[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25407-25409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12766]



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DEPARTMENT OF DEFENSE

48 CFR Parts 209 and 243

[DFARS Case 96-D305]


Defense Federal Acquisition Regulation Supplement; Institutions 
of Higher Education

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: The Director of Defense Procurement is amending the Defense 
Federal Acquisition Regulation Supplement (DFARS) to implement a 
statutory prohibition on providing funds to institutions of higher 
education which have an anti-ROTC policy.

DATES: Effective date: May 21, 1996.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before July 22, 1996, to be 
considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Mr. Michael Pelky, PDUSD 
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, D.C. 
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-
D305 in all correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT: Michael Pelkey, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule implements Section 541 of the National Defense 
Authorization Act for Fiscal Year 1996 (Public Law 104-106). Section 
541 provides that no funds available to DoD may be provided by contract 
or grant to institutions of higher education which have an anti-ROTC 
policy.

B. Regulatory Flexibility Act

    The Interim rule is not expected 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 
only applies to institutions of higher education which are determined 
to have an anti-ROTC policy. An initial regulatory flexibility analysis 
has therefore not been performed. Comments are invited from small 
businesses and other interested parties. Comments from small entities 
concerning the affected DFARS subparts will be considered in accordance 
with Section 610 of the Act. Such comments must be submitted separately 
and cite DFARS Case 96-D305 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements which require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense to issue this rule as an interim rule. Compelling reasons 
exist to promulgate this rule without prior opportunity for public 
comment. This rule implements Section 541 of the National Defense 
Authorization Act for Fiscal year 1996 (Public Law 104-106), which was 
effective upon enactment on February 10, 1996. However, comments 
received in response to the publication of this rule will be considered 
in formulating the final rule.

List of Subjects in 48 CFR Parts 209 and 243

    Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

    Therefore, 48 CFR Parts 209 and 243 are amended as follows:

PART 209--CONTRACTOR QUALIFICATIONS

    The authority citation for 48 CFR Parts 209 and 243 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

    2. Sections 209.470-1 and 209.470-2 are revised to read as follows:


209.470-1  Policy.

    (a)(1) Section 558 of the National Defense Authorization Act for 
Fiscal Year 1995 (Public Law 103-337) provides that no funds available 
to DoD may be provided by grant or contract to 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--
    (i) Entry to campuses or access to students on campuses; or
    (ii) Access to directory information pertaining to students.
    (2) Section 541 of the National Defense Authorization Act for 
Fiscal Year 1996 (10 U.S.C. 983) provides that no funds appropriated or 
otherwise available to DoD may be obligated by contract or by grant, 
including a grant of funds to be available for student aid, to any 
institution of higher education that, as determined by the Secretary of 
Defense, has an anti-ROTC policy and at which, as determined by the 
Secretary, the Secretary would otherwise maintain or seek to establish 
a unit of the Senior Reserve Officer Training Corps, or at which the 
Secretary would otherwise enroll or seek to enroll students for 
participation in a unit of the Senior Reserve Officer Training Corps at 
another nearby institution of higher education. This prohibition 
applies to new contracts and all contract modifications. (See 243.105.) 
This prohibition shall cease to apply to that institution upon a 
determination by the Secretary that the institution no longer has an 
anti-ROTC policy.
    (b) Institutions of higher education that are determined under 32 
CFR part 216 to have the policy or practice in paragraph (a)(1) or 
(a)(2) of this subsection shall be listed as ineligible on the List of 
Parties Excluded from Federal Procurement and Nonprocurement Programs 
published by the General Services Administration. (See FAR 9.404.)
    (c) In cases where a determination is made under 32 CFR part 216 
that specific subordinate elements of an institution of higher 
education, rather than the institution as a whole, have the policy or 
practice in paragraph (a)(1) or (a)(2) of this subsection, 32 CFR part 
216 provides that the prohibition on use of DoD funds applies only to 
those subordinate elements.


209.470-2  Procedures.

    (a) Agencies shall not solicit offers from, award contracts to, or 
consent to subcontracts with ineligible contractors.
    (b) After a determination of ineligibility under 209.470-1(a)(1), 
departments and agencies shall make no further payments under existing 
contracts with the institutions, and shall initiate termination action.

PART 243--CONTRACT MODIFICATIONS

    3. Section 243.105 is revised to read as follows:


243.105  Availability of funds.

    (a)(i) 10 U.S.C. 2405 prohibits adjustments in price under a 
shipbuilding contract entered into after December 7, 1983, for a claim, 
request for equitable adjustment, or demand for payment under the 
contract, arising out of events occurring more than 18 months before 
submission of the claim, request, or demand.
    (ii) Section 558 of the National Defense Authorization Act for 
Fiscal Year 1995 (Public Law 103-337)

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provides that no funds available to DoD may be provided by contract or 
contract modification, nor may contract payments be made, to an 
institution of higher education that has a policy of denying or 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. (See 
209.470.)
    (iii) Pursuant to 10 U.S.C. 983, no funds may be obligated by 
contract or contract modification to an institution of higher education 
that has an anti-ROTC policy. (See 209.470.)

[FR Doc. 96-12766 Filed 5-20-96; 8:45 am]
BILLING CODE 5000-04-M