[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9344-9346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5556]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 23

RIN 0790-AF87


Grants and Agreements--Military Recruiting on Campus

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Defense (DoD) adopts this final rule to 
implement Section 558 of the National Defense Authorization Act for 
Fiscal Year 1995, as it applies to grants. Section 558 states that 
funds available to the Department of Defense may not be provided by 
grant or contract to any institution of higher education that has a 
policy of denying, or which 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 pertaining to students. The rule implements the law, as it 
applies to grants, by requiring inclusion of a clause in DoD grants 
with institutions of higher education. It also extends the requirement, 
as a matter of policy, to DoD cooperative agreements, because they are 
very similar to grants.

DATES: This final rule is effective on April 8, 1996.

FOR FURTHER INFORMATION CONTACT:
Mark Herbst, ODDR&E(R), 3080 Defense Pentagon, Washington, DC 20301-
3080. Telephone (703) 614-0205.

SUPPLEMENTARY INFORMATION: 

Responses to Comments

    This final rule revises 32 CFR part 23, which was adopted as an 
interim-final rule on January 24, 1995 (at 60 FR 4544). In response to 
the publication of the interim-final rule, DoD received written 
comments from two associations and some telephonic comments. The 
responses to the comments are:
    Comment 1: The clause is in the interim-final rule referred to 
``procedures established by the Secretary of Defense to implement 
section 558 of Public Law 103-337.'' It should refer to DoD's 
implementation of section 558, at 32 CFR part 216..
    Response 1: Agree. At the time the interim-rule on grants and 
cooperative agreements was published 32 CFR part 216 had not been 
updated to implement section 558. Now that it has been updated 
(published elsewhere in the issue of the Federal Register), the clause 
in the final 32 CFR part 23 refers to it. The final rule also includes 
more background and policy discussion, and more coverage on the grants 
officer's responsibilities, than did the interim-final rule--most of 
that discussion and coverage is based on 32 CFR part 216.
    Comment 2: In implementing an earlier law that is similar to 
section 558, DoD recognized that it might, in some cases, find a 
subordinate element of an institution of higher education to be 
restricting military recruiters' access, but not the institution as a 
whole. In those cases, DoD established a policy (in 32 CFR part 216, 
before its recent update) that the subordinate element, but not the 
parent institution, would be denied DoD funds. If that policy is 
continued in 32 CFR part 216 when it is updated to implement section 
558, the grants and cooperative agreements clause should be amended by 
adding:
    (1) The following sentence after the first sentence of the clause: 
``A recipient will not be deemed to be such an institution if a 
subordinate element of the institution, but not the institution as a 
whole, has a policy of preventing or effectively prevents military 
recruiting of students;'' and
    (2) At the end of the clause the following two sentences: ``If the 
Secretary determines that a subordinate element of an institution, but 
not the institution as a whole, has a policy of preventing or 
effectively prevents military recruiting of students, DoD may cease 
payment under, suspend, or terminate grants and agreements that relate 
solely to the relevant subordinate element, but may not take such 
action with respect to grant and agreements involving other elements of 
the institution or the institution as a whole.''
    Response 2: Adding the commenter's proposed sentences to the clause 
isn't necessary, for two reasons:
     The clause in the final rule has been amended to refer to 
``institution of higher education (as defined in 32 CFR part 216).'' 
The definition in 32 CFR part 216 (which also appears in the final 
rule] incorporates the concept of the subordinate element of an 
institution of higher education that the comment sought to incorporate; 
and
     The final rule includes an expanded policy section that 
refers to the policy in 32 CFR part 216 concerning subordinate elements 
of institutions of higher education.
    Comment 3: Under the interim-final rule, DoD will cease payments 
under existing grants and agreements, if a recipient is determined to 
have a policy of restricting military recruiters' access. This is 
unreasonable, since the institution already will have committed funds 
for personnel and other project 

[[Page 9345]]
expenses. DoD instead should cease payments beginning with the next 
year.
    Response 3: The restriction on providing by grant any funds 
available to DoD is a statutory requirement, and not a matter within 
DoD's regulatory discretion. To comply, payments on existing awards 
must cease promptly, once an institution is identified pursuant to 32 
CFR part 216.
    Comment 4: The interim-final rule's requirement for grants officers 
to include language in program solicitations seems an unnecessary, 
added burden.
    Response 4: Agree. The requirement has been deleted from the final 
rule.
    Comment 5: The interim-final rule doesn't state whether recipient 
of grants and cooperative agreements must include the clause in their 
subawards to institutions of higher education.
    Response 5: Agree. That's clarified in the final rule.

Executive Order 12866

    This 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 of 1980 [5 U.S.C. 605(b)]

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

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

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

List of Subjects in 32 CFR Part 23

    Grants programs.

    Accordingly, Title 32 of the Code of Federal Regulations, part 23 
is revised to read as follows.

PART 23--GRANTS AND AGREEMENTS--MILITARY RECRUITING ON CAMPUS

Sec.
23.1  Military recruiting on campus.

