E7-19446. Procedures and Support for Non-Federal Entities Authorized To Operate on Department of Defense (DoD) Installations

AGENCY:

Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

This rule proposed to update responsibilities and procedures to define and reestablish a framework for non-Federal entities (NFEs) (previously called private organizations) authorized to operate on DoD installations. Requires heads of DoD Components to conduct periodic reviews of facilities, programs, services, and membership provisions of NFEs operating on DoD installations and authorizes installation commanders or higher authority to determine if an NFE detracts from DoD programs and to eliminate duplication. Identifies those NFEs having statutory authorization for particular support and restates DoD policy on sponsorship of NFEs by DoD personnel acting in an official capacity, specifically as it applies to chartering Boy Scout organizations authorized to operate on DoD installations.

DATES:

Comments must be received by December 3, 2007.

ADDRESSES:

You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Pam Crespi, 703-602-5004.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that 32 CFR part 123 is not a significant regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section 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 this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule makes some changes in the regulation and updates some references but taken cumulatively, those changes would not have a significant impact on a substantial number of small entities.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The reporting and recordkeeping requirements have been submitted to OMB for review.

Executive Order 13132, “Federalism”

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 212

• Armed forces
• Foreign relations
• Statistics
• Taxes

Accordingly, 32 CFR part 212 is proposed to be revised to read as follows:

PART 212—PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS

212.1

Purpose.

212.2

Applicability.

212.3

Definitions.

212.4

Policy.

212.5

Responsibilities.

212.6

Procedures.

Appendix A to Part 212-Non-Federal Entities Having Statutory Authorization for Particular Support

§ 212.1

Purpose.

This part updates responsibilities and procedures to define and reestablish a framework for non-Federal entities authorized to operate on DoD installations.

§ 212.2

Applicability.

(a) This part applies to:

(1) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”).

(2) Non-Federal entities authorized to operate on DoD installations.

(b) This part shall not apply to:

(1) Military relief societies.

(2) Banks or credit unions according to DoD Directive 1000.11.^[1]

(3) Support provided under Innovative Readiness Training according to DoD Directive 1100.20.^[2]

§ 212.3

Definitions.

(a) Non-Federal Entities. A non-Federal entity is generally a self-sustaining, non-Federal organization, incorporated or unincorporated. This Instruction addresses only those entities that operate on DoD installations with the express consent of the installation commander or higher authority. Membership of these organizations consists of individuals acting exclusively outside the scope of any official capacity as officers, employees, or agents of the Federal Government. Non-Federal entities may include elements of State, interstate, Indian tribal, and local governments as well as private organizations.

(b) United States. As used in this part, the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas Islands, the U.S. Virgin Islands, Guam, American Samoa, Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, Palmyra Island, Wake Island, and any other territory or possession of the United States, and associated navigable waters, including the territorial seas.

(c) DoD Installation. A location, facility, or activity owned, leased, assigned to, controlled, or occupied by a DoD Component.

§ 212.4

Policy.

It is DoD policy that procedures be established for the operation of non-Federal entities on DoD installations to prevent official sanction, endorsement, or support by the DoD Components except as authorized in DoD 5500.7-R ^[3] and applicable law. Non-Federal entities are not entitled to sovereign immunity and privileges accorded to Federal entities and instrumentalities. The DoD Components shall take action to preclude unauthorized expenditures of appropriated funds, commissary surcharge, or nonappropriated funds (NAF) in support of these organizations.

§ 212.5

Responsibilities.

(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness, under the authority and guidance of the Under Secretary of Defense for Personnel and Readiness, shall be responsible for implementing policy and oversight of non-Federal entities on DoD installations.

(b) The Heads of the DoD Components shall:

(1) Implement this part.

(2) Be aware of all non-Federal entities operating under their jurisdiction.

(3) Conduct reviews to ensure installation commanders periodically review facilities, programs, and services provided by non-Federal entities operating on DoD installations. Also, installation commanders will review membership provisions and the original purpose for which each organization was originally approved. Substantial changes to those original conditions shall necessitate further review, documentation, and approval for continued permission to operate on the installation.

§ 212.6

Procedures.

(a) To prevent the appearance of official sanction or support by the Department of Defense:

(1) Non-Federal entities may not use the seals, logos, or insignia of the Department of Defense or any DoD Component, DoD organizational unit, or DoD installation on organization letterhead, correspondence, titles, or in association with organization programs, locations, or activities.

(2) Non-Federal entities operating on DoD installations may use the name or abbreviation of the Department of Defense, a DoD Component, organizational unit, or installation in its name provided that its status as a non-Federal entity is apparent and unambiguous and there is no appearance of official sanction or support by the Department of Defense. The following applies:

(i) The non-Federal entity must have approval from the head of the appropriate DoD organization before using the name or abbreviation.

