[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[From the U.S. Government Printing Office]



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                    32


          Part 800 to End

                         Revised as of July 1, 2002

National Defense





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                              [*COM005*emsp]




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
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      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 32:
    Subtitle A--Department of Defense (Continued)
          Chapter VII--Department of the Air Force                   5
    Subtitle B--Other Regulations Relating to National Defense
          Chapter XII--Defense Logistics Agency                    247
          Chapter XVI--Selective Service System                    313
          Chapter XVIII--National Counterintelligence Center       387
          Chapter XIX--Central Intelligence Agency                 425
          Chapter XX--Information Security Oversight Office, 
          National Archives and Records Administration             477
          Chapter XXI--National Security Council                   525
          Chapter XXIV--Office of Science and Technology 
          Policy                                                   535
          Chapter XXVII--Office for Micronesian Status 
          Negotiations                                             551
          Chapter XXVIII--Office of the Vice President of the 
          United States                                            561

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  Finding Aids:
      Table of CFR Titles and Chapters........................     575
      Alphabetical List of Agencies Appearing in the CFR......     593
      List of CFR Sections Affected...........................     603



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 806.1 refers 
                       to title 32, part 806, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2002, consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
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Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

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    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2002.



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                               THIS TITLE

    Title 32--National Defense is composed of six volumes. The parts in 
these volumes are arranged in the following order: parts 1-190, parts 
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to 
End. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2002.

    The current regulations issued by the Department of Defense appear 
in the volumes containing parts 1-189 and parts 190-399; those issued by 
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear 
in the volume containing parts 700-799, and those issued by the 
Department of the Air Force, Defense Logistics Agency, Selective Service 
System, National Counterintelligence Center, Central Intelligence 
Agency, Information Security Oversight Office, National Security 
Council, Office of Science and Technology Policy, Office for Micronesian 
Status Negotiations, and Office of the Vice President of the United 
States appear in the volume containing parts 800 to end.

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                        TITLE 32-NATIONAL DEFENSE




                  (This book contains part 800 to End)

  --------------------------------------------------------------------
                                                                    Part

              SUBTITLE A--Department of Defense (Continued)

chapter vii--Department of the Air Force....................         806

       SUBTITLE B--Other Regulations Relating to National Defense

chapter xii--Defense Logistics Agency.......................        1280

chapter xvi-- Selective Service System......................        1602

chapter xviii-- National Counterintelligence Center.........        1800

chapter xix-- Central Intelligence Agency...................        1900

chapter xx-- Information Security Oversight Office, National 
  Archives and Records Administration.......................        2001

chapter xxi-- National Security Council.....................        2102

chapter xxiv-- Office of Science and Technology Policy......        2400

chapter xxvii-- Office for Micronesian Status Negotiations..        2700

chapter xxviii-- Office of the Vice President of the United 
  States....................................................        2800

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              Subtitle A--Department of Defense (Continued)

  --------------------------------------------------------------------


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                CHAPTER VII--DEPARTMENT OF THE AIR FORCE




  --------------------------------------------------------------------

                      SUBCHAPTER A--ADMINISTRATION
Part                                                                Page
800             [Reserved]

806             Air Force Freedom of Information Act program           7
806b            Air Force Privacy Act program...............          36
807             Sale to the public..........................          56
809a            Installation entry policy, civil disturbance 
                    intervention and disaster assistance....          57
                    SUBCHAPTER B--SALES AND SERVICES
811             Release, dissemination, and sale of visual 
                    information materials...................          61
813             Visual information documentation program....          63
                SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
                   SUBCHAPTER D--CLAIMS AND LITIGATION
841             Licensing government-owned inventions in the 
                    custody of the Department of the Air 
                    Force...................................          66
842             Administrative claims.......................          71
845             Counsel fees and other expenses in foreign 
                    tribunals...............................         115
                    SUBCHAPTER E-SECURITY [RESERVED]
                         SUBCHAPTER F--AIRCRAFT
855             Civil aircraft use of United States Air 
                    Force airfields.........................         119

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861             Department of Defense commercial air carrier 
                    quality and safety review program.......         143
             SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL
865             Personnel Review boards.....................         152
                         SUBCHAPTER H [RESERVED]
                    SUBCHAPTER I--MILITARY PERSONNEL
881             Determination of active military service and 
                    discharge for civilian or contractual 
                    groups..................................         179
884             Delivery of personnel to United States 
                    civilian authorities for trial..........         181
887             Issuing of certificates in lieu of lost or 
                    destroyed certificates of separation....         187
888-888g         [Reserved]

               SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]
               SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS
901             Appointment to the United States Air Force 
                    Academy.................................         190
903             Air Force Academy Preparatory School........         199
                       SUBCHAPTERS L-M [RESERVED]
            SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS
935             Wake Island Code............................         204
              SUBCHAPTER O-SPECIAL INVESTIGATION [RESERVED]
                       SUBCHAPTERS P-S [RESERVED]
                 SUBCHAPTER T--ENVIRONMENTAL PROTECTION
989             Environmental impact analysis process (EIAP)         220

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                      SUBCHAPTER A--ADMINISTRATION



                           PART 800 [RESERVED]



PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




Sec.
806.1  Summary of revisions.
806.2  Applicability.
806.3  Public information.
806.4  Definitions.
806.5  Responsibilities.
806.6  Prompt action on requests.
806.7  Use of exemptions.
806.8  Description of requested record.
806.9  Referrals.
806.10  Records management.
806.11  FOIA reading rooms.
806.12  Record availability.
806.13  5 U.S.C. 552 (a)(2) materials.
806.14  Other materials.
806.15  FOIA exemptions.
806.16  For official use only.
806.17  Release and processing procedures.
806.18  Initial determinations.
806.19  Reasonably segregable portions.
806.20  Records of non-U.S. government source.
806.21  Appeals.
806.22  Time limits.
806.23  Delay in responding to an appeal.
806.24  Fee restrictions.
806.25  Annual report.
806.26  Addressing FOIA requests.
806.27  Samples of Air Force FOIA processing documents.
806.28  Records with special disclosure procedures.
806.29  Administrative processing of Air Force FOIA requests.
806.30  FOIA exempt information examples.
806.31  Requirements of 5 U.S.C. 552(b)(4) to submitters of 
          nongovernment contract-related information.

Appendix A To Part 806--References
Appendix B To Part 806--Abbreviations and Acronyms
Appendix C To Part 806--Terms

    Authority: 5 U.S.C. 552.

    Source: 64 FR 72808, Dec. 28, 1999, unless otherwise noted.



Sec. 806.1  Summary of revisions.

    This part makes this guidance an Air Force supplement to the DoD 
regulation at 32 CFR part 286. It transfers responsibility for the Air 
Force Freedom of Information Act (FOIA) Program from the Office of the 
Secretary of the Air Force (SAF/AAI) to Headquarters United States Air 
Force (HQ USAF/SC) and Headquarters Air Force Communications and 
Information Center/Corporate Information Division (HQ AFCIC/ITC); 
contains significant changes and additions to implement the Electronic 
Freedom of Information Act (EFOIA) Amendments of 1996; addresses 
electronic records; increases time limits to 20 working days; adds 
procedures for multiple tracking and expedited processing of requests; 
changes annual report date and content; adds major command (MAJCOM) 
inspectors general (IG), MAJCOM Directors of Inquiries (IGQ), and wing 
commanders as initial denial authorities (IDAs).



Sec. 806.2  Applicability.

    A list of Air Force MAJCOMs, field operating agencies (FOAs), and 
Direct Reporting Units (DRUs) is at Sec. 806.26.



Sec. 806.3  Public information.

    (a) Functional requests. Air Force elements may receive requests for 
government information or records from the public that do not refer to 
the FOIA. Often these requests are sent to a public affairs office (PAO) 
or a specific unit. All releases of information from Air Force records, 
whether the requester cites the FOIA or not, must comply with the 
principles of the FOIA and this part. If the requested material contains 
personal privacy information that the Air Force must withhold, it is 
particularly important to handle that ``functional'' request as a 
request under the FOIA and coordinate it with the appropriate FOIA 
office and an Air Force attorney. Regardless of the nature of the 
functional request, if the responding element denies the release of 
information from Air Force records, then control the request as a FOIA 
and follow FOIA denial procedures for records withheld (cite the 
pertinent FOIA exemption and give the requester FOIA appeal rights).
    (b) HQ AFCIC/ITC will make the Air Force handbook and guide for 
requesting records available on the World Wide Web (WWW) from Air 
ForceLINK,

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at http://www.foia.af.mil/handbook.htm.



Sec. 806.4  Definitions.

    (a) Electronic reading room (ERR). Rooms established on Internet web 
sites for public access to FOIA-processed (a)(2)(D) records.
    (b) FOIA request. This includes FOIA requests made by members of 
Congress either on their own behalf or on behalf of one of their 
constituents. Process FOIA requests from members of Congress in 
accordance with this Air Force supplement. Air Force-affiliated 
requesters, to include military and civilian employees, should not use 
government equipment, supplies, stationery, postage, telephones, or 
official mail channels to make FOIA requests.
    (1) Simple requests can be processed quickly with limited impact on 
the responding units. The request clearly identifies the records with no 
(or few) complicating factors involved. There are few or no responsive 
records. Only one installation is involved and there are no outside 
Office of Primary Responsibility (OPRs). There are no classified or 
nongovernment records. No deliberative process/privileged materials are 
involved. The responsive records contain no (or limited) personal 
privacy information and do not come from a Privacy Act system of 
records. No time extensions are anticipated.
    (2) Complex requests take substantial time and cause significant 
impact on responding units. Complications and delays are likely. Records 
sought are massive in volume. Multiple organizations must review/
coordinate on requested records. Records are classified; originated with 
a nongovernment source; are part of the Air Force's decision-making 
process; or are privileged.
    (c) Government Information Locator Service (GILS). GILS is an 
automated on-line card catalog of publicly accessible information. The 
Office of Management and Budget (OMB) Bulletin 95-01, December 7, 1994, 
and OMB Memorandum, February 6, 1998, mandates that all federal agencies 
create a GILS record for information available to the public. The DoD 
GILS resides on DefenseLINK, the official DoD home page, at ``http://
www.defenselink.mil/locator/index.html.''
    (d) Initial denial authority. Only approved IDAs may deny all or 
parts of records. FOIA managers may: initially deny fee category claims, 
requests for expedited processing, and waiver or reduction of fees; 
review fee estimates; and sign ``no records'' responses. IDAs are the 
deputy chiefs of staff and chiefs of comparable offices or higher at HQ 
USAF and Secretary of the Air Force (SAF), and MAJCOM commanders. Deputy 
Chiefs of Staff and chiefs of comparable offices or higher at HQ USAF 
and SAF may name one additional position as denial authority. MAJCOM 
commanders may appoint two additional positions at the headquarters and 
also the wing commander at base level. MAJCOM IGs and MAJCOM Directors 
of Inquiries (IGQ) may act as IDAs for IG records. MAJCOM FOIA managers 
must notify HQ AFCIC/ITC in writing (by facsimile, e-mail, or regular 
mail) of IDA position titles. Send position titles only--no names. HQ 
AFCIC/ITC sends SAF/IGQ a copy of the correspondence designating IDA 
positions for IG records. When the commander changes the IDA designee 
position, MAJCOM FOIA managers will advise HQ AFCIC/ITC immediately. In 
the absence of the designated IDA, the individual filling/assuming that 
position acts as an IDA, however; all denial documentation must reflect 
the position title of the approved or designated IDA, even if in an 
acting capacity (for example, Acting Director of Communications and 
Information, Headquarters Air Combat Command).
    (e) Office of primary responsibility (OPR). A DoD element that 
either prepared, or is responsible for, records identified as responsive 
to a FOIA request. OPRs coordinate with the office of corollary 
responsibility (OCR) and FOIA managers to assist IDAs in making 
decisions on FOIA requests.
    (f) OCR. A DoD element with an official interest in, and/or 
collateral responsibility for, the contents of records identified as 
responsive to a FOIA request, even though those records were either 
prepared by, or are the primary responsibility of, a different DoD 
element. OCRs coordinate with OPRs and

[[Page 9]]

FOIA managers to assist IDAs in making decisions on FOIA requests.
    (g) Appellate authority. The SAF has designated the Deputy General 
Counsel, Fiscal, Ethics, and Civilian Personnel (SAF/GCA) as the FOIA 
appellate authority.
    (h) Reading room. Any place where a member of the public may view 
FOIA records.



Sec. 806.5  Responsibilities.

    (a) The Director, Communications and Information (HQ USAF/SC) has 
overall responsibility for the Air Force FOIA Program. The Corporate 
Information Division (HQ AFCIC/ITC) administers the procedures necessary 
to implement the Air Force FOIA Program, submits reports to the 
Director, Freedom of Information and Security Review (DFOISR), and 
provides guidance and instructions to MAJCOMs. Responsibilities of other 
Air Force elements follow.
    (b) SAF/GCA makes final decisions on FOIA administrative appeals.
    (c) Installation commanders will: Comply with FOIA electronic 
reading room (ERR) requirements by establishing a FOIA site on their 
installation public web page and making frequently requested records 
(FOIA-processed (a)(2)(D)) records available through links from that 
site, with a link to the Air Force FOIA web page at http://
www.foia.af.mil. See Sec. 806.12(c).
    (d) MAJCOM commanders implement this instruction and appoint a FOIA 
manager, in writing. Send the name, phone number, office symbol, and e-
mail address to HQ AFCIC/ITC, 1250 Air Force Pentagon, Washington, DC 
20330-1250.
    (e) Air Force attorneys review FOIA responses for legal sufficiency, 
provide legal advice to OPRs, disclosure authorities, IDAs, and FOIA 
managers, and provide written legal opinions when responsive records (or 
portions of responsive records) are withheld. Air Force attorneys ensure 
factual and legal issues raised by appellants are considered by IDAs 
prior to sending the FOIA appeal files to the Secretary of the Air 
Force's designee for final action.
    (f) Disclosure authorities and IDAs apply the policies and guidance 
in this instruction, along with the written recommendations provided by 
staff elements, when considering what decisions to make on pending FOIA 
actions. Where any responsive records are denied, the IDA tells the 
requesters the nature of records or information denied, the FOIA 
exemption supporting the denial, the reasons the records were not 
released, and gives the requester the appeal procedures. In addition, on 
partial releases, IDAs must ensure requesters can see the placement and 
general length of redactions with the applicable exemption indicated. 
This procedure applies to all media, including electronic records. 
Providing placement and general length of redacted information is not 
required if doing so would harm an interest protected by a FOIA 
exemption. When working FOIA appeal actions for the appellate authority 
review:
    (1) IDAs grant or recommend continued denial (in full or in part) of 
the requester's appeal of the earlier withholding of responsive records, 
or adverse determination (for example, IDAs may release some or all of 
the previously denied documents).
    (2) IDAs reassess a request for expedited processing due to 
demonstrated compelling need, overturning or confirming the initial 
determination made by the FOIA manager.
    (3) When an IDA denies any appellate action sought by a FOIA 
requester, the IDA, or MAJCOM FOIA manager (for no record, fee, fee 
estimates, or fee category appeals) will indicate in writing that the 
issues raised in the FOIA appeal were considered and rejected (in full 
or in part). Include this written statement in the file you send to the 
Secretary of the Air Force in the course of a FOIA appeal action. Send 
all appeal actions through the MAJCOM FOIA office.
    (g) OPRs:
    (1) Coordinate the release or denial of records requested under the 
FOIA with OCRs, FOIA offices, and with Air Force attorneys on proposed 
denials.
    (2) Provide requested records. Indicate withheld parts of records 
annotated with FOIA exemption. Ensure requesters can see the placement 
and general length of redactions. This procedure applies to all media, 
including

[[Page 10]]

electronic records. Providing placement and general length of redacted 
information is not required if doing so would harm an interest protected 
by a FOIA exemption.
    (3) Provide written recommendations to the disclosure authority to 
determine whether or not to release records, and act as declassification 
authority when appropriate.
    (4) Make frequently requested records (FOIA-processed (a)(2)(D)) 
available to the public in the FOIA ERR via the Internet. As required by 
AFIs 33-129, Transmission of Information Via the Internet, and 35-205, 
Air Force Security and Policy Review Program, OPRs request clearance of 
these records with the PAO before posting on the WWW, and coordinate 
with JA and FOIA office prior to posting. The FOIA manager, in 
coordination with the functional OPR or the owner of the records, will 
determine qualifying records, after coordination with any interested 
OCRs.
    (5) Complete the required GILS core record for each FOIA-processed 
(a)(2)(D) record.
    (6) Manage ERR records posted to the installation public web page by 
updating or removing them when no longer needed. Software for tracking 
number of hits may assist in this effort.
    (h) FOIA managers:
    (1) Ensure administrative correctness of all FOIA actions processed.
    (2) Control and process FOIA requests.
    (3) Obtain recommendations from the OPR for records.
    (4) Prepare or coordinate on all proposed replies to the requester. 
FOIA managers may sign replies to requesters when disclosure authorities 
approve the total release of records. If the MAJCOM part directs the OPR 
to prepare the reply, the OPR will coordinate their reply with the FOIA 
office.
    (5) Make determinations as to whether or not the nature of requests 
are simple or complex where multitrack FOIA request processing queues 
exist.
    (6) Approve or initially deny any requests for expedited processing.
    (7) Provide interim responses to requesters, as required.
    (8) Provide a reading room for inspecting and copying records.
    (9) Provide training.
    (10) Review publications for compliance with this part.
    (11) Conduct periodic program reviews.
    (12) Approve or deny initial fee waiver requests.
    (13) Make the initial decision on chargeable fees.
    (14) Collect fees.
    (15) Send extension notices.
    (16) Submit reports.
    (17) Sign ``no record'' responses.
    (18) Provide the requester the basis for any adverse determination 
(i.e., no records, fee denials, fee category determinations, etc.) in 
enough detail to permit the requester to make a decision whether or not 
to appeal the actions taken, and provide the requester with appeal 
procedures.
    (i) On appeals, FOIA managers:
    (1) Reassess a fee category claim by a requester, overturning or 
confirming the initial determination.
    (2) Reassess a request for expedited processing due to demonstrated 
compelling need, overturning or confirming the initial determination.
    (3) Reassess a request for a waiver or reduction of fees, 
overturning or confirming the initial determination.
    (4) Review a fee estimate, overturning or confirming the initial 
determination.
    (5) Confirm that no records were located in response to a request.
    (j) The base FOIA manager acts as the FOIA focal point for the FOIA 
site on the installation web page.
    (k) When any appellate action sought by a FOIA requester is denied 
by an IDA or FOIA manager for authorized actions, the IDA or FOIA 
manager will indicate, in writing, that the issues raised in the FOIA 
appeal were considered and rejected (in full or in part). Include this 
written statement in the file you send to the Secretary of the Air Force 
in the course of a FOIA appeal action. Send all appeal actions through 
the MAJCOM FOIA office.



Sec. 806.6  Prompt action on requests.

    (a) Examples of letters to FOIA requesters (e.g., response 
determinations and interim responses) are included in Sec. 806.27.
    (b) Multitrack processing. (1) Examples of letters to FOIA 
requesters (e.g.,

[[Page 11]]

letters to individuals who have had their FOIA request placed in the 
complex track) are included in Sec. 806.27.
    (2) Simple requests can be processed quickly, with limited impact on 
the responding units. The request clearly identifies the records with no 
(or few) complicating factors involved. There are few or no responsive 
records, only one installation is involved, there are no outside OPRs, 
no classified or nongovernment records, no deliberative process/
privileged materials are involved, records contain no (or limited) 
personal privacy information/did not come from Privacy Act systems of 
records concerning other individuals, or time extensions not 
anticipated.
    (c) Complex requests will take substantial time, will cause 
significant impact on responding units. Complications and delays are 
likely. Records sought are massive in volume, multiple organizations 
must review/coordinate on records, records are classified, records 
originated with a nongovernment source, records were part of the Air 
Force's decision-making process or are privileged.
    (d) Expedited processing. Examples of letters to individuals whose 
FOIA requests and/or appeals were not expedited are included in 
Sec. 806.27.



Sec. 806.7  Use of exemptions.

    (a) A listing of some AFIs that provide guidance on special 
disclosure procedures for certain types of records is provided in 
Sec. 806.28. Refer to those instructions for specific disclosure 
procedures. Remember, the only reason to deny a request is a FOIA 
exemption.
    (b) Refer requests from foreign government officials that do not 
cite the FOIA to your foreign disclosure office and notify the 
requester.
    (c) If you have a non-U.S. Government record, determine if you need 
to consult with the record's originator before releasing it (see 
Sec. 806.9 and Sec. 806.15(c)). This includes records created by foreign 
governments and organizations such as North Atlantic Treaty Organization 
(NATO) and North American Aerospace Defense (NORAD). You may need to 
coordinate release of foreign government records with either the U.S. 
Department of State or with the specific foreign embassy, directly 
through the MAJCOM FOIA office. Coordinate release or denial of letters 
of offer and acceptance (LOA) with SAF/IA through 11 CS/SCSR (FOIA), 
1000 Air Force Pentagon, Washington DC 20330-1000.



Sec. 806.8  Description of requested record.

    Air Force elements must make reasonable efforts to find the records 
described in FOIA requests. Reasonable efforts means searching all 
activities and locations most likely to have the records, and includes 
staged or retired records, as well as complete and thorough searches of 
relevant electronic records, such as databases, word processing, and 
electronic mail files.



Sec. 806.9  Referrals.

    (a) Send all referrals through the FOIA office. The receiving FOIA 
office must agree to accept the referral before transfer. The FOIA 
office will provide the name, phone number, mailing address, and e-mail 
address of both the FOIA office point of contact and the record OPR 
point of contact in their referral letter. Include the requested record. 
If the requested records are massive, then provide a description of 
them. Referrals to, or consultations with, DFOISR are accomplished from 
the MAJCOM level. Section 806.27 has an example of a referral memo.
    (b) In some cases, requested records are available from the GPO and 
NTIS, 5285 Port Royal Road, Springfield VA 22161. These organizations 
offer certain records for sale to the public.     Current standard 
releasable Air Force publications are available electronically on the 
WWW at http://afpubs.hq.af.mil/. For requesters without electronic 
access, NTIS has paper copies for sale. Give requesters the web address 
or NTIS address when appropriate. However, if the requester prefers to 
pursue the FOIA process, consult with HQ AFCIC/ITC through the MAJCOM. 
Refer FOIA requests for Air Force publications that are classified, 
FOUO, rescinded, or superseded to the OPR through the appropriate FOIA 
office.

[[Page 12]]



Sec. 806.10  Records management.

    Keep records that were fully released for 2 years and denied records 
for 6 years. Include in the 6-year record file copies of records or 
parts of records that were released in response to the same request. 
Refer to Air Force Manual (AFMAN) 37-139, Records Disposition Schedule 
(converting to AFMAN 33-339, see Sec. 806.9(b)). The functional OPR or 
FOIA office may keep the records released or denied. The FOIA office 
keeps the FOIA case file for each request. The FOIA case file consists 
of: the initial request; tasking to OPRs; OPR's reply; memoranda for 
record (MFR) of phone calls or other actions related to the FOIA 
request; DD Forms 2086, Record of Freedom of Information (FOI) 
Processing Cost, or 2086-1, Record of Freedom of Information (FOI) 
Processing Cost for Technical Data; final response; and any of the 
following, if applicable: extension letter; legal opinions; submitter 
notification letters and replies; the appeal and required attachments 
(except for the released or denied records if maintained by the OPR); 
and all other correspondence to and from the requester.



Sec. 806.11  FOIA reading rooms.

    Each FOIA office will arrange for a reading room where the public 
may inspect releasable records. You do not need to co-locate the reading 
room with the FOIA office. The FOIA does not require creation of a 
reading room dedicated exclusively to this purpose. A ``reading room'' 
is any location where a requester may review records. For FOIA-processed 
(a)(3) records, if requesters meet the criteria for search and review 
costs, they must be paid before inspecting records. Assess reproduction 
costs at the time of inspection, if appropriate.



Sec. 806.12  Record availability.

