[Federal Register Volume 72, Number 190 (Tuesday, October 2, 2007)]
[Proposed Rules]
[Pages 56021-56025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19446]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 212

[DoD-2006-OS-0041; 0790-AB04]


Procedures and Support for Non-Federal Entities Authorized To 
Operate on Department of Defense (DoD) Installations

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This rule proposed to update responsibilities and procedures 
to define and reestablish a framework for non-Federal entities (NFEs) 
(previously called private organizations) authorized to operate on DoD 
installations. Requires heads of DoD Components to conduct periodic 
reviews of facilities, programs, services, and membership provisions of 
NFEs operating on DoD installations and authorizes installation 
commanders or higher authority to determine if an NFE detracts from DoD 
programs and to eliminate duplication. Identifies those NFEs having 
statutory authorization for particular support and restates DoD policy 
on sponsorship of NFEs by DoD personnel acting in an official capacity, 
specifically as it applies to chartering Boy Scout organizations 
authorized to operate on DoD installations.

DATES: Comments must be received by December 3, 2007.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Pam Crespi, 703-602-5004.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 123 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect to the economy of $100 million or more or 
adversely affect in a material way the economy; a section 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 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility

[[Page 56022]]

Act (5 U.S.C. 601) because it would not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
The rule makes some changes in the regulation and updates some 
references but taken cumulatively, those changes would not have a 
significant impact on a substantial number of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that this rule does impose reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995. 
The reporting and recordkeeping requirements have been submitted to OMB 
for review.

Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 212

    Armed forces, Foreign relations, Statistics, Taxes.

    Accordingly, 32 CFR part 212 is proposed to be revised to read as 
follows:

PART 212--PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES 
AUTHORIZED TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS

Sec.
212.1 Purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.
Appendix A to Part 212-Non-Federal Entities Having Statutory 
Authorization for Particular Support


Sec.  212.1  Purpose.

    This part updates responsibilities and procedures to define and 
reestablish a framework for non-Federal entities authorized to operate 
on DoD installations.


Sec.  212.2  Applicability.

    (a) This part applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the Department of Defense (hereafter 
referred to collectively as the ``DoD Components'').
    (2) Non-Federal entities authorized to operate on DoD 
installations.
    (b) This part shall not apply to:
    (1) Military relief societies.
    (2) Banks or credit unions according to DoD Directive 1000.11.\1\
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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    (3) Support provided under Innovative Readiness Training according 
to DoD Directive 1100.20.\2\
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    \2\ See footnote 1 to Sec.  212.2(b)(2).
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Sec.  212.3  Definitions.

    (a) Non-Federal Entities. A non-Federal entity is generally a self-
sustaining, non-Federal organization, incorporated or unincorporated. 
This Instruction addresses only those entities that operate on DoD 
installations with the express consent of the installation commander or 
higher authority. Membership of these organizations consists of 
individuals acting exclusively outside the scope of any official 
capacity as officers, employees, or agents of the Federal Government. 
Non-Federal entities may include elements of State, interstate, Indian 
tribal, and local governments as well as private organizations.
    (b) United States. As used in this part, the 50 States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth 
of the Northern Marianas Islands, the U.S. Virgin Islands, Guam, 
American Samoa, Johnston Atoll, Kingman Reef, Midway Island, Nassau 
Island, Palmyra Island, Wake Island, and any other territory or 
possession of the United States, and associated navigable waters, 
including the territorial seas.
    (c) DoD Installation. A location, facility, or activity owned, 
leased, assigned to, controlled, or occupied by a DoD Component.


Sec.  212.4  Policy.

