[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