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###### Department of Homeland Security

          - 48 CFR Parts 3009 and 3052
          - [Docket No. DHS-2024-0023]
          - RIN 1601-AB14

# AGENCY:

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

# ACTION:

Final rule.

# 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                         *HSAR@hq.dhs.gov.*                         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] 

                    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.                

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                           ( print page 92848)                        prohibit Reserve Officer Training Corps units or military recruiting on campus.[5] 

                    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.                

## 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                           ( print 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

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 

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.

3052.209-71 

4. Remove and reserve section 3052.209-71. 

Paul Courtney,

Chief Procurement Officer, Department of Homeland Security.

# Footnotes

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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2.                                                     *See Department of Homeland Security Acquisition*                         Regulation, 68 FR 67868 (Dec. 4, 2003).                    
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3.                                                     *See Revision of Department of Homeland Security Acquisition Regulation,*71 FR 25759 (May 2, 2006).                    
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4.                                                     *See*85 FR 67619 (Oct. 23, 2020).                    
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5.                                                     *See*85 FR 67619 (Oct. 23, 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).                    
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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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[FR Doc. 2024-27631 Filed 11-22-24; 8:45 am]

BILLING CODE 9112-FE-P