    It is DoD policy that procedures be established for the operation 
of non-Federal entities on DoD installations to prevent official 
sanction, endorsement, or support by the DoD Components except as 
authorized in DoD 5500.7-R \3\ and applicable law. Non-Federal entities 
are not entitled to sovereign immunity and privileges accorded to 
Federal entities and instrumentalities. The DoD Components shall take 
action to preclude unauthorized expenditures of appropriated funds, 
commissary surcharge, or nonappropriated funds (NAF) in support of 
these organizations.
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    \3\ See footnote 1 to Sec.  212.2(b)(2).
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Sec.  212.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness, under the authority and guidance of the Under Secretary 
of Defense for Personnel and Readiness, shall be responsible for 
implementing policy and oversight of non-Federal entities on DoD 
installations.
    (b) The Heads of the DoD Components shall:
    (1) Implement this part.
    (2) Be aware of all non-Federal entities operating under their 
jurisdiction.
    (3) Conduct reviews to ensure installation commanders periodically 
review facilities, programs, and services provided by non-Federal 
entities operating on DoD installations. Also, installation commanders 
will review membership provisions and the original purpose for which 
each organization was originally approved. Substantial changes to those 
original conditions shall necessitate further review, documentation, 
and approval for continued permission to operate on the installation.


Sec.  212.6  Procedures.

    (a) To prevent the appearance of official sanction or support by 
the Department of Defense:
    (1) Non-Federal entities may not use the seals, logos, or insignia 
of the Department of Defense or any DoD Component, DoD organizational 
unit, or DoD installation on organization letterhead, correspondence, 
titles, or in association with organization programs, locations, or 
activities.
    (2) Non-Federal entities operating on DoD installations may use the 
name or abbreviation of the Department of Defense, a DoD Component, 
organizational unit, or installation in its name provided that its 
status as a non-Federal entity is apparent and unambiguous and there is 
no appearance of official sanction or support by the Department of 
Defense. The following applies:
    (i) The non-Federal entity must have approval from the head of the 
appropriate DoD organization before using the name or abbreviation.
    (ii) Any use of the name or abbreviation of a DoD Component, 
organizational unit, or installation must not mislead members of the 
public to assume a non-Federal entity is an organizational unit of the 
Department of Defense.
    (iii) A non-Federal entity must prominently display the following

[[Page 56023]]

