[Federal Register: October 9, 2008 (Volume 73, Number 197)]
[Rules and Regulations]               
[Page 59505-59509]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc08-12]                         

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 212

[DoD-2006-OS-0041; 0790-AI35]

 
Procedures and Support for Non-Federal Entities Authorized To 
Operate on Department of Defense (DoD) Installations

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule updates responsibilities and procedures to define 
and reestablish a framework for non-Federal entities (NFEs) (previously 
called ``private organizations'') authorized to operate on DoD 
installations. It requires the Heads of DoD Components to conduct 
periodic reviews of facilities, programs, services, and membership 
provisions of NFEs operating on DoD installations and authorizes 
installation commanders or higher authority to determine if an NFE 
detracts from DoD programs and to eliminate duplication. The rule also

[[Page 59506]]

identifies those NFEs having statutory authorization for particular 
support and restates DoD policy on sponsorship of NFEs by DoD personnel 
acting in an official capacity, specifically as it applies to 
chartering Boy Scout organizations authorized to operate on DoD 
installations.

DATES: Effective Date: This rule is effective November 10, 2008.

FOR FURTHER INFORMATION CONTACT: Pam Crespi, 703-602-5004.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule on October 2, 2007 (72 FR 56021-56025). Comments were 
received from the Boy Scouts of America.
    Comments: (1) Footnote 11 should be deleted as the district court 
ruling was reversed; (2) Other provisions of the Support Our Scouts Act 
make clear that Boy Scouts and certain other youth organizations are 
entitled to the same support from Federal agencies that they have 
traditionally received; and (3) Clarify support may be provided to 
groups that are non-traditional affiliates of the Boy Scouts such as 
the Exploring/Learning for Life Programs.
    Response: (1) Footnote 11 has been deleted; (2) Support for Youth 
Organizations and the authorities Section 1058 of Public Law 109-163 
(Note to Section 301 of title 5 U.S.C.) and Section 8126 of Public Law 
109-148 (Note to Section 101 of title 10 U.S.C. and Section 301 of 
title 5 U.S.C.) were added to Appendix A that lists the Non-Federal 
Entities Having Statutory Authorization For Particular Support; and (3) 
section 212.6(c)(4)(2) has been revised to read ``* * * DoD support to 
Boy Scouts or their official affiliates * * *''
    Also, minor administrative amendments have been made in this final 
rule to bring it into consistency with 32 CFR part 213.

Executive Order 12866, ``Regulatory Planning and Review''

    This regulatory action is not a significant regulatory action, as 
defined by Executive Order 12866 and does not:
    (1) Have an annual effect to the economy of $100 million or more or 
adversely affect in a material way the economy; a section 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 out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    This regulatory action does not contain a Federal mandate that may 
result in the expenditure by State, local and tribal governments, in 
aggregate, or by the private sector, of $100 million or more in any one 
year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    This regulatory action is not subject to the Regulatory Flexibility 
Act (5 U.S.C. 601) because it would not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
The rule establishes policy and assigns executive agent 
responsibilities but taken cumulatively, those changes would not have a 
significant impact on a substantial number of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This regulatory action does impose reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    This regulatory action does not have federalism implications, as 
set forth in Executive Order 13132. This rule does not have substantial 
direct effects on:
    1. The States;
    2. The relationship between the National Government and the States; 
or
    3. The distribution of power and responsibilities among the various 
levels of government.

List of Subjects in 32 CFR Part 212

    Armed forces, Foreign relations, Statistics, Taxes.

0
Accordingly, 32 CFR part 212 is revised to read as follows:

PART 212--PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES 
AUTHORIZED TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS

Sec.
212.1 Purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.

Appendix A to Part 212--Non-Federal Entities Having Statutory 
Authorization for Particular Support

    Authority: 5 U.S.C. 301; 10 U.S.C. 2554; 10 U.S.C. 2606; and 36 
U.S.C. 300110


Sec.  212.1  Purpose.

