Federal Acquisition Regulation: Reserve Officer Training Corps and Military Recruiting on Campus, 49974-49978 [2019-20045]

Download as PDF 49974 Federal Register / Vol. 84, No. 185 / Tuesday, September 24, 2019 / Proposed Rules that the MLC engage in good-faith efforts to publicize notice relating to pending distributions at least ninety days in advance),109 commenters should be aware that the Office is tentatively inclined to wait until after the policy study is underway to finalize rules with respect to this important duty of the MLC. The Office anticipates that those seeking to comment on this issue will have ample opportunity to do so through the study and other future activities. K. Other Subjects The Copyright Office invites public comment on any other issues relevant to the blanket compulsory license regime that commenters believe are within and appropriate for the Office’s regulatory authority. Dated: September 16, 2019. Regan A. Smith, General Counsel and Associate Register of Copyrights. [FR Doc. 2019–20318 Filed 9–23–19; 8:45 am] BILLING CODE 1410–30–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 9, 12, 13, 43, and 52 [FAR Case 2018–021; Docket FAR–2019– 0031; Sequence 1] I. Background RIN 9000–AN79 Federal Acquisition Regulation: Reserve Officer Training Corps and Military Recruiting on Campus Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement the United States Code section that prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. DATES: Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before November 25, khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: 109 17 U.S.C. 115(d)(3)(J). VerDate Sep<11>2014 15:54 Sep 23, 2019 2019 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2018–021 by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ‘‘FAR Case 2018–021’’ under the heading ‘‘Enter Keyword or ID’’ and selecting ‘‘Search’’. Select the link ‘‘Submit a Comment’’ that corresponds with ‘‘FAR Case 2018–021’’. Follow the instructions provided at the ‘‘Submit a Comment’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2018–021’’ on your attached document. • Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 20405–0001. Instructions: Please submit comments only and cite ‘‘FAR Case 2018–021’’ in all correspondence related to this case. All comments received will be posted without change to http:// www.regulations.gov, including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202 or at cecelia.davis@ gsa.gov for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAR Case 2018–021. SUPPLEMENTARY INFORMATION: Jkt 247001 DoD, GSA, and NASA are proposing to amend the FAR to implement 10 U.S.C. 983, which prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps (ROTC) units or military recruiting on campus. Both DoD and Department of Homeland Security (DHS) have previously implemented agency-specific clauses that prohibit the award of certain Federal contracts to institutions of higher education that prohibit ROTC units or military recruiting on campus. DoD published an interim rule in the Defense Federal Acquisition Regulation Supplement (DFARS) on Institutions of Higher Education, 65 FR 2056, on January 13, 2000, to implement section 549 of the National Defense Authorization Act (NDAA) for Fiscal Year 2000. Section 549 amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract or grant to an institution of higher education PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 (including any subelement of that institution) if the Secretary of Defense determines that the institution (or any subelement of the institution) has a policy or practice that prohibits, or in effect prevents, Senior ROTC units or military recruiting on campus. DoD then published a final rule on Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education, 73 FR 16525, on March 28, 2008, at 32 CFR part 216. The rule implemented 10 U.S.C. 983, as amended by the Ronald W. Reagan NDAA for Fiscal Year 2005 (Pub. L. 108–375, October 28, 2004). The DoD rule clarified access to campuses, access to students and access to directory information on students for the purposes of military recruiting, and that access to campuses and students on campuses shall be provided in a manner that is at least equal in quality and scope to that provided to any other employer. DoD later published a DFARS final rule in the Federal Register, 77 FR 19128, on March 30, 2012, to separate provisions and clauses that were previously combined in order to comply with DFARS drafting conventions. This final rule removed the representation from 252.209–7005, Reserve Officer Training Corps and Military Recruiting on Campus, and added a new provision at 252.209–7003, Reserve Officer Training Corps and Military Recruiting on Campus—Representation. Similar to DoD, DHS published a rule on December 4, 2003, 68 FR 67868 at 67891 to add a new clause in its supplement at Homeland Security Acquisition Regulation (HSAR) 3052.209–71, Reserve Officer Training Corps and Military Recruiting on Campus, to implement these requirements. This proposed rule would implement 10 U.S.C. 983, which prohibits the award of certain Federal contracts with covered funds to institutions of higher education that prohibit ROTC units or military recruiting on campus. ‘‘Covered funds’’ is defined in 10 U.S.C. 983 to be any funds made available for DoD, Department of Transportation, DHS, or National Nuclear Security Administration of the Department of Energy, the Central Intelligence Agency, or for any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act. None of these covered funds may be provided by contract or grant to an institution of higher education (including any subelement of such institution) that has a policy or practice (regardless of when implemented) that E:\FR\FM\24SEP1.SGM 24SEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 185 / Tuesday, September 24, 2019 / Proposed Rules either prohibits, or in effect prevents, the Secretary of Defense from establishing or operating a Senior ROTC at that institution (or any subelement of that institution); or that either prohibits, or in effect prevents, a student at that institution (or any subelement of that institution) from enrolling in a ROTC unit at another institution of higher education. The statute has similar sanctions against these covered funds being provided to an institution of higher education (or any subelement of an institution) that has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents, the Secretary of a Military Department or Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting, where such policy or practice denies the military recruiter access that is at least equal in quality and scope to the access to campuses and students provided to any other employer; or access to