[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9346-9348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5555]
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DEPARTMENT OF DEFENSE
32 CFR Part 216
[DoD Directive 1322.13]
RIN 0790-AG13
Military Recruiting at Institutions of Higher Education
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
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SUMMARY: The Department of Defense adopts this final rule to implement
the National Defense Authorization Act for Fiscal Year 1995. It updates
policy, procedures, and responsibilities for identifying and taking
action against any institution of higher education that has a policy of
denying, or that effectively prevents, the Secretary of Defense from
obtaining for military recruiting purposes entry to campuses, access to
students on campuses, or access to student directory information. No
funds available to the Department of Defense (DoD) may be provided by
grant or contract to any such institution. The new law allows no basis
for waivers.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Ronald G. Liveris, Accession Policy, Room 2B271, Office of the
Assistant Secretary of Defense for Force Management Policy, 4000
Defense Pentagon, Washington, DC 20301-4000. Telephone: (703) 697-9268.
SUPPLEMENTARY INFORMATION:
Responses to Comments
This final rule revises the interim-final rule adopted by DoD on
May 30, 1995 (60 FR 28050). The Department of Defense received four
comments on the interim-final rule. Each comment was reviewed and given
careful consideration.
Two commenters favored the interim-rule. One of these commenters
asked whether the interm-rule prohibits DoD contract and grant awards
at institutions of higher education that have a policy against Reserve
Officer Training Corps (ROTC) programs. 10 U.S.C. 503 note does not
address policy and practices affecting ROTC programs. The final rule
only applies to institutions that have a policy of denying, or that
effectively prevent, entry to campuses, access to students on campuses,
or access to student directory information for military recruiting
purposes.
The other commenter in favor of the interim-rule specifically
supported the provision that restricts the prohibition on the use of
DoD funds to subelements of an institution of higher education that
have a policy of denying, or that effectively prevent military
recruiters access to campuses, access to students, or access to student
directory information. A third commenter took the opposite view,
arguing that the prohibition on the use of DoD funds should apply to an
entire institution when the institution or any of its subelements are
determined to have such a policy or practice. The final rule retains
the provision that restricts the prohibition on DoD funds to
subelements that deny access. Subordinate elements of an institution of
higher education that administer their own placement policies to permit
recruiting will not be subject to a prohibition on receiving DoD funds.
This reflects DoD's interpretation of the law and its legislative
history and DoD's intent to avoid entanglement with the internal
decisionmaking processes of institutions of higher education.
The fourth commenter stated that to protect individual privacy and
``since the Department of Defense discriminates against gays in the
military,'' that the Department should not have any access to students
on campus or to student directory information. DoD policies concerning
gays in the military are the result of implementing 10 U.S.C. chapter
37, section 654 concerning homosexual conduct in the Armed Forces.
This final rule implements 10 U.S.C. 503 note, as added by section
558 of the National Defense Authorization Act for Fiscal Year 1995
(Pub. L. 103-337).
Executive Order 12866
This final 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
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Paperwork Reduction Act
This regulatory action will not impose any additional reporting or
record keeping requirements under the Paperwork Reduction Act.
List of Subjects in 32 CFR Part 216
Armed Forces, Colleges and universities, Recruiting personnel.
Accordingly, 32 CFR Part 216 is revised to read as follows:
PART 216--MILITARY RECRUITING AT INSTITUTIONS OF HIGHER EDUCATION
Sec.
216.1 Purpose.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
Appendix A to Part 216--Sample of Letter of Inquiry.
Authority: 10 U.S.C. 503 note.
[[Page 9347]]
Sec. 216.1 Purpose.
This part:
(a) Implements 10 U.S.C. 503 note.
(b) Updates policy and responsibilities for identifying and taking
action on institutions of higher education that either have a policy of
denying, or that effectively prevents military recruiting personnel
from entry to their campuses, from access to their students, or from
access to student directory information.
Sec. 216.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Chairman of the Joint Chiefs of Staff, the
Unified Combatant Commands, the Uniformed Services University of Health
Sciences, the Defense Agencies, and the DoD Field Activities (hereafter
referred to collectively as ``the DoD Components''). The term
``Military Services,'' as used herein, refers to the Army, the Navy,
the Air Force, and the Marine Corps.
Sec. 216.3 Definitions.
(a) Directory information. Referring to a student means 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.
(b) Institution of higher education. A domestic college,
university, or subelement of a university providing post-secondary
school courses of study, including foreign campuses of such domestic
institutions. That includes junior colleges, community colleges, and
institutions providing courses leading to undergraduate and post-
graduate degrees. That term does not include entities that operate
exclusively outside the United States, its territories, and
possessions. 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 10 U.S.C. 503 note and this part. For example, a subelement may be
an undergraduate school, a law school, medical school, or graduate
school of arts and sciences.
