[Federal Register Volume 71, Number 105 (Thursday, June 1, 2006)]
[Rules and Regulations]
[Pages 31082-31085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5008]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 216


Military Recruiting and Reserve Officer Training Corps Program 
Access to Institutions of Higher Education

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This document re-establishes the Department of Defense's rules 
addressing military recruiting and Reserve Officer Training Corps 
program access at institutions of higher education. These rules were 
inadvertently removed from the CFR by a document published in the 
Federal Register on March 18, 2006. These rules implement the National 
Defense Authorization Act for Fiscal Year 1995, the National Defense 
Authorization Act for Fiscal Year 1996, and the Omnibus Consolidated 
Appropriations Act, 1997 (the Acts). The Acts state that no funds 
available under appropriations acts for any fiscal year for the 
Departments of Defense, Transportation (with respect to military 
recruiting), Labor, Health and Human Services, Education, and Related 
Agencies may be provided by contract or grant (including a grant of 
funds to be available for student aid) to a covered school that has a 
policy or practice (regardless of when implemented) that either 
prohibits, or in effect prevents, the Secretary of Defense from 
obtaining, for military recruiting purposes, entry to campuses, access 
to students on campuses, access to directory information on students, 
or that has an anti-ROTC policy.

DATES: Effective Date: June 1, 2006.

FOR FURTHER INFORMATION CONTACT: William J. Carr, (703) 697-8444.

SUPPLEMENTARY INFORMATION: On March 10, 2006 (71 FR 12280), the 
Department of Defense removed 32 CFR Part 216 to correlate with the DoD 
Directive 1322.13 which was canceled in 1998. The part should remain in 
effect. This part is published as originally published. The only change 
made was to the first footnote 1 which gives an availability statement 
directed to the Web site.

List of Subjects in 32 CFR Part 216

    Armed forces, Armed forces reserves, Colleges and universities, 
Education.

0
Accordingly, 32 CFR part 216 is added to read as follows:

PART 216--MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS 
PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION

Sec.
216.1 Purpose.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.
Appendix A of part 216--Military Recruiting Sample Letter of Inquiry
Appendix B of part 216--ROTC Sample Letter of Inquiry.

    Authority: 10 U.S.C. 983.

Sec.  216.1  Purpose.

    This part:
    (a) Implements the National Defense authorization Act of 1995 (108 
Stat. 2663),
    (b) Implements 10 U.S.C. 983, and
    (c) Implements the Omnibus Consolidated Appropriations Act, 1997 
(110 Stat. 3009).
    (d) Updates policy and responsibilities relating to the management 
of covered schools that have a policy of either denying, or effectively 
preventing military recruiting personnel entry to their campuses, 
access to their students, or access to student recruiting information.
    (e) Updates policy and responsibilities relating to the management 
of covered schools that have an anti-ROTC policy.


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 
Combatant Commands, the Defense Agencies, and the DoD Field Activities 
(hereafter referred to collectively as ``the DoD components''). The 
policies herein also affect the Departments of Transportation, Labor, 
Health and Human Services, Education, and Related Agencies. The term 
``Military Services,'' as used herein, refers to the army, the Navy, 
the Marine Corps, the Air Force, and the Coast Guard, including their 
Reserve or National Guard components. The term ``Related Agencies,'' as 
used herein, refers to the Armed Forces Retirement Home, the 
Corporation for National and Community Service, the Corporation for 
Public Broadcasting, the Federal Mediation and Conciliation Service, 
the Federal Mine Safety and Health Review Commission, the National 
Commission on Libraries and Information Science, the National Council 
on Disability, the National Education Goals Panel, the National Labor 
Relations Board, the National Mediation Board, the Occupational Safety 
and Health Review Commission, the Physician Payment Review Commission, 
the Prospective payment Assessment Commission, the Social Security 
Administration, the Railroad Retirement Board and the United States 
Institute of Peace.


Sec.  216.3  Definitions.

