[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9344-9346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5556]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 23
RIN 0790-AF87
Grants and Agreements--Military Recruiting on Campus
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
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SUMMARY: The Department of Defense (DoD) adopts this final rule to
implement Section 558 of the National Defense Authorization Act for
Fiscal Year 1995, as it applies to grants. Section 558 states that
funds available to the Department of Defense may not be provided by
grant or contract to any institution of higher education that has a
policy of denying, or which effectively prevents, the Secretary of
Defense from obtaining for military recruiting purposes: entry to
campuses; access to students on campuses; or access to directory
information pertaining to students. The rule implements the law, as it
applies to grants, by requiring inclusion of a clause in DoD grants
with institutions of higher education. It also extends the requirement,
as a matter of policy, to DoD cooperative agreements, because they are
very similar to grants.
DATES: This final rule is effective on April 8, 1996.
FOR FURTHER INFORMATION CONTACT:
Mark Herbst, ODDR&E(R), 3080 Defense Pentagon, Washington, DC 20301-
3080. Telephone (703) 614-0205.
SUPPLEMENTARY INFORMATION:
Responses to Comments
This final rule revises 32 CFR part 23, which was adopted as an
interim-final rule on January 24, 1995 (at 60 FR 4544). In response to
the publication of the interim-final rule, DoD received written
comments from two associations and some telephonic comments. The
responses to the comments are:
Comment 1: The clause is in the interim-final rule referred to
``procedures established by the Secretary of Defense to implement
section 558 of Public Law 103-337.'' It should refer to DoD's
implementation of section 558, at 32 CFR part 216..
Response 1: Agree. At the time the interim-rule on grants and
cooperative agreements was published 32 CFR part 216 had not been
updated to implement section 558. Now that it has been updated
(published elsewhere in the issue of the Federal Register), the clause
in the final 32 CFR part 23 refers to it. The final rule also includes
more background and policy discussion, and more coverage on the grants
officer's responsibilities, than did the interim-final rule--most of
that discussion and coverage is based on 32 CFR part 216.
Comment 2: In implementing an earlier law that is similar to
section 558, DoD recognized that it might, in some cases, find a
subordinate element of an institution of higher education to be
restricting military recruiters' access, but not the institution as a
whole. In those cases, DoD established a policy (in 32 CFR part 216,
before its recent update) that the subordinate element, but not the
parent institution, would be denied DoD funds. If that policy is
continued in 32 CFR part 216 when it is updated to implement section
558, the grants and cooperative agreements clause should be amended by
adding:
(1) The following sentence after the first sentence of the clause:
``A recipient will not be deemed to be such an institution if a
subordinate element of the institution, but not the institution as a
whole, has a policy of preventing or effectively prevents military
recruiting of students;'' and
(2) At the end of the clause the following two sentences: ``If the
Secretary determines that a subordinate element of an institution, but
not the institution as a whole, has a policy of preventing or
effectively prevents military recruiting of students, DoD may cease
payment under, suspend, or terminate grants and agreements that relate
solely to the relevant subordinate element, but may not take such
action with respect to grant and agreements involving other elements of
the institution or the institution as a whole.''
Response 2: Adding the commenter's proposed sentences to the clause
isn't necessary, for two reasons:
The clause in the final rule has been amended to refer to
``institution of higher education (as defined in 32 CFR part 216).''
The definition in 32 CFR part 216 (which also appears in the final
rule] incorporates the concept of the subordinate element of an
institution of higher education that the comment sought to incorporate;
and
The final rule includes an expanded policy section that
refers to the policy in 32 CFR part 216 concerning subordinate elements
of institutions of higher education.
Comment 3: Under the interim-final rule, DoD will cease payments
under existing grants and agreements, if a recipient is determined to
have a policy of restricting military recruiters' access. This is
unreasonable, since the institution already will have committed funds
for personnel and other project
[[Page 9345]]
expenses. DoD instead should cease payments beginning with the next
year.
Response 3: The restriction on providing by grant any funds
available to DoD is a statutory requirement, and not a matter within
DoD's regulatory discretion. To comply, payments on existing awards
must cease promptly, once an institution is identified pursuant to 32
CFR part 216.
Comment 4: The interim-final rule's requirement for grants officers
to include language in program solicitations seems an unnecessary,
added burden.
Response 4: Agree. The requirement has been deleted from the final
rule.
Comment 5: The interim-final rule doesn't state whether recipient
of grants and cooperative agreements must include the clause in their
subawards to institutions of higher education.
Response 5: Agree. That's clarified in the final rule.
Executive Order 12866
This rule is not a ``significant regulatory action,'' as defined by
Executive Order 12866. The Department of Defense believes that it will
not: (1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector 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 Executive Order
12866.
Regulatory Flexibility Act of 1980 [5 U.S.C. 605(b)]
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 32 CFR Part 23
Grants programs.
Accordingly, Title 32 of the Code of Federal Regulations, part 23
is revised to read as follows.
PART 23--GRANTS AND AGREEMENTS--MILITARY RECRUITING ON CAMPUS
Sec.