information pertaining to the students’ names, addresses, telephone listings, dates and places of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student. The meaning and effect of the term ‘‘equal in quality and scope’’ was explained in the U.S. Supreme Court decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006). The term means the same access to campus and students provided by the school to any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school’s recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, compliance with 10 U.S.C. 983 would be considered insufficient if the policy results in a greater level of access for other recruiters than for the military. The statute provides an exception whereby any Federal funding provided to an institution of higher education or to an individual that is available solely for student financial assistance, related administrative costs, or costs associated with attendance may be used for the purpose for which the funding is provided. This proposed rulemaking was initiated at the request of DoD’s Regulatory Reform Task Force (RRTF). The RRTF was established under Executive Order 13777, titled ‘‘Enforcing the Regulatory Reform VerDate Sep<11>2014 15:54 Sep 23, 2019 Jkt 247001 Agenda,’’ which requires agencies to evaluate existing regulations on whether they should be repealed, replaced, modified, or retained to reduce regulatory burden on the public. The RRTF recommended opening this rulemaking as the statute applies to multiple agencies identified in this rule as a ‘‘covered agency.’’ Elevating this policy in the FAR eliminates the need for the agency unique supplemental regulations mentioned above and ensures unified guidance among the affected agencies consistent with the purpose of the FAR system. II. Discussion and Analysis This rule proposes to add a new section FAR 9.110, Reserve Officer Training Corps and military recruiting on campus, that provides the policy and procedures for this prohibition and a new clause entitled the same. Revisions are made to FAR 9.405, 9.405–1, and 43.105 to address this prohibition. The clause explains what is expected of the institution of higher education and how an agency is to handle the situation when the institution of higher education is identified by the Secretary of Defense as having policies or practices in place that prevent the ROTC and military recruiting on campus. The covered agency is prohibited from providing funds through contract award to the institution of higher education. Administrative revisions are made to FAR 12.503 and FAR 13.005 to the order of the statutes for consistency. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf (COTS) Items DoD, GSA, and NASA do not intend to apply the requirements of 10 U.S.C. 983 at or below the simplified acquisition threshold or to contracts for the acquisitions of commercial items. A. Applicability to Contracts At or Below the Simplified Acquisition Threshold Section 1905 of Title 41 of the United States Code governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. Section 1905 provides that if a provision of law contains criminal or civil penalties, specifically refers to section 1905 and provides that the law shall nevertheless be applicable to contracts or subcontracts below the simplified acquisition threshold, or if the FAR Council makes a written determination PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 49975 that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the simplified acquisition threshold, the law will apply to them. Section 1983 of Title 10 does not contain criminal or civil penalties, nor expressly refer to section 1905 of Title 41, and the FAR Council does not intend to make the requisite determination. Therefore, this proposed rule does not apply at or below the simplified acquisition threshold. B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items Section 1906 of Title 41 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. Section 1906 provides that if a provision of law contains criminal or civil penalties, specifically refers to section 1906 and provides that it shall nevertheless be applicable to contracts for the procurement of commercial items, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, and provides the same criteria for determining whether a provision of law applies to COTS items, except that the Administrator for Federal Procurement Policy is charged with making the decision whether it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. As noted above with respect to section 1905, section 983 of Title 10 does not impose civil or criminal penalties. Nor does it refer to sections 1906 or 1907 of Title 41. The FAR Council and the Administrator for Federal Procurement Policy do not intend to make the requisite determinations. Therefore, this proposed rule does not apply to the acquisition of commercial items, including COTS items. This rule proposes to add 10 U.S.C. 983 to the list at FAR 12.503 of laws inapplicable to contracts for the acquisition of commercial items. The law is not added to the lists at FAR 12.504 (subcontracts) and 12.505 (COTS items), because the clause does not flow down to subcontracts and is already inapplicable to the acquisition of COTS items, because the Federal Government does not buy COTS items from institutions of higher education. E:\FR\FM\24SEP1.SGM 24SEP1 49976 Federal Register / Vol. 84, No. 185 / Tuesday, September 24, 2019 / Proposed Rules IV. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. V. Expected Impact of the Proposed Rule and Proposed Cost Savings DoD, GSA, and NASA do not expect a cost impact on the public or institutions of higher learning or on the Government because covered agencies already have regulations in place to address their statutory responsibilities. These agencies will be required to comply with the same requirement, but the requirement will now be located in the FAR. khammond on DSKJM1Z7X2PROD with PROPOSALS VI. Executive Order 13771 This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule has a de minimis impact on the public (see section V of this preamble). This rule affects institutions of higher education that receive DoD monies but are planning to not allow DoD’s ROTC and military recruiting on campus. However, the FAR Council is not aware of any institution that currently has such a prohibition in place. VII. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule impacts only institutions of higher education with policies or practices in place that prohibit ROTC units or military recruiting on campus and currently no institutions have such practices. Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and summarized as follows: In Fiscal Year 2017, the Federal Procurement Data System (FPDS) shows that there were 345 awards to small organizations, which are institutions of higher education, by the following covered agencies: DoD, VerDate Sep<11>2014 15:54 Sep 23, 2019 Jkt 247001 Department of Labor, Department of Health and Human Services, Department of Education, Department of Transportation, and DHS. The National Nuclear Security Administration is not included in this number because the Department of Energy does not break out the information. The Central Intelligence Agency is not included because it does not report in FPDS. These small organizations are small entities under the Regulatory Flexibility Act but are not small business concerns. There will not be an impact on an institution of higher education as long as that institution has no policies or practices in place that prohibit ROTC units or military recruiting on campuses. No institution of higher education has been determined by the Secretary of Defense to be ineligible based on this policy (see 9.110). There are no reporting or recordkeeping requirements. There is a compliance requirement; institutions of higher education that have contracts with covered agencies (defined in the FAR text) must not prohibit ROTC units or military recruiting on campus. This is not a new requirement. No increase in burden is intended. The statute has previously been implemented at the FAR supplement level for DoD and DHS. This FAR case moves the implementation up into the FAR level. There were no significant alternatives identified that would meet the objectives of the rule. The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained for the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (FAR Case 2018–021), in correspondence. VIII. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35). List of Subjects in 48 CFR Parts 9, 12, 13, 43, and 52 Government procurement. William F. Clark Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 9, 12, 13, 43, and 52 as set forth below. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 1. The authority citation for 48 CFR parts 9, 12, 13, 43, and 52 continues to read as follows: ■ Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 9—CONTRACTOR QUALIFICATIONS 2. Add sections 9.110 and 9.110–1 thru 9.110–5 to read as follows: ■ 9.110 Reserve Officer Training Corps and military recruiting on campus. 9.110–1 Definitions. As used in this section— ‘‘Covered agency’’ means— (1) The Department of Defense; (2) Any department or agency for which regular appropriations are made in a Department of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act; (3) The Department of Homeland Security; (4) The National Nuclear Security Administration of the Department of Energy; (5) The Department of Transportation; or (6) The Central Intelligence Agency. ‘‘Institution of higher education’’ means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution. 9.110–2 Authority. This section implements 10 U.S.C. 983. 9.110–3 Policy. (a) Except as provided in paragraph (b) of this section, 10 U.S.C. 983 prohibits the covered agency from providing funds by contract to an institution of higher education if the Secretary of Defense determines that the institution has a policy or practice that prohibits or in effect prevents— (1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution; (2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education; (3) The Secretary of a military department or the Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer; or E:\FR\FM\24SEP1.SGM 24SEP1 Federal Register / Vol. 84, No. 185 / Tuesday, September 24, 2019 / Proposed Rules (4) Military recruiters from accessing certain information pertaining to students (who are 17 years of age or older) enrolled at that institution: (i) Name, address, and telephone listings. (ii) Date and place of birth, educational level, academic majors, degrees received, and the most recent educational institution enrolled in by the student. (b) The prohibition in paragraph (a) of this section does not apply to an institution of higher education if the Secretary of Defense determines that— (1) The institution has ceased the policy or practice described in paragraph (a) of this section; or (2) The institution has a long-standing policy of pacifism based on historical religious affiliation. 9.110–4 Procedures. If the Secretary of Defense determines, pursuant to the procedures at 32 CFR part 216, that an institution of higher education is ineligible to receive funds from a covered agency because of a policy or practice described in 9.110– 3— (a) The Secretary of Defense will create an active exclusion record for the institution in the System for Award Management; and (b) A covered agency shall not solicit offers from, award contracts to, or consent to subcontracts with the institution. 9.110–5 Contract clause. The contracting officer shall insert the clause at 52.209–XX, Reserve Officer Training Corps and Military Recruiting on Campus, in solicitations and contracts that are expected to exceed the simplified acquisition threshold, with institutions of higher education, when using funds from a covered agency. The clause is not prescribed for solicitations and contracts using FAR part 12 for the acquisition of commercial items. 9.405 [Amended] 3. Amend 9.405(a) by removing from the first sentence ‘‘see 9.405–1(b)’’ and adding ‘‘see 9.405–1(a)(2)’’ in its place. ■ 4. Amend section 9.405–1 by— ■ a. Redesignating paragraphs (a) and (b) as paragraphs (a)(1) and (2); ■ b. Adding a heading for paragraph (a); ■ c. Redesignating paragraphs (a)(2)(1) through (3) as paragraphs (a)(2)(i) through (iii); and ■ d. Adding new paragraph (b). The additions read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS ■ 9.405–1 Continuation of current contracts. (a) Contractors debarred, suspended, or proposed for debarment. * * * VerDate Sep<11>2014 15:54 Sep 23, 2019 Jkt 247001 (b) Ineligible contractors. A covered agency, as defined in 9.110–1, shall terminate existing contracts and shall not place new orders or award new contracts with contractors that have been declared ineligible pursuant to 10 U.S.C. 983 (see 9.110, Reserve Officer Training Corps and military recruiting on campus), except for contracts at or below the simplified acquisition threshold or contracts for the acquisition of commercial items. PART 12—ACQUISITION OF COMMERCIAL ITEMS 5. Amend section 12.503 by revising paragraphs (a)(1), (2), (4), and (5), adding paragraph (a)(6), and revising paragraphs (a)(7) through (9) to read as follows: ■ 12.503 Applicability of certain laws to Executive agency contracts for the acquisition of commercial items. (a) * * * (1) 10 U.S.C. 983, Institutions of higher education that prevent ROTC access or military recruiting on campus: denial of grants and contracts from Department of Defense, Department of