60266 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

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 

■ 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) * * * 

lllll (31) 52.223–18, Contractor 

Policy to Ban Text Messaging while Driving 

(SEP 2010) (E.O. 13513). 

* * * * * 

■ 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 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 25 and 52 

[FAC 2005–46; FAR Case 2009–039; Item 

VII; Docket 2010–0104, Sequence 1] 

RIN 9000–AL62 

Federal Acquisition Regulation; Buy 

American Exemption for Commercial 

Information Technology—Construction 

Material 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

615 of Division C, Title VI, of the 

Consolidated Appropriations Act, 2010 

(Pub. L. 111–117). Section 615 

authorizes exemption from the Buy 

American Act for acquisition of 

information technology that is a 

commercial item. 

DATES: Effective Date: September 29, 

2010. 

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 

2009–039, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–039’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–039.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–039’’ 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. 


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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 60267 

Instructions: Please submit comments 

only and cite FAC 2005–46, FAR Case 

2009–039, 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 Ms. 

Cecelia L. Davis, Procurement Analyst, 

at (202) 219–0202. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–46, FAR Case 2009–039. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule amends FAR 

subparts 25.2 and 52.2 to implement 

section 615 of Division C, Title VI, of 

the Consolidated Appropriations Act, 

2010 (Pub. L. 111–117). Section 615 

authorizes exemption from the Buy 

American Act for acquisition of 

information technology that is a 

commercial item. 

This same exemption has appeared 

every year since Fiscal Year 2004 

(section 535(a) of Division F, Title V, 

Consolidated Appropriations Act, 2004 

(Pub. L. 108–199)). The Fiscal Year 2004 

exemption was implemented through 

deviations by the individual agencies. 

Subsequently, regulations were 

published to implement the exemption 

for supplies (71 FR 223, January 3, 

2006). The exemption for construction 

material was not implemented until 

publication of this interim rule. 

The interim rule is based on the 

probability that the exemption of 

commercial information technology is 

likely to continue. If the exception does 

not appear in a future appropriations 

act, a prompt change to the FAR will be 

made to limit applicability of the 

exemption to the fiscal years to which 

it applies. 

‘‘Information technology’’ and 

‘‘Commercial item’’ are already defined 

in FAR part 2. 

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 the 

rule simplifies the treatment of 

construction material that is also a 

commercial information technology 

item, which constitutes a small 

percentage of the overall construction 

material in a project. This interim rule 

does not affect small business set-asides 

to the prime contractor or the small 

business subcontracting goals. 

Construction contracts that exceed 

$7,804,000 and are subject to trade 

agreements already exempt designated 

country construction material from the 

Buy American Act. 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 

the FAR subparts 25 and 52 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 

2009–039) in all correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply because the changes to the FAR 

will slightly reduce the information 

collection requirements currently 

approved by the Office of Management 

and Budget (OMB Control number 

9000–0141, entitled Buy America Act— 

Construction—FAR Sections Affected: 

Subpart 25.2; 52.225–9; and 52.225–11) 

but we estimate that the impact will be 

negligible. 

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 to implement the 

changes resulting from the enactment of 

section 615 of Division C, Title VI, of 

the Consolidated Appropriations Act, 

2010 (Pub. L. 111–117), effective 

December 16, 2009. 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 25 and 

52 

Government procurement. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 25 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 25 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 25—FOREIGN ACQUISITION 

■ 2. Amend section 25.202 by revising 

the introductory text of paragraph (a), 

and by adding paragraph (a)(4) to read 

as follows: 

25.202 Exceptions. 

(a) When one of the following 

exceptions applies, the contracting 

officer may allow the contractor to 

acquire foreign construction materials 

without regard to the restrictions of the 

Buy American Act: 

* * * * * 

(4) Information technology that is a 

commercial item. The restriction on 

purchasing foreign construction 

material does not apply to the 

acquisition of information technology 

that is a commercial item, when using 

Fiscal Year 2004 or subsequent fiscal 

year funds (Section 535(a) of Division F, 

Title V, Consolidated Appropriations 

Act, 2004, and similar sections in 

subsequent appropriations acts). 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 3. Amend section 52.225–9 by 

revising the date of the clause and 

paragraph (b)(2) to read as follows: 

52.225–9 Buy American—Construction 

Materials. 

* * * * * 

BUY AMERICAN—CONSTRUCTION 

MATERIALS (SEP 2010) 

* * * * * 

(b) * * * 

(2) This requirement does not apply to 

information technology that is a commercial 

item or to the construction materials or 

components listed by the Government as 

follows: 

* * * * * 

■ 4. Amend section 52.225–11 by 

revising the date of the clause and 

paragraph (b)(3) to read as follows: 

52.225–11 Buy American Act— 

Construction Materials under Trade 

Agreements. 

* * * * * 


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60268 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

BUY AMERICAN ACT— 

CONSTRUCTION MATERIALS UNDER 

TRADE AGREEMENTS (SEP 2010) 

* * * * * 

(b) * * * 

(3) The requirement in paragraph (b)(2) of 

this clause does not apply to information 

technology that is a commercial item or to 

the construction materials or components 

listed by the Government as follows: 

[Contracting Officer to list applicable 

excepted materials or indicate ‘‘none’’] 

* * * * * 

[FR Doc. 2010–24206 Filed 9–28–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR 2010–0077, Sequence 8] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–46; 

Small Entity Compliance Guide 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Small Entity Compliance Guide. 

