[Federal Register Volume 67, Number 146 (Tuesday, July 30, 2002)]
[Rules and Regulations]
[Pages 49253-49254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19081]
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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: Final rule.
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SUMMARY: DoD has adopted as final, with minor changes, 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 prevent Senior Reserve Officer Training Corps (ROTC)
access or military recruiting on campus.
EFFECTIVE DATE: July 30, 2002.
FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense
Acquisition Regulations Council, OUSD (AT&L) DP (DAR), IMD 3C132, 3062
Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326;
facsimile (703) 602-0350. Please cite DFARS Case 99--D303.
SUPPLEMENTARY INFORMATION:
A. Background
This rule implements Section 549 of the National Defense
Authorization Act for Fiscal Year 2000 (Public Law 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 ROTC
units or military recruiting on campus.
DoD published an interim rule at 65 FR 2056 on January 13, 2000.
Sixty-one sources submitted comments on the interim rule. After
evaluating all comments, DoD converted the interim rule to a final rule
with minor editorial changes. A summary of the comments and the DoD
response is provided below:
Comment: The greatest concern expressed by respondents pertained to
the extension of the prohibition to subelements of educational
institutions. The respondents stated that Section 549 of Public Law
106-65 was intended to recodify prior legislation, which did not
require extension of the prohibition to subelements; prior legislative
history did not support extension to subelements; and the fact that the
subelement language was contained in the Senate report but not in the
House report, and that the Senate had receded to the House version of
the bill, meant that DoD could not rely upon the Senate report as a
basis for extending the rule to subelements of an institution.
DoD Response: Senate and House Committee reports generally are
taken into consideration to determine legislative intent only when the
statutory language is unclear. The final language of Section 549 of
Public Law 106-65 clearly states that the policy applies to any
subelement of an institution. A comparison of the previous and current
legislation shows that the subelement language was a new addition to
the statute resulting from the enactment of Section 549.
Comment: Several respondents believed that DoD did not have
[[Page 49254]]
sufficient cause to issue an interim rule without prior opportunity for
public comment. DoD Response: Section 549 of Public Law 106-65 became
effective upon enactment, on October 5, 1999. DoD issued a rule before
receipt of public comments to promptly comply with the new statutory
requirement.
Comment: One respondent stated that the rule calls for suspension
and debarment without due process and asked what procedure exists for
an educational institution to challenge a determination. DoD Response:
This DFARS rule merely prescribes the action to be taken after an
institution is determined to be ineligible for DoD contract awards. The
procedures used to make that determination are addressed separately in
the regulations at 32 CFR part 216.
Comment: One respondent stated that the requirements for stopping
payments and terminating existing contracts go far beyond traditional
suspension and debarment. DoD Response: These requirements are not new.
They were added to the DFARS in 1995 to comply with Section 558 of
Public Law 103-337, which prohibited DoD from providing funds to
educational institutions that prevented military recruiting on campus.
The current legislation contains a similar prohibition.
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 certifies that this final rule will not 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
do not permit Senior ROTC units or military recruiting on campus.
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.
List of Subjects in 48 CFR Parts 209, 243, and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Parts 209, 243, and
252, which was published at 65 FR 2056 on January 13, 2000, is adopted
as a final rule with the following changes:
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
209.470-3 [Amended]
2. Section 209.470-3 is amended in paragraphs (b)(1), (2), and (3)
by removing ``Must'' and adding in its place ``Shall''.
[FR Doc. 02-19081 Filed 7-29-02; 8:45 am]
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