Federal Acquisition Regulation; Encouraging Contractor Policies To Ban Text Messaging While Driving

Edward Loeb
September 29, 2010

[Federal Register: September 29, 2010 (Volume 75, Number 188)]
[Rules and Regulations]               
[Page 60264-60266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se10-22]                         

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 2005-46; FAR Case 2009-028; Item VI; Docket 2010-0097, Sequence 1]
RIN 9000-AL64

 
Federal Acquisition Regulation; Encouraging Contractor Policies 
To Ban Text Messaging While Driving

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 (the Councils) are issuing an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Executive Order 13513, issued on October 1, 2009, entitled ``Federal 
Leadership on Reducing Text Messaging while Driving.'' This Executive 
Order was issued to demonstrate Federal leadership in improving safety 
on the nation's roads and highways, and to enhance the efficiency of 
Federal contracting. The purpose of this policy is to prevent the 
unsafe practice of text messaging by Federal contractors while driving 
in connection with Government business. This policy further promotes 
economy and efficiency in Federal procurement, and seeks to prohibit 
the disruption of Government business and Federal procurement, as a 
result of unsafe text messaging practices.

DATES: Effective Date: September 29, 2010.
    Applicability Date: The rule applies to solicitations issued and 
contracts awarded on or after September 29, 2010. However, contracting 
officers are encouraged to modify existing contracts, in accordance 
with FAR 1.108(d)(3), to include the FAR clause.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before November 29, 2010 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-46, FAR Case 2009-
028, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-028'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2009-028.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2009-028'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street, NW., Room 4041, Attn: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-46, FAR 
Case 2009-028, 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: For clarification of content, contact 
Mr. William Clark, Procurement Analyst, at (202) 219-1813. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-46, FAR 
Case 2009-028.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule revises the Federal Acquisition Regulation to 
implement Executive Order 13513, issued on October 1, 2009 (74 FR 
51225, October 6, 2009), entitled ``Federal Leadership on Reducing Text 
Messaging while Driving.''
    Text messaging while driving causes drivers to take their eyes off 
the road and at least one hand off the steering wheel, endangering both 
themselves and others. In order to implement the Executive order, this 
interim rule creates a new subpart in FAR part 23 and an associated 
clause to encourage Federal contractors and subcontractors to adopt and 
enforce policies that ban text messaging while driving--

[[Page 60265]]

     Company-owned or -rented vehicles or Government-owned 
vehicles; or
     Privately-owned vehicles when on official Government 
business or when performing any work for or on behalf of the 
Government.
    It also encourages Federal contractors, in connection with a 
Government contract, to conduct initiatives, commensurate with the size 
of the business, such as--
     Establishment of new rules and programs or re-evaluation 
of existing programs to prohibit text messaging while driving; and
     Education, awareness, and other outreach programs to 
inform employees about the safety risks associated with texting while 
driving.
    The clause does not flow down to subcontracts below the micro-
purchase level, because the FAR applies only a very few clauses to 
acquisitions below the micro-purchase threshold. According to FAR 
13.201(d), micro-purchases do not require provisions or clauses except 
as provided in FAR 4.1104 (Central Contractor Registration) and FAR 
32.1110 (Electronic Funds Transfer). Therefore, it is reasonable not to 
require flow down below the micro-purchase level. However, Federal 
Contractors are encouraged to comply with this requirement to prevent 
the unsafe practice of text messaging while driving in connection with 
Government business. This requirement applies to all solicitations and 
contracts. This requirement also applies to grants and cooperative 
agreements. Separate guidance may be issued by the Office of Federal 
Financial Management regarding grants and cooperative agreements.
    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 Councils do not expect this interim rule 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 invite comments from small business 
concerns and other interested parties on the expected impact of this 
rule on small entities.
    The Councils will also consider comments from small entities 
concerning the existing regulations in parts affected by this rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAC 2005-46, FAR Case 
2009-028) 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 this rule implements Executive Order 13513, 
``Federal Leadership on Reducing Text Messaging While Driving,'' which 
had a required date for agency implementation of 90 days from the date 
of the order (October 1, 2009). An interim rule is necessary to improve 
safety on our roads and highways and to enhance the efficiency of 
Federal contracting. Specifically, this order requires agencies to 
encourage Federal contractors and subcontractors to adopt and enforce 
policies banning text messaging while driving company-owned or -rented 
vehicles or Government-owned vehicles, or while driving personally-
owned vehicles when on official Government business or when performing 
any work for or on behalf of the Government. The Councils believe an 
interim rule in the FAR will provide the Contracting Officer the 
relevant regulatory guidance needed when addressing requirements 
outlined in the Executive Order. However, pursuant to 41 U.S.C. 418b 
and FAR 1.501-3(b), 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 23 and 52

    Government procurement.

    Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 23 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 23 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 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
2. Amend section 23.000 by revising the introductory text; removing 
from paragraph (e) the period and adding ``; and'' in its place; and 
adding paragraph (f) to read as follows:


23.000  Scope.

    This part prescribes acquisition policies and procedures supporting 
the Government's program for ensuring a drug-free workplace, for 
protecting and improving the quality of the environment, and 
encouraging the safe operation of vehicles by--
* * * * *
    (f) Encouraging contractors to adopt and enforce policies that ban 
text messaging while driving.

0
3. Add Subpart 23.11 to read as follows:

Subpart 23.11--Encouraging Contractor Policies to ban text 
messaging while driving

Sec.
23.1101 Purpose.
23.1102 Applicability.
23.1103 Definitions.
23.1104 Policy.
23.1105 Contract clause.

Subpart 23.11--Encouraging Contractor Policies to Ban Text 
Messaging While Driving


23.1101  Purpose.

    This subpart implements the requirements of the Executive Order 
(E.O.) 13513, dated October 1, 2009 (74 FR 51225, October 6, 2009), 
Federal Leadership on Reducing Text Messaging while Driving.


23.1102  Applicability.

    This subpart applies to all solicitations and contracts.


23.1103  Definitions.

    As used in this subpart--
    Driving--(1) Means operating a motor vehicle on an active roadway 
with the motor running, including while temporarily stationary because 
of traffic, a traffic light, stop sign, or otherwise.
    (2) Does not include operating a motor vehicle with or without the 
motor running when one has pulled over to

[[Page 60266]]

the side of, or off, an active roadway and has halted in a location 
where one can safely remain stationary.
    Text messaging means reading from or entering data into any 
handheld or other electronic device, including for the purpose of short 
message service texting, e-mailing, instant messaging, obtaining 
navigational information, or engaging in any other form of electronic 
data retrieval or electronic data communication. The term does not 
include glancing at or listening to a navigational device that is 
secured in a commercially designed holder affixed to the vehicle, 
provided that the destination and route are programmed into the device 
either before driving or while stopped in a location off the roadway 
where it is safe and legal to park.


23.1104  Policy.

    Agencies shall encourage contractors and subcontractors to adopt 
and enforce policies that ban text messaging while driving--
    (a) Company-owned or -rented vehicles or Government-owned vehicles; 
or
    (b) Privately-owned vehicles when on official Government business 
or when performing any work for or on behalf of the Government.


23.1105  Contract clause.

    The contracting officer shall insert the clause at 52.223-18, 
Contractor Policy to Ban Text Messaging While Driving, in all 
solicitations and contracts.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 52.212-5 by revising the date of clause; redesignating 
paragraphs (b)(31) thru (b)(43) as paragraphs (b)(32) thru (b)(44); and 
adding a new 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 (Sep 2010)

* * * * *
    (b) * * *
    ---------- (31) 52.223-18, Contractor Policy to Ban Text 
Messaging while Driving (SEP 2010) (E.O. 13513).
* * * * *

0
5. Add section 52.223-18 to read as follows:


52.223-18  Contractor Policy to Ban Text Messaging While Driving.

    As prescribed in 23.1105, insert the following clause:

CONTRACTOR POLICY TO BAN TEXT MESSAGING WHILE DRIVING (SEP 2010)

    (a) Definitions. As used in this clause--
    Driving--(1) Means operating a motor vehicle on an active 
roadway with the motor running, including while temporarily 
stationary because of traffic, a traffic light, stop sign, or 
otherwise.
    (2) Does not include operating a motor vehicle with or without 
the motor running when one has pulled over to the side of, or off, 
an active roadway and has halted in a location where one can safely 
remain stationary.
    Text messaging means reading from or entering data into any 
handheld or other electronic device, including for the purpose of 
short message service texting, e-mailing, instant messaging, 
obtaining navigational information, or engaging in any other form of 
electronic data retrieval or electronic data communication. The term 
does not include glancing at or listening to a navigational device 
that is secured in a commercially designed holder affixed to the 
vehicle, provided that the destination and route are programmed into 
the device either before driving or while stopped in a location off 
the roadway where it is safe and legal to park.
    (b) This clause implements Executive Order 13513, Federal 
Leadership on Reducing Text Messaging while Driving, dated October 
1, 2009.
    (c) The Contractor should--
    (1) Adopt and enforce policies that ban text messaging while 
driving--
    (i) Company-owned or -rented vehicles or Government-owned 
vehicles; or
    (ii) Privately-owned vehicles when on official Government 
business or when performing any work for or on behalf of the 
Government.
    (2) Conduct initiatives in a manner commensurate with the size 
of the business, such as--
    (i) Establishment of new rules and programs or re-evaluation of 
existing programs to prohibit text messaging while driving; and
    (ii) Education, awareness, and other outreach to employees about 
the safety risks associated with texting while driving.
    (d) Subcontracts. The Contractor shall insert the substance of 
this clause, including this paragraph (d), in all subcontracts that 
exceed the micro-purchase threshold.

(End of clause)

[FR Doc. 2010-24156 Filed 9-28-10; 8:45 am]
BILLING CODE 6820-EP-P