Procedures and Support for Non-Federal Entities Authorized To Operate on Department of Defense (DoD) Installations, 59505-59509 [E8-23970]
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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Rules and Regulations
(d) * * *
(1) * * *
(iv) Eligible dependents of a member
described in paragraph (d)(1)(i) or
paragraph (d)(1)(ii) of this section when
the member is not enrolled in the
program and the member meets at least
one of the conditions in paragraphs
(d)(1)(iv)(A) through (C) of this section.
Already enrolled members must satisfy
any remaining enrollment commitment
prior to enrollment of dependents
becoming effective under this
paragraph, at which time the
dependent-only enrollment will
continue on a voluntary basis as
specified in paragraph (d)(4) of this
section. * * *
*
*
*
*
*
(4) * * *
(ii) Enrollment period for enhanced
benefits. The initial enrollment period
for enhanced benefit coverage described
in paragraph (f)(2) of this section shall
be established by the Director, TMA, or
designee, to be a period of not less than
12 months and not more than 24
months. The initial enrollment period
shall be followed by renewal enrollment
periods of up to 12 months as long as
the enrollee chooses to continue
enrollment and remains eligible. An
enrollee who chooses not to continue
enrollment upon completion of an
enrollment period may re-enroll at any
time. However, an enrollee who is
disenrolled from the TRDP before
completion of an initial or subsequent
enrollment period for reasons other than
those in paragraphs in (d)(5)(ii)(A) and
(B) of this section shall incur a lockout
period of 12 months before reenrollment can occur. Former enrollees
who re-enroll following a lockout period
or following a period of disenrollment
after completion of an enrollment
period must comply with all provisions
that apply to new enrollees, including a
new enrollment commitment.
(5) * * *
(ii) Voluntary termination. All
enrollee requests for termination of
TRDP coverage before the completion of
an enrollment period shall be submitted
to the TRDP contractor for
determination of whether the enrollee
qualifies to be disenrolled under
paragraphs (d)(5)(ii)(A) or (B) of this
section.
(A) Enrollment grace period.
Regardless of the reason, TRDP coverage
shall be cancelled, or otherwise
terminated, upon request from an
enrollee if the request is received by the
TRDP contractor within 30 calendar
days following the enrollment effective
date and there has been no use of TRDP
benefits under the enrollment during
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that period. If such is the case, the
enrollment is voided and all premium
payments are refunded. However, use of
benefits during this 30-day enrollment
grace period constitutes acceptance by
the enrollee of the enrollment and the
enrollment period commitment. In this
case, a request for termination of
enrollment under paragraph (d)(5)(ii)(A)
of this section will not be honored, and
premiums will not be refunded.
(B) Extenuating circumstances. Under
limited circumstances, TRDP enrollees
shall be disenrolled by the contractor
before the completion of an enrollment
period commitment upon request by an
enrollee if the enrollee submits written,
factual documentation that
independently verifies that one of the
following extenuating circumstances
occurred during the enrollment period.
In general, the circumstances must be
unforeseen and long-term and must
have originated after the effective date
of TRDP coverage.
(1) The enrollee is prevented by a
serious medical condition from being
able to utilize TRDP benefits,
(2) The enrollee would suffer severe
financial hardship by continuing TRDP
enrollment; or
(3) Any other circumstances which
the Secretary considers appropriate.
(C) Effective date of voluntary
termination. For cases determined to
qualify for disenrollment under the
grace period provisions in paragraph
(d)(5)(ii)(A) of this section, enrollment is
completely nullified effective from the
beginning date of coverage. For cases
determined to qualify for disenrollment
under the extenuating circumstances
provisions in paragraph (d)(5)(ii)(B) of
this section, the effective date of
disenrollment is the first of the month
following the contractor’s initial
determination on the disenrollment
request or the first of the month
following the last use of TRDP benefits
under the enrollment, whichever is
later.