    (a) Anti-ROTC policy. A policy or practice whereby a covered school 
prohibits or in effect prevents the Secretary of Defense from 
maintaining, establishing, or efficiently operating a unit of the 
Senior ROTC at the covered school, or prohibits or in effect prevents a 
student at the covered school from enrolling in a Senior ROTC unit at 
another institution of higher education.
    (b) Covered school. An institution of higher education, or a 
subelement of an institution of higher education, subject to the 
following clarifications:
    (1) In the event of a determination (Sec.  216.5) affecting only a 
subelement of a parent institution (see Sec.  216.3(d)), the 
limitations on the use of funds (Sec.  216.4(a) and (b)) shall apply 
only to the subelement and not to the parent institution as a whole.
    (2) The limitations on the use of funds (Sec.  216.4(a) and (b)) 
shall not apply to any individual institution of higher education that 
is part of a single university system if that individual institution 
does not preventy entry to campus, access to students, or access to 
student recruiting information by military recruiters, or have an anti-
ROTC policy, even though another campus of the same system is affected 
by a determination under Sec.  216.5(a).
    (c) Student recruiting information. For those currently enrolled, 
the student's name, address, telephone listing, age (or year of birth), 
level of education (e.g., freshman, sophomore, or degree awarded for a 
recent graduate), and major.
    (d) Institution of higher education. A domestic college, 
university, or other institution (or subelement thereof) providing 
postsecondary school courses

[[Page 31083]]

of study, including foreign campuses of such domestic institutions. The 
term includes junior colleges, community colleges, and institutions 
providing courses leading to undergraduate and post-graduate degrees. 
The term does not include entities that operate exclusively outside the 
United States, its territories, and possessions. A subelement of an 
institution of higher education is a discrete (although not necessarily 
autonomous) organizational entity that may establish policies or 
practices affecting military recruiting and related actions (e.g., an 
undergraduate school, a law school, a medical school, or other graduate 
schools). For example, the School of Law of XYZ University is a 
subelement of its parent institution (XYZ University).
    (e) Student. An individual who is 17 years of age or older and is 
enrolled at a covered school.
    (f) Enrolled. Registered for a least one credit hour of academic 
credit at the covered school during the most-recent, current, or next 
term.
    (g) Military recruiters. Personnel of DoD whose current assignment 
or detail is to a recruiting activity of the DoD.
    (h) Pacifism. Opposition to war or violence, demonstrated by 
refusal to participate in military service.


Sec.  216.4  Policy.