disclaimer on all print and electronic media mentioning the entity's 
name confirming that the entity is not a part of the Department of 
Defense: ``THIS IS A NON-FEDERAL ENTITY. IT IS NOT A PART OF THE 
DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT HAS NO 
GOVERNMENTAL STATUS.'' This disclaimer must also be provided in 
appropriate oral communications and public announcements when the name 
of the entity is used.
    (b) Activities of non-Federal entities covered by this Instruction 
shall not in any way prejudice or discredit the DoD Components or other 
Federal Government Agencies.
    (c) Installation commanders shall approve written agreements that 
indicate permission to operate on the installation and any logistical 
support that will be provided. DoD personnel acting in an official 
capacity will not execute any charter that will serve as the legal 
basis for the non-Federal entity. The nature, function, and objectives 
of a non-Federal entity covered by this Instruction shall be delineated 
in a written constitution, by-laws, charter, articles of agreement, or 
other authorization documents before receiving approval from the 
installation commander to operate on the installation. That 
documentation shall also include:
    (1) Description of eligible membership in the non-Federal entity.
    (i) No person because of race, color, creed, sex, age, disability, 
or national origin shall be unlawfully denied membership, unlawfully 
excluded from participation, or otherwise subjected to unlawful 
discrimination by any non-Federal entity or other private organization 
covered by this part.
    (ii) Installation commanders will distribute information on 
procedures for individuals to follow when they suspect unlawful 
discrimination by the organization.
    (2) Designation of management responsibilities, including the 
accountability for assets, satisfaction of liabilities, disposition of 
any residual assets on dissolution, and other documentation that shows 
responsible financial management.
    (3) A certification indicating that members understand they are 
personally liable if the assets of the non-Federal entity are 
insufficient to discharge all liabilities.
    (4) Guidance relating to professional scouting organizations 
operating at U.S. military installations located overseas can be found 
in DoD Instruction 1015.9.\4\
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    \4\ See footnote 1 to Sec.  212.2(b)(2).
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    (i) In accordance with DoD 5500.7-R, DoD personnel acting in an 
official capacity shall not execute charters that serve as the legal 
basis for the creation of Boy Scouts organizations (including Boy 
Scouts, Cub Scout Packs, or Venturer Crews).
    (ii) While such chartering is not allowed, nothing in this part is 
intended to preclude DoD support to Boy Scouts authorized by other DoD 
Instructions, to preclude Boy Scouts activities on DoD installations, 
or to preclude DoD personnel in their personal capacity from sponsoring 
Boy Scouts organizations. Existing charters executed by DoD personnel 
in their official capacity shall be terminated, or amended to 
substitute sponsorship by an appropriate individual, volunteer, groups 
or organization, consistent with DoD policy.\5\
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    \5\ Paragraph mandated by ``Partial Settlement Agreement Between 
Plaintiffs and Secretary Rumsfield'', United States District Court 
for the Northern District of Illinois, Eastern Division, No. 1999 CV 
02424 (Eugene Winkler, et al., v. Chicago School Reform Board of 
Trustees, et al.)
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    (d) A non-Federal entity covered by this part shall not offer 
programs or services on DoD installations that compete with 
appropriated or NAF activities, but may, when specifically authorized, 
supplement those activities.
    (1) Installation commanders, or higher authorities, will determine 
if the services of a non-Federal entity conflict with or detract from 
local DoD programs. The cognizant commander has discretionary authority 
over the operations of non-Federal entities on DoD installations. 
Commanders are authorized to eliminate duplication of services, 
particularly when these services compete with the installation's 
revenue-generating activities.
    (2) Background checks are required for employees and volunteers of 
non-Federal entities who have contact with children under the age of 18 
in DoD operated, contracted, or community-based programs, which are 
used to supplement or expand child care or youth services, according to 
DoD Instruction 1402.5.\6\
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    \6\ See footnote 1 to Sec.  212.2(b)(2).
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    (e) Non-Federal entities covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges, 
fees, or special assessment of members. There shall be no financial 
assistance to such an entity from a NAF Instrumentality (NAFI) in the 
form of contributions, repairs, services, dividends, or other donations 
of money or other assets. Fundraising and membership drives are 
governed by DoD 5500.7-R.
    (f) Non-Federal entities are not entitled to DoD support. However, 
support may be provided when it is consistent with the military mission 
of the DoD Component concerned. Such support may be provided only when 
it can be offered within the capability of the installation commander 
without detriment to the commander's ability to fulfill the military 
mission and when it is permitted under applicable Status of Forces 
Agreements. The DoD Components may provide logistical support to non-
Federal entities with appropriated funds according to DoD 5500.7-R and 
applicable law. NAFI funds or assets shall not be directly or 
indirectly transferred to non-Federal entities according to DoD 
Instruction 1015.14 \7\ (Reference (h)).
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    \7\ See footnote 1 to Sec.  212.2(b)(1).
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    (g) Personal and professional participation in non-Federal entities 
by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in 
an official capacity will not execute charters that serve as the legal 
basis for any non-Federal entity or other private organization.
    (h) Neither appropriated fund activities nor NAFIs may assert any 
claim to the assets, or incur or assume any obligation, of any non-
Federal entity covered by this Instruction, except as may arise out of 
contractual relationships. Property shall not be abandoned on the 
installation by a non-Federal entity and may only be acquired by the 
DoD installation by purchase or through donation.
    (i) The non-Federal entity shall have adequate insurance, as 
defined by the DoD Component concerned, to protect against liability 
and property damage claims or other legal actions that may arise due to 
its activities, its acting members, or the operation of its equipment 
or devices. The DoD Components will not assume liability (through 
insurance or other means) for any activities or assets of non-Federal 
entities.
    (j) Non-Federal entities shall comply with applicable fire and 
safety regulations, environmental laws, local, State, and Federal tax 
codes; and any other applicable statutes or regulations.
    (k) Income shall not accrue to individual members of a non-Federal 
entity except through wages and salaries as employees of the non-
Federal entity or as award recognition for services rendered to the 
non-Federal entity or military community. This prohibition is not meant 
to preclude operation of investment clubs, in which the

[[Page 56024]]

investment of members' personal funds result in a return on investment 
directly and solely to the individual members.
    (l) Employees of non-Federal entities are not employees of the 
United States or of an instrumentality of the United States. Applicable 
laws on labor standards for employment shall be observed, including 
worker's compensation insurance. Employees of non-Federal entities 
shall not participate in NAF employee benefit programs based upon their 
affiliation with the non-Federal entity.
    (m) Non-Federal entities that have statutory authorization for 
particular support are listed at Appendix A to this part.
    (n) Certain unofficial activities conducted on DoD installations do 
not need formal authorization because of the limited scope of their 
activities. Examples are office coffee funds, flower funds, and similar 
small, informal activities and funds. The DoD Components shall 
establish the basis upon which such informal activities and funds shall 
operate.