Education, and certain other departments and agencies (see 9.110). (2) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for contracts with entities not meeting veterans’ employment reporting requirements (see 22.1302). * * * * * (4) 41 U.S.C. 2303, Policy on Personal Conflicts of Interest by Contractor Employees (see subpart 3.11). (5) 41 U.S.C. 3901(b) and 10 U.S.C. 2306(b), Contingent Fees (see 3.404). (6) 41 U.S.C. 4706(d)(1) and 10 U.S.C. 2313(c)(1), GAO Access to Contractor Employees, Section 871 of Public Law 110–417 (see 52.214–26 and 52.215–2). (7) 41 U.S.C. chapter 65, Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000 (see subpart 22.6). (8) 41 U.S.C. chapter 81, Drug-Free Workplace (see 23.501). (9) Section 806(a)(3) of Public Law 102–190, as amended by Sections 2091 and 8105 of Public Law 103–355, (10 U.S.C. 2302 note), Payment Protections for Subcontractors and Suppliers (see 28.106–6). * * * * * PART 13—SIMPLIFIED ACQUISITION PROCEDURES 6. Amend section 13.005 by— a. Removing paragraphs (a)(1) through (5); ■ b. Adding new paragraph (a)(1); ■ ■ PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 49977 c. Redesignating paragraphs (a)(6) through (9) as paragraphs (a)(2) through (5); ■ d. Adding new paragraphs (a)(6) through (9); ■ e. Revising paragraphs (a)(10) and (11); and ■ f. Adding paragraph (a)(12). The additions and revisions read as follows: ■ 13.005 List of laws inapplicable to contracts and subcontracts at or below the simplified acquisition threshold. (a) * * * (1) 10 U.S.C. 983, Institutions of higher education that prevent ROTC access or military recruiting on campus: denial of grants and contracts from Department of Defense, Department of Education, and certain other departments and agencies (see 9.110). * * * * * (6) 22 U.S.C. 2593e (Measures Against Persons Involved in Activities that Violate Arms Control Treaties or Agreements with the United States). (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide a certification does not apply.) (7) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for contracts with entities not meeting veterans’ employment reporting requirements (see 22.1302). (8) 40 U.S.C. 3131 (Bonds statute). (Although the Bonds statute does not apply to contracts at or below the simplified acquisition threshold, alternative forms of payment protection for suppliers of labor and material (see 28.102) are still required if the contract exceeds $35,000 (40 U.S.C. 3132).) (9) 40 U.S.C. chapter 37 (Contract Work Hours and Safety Standards— Overtime Compensation). (10) 41 U.S.C. 8102(a)(1) (Drug-Free Workplace), except for individuals. (11) 41 U.S.C. 8703 (Kickbacks statute). (Only the requirement for the incorporation of the contractor procedures for the prevention and detection of violations, and the contractual requirement for contractor cooperation in investigations are inapplicable.) (12) 42 U.S.C. 6962 (Solid Waste Disposal Act). (The requirement to provide an estimate of recovered material utilized in contract performance does not apply unless the contract value exceeds $150,000.) * * * * * PART 43—CONTRACT MODIFICATIONS 7. Amend section 43.105 by adding paragraph (c) to read as follows: ■ E:\FR\FM\24SEP1.SGM 24SEP1 49978 43.105 Federal Register / Vol. 84, No. 185 / Tuesday, September 24, 2019 / Proposed Rules Availability of funds. * * * * * (c) In accordance with 10 U.S.C. 983, do not provide funds by contract or contract modification, or make contract payments, to an institution of higher education that has a policy or practice of hindering Senior Reserve Officer Training Corps units or military recruiting on campus as described at 9.110. PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 52.209–XX [Added] 8. Add section 52.209–XX to read as follows: ■ 52.209–XX Reserve Officer Training Corps and Military Recruiting on Campus. As prescribed in 9.110–5, insert the following clause: khammond on DSKJM1Z7X2PROD with PROPOSALS Reserve Officer Training Corps and Military Recruiting on Campus (Date) (a) Definitions. As used in this clause— ‘‘Institution of higher education’’ means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution. ‘‘Covered agency’’ means— (1) The Department of Defense; (2) Any department or agency for which regular appropriations are made in a VerDate Sep<11>2014 15:54 Sep 23, 2019 Jkt 247001 Department of Labor, Health and Human Services; and Education, and Related Agencies Appropriations Act; (3) The Department of Homeland Security; (4) The National Nuclear Security Administration of the Department of Energy; (5) The Department of Transportation; or (6) The Central Intelligence Agency. (b) Limitation on contract award. Except as provided in paragraph (c) of this clause, an institution of higher education is ineligible for contract award if the Secretary of Defense determines that the institution has a policy or practice (regardless of when implemented) that prohibits or in effect prevents— (1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution (or any subelement of that institution); (2) A student at that institution (or any subelement of that institution) from enrolling in a unit of the Senior ROTC at another institution of higher education; (3) The Secretary of a military department or the Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting; or (4) Military recruiters from accessing, for purposes of military recruiting, the following information pertaining to students (who are 17 years of age or older) enrolled at that institution: (i) Name, address, and telephone listings. PO 00000 Frm 00016 Fmt 4702 Sfmt 9990 (ii) Date and place of birth, educational level, academic majors, degrees received, and the most recent educational institution enrolled in by the student. (c) Exception. The limitation in paragraph (b) of this clause does not apply to an institution of higher education if the Secretary of Defense determines that— (1) The institution has ceased the policy or practice described in paragraph (b) of this clause; or (2) The institution has a long-standing policy of pacifism based on historical religious affiliation. (d) Notwithstanding any other clause of this contract, if the Secretary of Defense determines that the institution has violated the contract in paragraph (b) of this clause— (1) The institution will be ineligible for further payments under this and any other contracts with this agency and any other covered agency, except for contracts at or below the simplified acquisition threshold or contracts for the acquisition of commercial items; and (2) The Government will terminate this contract for default for the institution’s material failure to comply with the terms and conditions of award. (End of clause) [FR Doc. 2019–20045 Filed 9–23–19; 8:45 am] BILLING CODE 6820–EP–P E:\FR\FM\24SEP1.SGM 24SEP1