    It is policy that:
    (a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available 
under appropriations acts for any fiscal year for the Departments of 
Defense, Transportation (with respect to military recruiting), Labor, 
Health and Human and Human Services, Education, and Related Agencies 
may be provided by contract or by grant (including a grant of funds to 
be available for student aid) to a covered school if the Secretary of 
Defense determines that the covered school has a policy or practice 
(regardless of when implemented) that either prohibits or in effect 
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 (student recruiting 
information).
    (b) Under 110 Stat. 3009, no funds available under appropriations 
acts for any fiscal year for the Departments of Labor, Health and Human 
Services, Education, and Related Agencies may be provided by contract 
or grant (including a grant of funds to be availabe for student aid) to 
a covered school that has an anti-ROTC policy or practice (regardless 
of when implemented). Additionally, under 10 U.S.C. 983, no funds 
appropriated or otherwise available to the Department of Defense may be 
made obligated by contract or by grant to a covered school that has 
such a policy or practice.
    (c) The limitations established in paragraph (a) of this section, 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (a) 
of this section;
    (2) Has a long-standing policy of pacifism based on historical 
religious affiliation;
    (3) When not providing requested access to campuses or to students 
on campus, certifies that all employers are similarly excluded from 
recruiting on the premises of the covered school, or presents evidence 
that the degree of access by military recruiters is at least equal in 
quality and scope to that afforded to other employers;
    (4) When not providing any student recruiting information, 
certifies that such information is not maintained by the covered 
school; or that such information already has been provided to the 
Military Service concerned for that current semester, trimester, 
quarter, or other academic term, or within the past four months (for 
institutions without academic terms);
    (5) When not providing student recruiting information for specific 
students, certifies that each student concerned has formally requested 
the covered school to withhold this information from third parties;
    (6) Permits employers to recruit on the premises of the covered 
school only in response to an expression of student interest, and the 
covered school;
    (i) Provides the Military Services with the same opportunities to 
inform the students of military recruiting activities as are available 
to other employers; or
    (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; or
    (7) Is prohibited by the law of any State, or by the order of any 
State court, from allowing Federal military recruiting on campus. Such 
exemption does not apply to funds available to the Department of 
Defense, in accordance with 108 Stat. 2663.
    Note to paragraph (c)(7): This exemption terminated effective March 
29, 1998, in accordance with 110 Stat. 3009.
    (d) The limitations established in paragraph (b) of this section, 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (b) 
of this section;
    (2) Has a long-standing policy of pacifism based on historical 
religious affiliation;
    (3) Is prohibited by the law of any State, or by the order of any 
State court, from allowing Senior Reserve Officer Training Corps 
activities on campus. Such exemption does not apply to funds available 
to the Department of Defense, in accordance with 10 U.S.C. 983.
    Note to paragraph (d)(3): This exemption terminated effective March 
29, 1998, in accordance with 110 Stat. 3009.
    (e) A covered school may charge for actual costs incurred in 
providing military recruiters access to student recruiting information, 
provided such charges are reasonable and customary; in this case, the 
school must explain to the military recruiter, within 15 days of a 
request by the recruiter, its method for determining costs, and its 
basis for concluding that such charges are reasonable and customary.
    (f) An evaluation to determine whether a covered school maintains a 
policy or practice covered by paragraph (d) of this section shall be 
undertaken when:
    (1) Military recruiting personnel cannot gain entry to campus, 
cannot obtain access to students on campus, or are denied access to 
student recruiting information (however, military recruiting personnel 
shall accommodate a covered school's reasonable preferences as to times 
and places for scheduling on-campus recruiting, to the same extent such 
preferences are applicable to employers, generally);
    (2) The costs being charged by the school for providing student 
recruiting information are believed by the military recruiter to be 
excessive, and the school does not provide information sufficient to 
support a conclusion that such charges are reasonable and customary; or
    (3) The covered school is unwilling to declare in writing, in 
response to an inquiry from a DoD component, that the covered school 
does not have a policy or practice 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 
campus, or access to student recruiting information.
    (g) An evaluation to determine whether a covered school has an 
anti-ROTC policy covered by paragraph (b) of this section shall be 
undertaken when:

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    (1) A Secretary of a Military Department of designee cannot obtain 
permission to establish, maintain, or efficiently operate a unit of the 
Senior ROTC; or
    (2) Absent a Senior ROTC unit at the covered school, students 
cannot obtain permission from a covered school to participate, or are 
effectively prevented from participating, in a unit of the Senior ROTC 
at another institution of higher education.


