[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2056-2057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-765]
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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: Interim rule with request for comments.
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SUMMARY: The Acting Director of Defense Procurement has issued 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 prohibit Senior Reserve Officer
Training Corps units or military recruiting on campus.
DATES: Effective date: January 13, 2000.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before March 13, 2000, to be
considered in the formation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD
(AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC
20301-3062. Telefax (703) 602-0350.
E-mail comments submitted via the Internet should be addressed to:
[email protected]
Please cite DFARS Case 99-D303 in all correspondence related to
this rule. E-mail comments should cite DFARS Case 99-D303 in the
subject line.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0288.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises DFARS 209.470, 243.105, and 252.209-7005
to implement Section 549 of the National Defense Authorization Act for
Fiscal Year 2000 (Pub. L. 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 Reserve Officer
Training Corps (ROTC) units or military recruiting on campus.
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 does not expect this rule to 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 prohibit Senior
ROTC units or military recruiting on campus. Therefore, DoD has not
performed an initial regulatory flexibility analysis. DoD invites
comments from small businesses and other interested parties. DoD also
will consider comments from small entities concerning the affected
DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be
submitted separately and should cite DFARS Case 99-D303.
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.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish this
interim rule prior to affording the public an opportunity to comment.
This interim rule implements 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 prohibit Senior ROTC units or
military recruiting on campus. Section 549 became effective on October
5, 1999. DoD will consider comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 209, 243, and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 209, 243, and 252 are amended as follows:
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
2. Sections 209.470 through 209.470-3 are revised and section
209.470-4 is added to read as follows:
209.470 Reserve Officer Training Corps and military recruiting on
campus.
209.470-1 Definition.
Institution of higher education, as used in this section, means an
institution that meets the requirements of 20 U.S.C. 1001 and includes
all subelements of such an institution.
209.470-2 Policy.
(a) Except as provided in paragraph (b) of this subsection, 10
U.S.C. 983 prohibits DoD from providing funds by contract or grant to
an institution of higher education if the Secretary of Defense
determines that the institution has a policy or practice that prohibits
or in effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) at that institution;
(2) A student at that institution from enrolling in a unit of the
senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Transportation from gaining entry to campuses, or access to students on
campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing certain information
pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a) of this subsection does not
apply to an institution of higher education if the Secretary of Defense
determines that--
(1) The institution has ceased the policy or practice described in
paragraph (a) of this subsection; or
[[Page 2057]]
(2) The institution has a long-standing policy of pacifism based on
historical religious affiliation.
209.470-3 Procedures.
If the Secretary of Defense determines that an institution of
higher education is ineligible to receive DoD funds because of a policy
or practice described in 209.470-2(a)--
(a) The Secretary of Defense will list the institution on the List
of Parties Excluded from Federal Procurement and Nonprocurement
Programs published by General Services Administration (also see FAR
9.404 and 32 CFR part 216); and
(b) DoD components--
(1) Must not solicit offers from, award contracts to, or consent to
subcontracts with the institution;
(2) Must make no further payments under existing contracts with the
institution; and
(3) Must terminate existing contracts with the institution.
209.470-4 Contract clause.
Use the clause at 252.209-7005, Reserve Officer Training Corps and
Military Recruiting on Campus, in all solicitations and contracts with
institutions of higher education.
PART 243--CONTRACT MODIFICATIONS
3. Section 243.105 is amended by revising paragraph (a)(ii) and
removing paragraph (a)(iii). The revised text reads as follows;
243.105 Availablity of funds.
(a) * * *
(ii) In accordance with 10 U.S.C. 983, do not provide funds by
contract or contract modification, or make contract payments, to an
institution of higher education that has a policy or practice of
hindering Senior Reserve Officer Training Corps units or military
recruiting on campus as described at 209.470.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 252.209-7005 is revised to read as follows:
252.209-7005 Reserve Officer Training Corps and Military Recruiting on
Campus.
As prescribed in 209.470-4, use the following clause:
Reserve Officer Training Corps and Military Recruiting on Campus (Jan
2000)
(a) Definition. ``Institution of higher education,'' as used in
this clause, means an institution that meets the requirements of 20
U.S.C. 1001 and includes all subelements of such an institution.
(b) Limitation on contract award. Except as provided in
paragraph (c) of this clause, an institution of higher education is
ineligible for contract award if the Secretary of Defense determines
that the institution has a policy or practice (regardless of when
implemented) that prohibits or in effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other
applicable Federal laws) at that institution;
(2) A student at that institution from enrolling in a unit of
the Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Transportation from gaining entry to campuses, or access to students
(who are 17 years of age or older) on campuses, for purposes of
military recruiting; or
Military recruiters from accessing, for purposes of military
recruiting, the following information pertaining to students (who
are 17 years of age or older) enrolled at that institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution enrollment.
(c) Exception. The limitation in paragraph (b) of this clause
does not apply to an institution of higher education if the
Secretary of Defense determines that--
(1) The institution has ceased the policy or practice described
in paragraph (b) of this clause; or
(2) The institution has a long-standing policy of pacifism based
on historical religious affiliation.
(d) Agreement. The Contractor represents that it does not now
have, and agrees that during performance of this contract it will
not adopt, any policy or practice described in paragraph (b) of this
clause, unless the Secretary of Defense has granted an exception in
accordance with paragraph (c)(2) of this clause.
(e) Notwithstanding any other clause of this contract, if the
Secretary of Defense determines that the Contractor misrepresented
its policies and practices at the time of contract award or has
violated the agreement in paragraph (d) of this clause--
(1) The Contractor will be ineligible for further payments under
this and other contracts with the Department of Defense; and
(2) The Government will terminate this contract for default for
the Contractor's material failure to comply with the terms and
conditions of award.
(End of clause)
[FR Doc. 00-765 Filed 1-12-00; 8:45 am]
BILLING CODE 5000-04-M