    (a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2) 
materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the public. 
Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records (``FOIA-
processed (a)(2)(D) records''--records which they determine will, or 
have become, the subject of frequent or subsequent requests) available 
to the public in a reading room in hard copy and electronically by 
posting it to their appropriate web site. There is no requirement to 
make all FOIA-released records available electronically. The FOIA 
manager, in coordination with the functional OPR, or the owner of the 
records, determines qualifying records, after coordination with any 
interested OCRs. As required by AFIs 33-129 and 35-205, OPRs request 
clearance of these records with the PAO before posting on the WWW.
    (b) Normally, if the FOIA office or OPR receives, or anticipates 
receiving, five or more requests for the same record in a quarter, they 
will consider it a frequently requested record (FOIA-processed (a)(2)(D) 
record) and make it publicly available in hard copy and electronically 
as outlined in Sec. 806.12(a). OPRs may elect to make other records 
publicly available if they receive, or expect to receive, less than five 
requests a quarter. The purpose is to make records available in an ERR 
to potential future FOIA requesters instead of waiting to receive a FOIA 
request, and reduce the number of multiple FOIA requests for the same 
records requiring separate responses. In making these determinations, 
recognize there are some situations in which a certain type of record 
becomes the subject of simultaneous FOIA requests from all interested 
parties and then ceases to be of interest. Activities may typically 
receive a ``flurry'' of FOIA requests for contract records immediately 
after a contract is awarded, but do not receive any subsequent requests 
for such bulky records after that point. In some cases, activities may 
decide that placing records in the ERR would not serve the statutory 
purpose of ``diverting some potential FOIA requests for previously 
released records.'' The following types of records should be considered 
for inclusion in the ERR (excluding individuals assigned to overseas, 
sensitive, and routinely deployable units): organizational charts and 
limited staff directories; lists of personnel reassigned with gaining 
base; MAJCOM FOIA supplements; lists of International Merchant Purchase 
Authority Card (IMPAC) card holders. Do not post lists of e-mail 
addresses.

[[Page 13]]

    (c) GILS. Each activity that posts FOIA-processed (a)(2)(D) records 
(records which they determine will, or have become, the subject of 
frequent or subsequent requests) must create a GILS record for each 
FOIA-processed (a)(2)(D) record and post it to DefenseLINK. The OPR 
prepares the GILS record. You can complete and submit a GILS record on-
line using a web browser. Instructions for completing the GILS record, 
and an on-line form are at http://www.defenselink.mil/locator/
index.html. Follow the steps listed on the web page. The GILS site on 
DefenseLINK will serve as the central index of Air Force FOIA-processed 
(a)(2)(D) records.
    (d) In addition, installations will post a list, or index, of 
locally produced FOIA-processed (a)(2)(D) records on their web page at 
their FOIA site. Each listing will point or link to the particular 
record. In addition, MAJCOMs may choose to post their own index of 
MAJCOM specific FOIA-processed (a)(2)(D) records to their appropriate 
web site. Installation web pages will include the following phrase (or 
similar words) on their FOIA site if they do not have any frequently 
requested FOIA records: ``There are no frequently requested FOIA records 
to post at this time.'' Include the following statement, or a similar 
one, on the installation web page with the records: ``Some records are 
released to the public under the FOIA, and may therefore reflect 
deletion of some information in accordance with the FOIA's nine 
statutory exemptions. A consolidated list of such records is on 
DefenseLINK.'' Link the word ``DefenseLINK'' to www.defenselink.mil/
locator/fpr--index.html. Qualifying releasable records with exempt 
information redacted must show on the record the amount of information 
withheld and the exemption reason (for example, (b)(6)). Activities with 
such records should provide the public an index and explanation of the 
FOIA exemptions. All installation FOIA pages will include a link to the 
Air Force page.
    (e) FOIA web pages should be clearly accessed from the main 
installation page, either by a direct link to ``FOIA'' or ``Freedom of 
Information Act'' from the main page, or found under a logical heading 
such as ``Library'' or ``Sites.''



Sec. 806.13  5 U.S.C. 552(a)(2) materials.

    The GILS records on DefenseLINK will serve as the index for 5 U.S.C. 
552(a)(2)(D) materials.



Sec. 806.14  Other materials.

    HQ AFCIC/ITC makes the appropriate FOIA-processed (a)(1) materials 
available for the Air Force.



Sec. 806.15  FOIA exemptions.

    (a) Exemption number 1. When a requester seeks records that are 
classified, or should be classified, only an initial classification 
authority, or a declassification authority, can make final 
determinations with respect to classification issues. The fact that a 
record is marked with a security classification is not enough to support 
withholding the document; make sure it is ``properly and currently 
classified.'' Review the record paragraph by paragraph for releasable 
information. Review declassified and unclassified parts before release 
to see if they are exempt by other exemptions. Before releasing a 
reviewed and declassified document, draw a single black line through all 
the classification markings so they are still legible and stamp the 
document unclassified. If the requested records are ``properly and 
currently classified,'' and the Air Force withholds from release under 
FOIA exemption (b)(1), and the requester appeals the withholding, 
include a written statement from an initial classification authority or 
declassification authority certifying the data was properly classified 
originally and that it remains properly classified per Executive Order. 
Examples of initial classification and declassification authority 
statements are included in Sec. 806.27. Guidance on document 
declassification reviews is in AFI 31-401, Managing the Information 
Security Program, and DoD 5200.1-R, Information Security Program, 
January 1997.
    (b) Exemption number 3. HQ AFCIC/ITC will provide the current FOIA-
processed (b)(3) statutes list to the MAJCOMs.
    (c) Exemption number 4. The Air Force, in compliance with Executive 
Order 12600, will advise submitters of

[[Page 14]]

contractor-submitted records when a FOIA requester seeks the release of 
such records, regardless of any initial determination of whether FOIA 
exemption (b)(4) applies. (See Sec. 806.20(a) and Sec. 806.31). Due to a 
change to Title 48 CFR, Federal Acquisition Regulations System, 
submitter notification is not required prior to release of unit prices 
contained in contracts awarded based upon solicitations issued after 
January 1. 1998. For solicitations issued before January 1, 1998, 
conduct a normal submitter notice. Unit prices contained in proposals 
provided prior to contract award are protected from release, as are all 
portions of unsuccessful proposals (before and after contract award) (10 
U.S.C. 2305(g), Prohibition on Release of Contractor Proposals).
    (d) Exemption number 5. (1) Attorney-client records could include, 
e.g., when a commander expresses concerns in confidence to his or her 
judge advocate and asks for a legal opinion. The legal opinion and 
everything the commander tells the judge advocate in confidence qualify 
under this privilege. Unlike deliberative process privilege, both facts 
and opinions qualify under the attorney work product or attorney-client 
privilege. Attorney work product records are records an attorney 
prepares, or supervises the preparation of, in contemplating or 
preparing for administrative proceedings or litigation.
    (2) Based on court decisions in FOIA litigation, which led to the 
release of results of personnel surveys, FOIA managers and IDAs should 
get advice from an Air Force attorney before withholding survey results 
under FOIA exemption (b)(5).
    (e) Exemption number 6. (1) AFI 37-132, Air Force Privacy Act 
Program (will convert to AFI 33-332) provides guidance on collecting and 
safeguarding social security numbers (SSN). It states: ``SSNs are 
personal and unique to each individual. Protect them as FOUO. Do not 
disclose them to anyone without an official need to know.'' Before 
releasing an Air Force record to a FOIA requester, delete SSNs that 
belong to anyone other than the requester. In any subsequent FOIA 
release to a different requester of those same records, make sure SSNs 
are deleted. When feasible, notify Air Force employees when someone 
submits a FOIA request for information about them. The notification 
letter should include a brief description of the records requested. Also 
include a statement that only releasable records will be provided and we 
will protect personal information as required by the FOIA and Privacy 
laws.
    (2) Personal information may not be posted at publicly accessible 
DoD web sites unless to do so is clearly authorized by law and 
implementing regulation and policy. Personal information should not be 
posted at nonpublicly accessible web sites unless it is mission 
essential and appropriate safeguards have been established. See also 
AFIs 33-129 and 35-205.
    (3) Withhold names and duty addresses of personnel serving overseas 
or in sensitive or routinely deployable units. Routinely deployable 
units normally leave their permanent home stations on a periodic or 
rotating basis for peacetime operations or for scheduled training 
exercises conducted outside the United States or United States 
territories. Units based in the United States for a long time, such as 
those in extensive training or maintenance activities, do not qualify 
during that period. Units designated for deployment on contingency plans 
not yet executed and units that seldom leave the United States or United 
States territories (e.g., annually or semiannually) are not routinely 
deployable units. However, units alerted for deployment outside the 
United States or United States territories during actual execution of a 
contingency plan or in support of a crisis operation qualify. The way 
the Air Force deploys units makes it difficult to determine when a unit 
that has part of its personnel deployed becomes eligible for denial. The 
Air Force may consider a unit deployed on a routine basis or deployed 
fully overseas when 30 percent of its personnel have been either alerted 
or actually deployed. In this context, alerted means that a unit has 
received an official written warning of an impending operational mission 
outside the United States or United States territories. Sensitive units 
are those involved in special activities or classified missions, 
including, for example,

[[Page 15]]

intelligence-gathering units that collect, handle, dispose of, or store 
classified information and materials, as well as units that train or 
advise foreign personnel.
    (i) Each MAJCOM and FOA will establish a system and assign OPRs to 
identify United States-based units in their command qualifying for the 
``sensitive or routinely deployable unit'' designation, under this 
exemption. Appropriate OPRs could include directors of operations, plans 
and programs, and personnel.
    (ii) MAJCOM FOIA managers will ensure the list of sensitive and 
routinely deployable units is reviewed in January and July, and will 
follow that review with a memo to the Air Force Personnel Center (HQ 
AFPC/MSIMD), 550 C Street West, Suite 48, Randolph AFB, TX 78150-4750, 
either validating the current list or providing a revised listing based 
on the current status of deployed units at that time. This listing is in 
American Standard Code for Information Interchange (ASCII) format on a 
3\1/2\'' (double-sided, high-density) diskette, which contains the 
unit's eight-position personnel accounting symbol (PAS) code, with one 
PAS code per line (record) (8-byte record). The MAJCOM FOIA manager will 
send an electronic copy of the list of nonreleasable units to HQ AFPC/
MSIMD which is included in the personnel data system. The MAJCOM and HQ 
AFPC FOIA offices will use it to determine releasable lists of names and 
duty addresses. This reporting requirement is exempt from licensing with 
a reports control symbol (RCS) in accordance with AFI 37-124, The 
Information Collections and Reports Management Program; Controlling 
Internal, Public, and Interagency Air Force Information Collections 
(will convert to AFI 33-324).
    (f) Exemption number 7. Guidance provided in Sec. 806.15(e)(1) also 
applies to SSNs in records compiled for law enforcement purposes. Do not 
disclose SSNs to anyone without an official need to know.



Sec. 806.16  For official use only.

    (a) Markings. Record owners may also add the following sentence to 
the statement above: ``(Further distribution is prohibited without the 
approval of (owner's organization, office symbol, phone).)''
    (b) Dissemination and transmission. (1) When deciding whether to 
send FOUO records over facsimile equipment, balance the sensitivity of 
the records against the risk of disclosure. When faxing, use cover 
sheets to indicate FOUO attachments (i.e., AF Form 3227, Privacy Act 
Cover Sheet, for Privacy Act information). Consider the location of 
sending and receiving machines and ensure authorized personnel are 
available to receive FOUO information as soon as it is transmitted.
    (2) For Privacy Act records, refer to AFI 33-332 for specific 
disclosure rules. For releases to GAO and Congress, refer to AFI 90-401, 
Air Force Relations With Congress and AFI 65-401, Relations With the 
General Accounting Office. See Sec. 806.9(b) for availability.
    (c) Termination, disposal and unauthorized disclosures. You may 
recycle FOUO material. Safeguard the FOUO documents or information to 
prevent unauthorized disclosure until recycling. Recycling contracts 
must include specific responsibilities and requirements on protecting 
and destroying FOUO and Privacy Act materials.



Sec. 806.17  Release and processing procedures.

    (a) Individuals seeking Air Force information should address 
requests to an address listed in Sec. 806.26. MAJCOM FOIA office phone 
numbers and mailing addresses are available on the Air Force FOIA Web 
Page at http://www.foia.af.mil.
    (1) A list of Air Force FOIA processing steps, from receipt of the 
request through the final disposition of an administrative appeal is at 
Sec. 806.29, which also includes guidance on preparing and processing an 
Air Force FOIA appeal package.
    (2) Air Force host tenant relationships. The Air Force host base 
FOIA manager may log, process, and report FOIA requests for Air Force 
tenant units. In such cases, the host base FOIA office refers all 
recommended denials and ``no records'' appeals to the Air Force tenant 
MAJCOM FOIA manager. This does not apply to the Air

[[Page 16]]

National Guard (ANG), Air Force Reserves, or to disclosure authorities 
for specialized records.
    (b) Use FOIA procedures in this part to process any congressional 
request citing FOIA, or covering a constituent letter citing FOIA. This 
does not apply to requests from a Congressional Committee or 
Subcommittee Chair on behalf of the committee or subcommittee.



Sec. 806.18  Initial determinations.

    (a) Disclosure authorities make final decisions on providing 
releasable records within the time limits and provide recommendations to 
the IDA on proposed denials and partial denials after coordination with 
the appropriate FOIA and JA office. Normally, disclosure authorities are 
division chiefs or higher at Air Staff level. MAJCOMs will designate 
their disclosure authority levels. The level should be high enough so a 
responsible authority makes the disclosure according to the policies 
outlined in this part. At out sourced units or functions, the disclosure 
authority must be a government official. Contractors who are functional 
OPRs for official government records are not authorized to make the 
decision to disclose government records.
    (b) On receipt, Air Force FOIA offices will promptly inform Air 
Force PAOs of all FOIA requests that are potentially newsworthy, or that 
are submitted by news media requesters. FOIA offices will coordinate 
final replies for such cases with public affairs.



Sec. 806.19  Reasonably segregable portions.

    Delete information exempt from release under the FOIA from copies of 
otherwise releasable records. Do not release copies that would permit 
the requester to ``read through the marking.'' Examples of records with 
deletions of exempted data are in Sec. 806.30.



Sec. 806.20  Records of non-U.S. government source.

    (a) The Air Force, in compliance with Executive Order 12600, will 
advise submitters of contractor-submitted records when a FOIA requester 
seeks the release of such records, regardless of any initial 
determination as to whether FOIA exemption (b)(4) applies. See 
Sec. 806.15(c) and Sec. 806.31. Due to a change to 48 CFR, submitter 
notification is not required prior to release of unit prices contained 
in contracts awarded based upon solicitations issued after January 1, 
1998. For solicitations issued before January 1, 1998, conduct a normal 
submitter notice. Unit prices contained in proposals provided prior to 
contract award are protected from release, as are all portions of 
unsuccessful proposals (before and after contract award) (10 U.S.C. 
2305(g)).
    (b) Department of State involvement. Air Force FOIA managers will 
notify their MAJCOM (or equivalent) FOIA office, in writing, via fax or 
e-mail when the Department of State becomes involved in any Air Force 
FOIA actions. The MAJCOM FOIA office will provide 11 CS/SCSR, via fax or 
e-mail, a summary of the issues involved, and the name, phone number, 
mailing address and e-mail address of: their own FOIA office point of 
contact; the Air Force record OPR point of contact, the DoD component 
FOIA office point of contact (if any), and the Department of State point 
of contact. 11 CS/SCSR will inform SAF/IA of any State Department 
involvement in Air Force FOIA actions. (See Sec. 806.7(b).) An example 
of a memo advising 11 CS/SCSR of State Department involvement in an Air 
Force FOIA action is provided in Sec. 806.27.



Sec. 806.21  Appeals.

    (a) FOIA requesters seeking Air Force records must address appeals 
to the Office of the Secretary of the Air Force, through the FOIA office 
of the IDA that denied the request. Requesters should attach a copy of 
the denial letter to their appeal and give reasons for appealing. Air 
Force IDAs may reconsider any prior denials and may grant all or part of 
a requester's appeal. When any appellate action sought by a FOIA 
requester is denied by an IDA, the IDA will include a statement that the 
issues raised in the appeal were considered and rejected (in full or in 
part) in any file sent to the Secretary of the Air Force in the course 
of a FOIA appeal action. Send all appeals to IDA decisions at the wing 
level

[[Page 17]]

through the MAJCOM FOIA office for sending to the Secretary of the Air 
Force's designated appellate authority, SAF/GCA (and Air Force Legal 
Services Agency (AFLSA/JACL)). (See Secs. 806.4(g), 806.5(b), and 
Sec. 806.5(k).) Additional steps are required prior to sending an appeal 
file.
    (1) MAJCOM FOIA offices and record OPRs are responsible for ensuring 
adequate preparation of the FOIA appeal package for reconsideration by 
the IDA. FOIA offices and records OPRs will coordinate with Air Force 
attorneys, who will provide written opinions on substantive issues 
raised in the appeal.
    (2) If a requester appeals an Air Force ``no records'' 
determination, Air Force elements must search again or verify the 
adequacy of their first search. The package must include documents that 
show the Air Force element systematically tried to find responsive 
records. Tell, for example, what areas or offices were searched and how 
the search was conducted--manually, by computer, by telephone, and so 
forth. In the event a requester sues the Air Force to contest a 
determination that no responsive records exist, formal affidavits are 
required to support the adequacy of any searches conducted.
    (3) FOIA requesters seeking to appeal denials involving Office of 
Personnel Management's controlled civilian personnel records must appeal 
to the Office of the General Counsel, Office of Personnel Management, 
1900 E Street NW, Washington, DC 20415.
    (4) If a requester appeals a denial of a fee waiver, fee estimate, 
or fee reduction request, FOIA offices and record OPRs must account for 
actual and estimated costs of processing a request, and will include 
copies of the DD Forms 2086 or 2086-1 in the appeal package.
    (5) When any appellate action sought by a FOIA requester is denied 
by an IDA, prepare the FOIA appeal package as specified in Sec. 806.29, 
and then the MAJCOM FOIA office forwards the appeal file to the 
Secretary of the Air Force's designated appellate authority, SAF/GCA 
(through AFLSA/JACL), for a final administrative determination.
    (b) Air Force activities will process appeal actions expeditiously 
to ensure they reach the Office of the Secretary of the Air Force in a 
timely manner.



Sec. 806.22  Time limits.

    Any FOIA appeals received after the 60-day time limit are not 
processed, unless the requester provides adequate justification for 
failing to comply with the time limit. If a late appeal is received, and 
there is no adequate justification for failing to comply with the time 
limit, the FOIA office will advise the FOIA requester their appeal has 
been closed. An example of a closure letter is included in Sec. 806.27.



Sec. 806.23  Delay in responding to an appeal.

    For an appeal in process and not yet forwarded to AFLSA/JACL, the 
MAJCOM FOIA office is responsible for advising the requester of the 
status of the appeal. For an appeal in process at AFLSA/JACL, that 
office will advise the requester regarding status of the appeal.



Sec. 806.24  Fee restrictions.

    For FOIA purposes, Air Force activities will consider the cost of 
collecting a fee to be $15 and will not assess requesters' fees for any 
amount less than $15.



Sec. 806.25  Annual report.

    (a) MAJCOM FOIA managers and AFLSA/JACL send a consolidated report 
for the fiscal year on DD Form 2564, Annual Report Freedom of 
Information Act, to HQ AFCIC/ITC by October 30 via regular mail, e-mail, 
or facsimile. AFLSA/JACL will prepare the appeals and litigation costs 
sections of the report. HQ AFCIC/ITC will make the Air Force report 
available on the WWW.
    (b) Total requests processed. ``Processed'' includes responses that 
give an estimated cost for providing the records, even if the requester 
has not paid.
    (c) Denied in full. Do not report ``no record'' responses as 
denials.
    (d) Other reasons.
    (1) Referrals. Also include referrals within Air Force in this 
category.
    (2) Not an agency record. The ``not an agency record'' other reason 
category only applies to requests for: objects or

[[Page 18]]

articles such as structures, furniture, vehicles and equipment, whatever 
their historical value, or value as evidence; anything that is not a 
tangible or documentary record such as an individual's memory or oral 
communication; and personal records of an individual not subject to 
agency creation or retention requirements, created and maintained 
primarily for the convenience of an agency employee and not distributed 
to other agency employees for their official use. This category does not 
include ``no record'' responses.
    (e) Other. The ``Other (Specify)'' block must contain the reason 
with the total number for the reason. For example: ``FOIA request had no 
return address-4.''
    (f) 5 U.S.C. 552(b)(3) statutes invoked on initial determinations. A 
corresponding statute is required for each instance entered in the 
Exemption 3 block. List the statute by number, not title. For any 
statute on the report that is not on DoD's list of commonly used 5 
U.S.C. 552(b)(3) statutes, attach a copy of the pertinent page of the 
statute that states information must be withheld from public disclosure. 
HQ AFCIC/ITC makes the DoD list available to FOIA managers 
electronically. Statutes on the DoD list with an asterisk indicate they 
are valid 5 U.S.C. 552(b)(3) statutes from litigation. Do not enter any 
of the following as 5 U.S.C. 552(b)(3) statutes:

5 U.S.C. 552
5 U.S.C. 552a
28 U.S.C. 1498
17 U.S.C. 101
18 U.S.C. 1905.

    (g) Appeal determinations. Enter the total number of FOIA appeals 
received and total number of FOIA appeals completed during the fiscal 
year.
    (h) Average. Air Force will use the ``median age'' and will not 
collect or report averages.
    (i) Number of initial requests received during the fiscal year. This 
number includes open and closed cases.
    (j) Total number of initial requests. ``Processed'' includes 
responses which give an estimated cost for providing the records, even 
if the requester has not paid.
    (k) Total program cost. This figure includes all costs from the DD 
Forms 2086 and 2086-1, as well as personnel costs for individuals 
primarily involved in administering the FOIA program. To figure 
personnel costs, multiply the annual salary of each person by the 
percentage of time spent on FOIA.
    (l) MAJCOMs and bases do not include the 25 percent. HQ AFCIC/ITC 
will add to the final Air Force report to DoD.
    (m) Authentication. MAJCOM SCs will sign as approving official (or 
two-letter functional equivalent for FOIA offices in other functional 
areas).



Sec. 806.26  Addressing FOIA requests.

    (a) FOIA requests concerning Air National Guard Inspector General 
records should be sent to 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, 
Washington, DC 20330-1000.
    (b) Addressing Air Force Freedom of Information Act requests. The 
Department of the Air Force, a component of the DoD, includes the Office 
of the Secretary of the Air Force, the Chief of Staff of the Air Force 
(who is supported by Headquarters Air Force or ``Air Staff'' elements), 
the MAJCOMs, the FOAs, and DRUs. This section lists the FOIA office 
addresses. A selected subordinate unit is also included in this section. 
Realignment of Air Force elements is frequent; addresses listed below 
are subject to change.
    (c) The Department of the Air Force does not have a central 
repository for Air Force records. FOIA requests are addressed to the Air 
Force element that has custody of the record desired. In answering 
inquiries regarding FOIA requests, Air Force personnel will assist 
requesters in determining the correct Air Force element to address their 
requests. If there is uncertainty as to the ownership of the record 
desired, refer the requester to the Air Force element that is most 
likely to have the record. Two organizations that include Air Force 
elements, and hold some Air Force-related records, are also included in 
the addresses listed below.
    (d) MAJCOMs:

(1) Air Combat Command (ACC): HQ ACC/SCTC, 230 East Flight Line Road, 
    Langley AFB VA 23665-2781.
(2) Air Education and Training Command (AETC): HQ AETC/SCTS, 61

[[Page 19]]

    Main Circle Suite 2, Randolph AFB TX 78150-4545.
(3) Air Force Materiel Command (AFMC): HQ AFMC/SCDP, 4225 Logistics 
    Avenue, Suite 6, Wright-Patterson AFB, OH 45433-5745.
(4) Air Force Reserve Command (AFRC): HQ AFRC/SCSM, 155 2nd Street, 
    Robins AFB, GA 31098-1635.
(5) Air Force Special Operations Command (AFSOC): HQ AFSOC/SCMN, 100 
    Bartley Street, Suite 201, Hurlburt Field, FL 32544-5273.
(6) Air Force Space Command (AFSPC): HQ AFSPC/SCMA, 150 Vandenberg 
    Street, Suite 1105, Peterson AFB, CO 80914-4400.
(7) Air Mobility Command (AMC): HQ AMC/SCYNR, 203 West Losey Street, 
    Room 3180, Scott AFB, IL 62225-5223.
(8) Pacific Air Forces (PACAF): HQ PACAF/SCT, 25 E Street, Suite C220, 
    Hickam AFB, HI 96853-5409.
(9) United States Air Forces in Europe (USAFE): HQ USAFE/SCMI, Unit 
    3050, Box 125, APO AE 09094-0125.

