Military Recruiting at Institutions of Higher Education

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 216

Military Recruiting at Institutions of Higher Education

AGENCY: Office of the Secretary, DoD.

ACTION: Interim rule.

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SUMMARY: The Department of Defense adopts this interim rule to

implement the ``National Defense Authorization Act for Fiscal Year

1995. It updates policy, procedures, and responsibilities for

identifying and taking action against any institution of higher

education that has a policy of denying, or, that effectively prevents,

the Secretary of Defense from obtaining for military recruiting

purposes: Entry to campuses, access to students on campuses, or access

to student directory information. No funds available to the Department

of Defense (DoD) may be provided by grant or contract to any such

institution. The new law allows no basis for waivers.

DATES: This interim rule is effective on May 30, 1995. Written comments

on this rule must be received by July 31, 1995.

ADDRESSES: Forward comments to the Director for Accession Policy,

Office of the Assistant Secretary of Defense for Force Management

Policy, 4000 Defense Pentagon, Washington, DC 20301-4000.

FOR FURTHER INFORMATION CONTACT:

Ronald G. Liveris, (703) 697-9268.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This interim rule is not a ``significant regulatory action,'' as

defined by Executive Order 12866. The Department of Defense believes

that it will not: (1) Have an annual effect on the economy of $100

million or more or adversely affect in a material way the economy, a

sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities; (2) create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients

thereof; or (4) raise novel legal or policy issues arising our of legal

mandates, the President's priorities, or the principles set forth in

Executive Order 12866.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

This interim rule will not have a significant adverse impact on a

substantial number of small entities.

Paperwork Reduction Act of 1980 (44 U.S.C., Chapter 35)

This interim rule will not impose any additional reporting or

record keeping requirements under the Paperwork Reduction Act.

List of Subjects in 32 CFR Part 216

Armed Forces, Colleges and universities, Recruiting personnel.

Accordingly, 32 CFR part 216 is revised to read as follows:

PART 216--MILITARY RECRUITING AT INSTITUTIONS OF HIGHER EDUCATION

Sec.

216.1 Purpose.

216.2 Applicability.

216.3 Definitions.

216.4 Responsibility.

Appendix A to part 216--Sample Letter of Inquiry

Authority: 10 U.S.C. 503 note.

Sec. 216.1 Purpose.

This part implements section 558, The National Defense

Authorization Act for Fiscal Year 1995, Pub. L. 103-337 (See 10 U.S.C.

section 503 note). It updates policy and responsibilities for

identifying and taking action regarding institutions of higher

education that either have a policy of denying or effectively bar

military recruiting personnel from entry to their campuses, or from

access to student directory information.

Sec. 216.2 Applicability.

This part applies to the Office of the Secretary of Defense, the

Military Departments, the Chairman of the Joint Chiefs of Staff, the

Unified and Specified Combatant Commands, the Uniformed Services

University of Health Sciences (USUHS), the Defense Agencies, and DoD

Field Activities (hereafter referred to collectively as ``the DoD

Components''). The term ``Military Services,'' as used herein, refers

to the Army, the Navy, the Air Force, and the Marine Corps.

Sec. 216.3 Definitions.

(a) Directory information. Referring to a student means the

student's name, address, telephone listing, date and place of birth,

level of education, degrees received, and the most recent previous

educational institution enrolled in by student.

(b) Institution of higher education. A domestic college,

university, or sub-element of a university providing post-secondary

school courses of study, including foreign campuses of such

institutions. This includes junior colleges, community colleges, and

institutions providing courses leading to undergraduate and post-

graduate degrees. The term ``institution of higher education'' does not

include entities that operate exclusively outside the United States,

its territories, and possessions.

(c) Student. An individual who is 17 years of age or older and

enrolled in an institution of higher education.

Sec. 216.4 Policy.

(a) Under section 558 of the National Defense Authorization Act for

Fiscal Year 1995, no funds available to the Department of Defense (DoD)

may be provided by grant or contract to any institution of higher

education that either has a policy of denying or that effectively

prevents the Secretary of Defense from obtaining, for military

recruiting purposes, entry to campuses or access to students on

campuses or access to directory information pertaining to students.

This prohibition on use of DoD funds applies only to sub-elements of an

institution of higher education that are determined to have such a

policy or practice.