(ii) Any use of the name or abbreviation of a DoD Component, organizational unit, or installation must not mislead members of the public to assume a non-Federal entity is an organizational unit of the Department of Defense.

(iii) A non-Federal entity must prominently display the following disclaimer on all print and electronic media mentioning the entity's name confirming that the entity is not a part of the Department of Defense: “THIS IS A NON-FEDERAL ENTITY. IT IS NOT A PART OF THE DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT HAS NO GOVERNMENTAL STATUS.” This disclaimer must also be provided in appropriate oral communications and public announcements when the name of the entity is used.

(b) Activities of non-Federal entities covered by this Instruction shall not in any way prejudice or discredit the DoD Components or other Federal Government Agencies.

(c) Installation commanders shall approve written agreements that indicate permission to operate on the installation and any logistical support that will be provided. DoD personnel acting in an official capacity will not execute any charter that will serve as the legal basis for the non-Federal entity. The nature, function, and objectives of a non-Federal entity covered by this Instruction shall be delineated in a written constitution, by-laws, charter, articles of agreement, or other authorization documents before receiving approval from the installation commander to operate on the installation. That documentation shall also include:

(1) Description of eligible membership in the non-Federal entity.

(i) No person because of race, color, creed, sex, age, disability, or national origin shall be unlawfully denied membership, unlawfully excluded from participation, or otherwise subjected to unlawful discrimination by any non-Federal entity or other private organization covered by this part.

(ii) Installation commanders will distribute information on procedures for individuals to follow when they suspect unlawful discrimination by the organization.

(2) Designation of management responsibilities, including the accountability for assets, satisfaction of liabilities, disposition of any residual assets on dissolution, and other documentation that shows responsible financial management.

(3) A certification indicating that members understand they are personally liable if the assets of the non-Federal entity are insufficient to discharge all liabilities.

(4) Guidance relating to professional scouting organizations operating at U.S. military installations located overseas can be found in DoD Instruction 1015.9.^[4]

(i) In accordance with DoD 5500.7-R, DoD personnel acting in an official capacity shall not execute charters that serve as the legal basis for the creation of Boy Scouts organizations (including Boy Scouts, Cub Scout Packs, or Venturer Crews).

(ii) While such chartering is not allowed, nothing in this part is intended to preclude DoD support to Boy Scouts authorized by other DoD Instructions, to preclude Boy Scouts activities on DoD installations, or to preclude DoD personnel in their personal capacity from sponsoring Boy Scouts organizations. Existing charters executed by DoD personnel in their official capacity shall be terminated, or amended to substitute sponsorship by an appropriate individual, volunteer, groups or organization, consistent with DoD policy.^[5]

(d) A non-Federal entity covered by this part shall not offer programs or services on DoD installations that compete with appropriated or NAF activities, but may, when specifically authorized, supplement those activities.

(1) Installation commanders, or higher authorities, will determine if the services of a non-Federal entity conflict with or detract from local DoD programs. The cognizant commander has discretionary authority over the operations of non-Federal entities on DoD installations. Commanders are authorized to eliminate duplication of services, particularly when these services compete with the installation's revenue-generating activities.

(2) Background checks are required for employees and volunteers of non-Federal entities who have contact with children under the age of 18 in DoD operated, contracted, or community-based programs, which are used to supplement or expand child care or youth services, according to DoD Instruction 1402.5.^[6]

(e) Non-Federal entities covered by this part shall be self-sustaining, primarily through dues, contributions, service charges, fees, or special assessment of members. There shall be no financial assistance to such an entity from a NAF Instrumentality (NAFI) in the form of contributions, repairs, services, dividends, or other donations of money or other assets. Fundraising and membership drives are governed by DoD 5500.7-R.

(f) Non-Federal entities are not entitled to DoD support. However, support may be provided when it is consistent with the military mission of the DoD Component concerned. Such support may be provided only when it can be offered within the capability of the installation commander without detriment to the commander's ability to fulfill the military mission and when it is permitted under applicable Status of Forces Agreements. The DoD Components may provide logistical support to non-Federal entities with appropriated funds according to DoD 5500.7-R and applicable law. NAFI funds or assets shall not be directly or indirectly transferred to non-Federal entities according to DoD Instruction 1015.14 ^[7] (Reference (h)).

(g) Personal and professional participation in non-Federal entities by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in an official capacity will not execute charters that serve as the legal basis for any non-Federal entity or other private organization.

(h) Neither appropriated fund activities nor NAFIs may assert any claim to the assets, or incur or assume any obligation, of any non-Federal entity covered by this Instruction, except as may arise out of contractual relationships. Property shall not be abandoned on the installation by a non-Federal entity and may only be acquired by the DoD installation by purchase or through donation.

(i) The non-Federal entity shall have adequate insurance, as defined by the DoD Component concerned, to protect against liability and property damage claims or other legal actions that may arise due to its activities, its acting members, or the operation of its equipment or devices. The DoD Components will not assume liability (through insurance or other means) for any activities or assets of non-Federal entities.