(D) Appeal process for denied
voluntary enrollment termination. An
enrollee has the right to appeal the
contractor’s determination that a
disenrollment request does not qualify
under paragraphs (d)(5)(ii)(A) or (B) of
this section. The enrollee may appeal
that determination by submitting a
written appeal to the TMA, Office of
Appeals and Hearings, with a copy of
the contractor’s determination notice
and relevant documentation supporting
the disenrollment request. This appeal
must be received by TMA within 60
days of the date on the contractor’s
determination notice. The burden of
proof is on the enrollee to establish
affirmatively by substantial evidence
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59505
that the enrollee qualifies to be
disenrolled under paragraphs
(d)(5)(ii)(A) or (B) of this section. TMA
will issue written notification to the
enrollee and the contractor of its appeal
determination within 60 days from the
date of receipt of the appeal request.
That determination is final.
*
*
*
*
*
(e) * * *
(2) Effects of failure to make premium
payments. Failure to make premium
payments will result in the enrollee’s
disenrollment from the TRDP and a
lockout period of 12 months. Following
this period of time, eligible individuals
will be able to re-enroll.
*
*
*
*
*
(k) Appeal procedures. All levels of
appeal established by the contractor
shall be exhausted prior to an appeal
being filed with the TMA. Procedures
comparable to those established for
appeal of benefit determinations under
§ 199.10 of this part shall apply together
with the procedures for appeal of
voluntary disenrollment determinations
described in paragraph (d)(5)(ii)(D) of
this section.
*
*
*
*
*
Dated: September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. E8–24001 Filed 10–8–08; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 212
[DoD–2006–OS–0041; 0790–AI35]
Procedures and Support for NonFederal Entities Authorized To Operate
on Department of Defense (DoD)
Installations
Department of Defense.
Final rule.
AGENCY:
ACTION:
SUMMARY: This rule updates
responsibilities and procedures to
define and reestablish a framework for
non-Federal entities (NFEs) (previously
called ‘‘private organizations’’)
authorized to operate on DoD
installations. It requires the 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. The rule also
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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: Effective Date: This rule is
effective November 10, 2008.
FOR FURTHER INFORMATION CONTACT: Pam
Crespi, 703–602–5004.
SUPPLEMENTARY INFORMATION: The
Department of Defense published a
proposed rule on October 2, 2007 (72 FR
56021–56025). Comments were received
from the Boy Scouts of America.
Comments: (1) Footnote 11 should be
deleted as the district court ruling was
reversed; (2) Other provisions of the
Support Our Scouts Act make clear that
Boy Scouts and certain other youth
organizations are entitled to the same
support from Federal agencies that they
have traditionally received; and (3)
Clarify support may be provided to
groups that are non-traditional affiliates
of the Boy Scouts such as the Exploring/
Learning for Life Programs.
Response: (1) Footnote 11 has been
deleted; (2) Support for Youth
Organizations and the authorities
Section 1058 of Public Law 109–163
(Note to Section 301 of title 5 U.S.C.)
and Section 8126 of Public Law 109–
148 (Note to Section 101 of title 10
U.S.C. and Section 301 of title 5 U.S.C.)
were added to Appendix A that lists the
Non-Federal Entities Having Statutory
Authorization For Particular Support;
and (3) section 212.6(c)(4)(2) has been
revised to read ‘‘* * * DoD support to
Boy Scouts or their official affiliates
* * *’’
Also, minor administrative
amendments have been made in this
final rule to bring it into consistency
with 32 CFR part 213.
(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.
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
This regulatory action is not a
significant regulatory action, as defined
by Executive Order 12866 and 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
List of Subjects in 32 CFR Part 212
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Unfunded Mandates Reform Act (Sec.
202, Pub. L. 104–4)
This regulatory action 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)
This regulatory action 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
establishes policy and assigns executive
agent responsibilities 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)
This regulatory action does impose
reporting or recordkeeping requirements
under the Paperwork Reduction Act of
1995.
Executive Order 13132, ‘‘Federalism’’
This regulatory action 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.
Armed forces, Foreign relations,
Statistics, Taxes.
Accordingly, 32 CFR part 212 is
revised to read as follows:
■
PART 212—PROCEDURES AND
SUPPORT FOR NON-FEDERAL
ENTITIES AUTHORIZED TO OPERATE
ON DEPARTMENT OF DEFENSE (DOD)
INSTALLATIONS
Sec.