Appendix A to Part 212--Non-Federal Entities Having Statutory 
Authorization for Particular Support

    Many non-Federal entities have statutory and/or Department 
authorization for particular support. Most are listed as follows:

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           Non-federal entity                       Authority
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Certain banks and credit unions........  12 United States Code (U.S.C.)
                                          1770.
United Service Organizations...........  36 U.S.C. 220101.
                                         Memorandum of Understanding
                                          (MOU).
Labor organizations....................  5 U.S.C. Chapter 71.
                                         DoD 1400.25-M, \8\ subchapter
                                          711.
Combined Federal Campaign..............  E.O. 12353.
                                         5 CFR 950.
                                         DoD Directive 5035.1.\9\
                                         DoD Instruction 5035.5.\10\
American Registry of Pathology.........  10 U.S.C. 177.
Henry M. Jackson Foundation for the      10 U.S.C. 178.
 Advancement of Military Medicine.
American National Red Cross............  10 U.S.C. 2552.
                                         10 U.S.C. 2602.
                                         Secretary of the Army
                                          Memorandum.
                                         MOU.
Boy Scouts Jamborees \11\..............  10 U.S.C. 2554.
Girl Scouts International Events         10 U.S.C. 2555.
 (Transportation).
                                         DoD Instruction 1015.14.
Shelter for Homeless...................  10 U.S.C. 2556.
National Military Associations;          10 U.S.C. 2558.
 Assistance at National Conventions.
                                         DoD Directive 5410.18.\12\
                                         DoD Instruction 5410.19.\13\
National Veterans' Organizations (Beds   10 U.S.C. 2551.
 and Barracks).
United Seamen's Service Organization...  10 U.S.C. 2604.
                                         MOU.
Scouting: Cooperation and Assistance in  10 U.S.C. 2606.
 Foreign Areas.
                                         DoD Instruction 1015.14.
Civil Air Patrol.......................  10 U.S.C. 9441.
                                         10 U.S.C. 9442.
                                         36 U.S.C. 40301.
Assistance for certain youth and         32 U.S.C. 508.
 charitable organizations.
                                         DoD Directive 1100.20.
Presidential Inaugural Ceremonies......  10 U.S.C. 2553
Specified Sporting Events (Olympics)...  10 U.S.C. 2564.
                                         DoD Directive 2000.15.\14\
Fire Protection Agreements.............  42 U.S.C. 1856.
Armed Services Young Men's Christian     10 U.S.C. 2012.
 Association.
                                         10 U.S.C. 4744.
                                         32 U.S.C. 508.
                                         MOU.
The Military Department of each State    32 U.S.C. 101
 and territory.
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\8\ See footnote 1 to Sec.   212.2(b)(2).
\9\ See footnote 1 to Sec.   212.2(b)(2).
\10\ See footnote 1 to Sec.   212.2(b)(2).
\11\ A Federal district judge has ruled that support to the Boy Scouts
  under 10 U.S.C. Sec.   2554 is unconstitutional, and has enjoined DoD
  from providing future support under that statute. DoD has appealed
  that order. Unless the order is overturned on appeal, DoD cannot
  provide any support to the Boy Scouts using this statute. Contact your
  local legal office for further guidance.
\12\ See footnote 1 to Sec.   212.2(b)(2).
\13\ See footnote 1 to Sec.   212.2(b)(2).
\14\ See footnote 1 to Sec.   212.2(b)(2).



[[Page 56025]]

    September 26, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.

[FR Doc. E7-19446 Filed 10-1-07; 8:45 am]
BILLING CODE 5001-06-P