Homeland Security Acquisition Regulation, Rescinding Reserve Officer Training Corps and Military Recruiting on Campus Clause (HSAR Case 2024-001)

DEPARTMENT OF HOMELAND SECURITY <CFR>48 CFR Parts 3009 and 3052</CFR> <DEPDOC>[Docket No. DHS-2024-0023]</DEPDOC> <RIN>RIN 1601-AB14</RIN> <SUBJECT>Homeland Security Acquisition Regulation, Rescinding Reserve Officer Training Corps and Military Recruiting on Campus Clause (HSAR Case 2024-001)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the Chief Procurement Officer, Department of Homeland Security (DHS). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DHS is proposing to amend the Homeland Security Acquisition Regulation (HSAR). Specifically, DHS proposes to remove and reserve a HSAR clause and subpart. These provisions contain regulatory requirements, which prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. DHS believes these HSAR provisions are no longer needed in light of amendments made in the Federal Acquisition Regulation (FAR), which DHS has adhered to since December 2020. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments on the proposed rule should be submitted in writing to one of the addresses shown below on or before September 30, 2024, to be considered in the formation of the final rule. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments identified by HSAR Case 2024-001, Rescinding Reserve Officer Training Corps and Military Recruiting on Campus Clause, using any of the following methods: • <E T="03">Regulations.gov: http://www.regulations.gov.</E> Submit comments via the Federal eRulemaking portal by entering “HSAR Case 2024-001” under the heading “Enter Keyword or ID” and select “Search.” Select the link “Submit a Comment” that corresponds with “HSAR Case 2024-001.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “HSAR Case 2024-001” on your attached document. • <E T="03">Fax:</E> (202) 447-0520. • <E T="03">Mail:</E> Department of Homeland Security, Office of the Chief Procurement Officer, MS 0080, ATTN: Ms. Ellen Murray, 6595 Springfield Center Dr., Springfield, VA 20598-0080. Comments received generally will be posted without change to <E T="03">http://www.regulations.gov,</E> including any personal information provided. To confirm receipt of your comment(s), please check <E T="03">www.regulations.gov,</E> approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ms. Ellen Murray, Procurement Analyst, DHS, Office of the Chief Procurement Officer, Acquisition Policy and Legislation at (202) 603-3791 or email <E T="03">HSAR@hq.dhs.gov.</E> When using email, include HSAR Case 2024-001 in the “Subject” line. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On December 4, 2003, DHS published an interim final rule to establish the Department of Homeland Security Acquisition Regulation (HSAR). <SU>1</SU> <FTREF/> On May 2, 2006, DHS published a final rule, which adopted the interim rule with some changes in response to public comment (HSAR final rule). <SU>2</SU> <FTREF/> The HSAR final rule finalized, among other provisions, HSAR clause 3052.209-71, Reserve Officer Training Corps and Military Recruiting on Campus (48 CFR 3052.209-71). This regulatory requirement is consistent with 10 U.S.C. 983, which prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. <FTNT> <SU>1</SU>   <E T="03">See Department of Homeland Security Acquisition</E> Regulation, 68 FR 67868 (Dec. 4, 2003). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See Revision of Department of Homeland Security Acquisition Regulation,</E> 71 FR 25759 (May 2, 2006). </FTNT> HSAR clause 3052.209-71 requires certain contractors to represent at time of contract award that it does not have and agrees that during performance of a contract it will not adopt, any policy or practice that prohibits or prevents the maintenance, establishment, or operation of a Senior Reserve Officer Training Corps (ROTC) unit at the institution; students at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education; the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or students on campuses, for military recruiting purposes; or access by military recruiters, for the purposes of military recruiting, to certain information pertaining to students enrolled at the institution. <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">See</E> 48 CFR 3052.209-71. </FTNT> The clause also lists the two statutory exceptions to the prohibition concerning the award of a contract found in 10 U.S.C. 983(c). <SU>4</SU> <FTREF/> These exceptions are when the Secretary of Defense determines that the institution has ceased the prohibited policy or practice or that the institution has a long-standing policy of pacifism based on historical religious affiliation. <FTNT> <SU>4</SU>   <E T="03">See</E> 48 CFR 3052.209-71. </FTNT> On October 23, 2020, the Department of Defense (DoD), the General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) jointly issued a final rule entitled Federal Acquisition Regulation (FAR) Reserve Officer Training Corps and Military Recruiting on Campus (“FAR final rule”). <SU>5</SU> <FTREF/> The FAR final rule, among other amendments, codified for all affected Federal agencies a requirement to include, where applicable, a clause 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. <SU>6</SU> <FTREF/> <FTNT> <SU>5</SU>   <E T="03">See</E> 85 FR 67619 (Oct. 23, 2020). </FTNT> <FTNT> <SU>6</SU>   <E T="03">See</E> 85 FR 67619 (Oct. 23, 2020). </FTNT> DHS notes that the DHS Chief Procurement Officer can issue HSAR deviations when necessary to allow components to deviate from the HSAR. <SU>7</SU> <FTREF/> On December 8, 2020, DHS issued HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus. <SU>8</SU> <FTREF/> The deviation explained that the FAR final rule “effective November 23, 2020, added FAR 9.110 that provides the policy and procedures for complying with the 10 U.S.C. 983 prohibition, including FAR clause 52.209-14.” <SU>9</SU> <FTREF/> The deviation then directed DHS contracting officers to follow the FAR when complying with the requirements of 10 U.S.C. 983 and suspended use of HSAR 3009.470 and HSAR clause 3052.209-71. <FTNT> <SU>7</SU>   <E T="03">See</E> HSAR Deviations, available at: <E T="03">https://www.dhs.gov/publication/current-hsar-deviations</E> (last accessed May 28, 2024). </FTNT> <FTNT> <SU>8</SU>   <E T="03">See HSAR Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus,</E> available at: <E T="03">https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf</E> (last accessed May 28, 2024). </FTNT> <FTNT> <SU>9</SU>   <E T="03">See HSAR Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus,</E> available at: <E T="03">https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf</E> (last accessed May 28, 2024). </FTNT> As a result of the FAR revision, HSAR clause 3052.209-71 is no longer being used to comply with 10 U.S.C. 983. Therefore, DHS is proposing to remove and reserve HSAR clause 3052.209-71 and subpart 3009.4. <HD SOURCE="HD1">II. Discussion and Analysis</HD> As explained previously, DHS currently complies with the requirements of 10 U.S.C. 983 by following the regulatory provisions of the FAR final rule. Until December 8, 2020, DHS had formerly complied with this statutory provision by following 48 CFR 3052.209-71 and 48 CFR 3009.470. <SU>10</SU> <FTREF/> <FTNT> <SU>10</SU>  DHS notes that 48 CFR 3009.470-3009.470-4 currently constitutes all the regulatory text contained in 48 CFR part 3009, subpart 3009.4. </FTNT> As a result of the amendments made in the FAR final rule that standardize compliance with 10 U.S.C. 983 for all affected Federal agencies, and the directives of HSAR Class Deviation 21-02, DHS has determined that HSAR clause 3052.209-71 and subpart 3009.4 are not needed to comply with the requirements of 10 U.S.C. 983. <SU>11</SU> Therefore, DHS is proposing to remove and reserve 48 CFR 3052.209-71 and subpart 3009.4 of 48 CFR part 3009. These proposed changes would also be consistent with the guidance in the HSAR Deviation. <HD SOURCE="HD1">III. Regulatory Analyses</HD> <HD SOURCE="HD2">A. Executive Orders 12866, 13563, and 14094</HD> Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action, under section 3(f) of Executive Order 12866, as ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 16k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━