[Federal Register Volume 81, Number 15 (Monday, January 25, 2016)]
[Rules and Regulations]
[Pages 3959-3962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01346]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 252

[Docket ID: DOD-2012-OS-0170]
RIN 0790-AI98


Professional U.S. Scouting Organization Operations at U.S. 
Military Installations Overseas

AGENCY: Under Secretary of Defense for Personnel and Readiness, DoD.

ACTION: Final rule.

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SUMMARY: This rule updates policy and outlines fiscal and logistical 
support the DoD may provide to qualified scouting organizations 
operating on U.S. military installations overseas based on Executive 
Order 12715, Support of Overseas Scouting Activities for Military 
Dependents, and pertinent statutes as discussed below. It is DoD policy 
to cooperate with and assist qualified scouting organizations in 
establishing and providing facilities and services, within available 
resources, at locations outside the United States to support DoD 
personnel and their families.

DATES: This rule is effective February 24, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Chris Wright, 703-588-0172.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule on November 24, 2014 (79 FR 69777-69781), with a request 
for public comments. The 60-day public comment period ended on January 
23, 2015. One public comment was received. This comment is addressed as 
follows:
    Comment: It is my opinion that this unchecked support of the 
scouting organizations violates the Establishment Clause of Amendment I 
to the United States Constitution. The Boy Scouts have acted as a 
religious organization by using religion as a reason to exclude gay 
scout leaders. Providing facilities and equipment free of charge 
effectively supports this effort and therefore violates the 
Establishment Clause. I wholeheartedly do not support this rule change.
    Response: During litigation, the Department of Defense (DoD), along 
with the Department of Justice, has consistently defended the legality 
of the statutorily authorized support to the Boy Scouts of America 
(BSA) and other organizations. In briefs, the Government has argued 
that: (1) The BSA is a civic organization, which focuses on citizenship 
training, community service and outdoor activities and physical 
fitness; (2) DoD support to the BSA has advanced several compelling 
military purposes; and (3) DoD support to the BSA does not result in 
Government indoctrination or endorsement of religion.

Executive Summary

I. Purpose of the Regulatory Action

    This rule provides that support provided by DoD is documented in 
written agreements and signed by the appropriate regional combatant 
commander. Also, it would require installation-specific support and 
services to be based on a written agreement and signed by the 
installation commander or designee. These agreements will replace the 
need for these organizations to submit individual articles of 
incorporation, written constitutions, charters, or articles of 
agreement to gain approval from the installation commander to operate 
on the installation. In addition to Executive Order 12715, Title 10 of 
the United

[[Page 3960]]

