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

Laura Auletta
Federal Register
July 5, 2011

[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39240-39242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16676]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 2005-53; FAR Case 2009-028; Item V; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA have adopted as final, with changes, the 
interim rule amending the Federal Acquisition Regulation (FAR) to 
implement Executive Order (E.O.) 13513, dated October 1, 2009, entitled 
``Federal Leadership on Reducing Text Messaging while Driving.''

DATES: Effective Date: August 4, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement 
Analyst, at (202) 219-1813, for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-53, FAR 
Case 2009-028.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 75 FR 60264 on September 29, 2010, to amend the FAR to 
implement E.O. 13513 (October 1, 2009), published in the Federal 
Register at 74 FR 51225 on October 6, 2009, entitled ``Federal 
Leadership on Reducing Text Messaging while Driving.'' The rule 
requires Government agencies to encourage Federal contractors and 
subcontractors to adopt and enforce policies that ban text messaging 
while driving. This requirement applies to all solicitations and 
contracts entered into on or after September 29, 2010. The interim rule 
encouraged contracting officers to modify existing contracts to include 
the FAR clause 52.223-18, Contractor Policy to Ban Text Messaging While 
Driving. The clause in the interim rule indicated that Federal 
contractors should adopt and enforce policies banning text messaging 
while driving 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. The interim rule clause also indicated that Federal 
contractors should conduct initiatives such as--
    (1) Establishing new rules and programs or re-evaluating existing 
programs to prohibit text messaging while driving; and
    (2) Education, awareness, and other outreach programs to inform 
employees about the safety risks associated with texting while driving.
    As a result of public comments, the Civilian Agency Acquisition 
Council and the Defense Acquisition Regulations Council (the Councils) 
changed ``should'' to ``encouraged to'' in this final rule clause. The 
revised language better aligns with the intent of the Executive Order. 
A corresponding change has been made to the clause title. Five 
respondents submitted comments on the interim rule.

[[Page 39241]]

II. Discussion and Analysis of the Public Comments

    The Councils reviewed the public comments in the development of the 
final rule. A discussion of the comments and the changes made to the 
rule as a result of those comments are provided as follows:
    Comments: A respondent recommended that the clause should not be 
adopted and incorporated into the FAR because it does not mandate that 
contractors perform any action and does not include any enforcement 
language. Another respondent commented that it would be a much stronger 
stance to make it mandatory that all Federal contractors and 
subcontractors ``enforce'' these policies in states with text-messaging 
bans.
    Response: The purpose of this rule is to implement E.O. 13513, 
which requires each Federal agency only to encourage contractors and 
subcontractors to adopt and enforce policies that ban texting while 
driving. The Executive Order does not include enforcement provisions.
    Comment: A respondent recommended that the final rule be modified 
to include the Federal Motor Carrier Safety Administration (FMCSA) 
definitions of electronic device, texting, and driving at 49 CFR 390.5 
and 49 CFR 392.80.
    Response: The FMCSA regulations are more restrictive than FAR 
52.223-18, which only encourages the adoption of policies to ban text 
messaging while driving. The FAR rule does not include enforcement 
methods or consequences for not adopting policies, unlike the FMCSA 
regulations. The Department of Transportation (DOT) was consulted 
regarding this comment, and DOT agreed that no changes to the 
definitions are required.
    Comment: A respondent stated that the provisions at 41 U.S.C. 430 
and 431 are intended to limit the clauses that are to be applied to 
contractors that sell commercial items to the Government so that 
commercial item contracts reflect customary commercial terms and 
conditions to the extent practicable. The respondent recommended that 
the final rule exempt commercial and commercially available off-the-
shelf contracts and limit application of the rule to subcontracts over 
$25,000.
    Response: This rule requires each Federal agency only to encourage 
adoption and enforcement policies that ban texting while driving. 
Implementing such policies in any contract or subcontract is not 
mandatory. In addition, 41 U.S.C. 430 (renumbered as 41 U.S.C. 1906) 
and 41 U.S.C. 431 (renumbered as 41 U.S.C. 1907) do not address waiver 
of Executive orders.
    Comment: A respondent noted that this rule will improve the safety 
of our roads and provides Government contractors with a better 
understanding of the risks associated with texting while driving.
    Response: Noted.
    Comment: One respondent suggested that because the rule is not 
mandatory, the title of FAR clause 52.223-18 should begin with 
``Encouragement of,'' and the introductory paragraph at FAR 52.223-
18(c) should begin with ``The Contractor is encouraged to'' instead of 
``The Contractor should.''
    Response: The Councils agree that the recommended changes better 
represent the purpose of the rule. The final rule reflects the 
recommended changes.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. 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 only 
encourages contractors to adopt policies that ban texting while 
driving. The adoption of such policies is not mandatory for 
contractors, including small businesses.

V. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 23 and 52

    Government procurement.

    Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy.

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR parts 23 and 52, 
which was published in the Federal Register at 75 FR 60264 on September 
29, 2010, is adopted as final with the following changes:

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. Revise section 23.1105 to read as follows:


23.1105  Contract clause.

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

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.212-5 by revising the date of the clause and 
paragraph (b)(36) 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 (AUG 2011)

* * * * *
    (b) * * *
    ---- (36) 52.223-18, Encouraging Contractor Policies to Ban Text 
Messaging While Driving (AUG 2011)
* * * * *


0
4. Amend section 52.223-18 by revising the section heading, the heading 
and date of the clause, and the paragraph (c) introductory text to read 
as follows:

[[Page 39242]]

52.223-18  Encouraging Contractor Policies To Ban Text Messaging While 
Driving.

* * * * *

Encouraging Contractor Policies To Ban Text Messaging While Driving 
(AUG 2011)

* * * * *
    (c) The Contractor is encouraged to--
* * * * *
[FR Doc. 2011-16676 Filed 7-1-11; 8:45 am]
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