    This part:
    (a) Implements 32 CFR part 213.
    (b) Updates responsibilities and procedures to define and 
reestablish a framework for non-Federal entities authorized to operate 
on Department of Defense (DoD) installations.


Sec.  212.2  Applicability.

    (a) This part applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff 
and the Joint Staff, the Combatant Commands, the Office of Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the 
Department of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (2) Non-Federal entities authorized to operate on DoD 
installations.
    (b) This part shall not apply to:
    (1) Military relief societies.
    (2) Banks or credit unions according to 32 CFR part 230.
    (3) Support provided under Innovative Readiness Training according 
to DoD Directive 1100.20.\1\
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    \1\ Copies of unclassified DoD Directives, Instructions, 
Publications, and Administrative Instructions may be obtained at 
http://www.dtic.mil/whs/directives/.
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Sec.  212.3  Definitions.

    DoD installation: As used in this instruction, a base, camp, post, 
station, yard, center, homeport facility for any ship, or other 
activity under the jurisdiction of the Department of Defense, including 
any leased facility or, in the case of an activity in a foreign 
country, under the operational control of the Department of Defense. 
This term does not include any facility used primarily for civil works, 
rivers and harbor projects, or flood control projects.
    Non-Federal entities. A self-sustaining organization, incorporated 
or unincorporated, that is not an agency or instrumentality of the 
Federal government. This part addresses only those entities that 
operate on DoD installations with the express consent of the 
installation commander or higher authority. Membership of these 
organizations consists of individuals acting exclusively outside the 
scope of

[[Page 59507]]

any official capacity as officers, employees, or agents of the Federal 
Government. Non-Federal entities include a State, interstate, Indian 
tribal, or local government, as well as private organizations.
    United States. As used in this part, the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, the U.S. Virgin Islands, Guam, American 
Samoa, Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, 
Palmyra Island, Wake Island, and any other territory or possession of 
the United States, and associated navigable waters, including the 
territorial seas.


Sec.  212.4  Policy.

    It is DoD policy, consistent with 32 CFR part 213, that procedures 
be established for the operation of non-Federal entities on DoD 
installations to prevent official sanction, endorsement, or support by 
the DoD Components except as authorized in DoD 5500.7-R and applicable 
law. The Department recognizes that non-Federal entity support of 
Service members and their families can be important to their welfare. 
Non-Federal entities are not entitled to sovereign immunity and 
privileges accorded to Federal agencies and instrumentalities. The DoD 
Components shall take action to preclude unauthorized expenditures of 
appropriated funds, commissary surcharge, or nonappropriated funds 
(NAF) in support of these organizations.


Sec.  212.5  Responsibilities.

    (a) The Principal Deputy Under Secretary for Personnel and 
Readiness, under the Under Secretary of Defense for Personnel and 
Readiness and in coordination with the Deputy Under Secretary of 
Defense for Installations and Environment and subject to DoD Directive 
4165.6, shall be responsible for implementing policy and oversight of 
non-Federal entities on DoD installations.
    (b) The Heads of the DoD Components shall:
    (1) Implement this part.
    (2) Be aware of all non-Federal entities operating on installations 
under their jurisdiction.
    (3) Conduct reviews to ensure installation commanders periodically 
review facilities, programs, and services provided by non-Federal 
entities operating on DoD installations. Installation commanders will 
also review membership provisions and the original purpose for which 
each organization was originally approved. Substantial changes to those 
original conditions shall necessitate further review, documentation, 
and approval for continued permission to operate on the installation.


Sec.  212.6  Procedures.

