2 July 2011

USG Sees Threat in Contractor Text Messaging

	
[FR Doc. 2011-16676 Filed 07/01/2011 at 8:45 am; Publication Date:
07/05/2011]

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.

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: [INSERT DATE 30 DAYS AFTER
PUBLICATION IN THE FEDERAL REGISTER.]

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 reevaluating
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.

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 textmessaging
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:

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

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

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 ([INSERT ABBREVIATED MONTH AND YEAR
30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER])

* * * * *

(b) * * *

___(36) 52.223-18, Encouraging Contractor Policies
to Ban Text Messaging While Driving ([INSERT ABBREVIATED MONTH
AND YEAR 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER])
(E.O. 13513).

* * * * *

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

* * * * *

ENCOURAGING CONTRACTOR POLICIES TO BAN TEXT MESSAGING WHILE DRIVING
([INSERT ABBREVIATED MONTH AND YEAR 30 DAYS AFTER DATE OF PUBLICATION
IN THE FEDERAL REGISTER])

* * * * *

(c) The Contractor is encouraged to—
* * * * *

[BILLING CODE 6820-EP]