    Authority:  5 U.S.C. 301.


Sec. 23.1  Military recruiting on campus.

    (a) Purpose. The purpose of this section is to implement section 
558 of the National Defense Authorization Act for Fiscal Year 1995 
(Public Law 103-337), as it specifically affects grants and cooperative 
agreements (note that section 558 appears as a note to 10 U.S.C. 503). 
This section thereby supplements DoD's primary implementation of 
section 558, in 32 part 216, ``Military Recruiting at Institutions of 
Higher Education.''
    (b) Definitions specific to this section. In this section:
    (1) Directory information has the following meaning, given in 
section 558(c) of Public Law 103-337. It means, with respect to a 
student, 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.
    (2) Institution of higher education has the following meaning, 
given at 32 CFR 216.3(b). The term:
    (i) Means a domestic college, university, or subelement of a 
university providing postsecondary school courses of study, including 
foreign campuses of such institutions. 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 32 CFR part 216. For example, a subelement 
may be an undergraduate school, a law school, medical school, or 
graduate school of arts and sciences.
    (ii) Includes junior colleges, community colleges, and institutions 
providing courses leading to undergraduate and post-graduate degrees.
    (iii) Does not include entities that operate exclusively outside 
the United States, its territories, and possessions.
    (c) Statutory requirement. No funds available to the Department of 
Defense may be provided by grant 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 or access to students on campuses or access to 
directory information pertaining to students.
    (d) Policy.--(1) Applicability to subordinate elements of 
institutions of higher education. 32 CFR part 216, DoD's primary 
implementation of section 558, establishes procedures by which the 
Department of Defense identifies institutions of higher education that 
have a policy or practice described in paragraph (c) of this section. 
In cases where those procedures lead to a determination that specific 
subordinate elements of an institution of higher education have such a 
policy or practice, rather than the institution as a whole, 32 CFR part 
216 provides that the prohibition on use of DoD funds applies only to 
those subordinate elements.
    (2) Applicability to cooperative agreements. As a matter of DoD 
policy, the restriction of section 558, as implemented by 32 CFR part 
216, apply to cooperative agreements, as well as grants.
    (3) Deviations. Grants officers may not deviate from any provision 
of this section without obtaining the prior approval of the Director of 
Defense Research and Engineering. Requests for deviations shall be 
submitted, through appropriate channels, to: Director for Research, 
ODDR&E(R), 3080 Defense Pentagon, Washington, D.C. 20301-3080.
    (e) Grants officers' responsibilities. A grants officer shall:
    (1) Not award any grant or cooperative agreement to an institution 
of higher education that has been identified pursuant to the procedures 
of 32 CFR part 216. Such institutions are identified on the 
Governmentwide ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs,'' as being ineligible to receive awards of DoD 
funds [note that 32 CFR 25.505(d) requires the grants officer to check 
the list prior to determining that a recipient is qualified to receive 
an award].
    (2) Not consent to any subaward of DoD funds to such an 
organization, under a grant or cooperative agreement to any recipient, 
if such subaward requires the grants officer's consent.
    (3) Include the clause in paragraph (f) of this section in each 
grant or cooperative agreement with an institution of higher education. 
Note that this requirement does not flow down (i.e., recipients are not 
required to include the clause in subawards).
    (4) If an institution of higher education refuses to accept the 
clause in paragraph (f):
    (i) Determine that the institution is not qualified with respect to 
the award. The grants officer may award to an alternative recipient.
    (ii) Transmit the name of the institution, through appropriate 
channels, to the Director for Accession 

[[Page 9346]]
Policy, Office of the Assistant Secretary of Defense for Force 
Management Policy, OASD (FMP), 4000 Defense Pentagon, Washington, D.C. 
20301-4000. This will allow OASD (FMP) to decide whether to initiate an 
evaluation of the institution under 32 CFR part 216, to determine 
whether it is an institution that has a policy or practice described in 
paragraph (c) of this section.
    (f) Clause for award documents. The following clause is to be 
included in grants and cooperative agreements with institutions of 
higher education:

    As a condition for receipt of funds available to the Department 
of Defense (DoD) under this award, the recipient agrees that it is 
not an institution of higher education (as defined in 32 CFR part 
216) that has a policy of denying, and that it is not an institution 
of higher education that effectively prevents, the Secretary of 
Defense from obtaining for military recruiting purposes: (A) entry 
to campuses or access to students on campuses; or (B) access to 
directory information pertaining to students. If the recipient is 
determined, using the procedures in 32 CFR part 216, to be such an 
institution of higher education during the period of performance of 
this agreement, and therefore to be in breach of this clause, the 
Government will cease all payments of DoD funds under this agreement 
and all other DoD grants and cooperative agreements to the 
recipient, and it may suspend or terminate such grants and 
agreements unilaterally for material failure to comply with the 
terms and conditions of award.

    Dated: March 4, 1996.
Linda M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-5556 Filed 3-7-96; 8:45 am]
BILLING CODE 5000-04-M