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

AGENCY:

Office of the Chief Procurement Officer, Department of Homeland Security (DHS).

ACTION:

Proposed rule.

SUMMARY:

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.

DATES:

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.

ADDRESSES:

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:

• Regulations.gov: http://www.regulations.gov.

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.

• Fax: (202) 447-0520.
• Mail: 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 http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT:

Ms. Ellen Murray, Procurement Analyst, DHS, Office of the Chief Procurement Officer, Acquisition Policy and Legislation at (202) 603-3791 or email HSAR@hq.dhs.gov. When using email, include HSAR Case 2024-001 in the “Subject” line.

SUPPLEMENTARY INFORMATION:

I. Background

On December 4, 2003, DHS published an interim final rule to establish the Department of Homeland Security Acquisition Regulation (HSAR). 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). 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.

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.

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). 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.

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”). 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.

DHS notes that the DHS Chief Procurement Officer can issue HSAR deviations when necessary to allow components to deviate from the HSAR. On December 8, 2020, DHS issued HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus. 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.” 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, 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.

II. Discussion and Analysis

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.

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. 983.¹¹ 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.

III. Regulatory Analyses

A. Executive Orders 12866, 13563, and 14094

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.

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 would be efficiency and streamlining benefits from this rule as it would remove agency specific provisions from the HSAR.

B. Regulatory Flexibility Act

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 dominant in their fields, or governmental jurisdictions with populations of less than 50,000. This proposed rule would rescind HSAR clause 3052.209-71 and would not impose new requirements on small entities. As such, DHS certifies this proposed change would not result in 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.

C. 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. 3501-3521).

D. National Environmental Policy Act

Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.), as amended, requires Federal agencies to evaluate the impacts of a proposed major Federal action that may significantly affect the human environment, consider alternatives to the proposed action, provide public notice and opportunity to comment, and properly document its analysis. DHS and its agency components analyze proposed actions to determine whether NEPA applies to them and, if so, what level of documentation and analysis is required.

DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality regulations for implementing NEPA codified in 40 CFR parts 1500-1508. The CEQ regulations allow Federal agencies to establish, in their implementing procedures, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not, individually or in the aggregate, have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(e)(2)(ii). Appendix A of the Instruction Manual lists the DHS categorical exclusions.

Under DHS NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.

The proposed rule, if finalized, would amend the HSAR to remove and reserve HSAR clause 3052.209-71 and subpart 3009.4. As stated previously, this HSAR clause and its corresponding policy that the rule proposes to remove are now obsolete given that a FAR clause has been implemented to create a single standard for all agencies subject to 10 U.S.C. 983 to comply with the statutory requirements.

DHS is not aware of any significant impact on the environment, or any change in environmental effect that will result from this proposed rule. DHS finds promulgation of the rule clearly fits within categorical exclusion A3, established in the Department's NEPA implementing procedures as removing and reserving HSAR clause 3052.209-71 and subpart 3009.4 would be strictly administrative in nature.

This proposed rule is a standalone rule and is not part of any larger action. This proposed rule would not result in any major Federal action that would significantly affect the quality of the human environment. Furthermore, DHS has determined that no extraordinary circumstances exist that would create the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review and documentation.

List of Subjects in 48 CFR Parts 3009 and 3052

• Government procurement

Accordingly, for the reasons set forth in the preamble, DHS proposes to amend 48 CFR parts 3009 and 3052 as follows:

PART 3009—CONTRACTOR QUALIFICATIONS

1. The authority citation for part 3009 continues to read as follows:

Authority: 5 U.S.C. 301-302, 41 U.S.C. 1303, 41 U.S.C. 1707, 41 U.S.C. 1702, and 48 CFR subpart 1.3.

2. Remove and reserve subpart 3009.4.

PART 3052—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. The authority citation for part 3052 continues to read as follows:

Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 41 U.S.C. 1303(a)(2), 48 CFR part 1, subpart 1.3, and DHS Delegation Number 0702.

4. Remove and reserve section 3052.209-71.