had only 230,000 pounds of food on its 
shelves, down from 570,000 pounds at this time last year.\10\ 
Overall this year, the Capitol Area Food Bank is projecting 
totals to fall roughly 6 percent below last year's total of 
19.5 million pounds. America's Second Harvest, the country's 
leading hunger-relief charity, issued an urgent call for 
support on Thanksgiving Day 2007, projecting an immediate food 
shortage of 15 million pounds--the equivalent of more than 400 
truckloads or 11.7 million meals--by the end of the year.\11\
---------------------------------------------------------------------------
    \8\The United States Conference of Mayors, Hunger and Homelessness 
Survey, at 4-6. Can be found at http://usmayors.org/HHSurvey2007/
hhsurvey07.pdf.
    \9\CRS Report, Food Price Inflation: Causes and Impacts, April 10, 
2008. Can be found at http://www.congress.gov/erp/rs/pdf/RS22859.pdf.
    \10\The Washington Post, Cupboards are Bare at Food Banks, page 
A01. Can be found at http://www.capitalareafoodbank.org/documents/
documents/cupboardsarebare.pdf.
    \11\American's Second Harvest, Nation Responds, But Shortage Still 
Critical At Food Banks Around The Country, December 17, 2007. Can be 
found at http://www.secondharvest.org/news_room/2007_press_releases/
121707.html.
---------------------------------------------------------------------------
    Nationally the value of USDA commodities provided by the 
Emergency Food Assistance Program has dropped from $242 million 
in Fiscal Year 2003 to only $58 million in the last Fiscal 
Year. With the increase in demand--as high as 20 percent among 
food banks and food rescue organizations--and the national 
shortage of donated food, the Committee believes it is 
appropriate to encourage federal agencies and their contractors 
to donate excess food to nonprofit organizations serving the 
needy.

                        III. LEGISLATIVE HISTORY

    S. 2420 was introduced by Senator Charles E. Schumer and 
was referred to the Committee on Homeland Security and 
Governmental Affairs on December 6, 2007. S. 2420 was 
cosponsored by Senator Lugar, Senator Menendez, Senator 
Collins, Senator Voinovich, Senator Crapo, and Senator Durbin. 
Its companion bill H.R. 4220 was introduced on November 15, 
2007, and referred to the Committee on Oversight and Government 
Reform. The Committee on Oversight and Government Reform held a 
markup to consider H.R. 4220 on December 12, 2007, and ordered 
the bill to be reported by voice vote as amended. On December 
17, 2007, the House passed by voice vote H.R. 4220 under 
suspension of the rules. On December 18, 2007, H.R. 4220 was 
received in the Senate. It was read twice and referred to the 
Committee on Homeland Security and Governmental Affairs on 
January 22, 2008.
    S. 2420 was reported favorably by the Committee by voice 
vote on April 10, 2008 as amended by the Lieberman-Collins 
substitute. The substitute amendment: clarifies that both the 
government and contractor, when donating food, will be covered 
by the liability protections extended to donors of food under 
the Bill Emerson Good Samaritan Food Donation Act of 1996; 
specifies that the contract clause required by the bill applies 
only to contracts to be performed within the United States; and 
strikes a section of the bill creating a food security 
coordinator at the United States Department of Agriculture. 
Members present for the vote on the bill as amended were 
Senators Lieberman, Levin, Akaka, Carper, Landrieu, McCaskill, 
Tester, Collins, Voinovich, and Sununu.

                    IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

    Section 1 designates the name of the act as the ``Federal 
Food Donation Act of 2008.''

Section 2. Purpose

    Section 2 describes the purpose of the act as encouraging 
executive agencies and contractors of executive agencies, to 
the maximum extent practicable and safe, to donate excess, 
apparently wholesome food to feed food-insecure people in the 
United States.

Section 3. Definitions

    Section 3 defines the following terms for purposes of the 
act: ``apparently wholesome food,'' ``excess,'' ``food-
insecure,'' and ``nonprofit organization.''
    ``Apparently wholesome food'' has the meaning given to the 
term in section 2(b) of the Bill Emerson Good Samaritan Food 
Donation Act (42 U.S.C. 1791(b)), which defines apparently 
wholesome food as 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.
    ``Food-Insecure'' is defined as inconsistent access to 
sufficient, safe, and nutritious food.

Section 4. Promoting Federal Food Donation

    Subsection (a) requires that the Federal Acquisition 
Regulation, as issued in accordance with section 25 of the 
Federal Procurement Policy Act (41 U.S.C. 421), be revised to 
provide that all contracts above $25,000 for the provision, 
services, or sale of food in the United States, or for the 
lease or rental of Federal property to a private entity for 
events at which food is provided in the United States, shall 
include a clause that encourages the donation of excess, 
apparently wholesome food to nonprofit organizations that 
provide assistance to food-insecure people.
    Subsection (b) requires, for cases 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, 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.
    Subsection (c) specifies that an executive agency 
(including an 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) (``Bill Emerson Act''). The Bill 
Emerson Act already exempts persons from civil or criminal 
liability arising from the nature, age, packaging, or condition 
of apparently wholesome food or an apparently fit grocery 
product that the person donates in good faith to a nonprofit 
organization for ultimate distribution to needy individuals. 
The effect of subsection (c) is to make clear that both the 
government and the contractor would benefit from this liability 
protection. (The Bill Emerson Act also separately provides the 
same liability protection for nonprofit organizations receiving 
such donations in good faith for distribution to needy 
individuals.)

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. The 
Congressional Budget Office states that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandate Reform Act and would not affect the budgets of 
state, local, and tribal governments. The enactment of this 
legislation will not have significant regulatory impact.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                                    April 11, 2008.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2420, the Federal 
Food Donation Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2420--Federal Food Donation Act of 2008

    CBO estimates that enacting S. 2420 would have no 
significant impact on the federal budget, and would not affect 
direct spending or revenues. S. 2420 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, and tribal governments.
    S. 2420 would amend Federal Acquisition Regulations to 
require a clause in food services contracts of over $25,000 to 
encourage donation of any excess food. Under the legislation, 
federal agencies would not be responsible for the costs of 
transporting or collecting any donated food. In addition, 
agencies and contractors would be protected from any civil or 
criminal liabilities arising from such donations.
    On December 17, 2007, CBO provided a cost estimate for H.R. 
4220, the Federal Food Donation Act of 2007, as ordered 
reported by the House Committee on Oversight and Government 
Reform on December 12, 2007. The two pieces of legislation are 
similar, and the CBO cost estimates are identical.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    No changes to existing law are made by S. 2420, as 
reported.