States Code specifies the DoD's authority to issue rules in this area.
    Title 10, U.S.C., section 2606 provides that: The Secretary may 
collaborate with qualified scouting organizations in establishing and 
providing facilities and services for members of the armed forces and 
their dependents, and civilian employees of the Department of Defense 
and their dependents, at locations outside the United States. Qualified 
scouting organizations may be furnished support such as some 
transportation support, available office space, warehousing, utilities, 
supplies and a means of communication, without charge. The Secretary 
may reimburse a qualified scouting organization for all or part of the 
pay of an employee of that organization for any period during which the 
employee was performing services, however any such reimbursement may 
not be made from appropriated funds. Employees of a qualified scouting 
organization will not be considered to be employees of the United 
States, and the term ``qualified scouting organization'' means the Girl 
Scouts of the United States of America and the Boy Scouts of America.
    Title 10, U.S.C., section 2554 provides that: The Secretary of 
Defense is authorized to lend to the Boy Scouts of America without 
reimbursement, for the use and accommodation of Scouts, Scouters, and 
officials who attend any national or world Boy Scout Jamboree, items 
such as cots, blankets, commissary equipment, flags, refrigerators, and 
other equipment. Additionally, expendable medical supplies and 
services, as may be necessary or useful to the extent that items are in 
stock and items or services are available, can be provided at no 
expense to the United States Government for the delivery, return, 
rehabilitation, or replacement of such items. Before delivering such 
property, the Secretary of Defense will take good and sufficient bond 
for the safe return of such property in good order and condition, and 
the whole without expense to the United States. The Secretary of 
Defense is also authorized to provide, without expense to the United 
States Government, transportation from the United States or military 
commands overseas, and return, on vessels of the Military Sealift 
Command or aircraft of the Air Mobility Command for Boy Scouts, 
Scouters, and officials certified by the Boy Scouts of America, as 
representing the Boy Scouts of America at any national or world Boy 
Scout Jamboree to the extent that such transportation will not 
interfere with the requirements of military operations. The Secretary 
of Defense shall take from the Boy Scouts of America, a good and 
sufficient bond for the reimbursement to the United States, of the 
actual costs of transportation. If a Boy Scout Jamboree is held on a 
military installation, the Secretary of Defense may provide personnel 
services and logistical support at the military installation in 
addition to the support previously stated. Other departments of the 
Federal Government are authorized, under such regulations as may be 
prescribed by the Secretary thereof, to provide to the Boy Scouts of 
America equipment and other services under the same conditions and 
restrictions prescribed in the preceding subsections for the Secretary 
of Defense. The Secretary of Defense shall provide at least the same 
level of support for a national or world Boy Scout Jamboree as was 
provided for the preceding national or world Boy Scout Jamboree. The 
Secretary of Defense may waive all support if it determines that 
providing the support would be detrimental to the national security of 
the United States.
    Title 10, U.S.C., section 2555 provides: The Secretary of Defense 
is authorized to provide, without expense to the United States 
Government, transportation from the United States or military commands 
overseas, and return, on vessels of the Military Sealift Command or 
aircraft of the Air Mobility Command for Girl Scouts and officials 
certified by the Girl Scouts of the United States of America at any 
International World Friendship Event or Troops on Foreign Soil meeting 
which is endorsed and approved by the National Board of Directors of 
the Girl Scouts of the United States of America and is conducted 
outside of the United States. Support is also authorized for United 
States citizen delegates coming from outside of the United States to 
triennial meetings of the National Council of the Girl Scouts of the 
United States of America, and for the equipment and property of Girl 
Scouts and officials, to the extent that such transportation will not 
interfere with the requirements of military operations. Before 
furnishing any transportation, the Secretary of Defense shall take from 
the Girl Scouts of the United States of America a good and sufficient 
bond for the reimbursement to the United States by the Girl Scouts of 
the United States of America, of the actual costs of transportation 
furnished. Amounts paid to the United States to reimburse it for the 
actual costs of transportation furnished will be credited to the 
current applicable appropriations or funds to which such costs were 
charged and shall be available for the same purposes as such 
appropriations or funds.
    Executive Order 12715, May 3, 1990, 55 FR 19051, discusses the 
cooperation and assistance authorized by section 2606(a) of title 10, 
and requires the Secretary of Defense to issue regulations concerning 
support.

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    This rule discusses the types of support DoD installation 
commanders are authorized to provide, ensures appropriated fund (APF) 
and non-appropriated fund (NAF) assets are used correctly, and requires 
the cost of the support provided to be shared by each of the Military 
Services in proportion to benefits derived by their members from 
overseas scouting programs.

III. Costs and Benefits

    Program costs are less than $700,000 per year, consisting primarily 
of salaries, transportation costs, and supplies to support scouting 
programs that directly complement and improve quality of life 
programming for military families overseas.

Retrospective Review

    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review.'' DoD's full plan and updates can be accessed at: 
http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a nonsignificant regulatory 
action and not economically significant under section 3(f) of Executive 
Order 12866. The rule has been reviewed by the Office of Management and 
Budget (OMB).

Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)

[[Page 3961]]

(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This interim final 
rule will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

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

    This rule will not have a significant economic impact, positive or 
negative, on a substantial number of small entities under the criteria 
of the Regulatory Flexibility Act.

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

    This rule does not impose reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    DoD has determined this final rule would not have federalism 
implications under Executive Order 13132. It does not have a 
substantial direct effect on the States, on the relationship between 
the national Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 252

    Military installations, Military personnel, Scout organizations.

    Accordingly 32 CFR part 252 is added to read as follows:

PART 252--PROFESSIONAL U.S. SCOUTING ORGANIZATION OPERATIONS AT 
U.S. MILITARY INSTALLATIONS OVERSEAS

Sec.
252.1 Purpose.
252.2 Applicability.
252.3 Definitions.
252.4 Policy.
252.5 Responsibilities.
252.6 Procedures.

    Authority: E.O. 12715, May 3, 1990, 55 FR 19051; 10 U.S.C. 2606, 
2554, and 2555.


Sec.  252.1  Purpose.

    This part updates policy and outlines fiscal and logistical support 
that the DoD may provide to qualified scouting organizations operating 
on U.S. military installations overseas.