    (e) FOAs:
    (1) Air Force Audit Agency (AFAA): HQ AFAA/IMP, 1126 Air Force 
Pentagon, Washington, DC 20330-1126.
    (2) Air Force Base Conversion Agency (AFBCA): AFBCA/ESA, 1700 North 
Moore Street, Suite 2300, Arlington, VA 22209-2802.
    (3) Air Force Center for Environmental Excellence (AFCEE): HQ AFCEE/
MSI, 3207 North Road, Brooks AFB, TX 78235-5363.
    (4) Air Force Civil Engineering Support Agency (AFCESA): HQ AFCESA/
IMD, 139 Barnes Drive Suite 1, Tyndall AFB, FL 32403-5319.
    (5) Air Force Historical Research Agency (AFHRA): AFHRA/RSA, 600 
Chennault Circle, Maxwell AFB, AL 36112-6424.
    (6) Air Force Inspection Agency (AFIA): (Shared FOIA office/
function, AFIA and Air Force Safety Agency) AFSA/JAR, 9700 Avenue G SE, 
Suite 236B, Kirtland AFB, NM 87117-5670.
    (7) Air Force Medical Support Agency (AFMSA): AFMSA/CCEA, 2510 
Kennedy Circle, Suite 208, Brooks AFB, TX 78235-5121.
    (8) Air Force News Agency (AFNEWS): HQ AFNEWS/SCB, 203 Norton 
Street, Kelly AFB, TX 78241-6105.
    (9) Air Force Office of Special Investigations (AFOSI): HQ AFOSI/
SCR, P. O. Box 2218, Waldorf, MD 20604-2218.
    (10) Air Force Personnel Center (AFPC): HQ AFPC/MSIMD, 550 C Street 
West, Suite 48, Randolph AFB, TX 78150-4750.
    (11) Air Force Center for Quality and Innovation (AFCQMI): AFCQMI/
CSP, 550 E Street East, Randolph AFB, TX 78150-4451.
    (12) Air Force Safety Agency (AFSA): (Shared FOIA office/function, 
AFIA, and AFSA) AFSA/JARF, 9700 Avenue G SE, Suite 236B, Kirtland AFB, 
NM 87117-5670.
    (13) Air Force Security Forces Center (AFSFC): AFSFC/CCQ 1720 
Patrick Street, Lackland AFB, TX 78236-5226.
    (14) Air Force Services Agency (AFSVA): AFSVA/SVSR, 9504 1H-35 
North, Suite 250, San Antonio, TX 78233-6635.
    (15) Air Force Technical Applications Center (AFTAC): AFTAC/LSCS, 
1030 South Highway, Suite A1A, Patrick AFB, FL 32925-6001.
    (16) Air Intelligence Agency (AIA): AIA/DOOI, 102 Hall Boulevard, 
Suite 229, San Antonio, TX 78243-7029.
    (17) Air Reserve Personnel Center (ARPC): ARPC/SCS, 6760 East 
Irvington Place, 6600, Denver, CO 80280-6600.
    (18) Air Force Weather Agency (AFWA): HQ AFWA/SCI, 106 Peacekeeper 
Drive Suite 2N3, Offutt AFB, NE 68113-4039.
    (19) Air Force History Support Office (AFHSO): AFHSO, 500 Duncan 
Avenue Box 94, Bolling AFB, DC 20332-1111.
    (f) DRUs:
    (1) Air Force Operational Test and Evaluation Center (AFOTEC): 
AFOTEC/SCM, 8500 Gibson Boulevard SE, Kirtland AFB, NM 87117-5558.
    (2) 11th Wing: 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, 
Washington, DC 20330-1000 (if a person is unsure where to send a FOIA 
request for Air Force records, or is seeking records from the Office of 
the Secretary of the Air Force, or other Headquarters Air Force records, 
use this address).
    (3) United States Air Force Academy (USAFA): 10 CS/SCBD, 2304 Cadet 
Drive, Suite 232, USAFA, CO 80840-5060.
    (g) Selected subordinate units: Air Force Communications Agency

[[Page 20]]

(AFCA): HQ AFCA/CCQI, 203 West Losey Street, Room 1022, Scott AFB, IL 
62225-5203.
    (h) Organizations which include air force elements:
    (1) Army and Air Force Exchange Service (AAFES): HQ AAFES/GC-E, P.O. 
Box 660202, Dallas, TX 75266-0202.
    (2) National Guard Bureau (NGB)/Air National Guard: NGB-AD, 2500 
Army Pentagon, Washington, DC 20310-2500. (FOIA requests concerning Air 
National Guard IG records should be sent to 11 CS/SCSR (FOIA), 1000 Air 
Force Pentagon, Washington, DC 20330-1000)



Sec. 806.27  Samples of Air Force FOIA processing documents.

    (a) This section includes suggested language in paragraph format 
that tracks Air Force and DoD FOIA guidance. The rest of the body of 
letters and memorandums should comply with Air Force administrative 
guidance. Each MAJCOM may elect to prepare their own verbiage to meet 
their specific needs, so long as FOIA processing actions are consistent 
with guidance in DoD 5400.7-R and this part. In this section, language 
in parentheses is for explanatory purposes only. Do not include any of 
the parenthetical language of this section in your FOIA correspondence. 
When optional language must be selected, the optional language will be 
presented within parentheses. Use only the portions that apply to the 
specific request or response.
    (b) Initial receipt of Freedom of Information Act request.

    We received your Freedom of Information Act (FOIA) request dated 
 Month year, for (summarize the request) on 
 Month year (date received). We will provide you our 
release determination by (enter date that is 20 workdays from date you 
received the request). (Based on our initial review, we believe we 
cannot process your request within 20 workdays.) (If ``cannot'' is used, 
add appropriate explanation; examples follow.) Please contact (name and 
commercial telephone number) if you have any questions and refer to case 
number .

    (c) Interim response:

    Your request will be delayed because: all or part of the responsive 
records are not located at this installation; (and/or) Processing this 
FOIA request will require us to collect and review a substantial number 
of records (and/or) Other Air Force activities or other agencies (if 
applicable) to include the submitter of the information, need to be 
involved in deciding whether or not to release the responsive records. 
We expect to reply to your request not later than (give a date that is 
not more than 30 workdays from the initial receipt of the request); (or) 
If processing the FOIA request will take more than the allowed time 
limits to respond). We find we are unable to meet the time limits 
imposed by the FOIA in this instance because (tell the requester the 
reason for the delay) (example: the records are classified and must be 
reviewed for possible declassification by other activities or agencies). 
We anticipate completing your request by (date).
    (When charging fees is appropriate.) The FOIA provides for the 
collection of fees based on the costs of processing a FOIA request and 
your fee category. Based on the information in your request, we have 
determined your fee category is (commercial/educational or noncommercial 
scientific institution or news media/all others). As a result, you (if 
commercial category) are required to pay all document search, review and 
duplication costs over $15.00. (or) As a result, you (if educational or 
noncommercial scientific institution or news media) will be provided the 
first 100 pages free of charge; you are required to pay any duplication 
costs over and above those amounts. (or) As a result, you will be 
provided the first 2 hours of search time and the first 100 pages free 
of charge; you are required to pay any search and duplication costs over 
and above those amounts.

    (d) Request for a more specific description:

    Your request does not sufficiently describe the desired records. The 
FOIA applies to existing Air Force records; without more specific 
information from you, we cannot identify what documents might be 
responsive to your request. Please give us whatever additional details 
you may have on the Air Force records you want. Can you tell us when the 
records were created, and what Air Force element may have created the 
records? If this request involves an Air Force contract, do you know the 
contract number and dates it covered? Our address is (include name and 
complete mailing address), our fax number is (give fax number), our e-
mail address is (optional--give complete e-mail address). Based on the 
original request you sent us, we are unable to respond.

    (e) Single letter acknowledging receipt of request and giving final 
response. (If you can complete a FOIA request within the statutory 20-
workday processing period, Air Force elements may elect to send a single 
letter to the requester, along with responsive

[[Page 21]]

records which are released to the requester in full).

    We received your Freedom of Information Act (FOIA) request dated 
 Month year, for (summarize the request) on 
 Month year (date received). A copy (or) Copies of 
(describe the record(s) being released) (is/are) releasable and (is/are) 
attached.

    (f) Collection of fees:

    The FOIA provides for the collection of fees based on the costs of 
processing a FOIA request and your fee category. We have placed you in 
the (enter the fee category) fee category. In your case, we have 
assessed a charge of $---- for processing your request. The fee was 
calculated in the following manner: (Give a detailed cost breakdown: for 
example, 15 pages of reproduction at $0.15 per page; 5 minutes of 
computer search time at $43.50 per minute, 2 hours of professional level 
search at $25 per hour.) Please make your check payable to (appropriate 
payee) and send it to (give your complete mailing address) by (date 30 
days after the letter is signed). (or) The FOIA provides for the 
collection of fees based on the costs of processing a FOIA request and 
your fee category. We have placed you in the (enter the fee category); 
however, in this case, we have waived collecting fees.

    (g) Multitrack processing letters to FOIA requesters. (When using 
the multitrack FOIA processing system, determine which of the following 
paragraphs to include in your letters to the requester. To the extent it 
may apply, include language from paragraph 2 of the sample. If a 
requester asks for expedited processing, answer carefully if you decide 
not to provide expedited processing, because requesters may appeal 
denial of their request for expedited processing. Advise requesters 
placed into the complex track in writing how they can simplify their 
request to qualify for the simple track.)

    We received your Freedom of Information Act (FOIA) request dated 
 Month year, for (summarize the request) on 
 Month year (date received). Because our organization 
has a significant number of pending FOIA requests, which prevents us 
from making a response determination within 20 workdays, we have 
instituted multitrack processing of requests. Based on the information 
you provided, we have placed your request in the (simple or complex) 
track. We have assigned number 
 to identify your request; 
should you need to contact us about your request, please write or call 
(name and telephone) and use this number to assist us in responding more 
promptly.
    Based on our current backlog, we expect to respond to your request 
not later than (give an estimated date). Our policy is to process 
requests within their respective tracks in the order in which we receive 
them. We do process each FOIA request as quickly as we can.

    (h) If the request is placed in the complex track:

    In your case, processing your request is complex because (give basic 
reasons this is a complex case: request was vague or complicated; the 
records sought are voluminous; multiple organizations will have to work 
on this request; records are classified; responsive records came from 
another command/another service/a nongovernment source; responsive 
records were part of the Air Force's decision-making process, and the 
prerelease review will require policy determinations from different Air 
Force elements; records describe law enforcement activities; records 
involve foreign policy issues; due to the nature of your request and/or 
the nature of our computer system, responding to your request or 
providing a response in the electronic format you requested will be 
technically complex, etc.). Simplifying your request might permit 
quicker processing in the following ways: (describe ways the search 
could be narrowed to fewer records, or ways policy issues could be 
avoided, etc.) Can you tell us when the records were created, and what 
Air Force element may have created the records? If this request involves 
an Air Force contract, do you know the contract number? Please give us 
whatever additional details you may have on the Air Force records you 
are seeking, so we can attempt to streamline the processing of your 
request. Our address is (give complete mailing address), our fax number 
is (give fax number), our e-mail address is (optional--give complete e-
mail address).

    (i) If the requester asks that you expedite their request:

    Because individuals receiving expedited processing may receive a 
response before other earlier requesters, there are administrative 
requirements you must meet before we can expedite a request. In your 
request, you asked that we expedite processing. In order for us to 
expedite a request, the requester must provide a statement certifying 
the reasons supporting their request are true and correct to the best of 
their knowledge.
    In the second category, ``urgently needed'' means the information 
itself has a particular value that it will lose if it is not 
disseminated quickly. Ordinarily this means the information concerns a 
breaking news story of

[[Page 22]]

general public interest. Historic information, or information sought for 
litigation or commercial activities usually would not qualify for 
expedited processing in the second category. Also, the fact that a news 
organization has an internal broadcast or publication deadline, so long 
as the deadline was unrelated to the nature of the information itself 
(for example, the information was not a breaking news story of general 
public interest) would not make the information ``urgently needed.''
    In this case, we have determined your FOIA request (will/will not) 
receive expedited processing. We came to this conclusion because you 
(did/did not) demonstrate you need the information because failure to 
obtain the records on an expedited basis (could or could not) reasonably 
expect to pose an imminent threat to life or physical safety of an 
individual (or) the information (is or is not) urgently needed in order 
to inform the public about actual or alleged Federal Government activity 
(or) failure to obtain the records on an expedited basis (could or could 
not) reasonably expect to lead to an imminent loss of substantial due 
process rights, (or) release (would or would not) serve a humanitarian 
need by promoting the welfare and interests of mankind (and/or) your 
request for expedited processing did not meet the statutory requirements 
of the FOIA; you did not provide enough information to make a 
determination of compelling need for the information you requested (and/
or) you did not properly certify your request.

    (j) If you deny a request for expedited processing:

    If you consider our decision not to expedite your request incorrect, 
you may appeal our decision. Include in your appeal letter the reasons 
for reconsidering your request for expedited processing, and attach a 
copy of this letter. Address your appeal to Secretary of the Air Force 
through (address of MAJCOM FOIA office). In the meantime, we will 
continue to process your request in the (simple/complex) processing 
track.

    (k) Certification, computer systems manager (electronic records or 
format requested).

    (When answering a request for electronic records, based on the 
configuration of your hardware and/or software, certain factors may make 
a particular request complex. Have your computer system manager advise 
you whether or not they can create the new record/format on a ``business 
as usual'' basis. If producing the record/format would entail a 
significant expenditure of resources in time and manpower that would 
cause significant interference with the operation of the information 
system and adversely affect mission accomplishment, you do not need to 
process the request. The FOIA office needs to get a certification from 
the computer systems manager to document this determination to support 
their response. Possible language for this certification is provided 
below.)
    I, (rank/grade and name) am the computer systems manager for 
(organization with electronic records responsive to FOIA request). In 
consultation with (FOIA office), I have considered the FOIA request of 
(requester's name), our  
(FOIA identifier), which asked for (describe electronic record or 
format). We (do/do not) have electronic records that are responsive to 
this request (or) data that we (can/cannot) configure into the requested 
format. (If there are electronic records) The existing electronic 
records (do/do not) contain nonreleasable data that we (can/cannot) 
remove from the electronic record. Because of the way our (computer 
system/database/software) (use all that apply, specify hardware and/or 
software nomenclature if possible; for example, IBM 
, Microsoft Excel) is configured, creating 
the electronic record (or) modifying the existing record/format would 
entail a significant expenditure of resources in time and manpower that 
would cause significant interference with the operation of the 
information system and adversely affect mission accomplishment (describe 
how responding would interfere and time/manpower resources required, 
give estimated reprogramming time, if possible). I have applied the DoD 
``standard of reasonableness'' in considering this request. I understand 
that when the capability exists to respond to a FOIA request that would 
require only a ``business as usual'' approach to electronically extract 
the data and compile an electronic record or reformat data to satisfy a 
FOIA request, then creation of the electronic record or reformatting the 
data would be appropriate. In this case, a significant expenditure of 
resources and manpower would be required to compile the electronic 
record (or) reformat existing data. This activity would cause a 
significant interference with the operation of our automated information 
system. I certify creation of the electronic record (or) reformatting 
existing data in order to respond to this request would not be 
reasonable, under the circumstances.

Signature

(Date Signed)    (Signature Block)

    (Note: Some electronic data requests may include a request for 
software. You may have to release government-developed software that is 
not otherwise exempt, if requested under the FOIA. Exemptions 1--
classified software, 2--testing, evaluation, or similar software, 3--
exempt by statute, 5--deliberative process/privileged software, and 7--
law enforcement operations software may apply, based on the nature of 
the requested software. If the software is commercial off-the-

[[Page 23]]

shelf software, as opposed to software developed by the government, the 
software may qualify to be withheld from release under FOIA exemption 4.

    (l) ``No (paper or electronic) records'' or ``requested format not 
available'' letters.

    This is in response to your Freedom of Information Act (FOIA) 
request dated  Month year, for (summarize the request) 
on  Month year (date received), our number 
.
    A thorough search by (identify the unit(s) that tried to locate 
responsive records) did not locate any records responsive to your 
request. (If the requester asked questions, and there are no responsive 
records that would provide the answers to those questions): The FOIA 
applies to existing Air Force records; the Air Force need not create a 
record in order to respond to a request.
    (or) A thorough assessment by the OPR and the computer systems 
manager has determined we cannot provide the (electronic record data) in 
the format you requested. (If this can be done on a ``business as usual 
basis):'' (Paper copies American Standard Code for Information 
Interchange (ASCII) files) of the data you requested are attached.
    If you interpret this ``o records'' response as an adverse action, 
you may appeal it in writing to the Secretary of the Air Force. Your 
appeal should be postmarked no later than 60 calendar days from the date 
of this letter. Address your letter as follows: Secretary of the Air 
Force, Thru: (MAJCOM FOIA Office), (mailing address).
    The FOIA provides for the collection of fees based on the costs of 
processing a FOIA request and your fee category. We have placed you in 
the (enter category) fee category; however, in this case, we have waived 
fees. (If paper copies or ASCII files are provided: ) The FOIA provides 
for the collection of fees based on the costs of processing a FOIA 
request and your fee category. In your case, as a requester in the fee 
category of (add appropriate category), we have assessed a charge of $--
-- for processing your request. The fee was calculated in the following 
manner: (Give a detailed cost breakdown: for example, 15 pages of 
reproduction at $0.15 per page; 5 minutes of computer search time at 
$43.50 per minute, 2 hours of professional level search at $25 per 
hour.) Please make your check payable to (appropriate payee) and send it 
to (give your complete mailing address) by (date 30 days after the 
letter is signed).

    (m) Referral or coordination letters. (These letters are to tell the 
requester all or part of the request was referred to another Air Force 
organization, to refer or coordinate the request to another federal 
government organization, and to advise a nongovernment submitter a FOIA 
request was received for information they submitted.)G56
    (1) Letter to requester.

    (If all or part of a request has been referred, write to the 
requester:) Your Freedom of Information Act (FOIA) request dated 
 Month year, for (summarize the request) received on 
 Month year (date received), our number 
, was referred (or) must be 
coordinated with (give mailing address of the FOIA office to which you 
are referring all or part of the request, the identity of the federal 
government organization you are either coordinating with or are 
referring all or part of the request to, or that you must coordinate 
with the nongovernment submitter of responsive information). (On 
referrals:) That office will process (all/part) of your request 
(describe which part is being referred if the entire request is not 
being referred) and they will respond directly to you. (On 
coordinations:) That organization has a significant interest in the 
records (or) created the records that may answer to your request. 
(Before notifying a requester of a referral to another DoD component or 
federal agency, consult with them to determine if their association with 
the material is exempt. If so, protect the association and any exempt 
information without revealing the identity of the protected activity.) 
(When a nongovernment submitter is involved:) The nongovernment 
submitter of information that may answer your request needs time to 
respond to the possible release of information under the FOIA.
    Because we must refer (or) coordinate your request outside our 
organization, your request will be delayed. We will determine whether 
any records are available; as soon as is practicable, a decision will be 
made whether to release or to withhold from disclosure any responsive 
records under the FOIA, 5 U.S.C. 552. Your request will be processed as 
expeditiously as circumstances permit.

    (2) Letter to another government agency.

    (If all or part of a request was referred or requires coordination, 
write to the government entity): On  Month year (date 
received), our organization received a Freedom of Information Act (FOIA) 
request from (identity of requester), Attachment 1, dated 
 Month year, for (summarize the request). Based on our 
assessment of that request, our number 
, we need to (refer/
coordinate) (all/part) of that request to you (describe which part is 
being referred or coordinated, if it was not the entire request). (Name 
and phone number of person who agreed to the

[[Page 24]]

referral or coordination) accepted this referral (or) coordination 
action was on (date). We notified the requester of this action (see 
Sec. 806.31).
    We (do/do not) hold records responsive to this request. (If do hold 
is used:) Copies of responsive records located in our files are included 
at Attachment 3 to assist you in making your assessment on the 
releasability of (our/your) related records. If you need to contact us, 
our phone number and address is (give name, phone and complete mailing 
address), our fax number is (give fax number), our e-mail address is 
(give complete e-mail address).

    (3) Letter to submitter of contract-related information.

    (If contractor-submitted information is involved, write to the 
submitter:) On  Month year (date received), our 
organization received a Freedom of Information Act (FOIA) request from 
(identity of requester), our number 
, dated  
Month year, for (summarize the request). Information you submitted to 
the Air Force was identified as responsive to this request, see copies 
attached.
    To determine the releasability of the information contained in these 
documents and to give you the maximum protection under the law, please 
review the attached documents and give us the information outlined in 
Sec. 806.31. If you feel the information is privileged or confidential, 
consists of proprietary commercial or financial information, and 
otherwise meets the statutory requirements for withholding the 
information from release under FOIA exemption 4, 5 U.S.C. 552(b)(4), 
respond to us in writing not later than  working days 
from the date of this letter (usually 30 calendar days). If you object 
to release of this information under the FOIA, identify the items, 
lines, columns or portions you believe we should withhold from release.
    You will also need to provide a written explanation of how release 
would adversely impact or cause harm to your competitive position, your 
commercial standing, or other legally protected interests. An assertion 
that ``we should deny because all of the information was submitted in 
confidence'' or ``deny because all of the information was marked as 
proprietary in nature'' would not justify withholding of the requested 
information under the FOIA. If you need to contact us, call or write 
(give name), phone number is (give commercial number), our address is 
(give complete mailing address), our fax number is (give fax number), 
our e-mail address is (give complete e-mail address).

    (4) Letter requesting State Department coordination. (If the State 
Department is involved in coordinating on a request, fax or e-mail 11 
CS/SCSR so they can inform SAF/IA if appropriate).

    On  Month year (date received), our organization 
received a Freedom of Information Act (FOIA) request from (identity of 
requester), our number , 
dated  Month year, for (summarize the request). 
Because of the nature of this request, we were advised by (note the 
individual and organization who told you to coordinate the request with 
the State Department; this may be a MAJCOM or Combatant Command--give 
telephone and facsimile numbers if known) we need to coordinate this 
request with the Department of State. In accordance with DoD 5400.7-R, 
Air Force Supplement, we are informing you of their involvement in this 
FOIA request. (Provide any specifics available.) Air Force records are 
involved in this action. If you need to contact us, our phone number is 
(give commercial and DSN numbers), our address is (give complete mailing 
address), our fax number is (give fax number), our e-mail address is 
(give complete e-mail address).

    (n) Certification of initial classification or declassification 
authority (When denying a FOIA request, in whole or in part, because the 
information requested is classified, the initial classification 
authority, his or her successor, or a declassification authority, needs 
to determine if the records are ``properly and currently classified,'' 
and therefore must be withheld from release under FOIA exemption (b)(1); 
also, you need to determine that you cannot release any reasonably 
segregable additional portions. Language that certifies such a 
determination was made on a FOIA request involving classified records 
follows).
    (1) Sample certification format--all information remains classified.

    I, (rank/grade and name) am the initial classification authority 
(or) the successor to the original initial classification authority (or) 
the declassification authority for (give an unclassified description of 
the records concerned). In consultation with (FOIA office), I have 
assessed the FOIA request of (requester's name), our 
 (FOIA identifier), for 
records that were properly classified at the time of their creation and 
currently remain properly classified in accordance with Executive Order 
(E.O.) 12958, National Security Information, (or) contain information 
that we have determined is classified in accordance with E.O. 12958 
Section 1.5(--) (or) in accordance with E.O. 12958 Section 1.5(--) and 
is also exempt from declassification in accordance with Section 1.6(--) 
of the E. O. (or if the record is more than 25

[[Page 25]]

years old) contain information that we have determined is exempt from 
declassification in accordance with E.O. 12958 Section 3.4(b)(--). 
Unauthorized release could cause (for TOP SECRET, use exceptionally 
grave; for SECRET use serious; for CONFIDENTIAL do not add language; 
should read cause damage) damage to national security. There are no 
reasonably segregable portions that we can release. Consequently release 
of this information is denied pursuant to 5 U.S.C. 552(b)(1).


Signature


(Date Signed)    (Signature Block)

    (2) Sample certification format--portions remain classified.

