[Federal Register Volume 67, Number 146 (Tuesday, July 30, 2002)]
[Rules and Regulations]
[Pages 49253-49254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19081]


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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: Final rule.

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SUMMARY: DoD has adopted as final, with minor changes, 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 prevent Senior Reserve Officer Training Corps (ROTC) 
access or military recruiting on campus.

EFFECTIVE DATE: July 30, 2002.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense 
Acquisition Regulations Council, OUSD (AT&L) DP (DAR), IMD 3C132, 3062 
Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; 
facsimile (703) 602-0350. Please cite DFARS Case 99--D303.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule implements Section 549 of the National Defense 
Authorization Act for Fiscal Year 2000 (Public Law 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 ROTC 
units or military recruiting on campus.
    DoD published an interim rule at 65 FR 2056 on January 13, 2000. 
Sixty-one sources submitted comments on the interim rule. After 
evaluating all comments, DoD converted the interim rule to a final rule 
with minor editorial changes. A summary of the comments and the DoD 
response is provided below:
    Comment: The greatest concern expressed by respondents pertained to 
the extension of the prohibition to subelements of educational 
institutions. The respondents stated that Section 549 of Public Law 
106-65 was intended to recodify prior legislation, which did not 
require extension of the prohibition to subelements; prior legislative 
history did not support extension to subelements; and the fact that the 
subelement language was contained in the Senate report but not in the 
House report, and that the Senate had receded to the House version of 
the bill, meant that DoD could not rely upon the Senate report as a 
basis for extending the rule to subelements of an institution.
    DoD Response: Senate and House Committee reports generally are 
taken into consideration to determine legislative intent only when the 
statutory language is unclear. The final language of Section 549 of 
Public Law 106-65 clearly states that the policy applies to any 
subelement of an institution. A comparison of the previous and current 
legislation shows that the subelement language was a new addition to 
the statute resulting from the enactment of Section 549.
    Comment: Several respondents believed that DoD did not have

[[Page 49254]]

sufficient cause to issue an interim rule without prior opportunity for 
public comment. DoD Response: Section 549 of Public Law 106-65 became 
effective upon enactment, on October 5, 1999. DoD issued a rule before 
receipt of public comments to promptly comply with the new statutory 
requirement.
    Comment: One respondent stated that the rule calls for suspension 
and debarment without due process and asked what procedure exists for 
an educational institution to challenge a determination. DoD Response: 
This DFARS rule merely prescribes the action to be taken after an 
institution is determined to be ineligible for DoD contract awards. The 
procedures used to make that determination are addressed separately in 
the regulations at 32 CFR part 216.
    Comment: One respondent stated that the requirements for stopping 
payments and terminating existing contracts go far beyond traditional 
suspension and debarment. DoD Response: These requirements are not new. 
They were added to the DFARS in 1995 to comply with Section 558 of 
Public Law 103-337, which prohibited DoD from providing funds to 
educational institutions that prevented military recruiting on campus. 
The current legislation contains a similar prohibition.
    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 certifies that this final rule will not 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 
do not permit Senior ROTC units or military recruiting on campus.

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.

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

    Government procurement.

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

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR Parts 209, 243, and 
252, which was published at 65 FR 2056 on January 13, 2000, is adopted 
as a final rule with the following changes:
    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


209.470-3  [Amended]

    2. Section 209.470-3 is amended in paragraphs (b)(1), (2), and (3) 
by removing ``Must'' and adding in its place ``Shall''.

[FR Doc. 02-19081 Filed 7-29-02; 8:45 am]
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