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 45 days after receipt of the information 
described in paragraph (b)(3) of this section:
    (i) Make a final determination under 108 Stat. 2663, 10 U.S.C., 
section 983; and 110 Stat. 3009 and/or this part, and notify any 
affected school of that determination along with the basis, and that it 
is therefore ineligible to receive prescribed funds as a result of that 
determination.
    (ii) Disseminate to Federal agencies affected by 110 Stat. 3009, to 
the DoD components, and to the General Services Administration (GSA) 
the names of covered schools identified under paragraph (a)(1)(i) of 
this section, and the basis of the determination.
    (iii) Disseminate the names of covered schools identified under 
paragraph (a)(1)(i) of this section, to the Secretary of Education and 
to the Committee on Armed Services of the Senate and the Committee on 
National Security of the House of Representatives.
    (iv) Inform the applicable school identified under paragraph 
(a)(1)(i) of this section, that its funding eligibility may be restored 
if the school provides sufficient new information that the basis for 
the determination under paragraph (a)(1)(i) of this section no longer 
exists.
    (2) Not later than 45 days after receipt of a covered school's 
request to restore its eligibility:
    (i) Determine whether the funding status of the covered school 
should be changed, and notify the applicable school of that 
determination.
    (ii) Notify the parties reflected in paragraphs (a)(1)(ii) and 
(iii) of this section when a determination of funding ineligibility 
(paragraph (a)(1)(i) of this section) has been rescinded.
    (3) Publish in the Federal Register each determination of the 
Assistant Secretary of Defense for Force Management Policy that a 
covered school is ineligible for contracts and grants made under 108 
Stat. 2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this 
part.
    (4) Publish in the Federal Register at least once every six months 
a list of covered schools that are ineligible for contracts and grants 
by reason of a determination of the Secretary of Defense under 108 
Stat. 2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this 
part.
    (b) The Secretaries of the Military Departments shall:
    (1) Identify covered schools that, by policy or practice, deny 
military recruiting personnel entry to the campus(es) of those schools, 
access to their students, or access to student recruiting information.
    (i) When requests by military recruiters to schedule recruiting 
visits or to obtain student recruiting information are unsuccessful, 
the Military Service concerned shall seek written confirmation of the 
school's present policy from the head of the school through a letter of 
inquiry. A letter similar to that shown in appendix A of this part 
shall be used, but it should be tailored to the situation presented. If 
written confirmation cannot be obtained, oral policy statements or 
attempts to obtain such statements from an appropriate official of the 
school shall be documented. A copy of the documentation shall be 
provided to the covered school, which shall be informed of its 
opportunity to forward clarifying comments to accompany the submission 
to the ASD (FMP), and shall be provided 30 days to offer such 
clarifying comments.
    (ii) When a request for student recruiting information is not 
fulfilled within a reasonable period, normally 30 days, a letter 
similar to that shown in appendix A of this part shall be used to 
communicate the problem to the school, and the inquiry shall be managed 
as described in Sec.  216.5(b)(1)(i). Schools may stipulate that 
requests for student recruiting information shall be in writing.
    (2) Identify covered schools that, by policy or practice, deny 
establishment, maintenance, or efficient operation of a unit of the 
Senior ROTC, or deny students permission to participate, or effectively 
prevent students from participating in a unit of the Senior ROTC at 
another institution of higher education. The Military Service concerned 
shall seek written confirmation of the school's policy from the head of 
the school through a letter of inquiry. A letter similar to that shown 
in appendix B of this part shall be used, but it should be tailored to 
the situation presented. If written confirmation cannot be obtained, 
oral policy statements or attempts to obtain such statements from an 
appropriate official of the school shall be documented. A copy of the 
documentation shall be provided to the covered school, which shall be 
informed of its opportunity to forward clarifying comments to accompany 
the submission to the ASD (FMP), and shall be provided 30 days to offer 
such clarifying comments.
    (3) Evaluate responses to the letter of inquiry, and other such 
evidence obtained in accordance with this part, and submit to the ASD 
(FMP) the names and addresses of covered schools that are believed to 
be in violation of policies established in Sec.  216.4. Full 
documentation shall be furnished to the ASD (FMP) for each such covered 
school, including the school's formal response to the letter of 
inquiry, documentation of any oral response, or evidence showing that 
attempts were made to obtain either written confirmation or an oral 
statement of the school's policies.
    (c) The Heads of the DoD components shall:
    (1) Provide the ASD (FMP) with the names and addresses of covered 
schools identified as a result of evaluation(s) required under 
paragraphs 216.4(f) and (g).
    (2) Take immediate action to deny obligations of DoD Funds to 
covered schools identified under paragraph (a)(1)(i) of this section, 
and to restore eligibility of covered schools identified under 
paragraph (a)(2) of this section.


Sec.  216.6  Information requirements.