212.1
212.2
212.3
212.4
212.5
212.6
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Purpose.
Applicability.
Definitions.
Policy.
Responsibilities.
Procedures.
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Appendix A to Part 212—Non-Federal
Entities Having Statutory Authorization
for Particular Support
Authority: 5 U.S.C. 301; 10 U.S.C. 2554; 10
U.S.C. 2606; and 36 U.S.C. 300110
§ 212.1
Purpose.
This part:
(a) Implements 32 CFR part 213.
(b) Updates responsibilities and
procedures to define and reestablish a
framework for non-Federal entities
authorized to operate on Department of
Defense (DoD) installations.
§ 212.2
Applicability.
(a) This part applies to:
(1) The Office of the Secretary of
Defense, the Military Departments, the
Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff, the
Combatant Commands, the Office of
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 32 CFR part 230.
(3) Support provided under
Innovative Readiness Training
according to DoD Directive 1100.20.1
§ 212.3
Definitions.
DoD installation: As used in this
instruction, a base, camp, post, station,
yard, center, homeport facility for any
ship, or other activity under the
jurisdiction of the Department of
Defense, including any leased facility
or, in the case of an activity in a foreign
country, under the operational control
of the Department of Defense. This term
does not include any facility used
primarily for civil works, rivers and
harbor projects, or flood control
projects.
Non-Federal entities. A self-sustaining
organization, incorporated or
unincorporated, that is not an agency or
instrumentality of the Federal
government. This part 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
1 Copies of unclassified DoD Directives,
Instructions, Publications, and Administrative
Instructions may be obtained at https://
www.dtic.mil/whs/directives/.
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any official capacity as officers,
employees, or agents of the Federal
Government. Non-Federal entities
include a State, interstate, Indian tribal,
or local government, as well as private
organizations.
United States. As used in this part,
the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana
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.
§ 212.4
Policy.
It is DoD policy, consistent with 32
CFR part 213, that procedures be
established for the operation of nonFederal entities on DoD installations to
prevent official sanction, endorsement,
or support by the DoD Components
except as authorized in DoD 5500.7–R
and applicable law. The Department
recognizes that non-Federal entity
support of Service members and their
families can be important to their
welfare. Non-Federal entities are not
entitled to sovereign immunity and
privileges accorded to Federal agencies
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.
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§ 212.5
Responsibilities.
(a) The Principal Deputy Under
Secretary for Personnel and Readiness,
under the Under Secretary of Defense
for Personnel and Readiness and in
coordination with the Deputy Under
Secretary of Defense for Installations
and Environment and subject to DoD
Directive 4165.6, 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 on installations 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.
Installation commanders will also
review membership provisions and the
original purpose for which each
organization was originally approved.
Substantial changes to those original
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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 nonFederal 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 appropriate DoD
organization whose name or
abbreviation is to be used 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 part shall not in any
way prejudice or discredit the DoD
Components or other Federal
Government agencies.
(c) Subject to DoD Directive 4165.6 as
it relates to real property, 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
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59507
non-Federal entity. The nature,
function, and objectives of a nonFederal entity covered by this part shall
be delineated in articles of
incorporation, a written constitution,
bylaws, charters, 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 nonFederal 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, as provided by law, 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.
(i) In accordance with DoD 5500.7–R,
which contains a policy on sponsorship
of non-Federal entities by DoD
personnel acting in an official capacity,
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) In accordance with U.S. District
Court for the Northern District of
Illinois, Eastern Division, Decision No.
1999 CV 02424, while such chartering is
not allowed, nothing in this part is
intended to preclude, if otherwise
authorized by law or regulation, DoD
support to Boy Scouts or their official
affiliates; Boy Scouts activities on DoD
installations; or sponsorship of Boy
Scout organizations by DoD personnel
in their personal capacity. Existing
charters executed by DoD personnel in
their official capacity shall be
terminated or amended to substitute
sponsorship by an appropriate
individual, volunteer, group, or
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organization, consistent with DoD
policy.2
(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 if the installation
commander has not been delegated such
authority, 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 nonFederal entities on DoD installations.