    I, (rank/grade and name) am the initial classification authority 
(or) the successor to the original initial classification authority (or) 
the declassification authority for (give an unclassified description of 
the records concerned.) In consultation with (FOIA office), I have 
assessed the FOIA request of (requester's name), our 
 (FOIA identifier), that 
asked for records, (or) portions of which were properly classified at 
the time of their creation. Portions of the records currently remain 
properly classified in accordance with E.O. 12958. The bracketed 
information is currently and properly classified in accordance with 
Section 1.5 (add appropriate subparagraph), E.O. 12958, and is also 
exempt from declassification in accordance with Section 1.6(--) of the 
Executive Order (or if the record is more than 25 years old) contain 
information that we have determined is exempt from declassification in 
accordance with E.O. 12958 Section 3.4(b)(--). Unauthorized release 
could cause (for TOP SECRET use exceptionally grave; for SECRET use 
serious; for CONFIDENTIAL do not add language; should read cause damage) 
damage to national security. There are no other reasonably segregable 
portions that we can release. Consequently this information is denied 
pursuant to 5 U.S.C. 552(b)(1).


Signature


(Date Signed)    (Signature Block)

    (o) Letter to a requester who has withdrawn their request or appeal. 
(If a FOIA requester has withdrawn a FOIA request or appeal, sending a 
final letter to the requester to close the file may be wise. Suggested 
language to the requester follows):

    We received your Freedom of Information Act (FOIA) request (or) 
appeal dated  Month year, on  Month 
year (date received). After sending us your request (or) appeal, you 
indicated by (facsimile, letter) that you wished to withdraw your 
request (or) appeal. We have, therefore, closed your file without 
further action.

    (p) Letter to a requester who has appealed after the 60-day 
deadline. (We will not process FOIA appeals received after the 60-day 
time limit, unless the requester provides adequate justification for 
failing to comply. If you receive a late appeal, and it gives inadequate 
justification for failing to comply, the FOIA office will advise the 
requester their appeal was closed; suggested language for a letter to an 
untimely requester follows.)

    We received your Freedom of Information Act (FOIA) appeal dated 
 Month year, on  Month year (date 
received). You did not appeal within 60 days of the postmarked date of 
our denial letter as outlined in our agency regulation. Therefore, we 
are closing our file.

    (q) Letter to a requester who has appealed. (There are occasions 
when, on reconsideration, an IDA grants all or part of an appeal. When 
sending their appeal to higher headquarters, notify the requester. 
Suggested language to a requester who has appealed follows):

    We received your Freedom of Information Act (FOIA) appeal, our 
number , dated 
 Month year, on  Month year (date 
received). We considered the issues raised in your appeal carefully. We 
have decided to grant (or) partially grant your appeal.
    (If you grant all or part of the appeal): Upon reconsideration, we 
are releasing the requested records (or) granting your request. (If the 
appeal is only partially granted, describe what portions remain in 
dispute). (If applicable): We are releasing and attaching all or 
portions of the responsive records. (If applicable): We will continue 
processing your appeal for the remaining withheld (records/information).



Sec. 806.28  Records with special disclosure procedures.

    Certain records have special administrative procedures to follow 
before disclosure. Selected publications that contain such guidance are 
listed below.

(a) AFI 16-701, Special Access Programs.
(b) AFI 31-206, Security Police Investigations.
(c) AFI 31-501, Personnel Security Program Management.
(d) AFI 31-601, Industrial Security Program Management.

[[Page 26]]

(e) AFI 36-2603, Air Force Board for Correction of Military Records.
(f) AFI 36-2706, Military Equal Opportunity and Treatment Program.
(g) AFI 36-2906, Personal Financial Responsibility.
(h) AFI 36-2907, Unfavorable Information File (UIF) Program.
(i) AFI 40-301, Family Advocacy.
(j) AFI 41-210, Patient Administration Functions.
(k) AFI 44-109, Mental Health and Military Law.
(l) AFI 51-201, Administration of Military Justice.
(m) AFI 51-301, Civil Litigation.
(n) AFI 51-303, Intellectual Property-Patents, Patent Related Matters, 
Trademarks, and Copyrights.
(o) AFI 51-501, Tort Claims.
(p) AFI 51-503, Aircraft, Missile, Nuclear and Space Accident 
Investigations.
(q) AFI 51-504, Legal Assistance, Notary and Preventive Law Programs.
(r) AFI 51-1102, Cooperation with the Office of the Special Counsel.
(s) AFI 61-204, Disseminating Scientific and Technical Information.
(t) AFI 61-303, Licensing Inventions Made Under Cooperative Research and 
Development Agreements.
(u) AFI 71-101, Volume 1, Criminal Investigations, and Volume 2, 
Protective Service Matters.
(v) AFI 84-101, Historical Products, Services, and Requirements.
(w) AFI 90-301, Inspector General Complaints.
(x) AFI 91-204, Safety Investigations and Reports.



Sec. 806.29  Administrative processing of Air Force FOIA requests.

    (a) This section is a checklist format of processing steps and 
explanations of Air Force and DoD guidance. Each MAJCOM may elect to 
prepare its own checklists to tailor FOIA processing actions within its 
own organizations to meet their specific needs, so long as it remains 
consistent with guidance contained in DoD 5400.7-R, DoD Freedom of 
Information Act Program, and this part.
    (b) Procedures: FOIA requests.
    (1) Note the date the request was received, give the request a 
unique identifier/number, and log the request.
    (2) Assess the request to determine initial processing requirements:
    (3) Determine what Air Force elements may hold responsive records.
    (i) Are responsive records kept at the same or different 
installations?
    (ii) Is referral of (all/part) of the request required?
    (4) Determine appropriate processing track (simple/complex/
expedited). (Air Force FOIA offices without backlogs do not multitrack 
FOIA requests.)

    Note: Requesters have a right to appeal an adverse tracking decision 
(for example, when it is determined their request will not be 
expedited). Also, if their request qualifies for the complex track, tell 
requesters so they may limit the scope of their request in order to 
qualify for the simple track. FOIA managers must assess a request before 
placing it into a specific processing track, and must support their 
actions should the requester appeal. If a request is determined to be 
complex, or is not expedited when the requester sought expedited 
processing, you must advise the requester of the adverse tracking 
decision in writing. See Sec. 806.27 for sample language for this kind 
of letter to a requester.

    (i) Simple. Defines a request that can be processed quickly, with 
limited impact on the responding units. The request clearly identifies 
the records, involves no (or few) complicating factors (e.g., there are 
few or no responsive records, involves only one installation and there 
are no outside OPRs, involves no classified records (Exemption 1), a law 
exempts the responsive records from disclosure (Exemption 3), no 
contractor-submitted records (Exemption 4), no deliberative process/
privileged materials (Exemption 5), records contain no (or limited) 
personal privacy information/did not come from Privacy Act systems of 
records concerning other individuals (Exemption 6), release of records 
would have minimal impact on law enforcement (Exemption 7); no time 
extensions expected, other than the additional 10-workdays allowed in 
situations outlined in the FOIA). If the requested data must come from 
electronic records, response can be completed on a ``business-as-usual'' 
basis; requires no (or limited) reprogramming of automated information 
systems and would cause no significant interference with operation of 
information systems by processing a simple request/providing a

[[Page 27]]

response in the electronic format requested.
    (ii) Complex. Defines a request whose processing will take 
substantial time, will cause significant impact on responding units. 
Complications and delays are likely (e.g., the request is vague (poor 
description of records, unclear who or when records were created), 
records are massive in volume, multiple organizations will receive 
tasking, records are classified (Exemption 1), records came from another 
command/service/a nongovernment source (Exemption 4), records are part 
of the Air Force's decision-making process, and not incorporated into a 
final decision (IG/audit reports, legal opinions, misconduct or mishap 
investigations etc.) or are attorney-client records (Exemption 5), 
records are largely personal information on another individual or came 
from Privacy Act systems of records (Exemption 6), records describe law 
enforcement activities or information from (and/or identities of) 
confidential sources (Exemption 7); response cannot be completed on a 
``business as usual'' basis and would require extensive reprogramming or 
cause significant interference with operation of the automated 
information systems. (Advise requester, in writing, of right to limit 
the scope of their request in order to qualify for simple track.)
    (iii) An expedited request is when a requester asks for expedited 
processing and explains the compelling need (imminent threat to life or 
physical safety; urgently needed by a person primarily engaged in 
disseminating information; due process; or humanitarian need) for the 
requested information. In order to receive expedited processing, 
requesters must provide a statement certifying their ``demonstration'' 
(description) of their specific ``compelling need'' or due process/
humanitarian need is true and correct to the best of their knowledge. 
When a requester seeks expedited processing, FOIA offices must respond 
in writing to the requester within 10 calendar days after receipt of the 
request approving or denying their request for expedited processing. 
Requesters have a right to appeal an adverse decision (e.g., when it is 
determined their requests will not be expedited). There are four 
categories of FOIA requests that qualify for expedited processing:
    (A) The requester asserts a ``compelling need'' for the records, 
because a failure to obtain records quickly could reasonably be expected 
to pose an imminent threat to the life or physical safety of an 
individual.
    (B) The requester asserts a ``compelling need'' for the records, 
because the information is ``urgently needed'' by an individual engaged 
in disseminating information to inform the public (primarily news media 
requesters; and could also include other persons with the ability to 
disseminate information).

    Note: ``Urgently needed,'' in this case, means the information has a 
particular value that will be lost if it is not disseminated quickly. 
This normally would apply to a breaking news story of general public 
interest. Information of historical interest only, or sought for 
litigation or commercial activities would not qualify, nor would the 
fact a news media entity had an internal broadcast deadline of its own, 
which was unrelated to the ``news breaking nature'' of the information 
itself, cause the requested information to qualify as ``urgently 
needed.''

    (C) Failure to obtain records quickly could cause imminent loss of 
substantial due process rights or providing the information quickly 
would serve a ``humanitarian need'' (i.e., disclosing the information 
will promote the welfare and interests of mankind). While FOIA requests 
falling into these third and fourth categories can qualify for expedited 
processing, process them in the expedited track behind the requests 
qualifying for expedited processing based on ``compelling need'' (the 
first two types of expedited FOIA requests).
    (5) Determine fee category of requester (commercial/educational---
noncommercial scientific institution--news media/all others) and assess 
fee issues. When all assessable costs are $15.00 or less, waive fees 
automatically for all categories of requesters. Assess other fee waiver 
or reduction requests on a case-by-case basis.
    (6) Apply fee waiver/fee reduction criteria in appropriate cases 
(when requester asks for fee waiver/reduction).
    (7) Find the responsive Air Force records (if any).

[[Page 28]]

    (i) Send the request to the appropriate OPRs to search for 
responsive records and to decide whether to recommend release of any 
responsive records. Include a DD Form 2086, Record of Freedom of 
Information (FOI), or a DD Form 2086-1, Record of Freedom of Information 
(FOI) Processing Cost for Technical Data, in each request. The OPR must 
complete and return the appropriate forms and statements to the FOIA 
office.
    (ii) If the OPRs find no responsive records, or if the OPRs desire 
to withhold any responsive records from release to the requester, the 
OPRs must provide a written certificate detailing either their 
unsuccessful search, or their reasons why the documents should be 
withheld from release under the FOIA; the written OPR statements must 
accompany the copies of the records the OPR desires to withhold as the 
FOIA action is processed (e.g., include it in any denial or appeal 
file).

    Note: If any part of a FOIA request is denied, and the requester 
appeals that denial, include all forms, certificates and documents 
prepared by the OPRs in the FOIA appeal package required in paragraph 
(d)(5) of this section.

    (c) Contacts with FOIA requesters and non-Air Force submitters of 
data.
    (1) Contacts with Air Force elements. A FOIA request is considered 
``received'' (and therefore ready to process) when the FOIA office 
responsible for processing the request physically receives it, when the 
requester states a willingness to pay fees set for the appropriate fee 
category, or, if applicable, when the requester has paid any past FOIA 
debts and has reasonably described the requested records. Keep hard/
paper copies of all memoranda documenting requester contacts with Air 
Force elements regarding a pending FOIA request in the requester's FOIA 
file. If the requester contacts Air Force elements telephonically about 
a pending FOIA request, the Air Force member participating in the 
conversation must prepare notes or memorandums for record (MFR), and 
keep those notes or MFRs in the requester's FOIA file. If any part of a 
FOIA request is denied, and the requester appeals that denial, submit 
documentation of requester contacts with Air Force elements in 
chronological order in the FOIA appeal package (see paragraph (d)(1) of 
this section).
    (2) Contacts with the FOIA Requester. See Sec. 806.27 for samples of 
language to use in various types of Air Force FOIA letters. If any part 
of a FOIA request is denied, and the requester appeals that denial, 
submit documents sent by Air Force elements to the requester in the FOIA 
appeal package in chronological order (see paragraph (d)(5) of this 
section). Letters that Air Force FOIA offices may need to send to a FOIA 
requester include:
    (i) An initial notification letter that the FOIA request was 
received. This letter may advise the requester that processing of the 
FOIA request may be delayed because:
    (A) All or part of the requested records are not located at the 
installation processing the FOIA request (see Sec. 806.29(c)(2)(ii)).
    (B) An enormous number of records must be collected and reviewed.
    (C) Other Air Force activities or other agencies, to include (if 
applicable) the nongovernment submitter of information, need to be 
involved in deciding whether or not to release the records.
    (D) If you cannot complete processing of a FOIA request within 20 
workdays, advise the requester of the reasons for the delay and give a 
date (within 30 workdays after receiving the request) when the requester 
can expect a final decision.
    (ii) The initial notification letter may advise the requester all/
part of the request was referred to another Air Force element or 
government activity.
    (iii) The initial notification letter may advise the requester of 
the appropriate fee category. In cases where fees are appropriate, and 
requesters have not agreed to pay for responsive records and fees are 
likely to be more than $15.00, seek assurances that the requester agrees 
to pay appropriate fees. If more information is needed to make a fee 
category determination, or to determine whether fees should be waived/
reduced, inform the requester. FOIA offices may determine fee waiver/
reduction requests before processing a FOIA request; if a fee waiver/
reduction

[[Page 29]]

request is denied, the requester may appeal that denial; he/she may also 
appeal an adverse fee category determination (e.g., asked for news media 
fees, but was assessed commercial fees.)
    (iv) The initial notification letter may advise the requester the 
request does not sufficiently describe the desired records. If possible, 
help the requester identify the requested records by explaining what 
kind of information would make searching for responsive records easier.
    (v) If Air Force elements can complete a FOIA request within the 
statutory 20-workday processing period, you may elect to send only a 
single letter to the requester, along with responsive records that are 
released to the requester in full.
    (vi) A letter to the requester that the responding FOIA office uses 
multitrack processing due to a significant number of pending requests 
that prevents a response determination from being made within 20 
workdays. This letter advises the FOIA requester that track the request 
is in (simple/complex); in this letter, if expedited processing was 
requested, the requester is advised if the request will be expedited or 
not. If the request is found to be complex, you must advise the 
requester he/she may alter the FOIA request to simplify processing. If 
it is determined the request will not be expedited, the requester must 
be told he/she can appeal. (This may be the initial letter to the 
requester, for Air Force elements with multitrack processing; if that is 
the case, this letter may include sections discussed in 
Sec. 806.29(c)(2)(i)).
    (vii) Subsequent letters to the requester on various subjects (for 
example, releasing requested records; advising reasons for delays; 
responding to the letters, facsimiles or calls; advising the requester 
of referrals to other Air Force units or government activities; involves 
a non-Air Force submitter, etc.).
    (viii) A release letter to the requester, forwarding releasable 
responsive records with a bill (if appropriate).
    (ix) A ``no records'' response letter to the requester if there are 
no responsive records, or, a denial letter, if any responsive records 
are withheld from release. FOIA managers may sign ``no records'' or 
``requested format not available'' responses; they may also sign a 
letter that advises a requester the fee category sought was not 
determined to be appropriate, or that a fee waiver/fee reduction request 
was disapproved, or that a request for expedited processing has been 
denied. An IDA must sign any letter or document withholding responsive 
records. When denying records, you must tell the requester, in writing: 
the name and title or position of the official who made the denial 
determination, the basis for the denial in enough detail to permit the 
requester to make a decision concerning appeal, and the FOIA exemptions 
on which the denial is based. The denial letter must include a brief 
statement describing what the exemptions cover. When the initial denial 
is based (in whole or in part) on a security classification, this 
explanation should include a summary of the applicable executive order 
criteria for classification, as well as an explanation of how those 
criteria apply to the particular record in question. Estimate the volume 
of the records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA. This estimate should be in number of pages or, 
for records in other media, in some other reasonable form of estimation, 
unless the volume is otherwise indicated through deletions on records 
disclosed in part. Indicate the size and location of the redactions on 
the records released. You must also tell the requester how he/she can 
appeal the denial.
    (3) Contacts with non-Air Force submitters of data. Before releasing 
data (information or records) submitted from outside the Air Force, 
determine whether you need to write to the submitter of the data for 
their views on releasability of their data. In many cases, this non-Air 
Force data may fall under FOIA Exemption 4. If it appears you must 
contact the submitter of the data, advise the requester in writing that 
you must give the submitter of the data the opportunity to comment 
before the Air Force decides whether to release the information. Give 
the submitter a reasonable period of time (30

[[Page 30]]

calendar days) to object to release and provide justification for 
withholding the documents. If the submitter does not respond, advise the 
submitter in writing that you have not received a reply and plan to 
release the records. Provide the submitter with the reasons the Air 
Force will release the records, and give the submitter your expected 
release date (at least 2 weeks from the date of your letter). This 
permits the submitter time to seek a temporary restraining order (TRO) 
in federal court, if they can convince the judge to issue such an order. 
See Sec. 806.27 for samples of language to use in Air Force letters to 
both the FOIA requester and nongovernment submitters. Remember to 
include a copy of Sec. 806.31 as an attachment to the letter sent to the 
nongovernment submitter.
    (i) The notice requirements of this section need not be followed if 
the Air Force determines that the information should not be disclosed, 
the information has been lawfully published or officially made available 
to the public, or disclosure of the information is required by law.
    (ii) If the submitter objects to release of the records, but the Air 
Force disclosure authority considers the records releasable, tell the 
submitter before releasing the data. Include in the letter to the 
submitter a brief explanation and a specific release date at least 2 
weeks from the date of the letter. Advise the submitter once a 
determination is made that release of the data is required under the 
FOIA, failure to oppose the proposed release will lead to release of 
submitted data. Also advise the requester such a release under the FOIA 
will result in the released information entering the public domain, and 
that subsequent requests for the same information will be answered 
without any formal coordination between the Air Force and the submitter, 
unless the information is later amended, changed, or modified. A person 
equal to, or higher in rank than, the denial authority makes the final 
decision to disclose responsive records over the submitter's objection.
    (iii) When a previously released contract document has been 
modified, any contract documents not in existence at the time of an 
earlier FOIA request that are responsive to a later FOIA request for the 
same contract, will be processed as a first-time FOIA request for those 
newly created documents. Notify the nongovernment submitter of the 
pending FOIA action, and give them the same opportunity to respond as is 
detailed above. Passage of a significant period of time since the prior 
FOIA release can also require Air Force elements to comply with the 
notice requirements in this paragraph.
    (d) Denying all or part of a request. When responsive records are 
withheld from release (denied), the appropriate offices must prepare a 
denial package for the IDA. Air Force elements must send the request, 
related documents, and responsive records through their IDA's FOIA 
office to the IDA for a decision. The denial package must include:
    (1) The FOIA request and any modifications by the requester.
    (2) A copy of the responsive records, including both records that 
may be released and records recommended for denial.
    (3) Written recommendations from the OPRs and an Air Force attorney.
    (4) The exemptions cited and a discussion of how the records qualify 
for withholding under the FOIA. This discussion should also include the 
reasons for denial: to deny release of responsive records requested 
under the FOIA, you must determine that disclosure of the records would 
result in a foreseeable harm to an interest protected by a FOIA 
exemption (or exemptions), that the record is exempt from release under 
one or more of the exemptions of the FOIA, and that a discretionary 
release is not appropriate.
    (5) Any collateral documents that relate to the requested records. 
For example:
    (i) If the requested records came from a non-Air Force or non-U.S. 
Federal Government submitter, include any documents from the submitter 
that relate to the release or denial of the requested records. If you 
are not sure whether or not the non-Air Force or non-U.S. Federal 
Government submitted information is potentially exempt from release 
under the FOIA, contact an Air Force attorney. FOIA Exemptions 3, 4, 5, 
6, and 7 may apply.

[[Page 31]]

    (ii) If the requested records came from Privacy Act systems of 
records, include a written discussion of any Privacy Act issues.
    (iii) If any requested records came from another Air Force element, 
or release of the requested records would affect another Air Force 
element, FOIA offices should coordinate with that other element. If the 
FOIA request is not completely referred to the other element, include 
documents from that element.
    (iv) If any requested records are classified, include a written 
certification from a classification authority or declassification 
authority stating the data was properly classified originally, that it 
remains properly classified (per E.O. 12958), and, if applicable, that 
no reasonably segregable portions can be released.
    (e) FOIA appeal actions.
    (1) If an IDA, or a FOIA office responding on behalf of an IDA, 
withholds a record from release because they determine the record is 
exempt under one or more of the exemptions to the FOIA, the requester 
may appeal that decision, in writing, to the Secretary of the Air Force. 
The appeal should be accompanied by a copy of the denial letter. FOIA 
appeals should be postmarked within 60 calendar days after the date of 
the denial letter, and should contain the reasons the requester 
disagrees with the initial denial. Late appeals may be rejected, either 
by the element initially processing the FOIA appeal, or by subsequent 
denial authorities, if the requester does not provide adequate 
justification for the delay. Appeal procedures also apply to the denial 
of a fee category claim by a requester, denial of a request for waiver 
or reduction of fees, disputes regarding fee estimates, review on an 
expedited basis of a determination not to grant expedited access to 
agency records, and for ``no record'' or ``requested format not 
available'' determinations when the requester considers such responses 
adverse in nature.
    (2) Coordinate appeals with an Air Force attorney (and the OPR, if 
appropriate) so they can consider factual and legal arguments raised in 
the appeal, and can prepare written assessments of issues raised in the 
appeal to assist the IDA in considering the appeal. MAJCOM FOIA offices 
and 11 CS/SCSR (for OPRs at HQ USAF and SAF), send all appeals to the 
Secretary of the Air Force through AFLSA/JACL for consideration, unless 
the IDA has reconsidered the initial denial action, and granted the 
appeal.
    (3) If a requester appeals a ``no records'' determination, 
organizations must search again or verify the adequacy of their first 
search (for example, if a second search would be fruitless, the 
organization may include a signed statement from either the records OPR 
or the MAJCOM FOIA manager detailing why another search was not 
practical). The appeal package must include documents (to include a 
certification from the records OPR) that show how the organization tried 
to find responsive records. In the event a requester sues the Air Force 
to contest a determination that no responsive records exist, formal 
affidavits will be required to support the adequacy of any searches 
conducted.
    (4) General administrative matters. FOIA requesters may ultimately 
sue the Air Force in federal court if they are dissatisfied with adverse 
determinations. In these suits, the contents of the administrative 
appeal file are evaluated to determine whether the Air Force complied 
with the FOIA and its own guidance. Improper or inadequate appeal files 
make defending these cases problematic. Include all the documents 
related to the requester's FOIA action in the appeal file. If appeal 
file documents are sensitive, or are classified up to the SECRET level, 
send them separately to AFLSA/JACL, 1501 Wilson Boulevard, 7th Floor, 
Arlington, VA 22209-2403. Make separate arrangements with AFLSA/JACL for 
processing classified appeal file documents TOP SECRET or higher. Cover 
letters on appeal packages need to list all attachments. If a FOIA 
action is complicated, a chronology of events helps reviewers understand 
what happened in the course of the request and appeal. If an appeal file 
does not include documentation described below, include a blank sheet in 
proper place and mark as ``not applicable,'' ``N/A,'' or ``not used.'' 
Do not renumber and

[[Page 32]]

move the other items up. If any part of the requester's appeal is 
denied, the appeal package must include a signed statement by the IDA, 
demonstrating the IDA considered and rejected the requester's arguments, 
and the basis for that decision. This may be a separate memorandum, an 
endorsement on a legal opinion or OPR opinion, or the cover letter which 
forwards the appeal for final determination. Include in the cover letter 
forwarding the appeal to the Secretary of the Air Force the name, phone 
number and e-mail address (if any) of the person to contact about the 
appeal. The order and contents of appeal file attachments follow.
    (i) The original appeal letter and envelope.
    (ii) The initial FOIA request, any modifications of the request by 
the requester or any other communications from the requester, in 
chronological order.
    (iii) The denial letter.
    (iv) Copies of all records already released. (An index of released 
documents may be helpful, if there are a number of items. If the records 
released are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in 
place of the released records. Do not send appeal files without copies 
of released records without the express agreement of AFLSA/JACL. Usually 
AFLSA/JACL requires all the released records in appeal files. If you do 
not send the released records to AFLSA/JACL when a FOIA requester has 
appealed a partial denial, retain a copy of what was released for 6 
years.)
    (v) Copies of all administrative processing documents, including 
extension letters, search descriptions, and initial OPR recommendations 
about the request, in chronological order.
    (vi) Copies of the denied records or portions marked to show what 
was withheld. If your organization uses a single set of highlighted 
records (to show items redacted from records released to the requester), 
ensure the records are legible and insert a page in the appropriate 
place stating where the records are located. (An index of denied 
documents may be helpful, if there are a number of items. If the records 
denied are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in 
place of the denied records. Do not send appeal files without copies of 
denied records without the express agreement of AFLSA/JACL. Usually 
AFLSA/JACL requires all the denied records in appeal files. If you do 
not send the denied records to AFLSA/JACL, when a FOIA requester has 
appealed a denial, retain a copy of what was denied for 6 years.)
    (vii) All legal opinions in chronological order. Include a point-by-
point discussion of factual and legal arguments in the requester's 
appeal (prepared by an Air Force attorney and/or the OPR). If the IDA 
does not state in the cover letter he/she signed, that he/she considered 
and rejected the requester's arguments, asserting the basis for that 
decision (e.g., the IDA concurs in the legal and/or OPR assessments of 
the requester's arguments) include a signed, written statement 
containing the same information from the IDA, either as a separate 
document or an endorsement to a legal or OPR assessment. Include any 
explanation of the decision-making process for intra-agency documents 
denied under the deliberative process privilege and how the denied 
material fits into that process (if applicable).