    (a) To prevent the appearance of official sanction or support by 
the Department of Defense:
    (1) Non-Federal entities may not use the seals, logos, or insignia 
of the Department of Defense or any DoD Component, DoD organizational 
unit, or DoD installation on organization letterhead, correspondence, 
titles, or in association with organization programs, locations, or 
activities.
    (2) Non-Federal entities operating on DoD installations may use the 
name or abbreviation of the Department of Defense, a DoD Component, 
organizational unit, or installation in its name provided that its 
status as a non-Federal entity is apparent and unambiguous and there is 
no appearance of official sanction or support by the Department of 
Defense. The following applies:
    (i) The non-Federal entity must have approval from the appropriate 
DoD organization whose name or abbreviation is to be used before using 
the name or abbreviation.
    (ii) Any use of the name or abbreviation of a DoD Component, 
organizational unit, or installation must not mislead members of the 
public to assume a non-Federal entity is an organizational unit of the 
Department of Defense.
    (iii) A non-Federal entity must prominently display the following 
disclaimer on all print and electronic media mentioning the entity's 
name confirming that the entity is not a part of the Department of 
Defense: ``THIS IS A NON-FEDERAL ENTITY. IT IS NOT A PART OF THE 
DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT HAS NO 
GOVERNMENTAL STATUS.'' This disclaimer must also be provided in 
appropriate oral communications and public announcements when the name 
of the entity is used.
    (b) Activities of non-Federal entities covered by this part shall 
not in any way prejudice or discredit the DoD Components or other 
Federal Government agencies.
    (c) Subject to DoD Directive 4165.6 as it relates to real property, 
installation commanders shall approve written agreements that indicate 
permission to operate on the installation and any logistical support 
that will be provided. DoD personnel acting in an official capacity 
will not execute any charter that will serve as the legal basis for the 
non-Federal entity. The nature, function, and objectives of a non-
Federal entity covered by this part shall be delineated in articles of 
incorporation, a written constitution, bylaws, charters, articles of 
agreement, or other authorization documents before receiving approval 
from the installation commander to operate on the installation. That 
documentation shall also include:
    (1) Description of eligible membership in the non-Federal entity.
    (i) No person because of race, color, creed, sex, age, disability, 
or national origin shall be unlawfully denied membership, unlawfully 
excluded from participation, or otherwise subjected to unlawful 
discrimination by any non-Federal entity or other private organization 
covered by this part.
    (ii) Installation commanders will distribute information on 
procedures for individuals to follow when they suspect unlawful 
discrimination by the organization.
    (2) Designation of management responsibilities, including the 
accountability for assets, satisfaction of liabilities, disposition of 
any residual assets on dissolution, and other documentation that shows 
responsible financial management.
    (3) A certification indicating that members understand they are 
personally liable, as provided by law, if the assets of the non-Federal 
entity are insufficient to discharge all liabilities.
    (4) Guidance relating to professional scouting organizations 
operating at U.S. military installations located overseas can be found 
in DoD Instruction 1015.9.
    (i) In accordance with DoD 5500.7-R, which contains a policy on 
sponsorship of non-Federal entities by DoD personnel acting in an 
official capacity, DoD personnel acting in an official capacity shall 
not execute charters that serve as the legal basis for the creation of 
Boy Scouts organizations (including Boy Scouts, Cub Scout Packs, or 
Venturer Crews).
    (ii) In accordance with U.S. District Court for the Northern 
District of Illinois, Eastern Division, Decision No. 1999 CV 02424, 
while such chartering is not allowed, nothing in this part is intended 
to preclude, if otherwise authorized by law or regulation, DoD support 
to Boy Scouts or their official affiliates; Boy Scouts activities on 
DoD installations; or sponsorship of Boy Scout organizations by DoD 
personnel in their personal capacity. Existing charters executed by DoD 
personnel in their official capacity shall be terminated or amended to 
substitute sponsorship by an appropriate individual, volunteer, group, 
or