(b) An evaluation to determine whether an institution of higher

education has a policy of denying, or is effectively preventing, the

Secretary of Defense from obtaining entry to the campuses, access to

students on campuses, or access to student directory information shall

be undertaken when:

(1) Military recruiting personnel cannot obtain permission to

recruit on the premises of the institution or when they are refused

directory information. Military recruiting personnel shall accommodate

an institution's reasonable preferences as to times and places for

scheduling on-campus recruiting, provided that any such restrictions

are not based on the policies or practices of the Department of Defense

and the Military Services are provided entry to the campus and access

to students on campus and directory information; or

(2) The institution is unwilling to declare in writing as a

prerequisite to an [[Page 28051]] education and training award that the

institution does not have a policy of denying, and that it does not

effectively prevent, the Secretary of Defense from obtaining for

military recruiting purposes entry to campuses or access to students on

campuses, or access to student directory information.

(3) The institution does not accept terms or conditions of a DoD

contract or grant specified under Sec. 216.5(b)(2).

(c) A determination that military recruiting personnel are denied

access will not be made when the institution:

(1) Excludes all employers from recruiting on the premises of the

institution.

(2) Permits employers to recruit on the premises of the institution

only in response to an expression of student interest, and the

institution:

(i) Provides the Military Services with the same opportunities to

inform the students of military recruiting activities as are available

to other employers.

(ii) Certifies that too few students have expressed an interest to

warrant accommodating military recruiters, applying the same criteria

that are applicable to other employers.

(3) In the case of not providing any directory information,

certifies that this information is not collected by the institution.

(4) In the case of not providing directory information for specific

students, certifies that each student concerned (or his or her parent,

in the case of a 17-year old) has formally requested the institution to

withhold providing this information from military recruiting personnel

for military recruiting purposes.

Sec. 216.5 Responsibilities.

(a) The Assistant Secretary of Defense for Force Management Policy,

under the Under Secretary of Defense for Personnel and Readiness,

shall:

(1) Not later than 30 days after receipt of the name(s) of

institutions of higher education under Secs. 216.5(d)(2) and

216.5(e)(1):

(i) Make a final determination about the eligibility of each such

institution to receive funds available to the Department of Defense by

grant or contract under section 558 of the National Defense

Authorization Act for Fiscal Year 1995 and this part.

(ii) Notify each institution determined under Sec. 216.5(a)(1)(i),

that it is ineligible to receive DoD funds under section 558 and this

part. This notification shall reflect the basis of this determination.

(iii) Disseminate the names of institutions of higher education

identified under Sec. 215.5(a)(1)(i), to all DoD Components and to the

General Services Administration (GSA) for inclusion in the Federal list

of parties excluded from Federal procurement or nonprocurement

programs.

(iv) Inform each institution identified under Sec. 216.5(d)(2), or

Sec. 216.5(e)(1), that its eligibility to receive DoD funds may be

restored upon the institution providing sufficient new information to

enable the Assistant Secretary of Defense for Force Management Policy

(ASD(FMP)) to determine that the institution provides entry to its

campus(es), access to students on the campus(es), and access to

directory information on students.

(2) Not later than 45 days after receipt of an institution's

request to restore its eligibility:

(i) Determine whether the institution is qualified to receive DoD

funds under section 558 of the National Defense Authorization Act for

Fiscal Year 1995 and this part.

(ii) Inform the institution of this determination.

(iii) Provide the DoD Components and GSA with the name of this

institution if its eligibility has been restored.

(3) Provide policy and procedures to:

(i) Cease education and training awards of DoD funds (other than

those made by procurement grant or contract subject to

Sec. 216.5(b)(1)) to institutions identified under Sec. 216.5(a)(1)(i).

(ii) Identify institutions unwilling to declare in writing, as a

prerequisite to such an award of DoD funds for education and training,

that the institution does not have a policy of denying and that it does

not effectively prevent the Secretary of Defense from obtaining for

military recruiting purposes: entry to campuses, access to students on

campuses, or access to student directory information.

(b) The Under Secretary of Defense for Acquisition and Technology

shall establish policy and procedures to:

(1) Deny DoD grant and contract awards to all institutions

identified under Sec. 216.5 (a)(1)(i).