Sec. 806.30  FOIA exempt information examples.

    (a) Certain responsive records may contain parts that are 
releasable, along with other parts that the Air Force must withhold from 
release. Carefully delete information exempt from release under the FOIA 
from copies of otherwise releasable records. Do not release copies that 
would permit the requester to ``read through the marking.'' In order to 
assist FOIA managers in redacting records, selected items appropriate to 
withhold in commonly requested Air Force records are illustrated below. 
When providing releasable portions from classified paragraphs, line 
through and do not delete, the classification marking preceding the 
paragraph.
    (b) Exemption 1. Example used is an extract from a ``simulated'' 
contingency plan (all information below is

[[Page 33]]

fictional and UNCLASSIFIED; parenthetical information and marking is 
used for illustrative purposes only).

    (U) Air Force members will safeguard all FELLOW YELLOW data (NOTE: 
FELLOW YELLOW simulates an UNCLASSIFIED code name).
    During the contingency deployment in Shambala, those members 
assigned to force element FELLOW YELLOW will cover their movements by 
employing specified camouflage and concealment activities while behind 
enemy lines. Only secure communications of limited duration as specified 
in the communications annex will be employed until FELLOW YELLOW 
personnel return to base. (Exemption 1)

    (c) Exemption 2. Example used is an extract from a ``simulated'' 
test administration guide (all information below is fictional and is 
used for illustrative purposes only).

    When administering the test to determine which technicians are 
ranked fully qualified, make sure to allow only the time specified in HQ 
AETC Pamphlet XYZ, which the technicians were permitted to review as 
part of their test preparation. For ease in scoring this exam, correct 
answers are A, A, B, B, A, B, C, C, A, B, D, D, C, C, C, D; the 
corresponding template for marking the standard answer sheet is kept 
locked up at all times when not in use to grade answer sheets. 
(Exemption ``high'' 2)

    (d) Exemption 5. Example used is a simulated IG Report of 
Investigation (ROI) recommendation. All parenthetical information in 
this example is fictional and is used for illustrative purposes only:

    Having interviewed the appropriate personnel and having reviewed the 
appropriate documents, I recommend additional training sessions for all 
branch personnel on accepted Air Force standards, and the Air Force 
pursue administrative or judicial disciplinary action with respect to 
Terry Hardcase. (Exemption 5)

    (e) Exemption 6. Example used is a simulated personnel computer 
report on a military member selected for a special assignment (all 
information below is fictional; information and marking is used for 
illustrative purposes only.):

SSgt Doe, Kerry E.                SSN: 111-11-1112    Date of Birth: 22
                                                       Jun 71
Duty Title: Special Assistant to  Office Symbol:      ..................
 CINCPAC                           CINCPAC/CCSA
Duty Station: Hickam AFB HI       Date Assigned: 12
 11111-1111                        June 1998
Marital Status: Divorced          Dependents: 01      Home Address: 12
                                                       Anystreet,
                                                       Downtown ST 11112
Home Phone: (112) 223-3344
 (Exemption 6)
------------------------------------------------------------------------

    (f) Exemption 7. Example used is summary of a law enforcement report 
on a domestic disturbance at on-base family housing (all information 
below is fictional and all parenthetical information is used for 
illustrative purposes only):

    At 2140, the law enforcement desk, extension 222-3456, took an 
anonymous call that reported a disturbance at 1234 Basestreet, quarters 
allegedly occupied by two military members. SrA Patrolman (names of law 
enforcement investigators usually are withheld under Exemptions 6 and 
7(C)) arrived on the scene at 2155. SrA Patrolman met Nora Neighbor, 
(names of witnesses usually are withheld under Exemptions 6 and 7(C)) 
who was very agitated. Because she feared her neighbors would retaliate 
against her if they knew she reported their fight, she asked that her 
name not be released before she would talk. After she was promised her 
identity would remain anonymous, she stated: (Nora Neighbor became a 
confidential informant; data that could identify her, and in some cases, 
the information she related, should be withheld from release under 
Exemptions 6, 7(C) and (D).) ``I heard cursing and heard furniture and 
dishes breaking. They fight all the time. I've seen Betty Battle (unless 
Betty is the requester, redact her name Exemptions 6 and 7(C)) with a 
black eye, and I also saw Bob Battle (unless Bob is the requester, 
redact his name Exemptions 6 and 7(C)) with bruises the day after they 
had their last fight, last Saturday night. This time, there was a 
tremendous crash; I heard a man scream ``My Lord NO!'' then I saw Betty 
Battle come out of the house with dark stains on her clothes--she got 
into her car and drove away. I could see this really well, because the 
streetlight is right between our houses; I'm the wife of their NCOIC. If 
only Nick, my husband, was here now, he'd know what to do! I haven't 
heard anything from Bob Battle.'' (Exemptions 6 and 7)

[[Page 34]]



Sec. 806.31  Requirements of 5 U.S.C. 552(b)(4) to submitters of nongovernment contract-related information.

    (a) The FOIA requires federal agencies to provide their records, 
except those specifically exempted, for the public to inspect and copy. 
Section (b) of the Act lists nine exemptions that are the only basis for 
withholding records from the public.
    (b) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may 
apply to records or information the Air Force maintains. Under this 
exemption, agencies must withhold trade secrets and commercial or 
financial information they obtained from a person or organization 
outside the government that is privileged or confidential. This 
generally includes information provided and received during the 
contracting process with the understanding that the Air Force will keep 
it privileged or confidential.
    (c) Commercial or financial matter is ``confidential'' and exempt if 
its release will probably:
    (1) Impair the government's ability to obtain necessary information 
in the future.
    (2) Substantially harm the source's competitive position or impair 
some other legitimate government interest such as compliance and program 
effectiveness.
    (d) Applicability of exemption. The exemption may be used to protect 
information provided by a nongovernment submitter when public disclosure 
will probably cause substantial harm to its competitive position. 
Examples of information that may qualify for this exemption include:
    (1) Commercial or financial information received in confidence with 
loans, bids, contracts, or proposals, as well as other information 
received in confidence or privileged, such as trade secrets, inventions, 
discoveries, or other proprietary data.

    Note: Certain proprietary and source selection information may also 
fall under exemption (b)(3), under the provisions of 10 U.S.C. 2305(g) 
or 41 U.S.C. 423, if statutory requirements are met.

    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given during inspections, investigations, or 
audits, received and kept in confidence because they reveal trade 
secrets or commercial or financial information, normally considered 
confidential or privileged.
    (4) Financial data that private employers give in confidence for 
local wage surveys used to set and adjust pay schedules for the 
prevailing wage rate of DoD employees.
    (5) Information about scientific and manufacturing processes or 
developments that is technical or scientific or other information 
submitted with a research grant application, or with a report while 
research is in progress.
    (6) Technical or scientific data a contractor or subcontractor 
develops entirely at private expense, and technical or scientific data 
developed partly with Federal funds and partly with private funds, in 
which the contractor or subcontractor retains legitimate proprietary 
interests per 10 U.S.C. 2320 to 2321 and 48 CFR, Chapter 2, 227.71-
227.72.
    (7) Computer software copyrighted under the Copyright Act of 1976 
(17 U.S.C. 106), the disclosure of which would adversely impact its 
potential market value.
    (e) Submitter's Written Response. If release of the requested 
material would prejudice your commercial interests, give detailed 
written reasons that identify the specific information and the 
competitive harm public release will cause to you, your organization, or 
your business. The act requires the Air Force to provide any reasonably 
segregable part of a record after deleting exempt portions. If deleting 
key words or phrases would adequately protect your interests, advise us 
in writing which portions you believe we can safely release, and which 
portions you believe we need to withhold from release. If you do not 
provide details on the probability of substantial harm to your 
competitive position or other commercial interests, which would be 
caused by releasing your material to the requester, we may be required 
to release the information. Records qualify for protection on a case by 
case basis.

[[Page 35]]

    (f) Pricing Information. Generally, the prices a contractor charges 
the government for goods or services would be released under the FOIA. 
Examples of releasable data include: bids submitted in response to an 
invitation for bids (IFB), amounts actually paid by the government under 
a contract, and line item prices, contract award price, and 
modifications to a contract. Unit prices contained in a contract award 
are considered releasable as part of the post award notification 
procedure prescribed by 48 CFR 15.503, unless they are part of an 
unsuccessful proposal, then 10 U.S.C. 2305(g) protects everything 
including unit price.

                   Appendix A to Part 806--References

Title 5, United States Code, Section 552, The Freedom of Information 
Act, as amended
Title 5, United States Code, Section 552a, The Privacy Act (as amended)
Title 10, United States Code, Section 2305(g), Prohibition on Release of 
Contractor Proposals
Title 48, Code of Federal Regulations (CFR), Federal Acquisition 
Regulations (FAR) System
OMB Bulletin 95-01, 7 December 1994
OMB Memorandum, 6 February 1998
DoD 5200.1-R, Information Security Program, January 1997
AFI 16-701, Special Access Programs
AFI 31-206, Security Police Investigations
AFI 31-401, Information Security Program Management
AFI 31-501, Personnel Security Program Management
AFI 31-601, Industrial Security Program Management
AFI 33-129, Transmission of Information Via the Internet
AFI 35-205, Air Force Security and Policy Review Program
AFI 36-2603, Air Force Board for Correction of Military Records
AFI 36-2706, Military Equal Opportunity and Treatment Program
AFI 36-2906, Personal Financial Responsibility
AFI 36-2907, Unfavorable Information File (UIF) Program
AFPD 37-1, Air Force Information Management (will convert to AFPD 33-3)
AFI 37-124, The Information Collections and Reports Management Program; 
Controlling Internal, Public, and Interagency Air Force Information 
Collections (will convert to AFI 33-324)
AFI 37-132, Air Force Privacy Act Program (will convert to AFI 33-332)
AFMAN 37-139, Records Disposition Schedule (will convert to AFMAN 33-
339)
AFI 40-301, Family Advocacy
AFI 41-210, Patient Administration Functions
AFI 44-109, Mental Health and Military Law
AFI 51-201, Administration of Military Justice
AFI 51-301, Civil Litigation
AFI 51-303, Intellectual Property-Patents, Patent Related Matters, 
Trademarks, and Copyrights
AFI 51-501, Tort Claims
AFI 51-503, Aircraft, Missile, Nuclear and Space Accident Investigations
AFI 51-504, Legal Assistance, Notary and Preventive Law Programs
AFI 51-1102, Cooperation with the Office of the Special Counsel
AFI 61-204, Disseminating Scientific and Technical Information
AFI 61-303, Licensing Inventions Made Under Cooperative Research and 
Development Agreements
AFI 65-401, Relations With the General Accounting Office
AFI 71-101, Volume 1, Criminal Investigations
AFI 71-101, Volume 2, Protective Service Matters
AFI 84-101, Historical Products, Services, and Requirements
AFI 90-301, Inspector General Complaints
AFI 90-401, Air Force Relations With Congress
AFI 91-204, Safety Investigations and Reports

           Appendix B to Part 806--Abbreviations and Acronyms

AFCA--Air Force Communications Agency
AFCIC--Air Force Communications and Information Center
AFRC--Air Force Reserve Command
AFI--Air Force Instruction
AFLSA/JACL--Air Force Legal Services Agency, General Litigation Division
AFMAN--Air Force Manual
AFPC/MSIMD--Air Force Personnel Center/Records Management, FOIA, and 
Privacy Act Office
AFPD--Air Force Policy Directive
ANG--Air National Guard
ASCII--American Standard Code for Information Interchange
CFR--Code of Federal Regulations
DFAS--Defense Finance and Accounting Service
DFOISR--Director, Freedom of Information and Security Review
DoD--Department of Defense
DRU--Direct Reporting Unit
EFOIA--Electronic Freedom of Information Act
ERR--Electronic Reading Room
FOA--Field Operating Agency
FOIA--Freedom of Information Act
FOUO--For Official Use Only

[[Page 36]]

GAO--General Accounting Office
GILS--Government Information Locator Service
GPO--Government Printing Office
IDA--Initial Denial Authority
IG--Inspector General
IMPAC--International Merchant Purchase Authority Card
LOA--Letters of Offer and Acceptance
MAJCOM--Major Command
MFR--Memorandum for Record
NATO--North Atlantic Treaty Organization
NORAD--North American Aerospace Defense
NTIS--National Technical Information Service
OCR--Office of Corollary Responsibility
OMB--Office of Management and Budget
OPR--Office of Primary Responsibility
PA--Privacy Act
PAO--Public Affairs Office
PAS--Personnel Accounting Symbol
RCS--Reports Control Symbol
SAF--Secretary of the Air Force
SSN--Social Security Number
USAF--United States Air Force
U.S.C.--United States Code
WWW--World Wide Web

                      Appendix C To Part 806--Terms

Appellate Authority--The Office of the General Counsel to the Secretary 
of the Air Force (SAF/GCA).
Denial--An adverse determination on no records, fees, expedited access, 
or not disclosing records.
Determination--The written decision to release or deny records or 
information that is responsive to a request.
Disclosure--Providing access to, or one copy of, a record.
Disclosure Authority--Official authorized to release records, normally 
division chiefs or higher.
FOIA Manager--The person who manages the FOIA Program at each 
organizational level.
FOIA Request--A written request for DoD records from the public that 
cites or implies the FOIA.
Functional Request--Any request for records from the public that does 
not cite the FOIA.
Government Information Locator Service (GILS)--An automated on-line card 
catalog of publicly accessible information.
Glomar Response--A reply that neither confirms nor denies the existence 
or nonexistence of the requested record.
Initial Denial Authority (IDA)--Persons in authorized positions that may 
withhold records.
Partial Denial--A decision to withhold part of a requested record.
Public Interest--The interest in obtaining official information that 
sheds light on how an agency performs its statutory duties and informs 
citizens about what their government is doing.
Reading Room--A place where the public may inspect and copy, or have 
copied, releasable records.
Records--The products of data compilation, such as all books, papers, 
maps, and photographs, machine readable materials inclusive of those in 
electronic form or format, or other documentary materials, regardless of 
physical form or characteristics, made or received by an agency of the 
U.S. Government under Federal Law in connection with the transaction of 
public business and in the agency's possession and control at the time 
the FOIA request is made. Records include notes, working papers, and 
drafts.
Redact--To remove nonreleasable material.



PART 806b--AIR FORCE PRIVACY ACT PROGRAM--Table of Contents




             Subpart A--Overview of the Privacy Act Program

Sec.
806b.1  Basic guidelines.
806b.2  Violation penalties.
806b.3  Personal notes.
806b.4  Responsibilities.

      Subpart B--Obtaining Law Enforcement Records and Promises of 
                             Confidentiality

806b.5  Obtaining law enforcement records.
806b.6  Promising confidentiality.

               Subpart C--Collecting Personal Information

806b.7  How to collect personal information.
806b.8  When to give Privacy Act statements (PAS).
806b.9  Requesting the social security number (SSN).

             Subpart D--Giving Access to Privacy Act Records

806b.10  Making a request for access.
806b.11  Processing a request for access.
806b.12  Fees.
806b.13  Denying or limiting access.
806b.14  Denial authorities.

                     Subpart E--Amending the Record

806b.15  Amendment reasons.
806b.16  Responding to amendment requests.
806b.17  Approving or denying a record amendment.
806b.18  Seeking review of unfavorable agency determinations.
806b.19  Appeal procedures.
806b.20  Contents of Privacy Act case files.

[[Page 37]]

                  Subpart F--Privacy Act Notifications

806b.21  When to include a Privacy Act warning statement in 
          publications.
806b.22  Publishing system notices.
806b.23  Timing of notices.

             Subpart G--Protecting and Disposing of Records

806b.24  Protecting records.
806b.25  Balancing protection.
806b.26  Disposing of records.

                    Subpart H--Privacy Act Exemptions

806b.27  Requesting an exemption.
806b.28  Exemption types.
806b.29  Authorizing exemptions.
806b.30  Approved exemptions.

             Subpart I--Disclosing Records to Third Parties

806b.31  Disclosure considerations.
806b.32  Disclosing information for which consent is not required.
806b.33  Disclosing other information.
806b.34  Agencies or individuals to whom the Air Force may release 
          privacy information.
806b.35  Disclosing the medical records of minors.
806b.36  Disclosure accounting.
806b.37  Computer matching.

                           Subpart J--Training

806b.38  Who needs training.
806b.39  Training tools.

                    Subpart K--Privacy Act Reporting

806b.40  Privacy Act report (RCS: DD-DA&M(A)1379).

Appendix A to part 806b--Glossary of References, Abbreviations, 
          Acronyms, and Terms
Appendix B to part 806b--Preparing a System Notice
Appendix C to part 806b--General and Specific Exemptions

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 59 FR 53099, Oct. 21, 1994, unless otherwise noted.



             Subpart A--Overview of the Privacy Act Program



Sec. 806b.1  Basic guidelines.

    The Privacy Act of 1974 and this part apply only to information in 
Air Force systems of records on living United States citizens and 
permanent resident aliens.
    (a) An official system of records must be:
    (1) Authorized by law or Executive Order.
    (2) Controlled by an Air Force or lower level directive.
    (3) Needed to carry out an Air Force mission or function.
    (b) The Air Force does not:
    (1) Keep records on how a person exercises First Amendment rights. 
EXCEPTIONS are when: The Air Force has the permission of that individual 
or is authorized by federal statute; or the information pertains to an 
authorized law enforcement activity.
    (2) Penalize or harass an individual for exercising rights 
guaranteed under the Privacy Act. Give reasonable aid to individuals 
exercising their rights.
    (c) Air Force members:
    (1) Keep paper and electronic records containing personal 
information and retrieved by name or personal identifier only in 
approved systems published in the Federal Register.
    (2) Collect, maintain, and use information in such systems only to 
support programs authorized by law or Executive Order.
    (3) Safeguard the records in the system and keep them the minimum 
time required.
    (4) Keep the records timely, accurate, complete, and relevant.
    (5) Amend and correct records on request.
    (6) Let individuals review and receive copies of their own records 
unless the Secretary of the Air Force approved an exemption for the 
system or the Air Force created the records in anticipation of a civil 
action or proceeding.
    (7) Provide a review of decisions that deny individuals access to or 
amendment of their records.



Sec. 806b.2  Violation penalties.

    An individual may file a civil suit against the Air Force for 
failing to comply with the Privacy Act. The courts may find an 
individual offender guilty of a misdemeanor and fine that individual 
offender not more than $5,000 for:

[[Page 38]]

    (a) Willfully maintaining a system of records that doesn't meet the 
public notice requirements.
    (b) Disclosing information from a system of records to someone not 
entitled to the information.
    (c) Obtaining someone else's records under false pretenses.



Sec. 806b.3  Personal notes.

    If you keep personal notes on individuals to use as memory aids to 
supervise or perform other official functions, and do not share them 
with others, and an Air Force directive does not require their 
maintenance, the Privacy Act does not apply.



Sec. 806b.4  Responsibilities.

    (a) The Administrative Assistant to the Secretary of the Air Force 
(SAF/AA) manages the entire program.
    (b) The Office of the General Counsel to the Secretary of the Air 
Force (SAF/GCA) makes final decisions on appeals.
    (c) The Director of Information Management (SAF/AAI), through the 
Access Programs Office of the Policy Division, (SAF/AAIA):
    (1) Administers procedures outlined in this part.
    (2) Submits system notices and required reports to the Defense 
Privacy Office.
    (3) Guides major commands (MAJCOM) and field operating agencies 
(FOA).
    (d) MAJCOM and FOA commanders, HQ USAF and Deputy Chiefs of Staff 
(DCS), and comparable officials, and SAF offices implement this part. 
Each HQ USAF and SAF office appoints a Privacy Act monitor. Send the 
name, office symbol, and phone number to SAF/AAIA.
    (e) MAJCOM and FOA Information Managers:
    (1) Manage the program.
    (2) Appoint a command Privacy Act officer.
    (3) Send the name, office symbol, and phone number to SAF/AAIA.
    (f) Privacy Act Officers:
    (1) Guide and train.
    (2) Review the program at regular intervals.
    (3) Submit reports.
    (4) Review all publications and forms for compliance with this part.
    (5) Review system notices.
    (6) Investigate complaints.
    (7) Staff denial recommendations (at MAJCOMs and FOAs only).
    (g) System Managers:
    (1) Decide the need for, and content of systems.
    (2) Manage and safeguard the system.
    (3) Train personnel on Privacy Act requirements.
    (4) Protect records from unauthorized disclosure, alteration, or 
destruction.
    (5) Prepare system notices and reports.
    (6) Answer Privacy Act requests.
    (7) Keep records of disclosures.
    (8) Evaluate the systems annually.
    (h) Privacy Act Monitors (PAM):
    (1) Are the focal point in their functional area for general Privacy 
Act questions and correspondence.
    (2) Maintain a list of all systems of records and system managers in 
their area.
    (3) Act as liaison with the Privacy Act Officer.
    (4) Maintain statistics for the annual Privacy Act report.



      Subpart B--Obtaining Law Enforcement Records and Promises of 
                             Confidentiality



Sec. 806b.5  Obtaining law enforcement records.

    The Commander AFOSI; the Chief, Air Force Security Police Agency 
(AFSPA); MAJCOM, FOA, and base chiefs of security police; AFOSI 
detachment commanders; and designees of those offices may ask another 
agency for records for law enforcement under 5 U.S.C. 552a(b)(7). The 
requesting office must indicate in writing the specific part of the 
record desired and identify the law enforcement activity asking for the 
record.



Sec. 806b.6  Promising confidentiality.

    Record promises of confidentiality to exempt from disclosure any 
`confidential' information under subsections (k)(2), (k)(5), or (k)(7) 
of the Privacy Act.

[[Page 39]]



               Subpart C--Collecting Personal Information



Sec. 806b.7  How to collect personal information.

    Collect personal information directly from the subject of the record 
when possible. You may ask third parties when:
    (a) You must verify information.
    (b) You want opinions or evaluations.
    (c) You can't contact the subject.
    (d) The subject asks you.



Sec. 806b.8  When to give Privacy Act statements (PAS).

    (a) Give a PAS orally or in writing:
    (1) To anyone from whom you are collecting personal information that 
will be put in a system of records.
    (2) Whenever you ask someone for his or her Social Security Number 
(SSN).
    Note: Do this regardless of how you collect or record the answers. 
You may display a sign in areas where people routinely furnish this kind 
of information. Give a copy of the PAS if asked. Do not ask the person 
to sign the PAS.
    (3) A PAS must include four items:
    (i) Authority: The legal authority, that is, the United States Code 
or Executive Order authorizing the program the system supports.
    (ii) Purpose: The reason you are collecting the information.
    (iii) Routine Uses: A list of where and why the information will be 
disclosed outside DoD.
    (iv) Disclosure: Voluntary or Mandatory. (Use Mandatory only when 
disclosure is required by law and the individual will be penalized for 
not providing information.) Include any consequences of nondisclosure in 
nonthreatening language.



