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

<RULE> 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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DHS is issuing a final rule to amend the Homeland Security Acquisition Regulation (HSAR) to remove and reserve an 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. 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> This final rule is effective December 26, 2024. </EFFDATE> <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) 282-8000 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">Table of Contents for Preamble</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Discussion of Comments and the Final Rule</FP> <FP SOURCE="FP-2">III. Regulatory Analyses</FP> <FP SOURCE="FP1-2">A. Executive Orders 12866, 13563, and 14094</FP> <FP SOURCE="FP1-2">B. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">D. National Environmental Policy Act</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> In a Notice of Proposed Rulemaking (NPRM), published in the <E T="04">Federal Register</E> on July 31, 2024, DHS proposed to amend certain Homeland Security Acquisition Regulation (HSAR) provisions prohibiting the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See Homeland Security Acquisition Regulation, Rescinding Reserve Officer Training Corps and Military Recruiting on Campus Clause (HSAR Case 2024-001),</E> 89 FR 61384 (Jul. 31, 2024). </FTNT> As explained in the NPRM, on December 4, 2003, DHS published an interim final rule to establish the HSAR. <SU>2</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>3</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 prohibited 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>2</SU>   <E T="03">See Department of Homeland Security Acquisition</E> Regulation, 68 FR 67868 (Dec. 4, 2003). </FTNT> <FTNT> <SU>3</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 required certain contractors to represent at time of contract award that it did not have and agree that during performance of a contract to 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. The clause also listed the two statutory exceptions to the prohibition concerning the award of a contract found in 10 U.S.C. 983(c). 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>4</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>5</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">See</E> 85 FR 67619 (Oct. 23, 2020). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See</E> 85 FR 67619 (Oct. 23, 2020). </FTNT> On December 8, 2020, DHS issued HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus. <SU>6</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>7</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. As a result of the FAR revision and HSAR Class Deviation 21-02, HSAR clause 3052.209-71 has not been used to comply with 10 U.S.C. 983 since 2020. <FTNT> <SU>6</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>7</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> <HD SOURCE="HD1">II. Discussion of Comments and the Final Rule</HD> Interested parties were given until September 30, 2024, to comment on the NPRM. DHS received one public comment that was not substantive. The one public comment received provided support for the rule. As explained previously, since 2020 DHS has complied with the requirements of 10 U.S.C. 983 by following the regulatory provisions of the FAR final rule; not 48 CFR 3052.209-71 and 48 CFR 3009.470. This final rule amends the HSAR to remove and reserve 48 CFR 3052.209-71 and subpart 3009.4 of 48 CFR part 3009. <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 amended by Executive Order 14094. Accordingly, OMB has not reviewed this regulatory action. <HD SOURCE="HD3">Need for the Rule</HD> This final rule codifies the requirements set forth in the HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus, that directs DHS contracting officers to follow the FAR when complying with the requirements of 10 U.S.C. 983 and suspends use of HSAR 3009.470 and HSAR clause 3052.209-71. As stated previously, because of the amendments made in the FAR final rule that standardized compliance with 10 U.S.C. 983 for all affected Federal agencies, DHS 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. Therefore, this final rule amends the HSAR to remove and reserve this clause and its corresponding policy. <HD SOURCE="HD3">Benefits and Costs of the Final Rule</HD> There are no quantified costs or cost savings to this rule as it simply rescinds HSAR requirements that DoD, GSA and NASA have already incorporated in the FAR. DHS believes there will be efficiency and streamlining benefits from this rule as it will remove agency specific provisions from the HSAR. <HD SOURCE="HD2">B. Regulatory Flexibility Act</HD> The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, (Mar. 29, 1996), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not do ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 15k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━