(c) Student. An individual who is 17 years of age or older and
enrolled in an institution of higher education.
Sec. 216.4 Policy.
It is DoD policy that:
(a) Under 10 U.S.C. 503 note, no funds available to the Department
of Defense may be provided by grant or contract 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, access to students on
campuses, or access to directory information on students. That
prohibition on use of DoD funds applies only to subelements of an
institution of higher education that are determined to have such a
policy or practice.
(b) An evaluation to determine whether an institution of higher
education has a policy of denying, or is effectively preventing, the
Secretary of Defense from obtaining entry to campuses, access to
students on campuses, or access to student directory information shall
be undertaken when:
(1) Military recruiting personnel cannot obtain permission to
recruit on the premises of the institution or when they are refused
directory information. Military recruiting personnel shall accommodate
an institution's reasonable preferences as to times and places for
scheduling on-campus recruiting, if any such restrictions are not based
on the policies or practices of the Department of Defense and that the
Military Services are provided entry to the campus and access to
students on campus and to directory information; or,
(2) The institution is unwilling to declare in writing as a
prerequisite to an education and training award that the institution
does not have a policy of denying, and that it does not effectively
prevent, the Secretary of Defense from obtaining for military
recruiting purposes entry to campuses, access to students on campuses,
or access to student directory information.
(3) The institution does not accept terms or conditions of a DoD
contract or grant specified under Sec. 216.5(b)(2).
(c) A determination that military recruiting personnel are denied
access shall not be made when the institution does the following:
(1) Excludes all employers from recruiting on the premises of the
institution.
(2) Permits employers to recruit on the premises of the institution
only in response to an expression of student interest, and the
institution:
(i) Provides the Military Services with the same opportunities to
inform the students of military recruiting activities as are available
to other employers.
(ii) Certifies that too few students have expressed an interest to
warrant accommodating military recruiters, applying the same criteria
that are applicable to other employers.
(3) When not providing any directory information, certifies that
such information is not collected by the institution.
(4) When not providing directory information for specific students,
certifies that each student concerned (or his or her parent, if a 17-
year-old) has formally requested the institution to withhold providing
this information from military recruiting personnel for military
recruiting purposes.
Sec. 216.5 Responsibilities.
(a) The Assistant Secretary of Defense for Force Management Policy,
under the Under Secretary of Defense for Personnel and Readiness,
shall:
(1) Not later than 30 days after receipt of the name(s) of
institutions of higher education under paragraphs (d)(2) and (e)(1) of
this section:
(i) Make a final determination about the eligibility of each such
institution to receive funds available to the Department of Defense by
grant or contract under 10 U.S.C. 503 note, and this part.
(ii) Notify each institution determined under paragraph (a)(1)(i)
of this section, that it is ineligible to receive DoD funds under 10
U.S.C. 503 note, and this part. Such notification shall reflect the
basis of that determination.
(iii) Disseminate the names of institutions of higher education
identified under paragraph (a)(1)(i) of this section to all the DoD
Components and to the General Services Administration (GSA) for
inclusion in the Federal list of parties excluded from Federal
procurement or nonprocurement programs.
(iv) Inform each applicable institution identified under paragraph
(d)(2) or (e)(1) of this section, that its eligibility to receive DoD
funds may be restored upon the institution providing sufficient new
information to enable the Assistant Secretary of Defense for Force
Management Policy (ASD(FMP)) to determine that the institution provides
entry to its campus(es), access to students on the campus(es), and
access to directory information on students.
(2) Not later than 45 days after receipt of an institution's
request to restore its eligibility:
(i) Determine whether the institution is qualified to receive DoD
funds under 10 U.S.C. 503 note, and this part.
(ii) Inform the institution of that determination.
(iii) Provide the DoD Components and GSA with the name of that
institution if its eligibility has been restored.
(3) Provide policy and procedures to:
(i) Cease education and training awards of DoD funds (other than
those made by procurement grant or contract under paragraph (b)(1) of
this section) to institutions identified as ineligible under paragraph
(a)(1)(i) of this section.
[[Page 9348]]
(ii) Identify institutions unwilling to declare in writing, as a
prerequisite to such an award of DoD funds for education and training,
that the institution does not have a policy of denying, and that it
does not effectively prevent, the Secretary of Defense from obtaining
for military recruiting purposes entry to campuses, access to students
on campuses, or access to student directory information.