[[Page 59508]]

organization, consistent with DoD policy.\2\
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    \2\ Paragraph mandated by ``Partial Settlement Agreement Between 
Plaintiffs and Secretary Rumsfeld'', United States District Court 
for the Northern District of Illinois, Eastern Division, No. 1999 CV 
02424 (Eugene Winkler, et al., v. Chicago School Reform Board of 
Trustees, et al.)
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    (d) A non-Federal entity covered by this part shall not offer 
programs or services on DoD installations that compete with 
appropriated or NAF activities, but may, when specifically authorized, 
supplement those activities.
    (1) Installation commanders, or higher authorities if the 
installation commander has not been delegated such authority, will 
determine if the services of a non-Federal entity conflict with or 
detract from local DoD programs. The cognizant commander has 
discretionary authority over the operations of non-Federal entities on 
DoD installations. Commanders are authorized to eliminate duplication 
of services, particularly when these services compete with the 
installation's revenue-generating activities.
    (2) Background checks are required for employees and volunteers of 
non-Federal entities who have contact with children under the age of 18 
in DoD- operated, -contracted, or community-based programs that are 
used to supplement or expand child care or youth services, according to 
DoD Instruction 1402.5.
    (e) Non-Federal entities covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges, 
fees, or special assessment of members. There shall be no financial 
assistance to such an entity from a NAF Instrumentality (NAFI) in the 
form of contributions, repairs, services, dividends, or other donations 
of money or other assets. Fundraising and membership drives are 
governed by DoD 5500.7-R.
    (f) Non-Federal entities are not entitled to DoD support. However, 
support may be provided when it is consistent with and supportive of 
the military mission of the DoD Component concerned. Such support may 
be provided only when it can be offered within the capability of the 
installation commander without detriment to the commander's ability to 
fulfill the military mission, and when it is permitted under applicable 
Status of Forces Agreements. The DoD Components may provide logistical 
support to non-Federal entities with appropriated funds to the extent 
authorized by DoD 5500.7-R and applicable law. NAFI funds or assets 
shall not be directly or indirectly transferred to non-Federal entities 
according to DoD Instruction 1015.15.
    (g) Personal and professional participation in non-Federal entities 
by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in 
an official capacity will not execute charters that serve as the legal 
basis for any non-Federal entity or other private organization.
    (h) Neither appropriated fund activities nor NAFIs may assert any 
claim to the assets, or incur or assume any obligation, of any non-
Federal entity covered by this part, except as may arise out of 
contractual relationships or as provided by law. Property shall not be 
abandoned on the installation by a non-Federal entity and may only be 
acquired by the DoD installation by purchase or through donation agreed 
to by the Department of Defense.
    (i) The non-Federal entity shall have adequate insurance, as 
defined by the DoD Component concerned, to protect against liability 
and property damage claims or other legal actions that may arise due to 
its activities, those of its members, or the operation of its equipment 
or devices. The DoD Components will not assume liability (through 
insurance or other means) for any activities or assets of non-Federal 
entities.
    (j) Non-Federal entities shall comply with applicable fire and 
safety regulations; environmental laws; local, State, and Federal tax 
codes; and any other applicable statutes or regulations.
    (k) Income from a non-Federal entity or its activities shall not 
accrue to individual members of a non-Federal entity except through 
wages and salaries as employees of the non-Federal entity or as award 
recognition for services rendered to the non-Federal entity or military 
community. This prohibition is not meant to preclude operation of 
investment clubs, in which the investment of members' personal funds 
result in a return on investment directly and solely to the individual 
members.
    (l) Employees of non-Federal entities are not employees of the 
United States or of an instrumentality of the United States. Applicable 
laws on labor standards for employment shall be observed, including 
worker's compensation insurance. Employees of non-Federal entities 
shall not participate in NAF employee benefit programs based upon their 
affiliation with the non-Federal entity.
    (m) Non-Federal entities that have statutory authorization for 
particular support are listed at Appendix A to this part.
    (n) Certain unofficial activities conducted on DoD installations do 
not need formal authorization because of the limited scope of their 
activities. Examples are office coffee funds, flower funds, and similar 
small, informal activities and funds. The DoD Components shall 
establish the basis upon which such informal activities and funds shall 
operate.