Commanders are authorized to
eliminate duplication of services,
particularly when these services
compete with the installation’s revenuegenerating activities.
(2) Background checks are required
for employees and volunteers of nonFederal entities who have contact with
children under the age of 18 in DoDoperated, -contracted, or communitybased programs that are used to
supplement or expand child care or
youth services, according to DoD
Instruction 1402.5.
(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 and supportive of 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 to the extent
authorized by 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 1015.15.
(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 part, except as
may arise out of contractual
relationships or as provided by law.
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 agreed to by the Department of
Defense.
(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, those of its
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 from a non-Federal entity
or its activities 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
NON-FEDERAL ENTITIES HAVING STATUTORY AUTHORIZATION FOR PARTICULAR SUPPORT
Non-Federal entity
Authority
Certain banks and credit unions ..............................................................
Chapter 1770 of title 12, United States Code (U.S.C.).
Title 32, Code of Federal Regulations (CFR), part 230.
Section 220101 of title 36, U.S.C.
Title 32, CFR, part 213.
Memorandum of Understanding (MOU) between DoD and the United
Service Organization.
Title 5, U.S.C., Chapter 71.
DoD 1400.25–M, subchapter 711.
Executive Order 12353.
Title 5, CFR, part 950.
DoD Instruction 5035.1.
DoD Instruction 5035.5.
Section 177 of title 10 U.S.C.
Section 178 of title 10 U.S.C.
United Service Organization .....................................................................
Labor organizations ..................................................................................
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Combined Federal Campaign ..................................................................
American Registry of Pathology ...............................................................
Henry M. Jackson Foundation for the Advancement of Military Medicine
2 Paragraph mandated by ‘‘Partial Settlement
Agreement Between Plaintiffs and Secretary
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Rumsfeld’’, United States District Court for the
Northern District of Illinois, Eastern Division, No.
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1999 CV 02424 (Eugene Winkler, et al., v. Chicago
School Reform Board of Trustees, et al.)
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59509
NON-FEDERAL ENTITIES HAVING STATUTORY AUTHORIZATION FOR PARTICULAR SUPPORT—Continued
Non-Federal entity
Authority
American National Red Cross ..................................................................
Section 2552 of title 10 U.S.C.
Section 2602 of title 10 U.S.C.
Secretary of The Army Memorandum. ‘‘Support to the Red Cross During Times of Conflict’’.
Title 32, CFR, part 213.
MOU between the Department of Justice and American Red Cross.
Section 2554 of title 10 U.S.C.
Section 2555 of title 10 U.S.C.
DoD Instruction 1015.9.
Section 2556 of title 10 U.S.C.
Section 2558 of title 10 U.S.C.
DoD Directive 5410.18.
DoD Instruction 5410.19.
Section 2551 of title 10 U.S.C.
Section 2604 of title 10 U.S.C.
Title 32, CFR, part 213.
Section 2606 of title 10 U.S.C.
DoD Instruction 1015.9.
Section 9441 of title 10 U.S.C.
Section 9442 of title 10 U.S.C.
Section 40301 of title 36 U.S.C.
Section 508 of title 32 U.S.C.
DoD Directive 1100.20.
Section 2553 of title 10 U.S.C.
Section 2564 of title 10 U.S.C.
DoD Directive 2000.15.
Section 1856 of title 42 U.S.C. et seq.
Section 2012 of title 10 U.S.C.
Section 2648 of title 10 U.S.C.
Section 508 of title 32, U.S.C.
MOU between DoD and the Armed Services YMCA.
Section 1058 of Public Law 109–163 (Note to Section 301 of title 5
U.S.C.).
Section 8126 of Public Law 109–148 (Note to Section 101 of title 10
U.S.C. and Section 301 of title 5 U.S.C.).
Boy Scouts Jamborees ............................................................................
Girl Scouts International Events (Transportation) ....................................
Shelter for Homeless ................................................................................
National Military Associations; Assistance at National Conventions .......