Sec. 806b.9  Requesting the social security number (SSN).

    (a) Do not deny people a legal right, benefit, or privilege for 
refusing to give their SSNs unless the law requires disclosure, or a law 
or regulation adopted before January 1, 1975, required the SSN and the 
Air Force uses it to verify a person's identity in a system of records 
established before that date. When you ask for an SSN to create a 
record, tell the individual:
    (1) The statute, regulation, or rule authorizing you to ask for the 
SSN.
    (2) The uses that will be made of the SSN.
    (3) If he or she is legally obligated to provide the SSN.
    (b) The Air Force requests an individual's SSN and provides the 
individual information required by law when anyone enters military 
service or becomes an Air Force civilian employee. The Air Force uses 
the SSN as a service or employment number to reference the individual's 
official records. When you ask someone for an SSN as identification (ID) 
to retrieve an existing record, you do not have to restate this 
information.
    (c) Executive Order 9397, November 22, 1943, authorizes using the 
SSN as a personal identifier. This order is not adequate authority to 
collect an SSN to create a record. When law does not require disclosing 
the SSN or when the system of records was created after January 1, 1975, 
you may ask for the SSN, but the individual does not have to disclose 
it. If the individual refuses to respond, use alternative means of 
identifying records.
    (d) SSNs are personal and unique to each individual. Protect them as 
FOR OFFICIAL USE ONLY (FOUO). Do not disclose them to anyone without an 
official need to know.



             Subpart D--Giving Access to Privacy Act Records



Sec. 806b.10  Making a request for access.

    Persons or their designated representatives may ask for a copy of 
their records in a system of records. Requesters need not state why they 
want access to their records. Verify the identity of the requester to 
avoid unauthorized disclosures. How you verify identity will depend on 
the sensitivity of the requested records. Persons without access to 
notary services may use an unsworn declaration in the following format: 
`I declare under penalty of perjury (if outside the United States, add 
`under the laws of the United States of America') that the foregoing is 
true and correct. Executed on (date). (Signature).'

[[Page 40]]



Sec. 806b.11  Processing a request for access.

    Consider a request from an individual for his or her own records in 
a system of records under both the Freedom of Information Act (FOIA) and 
the Privacy Act regardless of the Act cited. The requester need not cite 
any Act. Process the request under whichever Act gives the most 
information. When necessary, tell the requester under which Act you 
processed the request and why.
    (a) Requesters should describe the records they want. They do not 
have to name a system of records number, but they should at least name a 
type of record or functional area. For requests that ask for `all 
records about me,' ask for more information and tell the person how to 
review the Air Force systems of records published in the Federal 
Register or in AFDIR 37-144 \1\, `Privacy Act Systems of Record' 
(formerly AFR 4-36).
---------------------------------------------------------------------------

    \1\ Copies may be obtained at cost from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (b) Requesters should not use government equipment, supplies, 
stationery, postage, telephones, or official mail channels for making 
Privacy Act requests. Privacy Act Officers and system managers process 
such requests but tell requesters that using government resources to 
make Privacy Act requests is not authorized.
    (c) Tell the requester if a record exists and how to review the 
record. If possible, respond to requests within 10 workdays of receiving 
them. If you cannot answer the request in 10 workdays, send a letter 
explaining why and give an approximate completion date no more than 20 
workdays after the first office received the request.
    (d) Show or give a copy of the record to the requester within 30 
workdays of receiving the request unless the system is exempt and the 
Air Force lists the exemption in appendix C of this part; or published 
as a final rule in the Federal Register. Give information in a form the 
requester can understand.
    (e) If the requester wants another person present during the record 
review, the system manager may ask for written consent to authorize 
discussing the record with another person present.



Sec. 806b.12  Fees.

    Give the first 100 pages free, and charge only reproduction costs 
for the remainder. Copies cost $.15 per page; microfiche costs $.25 per 
fiche. Charge the fee for the first 100 pages if records show that the 
Air Force already responded to a request for the same records at no 
charge. Do not charge fees:
    (a) When the requester can get the record without charge under 
another publication (for example, medical records).
    (b) For search.
    (c) For reproducing a document for the convenience of the Air Force.
    (d) For reproducing a record so the requester can review it.



Sec. 806b.13  Denying or limiting access.

    Process access denials within five workdays after you receive a 
request for access. When you may not release a record, send a copy of 
the request, the record, and why you recommend denying access (including 
the applicable exemption) to the denial authority through the Staff 
Judge Advocate (SJA) and the Privacy Act officer. The SJA gives a 
written legal opinion on the denial. The MAJCOM or FOA Privacy Act 
officer reviews the file, gets written advice from the SJA and the 
functional office of primary responsibility (OPR), and makes a 
recommendation to the denial authority. The denial authority sends the 
requester a letter with the decision. If the denial authority grants 
access, release the record. If the denial authority refuses access, tell 
the requester why and explain pertinent appeal rights.
    (a) Before you deny a request for access to a record, make sure 
that:
    (1) The system has an SAF approved exemption.
    (2) The exemption covers each document.
    (3) Nonexempt parts are segregated.
    (b) You may refuse to give out medical records if a physician 
believes that doing so could harm the person's mental or physical 
health. You have these options:

[[Page 41]]

    (1) Ask the requester to get a letter from a physician to whom you 
can send the records. Include a letter explaining to the physician that 
giving the records directly to the individual could be harmful.
    (2) Offer the services of a military physician other than one who 
provided treatment if naming the physician poses a hardship on the 
individual.
    (c) Do not delete third-party information from a record when the 
subject requests access, except as noted in Sec. 806b.13(d), unless the 
Air Force covers the record with an established exemption (appendix C of 
this part). Presume that all information in a file pertains to the 
subject of the file.
    (d) Do not release third-party personal data (such as SSN and home 
address). This action is not a denial.
    (e) Withhold records compiled in connection with a civil action or 
other proceeding including any action where the Air Force expects 
judicial or administrative adjudicatory proceedings. This exemption does 
not cover criminal actions. Do not release attorney work products 
prepared before, during, or after the action or proceeding.



Sec. 806b.14  Denial authorities.

    These officials or a designee may deny access or amendment of 
records. Send a letter to SAF/AAIA with the position titles of 
designees. You must get SAF/AA approval before delegating this authority 
to a lower level. Send requests for waiver with justification to SAF/
AAIA. Authorities are:
    (a) DCSs and chiefs of comparable offices or higher level at SAF or 
HQ USAF.
    (b) MAJCOM or FOA commanders.
    (c) HQ USAF/DPCP, Pentagon, Washington, DC 20330-5060 (for civilian 
personnel records).
    (d) Commander, Air Force Office of Special Investigations (AFOSI), 
Washington, DC 20332-6001 (for AFOSI records).



                     Subpart E--Amending the Record



Sec. 806b.15  Amendment reasons.

    Individuals may ask to have their records amended to make them 
accurate, timely, relevant, or complete. System managers routinely 
correct a record if the requester can show that it is factually wrong.



Sec. 806b.16  Responding to amendment requests.

    (a) Anyone may request minor corrections orally. Requests for more 
serious modifications should be in writing.
    (b) After verifying the identity of the requester, make the change, 
notify all known recipients of the record, and inform the individual.
    (c) Acknowledge requests within 10 workdays of receipt. Give an 
expected completion date unless you complete the change within that 
time. Final decisions must take no longer than 30 workdays.



Sec. 806b.17  Approving or denying a record amendment.

    The Air Force does not usually amend a record when the change is 
based on opinion, interpretation, or subjective official judgment. This 
action constitutes a denial, and requesters may appeal. If the system 
manager decides not to amend or partially amend the record, send a copy 
of the request, the record, and the recommended denial reasons to the 
denial authority through the SJA and the Privacy Act officer. SJAs will 
include a legal opinion.
    (a) The MAJCOM or FOA Privacy Act officer reviews the proposed 
denial, gets a legal opinion from the SJA and written advice from the 
functional OPR, and makes a recommendation to the denial authority.
    (b) The denial authority sends the requester a letter with the 
decision. If the denial authority approves the request, amend the record 
and notify all previous recipients that it has been changed. If the 
authority denies the request, give the requester the statutory 
authority, reason, and pertinent appeal rights.



Sec. 806b.18  Seeking review of unfavorable agency determinations.

    Requesters should pursue record corrections of subjective matters 
and opinions through proper channels to the Civilian Personnel Office 
using grievance procedures or the Air Force Board for Correction of 
Military Records (AFBCMR). Record correction

[[Page 42]]

requests denied by the AFBCMR are not subject to further consideration 
under this part.



Sec. 806b.19  Appeal procedures.

    (a) Individuals may request a denial review by writing to the 
Secretary of the Air Force through the denial authority within 60 
calendar days after receiving a denial letter. The denial authority 
promptly sends a complete appeal package to SAF/AAIA, including:
    (1) Original appeal letter.
    (2) Initial request.
    (3) Initial denial.
    (4) Copy of the record.
    (5) Any internal records or coordination actions relating to the 
denial.
    (6) Denial authority's comments on the appellant's arguments.
    (7) Legal reviews.
    (b) If the denial authority reverses an earlier denial and grants 
access or amendment, notify the requester immediately.
    (c) SAF/AAIA reviews the denial and forwards to SAF/GCA for legal 
review or staffing to grant or deny the appeal. SAF/GCA tells the 
requester the final Air Force decision and explains judicial review 
rights.
    (d) The requester may file a concise statement of disagreement with 
the system manager if SAF/GCA denies the request to amend the record. 
SAF/GCA explains the requester's rights when they issue the final appeal 
decision.
    (1) The records should clearly show that a statement of disagreement 
is filed with the record or separately.
    (2) The disputed part of the record must show that the requester 
filed a statement of disagreement.
    (3) Give copies of the statement of disagreement to the record's 
previous recipients. Inform subsequent record users about the dispute 
and give them a copy of the statement with the record.
    (4) The system manager may include a brief summary of the reasons 
for not amending the record. Limit the summary to the reasons SAF/GCA 
gave to the individual. The summary is part of the individual's record, 
but it is not subject to amendment procedures.



Sec. 806b.20  Contents of Privacy Act case files.

    Do not keep copies of disputed records in this file. Use the file 
solely for statistics and to process requests. Do not use the case files 
to make any kind of determination about an individual. Document reasons 
for untimely responses. These files include:
    (a) Requests from and replies to individuals on whether a system has 
records about them.
    (b) Requests for access or amendment.
    (c) Approvals, denials, appeals, and final review actions.
    (d) Coordination actions and related papers.



                  Subpart F--Privacy Act Notifications



Sec. 806b.21  When to include a Privacy Act warning statement in publications.

    Include a Privacy Act Warning Statement in each Air Force 
publication that requires collecting or keeping personal information in 
a system of records. Also include the warning statement when 
publications direct collection of the SSN from the individual. The 
warning statement will cite legal authority and the system of records 
number and title. You can use the following warning statement: `This 
part requires collecting and maintaining information protected by the 
Privacy Act of 1974 authorized by (U.S.C. citation and or Executive 
Order number). System of records notice (number and title) applies.'



Sec. 806b.22  Publishing system notices.

    The Air Force must publish notices in the Federal Register of new, 
amended, and deleted systems to inform the public of what records the 
Air Force keeps and give them an opportunity to comment. The Privacy Act 
also requires submission of new or significantly altered systems to the 
Office of Management and Budget (OMB) and both houses of the Congress 
before publication in the Federal Register. This includes:
    (a) Starting a new system.
    (b) Instituting significant changes to an existing system.

[[Page 43]]

    (c) Sending out data collection forms or instructions.
    (d) Issuing a request for proposal or invitation for bid to support 
a new system.



Sec. 806b.23  Timing of notices.

    At least 120 days before the effective start date, system managers 
must send the system notice to SAF/AAIA on a 5 1/4 or 3 1/2-inch disk in 
Wordstar (ASCII text file) or Microsoft Word, with a paper copy 
highlighting any changes through the MAJCOM or FOA Privacy Act Officer. 
See Appendix B of this part for a sample system notice.



             Subpart G--Protecting and Disposing of Records



Sec. 806b.24  Protecting records.

    Protect information according to its sensitivity level. Consider the 
personal sensitivity of the information and the risk of loss or 
alteration. Most information in systems of records is FOR OFFICIAL USE 
ONLY (FOUO). Refer to AFI 37-131 \2\, `Air Force Freedom of Information 
Act Program,' for protection methods.
---------------------------------------------------------------------------

    \2\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------



Sec. 806b.25  Balancing protection.

    Balance additional protection against risk and cost. AF Form 3227, 
`Privacy Act Cover Sheet', is available for use with Privacy Act 
material. For example, a password may be enough protection for an 
automated system with a log-on protocol. Classified computer systems or 
those with established audit and password systems are obviously less 
vulnerable than unprotected files or word processors in offices that are 
periodically empty. Follow AFI 33-202 \3\, `The Air Force Computer 
Security Program,' for procedures on safeguarding personal information 
in automated records.
---------------------------------------------------------------------------

    \3\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------



Sec. 806b.26  Disposing of records.

    You may use the following methods to dispose of records protected by 
the Privacy Act according to records retention schedules:
    (a) Destroy by any method that prevents compromise, such as tearing, 
burning, or shredding, so long as the personal data is not recognizable 
and beyond reconstruction.
    (b) Degauss or overwrite magnetic tapes or other magnetic medium.
    (c) Dispose of paper products through the Defense Reutilization and 
Marketing Office (DRMO) or through activities who manage a base-wide 
recycling program. The recycling sales contract must contain a clause 
requiring the contractor to safeguard privacy material until its 
destruction and to pulp, macerate, shred, or otherwise completely 
destroy the records. Originators must safeguard Privacy Act material 
until it is transferred to the recycling contractor. A federal employee 
or, if authorized, a contractor employee must witness the destruction. 
This transfer does not require a disclosure accounting.



                    Subpart H--Privacy Act Exemptions



Sec. 806b.27  Requesting an exemption.

    A system manager who believes that a system needs an exemption from 
some or all of the requirements of the Privacy Act should send a request 
to SAF/AAIA through the MAJCOM or FOA Privacy Act Officer. The request 
should detail the reasons for the exemption and the section of the Act 
that allows the exemption. SAF/AAIA gets approval for the request 
through SAF/AA and the Defense Privacy Office.



Sec. 806b.28  Exemption types.

    (a) A general exemption frees a system from most parts of the 
Privacy Act.
    (b) A specific exemption frees a system from only a few parts of the 
Privacy Act.



Sec. 806b.29  Authorizing exemptions.

    Only SAF/AA can exempt systems of records from any part of the 
Privacy Act. Denial authorities can withhold records using these 
exemptions only if SAF/AA previously approved and published an exemption 
for the system in the Federal Register. Appendix C of

[[Page 44]]

this part lists the systems of records that have approved exemptions.



Sec. 806b.30  Approved exemptions.

    Approved exemptions exist under 5 U.S.C. 552a for:
    (a) Certain systems of records used by activities whose principal 
function is criminal law enforcement (subsection (j)(2)).
    (b) Classified information in any system of records (subsection 
(k)(1)).
    (c) Law enforcement records (other than those covered by subsection 
(j)(2)). The Air Force must allow an individual access to any record 
that is used to deny rights, privileges or benefits to which he or she 
would otherwise be entitled by federal law or for which he or she would 
otherwise be eligible as a result of the maintenance of the information 
(unless doing so would reveal a confidential source) (subsection 
(k)(2)).
    (d) Statistical records required by law. Data is for statistical use 
only and may not be used to decide individuals' rights, benefits, or 
entitlements (subsection (k)(4)).
    (e) Data to determine suitability, eligibility, or qualifications 
for federal service or contracts, or access to classified information if 
access would reveal a confidential source (subsection (k)(5)).
    (f) Qualification tests for appointment or promotion in the federal 
service if access to this information would compromise the objectivity 
of the tests (subsection (k)(6)).
    (g) Information which the Armed Forces uses to evaluate potential 
for promotion if access to this information would reveal a confidential 
source (subsection (k)(7)).



             Subpart I--Disclosing Records to Third Parties



Sec. 806b.31  Disclosure considerations.

    Before releasing personal information to third parties, consider the 
consequences, check accuracy, and make sure that no law or directive 
bans disclosure. You can release personal information to third parties 
when the subject agrees orally or in writing. Air Force members consent 
to releasing their home telephone number and address when they sign and 
check the `Do Consent' block on the AF Form 624, `Base/Unit Locator and 
PSC Directory' (see AFI 37-129 \4\, `Base and Unit Personnel Locators 
and Postal Directories').
---------------------------------------------------------------------------

    \4\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------

    (a) Before including personal information such as home addresses, 
home phones, and similar information on social rosters or directories, 
ask for written consent statements. Otherwise, do not include the 
information.
    (b) You must get written consent before releasing any of these items 
of information:
    (1) Marital status.
    (2) Number and sex of dependents.
    (3) Gross salary of military personnel (see Sec. 806b.32 for 
releasable pay information).
    (4) Civilian educational degrees and major areas of study.
    (5) School and year of graduation.
    (6) Home of record.
    (7) Home address and phone.
    (8) Age and date of birth.
    (9) Present or future assignments for overseas or for routinely 
deployable or sensitive units.
    (10) Office and unit address and duty phone for overseas or for 
routinely deployable or sensitive units.



Sec. 806b.32  Disclosing information for which consent is not required.

    You don't need consent before releasing any of these items:
    (a) Information releasable under the FOIA.
    (b) Information for use within the Department of Defense by 
officials or employees with a need to know.
    (c) Name.
    (d) Rank.
    (e) Grade.
    (f) Air Force specialty code (AFSC).
    (g) Pay (including base pay, special pay, all allowances except 
Basic Allowance for Quarters (BAQ) and Variable Housing Allowance 
(VHA)).
    (h) Gross salary for civilians.
    (i) Past duty assignments.
    (j) Present and future approved and announced stateside assignments.
    (k) Position title.

[[Page 45]]

    (l) Office, unit address, and duty phone number.
    (m) Date of rank.
    (n) Entered on active duty (EAD) date.
    (o) Pay date.
    (p) Source of commission.
    (q) Professional military education.
    (r) Promotion sequence number.
    (s) Military awards and decorations.
    (t) Duty status of active, retired, or reserve.
    (u) Active duty official attendance at technical, scientific, or 
professional meetings.
    (v) Biographies and photos of key personnel.



Sec. 806b.33  Disclosing other information.

    Use these guidelines to decide whether to release information:
    (a) Would the subject have a reasonable expectation of privacy in 
the information requested?
    (b) Would disclosing the information benefit the general public? The 
Air Force considers information as meeting the public interest standard 
if it reveals anything regarding the operations or activities of the 
agency, or performance of its statutory duties.
    (c) Balance the public interest against the individual's probable 
loss of privacy. Do not consider the requester's purpose, circumstances, 
or proposed use.



Sec. 806b.34  Agencies or individuals to whom the Air Force may release privacy information.

    The Air Force may release information without consent to these 
individuals or agencies:
    (a) Agencies outside the Department of Defense for a Routine Use 
published in the Federal Register. The purpose of the disclosure must be 
compatible with the purpose in the Routine Use. When initially 
collecting the information from the subject, the Routine Uses block in 
the Privacy Act Statement must name the agencies and reason.
    (b) The Bureau of the Census to plan or carry out a census or survey 
under 13 U.S.C. 8.
    (c) A recipient for statistical research or reporting. The recipient 
must give advanced written assurance that the information is for 
statistical purposes only.
    Note: No one may use any part of the record to decide on 
individuals' rights, benefits, or entitlements. You must release records 
in a format that makes it impossible to identify the real subjects.
    (d) The Archivist of the United States and the National Archives and 
Records Administration (NARA) to evaluate records for permanent 
retention. Records stored in Federal Records Centers remain under Air 
Force control.
    (e) A federal, state, or local agency (other than the Department of 
Defense) for civil or criminal law enforcement. The head of the agency 
or a designee must send a written request to the system manager 
specifying the record or part needed and the law enforcement purpose. 
The system manager may also disclose a record to a law enforcement 
agency if the agency suspects a criminal violation. This disclosure is a 
Routine Use for all Air Force systems of records and is published in the 
Federal Register.
    (f) An individual or agency that needs the information for 
compelling health or safety reasons. The affected individual need not be 
the record subject.
    (g) The Congress, a congressional committee, or a subcommittee, for 
matters within their jurisdictions.
    (h) A congressional office acting for the record subject. A 
published, blanket Routine Use permits this disclosure. If the material 
for release is sensitive, get a release statement.
    (i) The Comptroller General or an authorized representative of the 
General Accounting Office on business.
    (j) A court order of a court of competent jurisdiction, signed by a 
judge.
    (k) A consumer credit agency according to the Debt Collections Act 
when a published system notice lists this disclosure as a Routine Use.
    (l) A contractor operating a system of records under an Air Force 
contract. Records maintained by the contractor for the management of 
contractor employees are not subject to the Privacy Act.

[[Page 46]]



Sec. 806b.35  Disclosing the medical records of minors.

    Air Force personnel may disclose the medical records of minors to 
their parents or legal guardians. The laws of each state define the age 
of majority.
    (a) The Air Force must obey state laws protecting medical records of 
drug or alcohol abuse treatment, abortion, and birth control. If you 
manage medical records, learn the local laws and coordinate proposed 
local policies with the servicing SJA.
    (b) Outside the United States (overseas), the age of majority is 18. 
Unless parents or guardians have a court order granting access or the 
minor's written consent, they will not have access to minor's medical 
records overseas when the minor sought or consented to treatment between 
the ages of 15 and 17 in a program where regulation or statute provides 
confidentiality of records and he or she asked for confidentiality.



Sec. 806b.36  Disclosure accountings.

    System managers must keep an accurate record of all disclosures made 
from any system of records except disclosures to DoD personnel for 
official use or disclosures under the FOIA. System managers may use AF 
Form 771, `Accounting of Disclosures'.
    (a) System managers may file the accounting record any way they want 
as long as they give it to the subject on request, send corrected or 
disputed information to previous record recipients, explain any 
disclosures, and provide an audit trail for reviews. Include in each 
accounting:
    (1) Release date.
    (2) Description of information.
    (3) Reason for release.
    (4) Name and address of recipient.
    (b) Some exempt systems let you withhold the accounting record from 
the subject.
    (c) You may withhold information about disclosure accountings for 
law enforcement purposes at the law enforcement agency's request.



Sec. 806b.37  Computer matching.

    Computer matching programs electronically compare records from two 
or more automated systems which may include the Department of Defense, 
another federal agency, or a state or other local government. A system 
manager proposing a match that could result in an adverse action against 
a federal employee must meet these requirements of the Privacy Act:
    (a) Prepare a written agreement between participants.
    (1) Secure approval of the Defense Data Integrity Board.
    (2) Publish a matching notice in the Federal Register before 
matching begins.
    (3) Ensure full investigation and due process.
    (4) Act on the information, as necessary.
    (b) The Privacy Act applies to matching programs that use records 
from:
    (1) Federal personnel or payroll systems.
    (2) Federal benefit programs where matching:
    (i) Determines federal benefit eligibility,
    (ii) Checks on compliance with benefit program requirements,
    (iii) Recovers improper payments or delinquent debts from current or 
former beneficiaries.
    (c) Matches used for statistics, pilot programs, law enforcement, 
tax administration, routine administration, background checks and 
foreign counterintelligence, and internal matching that won't cause any 
adverse action are exempt from Privacy Act matching requirements.
    (d) Any activity that expects to participate in a matching program 
must contact SAF/AAIA immediately. System managers must prepare a notice 
for publication in the Federal Register with a Routine Use that allows 
disclosing the information for use in a matching program. Send the 
proposed system notice to SAF/AAIA. Allow 180 days for processing 
requests for a new matching program.
    (e) Record subjects must receive prior notice of a match. The best 
way to do this is to include notice in the Privacy Act Statement on 
forms used in applying for benefits. Coordinate computer matching 
statements on forms with SAF/AAIA through the MAJCOM Privacy Act 
Officer.

[[Page 47]]



                           Subpart J--Training



Sec. 806b.38  Who needs training.

    The Privacy Act requires training for all persons involved in the 
design, development, operation and maintenance of any system of records. 
Some persons may need more specialized training. They include 
information managers, supervisors, and individuals working with medical, 
financial, security, and personnel records.



