[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2056-2057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-765]


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

DEPARTMENT OF DEFENSE

48 CFR Parts 209, 243, and 252

[DFARS Case 99-D303]


Defense Federal Acquisition Regulation Supplement; Institutions 
of Higher Education

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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

SUMMARY: The Acting Director of Defense Procurement has issued an 
interim rule amending the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement Section 549 of the National Defense 
Authorization Act for Fiscal Year 2000. Section 549 amends statutory 
provisions pertaining to the denial of Federal contracts and grants to 
institutions of higher education that prohibit Senior Reserve Officer 
Training Corps units or military recruiting on campus.

DATES: Effective date: January 13, 2000.

    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before March 13, 2000, to be 
considered in the formation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD 
(AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 
20301-3062. Telefax (703) 602-0350.
    E-mail comments submitted via the Internet should be addressed to: 
[email protected]
    Please cite DFARS Case 99-D303 in all correspondence related to 
this rule. E-mail comments should cite DFARS Case 99-D303 in the 
subject line.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0288.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule revises DFARS 209.470, 243.105, and 252.209-7005 
to implement Section 549 of the National Defense Authorization Act for 
Fiscal Year 2000 (Pub. L. 106-65). Section 549 amends 10 U.S.C. 983 to 
prohibit DoD from providing funds by contract or grant to an 
institution of higher education (including any subelement of that 
institution) if the Secretary of Defense determines that the 
institution (or any subelement of the institution) has a policy or 
practice that prohibits, or in effect prevents, Senior Reserve Officer 
Training Corps (ROTC) units or military recruiting on campus.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this 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 the rule 
applies only to institutions of higher education that prohibit Senior 
ROTC units or military recruiting on campus. Therefore, DoD has not 
performed an initial regulatory flexibility analysis. DoD invites 
comments from small businesses and other interested parties. DoD also 
will consider comments from small entities concerning the affected 
DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be 
submitted separately and should cite DFARS Case 99-D303.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that 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 that urgent and compelling reasons exist to publish this 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements Section 549 of the National Defense 
Authorization Act for Fiscal Year 2000. Section 549 amends statutory 
provisions pertaining to the denial of Federal contracts and grants to 
institutions of higher education that prohibit Senior ROTC units or 
military recruiting on campus. Section 549 became effective on October 
5, 1999. DoD will consider comments received in response to this 
interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 209, 243, and 252

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

    Therefore, 48 CFR Parts 209, 243, and 252 are amended as follows:
    1. The authority citation for 48 CFR Parts 209, 243, and 252 
continues to read as follows:

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

PART 209--CONTRACTOR QUALIFICATIONS

    2. Sections 209.470 through 209.470-3 are revised and section 
209.470-4 is added to read as follows:


209.470  Reserve Officer Training Corps and military recruiting on 
campus.


209.470-1  Definition.

    Institution of higher education, as used in this section, means an 
institution that meets the requirements of 20 U.S.C. 1001 and includes 
all subelements of such an institution.


209.470-2  Policy.

    (a) Except as provided in paragraph (b) of this subsection, 10 
U.S.C. 983 prohibits DoD from providing funds by contract or grant to 
an institution of higher education if the Secretary of Defense 
determines that the institution has a policy or practice that prohibits 
or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution;
    (2) A student at that institution from enrolling in a unit of the 
senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Transportation from gaining entry to campuses, or access to students on 
campuses, for purposes of military recruiting; or
    (4) Military recruiters from accessing certain information 
pertaining to students enrolled at that institution.
    (b) The prohibition in paragraph (a) of this subsection does not 
apply to an institution of higher education if the Secretary of Defense 
determines that--
    (1) The institution has ceased the policy or practice described in 
paragraph (a) of this subsection; or

[[Page 2057]]

    (2) The institution has a long-standing policy of pacifism based on 
historical religious affiliation.


209.470-3  Procedures.

    If the Secretary of Defense determines that an institution of 
higher education is ineligible to receive DoD funds because of a policy 
or practice described in 209.470-2(a)--
    (a) The Secretary of Defense will list the institution on the List 
of Parties Excluded from Federal Procurement and Nonprocurement 
Programs published by General Services Administration (also see FAR 
9.404 and 32 CFR part 216); and
    (b) DoD components--
    (1) Must not solicit offers from, award contracts to, or consent to 
subcontracts with the institution;
    (2) Must make no further payments under existing contracts with the 
institution; and
    (3) Must terminate existing contracts with the institution.


209.470-4  Contract clause.

    Use the clause at 252.209-7005, Reserve Officer Training Corps and 
Military Recruiting on Campus, in all solicitations and contracts with 
institutions of higher education.

PART 243--CONTRACT MODIFICATIONS

    3. Section 243.105 is amended by revising paragraph (a)(ii) and 
removing paragraph (a)(iii). The revised text reads as follows;


243.105  Availablity of funds.

    (a) * * *
    (ii) In accordance with 10 U.S.C. 983, do not provide funds by 
contract or contract modification, or make contract payments, to an 
institution of higher education that has a policy or practice of 
hindering Senior Reserve Officer Training Corps units or military 
recruiting on campus as described at 209.470.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 252.209-7005 is revised to read as follows:


252.209-7005  Reserve Officer Training Corps and Military Recruiting on 
Campus.

    As prescribed in 209.470-4, use the following clause:

Reserve Officer Training Corps and Military Recruiting on Campus (Jan 
2000)

    (a) Definition. ``Institution of higher education,'' as used in 
this clause, means an institution that meets the requirements of 20 
U.S.C. 1001 and includes all subelements of such an institution.
    (b) Limitation on contract award. Except as provided in 
paragraph (c) of this clause, an institution of higher education is 
ineligible for contract award if the Secretary of Defense determines 
that the institution has a policy or practice (regardless of when 
implemented) that prohibits or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other 
applicable Federal laws) at that institution;
    (2) A student at that institution from enrolling in a unit of 
the Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Transportation from gaining entry to campuses, or access to students 
(who are 17 years of age or older) on campuses, for purposes of 
military recruiting; or
    Military recruiters from accessing, for purposes of military 
recruiting, the following information pertaining to students (who 
are 17 years of age or older) enrolled at that institution:
    (i) Name.
    (ii) Address.
    (iii) Telephone number.
    (iv) Date and place of birth.
    (v) Educational level.
    (vi) Academic major.
    (vii) Degrees received.
    (viii) Most recent educational institution enrollment.
    (c) Exception. The limitation in paragraph (b) of this clause 
does not apply to an institution of higher education if the 
Secretary of Defense determines that--
    (1) The institution has ceased the policy or practice described 
in paragraph (b) of this clause; or
    (2) The institution has a long-standing policy of pacifism based 
on historical religious affiliation.
    (d) Agreement. The Contractor represents that it does not now 
have, and agrees that during performance of this contract it will 
not adopt, any policy or practice described in paragraph (b) of this 
clause, unless the Secretary of Defense has granted an exception in 
accordance with paragraph (c)(2) of this clause.
    (e) Notwithstanding any other clause of this contract, if the 
Secretary of Defense determines that the Contractor misrepresented 
its policies and practices at the time of contract award or has 
violated the agreement in paragraph (d) of this clause--
    (1) The Contractor will be ineligible for further payments under 
this and other contracts with the Department of Defense; and
    (2) The Government will terminate this contract for default for 
the Contractor's material failure to comply with the terms and 
conditions of award.

(End of clause)

[FR Doc. 00-765 Filed 1-12-00; 8:45 am]
BILLING CODE 5000-04-M