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[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Rules and Regulations]
[Pages 92847-92849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27631]

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DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3009 and 3052

[Docket No. DHS-2024-0023]
RIN 1601-AB14

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: Final rule.

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SUMMARY: 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.

DATES: This final rule is effective December 26, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Murray, Procurement Analyst, 
DHS, Office of the Chief Procurement Officer, Acquisition Policy and 
Legislation at (202) 282-8000 or email [email protected]. When using 
email, include HSAR Case 2024-001 in the ``Subject'' line.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Background
II. Discussion of Comments and the Final Rule
III. Regulatory Analyses
    A. Executive Orders 12866, 13563, and 14094
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. National Environmental Policy Act

I. Background

    In a Notice of Proposed Rulemaking (NPRM), published in the Federal 
Register 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.\1\
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    \1\ See Homeland Security Acquisition Regulation, Rescinding 
Reserve Officer Training Corps and Military Recruiting on Campus 
Clause (HSAR Case 2024-001), 89 FR 61384 (Jul. 31, 2024).
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    As explained in the NPRM, on December 4, 2003, DHS published an 
interim final rule to establish the HSAR.\2\ 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).\3\ 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.
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    \2\ See Department of Homeland Security Acquisition Regulation, 
68 FR 67868 (Dec. 4, 2003).
    \3\ See Revision of Department of Homeland Security Acquisition 
Regulation, 71 FR 25759 (May 2, 2006).
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    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'').\4\ 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

[[Page 92848]]

prohibit Reserve Officer Training Corps units or military recruiting on 
campus.\5\
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    \4\ See 85 FR 67619 (Oct. 23, 2020).
    \5\ See 85 FR 67619 (Oct. 23, 2020).
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    On December 8, 2020, DHS issued HSAR Class Deviation 21-02, Reserve 
Officer Training Corps and Military Recruiting on Campus.\6\ 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.'' \7\ 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.
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    \6\ See HSAR Deviation 21-02, Reserve Officer Training Corps and 
Military Recruiting on Campus, available at: https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf (last accessed May 
28, 2024).
    \7\ See HSAR Deviation 21-02, Reserve Officer Training Corps and 
Military Recruiting on Campus, available at: https://www.dhs.gov/sites/default/files/publications/hsarclassdeviation_21_02_3009.470_12-8-2020.pdf (last accessed May 
28, 2024).
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II. Discussion of Comments and the Final Rule

    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.

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.
Need for the Rule
    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.
Benefits and Costs of the Final Rule
    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.

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 final rule 
rescinds HSAR clause 3052.209-71 and does not impose new requirements 
on small entities. As such, DHS certifies this final rule will 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 major Federal actions 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 analyzed the actions in this 
rule 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.
    This final rule amends 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 this rule removes are now obsolete 
given that a

[[Page 92849]]

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

List of Subjects in 48 CFR Parts 3009 and 3052

    Government procurement.

    For the reasons set forth in the preamble, DHS amends 48 CFR parts 
3009 and 3052 as follows:

PART 3009--CONTRACTOR QUALIFICATIONS

0
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.

3009.4  [Removed and Reserved]

0
2. Remove and reserve subpart 3009.4.

PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
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.

3052.209-71  [Removed and Reserved]

0
4. Remove and reserve section 3052.209-71.

Paul Courtney,
Chief Procurement Officer, Department of Homeland Security.
[FR Doc. 2024-27631 Filed 11-22-24; 8:45 am]
BILLING CODE 9112-FE-P
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