(4) Notify the Defense Finance and Accounting Service of
institutions, under paragraph (a)(1)(i) of this section, that either
lose or regain eligibility to receive DoD funds under 10 U.S.C. 503
note and this part.
(b) The Under Secretary of Defense for Acquisition and Technology
shall establish policy and procedures to:
(1) Deny DoD grant and contract awards to all institutions
identified as ineligible under paragraph (a)(1)(i) of this section.
(2) Include terms or conditions in DoD grants and contracts awarded
to institutions of higher education to make payments of DoD funds under
such awards contingent on the institution's not being one so
identified.
(c) The Under Secretary of Defense (Comptroller)/Chief Financial
Officer shall establish and promulgate financial management policies
and procedures to stop or reactivate payment of DoD funds through
contracts, grants, and other agreements made by the Department of
Defense or other Federal Agencies to institutions identified as
ineligible under paragraph (a)(1)(i) of this section.
(d) The Secretaries of the Military Departments shall:
(1) Identify institutions that, by policy or practice, deny
military recruiting personnel entry to the campus(es) of those
institutions, access to students, or access to student directory
information. When repeated requests to schedule recruiting visits or to
obtain directory information are unsuccessful, the Military Service
concerned shall seek written confirmation of the institution's present
policy from the head of the institution through a letter of inquiry.
The sample letter in Appendix A to the part shall be followed as
closely as possible. If written confirmation cannot be obtained, oral
policy statements or attempts to obtain such statements from an
appropriate official of the institution shall be documented.
(2) Evaluate the responses to the letter of inquiry and of such
other evidence obtained in accordance with this part and submit to the
ASD(FMP) the names and addresses of institutions of higher education
that are recommended to be declared ineligible to receive funds
available to the Department of Defense under 10 U.S.C. 503 note and
this part. Full documentation shall be furnished to the ASD(FMP) for
each such institution, including the institution's formal response to
the letter of inquiry, or oral response or evidence showing attempts to
obtain written confirmation or an oral statement of the institution's
policies.
(e) The Heads of the DoD Components shall:
(1) Provide the ASD(FMP) with the names and addresses of
institutions:
(i) Identified as ineligible as a result of implementing policies
and procedures promulgated under paragraph (a)(3)(ii) of this section.
(ii) That do not accept terms or conditions of a DoD grant or
contract specified under paragraph (b)(2) of this section.
(2) Take immediate action to deny DoD funds to institutions
identified as ineligible under paragraph (a)(1)(i) of this section and
to restore eligibility of institutions identified under paragraph
(a)(2)(i) of this section.
Appendix A to Part 216--Sample Letter of Inquiry
Dr. John Doe
President
XYZ College
Anywhere, USA 12345-0123
Dear Dr. Doe: I understand that military recruiting personnel
are unable to recruit on the campus of XYZ College and have been
refused directory information on XYZ College students for military
recruiting by official policy of the college. Title 10 U.S.C. 503
note, prohibits grant and contract awards of DoD funds to any
institution of higher education that has a policy of denying, or
that effectively prevents, military recruiting personnel entry to
campuses, access to students on campuses, or access to directory
information on students. DoD Directive 1322.13, ``Military
Recruiting at Institutions of Higher Education,'' (January 26, 1996)
codified at 32 CFR part 216, implements 10 U.S.C. 503 note. A copy
of 10 U.S.C. 503 note, and of DoD Directive 1322.13 are enclosed.
Under DoD Directive 1322.13, this letter provides you an
opportunity to clarify your institution's policy on military
recruiting on the campus of XYZ College. In that regard, I request
the official written policy of the institution regarding visits of
civilian employers (public or private) and military recruiting
personnel to the campus for recruiting college students, and access
to directory information on students.
Based on this information, a determination shall be made by the
Assistant Secretary of Defense for Force Management Policy as to
your institution's eligibility to receive DoD funds by grant or
contract. Should it be determined that XYZ College is not qualified
to receive such funds, all current programs requiring payment to XYZ
College shall be stopped, and it shall be ineligible to receive
future payments of DoD funds through grants, contracts, and other
applicable agreements.
I regret that this action may have to be taken. Successful
recruiting requires that DoD recruiters have reasonable access to
students on the campuses of colleges and universities, and at the
same time to have effective relationships with the officials and
student bodies of those institutions. I hope it will be possible for
military recruiters to schedule recruiting visits at XYZ College in
the near future. I am available to answer any questions.
Sincerely,
Enclosures
[Note: DoD Directive 1322.13 is available from the National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161. This note is not a part of the sample letter of inquiry.]
Dated: March 4, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer.
[FR Doc. 96-5555 Filed 3-7-96; 8:45 am]
BILLING CODE 5000-04-M
