[Federal Register Volume 89, Number 147 (Wednesday, July 31, 2024)]
[Proposed Rules]
[Pages 61384-61386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16419]


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DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3009 and 3052

[Docket No. DHS-2024-0023]
RIN 1601-AB14


Homeland Security Acquisition Regulation, Rescinding Reserve 
Officer Training Corps and Military Recruiting on Campus Clause (HSAR 
Case 2024-001)

AGENCY: Office of the Chief Procurement Officer, Department of Homeland 
Security (DHS).

ACTION: Proposed rule.

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SUMMARY: DHS is proposing to amend the Homeland Security Acquisition 
Regulation (HSAR). Specifically, DHS proposes to remove and reserve a 
HSAR clause and subpart. These provisions

[[Page 61385]]

contain regulatory requirements, which prohibits the award of certain 
Federal contracts to institutions of higher education that prohibit 
Reserve Officer Training Corps units or military recruiting on campus. 
DHS believes these HSAR provisions are no longer needed in light of 
amendments made in the Federal Acquisition Regulation (FAR), which DHS 
has adhered to since December 2020.

DATES: Comments on the proposed rule should be submitted in writing to 
one of the addresses shown below on or before September 30, 2024, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by HSAR Case 2024-001, Rescinding 
Reserve Officer Training Corps and Military Recruiting on Campus 
Clause, using any of the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by entering 
``HSAR Case 2024-001'' under the heading ``Enter Keyword or ID'' and 
select ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``HSAR Case 2024-001.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``HSAR Case 2024-001'' on your attached 
document.
     Fax: (202) 447-0520.
     Mail: Department of Homeland Security, Office of the Chief 
Procurement Officer, MS 0080, ATTN: Ms. Ellen Murray, 6595 Springfield 
Center Dr., Springfield, VA 20598-0080.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Murray, Procurement Analyst, 
DHS, Office of the Chief Procurement Officer, Acquisition Policy and 
Legislation at (202) 603-3791 or email [email protected]. When using 
email, include HSAR Case 2024-001 in the ``Subject'' line.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 4, 2003, DHS published an interim final rule to 
establish the Department of Homeland Security Acquisition Regulation 
(HSAR).\1\ On May 2, 2006, DHS published a final rule, which adopted 
the interim rule with some changes in response to public comment (HSAR 
final rule).\2\ The HSAR final rule finalized, among other provisions, 
HSAR clause 3052.209-71, Reserve Officer Training Corps and Military 
Recruiting on Campus (48 CFR 3052.209-71). This regulatory requirement 
is consistent with 10 U.S.C. 983, which prohibits the award of certain 
Federal contracts to institutions of higher education that prohibit 
Reserve Officer Training Corps units or military recruiting on campus.
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    \1\ See Department of Homeland Security Acquisition Regulation, 
68 FR 67868 (Dec. 4, 2003).
    \2\ See Revision of Department of Homeland Security Acquisition 
Regulation, 71 FR 25759 (May 2, 2006).
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    HSAR clause 3052.209-71 requires certain contractors to represent 
at time of contract award that it does not have and agrees that during 
performance of a contract it will not adopt, any policy or practice 
that prohibits or prevents the maintenance, establishment, or operation 
of a Senior Reserve Officer Training Corps (ROTC) unit at the 
institution; students at that institution from enrolling in a unit of 
the Senior ROTC at another institution of higher education; the 
Secretary of a military department or Secretary of Homeland Security 
from gaining access to campuses, or students on campuses, for military 
recruiting purposes; or access by military recruiters, for the purposes 
of military recruiting, to certain information pertaining to students 
enrolled at the institution.\3\
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    \3\ See 48 CFR 3052.209-71.
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    The clause also lists the two statutory exceptions to the 
prohibition concerning the award of a contract found in 10 U.S.C. 
983(c).\4\ These exceptions are when the Secretary of Defense 
determines that the institution has ceased the prohibited policy or 
practice or that the institution has a long-standing policy of pacifism 
based on historical religious affiliation.
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    \4\ See 48 CFR 3052.209-71.
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    On October 23, 2020, the Department of Defense (DoD), the General 
Services Administration (GSA), and National Aeronautics and Space 
Administration (NASA) jointly issued a final rule entitled Federal 
Acquisition Regulation (FAR) Reserve Officer Training Corps and 
Military Recruiting on Campus (``FAR final rule'').\5\ The FAR final 
rule, among other amendments, codified for all affected Federal 
agencies a requirement to include, where applicable, a clause that 
prohibits the award of certain Federal contracts to institutions of 
higher education that prohibit Reserve Officer Training Corps units or 
military recruiting on campus.\6\
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    \5\ See 85 FR 67619 (Oct. 23, 2020).
    \6\ See 85 FR 67619 (Oct. 23, 2020).
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    DHS notes that the DHS Chief Procurement Officer can issue HSAR 
deviations when necessary to allow components to deviate from the 
HSAR.\7\ On December 8, 2020, DHS issued HSAR Class Deviation 21-02, 
Reserve Officer Training Corps and Military Recruiting on Campus.\8\ 
The deviation explained that the FAR final rule ``effective November 
23, 2020, added FAR 9.110 that provides the policy and procedures for 
complying with the 10 U.S.C. 983 prohibition, including FAR clause 
52.209-14.'' \9\ The deviation then directed DHS contracting officers 
to follow the FAR when complying with the requirements of 10 U.S.C. 983 
and suspended use of HSAR 3009.470 and HSAR clause 3052.209-71.
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    \7\ See HSAR Deviations, available at: https://www.dhs.gov/publication/current-hsar-deviations (last accessed May 28, 2024).
    \8\ See HSAR Deviation 21-02, Reserve Officer Training Corps and 
Military Recruiting on Campus, available at: https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf (last accessed May 
28, 2024).
    \9\ See HSAR Deviation 21-02, Reserve Officer Training Corps and 
Military Recruiting on Campus, available at: https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf (last accessed May 
28, 2024).
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    As a result of the FAR revision, HSAR clause 3052.209-71 is no 
longer being used to comply with 10 U.S.C. 983. Therefore, DHS is 
proposing to remove and reserve HSAR clause 3052.209-71 and subpart 
3009.4.