(j) Non-Federal entities shall comply with applicable fire and safety regulations, environmental laws, local, State, and Federal tax codes; and any other applicable statutes or regulations.

(k) Income shall not accrue to individual members of a non-Federal entity except through wages and salaries as employees of the non-Federal entity or as award recognition for services rendered to the non-Federal entity or military community. This prohibition is not meant to preclude operation of investment clubs, in which the investment of members' personal funds result in a return on investment directly and solely to the individual members.

(l) Employees of non-Federal entities are not employees of the United States or of an instrumentality of the United States. Applicable laws on labor standards for employment shall be observed, including worker's compensation insurance. Employees of non-Federal entities shall not participate in NAF employee benefit programs based upon their affiliation with the non-Federal entity.

(m) Non-Federal entities that have statutory authorization for particular support are listed at Appendix A to this part.

(n) Certain unofficial activities conducted on DoD installations do not need formal authorization because of the limited scope of their activities. Examples are office coffee funds, flower funds, and similar small, informal activities and funds. The DoD Components shall establish the basis upon which such informal activities and funds shall operate.

Appendix A to Part 212—Non-Federal Entities Having Statutory Authorization for Particular Support

Many non-Federal entities have statutory and/or Department authorization for particular support. Most are listed as follows:

Non-federal entity	Authority
Certain banks and credit unions	12 United States Code (U.S.C.) 1770.
United Service Organizations	36 U.S.C. 220101.
	Memorandum of Understanding (MOU).
Labor organizations	5 U.S.C. Chapter 71.
	DoD 1400.25-M, 8 subchapter 711.
Combined Federal Campaign	E.O. 12353.
	5 CFR 950.
	DoD Directive 5035.1.9
	DoD Instruction 5035.5.10
American Registry of Pathology	10 U.S.C. 177.
Henry M. Jackson Foundation for the Advancement of Military Medicine	10 U.S.C. 178.
American National Red Cross	10 U.S.C. 2552.
	10 U.S.C. 2602.
	Secretary of the Army Memorandum.
	MOU.
Boy Scouts Jamborees 11	10 U.S.C. 2554.
Girl Scouts International Events (Transportation)	10 U.S.C. 2555.
	DoD Instruction 1015.14.
Shelter for Homeless	10 U.S.C. 2556.
National Military Associations; Assistance at National Conventions	10 U.S.C. 2558.
	DoD Directive 5410.18.12
	DoD Instruction 5410.19.13
National Veterans' Organizations (Beds and Barracks)	10 U.S.C. 2551.
United Seamen's Service Organization	10 U.S.C. 2604.
	MOU.
Scouting: Cooperation and Assistance in Foreign Areas	10 U.S.C. 2606.
	DoD Instruction 1015.14.
Civil Air Patrol	10 U.S.C. 9441.
	10 U.S.C. 9442.
	36 U.S.C. 40301.
Assistance for certain youth and charitable organizations	32 U.S.C. 508.
	DoD Directive 1100.20.
Presidential Inaugural Ceremonies	10 U.S.C. 2553
Specified Sporting Events (Olympics)	10 U.S.C. 2564.
	DoD Directive 2000.15.14
Fire Protection Agreements	42 U.S.C. 1856.
Armed Services Young Men's Christian Association	10 U.S.C. 2012.
	10 U.S.C. 4744.
	32 U.S.C. 508.
	MOU.
The Military Department of each State and territory	32 U.S.C. 101
8 See footnote 1 to § 212.2(b)(2).
9 See footnote 1 to § 212.2(b)(2).
10 See footnote 1 to § 212.2(b)(2).
11 A Federal district judge has ruled that support to the Boy Scouts under 10 U.S.C. § 2554 is unconstitutional, and has enjoined DoD from providing future support under that statute. DoD has appealed that order. Unless the order is overturned on appeal, DoD cannot provide any support to the Boy Scouts using this statute. Contact your local legal office for further guidance.
12 See footnote 1 to § 212.2(b)(2).
13 See footnote 1 to § 212.2(b)(2).
14 See footnote 1 to § 212.2(b)(2).

September 26, 2007.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, DoD.

Footnotes

1.  Copies may be obtained at http://www.dtic.mil/​whs/​directives/​.

2.  See footnote 1 to § 212.2(b)(2).

3.  See footnote 1 to § 212.2(b)(2).

4.  See footnote 1 to § 212.2(b)(2).

5.  Paragraph mandated by “Partial Settlement Agreement Between Plaintiffs and Secretary Rumsfield”, United States District Court for the Northern District of Illinois, Eastern Division, No. 1999 CV 02424 (Eugene Winkler, et al., v. Chicago School Reform Board of Trustees, et al.)

6.  See footnote 1 to § 212.2(b)(2).

7.  See footnote 1 to § 212.2(b)(1).