National Veterans’ Organizations (Beds and Barracks) ..........................
United Seamen’s Service Organization ...................................................
Scouting: Cooperation and Assistance in Foreign Areas ........................
Civil Air Patrol ...........................................................................................
Assistance for certain youth and charitable organizations ......................
Presidential Inaugural Ceremonies ..........................................................
Specified Sporting Events (Olympics) ......................................................
Fire Protection Agreements ......................................................................
Armed Services Young Men’s Christian Association ...............................
Support for Youth Organizations ..............................................................
Dated: September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. E8–23970 Filed 10–8–08; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2008–0246]
RIN 1625–AA00
Safety Zone; BWRC Annual
Thanksgiving Regatta; Lake Moolvalya,
Parker, AZ
Coast Guard, DHS.
ACTION: Temporary final rule.
erowe on PROD1PC64 with RULES
AGENCY:
SUMMARY: The Coast Guard is
establishing a safety zone on the
navigable waters of Lake Moolvalya
region on the lower Colorado River in
support of the Bluewater Resort and
Casino Annual Thanksgiving Regatta.
VerDate Aug<31>2005
15:31 Oct 08, 2008
Jkt 214001
This safety zone is necessary to provide
for the safety of the participants, crew,
spectators, participating vessels, and
other vessels and users of the waterway.
Persons and vessels are prohibited from
entering into, transiting through, or
anchoring within this safety zone unless
authorized by the Captain of the Port, or
his designated representative.
DATES: This rule is effective from 6 a.m.
on November 28, 2008 through 6 p.m.
on November 30, 2008.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2008–0246 and are
available online at https://
www.regulations.gov, selecting the
Advanced Docket Search option on the
right side of the screen, inserting USCG–
XXXX–XXXX in the Docket ID box,
pressing Enter, and then clicking on the
item in the Docket ID column. This
material is also available for inspection
or copying at two locations: the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue, SE.,
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays and the U.S.
Coast Guard Sector San Diego, 2710 N.
Harbor Drive, San Diego, CA 92101
between 8 a.m. and 3 p.m., Monday
through Friday, except Federal holidays.
If
you have questions on this temporary
rule, call Petty Officer Kristen Beer,
USCG, Waterways Management, U.S.
Coast Guard Sector San Diego at (619)
278–7233. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Regulatory Information
On June 11, 2008, we published a
notice of proposed rulemaking (NPRM)
entitled Safety zone; BWRC Annual
Thanksgiving Regatta; Lake Moolvalya,
Parker, Arizona in the Federal Register
(73 FR 33028). We received no letters
commenting on the proposed rule. No
public meeting was requested, and none
was held.
E:\FR\FM\09OCR1.SGM
09OCR1
]]>Agencies
[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Rules and Regulations]
[Pages 59505-59509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23970]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 212
[DoD-2006-OS-0041; 0790-AI35]
Procedures and Support for Non-Federal Entities Authorized To
Operate on Department of Defense (DoD) Installations
AGENCY: Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule updates responsibilities and procedures to define
and reestablish a framework for non-Federal entities (NFEs) (previously
called ``private organizations'') authorized to operate on DoD
installations. It requires the 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. The rule also
[[Page 59506]]
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: Effective Date: This rule is effective November 10, 2008.
FOR FURTHER INFORMATION CONTACT: Pam Crespi, 703-602-5004.
SUPPLEMENTARY INFORMATION: The Department of Defense published a
proposed rule on October 2, 2007 (72 FR 56021-56025). Comments were
received from the Boy Scouts of America.
Comments: (1) Footnote 11 should be deleted as the district court
ruling was reversed; (2) Other provisions of the Support Our Scouts Act
make clear that Boy Scouts and certain other youth organizations are
entitled to the same support from Federal agencies that they have
traditionally received; and (3) Clarify support may be provided to
groups that are non-traditional affiliates of the Boy Scouts such as
the Exploring/Learning for Life Programs.