II. Discussion and Analysis

    As explained previously, DHS currently complies with the 
requirements of 10 U.S.C. 983 by following the regulatory provisions of 
the FAR final rule. Until December 8, 2020, DHS had formerly complied 
with this statutory provision by following 48 CFR 3052.209-71 and 48 
CFR 3009.470.\10\
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    \10\ DHS notes that 48 CFR 3009.470-3009.470-4 currently 
constitutes all the regulatory text contained in 48 CFR part 3009, 
subpart 3009.4.
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    As a result of the amendments made in the FAR final rule that 
standardize compliance with 10 U.S.C. 983 for all affected Federal 
agencies, and the directives of HSAR Class Deviation 21-02, DHS has 
determined that HSAR clause 3052.209-71 and subpart 3009.4 are not 
needed to comply with the requirements of 10 U.S.C. 983.\11\ Therefore, 
DHS is proposing to remove and reserve 48 CFR 3052.209-71 and subpart 
3009.4 of 48 CFR part 3009. These proposed changes would also be 
consistent with the guidance in the HSAR Deviation.

[[Page 61386]]

III. Regulatory Analyses

A. Executive Orders 12866, 13563, and 14094

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the 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, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action, under section 3(f) of Executive 
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has 
not reviewed this regulatory action.
    There are no quantified costs or cost savings to this rule as it 
simply rescinds HSAR requirements that DoD, GSA and NASA have already 
incorporated in the FAR. DHS believes there would be efficiency and 
streamlining benefits from this rule as it would remove agency specific 
provisions from the HSAR.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121, (Mar. 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, or governmental 
jurisdictions with populations of less than 50,000. This proposed rule 
would rescind HSAR clause 3052.209-71 and would not impose new 
requirements on small entities. As such, DHS certifies this proposed 
change would not result in 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.

C. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

D. National Environmental Policy Act

    Section 102 of the National Environmental Policy Act of 1969 
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 
et seq.), as amended, requires Federal agencies to evaluate the impacts 
of a proposed major Federal action that may significantly affect the 
human environment, consider alternatives to the proposed action, 
provide public notice and opportunity to comment, and properly document 
its analysis. DHS and its agency components analyze proposed actions to 
determine whether NEPA applies to them and, if so, what level of 
documentation and analysis is required.
    DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-
001-01, Rev. 01 (Instruction Manual) establish the policies and 
procedures DHS and its component agencies use to comply with NEPA and 
the Council on Environmental Quality regulations for implementing NEPA 
codified in 40 CFR parts 1500-1508. The CEQ regulations allow Federal 
agencies to establish, in their implementing procedures, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not, individually or in the 
aggregate, have a significant effect on the human environment and, 
therefore, do not require preparation of an environmental assessment or 
environmental impact statement. 40 CFR 1501.4, 1507.3(e)(2)(ii). 
Appendix A of the Instruction Manual lists the DHS categorical 
exclusions.
    Under DHS NEPA implementing procedures, for an action to be 
categorically excluded, it must satisfy each of the following three 
conditions: (1) the entire action clearly fits within one or more 
categorical exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect.
    The proposed rule, if finalized, would amend the HSAR to remove and 
reserve HSAR clause 3052.209-71 and subpart 3009.4. As stated 
previously, this HSAR clause and its corresponding policy that the rule 
proposes to remove are now obsolete given that a FAR clause has been 
implemented to create a single standard for all agencies subject to 10 
U.S.C. 983 to comply with the statutory requirements.
    DHS is not aware of any significant impact on the environment, or 
any change in environmental effect that will result from this proposed 
rule. DHS finds promulgation of the rule clearly fits within 
categorical exclusion A3, established in the Department's NEPA 
implementing procedures as removing and reserving HSAR clause 3052.209-
71 and subpart 3009.4 would be strictly administrative in nature.
    This proposed rule is a standalone rule and is not part of any 
larger action. This proposed rule would not result in any major Federal 
action that would significantly affect the quality of the human 
environment. Furthermore, DHS has determined that no extraordinary 
circumstances exist that would create the potential for significant 
environmental effects. Therefore, this proposed rule is categorically 
excluded from further NEPA review and documentation.

List of Subjects in 48 CFR Parts 3009 and 3052

    Government procurement.

    Accordingly, for the reasons set forth in the preamble, DHS 
proposes to amend 48 CFR parts 3009 and 3052 as follows:

PART 3009--CONTRACTOR QUALIFICATIONS

0
1. The authority citation for part 3009 continues to read as follows:

    Authority: 5 U.S.C. 301-302, 41 U.S.C. 1303, 41 U.S.C. 1707, 41 
U.S.C. 1702, and 48 CFR subpart 1.3.


3009.4  [Removed and Reserved]

0
2. Remove and reserve subpart 3009.4.

PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 3052 continues to read as follows:

    Authority:  5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 41 
U.S.C. 1303(a)(2), 48 CFR part 1, subpart 1.3, and DHS Delegation 
Number 0702.


3052.209-71  [Removed and Reserved]

0
4. Remove and reserve section 3052.209-71.

Paul Courtney,
Chief Procurement Officer, Department of Homeland Security.
[FR Doc. 2024-16419 Filed 7-30-24; 8:45 am]
BILLING CODE 9112-FE-P