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.