Agencies

[Federal Register Volume 84, Number 185 (Tuesday, September 24, 2019)]
[Proposed Rules]
[Pages 49974-49978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20045]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 9, 12, 13, 43, and 52

[FAR Case 2018-021; Docket FAR-2019-0031; Sequence 1]
RIN 9000-AN79


Federal Acquisition Regulation: Reserve Officer Training Corps 
and Military Recruiting on Campus

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement the United States Code 
section that prohibits the award of certain Federal contracts to 
institutions of higher education that prohibit Reserve Officer Training 
Corps units or military recruiting on campus.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
November 25, 2019 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2018-021 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by entering ``FAR Case 
2018-021'' under the heading ``Enter Keyword or ID'' and selecting 
``Search''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2018-021''. Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2018-021'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW, 2nd 
Floor, Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite ``FAR Case 2018-
021'' in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, at 202-219-0202 or at [email protected] for clarification 
of content. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at 202-501-4755. Please 
cite FAR Case 2018-021.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement 10 
U.S.C. 983, which prohibits the award of certain Federal contracts to 
institutions of higher education that prohibit Reserve Officer Training 
Corps (ROTC) units or military recruiting on campus.
    Both DoD and Department of Homeland Security (DHS) have previously 
implemented agency-specific clauses that prohibit the award of certain 
Federal contracts to institutions of higher education that prohibit 
ROTC units or military recruiting on campus.
    DoD published an interim rule in the Defense Federal Acquisition 
Regulation Supplement (DFARS) on Institutions of Higher Education, 65 
FR 2056, on January 13, 2000, to implement section 549 of the National 
Defense Authorization Act (NDAA) for Fiscal Year 2000. Section 549 
amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract 
or grant to an institution of higher education (including any 
subelement of that institution) if the Secretary of Defense determines 
that the institution (or any subelement of the institution) has a 
policy or practice that prohibits, or in effect prevents, Senior ROTC 
units or military recruiting on campus.
    DoD then published a final rule on Military Recruiting and Reserve 
Officer Training Corps Program Access to Institutions of Higher 
Education, 73 FR 16525, on March 28, 2008, at 32 CFR part 216. The rule 
implemented 10 U.S.C. 983, as amended by the Ronald W. Reagan NDAA for 
Fiscal Year 2005 (Pub. L. 108-375, October 28, 2004). The DoD rule 
clarified access to campuses, access to students and access to 
directory information on students for the purposes of military 
recruiting, and that access to campuses and students on campuses shall 
be provided in a manner that is at least equal in quality and scope to 
that provided to any other employer. DoD later published a DFARS final 
rule in the Federal Register, 77 FR 19128, on March 30, 2012, to 
separate provisions and clauses that were previously combined in order 
to comply with DFARS drafting conventions. This final rule removed the 
representation from 252.209-7005, Reserve Officer Training Corps and 
Military Recruiting on Campus, and added a new provision at 252.209-
7003, Reserve Officer Training Corps and Military Recruiting on 
Campus--Representation.
    Similar to DoD, DHS published a rule on December 4, 2003, 68 FR 
67868 at 67891 to add a new clause in its supplement at Homeland 
Security Acquisition Regulation (HSAR) 3052.209-71, Reserve Officer 
Training Corps and Military Recruiting on Campus, to implement these 
requirements.
    This proposed rule would implement 10 U.S.C. 983, which prohibits 
the award of certain Federal contracts with covered funds to 
institutions of higher education that prohibit ROTC units or military 
recruiting on campus. ``Covered funds'' is defined in 10 U.S.C. 983 to 
be any funds made available for DoD, Department of Transportation, DHS, 
or National Nuclear Security Administration of the Department of 
Energy, the Central Intelligence Agency, or for any department or 
agency in which regular appropriations are made in the Departments of 
Labor, Health and Human Services, Education, and Related Agencies 
Appropriations Act. None of these covered funds may be provided by 
contract or grant to an institution of higher education (including any 
subelement of such institution) that has a policy or practice 
(regardless of when implemented) that

[[Page 49975]]

either prohibits, or in effect prevents, the Secretary of Defense from 
establishing or operating a Senior ROTC at that institution (or any 
subelement of that institution); or that either prohibits, or in effect 
prevents, a student at that institution (or any subelement of that 
institution) from enrolling in a ROTC unit at another institution of 
higher education.
    The statute has similar sanctions against these covered funds being 
provided to an institution of higher education (or any subelement of an 
institution) that has a policy or practice (regardless of when 
implemented) that either prohibits, or in effect prevents, the 
Secretary of a Military Department or Secretary of Homeland Security 
from gaining access to campuses, or access to students (who are 17 
years of age or older) on campuses, for purposes of military 
recruiting, where such policy or practice denies the military recruiter 
access that is at least equal in quality and scope to the access to 
campuses and students provided to any other employer; or access to 
information pertaining to the students' names, addresses, telephone 
listings, dates and places of birth, levels of education, academic 
majors, degrees received, and the most recent educational institution 
enrolled in by the student.
    The meaning and effect of the term ``equal in quality and scope'' 
was explained in the U.S. Supreme Court decision in Rumsfeld v. Forum 
for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006). 
The term means the same access to campus and students provided by the 
school to any other nonmilitary recruiters or employers receiving the 
most favorable access. The focus is not on the content of a school's 
recruiting policy, but instead on the result achieved by the policy and 
compares the access provided military recruiters to that provided other 
recruiters. Therefore, compliance with 10 U.S.C. 983 would be 
considered insufficient if the policy results in a greater level of 
access for other recruiters than for the military.
    The statute provides an exception whereby any Federal funding 
provided to an institution of higher education or to an individual that 
is available solely for student financial assistance, related 
administrative costs, or costs associated with attendance may be used 
for the purpose for which the funding is provided.
    This proposed rulemaking was initiated at the request of DoD's 
Regulatory Reform Task Force (RRTF). The RRTF was established under 
Executive Order 13777, titled ``Enforcing the Regulatory Reform 
Agenda,'' which requires agencies to evaluate existing regulations on 
whether they should be repealed, replaced, modified, or retained to 
reduce regulatory burden on the public. The RRTF recommended opening 
this rulemaking as the statute applies to multiple agencies identified 
in this rule as a ``covered agency.'' Elevating this policy in the FAR 
eliminates the need for the agency unique supplemental regulations 
mentioned above and ensures unified guidance among the affected 
agencies consistent with the purpose of the FAR system.