Response: (1) Footnote 11 has been deleted; (2) Support for Youth
Organizations and the authorities Section 1058 of Public Law 109-163
(Note to Section 301 of title 5 U.S.C.) and Section 8126 of Public Law
109-148 (Note to Section 101 of title 10 U.S.C. and Section 301 of
title 5 U.S.C.) were added to Appendix A that lists the Non-Federal
Entities Having Statutory Authorization For Particular Support; and (3)
section 212.6(c)(4)(2) has been revised to read ``* * * DoD support to
Boy Scouts or their official affiliates * * *''
Also, minor administrative amendments have been made in this final
rule to bring it into consistency with 32 CFR part 213.
Executive Order 12866, ``Regulatory Planning and Review''
This regulatory action is not a significant regulatory action, as
defined by Executive Order 12866 and 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)
This regulatory action 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)
This regulatory action 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 establishes policy and assigns executive agent
responsibilities 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)
This regulatory action does impose reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132, ``Federalism''
This regulatory action 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.
0
Accordingly, 32 CFR part 212 is revised to read as follows:
PART 212--PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES
AUTHORIZED TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS
Sec.
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
Authority: 5 U.S.C. 301; 10 U.S.C. 2554; 10 U.S.C. 2606; and 36
U.S.C. 300110
Sec. 212.1 Purpose.
This part:
(a) Implements 32 CFR part 213.
(b) Updates responsibilities and procedures to define and
reestablish a framework for non-Federal entities authorized to operate
on Department of Defense (DoD) installations.
Sec. 212.2 Applicability.
(a) This part applies to:
(1) The Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of 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 32 CFR part 230.
(3) Support provided under Innovative Readiness Training according
to DoD Directive 1100.20.\1\
---------------------------------------------------------------------------
\1\ Copies of unclassified DoD Directives, Instructions,
Publications, and Administrative Instructions may be obtained at
https://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
Sec. 212.3 Definitions.
DoD installation: As used in this instruction, a base, camp, post,
station, yard, center, homeport facility for any ship, or other
activity under the jurisdiction of the Department of Defense, including
any leased facility or, in the case of an activity in a foreign
country, under the operational control of the Department of Defense.
This term does not include any facility used primarily for civil works,
rivers and harbor projects, or flood control projects.
Non-Federal entities. A self-sustaining organization, incorporated
or unincorporated, that is not an agency or instrumentality of the
Federal government. This part 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
[[Page 59507]]
any official capacity as officers, employees, or agents of the Federal
Government. Non-Federal entities include a State, interstate, Indian
tribal, or local government, as well as private organizations.
United States. As used in this part, the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana 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.
Sec. 212.4 Policy.
It is DoD policy, consistent with 32 CFR part 213, 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 and applicable
law. The Department recognizes that non-Federal entity support of
Service members and their families can be important to their welfare.
Non-Federal entities are not entitled to sovereign immunity and
privileges accorded to Federal agencies 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.
Sec. 212.5 Responsibilities.
(a) The Principal Deputy Under Secretary for Personnel and
Readiness, under the Under Secretary of Defense for Personnel and
Readiness and in coordination with the Deputy Under Secretary of
Defense for Installations and Environment and subject to DoD Directive
4165.6, 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 on installations
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. Installation commanders will
also 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.
Sec. 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 appropriate
DoD organization whose name or abbreviation is to be used 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 part shall
not in any way prejudice or discredit the DoD Components or other
Federal Government agencies.
(c) Subject to DoD Directive 4165.6 as it relates to real property,
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 part shall be delineated in articles of
incorporation, a written constitution, bylaws, charters, 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, as provided by law, 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.
(i) In accordance with DoD 5500.7-R, which contains a policy on
sponsorship of non-Federal entities by DoD personnel acting in an
official capacity, 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) In accordance with U.S. District Court for the Northern
District of Illinois, Eastern Division, Decision No. 1999 CV 02424,
while such chartering is not allowed, nothing in this part is intended
to preclude, if otherwise authorized by law or regulation, DoD support
to Boy Scouts or their official affiliates; Boy Scouts activities on
DoD installations; or sponsorship of Boy Scout organizations by DoD
personnel in their personal capacity. Existing charters executed by DoD
personnel in their official capacity shall be terminated or amended to
substitute sponsorship by an appropriate individual, volunteer, group,
or
[[Page 59508]]
organization, consistent with DoD policy.\2\
---------------------------------------------------------------------------
\2\ Paragraph mandated by ``Partial Settlement Agreement Between
Plaintiffs and Secretary Rumsfeld'', 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.)