SUMMARY: This document is issued 

under the joint authority of the 

Secretary of Defense, the Administrator 

of General Services and the 

Administrator of the National 

Aeronautics and Space Administration. 

This Small Entity Compliance Guide has 

been prepared in accordance with 

section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996. It consists of a summary of rules 

appearing in Federal Acquisition 

Circular (FAC) 2005–46 which amend 

the FAR. Interested parties may obtain 

further information regarding these 

rules by referring to FAC 2005–46, 

which precedes this document. These 

documents are also available via the 

Internet at http://www.regulations.gov. 

DATES: For effective dates see separate 

documents, which follow. 

FOR FURTHER INFORMATION CONTACT: The 

analyst whose name appears in the table 

below. Please cite FAC 2005–46 and the 

specific FAR case number. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. 

LIST OF RULES IN FAC 2005–46 

Item Subject FAR case Analyst 

I .............. Equal Opportunity for Veterans (Interim) .............................................................................................. 2009–007 Woodson. 

II ............. Certification Requirement and Procurement Prohibition Relating to Iran Sanctions (Interim) .............. 2010–012 Davis. 

III ............ Termination for Default Reporting ......................................................................................................... 2008–016 Parnell. 

IV ........... Award-Fee Language Revision ............................................................................................................. 2008–008 Chambers. 

V ............. Offering a Construction Requirement–8(a) Program ............................................................................ 2009–020 Morgan. 

VI ........... Encouraging Contractor Policies to Ban Text Messaging While Driving (Interim) ................................ 2009–028 Clark. 

VII ........... Buy American Exemption for Commercial Information Technology—Construction Material (Interim) 2009–039 Davis. 

SUPPLEMENTARY INFORMATION: 

Summaries for each FAR rule follow. 

For the actual revisions and/or 

amendments made by these FAR cases, 

refer to the specific item number and 

subject set forth in the documents 

following these item summaries. 

FAC 2005–46 amends the FAR as 

specified below: 

Item I—Equal Opportunity for Veterans 

(FAR Case 2009–007) (Interim) 

This interim rule with request for 

comments implements the Department 

of Labor’s (DoL) Office of Federal 

Contract Compliance Programs (OFCCP) 

final rule published in the Federal 

Register at 72 FR 44393 on August 8, 

2007, that implements amendments to 

the affirmative action provisions of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1972 (VEVRAA), as 

amended by the Jobs for Veterans Act 

(JVA). The rule re-titles FAR subpart 

22.13 from ‘‘Special Disabled Veterans, 

Veterans of the Vietnam Era, and Other 

Eligible Veterans’’ to ‘‘Equal Opportunity 

for Veterans.’’ Accordingly, FAR clause 

52.222–35 is also renamed ‘‘Equal 

Opportunity for Veterans’’ and 

incorporates the new categories and 

definitions of protected veterans as 

established by DoL. In addition, the 

FAR clause at 52.222–37, ‘‘Employment 

Reports on Special Disabled Veterans, 

Veterans of the Vietnam Era, and Other 

Eligible Veterans’’ is renamed 

‘‘Employment Reports on Veterans’’ and 

the new DoL requirements for using the 

VETS–100A report are incorporated. 

Lastly, the FAR provision at 52.222–38, 

‘‘Compliance with Veterans’ 

Employment Reporting Requirements,’’ 

is revised to incorporate new title 

references for FAR 52.222–37 and the 

new report form VETS–100A. 

Item II—Certification Requirement and 

Procurement Prohibition Relating to 

Iran Sanctions (FAR Case 2010–012) 

(Interim) 

This interim rule amends the FAR by 

enhancing efforts to enforce sanctions 

with Iran. The rule implements 

requirements imposed by the 

Comprehensive Iran Sanctions, 

Accountability, and Divestment Act of 

2010 (Pub. L. 111–195), specifically 

sections 102 and 106. To implement 

section 102, the FAR will require 

certification that each offeror, and any 

person owned or controlled by the 

offeror, does not engage in any activity 

for which sanctions may be imposed 

under section 5 of the Iran Sanctions 

Act. This rule also partially implements 

section 106 of Public Law 111–195, 

which imposes a procurement 

prohibition relating to contracts with 

persons that export certain sensitive 

technology to Iran. There will be further 

implementation of Section 106 in FAR 

Case 2010–018. This rule will have little 

effect on United States small business 

concerns, because such dealings with 

Iran are already prohibited in the United 

States. 

Item III—Termination for Default 

Reporting (FAR Case 2008–016) 

This final rule amends the FAR to 

revise the contractor performance 

information process. The FAR revisions 

include changes to FAR parts 8, 12, 15, 

42, and 49. The purpose of the rule is 

to establish procedures for contracting 

officers to provide contractor 

information into the Federal Awardee 

Performance & Integrity Information 

System (FAPIIS) module of Past 


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