[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9346-9348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5555]



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DEPARTMENT OF DEFENSE
32 CFR Part 216

[DoD Directive 1322.13]
RIN 0790-AG13


Military Recruiting at Institutions of Higher Education

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: The Department of Defense adopts this final rule to implement 
the National Defense Authorization Act for Fiscal Year 1995. It updates 
policy, procedures, and responsibilities for identifying and taking 
action against any institution of higher education that has a policy of 
denying, or that effectively prevents, the Secretary of Defense from 
obtaining for military recruiting purposes entry to campuses, access to 
students on campuses, or access to student directory information. No 
funds available to the Department of Defense (DoD) may be provided by 
grant or contract to any such institution. The new law allows no basis 
for waivers.

EFFECTIVE DATE: January 26, 1996.

FOR FURTHER INFORMATION CONTACT:
Ronald G. Liveris, Accession Policy, Room 2B271, Office of the 
Assistant Secretary of Defense for Force Management Policy, 4000 
Defense Pentagon, Washington, DC 20301-4000. Telephone: (703) 697-9268.

SUPPLEMENTARY INFORMATION: 

Responses to Comments

    This final rule revises the interim-final rule adopted by DoD on 
May 30, 1995 (60 FR 28050). The Department of Defense received four 
comments on the interim-final rule. Each comment was reviewed and given 
careful consideration.
    Two commenters favored the interim-rule. One of these commenters 
asked whether the interm-rule prohibits DoD contract and grant awards 
at institutions of higher education that have a policy against Reserve 
Officer Training Corps (ROTC) programs. 10 U.S.C. 503 note does not 
address policy and practices affecting ROTC programs. The final rule 
only applies to institutions that have a policy of denying, or that 
effectively prevent, entry to campuses, access to students on campuses, 
or access to student directory information for military recruiting 
purposes.
    The other commenter in favor of the interim-rule specifically 
supported the provision that restricts the prohibition on the use of 
DoD funds to subelements of an institution of higher education that 
have a policy of denying, or that effectively prevent military 
recruiters access to campuses, access to students, or access to student 
directory information. A third commenter took the opposite view, 
arguing that the prohibition on the use of DoD funds should apply to an 
entire institution when the institution or any of its subelements are 
determined to have such a policy or practice. The final rule retains 
the provision that restricts the prohibition on DoD funds to 
subelements that deny access. Subordinate elements of an institution of 
higher education that administer their own placement policies to permit 
recruiting will not be subject to a prohibition on receiving DoD funds. 
This reflects DoD's interpretation of the law and its legislative 
history and DoD's intent to avoid entanglement with the internal 
decisionmaking processes of institutions of higher education.
    The fourth commenter stated that to protect individual privacy and 
``since the Department of Defense discriminates against gays in the 
military,'' that the Department should not have any access to students 
on campus or to student directory information. DoD policies concerning 
gays in the military are the result of implementing 10 U.S.C. chapter 
37, section 654 concerning homosexual conduct in the Armed Forces.
    This final rule implements 10 U.S.C. 503 note, as added by section 
558 of the National Defense Authorization Act for Fiscal Year 1995 
(Pub. L. 103-337).

Executive Order 12866

    This final rule is not a ``significant regulatory action,'' as 
defined by Executive Order 12866. The Department of Defense believes 
that it will not: (1) have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

Regulatory Flexibility Act

    This regulatory action will not have a significant adverse impact 
on a substantial number of small entities.

Paperwork Reduction Act

    This regulatory action will not impose any additional reporting or 
record keeping requirements under the Paperwork Reduction Act.

List of Subjects in 32 CFR Part 216

    Armed Forces, Colleges and universities, Recruiting personnel.

    Accordingly, 32 CFR Part 216 is revised to read as follows:

PART 216--MILITARY RECRUITING AT INSTITUTIONS OF HIGHER EDUCATION

Sec.
216.1  Purpose.
216.2  Applicability.
216.3  Definitions.
216.4  Policy.
216.5  Responsibilities.

Appendix A to Part 216--Sample of Letter of Inquiry.

    Authority: 10 U.S.C. 503 note.
    
[[Page 9347]]



Sec. 216.1  Purpose.

    This part:
    (a) Implements 10 U.S.C. 503 note.
    (b) Updates policy and responsibilities for identifying and taking 
action on institutions of higher education that either have a policy of 
denying, or that effectively prevents military recruiting personnel 
from entry to their campuses, from access to their students, or from 
access to student directory information.


Sec. 216.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Uniformed Services University of Health 
Sciences, the Defense Agencies, and the DoD Field Activities (hereafter 
referred to collectively as ``the DoD Components''). The term 
``Military Services,'' as used herein, refers to the Army, the Navy, 
the Air Force, and the Marine Corps.


Sec. 216.3   Definitions.

