60264 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

requirements be submitted to the SBA 

District Office for the geographical area 

where the work is to be performed. 

However, the SBA regulation requires 

the offering letters for sole source 

requirements offered on behalf of a 

specific participant be submitted to the 

SBA district office servicing that 

concern. 

This is not a significant regulatory 

action and, therefore, was not 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 Regulatory Flexibility Act does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501–3(a) and 41 U.S.C. 418b, and 

publication for public comments is not 

required. 

The Councils will consider comments 

from small entities concerning the 

existing regulations in the part 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 

2009–020) 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. 

List of Subjects in 48 CFR Part 19 

Government procurement. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 19 as set forth 

below: 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 1. The authority citation for 48 CFR 

part 19 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). 

■ 2. Amend section 19.804–2 by— 

■ a. Revising paragraph (b)(1); and 

■ b. Redesignating paragraph (b)(2) as 

paragraph (b)(3); and adding a new 

paragraph (b)(2). 

■ The revised and added text reads as 

follows: 

19.804–2 Agency offering. 

* * * * * 

(b)(1) An agency offering a 

construction requirement for which no 

specific offeror is nominated should 

submit it to the SBA District Office for 

the geographical area where the work is 

to be performed. 

(2) An agency offering a construction 

requirement on behalf of a specific 

offeror should submit it to the SBA 

District Office servicing that concern. 

* * * * * 

[FR Doc. 2010–24163 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 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. 

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— 


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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 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), micropurchases 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 micropurchase 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 companyowned 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. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 23 and 52 as set 

forth below: 

■ 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. 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. 

■ 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 


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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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