Sec. 806b.39  Training tools.

    Helpful aids include:
    (a) AFH 37-146 \5\, `Privacy Act Training', a self-paced course.
---------------------------------------------------------------------------

    \5\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------

    (b) `The Privacy Act of 1974,' a 32-minute film developed by the 
Defense Privacy Office. Consult your local audiovisual library.
    (c) `A Manager's Overview, What You Need to Know About the Privacy 
Act'. Contact SAF/AAIA for copies.
    Note: Formal school training groups that develop or modify blocks of 
instruction must send the material to SAF/AAIA for coordination.



                    Subpart K--Privacy Act Reporting



Sec. 806b.40  Privacy Act report (RCS: DD-DA&M(A)1379).

    By March 1, of each year, MAJCOM and FOA Privacy Act officers must 
send SAF/AAIA a report covering the previous calendar year. The report 
includes:
    (a) Total number of requests granted in whole.
    (b) Total number of requests granted in part.
    (c) Total number of requests denied and the Privacy Act exemptions 
used.
    (d) Total number of requests for which no record was found.
    (e) Total number of amendment requests granted in whole.
    (f) Total number of amendment requests granted in part.
    (g) Total number of amendment requests wholly denied.
    (h) Specific recommendations for changes to the Act or the Privacy 
Act Program.

    Appendix A to part 806b--Glossary of References, Abbreviations, 
                           Acronyms, and Terms

                          Section A-References

    a. Privacy Act of 1974, as amended, Pub. L. 93-579, 88 Stat 1896 (5 
U.S.C. 552a).
    b. 10 U.S.C 8013, `Secretary of the Air Force: Powers and Duties.'
    c. Executive Order 9397, `Numbering System for Federal Accounts 
Relating to Individual Persons.'
    d. 32 CFR part 806b, `Air Force Privacy Act Program.'
    e. DoD Directive 5400.11 \1\, `Department of Defense Privacy 
Program.'
---------------------------------------------------------------------------

    \1\ Copies may be obtained at cost from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    f. DoD 5400.11-R \2\, `Department of Defense Privacy Program.'
---------------------------------------------------------------------------

    \2\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    g. AFI 33-202 \3\, `The Air Force Computer Security Program' 
(formerly AFR 205-16).
---------------------------------------------------------------------------

    \3\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    h. AFPD 37-1 \4\, `Air Force Information Management.'
---------------------------------------------------------------------------

    \4\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    i. AFI 37-131 \5\, `Air Force Freedom of Information Act Program' 
(formerly AFR 4-33).
---------------------------------------------------------------------------

    \5\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    j. AFI 37-129 \6\, `Base and Unit Personnel Locators and Postal 
Directories' (formerly AFR 11-24).
---------------------------------------------------------------------------

    \6\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    k. AFMAN 37-139 \7\, `Disposition of Records' (formerly AFR 4-20, 
volume 2).
---------------------------------------------------------------------------

    \7\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    l. AFDIR 37-144 \8\, `Air Force Privacy Act Systems of Records 
Notices.'
---------------------------------------------------------------------------

    \8\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

    m. AFH 37-146 \9\, `Privacy Act Training.'
---------------------------------------------------------------------------

    \9\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------

            Section B-Definitions Abbreviations and Acronyms

    a. AETC - Air Education and Training Command
    b. AFA - Air Force Academy
    c. AFBCMR - Air Force Board for Correction of Military Records
    d. AFISA - Air Force Intelligence Services Agency
    e. AFMC - Air Force Materiel Command
    f. AFOSI - Air Force Office of Special Investigations
    g. AFSC - Air Force Specialty Code

[[Page 48]]

    h. AFSCO - Air Force Security Clearance Office
    i. AFSPA - Air Force Security Police Agency
    j. ASCII - American Standard Code for Information Interchange
    k. BAQ - Basic Allowance for Quarters
    l. CFR - Code of Federal Regulations
    m. DCS - Deputy Chief of Staff
    n. DoD - Department of Defense
    o. DR&MO - Defense Reutilization and Marketing Office
    p. EAD - Entered on Active Duty
    q. FOA - Field Operating Agency
    r. FOIA - Freedom of Information Act
    s. FOUO - For Official Use Only
    t. IG - Inspector General
    u. IMC - Interim Message Change
    v. LE - Logistics and Engineering
    w. MAJCOM - Major Command
    x. MIRS - Management Information and Research System
    y. MP - Military Personnel
    z. MPC - Military Personnel Center
    aa. NARA - National Archives and Records Administration
    bb. OMB - Office of Management and Budget
    cc. OPR - Office of Primary Responsibility
    dd. PA - Privacy Act
    ee. PAM - Privacy Act Monitor
    ff. PAS - Privacy Act Statement
    gg. RCS - Reports Control Symbol
    hh. SAF - Secretary of the Air Force
    ii. SAF/AA - The Administrative Assistant to the Secretary of the 
Air Force
    jj. SAF/AAIA - Policy Division, Directorate of Information 
Management
    kk. SAF/GCA - Assistant General Counsel for Civilian Personnel and 
Fiscal Law
    ll. SG - Surgeon General
    mm. SJA - Staff Judge Advocate
    nn. SP - Security Police
    oo. SSN - Social Security Number
    pp. US - United States
    qq. USAF - United States Air Force
    rr. U.S.C. - United States Code
    ss. VHA - Variable Housing Allowance

                             Section C-Terms

    a. Access. Allowing individuals to review or receive copies of their 
records.
    b. Amendment. The process of adding, deleting, or changing 
information in a system of records to make the data accurate, relevant, 
timely, or complete.
    c. Computer matching. A computerized comparison of two or more 
automated systems of records or a system of records with non-Federal 
records to establish or verify eligibility for payments under Federal 
benefit programs or to recover delinquent debts for these programs.
    d. Confidential source. A person or organization giving information 
under an express or implied promise of confidentiality made before 
September 27, 1975.
    e. Confidentiality. An expressed and recorded promise to withhold 
the identity of a source or the information provided by a source. The 
Air Force promises confidentiality only when the information goes into a 
system with an approved exemption for protecting the identity of 
confidential sources.
    f. Defense Data Integrity Board. Representatives from the Services 
and the Department of Defense who oversee, coordinate, and approve all 
DoD computer matching programs covered by the Act.
    g. Denial authority. The individuals with authority to deny requests 
for access or amendment of records under the Privacy Act.
    h. Disclosure. Giving information from a system, by any means, to 
anyone other than the record subject.
    i. Federal benefit program. A federally funded or administered 
program for individuals that provides cash or in-kind assistance 
(payments, grants, loans, or loan guarantees).
    j. Individual. A living United States citizen or a permanent 
resident alien.
    k. Matching agency. The agency that performs a computer match.
    l. Minor. Anyone under the age of majority according to local state 
law. If there is no applicable state law, a minor is anyone under age 
18. Military members and married persons are not minors, no matter what 
their chronological age.
    m. Personal identifier. A name, number, or symbol which is unique to 
an individual, usually the person's name or SSN.
    n. Personal information. Information about an individual other than 
items of public record.
    o. Privacy Act request. An oral or written request by an individual 
about his or her records in a system of records.
    p. Recipient agency. An agency or contractor that receives the 
records and actually performs the computer match.
    q. Record. Any information about an individual.
    r. Routine use. A disclosure of records to individuals or agencies 
outside the Department of Defense for a use that is compatible with the 
purpose for which the Air Force created the records.
    s. Source agency. A federal, state, or local government agency that 
discloses records for the purpose of a computer match.
    t. System manager. The official who is responsible for managing a 
system of records, including policies and procedures to operate and 
safeguard it. Local system managers operate record systems or are 
responsible for part of a decentralized system.
    u. System of records. A group of records containing personal 
information retrieved by

[[Page 49]]

the subject's name, personal identifier, or individual identifier 
through a cross-reference system.
    v. System notice. The official public notice published in the 
Federal Register of the existence and content of the system of records.

           Appendix B to part 806b--Preparing a System Notice

    The following elements comprise a system of records notice for 
publication in the Federal Register:
    a. System identifier. SAF/AAIA assigns the notice number, for 
example, F011 AFMC A, where `F' indicates `Air Force,' the next number 
represents the series from AFMAN 37-139 regarding records disposition, 
and the final letter group shows the system manager's command or DCS. 
The last character `A' indicates that this is the first notice for this 
series and system manager.
    b. System name. Use a short, specific, plain-language title that 
identifies the system's general purpose (limited to 55 characters).
    c. System location. Specify the address of the primary system and 
any decentralized elements, including automated data systems with a 
central computer facility and input or output terminals at separate 
locations. Use street address, 2-letter state abbreviations and 9-digit 
ZIP Codes. Spell out office names. Do not use office symbols.
    d. Categories of individuals covered by the system. Use 
nontechnical, specific categories of individuals about whom the Air 
Force keeps records. Do not use categories like `all Air Force 
personnel' unless they are actually true.
    e. Categories of records in the system. Describe in clear, 
nontechnical terms, all categories of records in the system. List only 
documents actually kept in the system. Do not show source documents that 
are used to collect data and then destroyed. Do not list form numbers.
    f. Authority for maintenance of the system. Cite the specific law or 
Executive Order that authorizes the program the records support. Cite 
the DoD directive or instruction or the Air Force or other instruction 
that authorizes the system of records. Always include titles with the 
citations.
    Note: Executive Order 9397 authorizes using the Social Security 
Number (SSN). Include this authority whenever the SSN is used to 
retrieve records.
    g. Purpose(s). Describe briefly and specifically what the Air Force 
does with the information collected.
    h. Routine uses of records maintained in the system including 
categories of users and the purpose of such uses. The Blanket Routine 
Uses published in the Air Force Directory of System Notices apply to all 
system notices unless you indicate otherwise. Also list each specific 
agency or activity outside DoD to whom the records may be released and 
the purpose for such release.
    i. Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system.
    j. Storage. State the medium in which the Air Force keeps the 
records, for example, in file folders, card files, microfiche, computer, 
and so on. Storage does not refer to the storage container.
    k. Retrievability. State how the Air Force retrieves the records, 
for example, by name, SSN, or personal characteristics (such as 
fingerprints or voiceprints).
    l. Safeguards. List the kinds of officials who have immediate access 
to the system. List those responsible for safeguarding the records. 
Identify the system safeguards, for example, storage in safes, vaults, 
locked cabinets or rooms, use of guards, visitor controls, personnel 
screening, computer systems software, and so on. Describe safeguards 
fully without compromising system security.
    m. Retention and disposal. State how long AFMAN 37-139 requires the 
activity to maintain the record. Indicate when or if the records may be 
transferred to a Federal Records Center and how long the record stays 
there. Specify when the Records Center sends the record to the National 
Archives or destroys it. Indicate how the records may be destroyed.
    n. System manager(s) and address. List the title and duty address of 
the system manager. For decentralized systems, show the locations and 
the position or duty title of each category of officials responsible for 
any segment of the system.
    o. Notification procedure. List the title and duty address of the 
official authorized to tell requesters if their records are in the 
system. Specify the information a requester must submit, for example., 
full name, military status, SSN, date of birth, or proof of identity, 
and so on.
    p. Record access procedures. Explain how individuals may arrange to 
access their records. Include the titles or categories of officials who 
may assist, for example, the system manager.
    q. Contesting records procedures. SAF/AAIA provides this standard 
caption.
    r. Record source categories. Show categories of individuals or other 
information sources for the system. Do not list confidential sources 
protected by subsections (k)(2), (k)(5), or (k)(7) of the Act.
    s. Exemptions claimed for the system. When a system has no approved 
exemption, write `none' under this heading. Specifically list any 
approved exemption including the subsection in the Act.

[[Page 50]]

        Appendix C to Part 806b--General and Specific Exemptions

    (a) General exemption. The following systems of records are exempt 
under 5 U.S.C. 552a(j)(2):
    (1) System identifier and name: F124 AF A, Counter Intelligence 
Operations and Collection Records.
    (2) System identifier and name: F124 AF C, Criminal Records.
    (3) System identifier and name: F031 AF SP E, Security Forces 
Management Information System (SFMIS).
    (i) Exemption: Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records may be exempt pursuant to 5 U.S.C. 552a(j)(2) 
from the following subsections of 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8), (f), and 
(g).
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reasons: (A) To protect ongoing investigations and to protect 
from access criminal investigation information contained in this record 
system, so as not to jeopardize any subsequent judicial or 
administrative process taken as a result of information contained in the 
file.
    (B) From subsection (c)(3) because the release of the disclosure 
accounting, for disclosures pursuant to the routine uses published for 
this system, would permit the subject of a criminal investigation or 
matter under investigation to obtain valuable information concerning the 
nature of that investigation which will present a serious impediment to 
law enforcement.   
    (C) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (D) From subsection (d) because access to the records contained in 
this system would inform the subject of an investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection, 
and would present a serious impediment to law enforcement.
    (E) From subsection (e)(4)(H) because this system of records is 
exempt from individual access pursuant to subsection (j) of the Privacy 
Act of 1974.
    (F) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (G) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Air Force will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed by 
the Department of the Air Force's Privacy Instruction, but will be 
limited to the extent that the identity of confidential sources will not 
be compromised; subjects of an investigation of an actual or potential 
violation will not be alerted to the investigation; the physical safety 
of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from these 
systems will be made on a case-by-case basis.
    (4) System identifier and name: F124 AF D, Investigative Support 
Records.
    (5) System identifier and name: F125 AF A, Correction and 
Rehabilitation Records.
    Exemption-Portions of this system that fall within 5 
U.S.C.552a(j)(2) are exempt from the following provisions of 5 U.S.C. 
552a, Sections (c)(3) and (c)(4); (d)(1) through (d)(5); (e)(2) and 
(e)(3); (e)(4)(G) and (e)(4)(H), (e)(5); (f)(1) through (f)(5); (g)(1) 
through (g)(5); and (h) of the Act.
    Authority-5 U.S.C. 552a(j)(2).
    Reason-The general exemption will protect ongoing investigations and 
protect from access criminal investigation information contained in this 
record system so as not to jeopardize any subsequent judicial or 
administrative process taken as a result of information contained in the 
files.
    (6) System identifier and name: F090 AF IG B, Inspector General 
Records.
    (i) Exemption: (A) Parts of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and 
maintained by a component of the agency which performs as its principle 
function any activity pertaining to the enforcement of criminal laws.
    (B) Any portion of this system of records which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (H), and (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reasons: (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede the Air Force IG's criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the on-

[[Page 51]]

going investigation, reveal investigative techniques, and place 
confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity which may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsections (e)(4)(G), (H), and (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (iv) Authority: (A) Investigative material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identify of a 
confidential source.
    Note: When claimed, this exemption allows limited protection of 
investigative reports maintained in a system of records used in 
personnel or administrative actions.
    (B) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) from the following subsections of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
    (v) Reasons: (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the

[[Page 52]]

early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the AF will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by AF's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (b) Specific exemptions. The following systems of records are 
subject to the specific exemptions shown:
    (1) Classified records.
    (i) All records in any systems of records that are properly 
classified according to Executive Orders 11652, 12065 or 12958, are 
exempt from 5 U.S.C. 552a(c)(3); (d); (e)(4)(G), (H), and (I); and (f), 
regardless of whether the entire system is otherwise exempt or not.
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (2) System identifier and name: F053 AFA C, Admissions and Registrar 
Records.
    (i) Exemption. Parts of this system of records (Liaison Officer 
Evaluation and Selection Panel Candidate Evaluation) are exempt from 5 
U.S.C. 552a(d), (e)(4)(H), and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To ensure the frankness of information used to 
determine whether cadets are qualified for graduation and commissioning 
as officers in the Air Force.
    (3) System identifier and name: F035 MPC R, Air Force Personnel Test 
851, Test Answer Cards.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(6).
    (iii) Reasons. To protect the objectivity of the promotion testing 
system by keeping the test questions and answers in confidence.
    (4) System identifier and name: F035 AFA A, Cadet Personnel 
Management System.
    (i) Exemption. Parts of this system are exempt from 5 U.S.C. 
552a(d), (e)(4)(H), and (f), but only insofar as disclosure would reveal 
the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To maintain the candor and integrity of comments 
needed to evaluate an Air Force Academy cadet for commissioning in the 
Air Force.
    (5) System identifier and name: F045 AETC C, Cadet Records.
    (i) Exemption. Portions of this system (Detachment Professional 
Officer Course (POC) Selection Rating Sheets; Air Force Reserve Officer 
Training Corps (AFROTC) Form 0-24-Disenrollment Review; Memoranda for 
Record and Staff Papers with Staff Advice, Opinions, or Suggestions) are 
exempt from 5 U.S.C. 552a(c)(3); (d); (e)(4)(G) and (H), and (f), but 
only to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of a confidential source who 
furnishes information necessary to make determinations about the 
qualifications, eligibility, and suitability of cadets for graduation 
and commissioning in the Air Force.
    (6) System identifier and name: F44 AF SG Q, Family Advocacy Program 
Records.
    (i) Exemption: (A) Investigative material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identify of a 
confidential source. NOTE: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such

[[Page 53]]

material would reveal the identity of a confidential source.
    (C) Therefore, portions of the system of records may be exempt 
pursuant to 5 U.S.C. 552a(c)(3) and (d), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons: From subsections (c)(3) and (d) because the exemption 
is needed to encourage those who know of exceptional medical or 
educational conditions or family maltreatments to come forward by 
protecting their identities and to protect such sources from 
embarrassment or recriminations, as well as to protect their right to 
privacy. It is essential that the identities of all individuals who 
furnish information under an express promise of confidentiality be 
protected. Granting individuals access to information relating to 
criminal and civil law enforcement, as well as the release of certain 
disclosure accounting, could interfere with ongoing investigations and 
the orderly administration of justice, in that it could result in the 
concealment, alteration, destruction, or fabrication of information; 
could hamper the identification of offenders or alleged offenders and 
the disposition of charges; and could jeopardize the safety and well 
being of parents and their children. Exempted portions of this system 
also contain information considered relevant and necessary to make a 
determination as to qualifications, eligibility, or suitability for 
Federal employment and Federal contracts, and that was obtained by 
providing an express or implied promise to the source that his or her 
identity would not be revealed to the subject of the record.
    (7) System identifier and name: F035 AF MP A, Effectiveness/
Performance Reporting System.
    (i) Exemptions-Brigadier General Selectee Effectiveness Reports and 
Colonel and Lieutenant Colonel Promotion Recommendations with close out 
dates on or before January 31, 1991, may be exempt from subsections of 5 
U.S.C. 552a(c)(3); (d); (e)(4)(H); and (f).
    (ii) Authority-5 U.S.C. 552a(k)(7).
    (iii) Reasons-Subsection (c)(3) because making the disclosure 
accounting available to the individual may compromise express promises 
of confidentiality by revealing details about the report and identify 
other record sources, which may result in circumvention of the access 
exemption.
    Subsection (d) because individual disclosure compromises express 
promises of confidentiality conferred to protect the integrity of the 
promotion rating system.
    Subsection (e)(4)(H) because of and to the extent that portions of 
this record system are exempt from the individual access provisions of 
subsection (d).
    Subsection (f) because of and to the extent that portions of this 
record system are exempt from the individual access provisions of 
subsection (d).
    (8) [Reserved]
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. To enforce civil laws, court orders, and the 
activities of the Departments of Housing and Urban Development and 
Justice.
    (9) System identifier and name: F035 AP A, Files on General Officers 
and Colonels Assigned to General Officer Positions.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4)(G), (H), and (I); and (f), but only to the extent that disclosure 
would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To protect the integrity of information used in the 
Reserve Initial Brigadier General Screening Board, the release of which 
would compromise the selection process.
    (10) System identification and name: F035 AF MP P, General Officer 
Personnel Data System.
    (i) Exemption- Air Force General Officer Promotion and Effectiveness 
Reports with close out dates on or before January 31, 1991, may be 
exempt from subsections of 5 U.S.C. 552a(c)(3); (d); (e)(4)(H); and (f).
    (ii) Authority-5 U.S.C. 552a(k)(7).
    (iii) Reason-Subsection (c)(3) because making the disclosure 
accounting available to the individual may compromise express promises 
of confidentiality by revealing details about the report and identify 
other record sources, which may result in circumvention of the access 
exemption.
    Subsection (d) because individual disclosure compromises express 
promises of confidentiality conferred to protect the integrity of the 
promotion rating system.
    Subsection (e)(4)(H) because of and to the extent that portions of 
this record system are exempt from the individual access provisions of 
subsection (d).
    Subsection (f) because of and to the extent that portions of this 
record system are exempt from the individual access provisions of 
subsection (d).
    (11) System identifier and name: F035 MPC L, Historical Airman 
Promotion Master Test File.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(6).
    (iii) Reasons. To protect the integrity, objectivity, and equity of 
the promotion testing system by keeping test questions and answers in 
confidence.
    (12) [Reserved]

[[Page 54]]

    (13) System identifier and name: F124 AFOSI B, Investigative 
Applicant Processing Records.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect those who gave information in confidence 
during Air Force Office of Special Investigations (AFOSI) applicant 
inquiries. Fear of harassment could cause sources not to make frank and 
open responses about applicant qualifications. This could compromise the 
integrity of the AFOSI personnel program that relies on selecting only 
qualified people.
    (14) System identifier and name: F035 AFB B, Master Cadet Personnel 
Record (Active/Historical).
    (i) Exemptions. Parts of these systems are exempt from 5 U.S.C. 
552a(d), (e)(4)(H), and (f), but only to the extent that they would 
reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To maintain the candor and integrity of comments 
needed to evaluate a cadet for commissioning in the Air Force.
    (15) System identifier and name: F205 AFISA A, Sensitive 
Compartmented Information Personnel Records.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(a)(3); (d); 
(e)(4) (G), (H), and (I); and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. To protect the identity of sources to whom proper 
promises of confidentiality have been made during investigations. 
Without these promises, sources will often be unwilling to provide 
information essential in adjudicating access in a fair and impartial 
manner.
    (16) F124 AFA, Security and Related Investigative Records.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of those who give information 
in confidence for personnel security and related investigations. Fear of 
harassment could cause sources to refuse to give this information in the 
frank and open way needed to pinpoint those areas in an investigation 
that should be expanded to resolve charges of questionable conduct.
    (17) System identifier and name: F205 AFSCO A, Special Security Case 
Files.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d), 
(e)(4) (G), (H), and (I); and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of those who give information 
in confidence for personnel security and related investigations. Fear of 
harassment could cause sources to refuse to give this information in the 
frank and open way needed to pinpoint those areas in an investigation 
that should be expanded to resolve charges of questionable conduct.

    (18) System identifier and name: F205 AF SP A, Special Security 
Files.
    (i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d); 
(e)(4) (G), (H), and (I); and (f), but only to the extent that 
disclosure would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (ii) Reasons. To protect the identity of those who give information 
in confidence for personnel security and related investigations. Fear of 
harassment could cause them to refuse to give this information in the 
frank and open way needed to pinpoint areas in an investigation that 
should be expanded to resolve charges of questionable conduct.

    (19) System identifier and name: F035 AF MP R, Applications for 
Appointment and Extended Active Duty Files.
    (i) Exemption. Parts of this system of records are exempt from 5 
U.S.C. 552a(d), but only to the extent that disclosure would reveal the 
identity of a confidential source.
    (ii) Authority.5 U.S.C. 552a(k)(5).
    (iii)Reasons. To protect the identity of confidential sources who 
furnish information necessary to make determinations about the 
qualifications, eligibility, and suitability of health care 
professionals who apply for Reserve of the Air Force appointment or 
interservice transfer to the Air Force.
    (20) System identifier and name: F111 AF JA B, Courts-Martial and 
Article 15 Records.
    (i) Exemption. Portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) from the following subsection of 5 
U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) 
and (I), (e)(5), (e)(8), (f), and (g).
    (ii) Exemption. Portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) from the following subsection of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
    (iii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
    (iv) Reason: (1) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.