    (a) Directory information. Referring to a student means the 
student's name, address, telephone listing, date and place of birth, 
level of education, degrees received, and the most recent previous 
educational institution enrolled in by the student.
    (b) Institution of higher education. A domestic college, 
university, or subelement of a university providing post-secondary 
school courses of study, including foreign campuses of such domestic 
institutions. That includes junior colleges, community colleges, and 
institutions providing courses leading to undergraduate and post-
graduate degrees. That term does not include entities that operate 
exclusively outside the United States, its territories, and 
possessions. A subelement of a university is a discrete (although not 
necessarily autonomous) organizational entity that establishes policy 
or practices affecting military recruiting and related actions covered 
by 10 U.S.C. 503 note and this part. For example, a subelement may be 
an undergraduate school, a law school, medical school, or graduate 
school of arts and sciences.
    (c) Student. An individual who is 17 years of age or older and 
enrolled in an institution of higher education.


Sec. 216.4   Policy.

    It is DoD policy that:
    (a) Under 10 U.S.C. 503 note, no funds available to the Department 
of Defense may be provided by grant or contract to any institution of 
higher education that either has a policy of denying, or that 
effectively prevents, the Secretary of Defense from obtaining, for 
military recruiting purposes, entry to campuses, access to students on 
campuses, or access to directory information on students. That 
prohibition on use of DoD funds applies only to subelements of an 
institution of higher education that are determined to have such a 
policy or practice.
    (b) An evaluation to determine whether an institution of higher 
education has a policy of denying, or is effectively preventing, the 
Secretary of Defense from obtaining entry to campuses, access to 
students on campuses, or access to student directory information shall 
be undertaken when:
    (1) Military recruiting personnel cannot obtain permission to 
recruit on the premises of the institution or when they are refused 
directory information. Military recruiting personnel shall accommodate 
an institution's reasonable preferences as to times and places for 
scheduling on-campus recruiting, if any such restrictions are not based 
on the policies or practices of the Department of Defense and that the 
Military Services are provided entry to the campus and access to 
students on campus and to directory information; or,
    (2) The institution is unwilling to declare in writing as a 
prerequisite to an education and training award that the institution 
does not have a policy of denying, and that it does not effectively 
prevent, the Secretary of Defense from obtaining for military 
recruiting purposes entry to campuses, access to students on campuses, 
or access to student directory information.
    (3) The institution does not accept terms or conditions of a DoD 
contract or grant specified under Sec. 216.5(b)(2).
    (c) A determination that military recruiting personnel are denied 
access shall not be made when the institution does the following:
    (1) Excludes all employers from recruiting on the premises of the 
institution.
    (2) Permits employers to recruit on the premises of the institution 
only in response to an expression of student interest, and the 
institution:
    (i) Provides the Military Services with the same opportunities to 
inform the students of military recruiting activities as are available 
to other employers.
    (ii) Certifies that too few students have expressed an interest to 
warrant accommodating military recruiters, applying the same criteria 
that are applicable to other employers.
    (3) When not providing any directory information, certifies that 
such information is not collected by the institution.
    (4) When not providing directory information for specific students, 
certifies that each student concerned (or his or her parent, if a 17-
year-old) has formally requested the institution to withhold providing 
this information from military recruiting personnel for military 
recruiting purposes.


Sec. 216.5   Responsibilities.

    (a) The Assistant Secretary of Defense for Force Management Policy, 
under the Under Secretary of Defense for Personnel and Readiness, 
shall:
    (1) Not later than 30 days after receipt of the name(s) of 
institutions of higher education under paragraphs (d)(2) and (e)(1) of 
this section:
    (i) Make a final determination about the eligibility of each such 
institution to receive funds available to the Department of Defense by 
grant or contract under 10 U.S.C. 503 note, and this part.
    (ii) Notify each institution determined under paragraph (a)(1)(i) 
of this section, that it is ineligible to receive DoD funds under 10 
U.S.C. 503 note, and this part. Such notification shall reflect the 
basis of that determination.
    (iii) Disseminate the names of institutions of higher education 
identified under paragraph (a)(1)(i) of this section to all the DoD 
Components and to the General Services Administration (GSA) for 
inclusion in the Federal list of parties excluded from Federal 
procurement or nonprocurement programs.
    (iv) Inform each applicable institution identified under paragraph 
(d)(2) or (e)(1) of this section, that its eligibility to receive DoD 
funds may be restored upon the institution providing sufficient new 
information to enable the Assistant Secretary of Defense for Force 
Management Policy (ASD(FMP)) to determine that the institution provides 
entry to its campus(es), access to students on the campus(es), and 
access to directory information on students.
    (2) Not later than 45 days after receipt of an institution's 
request to restore its eligibility:
    (i) Determine whether the institution is qualified to receive DoD 
funds under 10 U.S.C. 503 note, and this part.
    (ii) Inform the institution of that determination.
    (iii) Provide the DoD Components and GSA with the name of that 
institution if its eligibility has been restored.
    (3) Provide policy and procedures to:
    (i) Cease education and training awards of DoD funds (other than 
those made by procurement grant or contract under paragraph (b)(1) of 
this section) to institutions identified as ineligible under paragraph 
(a)(1)(i) of this section.