II. Discussion and Analysis

    This rule proposes to add a new section FAR 9.110, Reserve Officer 
Training Corps and military recruiting on campus, that provides the 
policy and procedures for this prohibition and a new clause entitled 
the same. Revisions are made to FAR 9.405, 9.405-1, and 43.105 to 
address this prohibition. The clause explains what is expected of the 
institution of higher education and how an agency is to handle the 
situation when the institution of higher education is identified by the 
Secretary of Defense as having policies or practices in place that 
prevent the ROTC and military recruiting on campus. The covered agency 
is prohibited from providing funds through contract award to the 
institution of higher education. Administrative revisions are made to 
FAR 12.503 and FAR 13.005 to the order of the statutes for consistency.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf (COTS) Items

    DoD, GSA, and NASA do not intend to apply the requirements of 10 
U.S.C. 983 at or below the simplified acquisition threshold or to 
contracts for the acquisitions of commercial items.

A. Applicability to Contracts At or Below the Simplified Acquisition 
Threshold

    Section 1905 of Title 41 of the United States Code governs the 
applicability of laws to contracts or subcontracts in amounts not 
greater than the simplified acquisition threshold. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 
Section 1905 provides that if a provision of law contains criminal or 
civil penalties, specifically refers to section 1905 and provides that 
the law shall nevertheless be applicable to contracts or subcontracts 
below the simplified acquisition threshold, or if the FAR Council makes 
a written determination that it is not in the best interest of the 
Federal Government to exempt contracts or subcontracts at or below the 
simplified acquisition threshold, the law will apply to them. Section 
1983 of Title 10 does not contain criminal or civil penalties, nor 
expressly refer to section 1905 of Title 41, and the FAR Council does 
not intend to make the requisite determination. Therefore, this 
proposed rule does not apply at or below the simplified acquisition 
threshold.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including COTS Items

    Section 1906 of Title 41 governs the applicability of laws to 
contracts for the acquisition of commercial items, and is intended to 
limit the applicability of laws to contracts for the acquisition of 
commercial items. Section 1906 provides that if a provision of law 
contains criminal or civil penalties, specifically refers to section 
1906 and provides that it shall nevertheless be applicable to contracts 
for the procurement of commercial items, or if the FAR Council makes a 
written determination that it is not in the best interest of the 
Federal Government to exempt commercial item contracts, the provision 
of law will apply to contracts for the acquisition of commercial items. 
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS 
items, and provides the same criteria for determining whether a 
provision of law applies to COTS items, except that the Administrator 
for Federal Procurement Policy is charged with making the decision 
whether it is in the best interest of the Government to apply a 
provision of law to acquisitions of COTS items in the FAR. As noted 
above with respect to section 1905, section 983 of Title 10 does not 
impose civil or criminal penalties. Nor does it refer to sections 1906 
or 1907 of Title 41. The FAR Council and the Administrator for Federal 
Procurement Policy do not intend to make the requisite determinations. 
Therefore, this proposed rule does not apply to the acquisition of 
commercial items, including COTS items. This rule proposes to add 10 
U.S.C. 983 to the list at FAR 12.503 of laws inapplicable to contracts 
for the acquisition of commercial items. The law is not added to the 
lists at FAR 12.504 (subcontracts) and 12.505 (COTS items), because the 
clause does not flow down to subcontracts and is already inapplicable 
to the acquisition of COTS items, because the Federal Government does 
not buy COTS items from institutions of higher education.

[[Page 49976]]

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under Section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

V. Expected Impact of the Proposed Rule and Proposed Cost Savings

    DoD, GSA, and NASA do not expect a cost impact on the public or 
institutions of higher learning or on the Government because covered 
agencies already have regulations in place to address their statutory 
responsibilities. These agencies will be required to comply with the 
same requirement, but the requirement will now be located in the FAR.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, because this rule has a de minimis impact 
on the public (see section V of this preamble).
    This rule affects institutions of higher education that receive DoD 
monies but are planning to not allow DoD's ROTC and military recruiting 
on campus. However, the FAR Council is not aware of any institution 
that currently has such a prohibition in place.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule impacts only institutions of higher education with 
policies or practices in place that prohibit ROTC units or military 
recruiting on campus and currently no institutions have such practices. 
Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has 
been performed and summarized as follows:

    In Fiscal Year 2017, the Federal Procurement Data System (FPDS) 
shows that there were 345 awards to small organizations, which are 
institutions of higher education, by the following covered agencies: 
DoD, Department of Labor, Department of Health and Human Services, 
Department of Education, Department of Transportation, and DHS. The 
National Nuclear Security Administration is not included in this 
number because the Department of Energy does not break out the 
information. The Central Intelligence Agency is not included because 
it does not report in FPDS. These small organizations are small 
entities under the Regulatory Flexibility Act but are not small 
business concerns. There will not be an impact on an institution of 
higher education as long as that institution has no policies or 
practices in place that prohibit ROTC units or military recruiting 
on campuses. No institution of higher education has been determined 
by the Secretary of Defense to be ineligible based on this policy 
(see 9.110).
    There are no reporting or recordkeeping requirements. There is a 
compliance requirement; institutions of higher education that have 
contracts with covered agencies (defined in the FAR text) must not 
prohibit ROTC units or military recruiting on campus. This is not a 
new requirement. No increase in burden is intended.
    The statute has previously been implemented at the FAR 
supplement level for DoD and DHS. This FAR case moves the 
implementation up into the FAR level.
    There were no significant alternatives identified that would 
meet the objectives of the rule.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained for the Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities. DoD, GSA, and NASA will also consider comments from small 
entities concerning the existing regulations in subparts affected by 
the rule in accordance with 5 U.S.C. 610. Interested parties must 
submit such comments separately and should cite 5 U.S.C 610 (FAR Case 
2018-021), in correspondence.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subjects in 48 CFR Parts 9, 12, 13, 43, and 52

    Government procurement.