Appendix A to Part 212--Non-Federal Entities Having Statutory 
Authorization for Particular Support

   Non-Federal Entities Having Statutory Authorization for Particular
                                 Support
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           Non-Federal entity                       Authority
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Certain banks and credit unions........  Chapter 1770 of title 12,
                                          United States Code (U.S.C.).
                                         Title 32, Code of Federal
                                          Regulations (CFR), part 230.
United Service Organization............  Section 220101 of title 36,
                                          U.S.C.
                                         Title 32, CFR, part 213.
                                         Memorandum of Understanding
                                          (MOU) between DoD and the
                                          United Service Organization.
Labor organizations....................  Title 5, U.S.C., Chapter 71.
                                         DoD 1400.25-M, subchapter 711.
Combined Federal Campaign..............  Executive Order 12353.
                                         Title 5, CFR, part 950.
                                         DoD Instruction 5035.1.
                                         DoD Instruction 5035.5.
American Registry of Pathology.........  Section 177 of title 10 U.S.C.
Henry M. Jackson Foundation for the      Section 178 of title 10 U.S.C.
 Advancement of Military Medicine.

[[Page 59509]]


American National Red Cross............  Section 2552 of title 10 U.S.C.
                                         Section 2602 of title 10 U.S.C.
                                         Secretary of The Army
                                          Memorandum. ``Support to the
                                          Red Cross During Times of
                                          Conflict''.
                                         Title 32, CFR, part 213.
                                         MOU between the Department of
                                          Justice and American Red
                                          Cross.
Boy Scouts Jamborees...................  Section 2554 of title 10 U.S.C.
Girl Scouts International Events         Section 2555 of title 10 U.S.C.
 (Transportation).
                                         DoD Instruction 1015.9.
Shelter for Homeless...................  Section 2556 of title 10 U.S.C.
National Military Associations;          Section 2558 of title 10 U.S.C.
 Assistance at National Conventions.
                                         DoD Directive 5410.18.
                                         DoD Instruction 5410.19.
National Veterans' Organizations (Beds   Section 2551 of title 10 U.S.C.
 and Barracks).
United Seamen's Service Organization...  Section 2604 of title 10 U.S.C.
                                         Title 32, CFR, part 213.
Scouting: Cooperation and Assistance in  Section 2606 of title 10 U.S.C.
 Foreign Areas.
                                         DoD Instruction 1015.9.
Civil Air Patrol.......................  Section 9441 of title 10 U.S.C.
                                         Section 9442 of title 10 U.S.C.
                                         Section 40301 of title 36
                                          U.S.C.
Assistance for certain youth and         Section 508 of title 32 U.S.C.
 charitable organizations.
                                         DoD Directive 1100.20.
Presidential Inaugural Ceremonies......  Section 2553 of title 10 U.S.C.
Specified Sporting Events (Olympics)...  Section 2564 of title 10 U.S.C.
                                         DoD Directive 2000.15.
Fire Protection Agreements.............  Section 1856 of title 42 U.S.C.
                                          et seq.
Armed Services Young Men's Christian     Section 2012 of title 10 U.S.C.
 Association.
                                         Section 2648 of title 10 U.S.C.
                                         Section 508 of title 32, U.S.C.
                                         MOU between DoD and the Armed
                                          Services YMCA.
Support for Youth Organizations........  Section 1058 of Public Law 109-
                                          163 (Note to Section 301 of
                                          title 5 U.S.C.).
                                         Section 8126 of Public Law 109-
                                          148 (Note to Section 101 of
                                          title 10 U.S.C. and Section
                                          301 of title 5 U.S.C.).
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    Dated: September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-23970 Filed 10-8-08; 8:45 am]

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