Sec.  252.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint 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 DoD (referred to collectively in this part as ``the DoD 
Components'').


Sec.  252.3  Definitions.

    These terms and their definitions are for the purposes of this 
part.
    DoD personnel and their families. Members of the Military Services 
and their family members and DoD civilian employees and their family 
members.
    Military Services. The Army, Navy, Air Force, and Marine Corps.
    Qualified scouting organization. The Girl Scouts of the United 
States of America (GSUSA) and the Boy Scouts of America (BSA).
    Sponsored organization or sponsored council. Scouting organizations 
or councils authorized to operate as scouting affiliates on military 
installations.


Sec.  252.4  Policy.

    It is DoD policy to cooperate with and assist qualified scouting 
organizations in establishing and providing facilities and services, 
within available resources, at locations outside the United States to 
support DoD personnel and their families in accordance with 10 U.S.C. 
2606, 2554, and 2555 and Executive Order 12715, ``Support of Overseas 
Scouting Activities for Military Dependents''.


Sec.  252.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) oversees development and implementation of this part.
    (b) The DoD Component heads implement this part and comply with its 
provisions.
    (c) In addition to the responsibilities in paragraph (b) of this 
section and acting as the DoD Executive Agent for DoD support to the 
BSA and GSUSA local councils and organizations in areas outside of the 
United States in accordance with 32 CFR part 212, the Secretary of the 
Army:
    (1) Makes policy determinations in coordination with the other 
Military Department Secretaries regarding topics including, but not 
limited to, support that:
    (i) DoD installation commanders are authorized to provide to the 
scouting program and personnel.
    (ii) The scouting organization provides to DoD.
    (2) Ensures accountability for appropriated fund (APF) and non-
appropriated fund (NAF) assets used in the support of qualified 
scouting organizations.
    (3) Provides input for and works with the scouting organizations in 
establishing the extent and scope of the annual scouting programs in 
support of DoD personnel and their families within the parameters 
established in this part and available resources.
    (4) Ensures that the cost of the support provided is shared by each 
of the Military Services in proportion to benefits derived by their 
members from scouting programs overseas.


Sec.  252.6  Procedures.

    (a) General guidance. (1) Support provided by DoD and services 
provided by qualified scouting organizations is documented in a written 
agreement and signed by the appropriate regional combatant commander or 
designee. Installation-specific support and services are documented in 
a written agreement and signed by the installation commander or 
designee. This agreement replaces the need for qualified scouting 
organizations to submit individual articles of incorporation, written 
constitutions, charters, or articles of agreement to gain approval from 
the installation commander to operate on the installation as required 
by 32 CFR part 212.
    (2) Overseas installation commanders may authorize DoD support for 
qualified scouting organizations outside the United States when:
    (i) Support is permitted under international agreements with the 
host nation, if applicable.
    (ii) Support is permitted pursuant to law and DoD issuances.
    (iii) Such support is within the capabilities of their respective 
installations.
    (iv) Providing such support will not impede fulfillment of the 
military mission.
    (3) Committees composed of representatives of the Military Services 
will be formed to review annual qualified scouting organization budget 
requirements.
    (4) Overseas scouting committees will provide the overseas scouting 
organizations with information on the scouting requirements of DoD 
personnel and will monitor and evaluate the scouting organizations' 
efforts to satisfy those requirements.
    (5) Funds raised by the scouting organizations, as a non-Federal 
entity, cannot be commingled with NAF funds and will be made available 
for annual audits.
    (6) Employees of a qualified scouting organization are not 
considered to be U.S. Government employees, or

[[Page 3962]]