William F. Clark
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 9, 12, 
13, 43, and 52 as set forth below.

0
1. The authority citation for 48 CFR parts 9, 12, 13, 43, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 9--CONTRACTOR QUALIFICATIONS

0
2. Add sections 9.110 and 9.110-1 thru 9.110-5 to read as follows:


9.110  Reserve Officer Training Corps and military recruiting on 
campus.


9.110-1  Definitions.

    As used in this section--
    ``Covered agency'' means--
    (1) The Department of Defense;
    (2) Any department or agency for which regular appropriations are 
made in a Department of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act;
    (3) The Department of Homeland Security;
    (4) The National Nuclear Security Administration of the Department 
of Energy;
    (5) The Department of Transportation; or
    (6) The Central Intelligence Agency.
    ``Institution of higher education'' means an institution that meets 
the requirements of 20 U.S.C. 1001 and includes all subelements of such 
an institution.


9.110-2  Authority.

    This section implements 10 U.S.C. 983.


9.110-3  Policy.

    (a) Except as provided in paragraph (b) of this section, 10 U.S.C. 
983 prohibits the covered agency from providing funds by contract to an 
institution of higher education if the Secretary of Defense determines 
that the institution has a policy or practice that prohibits or in 
effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution;
    (2) A student at that institution from enrolling in a unit of the 
Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining access to campuses, or access to 
students (who are 17 years of age or older) on campuses, for purposes 
of military recruiting in a manner that is at least equal in quality 
and scope to the access to campuses and to students that is provided to 
any other employer; or

[[Page 49977]]

    (4) Military recruiters from accessing certain information 
pertaining to students (who are 17 years of age or older) enrolled at 
that institution:
    (i) Name, address, and telephone listings.
    (ii) Date and place of birth, educational level, academic majors, 
degrees received, and the most recent educational institution enrolled 
in by the student.
    (b) The prohibition in paragraph (a) of this section does not apply 
to an institution of higher education if the Secretary of Defense 
determines that--
    (1) The institution has ceased the policy or practice described in 
paragraph (a) of this section; or
    (2) The institution has a long-standing policy of pacifism based on 
historical religious affiliation.


9.110-4  Procedures.

    If the Secretary of Defense determines, pursuant to the procedures 
at 32 CFR part 216, that an institution of higher education is 
ineligible to receive funds from a covered agency because of a policy 
or practice described in 9.110-3--
    (a) The Secretary of Defense will create an active exclusion record 
for the institution in the System for Award Management; and
    (b) A covered agency shall not solicit offers from, award contracts 
to, or consent to subcontracts with the institution.


9.110-5  Contract clause.

    The contracting officer shall insert the clause at 52.209-XX, 
Reserve Officer Training Corps and Military Recruiting on Campus, in 
solicitations and contracts that are expected to exceed the simplified 
acquisition threshold, with institutions of higher education, when 
using funds from a covered agency. The clause is not prescribed for 
solicitations and contracts using FAR part 12 for the acquisition of 
commercial items.


9.405   [Amended]

0
3. Amend 9.405(a) by removing from the first sentence ``see 9.405-
1(b)'' and adding ``see 9.405-1(a)(2)'' in its place.
0
4. Amend section 9.405-1 by--
0
a. Redesignating paragraphs (a) and (b) as paragraphs (a)(1) and (2);
0
b. Adding a heading for paragraph (a);
0
c. Redesignating paragraphs (a)(2)(1) through (3) as paragraphs 
(a)(2)(i) through (iii); and
0
d. Adding new paragraph (b).
    The additions read as follows:


9.405-1  Continuation of current contracts.

    (a) Contractors debarred, suspended, or proposed for debarment. * * 
*
    (b) Ineligible contractors. A covered agency, as defined in 9.110-
1, shall terminate existing contracts and shall not place new orders or 
award new contracts with contractors that have been declared ineligible 
pursuant to 10 U.S.C. 983 (see 9.110, Reserve Officer Training Corps 
and military recruiting on campus), except for contracts at or below 
the simplified acquisition threshold or contracts for the acquisition 
of commercial items.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
5. Amend section 12.503 by revising paragraphs (a)(1), (2), (4), and 
(5), adding paragraph (a)(6), and revising paragraphs (a)(7) through 
(9) to read as follows:


12.503  Applicability of certain laws to Executive agency contracts for 
the acquisition of commercial items.

    (a) * * *
    (1) 10 U.S.C. 983, Institutions of higher education that prevent 
ROTC access or military recruiting on campus: denial of grants and 
contracts from Department of Defense, Department of Education, and 
certain other departments and agencies (see 9.110).
    (2) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for 
contracts with entities not meeting veterans' employment reporting 
requirements (see 22.1302).
* * * * *
    (4) 41 U.S.C. 2303, Policy on Personal Conflicts of Interest by 
Contractor Employees (see subpart 3.11).
    (5) 41 U.S.C. 3901(b) and 10 U.S.C. 2306(b), Contingent Fees (see 
3.404).
    (6) 41 U.S.C. 4706(d)(1) and 10 U.S.C. 2313(c)(1), GAO Access to 
Contractor Employees, Section 871 of Public Law 110-417 (see 52.214-26 
and 52.215-2).
    (7) 41 U.S.C. chapter 65, Contracts for Materials, Supplies, 
Articles, and Equipment Exceeding $15,000 (see subpart 22.6).
    (8) 41 U.S.C. chapter 81, Drug-Free Workplace (see 23.501).
    (9) Section 806(a)(3) of Public Law 102-190, as amended by Sections 
2091 and 8105 of Public Law 103-355, (10 U.S.C. 2302 note), Payment 
Protections for Subcontractors and Suppliers (see 28.106-6).
* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
6. Amend section 13.005 by--
0
a. Removing paragraphs (a)(1) through (5);
0
b. Adding new paragraph (a)(1);
0
c. Redesignating paragraphs (a)(6) through (9) as paragraphs (a)(2) 
through (5);
0
d. Adding new paragraphs (a)(6) through (9);
0
e. Revising paragraphs (a)(10) and (11); and
0
f. Adding paragraph (a)(12).
    The additions and revisions read as follows:


13.005  List of laws inapplicable to contracts and subcontracts at or 
below the simplified acquisition threshold.

    (a) * * *
    (1) 10 U.S.C. 983, Institutions of higher education that prevent 
ROTC access or military recruiting on campus: denial of grants and 
contracts from Department of Defense, Department of Education, and 
certain other departments and agencies (see 9.110).
* * * * *
    (6) 22 U.S.C. 2593e (Measures Against Persons Involved in 
Activities that Violate Arms Control Treaties or Agreements with the 
United States). (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide 
a certification does not apply.)
    (7) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for 
contracts with entities not meeting veterans' employment reporting 
requirements (see 22.1302).
    (8) 40 U.S.C. 3131 (Bonds statute). (Although the Bonds statute 
does not apply to contracts at or below the simplified acquisition 
threshold, alternative forms of payment protection for suppliers of 
labor and material (see 28.102) are still required if the contract 
exceeds $35,000 (40 U.S.C. 3132).)
    (9) 40 U.S.C. chapter 37 (Contract Work Hours and Safety 
Standards--Overtime Compensation).
    (10) 41 U.S.C. 8102(a)(1) (Drug-Free Workplace), except for 
individuals.
    (11) 41 U.S.C. 8703 (Kickbacks statute). (Only the requirement for 
the incorporation of the contractor procedures for the prevention and 
detection of violations, and the contractual requirement for contractor 
cooperation in investigations are inapplicable.)
    (12) 42 U.S.C. 6962 (Solid Waste Disposal Act). (The requirement to 
provide an estimate of recovered material utilized in contract 
performance does not apply unless the contract value exceeds $150,000.)
* * * * *

PART 43--CONTRACT MODIFICATIONS

0
7. Amend section 43.105 by adding paragraph (c) to read as follows:

[[Page 49978]]

43.105  Availability of funds.

* * * * *
    (c) In accordance with 10 U.S.C. 983, do not provide funds by 
contract or contract modification, or make contract payments, to an 
institution of higher education that has a policy or practice of 
hindering Senior Reserve Officer Training Corps units or military 
recruiting on campus as described at 9.110.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.209-XX   [Added]

0
8. Add section 52.209-XX to read as follows:


52.209-XX  Reserve Officer Training Corps and Military Recruiting on 
Campus.

    As prescribed in 9.110-5, insert the following clause:

Reserve Officer Training Corps and Military Recruiting on Campus (Date)

    (a) Definitions. As used in this clause--
    ``Institution of higher education'' means an institution that 
meets the requirements of 20 U.S.C. 1001 and includes all 
subelements of such an institution.
    ``Covered agency'' means--
    (1) The Department of Defense;
    (2) Any department or agency for which regular appropriations 
are made in a Department of Labor, Health and Human Services; and 
Education, and Related Agencies Appropriations Act;
    (3) The Department of Homeland Security;
    (4) The National Nuclear Security Administration of the 
Department of Energy;
    (5) The Department of Transportation; or
    (6) The Central Intelligence Agency.
    (b) Limitation on contract award. Except as provided in 
paragraph (c) of this clause, an institution of higher education is 
ineligible for contract award if the Secretary of Defense determines 
that the institution has a policy or practice (regardless of when 
implemented) that prohibits or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution (or any subelement of that 
institution);
    (2) A student at that institution (or any subelement of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining access to campuses, or access to 
students (who are 17 years of age or older) on campuses, for 
purposes of military recruiting; or
    (4) Military recruiters from accessing, for purposes of military 
recruiting, the following information pertaining to students (who 
are 17 years of age or older) enrolled at that institution:
    (i) Name, address, and telephone listings.
    (ii) Date and place of birth, educational level, academic 
majors, degrees received, and the most recent educational 
institution enrolled in by the student.
    (c) Exception. The limitation in paragraph (b) of this clause 
does not apply to an institution of higher education if the 
Secretary of Defense determines that--
    (1) The institution has ceased the policy or practice described 
in paragraph (b) of this clause; or
    (2) The institution has a long-standing policy of pacifism based 
on historical religious affiliation.
    (d) Notwithstanding any other clause of this contract, if the 
Secretary of Defense determines that the institution has violated 
the contract in paragraph (b) of this clause--
    (1) The institution will be ineligible for further payments 
under this and any other contracts with this agency and any other 
covered agency, except for contracts at or below the simplified 
acquisition threshold or contracts for the acquisition of commercial 
items; and
    (2) The Government will terminate this contract for default for 
the institution's material failure to comply with the terms and 
conditions of award.
(End of clause)
[FR Doc. 2019-20045 Filed 9-23-19; 8:45 am]
 BILLING CODE 6820-EP-P