---------------------------------------------------------------------------
(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 if the
installation commander has not been delegated such authority, 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 that are
used to supplement or expand child care or youth services, according to
DoD Instruction 1402.5.
(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 and supportive of
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 to the extent
authorized by 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 1015.15.
(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 part, except as may arise out of
contractual relationships or as provided by law. 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 agreed
to by the Department of Defense.
(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, those of its 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 from a non-Federal entity or its activities 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
Non-Federal Entities Having Statutory Authorization for Particular
Support
------------------------------------------------------------------------
Non-Federal entity Authority
------------------------------------------------------------------------
Certain banks and credit unions........ Chapter 1770 of title 12,
United States Code (U.S.C.).
Title 32, Code of Federal
Regulations (CFR), part 230.
United Service Organization............ Section 220101 of title 36,
U.S.C.
Title 32, CFR, part 213.
Memorandum of Understanding
(MOU) between DoD and the
United Service Organization.
Labor organizations.................... Title 5, U.S.C., Chapter 71.
DoD 1400.25-M, subchapter 711.
Combined Federal Campaign.............. Executive Order 12353.
Title 5, CFR, part 950.
DoD Instruction 5035.1.
DoD Instruction 5035.5.
American Registry of Pathology......... Section 177 of title 10 U.S.C.
Henry M. Jackson Foundation for the Section 178 of title 10 U.S.C.
Advancement of Military Medicine.
[[Page 59509]]
American National Red Cross............ Section 2552 of title 10 U.S.C.
Section 2602 of title 10 U.S.C.
Secretary of The Army
Memorandum. ``Support to the
Red Cross During Times of
Conflict''.
Title 32, CFR, part 213.
MOU between the Department of
Justice and American Red
Cross.
Boy Scouts Jamborees................... Section 2554 of title 10 U.S.C.
Girl Scouts International Events Section 2555 of title 10 U.S.C.
(Transportation).
DoD Instruction 1015.9.
Shelter for Homeless................... Section 2556 of title 10 U.S.C.
National Military Associations; Section 2558 of title 10 U.S.C.
Assistance at National Conventions.
DoD Directive 5410.18.
DoD Instruction 5410.19.
National Veterans' Organizations (Beds Section 2551 of title 10 U.S.C.
and Barracks).
United Seamen's Service Organization... Section 2604 of title 10 U.S.C.
Title 32, CFR, part 213.
Scouting: Cooperation and Assistance in Section 2606 of title 10 U.S.C.
Foreign Areas.
DoD Instruction 1015.9.
Civil Air Patrol....................... Section 9441 of title 10 U.S.C.
Section 9442 of title 10 U.S.C.
Section 40301 of title 36
U.S.C.
Assistance for certain youth and Section 508 of title 32 U.S.C.
charitable organizations.
DoD Directive 1100.20.
Presidential Inaugural Ceremonies...... Section 2553 of title 10 U.S.C.
Specified Sporting Events (Olympics)... Section 2564 of title 10 U.S.C.
DoD Directive 2000.15.
Fire Protection Agreements............. Section 1856 of title 42 U.S.C.
et seq.
Armed Services Young Men's Christian Section 2012 of title 10 U.S.C.
Association.
Section 2648 of title 10 U.S.C.
Section 508 of title 32, U.S.C.
MOU between DoD and the Armed
Services YMCA.
Support for Youth Organizations........ Section 1058 of Public Law 109-
163 (Note to Section 301 of
title 5 U.S.C.).
Section 8126 of Public Law 109-
148 (Note to Section 101 of
title 10 U.S.C. and Section
301 of title 5 U.S.C.).
------------------------------------------------------------------------
Dated: September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-23970 Filed 10-8-08; 8:45 am]
BILLING CODE 5001-06-P