23.1 Military recruiting on campus.
Authority: 5 U.S.C. 301.
Sec. 23.1 Military recruiting on campus.
(a) Purpose. The purpose of this section is to implement section
558 of the National Defense Authorization Act for Fiscal Year 1995
(Public Law 103-337), as it specifically affects grants and cooperative
agreements (note that section 558 appears as a note to 10 U.S.C. 503).
This section thereby supplements DoD's primary implementation of
section 558, in 32 part 216, ``Military Recruiting at Institutions of
Higher Education.''
(b) Definitions specific to this section. In this section:
(1) Directory information has the following meaning, given in
section 558(c) of Public Law 103-337. It means, with respect to a
student, the student's name, address, telephone listing, date and place
of birth, level of education, degrees received, and the most recent
previous educational institution enrolled in by the student.
(2) Institution of higher education has the following meaning,
given at 32 CFR 216.3(b). The term:
(i) Means a domestic college, university, or subelement of a
university providing postsecondary school courses of study, including
foreign campuses of such institutions. A subelement of a university is
a discrete (although not necessarily autonomous) organizational entity
that establishes policy or practices affecting military recruiting and
related actions covered by 32 CFR part 216. For example, a subelement
may be an undergraduate school, a law school, medical school, or
graduate school of arts and sciences.
(ii) Includes junior colleges, community colleges, and institutions
providing courses leading to undergraduate and post-graduate degrees.
(iii) Does not include entities that operate exclusively outside
the United States, its territories, and possessions.
(c) Statutory requirement. No funds available to the Department of
Defense may be provided by grant to any institution of higher education
that either has a policy of denying or that effectively prevents the
Secretary of Defense from obtaining, for military recruiting purposes,
entry to campuses or access to students on campuses or access to
directory information pertaining to students.
(d) Policy.--(1) Applicability to subordinate elements of
institutions of higher education. 32 CFR part 216, DoD's primary
implementation of section 558, establishes procedures by which the
Department of Defense identifies institutions of higher education that
have a policy or practice described in paragraph (c) of this section.
In cases where those procedures lead to a determination that specific
subordinate elements of an institution of higher education have such a
policy or practice, rather than the institution as a whole, 32 CFR part
216 provides that the prohibition on use of DoD funds applies only to
those subordinate elements.
(2) Applicability to cooperative agreements. As a matter of DoD
policy, the restriction of section 558, as implemented by 32 CFR part
216, apply to cooperative agreements, as well as grants.
(3) Deviations. Grants officers may not deviate from any provision
of this section without obtaining the prior approval of the Director of
Defense Research and Engineering. Requests for deviations shall be
submitted, through appropriate channels, to: Director for Research,
ODDR&E(R), 3080 Defense Pentagon, Washington, D.C. 20301-3080.
(e) Grants officers' responsibilities. A grants officer shall:
(1) Not award any grant or cooperative agreement to an institution
of higher education that has been identified pursuant to the procedures
of 32 CFR part 216. Such institutions are identified on the
Governmentwide ``List of Parties Excluded from Federal Procurement and
Nonprocurement Programs,'' as being ineligible to receive awards of DoD
funds [note that 32 CFR 25.505(d) requires the grants officer to check
the list prior to determining that a recipient is qualified to receive
an award].
(2) Not consent to any subaward of DoD funds to such an
organization, under a grant or cooperative agreement to any recipient,
if such subaward requires the grants officer's consent.
(3) Include the clause in paragraph (f) of this section in each
grant or cooperative agreement with an institution of higher education.
Note that this requirement does not flow down (i.e., recipients are not
required to include the clause in subawards).
(4) If an institution of higher education refuses to accept the
clause in paragraph (f):
(i) Determine that the institution is not qualified with respect to
the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director for Accession
[[Page 9346]]
Policy, Office of the Assistant Secretary of Defense for Force
Management Policy, OASD (FMP), 4000 Defense Pentagon, Washington, D.C.
20301-4000. This will allow OASD (FMP) to decide whether to initiate an
evaluation of the institution under 32 CFR part 216, to determine
whether it is an institution that has a policy or practice described in
paragraph (c) of this section.
(f) Clause for award documents. The following clause is to be
included in grants and cooperative agreements with institutions of
higher education:
As a condition for receipt of funds available to the Department
of Defense (DoD) under this award, the recipient agrees that it is
not an institution of higher education (as defined in 32 CFR part
216) that has a policy of denying, and that it is not an institution
of higher education that effectively prevents, the Secretary of
Defense from obtaining for military recruiting purposes: (A) entry
to campuses or access to students on campuses; or (B) access to
directory information pertaining to students. If the recipient is
determined, using the procedures in 32 CFR part 216, to be such an
institution of higher education during the period of performance of
this agreement, and therefore to be in breach of this clause, the
Government will cease all payments of DoD funds under this agreement
and all other DoD grants and cooperative agreements to the
recipient, and it may suspend or terminate such grants and
agreements unilaterally for material failure to comply with the
terms and conditions of award.
Dated: March 4, 1996.
Linda M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-5556 Filed 3-7-96; 8:45 am]
BILLING CODE 5000-04-M