(2) Include appropriate terms or conditions in DoD grants and

contracts awarded to institutions of higher education, to make payments

under such awards contingent upon the institution's not being one so

identified.

(c) The Under Secretary of Defense (Comptroller)/Chief Financial

Officer shall implement procedures to stop payment of DoD funds through

contracts, grants, and other applicable agreements made by the DoD or

other Federal Agencies to applicable institutions identified under

Sec. 216.5(a)(1)(i).

(d) The Secretaries of the Military Departments shall:

(1) Identify institutions that, by policy or practice, deny

military recruiting personnel entry to the campus(es) of those

institutions, access to students, or access to student directory

information. When repeated requests to schedule recruiting visits or to

obtain student directory information are unsuccessful, the Military

Service concerned shall seek written confirmation of the institution's

present policy from the head of the institution through a letter of

inquiry. The sample letter in enclosure 1 shall be followed as closely

as possible. If written confirmation cannot be obtained, oral policy

statements or attempts to obtain such statements from an appropriate

official of the institution shall be documented.

(2) Evaluate the responses to the letter of inquiry and of such

other evidence obtained in accordance with this Part as may be

appropriate and submit to the ASD(FMP) the names and addresses of

institutions of higher education that are recommended to be declared

ineligible to receive funds available to the Department of Defense

under section 558 of the National Defense Authorization Act for Fiscal

Year 1995 and this Part. Full documentation shall be furnished to the

ASD(FMP) for each such institution, including the institution's formal

response to the letter of inquiry, or oral response or evidence showing

attempts to obtain written confirmation or an oral statement of the

institution's policies.

(e) The Heads of the DoD Components shall:

(1) Provide the ASD(FMP) with the names and addresses of

institutions:

(i) Identified as a result of implementing policies and procedures

promulgated under Sec. 216.5(a)(3)(ii).

(ii) that do not accept terms or conditions of a DoD grant or

contract specified under Sec. 215.5(b)(2).

(2) Take immediate action to deny DoD funds to institutions

identified under Sec. 216.5(a)(1)(i) and to restore eligibility of

institutions identified under Sec. 216.5(a)(2)(i).

Appendix A to Part 216--Sample Letter of Inquiry

Dr. John Doe

President

XYZ College

Anywhere, USA 12345-0123

Dear Dr. Doe: I understand that military recruiting personnel

are unable to recruit on the campus of XYZ College and have been

refused directory information on XYZ College students for military

recruiting by official policy of the College. Section 558 of Public

Law 103-337, the National Defense Authorization Act for Fiscal Year

1995, October 5, 1994, which is codified at 10 U.S.C. section 503

note, prohibits grant and [[Page 28052]] contract awards of DoD

funds to any institution of higher education that has a policy of

denying, or that effectively denies, military recruiting personnel

entry to campuses, access to students on campuses, or access to

directory information on students. DoD Directive 1322.13, ``Military

Recruiting at Institutions of Higher Education,'' codified at 32 CFR

part 216, implements section 558. A copy of section 558 and DoD

Directive 1322.13 is enclosed.

Under DoD Directive 1322.13, this letter provides you an

opportunity to clarify your institution's policy on military

recruiting on the campus of XYZ College. In this regard, I request

the official written policy of the institution about visits of

civilian employers (public or private) and military recruiting

personnel to the campus for recruiting college students, and access

to directory information on students.

Based on this information, a determination shall be made by the

Assistant Secretary of Defense for Force Management Policy as to

your institution's eligibility to receive DoD funds by grant or

contract. Should it be determined that XYZ College is not qualified

to receive such funds, all current programs requiring payment to XYZ

College shall be stopped, and it shall be ineligible to receive

future payments of DoD funds through grants, contracts, and other

applicable agreements.

I regret that this action may have to be taken. Successful

recruiting requires that the Department's recruiters have reasonable

access to students on the campuses of colleges and universities, and

at the same time to have effective relationships with the officials

and student bodies of these institutions. I hope it will be possible

for military recruiters to schedule recruiting visits at XYZ College

in the near future. I am available to answer any questions.

Sincerely,

Enclosures

Dated: May 22, 1995.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 95-13176 Filed 5-26-95; 8:45 am]

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