employees of an instrumentality of the United States for the purpose of 
benefits or entitlements.
    (i) APF and NAFs are not used to reimburse their salaries and 
benefits.
    (ii) They are not entitled to participate in the NAF retirement 
fund.
    (iii) Serving in those positions does not constitute NAF employment 
credit or produce rehire priority.
    (7) These organizations generally are not covered under the terms 
of United States' Status of Forces or other relevant agreements with 
host nations.
    (i) Questions regarding whether they are covered under such 
agreements should be referred to the legal office servicing the 
applicable command. Applicability of any relevant agreements would be 
addressed with the host nation only by the applicable command, and not 
the organization.
    (ii) To the extent the organization is not covered under any 
relevant agreement, host nation laws apply. In all cases, the host 
nation will determine the scope and extent of the applicability of host 
nation laws to these employees.
    (b) Funding guidance. (1) Any APF and NAF support provided will be 
programmed and approved on an annual basis by the DoD Components. NAF 
support is authorized for youth activities programs in accordance with 
DoD Instruction 1015.15, ``Establishment, Management, and Control of 
Nonappropriated Fund Instrumentalities and Financial Management of 
Supporting Resources'' (available at http://www.dtic.mil/whs/directives/corres/pdf/101515p.pdf) and for qualified scouting 
organizations in accordance with paragraph (b)(5) of this section.
    (2) APF may be used in conjunction with overseas scouting 
organizations. The following services may be provided on a non-
reimbursable basis:
    (i) Transportation of executive personnel (to include household 
goods and baggage) of qualified scouting organizations:
    (A) When on invitational travel orders.
    (B) To and from overseas assignments.
    (C) While providing scouting support to DoD personnel and their 
families. Transportation of supplies of qualified scouting 
organizations necessary to provide such support may also be provided.
    (ii) Office space where regular meetings can be conducted, and 
space for recreational activities.
    (iii) Warehousing.
    (iv) Utilities.
    (v) Means of communication.
    (3) DoD may provide the following additional support to scouting 
executives assigned overseas:
    (i) Pursuant to section API 3.18 of DoD 4525.6-M, ``Department of 
Defense Postal Manual'' (available at http://www.dtic.mil/whs/directives/corres/pdf/452506m.pdf), access to use Military Services 
postal services is authorized.
    (ii) Pursuant to section 4.3.2.2.2 of Department of Defense 
Education Activity Regulation 1342.13, ``Eligibility Requirements for 
Education of Elementary and Secondary School-age Dependents in Overseas 
Areas'' (available at http://www.dodea.edu/Offices/Regulations/index.cfm), access to DoD Dependents Schools (overseas) may be provided 
on a space-available, tuition-paying basis.
    (iii) Pursuant to 32 CFR part 230, use of military banking 
facilities operated under DoD contracts is authorized.
    (iv) Pursuant to DoD Instruction 1015.10, ``Military Morale, 
Welfare, and Recreation (MWR) Programs'' (available at http://www.dtic.mil/whs/directives/corres/pdf/101510p.pdf), the use of morale, 
welfare, and recreation programs may be provided.
    (v) Pursuant to 32 CFR part 161, medical care in uniformed services 
facilities on a space-available basis at rates specified in uniformed 
services instructions, with charges collected locally, is authorized.
    (vi) Pursuant to Office of Management and Budget Circular A-45, 
``Rental and Construction of Government Quarters'' (available at http://www.whitehouse.gov/omb/circulars_a045) and subparagraph 2.c(1)(e) of 
DoD 4165.63-M, ``DoD Housing Management'' (available at http://www.dtic.mil/whs/directives/corres/pdf/416563m.pdf), when DoD-sponsored 
civilian personnel serving DoD military installations at foreign 
locations cannot obtain suitable housing in the vicinity of an 
installation, they and their families may occupy DoD housing on a 
rental basis. The Military Service determines the priority of such 
leasing actions. These civilians are required to pay the established 
rental rate in accordance with DoD 4165.63-M and Military Service 
guidance.
    (vii) Pursuant to DoD Instruction 1330.17, ``DoD Commissary 
Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/133017p.pdf), overseas installation commanders or Secretaries of the 
Military Departments may extend commissary access through official 
support agreements.
    (viii) Pursuant to DoD Instruction 1330.21, ``Armed Services 
Exchange Regulations'' (available at http://www.dtic.mil/whs/directives/corres/pdf/133021p.pdf), the Secretaries of the Military 
Departments may grant Armed Forces Exchange deviations with regard to 
authorized patron privileges for individuals or classes and groups of 
persons at specific installations when based on alleviating individual 
hardships.
    (4) NAF may be used in conjunction with qualified scouting 
organizations to:
    (i) Reimburse for salaries and benefits of employees of those 
organizations for periods during which their professional scouting 
employees perform services in overseas areas in direct support of DoD 
personnel and their families.
    (ii) Reimburse travel to and from official meetings of the overseas 
scouting committee upon approval from the appropriate combatant 
commander.
    (5) The total amount of NAF support for the scouting program must 
not exceed 70 percent of the total cost of the scouting program.

    Dated: January 20, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-01346 Filed 1-22-16; 8:45 am]
 BILLING CODE 5001-06-P