[[Page 9348]]

    (ii) Identify institutions unwilling to declare in writing, as a 
prerequisite to such an award of DoD funds for education and training, 
that the institution does not have a policy of denying, and that it 
does not effectively prevent, the Secretary of Defense from obtaining 
for military recruiting purposes entry to campuses, access to students 
on campuses, or access to student directory information.
    (4) Notify the Defense Finance and Accounting Service of 
institutions, under paragraph (a)(1)(i) of this section, that either 
lose or regain eligibility to receive DoD funds under 10 U.S.C. 503 
note and this part.
    (b) The Under Secretary of Defense for Acquisition and Technology 
shall establish policy and procedures to:
    (1) Deny DoD grant and contract awards to all institutions 
identified as ineligible under paragraph (a)(1)(i) of this section.
    (2) Include terms or conditions in DoD grants and contracts awarded 
to institutions of higher education to make payments of DoD funds under 
such awards contingent on the institution's not being one so 
identified.
    (c) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer shall establish and promulgate financial management policies 
and procedures to stop or reactivate payment of DoD funds through 
contracts, grants, and other agreements made by the Department of 
Defense or other Federal Agencies to institutions identified as 
ineligible under paragraph (a)(1)(i) of this section.
    (d) The Secretaries of the Military Departments shall:
    (1) Identify institutions that, by policy or practice, deny 
military recruiting personnel entry to the campus(es) of those 
institutions, access to students, or access to student directory 
information. When repeated requests to schedule recruiting visits or to 
obtain directory information are unsuccessful, the Military Service 
concerned shall seek written confirmation of the institution's present 
policy from the head of the institution through a letter of inquiry. 
The sample letter in Appendix A to the part shall be followed as 
closely as possible. If written confirmation cannot be obtained, oral 
policy statements or attempts to obtain such statements from an 
appropriate official of the institution shall be documented.
    (2) Evaluate the responses to the letter of inquiry and of such 
other evidence obtained in accordance with this part and submit to the 
ASD(FMP) the names and addresses of institutions of higher education 
that are recommended to be declared ineligible to receive funds 
available to the Department of Defense under 10 U.S.C. 503 note and 
this part. Full documentation shall be furnished to the ASD(FMP) for 
each such institution, including the institution's formal response to 
the letter of inquiry, or oral response or evidence showing attempts to 
obtain written confirmation or an oral statement of the institution's 
policies.
    (e) The Heads of the DoD Components shall:
    (1) Provide the ASD(FMP) with the names and addresses of 
institutions:
    (i) Identified as ineligible as a result of implementing policies 
and procedures promulgated under paragraph (a)(3)(ii) of this section.
    (ii) That do not accept terms or conditions of a DoD grant or 
contract specified under paragraph (b)(2) of this section.
    (2) Take immediate action to deny DoD funds to institutions 
identified as ineligible under paragraph (a)(1)(i) of this section and 
to restore eligibility of institutions identified under paragraph 
(a)(2)(i) of this section.

Appendix A to Part 216--Sample Letter of Inquiry

Dr. John Doe
President
XYZ College
Anywhere, USA 12345-0123

    Dear Dr. Doe: I understand that military recruiting personnel 
are unable to recruit on the campus of XYZ College and have been 
refused directory information on XYZ College students for military 
recruiting by official policy of the college. Title 10 U.S.C. 503 
note, prohibits grant and contract awards of DoD funds to any 
institution of higher education that has a policy of denying, or 
that effectively prevents, military recruiting personnel entry to 
campuses, access to students on campuses, or access to directory 
information on students. DoD Directive 1322.13, ``Military 
Recruiting at Institutions of Higher Education,'' (January 26, 1996) 
codified at 32 CFR part 216, implements 10 U.S.C. 503 note. A copy 
of 10 U.S.C. 503 note, and of DoD Directive 1322.13 are enclosed.
    Under DoD Directive 1322.13, this letter provides you an 
opportunity to clarify your institution's policy on military 
recruiting on the campus of XYZ College. In that regard, I request 
the official written policy of the institution regarding visits of 
civilian employers (public or private) and military recruiting 
personnel to the campus for recruiting college students, and access 
to directory information on students.
    Based on this information, a determination shall be made by the 
Assistant Secretary of Defense for Force Management Policy as to 
your institution's eligibility to receive DoD funds by grant or 
contract. Should it be determined that XYZ College is not qualified 
to receive such funds, all current programs requiring payment to XYZ 
College shall be stopped, and it shall be ineligible to receive 
future payments of DoD funds through grants, contracts, and other 
applicable agreements.
    I regret that this action may have to be taken. Successful 
recruiting requires that DoD recruiters have reasonable access to 
students on the campuses of colleges and universities, and at the 
same time to have effective relationships with the officials and 
student bodies of those institutions. I hope it will be possible for 
military recruiters to schedule recruiting visits at XYZ College in 
the near future. I am available to answer any questions.

        Sincerely,

Enclosures

    [Note: DoD Directive 1322.13 is available from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161. This note is not a part of the sample letter of inquiry.]

    Dated: March 4, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer.
[FR Doc. 96-5555 Filed 3-7-96; 8:45 am]
BILLING CODE 5000-04-M