    The information requirements identified at Sec.  216.5(b) and 
(c)(1) have been assigned Report Control Symbol P&R-(AR)-2038 in 
accordance with DoD 8910.1-M \1\.
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/
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Appendix A of Part 216--Military Recruiting Sample Letter of Inquiry

    (Tailor letter to situation presented)
Dr. John Doe
President
ABC College
Anywhere, USA 12345-9876
    Dear Dr. Doe: I understand that military recruiting personnel 
(are unable to recruit on the campus of ABC College) (have been 
refused student recruiting information \1\ on ABC College students 
for the purpose of military recruiting) by a policy or practice of 
the College. Current law\2\ prohibits funds by grant or contract 
(including a grant of funds

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to be available for student aid) from appropriations of the 
Departments of Defense, Transportation (with respect to military 
recruiting), Labor, Health and Human Services, Education, and 
Related Agencies to schools that have a policy or practice of 
denying military recruiting personnel entry to campuses, access to 
students on campuses, or access to student recruiting information. 
Implementing regulations are codified at 32 CFR part 216.
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    \1\ Students recruiting information refers to a student's name, 
address, telephone listing, age (or year of birth), level of 
education (e.g., freshman, sophomore, or degree awarded for a recent 
graduate), and major.
    \2\ 108 Stat. 2663 and 110 Stat. 3009.
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    This letter provides you an opportunity to clarify your 
institution's policy regarding military recruiting on the campus of 
ABC College. In that regard, I request, within the next 30 days, a 
written policy statement of the institution with respect to access 
to campus and students, and to student recruiting information by 
military recruiting personnel.
    Your response should highlight any difference between access for 
military recruiters and access for recruiting by other potential 
employers.
    Based on this information, Department of Defense officials will 
make a determination as to your institution's eligibility to receive 
funds by grant or contract. That decision may affect eligibility for 
funding from appropriations of the Departments of Defense, 
Transportation, Labor, Health and Human Services, Education, and 
Related Agencies. Should it be determined that ABC College is in 
violation of the aforementioned statutes, such funding would be 
stopped, and the school would be ineligible to receive such funds in 
the future.
    I regret that this action may have to be taken. Successful 
recruiting requires that Department of Defense recruiters have 
reasonable access to students on the campuses of colleges and 
universities, and at the same time have effective relationships with 
the officials and student bodies of those institutions. I hope it 
will be possible to (define the correction to the aforementioned 
problem area(s)). I am available to answer any questions.
    Sincerely,

Appendix B of Part 216--ROTC Sample Letter of Inquiry

    (Tailor Letter to Situation Presented)
Dr. Jane Smith
President
ABC College
Anywhere, USA 12345-9876
    Dear Dr. Smith: I understand that ABC College has (refused a 
request from a Military Department to establish a Senior ROTC unit 
at your institution) (refused to continue exisiting ROTC programs at 
your institution) (prevented students from participation at a Senior 
ROTC program at another institution) by a policy or practice of the 
College. Current law \1\ prohibits funds by grant or contract 
(including a grant of funds to be available for student aid) from 
appropriations of the Departments of Defense, Labor, Health and 
Human Services, Education, and Related Agencies to schools that have 
a policy or practice prohibiting or preventing the Secretary of 
Defense from maintaining, establishing, or efficiently operating a 
Senior ROTC unit. Those statutes also bar agency funds for schools 
that prohibit or prevent a student from enrolling in an ROTC unit at 
another institution of higher education. Implementing regulations 
are codified at 32 CFR part 216.
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    \1\ 10 U.S.C. 983 and 110 Stat. 3009.
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    This letter provides you an opportunity to clarify your 
institution's policy regarding ROTC access on the campus of ABC 
College. In that regard, I request, within the next 30 days, a 
written statement of the institution with respect to (define the 
problem area(s)).
    Based on this information, Department of Defense officials will 
make a determination as to your institution's eligibility to receive 
funds by grant or contract. The decision may affect eligibility for 
funding from appropriations of the Departments of Defense, Labor, 
Health and Human Services, Education, and Related Agencies. Should 
it be determined that ABC College is in violation of the 
aforementioned statutes, such funding would be stopped, and the 
school would be ineligible to receive such funds in the future.
    I regret that this action may have to be taken. Successful 
officer procurement requires that the Department of Defense maintain 
a strong ROTC program. I hope it will be possible to (define the 
correction to the aforementioned problem area(s)). I am available to 
answer any questions.
    Sincerely,

    Dated: March 25, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 06-5008 Filed 5-31-06; 8:45am]
BILLING CODE 5001-06-M