[[Page 55]]

    (2) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (4) From subsection (e)(1) because in the course of criminal 
investigations information is often obtained concerning the violation of 
laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (5) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (7) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (j) and 
(k) of the Privacy Act of 1974.
    (8) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (9) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (10) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (11) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (12) From subsection (g) because this system of records is compiled 
for law enforcement purposes and has been exempted from the access 
provisions of subsections (d) and (f).
    (13) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Air Force will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed by 
the Department of the Air Force's Privacy Regulation, but will be 
limited to the extent that the identity of confidential sources will not 
be compromised; subjects of an investigation of an actual or potential 
criminal violation will not be alerted to the investigation; the 
physical safety of witnesses, informants and law enforcement personnel 
will not be endangered, the privacy of third parties will not be 
violated; and that the disclosure would not otherwise impede effective 
law enforcement. Whenever possible, information of the above nature will 
be deleted from the requested documents and the balance made available. 
The controlling principle behind this limited access is to allow 
disclosures except those indicated above. The decisions to release 
information from these systems will be made on a case-by-case basis.
    (21) System identifier and name: F036 AF DP G, Military Equal 
Opportunity and Treatment.
    (i) Exemption: Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of the information, the 
individual will be provided access to the information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Portions of this system of records may be exempt pursuant to 5 
U.S.C. 552a(d), (e)(4)(H), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(2)
    (iv) Reasons: (1) From subsection (d) because access to the records 
contained in this system would inform the subject of an investigation of 
the existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection, 
and would present a serious impediment to law enforcement. In addition,

[[Page 56]]

granting individuals access to information collected while an Equal 
Opportunity and Treatment clarification/investigation is in progress 
conflicts with the just, thorough, and timely completion of the 
complaint, and could possibly enable individuals to interfere, obstruct, 
or mislead those clarifying/investigating the complaint.
    (2) From subsection (e)(4)(H) because this system of records is 
exempt from individual access pursuant to subsection (k) of the Privacy 
Act of 1974.
    (3) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (4) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Air Force will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed by 
the Department of the Air Force's Privacy Instruction, but will be 
limited to the extent that the identity of confidential sources will not 
be compromised; subjects of an investigation of an actual or potential 
violation will not be alerted to the investigation; the physical safety 
of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from this 
system will be made on a case-by-case basis.

[59 FR 53099, Oct. 21, 1994, as amended at 60 FR 36224, July 14, 1995; 
61 FR 2917, Jan. 30, 1996; 61 FR 17070, Apr. 9, 1997; 64 FR 72032, Dec. 
23, 1999; 66 FR 54930, Oct. 31, 2001; 67 FR 17619, Apr. 11, 2002]



PART 807--SALE TO THE PUBLIC--Table of Contents




Sec.
807.1  General requirements.
807.2  Charges for publications and forms.
807.3  Requests for classified material, For Official Use Only material, 
          accountable forms, storage safeguard forms, Limited (L) 
          distribution items, and items with restrictive distribution 
          caveats.
807.4  Availability and nonavailability of stock.
807.5  Processing requests.
807.6  Depositing payments.

    Authority: 10 U.S.C. 8013.

    Source: 55 FR 36631, Sept. 6, 1990, unless otherwise noted.



Sec. 807.1  General requirements.

    (a) Unaltered Air Force publications and forms will be made 
available to the public with or without charge, subject to the 
requirements of this part. Base Chiefs of Information Management will 
set up procedures to meet these needs and will make available Master 
Publications Libraries for public use according to AFR 4-61. They will 
also advise requesters that these libraries are available, since in many 
cases this will satisfy their needs and reduce workloads in processing 
sales requests. If the item is on sale by the Superintendent of 
Documents, GPO, refer the request to that outlet. Refer general public 
requests for Air Force administrative publications and forms to the 
National Technical Information Service (NTIS), Defense Publication 
Section, US Department of Commerce, 4285 Port Royal Road, Springfield, 
VA 22161-0001.
    (b) The Air Force does not consider these unaltered publications and 
forms as records, within the meaning of the Freedom of Information Act 
(FOIA), as outlined in 5 U.S.C. 552 and implemented by part 806 of this 
chapter. Refer requests that invoke the FOIA to the chief, base 
information management, for processing.
    (c) Units will process requests under the Foreign Military Sales 
Program (FMS) as specified in AFR 4-71, chapter 11.
    (d) Units will send requests from foreign governments, their 
representatives, or international organizations to the MAJCOM foreign 
disclosure policy office and to HQ USAF/CVAII, Washington DC 20330-5000. 
Also send information copies of such requests to the base public affairs 
office. Commands will supplement this requirement to include policies 
pertaining to those items for which they have authority to release.
    (e) Units will return a request for non-Air Force items to the 
requester for submission to appropriate agency.



Sec. 807.2  Charges for publications and forms.

    (a) The Air Force applies charges to all requests unless 
specifically excluded.

[[Page 57]]

    (b) The Air Force applies charges according to part 813, Schedule of 
Fees for Copying, Certifying, and Searching Records and Other 
Documentary Material. Additional guidance is in part 812, User Charges, 
including specific exclusion from charges as listed in Sec. 812.5. As 
indicated, the list of exclusions is not all inclusive and 
recommendations for additional exclusions are sent to the office of 
primary responsibility for part 812 of this chapter.
    (c) When a contractor requires publications and forms to perform a 
contract, the Air Force furnishes them without charge, if the government 
contracting officer approves these requirements.



Sec. 807.3  Requests for classified material, For Official Use Only material, accountable forms, storage safeguard forms, Limited (L) distribution items, and 
          items with restrictive distribution caveats.

    (a) Classified material. The unit receiving the requests should tell 
the requester that the Air Force cannot authorize the material for 
release because it is currently and properly classified in the interest 
of national security as authority by Executive Order, and must be 
protected from unauthorized disclosure.
    (b) For Official Use Only (FOUO) material. The office of primary 
responsibility for the material will review these requests to determine 
the material's releasability.
    (c) Accountable forms. The unit receiving the request will return it 
to the requester stating that the Air Force stringently controls these 
forms and cannot release them to unauthorized personnel since their 
misuse could jeopardize Department of Defense security or could result 
in fraudulent financial gain or claims against the government.
    (d) Storage safeguard forms. The unit receiving these requests 
returns them to the requesters stating that the Air Force specially 
controls these forms and that they are not releasable outside the 
Department of Defense since they could be put to unauthorized or 
fraudulent use.
    (e) Limited (L) distribution items are not releasable outside the 
Department of Defense without special review according to AFR 700-6. 
Units receiving these requests should refer them to the SCS manager 
shown in the index or on the cover of the publications. Advise the 
requesters of the referral.
    (f) Items with restrictive distribution caveats. Some publications 
have restrictive distribution caveats on the cover. Follow the 
instructions stated and advise the requesters of the referral.



Sec. 807.4  Availability and nonavailability of stock.

    (a) Limit quantities furnished so that stock levels required for 
operational Air Force support are not jeopardized.
    (b) If the item is not available from publishing distribution office 
(PDO) stock, obtain it from the Air Force Publishing Distribution 
Center. If the item is under revision, advise the requester that it is 
being revised and that no stock is available.
    (c) If stocks are not available and the item is being reprinted, 
advise the requester that stocks are expected to be available in 90 
calendar days and to resubmit at that time.



Sec. 807.5  Processing requests.

    Payment is required before shipping the requested material. Payment 
must be by check or money order.
    (a) Upon receipt of the request, determine the cost involved and 
request the material.
    (b) Upon receipt of the item, advise the requester to resubmit the 
required payment and send the material after payment is received.
    (c) If the material cannot be obtained, advise the requester of the 
reason.



Sec. 807.6  Depositing payments.

    Obtain instructions from the local Accounting and Finance Office 
regarding how checks or money orders must be prepared and required 
procedures for depositing them.



PART 809a--INSTALLATION ENTRY POLICY, CIVIL DISTURBANCE INTERVENTION AND DISASTER ASSISTANCE--Table of Contents




Sec.
809a.0  Purpose.

[[Page 58]]

                  Subpart A--Installation Entry Policy

809a.1  Random installation entry point checks.
809a.2  Military responsibility and authority.
809a.3  Unauthorized entry.
809a.4  Use of Government facilities.
809a.5  Barment procedures.

    Subpart B--Civil Disturbance Intervention and Disaster Assistance

809a.6  Authority.
809a.7  Definitions.
809a.8  Installation policies and laws.
809a.9  Conditions for use of Air Force resources.
809a.10  Military commanders' responsibilities.
809a.11  Procedures outside the United States.

    Authority: 10 U.S.C. 332 and 333.

    Source: 67 FR 13718, Mar. 26, 2002, unless otherwise noted.



Sec. 809a.0  Purpose.

    This part prescribes the commanders' authority for enforcing order 
within or near Air Force installations under their jurisdiction and 
controlling entry to those installations. It provides guidance for use 
of military personnel in controlling civil disturbances and in 
supporting disaster relief operations. This part applies to 
installations in the United States, its territories and possessions, and 
will be used to the maximum extent possible in the overseas commands. 
Instructions issued by the appropriate overseas commander, status of 
forces agreements, and other international agreements provide more 
definitive guidance for the overseas commands. Nothing in this part 
should be construed as authorizing or requiring security forces units to 
collect and maintain information concerning persons or organizations 
having no affiliation with the Air Force other than a list of persons 
barred from the installation.



                  Subpart A--Installation Entry Policy



Sec. 809a.1  Random installation entry point checks.

    The installation commander determines when, where, and how to 
implement random checks of vehicles or pedestrians. The commander 
conducts random checks to protect the security of the command or to 
protect government property.



Sec. 809a.2  Military responsibility and authority.

    (a) Air Force installation commanders are responsible for protecting 
personnel and property under their jurisdiction and for maintaining 
order on installations, to ensure the uninterrupted and successful 
accomplishment of the Air Force mission.
    (b) Each commander is authorized to grant or deny access to their 
installations, and to exclude or remove persons whose presence is 
unauthorized. In excluding or removing persons from the installation, 
the installation commander must not act in an arbitrary or capricious 
manner. Their action must be reasonable in relation to their 
responsibility to protect and to preserve order on the installation and 
to safeguard persons and property thereon. As far as practicable, they 
should prescribe by regulation the rules and conditions governing access 
to their installation.



Sec. 809a.3  Unauthorized entry.

    Under Section 21 of the Internal Security Act of 1950 (50 U.S.C. 
797), any directive issued by the commander of a military installation 
or facility, which includes the parameters for authorized entry to or 
exit from a military installation, is legally enforceable against all 
persons whether or not those persons are subject to the Uniformed Code 
of Military Justice (UCMJ). Military personnel who reenter an 
installation after having been properly ordered not to do so may be 
apprehended. Civilian violators may be detained and either escorted off 
the installation or turned over to proper civilian authorities. Civilian 
violators may be prosecuted under 18 U.S.C. 1382.



Sec. 809a.4  Use of Government facilities.

    Commanders are prohibited from authorizing demonstrations for 
partisan political purposes. Demonstrations on any Air Force 
installation for other than political purposes may only occur with the 
prior approval of the installation commander. Demonstrations that

[[Page 59]]

could result in interference with, or prevention of, the orderly 
accomplishment of the mission of an installation or that present a clear 
danger to loyalty, discipline or morale of members of the Armed Forces 
will not be approved.



Sec. 809a.5  Barment procedures.

    Under the authority of 50 U.S.C. 797, installation commanders may 
deny access to the installation through the use of a barment order. 
Barment orders should be in writing but may also be oral. Security 
forces maintain a list of personnel barred from the installation.



    Subpart B--Civil Disturbance Intervention and Disaster Assistance



Sec. 809a.6  Authority.

    The authority to intervene during civil disturbances and to provide 
disaster assistance is bound by directives issued by competent 
authorities. States must request federal military intervention or aid 
directly from the President of the United States by the state's 
legislature or executive. Installation commanders must immediately 
report these requests in accordance with AFI 10-802, Military Support to 
Civil Authorities (Available from National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.).



Sec. 809a.7  Definitions.

    The following definitions apply to this part:
    (a) Emergencies. These are conditions which affect public welfare 
and occur as a result of enemy attack, insurrection, civil disturbances, 
earthquake, fire, flood, or other public disasters which endanger life 
and property or disrupt the usual process of government. The term 
``emergency'' includes any or all of the conditions explained in this 
section.
    (b) Civil defense emergency. This is a disaster situation resulting 
from devastation created by an enemy attack and requiring emergency 
operations during and following attack. It may also be proclaimed by 
appropriate authority in anticipation of an attack.
    (c) Civil disturbances. These are group acts of violence or disorder 
prejudicial to public law and order including those which follow a major 
disaster. They include riots, acts of violence, insurrections, unlawful 
obstructions or assemblages, or other disorders.
    (d) Major disaster. Any flood, fire, hurricane, or other catastrophe 
which, in the determination of the President, is or threatens to be of 
sufficient severity and magnitude to warrant disaster assistance by the 
Federal Government to supplement the efforts and available resources of 
the State and local governments in alleviating the damage, hardship, or 
suffering caused thereby.



Sec. 809a.8  Installation policies and laws.

    This subpart contains policies on the use of Air Force military 
personnel in civil disturbances and disasters. The more important laws 
concerning military aid to civil authorities are also summarized.
    (a) The Air Force gives military assistance to civil authorities in 
civil defense or civil disturbances and disasters only when such 
assistance is requested or directed. Commanders will not undertake such 
assistance without authority, unless the overruling demands of humanity 
compel immediate action to protect life and property and to restore 
order.
    (b) The military service having available resources nearest the 
affected area is responsible for providing initial assistance to civil 
authorities in emergencies. Subsequent operations are to be according to 
the mutual agreement between the senior service commanders concerned.
    (c) The protection of life and property and the maintenance of law 
and order within the territorial jurisdiction of any State is the 
primary responsibility of State and local authorities. It is well-
established U.S. Government policy that intervention with military 
forces takes place only after State and local authorities have used 
their own forces and are unable to control the situation, or when they 
do not take appropriate action.

[[Page 60]]



Sec. 809a.9  Conditions for use of Air Force resources.

    This part is not intended to extend Air Force responsibilities in 
emergencies to generate additional resources (manpower, materiel, 
facilities, etc.) requirements, or encourage participation in such 
operations at the expense of the Air Force primary mission. It is a 
guide for the employment of Air Force resources when:
    (a) A disaster or disturbance occurs in areas in which the U.S. Air 
Force is the executive agent of the United States.
    (b) A disaster or disturbance occurs in areas that are remote from 
an Army installation but near an Air Force installation, thereby 
necessitating Air Force assumption of responsibility pending arrival of 
Army personnel.
    (c) The overriding demand of conditions resulting from a natural 
disaster compels immediate action to protect life and property and to 
restore order.



Sec. 809a.10  Military commanders' responsibilities.

    (a) Civilians in the affected area will be informed of the rules of 
conduct and other restrictive measures to be enforced by the military. 
These will be announced by local proclamation or order, and will be 
given the widest publicity by all available media.
    (b) Persons not normally subject to military law, who are taken into 
custody by military forces incident to civil disturbances, will be 
turned over to the civil authorities as soon as possible.
    (c) Military forces will ordinarily exercise police powers 
previously inoperative in an affected area; restore and maintain order; 
maintain essential transportation and communication; and provide 
necessary relief measures.
    (d) U.S. Air Force civilian employees may be used, in any 
assignments in which they are capable and willing to serve. In planning 
for on-base contingencies of fires, floods, hurricanes, and other 
natural disasters, arrangements should be made for the identification 
and voluntary use of individual employees to the extent that the needs 
for their services are anticipated.



Sec. 809a.11  Procedures outside the United States.

    It is Air Force policy to make every reasonable effort to avoid any 
confrontation between United States military forces and host nation 
demonstrators or other dissidents posing a threat to Air Force 
resources. Intervention by United States military personnel outside the 
United States is governed by international law, bilateral and other 
international agreements to which the United States is a party, and 
host-nation laws. Local plans to counter such situations must include 
provisions to request and obtain host nation civil or military support 
as quickly as possible.

[[Page 61]]



                    SUBCHAPTER B--SALES AND SERVICES





PART 811--RELEASE, DISSEMINATION, AND SALE OF VISUAL INFORMATION MATERIALS--Table of Contents




Sec.
811.1  Exceptions.
811.2  Release of visual information materials.
811.3  Official requests for visual information productions or 
          materials.
811.4  Selling visual information materials.
811.5  Customers exempt from fees.
811.6  Visual information product/material loans.
811.7  Collecting and controlling fees.
811.8  Forms prescribed and availability of publications.

    Authority: 10 U.S.C. 8013.

    Source: 65 FR 64619, Oct. 30, 2000, unless otherwise noted.



Sec. 811.1  Exceptions.

    The regulations in this part do not apply to:
    (a) Visual information (VI) materials made for the Air Force Office 
of Special Investigations for use in an investigation or a 
counterintelligence report. (See Air Force Instruction (AFI) 90-301, The 
Inspector General Complaints, which describes who may use these 
materials.)
    (b) VI materials made during Air Force investigations of aircraft or 
missile mishaps according to AFI 91-204, Safety Investigations and 
Reports. (See AFI 90-301.)



Sec. 811.2  Release of visual information materials.

    (a) Only the Secretary of the Air Force for Public Affairs (SAF/PA) 
clears and releases Air Force materials for use outside Department of 
Defense (DoD), according to AFI 35-205, Air Force Security and Policy 
Review Program.
    (b) The Secretary of the Air Force for Legislative Liaison (SAF/LL) 
arranges the release of VI material through SAF/PA when a member of 
Congress asks for them for official use.
    (c) The International Affairs Division (HQ USAF/CVAII) or, in some 
cases, the major command (MAJCOM) Foreign Disclosure Office, must 
authorize release of classified and unclassified materials to foreign 
governments and international organizations or their representatives.



Sec. 811.3  Official requests for visual information productions or materials.

    (a) Send official Air Force requests for productions or materials 
from the DoD Central Records Centers by letter or message. Include:
    (1) Descriptions of the images needed, including media format, 
dates, etc.
    (2) Visual information record identification number (VIRIN), 
production, or Research, development, test, and evaluation (RDT&E) 
identification numbers, if known.
    (3) Intended use and purpose of the material.
    (4) The date needed and a statement of why products are needed on a 
specific date.
    (b) Send inquiries about motion picture or television materials to 
the Defense Visual Information Center (DVIC), 1363 Z Street, Building 
2730, March ARB, CA 92518-2703.
    (c) Send Air Force customer inquiries about still photographic 
materials to 11 CS/SCUA, Bolling AFB, Washington, DC 20332-0403 (the Air 
Force accessioning point).
    (d) Send non-Air Force customers' inquiries about still photographic 
materials to the DVIC.



Sec. 811.4  Selling visual information materials.

    (a) Air Force VI activities cannot sell materials.
    (b) HQ AFCIC/ITSM may approve the loan of copies of original 
materials for federal government use.
    (c) Send requests to buy:
    (1) Completed, cleared, productions, to the National Archives and 
Records Administration, National Audiovisual Center, Information Office, 
8700 Edgeworth Drive, Capitol Heights, MD 20722-3701.
    (2) Nonproduction VI motion media to the DVIC. The center may sell 
other Air Force VI motion picture and television materials, such as 
historical and stock footage. When it sells VI motion

[[Page 62]]

media, the DVIC assesses charges, unless Sec. 811.5 exempts the 
requesting activity.
    (3) VI still media to the DoD Still Media Records Center (SMRC), 
Attn: SSRC, Washington, DC 20374-1681. When SMRC sells VI still media, 
the SMRC assesses charges, unless Sec. 811.5 exempts the requesting 
activity.



Sec. 811.5  Customers exempt from fees.

    Title III of the 1968 Intergovernmental Cooperation Act (42 U.S.C. 
4201, 4231, and 4233) exempts some customers from paying for products 
and loans. This applies if the supplier has sufficient funds and if the 
exemption does not impair its mission. The requesting agency must 
certify that the materials are not commercially available. When requests 
for VI material do not meet exemption criteria, the requesting agency 
pays the fees. Exempted customers include:
    (a) DoD and other government agencies asking for materials for 
official activities (see DoD Instruction 4000.19, Interservice, and 
Intergovernmental Support, August 9, 1995, and DoD Directive 5040.2, 
Visual Information (VI), December 7, 1987.
    (b) Members of Congress asking for VI materials for official 
activities.
    (c) VI records center materials or services furnished according to 
law or Executive Order.
    (d) Federal, state, territorial, county, municipal governments, or 
their agencies, for activities contributing to an Air Force or DoD 
objective.
    (e) Nonprofit organizations for public health, education, or welfare 
purposes.
    (f) Armed Forces members with a casualty status, their next of kin, 
or authorized representative, if VI material requested relates to the 
member and does not compromise classified information or an accident 
investigation board's work.
    (g) The general public, to help the Armed Forces recruiting program 
or enhance public understanding of the Armed Forces, when SAF/PA 
determines that VI materials or services promote the Air Force's best 
interest.
    (h) Incidental or occasional requests for VI records center 
materials or services, including requests from residents of foreign 
countries, when fees would be inappropriate. AFI 16-101, International 
Affairs and Security Assistance Management, tells how a foreign 
government may obtain Air Force VI materials.
    (i) Legitimate news organizations working on news productions, 
documentaries, or print products that inform the public on Air Force 
activities.



Sec. 811.6  Visual information product/material loans.

    (a) You may request unclassified and classified copies of current 
Air Force productions and loans of DoD and other Federal productions 
from JVISDA, ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay 3, 11 Hap Arnold Blvd., 
Tobyhanna, PA 18466-5102.
    (1) For unclassified products, use your organization's letterhead, 
identify subject title, PIN, format, and quantity.
    (2) For classified products, use your organization's letterhead, 
identify subject title, personal identification number (PIN), format, 
and quantity. Also, indicate that either your organization commander or 
security officer, and MAJCOM VI manager approve the need.
    (b) You may request other VI materials, such as, still images and 
motion media stock footage, from DVIC/OM-PA, 1363 Z Street, Building 
2730, March ARB, CA 92518-2703.



Sec. 811.7  Collecting and controlling fees.

    (a) The DoD records centers usually collect fees in advance. 
Exceptions are sales where you cannot determine actual cost until work 
is completed (for example, television and motion picture services with 
per minute or per footage charges).
    (b) Customers pay fees, per AFR 177-108, Paying and Collecting 
Transactions at Base Level, with cash, treasury check, certified check, 
cashier's check, bank draft, or postal money order.



Sec. 811.8  Forms prescribed and availability of publications.

    (a) AF Form 833, Visual Information Request, AF Form 1340, Visual 
Information Support Center Workload Report, DD Form 1995, Visual 
Information (VI) Production Request and Report,

[[Page 63]]

DD Form 2054-1, Visual Information (VI) Annual Report, and DD Form 2537, 
Visual Information Caption Sheet are prescribed by this part.
    (b) Air Force publications and forms referenced in this part are 
available from NTIS, 5285 Port Royal Road, Springfield, VA 22161 or 
online at http://www.afpubs.hq.af.mil. DoD publications are available at 
http://www.defenselink.mil/pubs.



PART 813--VISUAL INFORMATION DOCUMENTATION PROGRAM--Table of Contents




Sec.
813.1  Purpose of the visual information documentation (VIDOC) program.
813.2  Sources of VIDOC.
813.3  Responsibilities.
813.4  Combat camera operations.
813.5  Shipping or transmitting visual information documentation images.
813.6  Planning and requesting combat documentation.
813.7  Readiness reporting.

    Authority: 10 U.S.C. 8013.

    Source: 65 FR 64621, Oct. 30, 2000, unless otherwise noted.



Sec. 813.1  Purpose of the visual information documentation (VIDOC) program.

    Using various visual and audio media, the Air Force VIDOC program 
records important Air Force operations, historical events, and 
activities for use as decision making and communicative tools. VIDOC of 
Air Force combat operations is called COMCAM documentation. Air Force 
publications are available at NTIS, 5285 Port Royal Road, Springfield, 
VA 22161 or online at http://www.afpubs.hq.af.mil. DoD publications are 
available at http://www.defenselink.mil/pubs.



Sec. 813.2  Sources of VIDOC.

    Primary sources of VIDOC materials include:
    (a) HQ AMC active and reserve combat camera (COMCAM) forces, both 
ground and aerial, whose primary goal is still and motion media 
documentation of Air Force and air component combat and combat support 
operations, and related peacetime activities such as humanitarian 
actions, exercises, readiness tests, and operations.
    (b) Visual information forces with combat documentation capabilities 
from other commands: HQs ACC, AETC, AFRES, and AFSPACECOM.
    (c) Communications squadron base visual information centers 
(BVISCs).
    (d) Air Digital Recorder (ADR) images from airborne imagery systems, 
such as heads up displays, radar scopes, and images from electro-optical 
sensors carried aboard aircraft and weapons systems.
    (e) Photography of Air Force Research, Development, Test & 
Evaluation (RDT&E) activities, including high speed still and motion 
media optical instrumentation.



Sec. 813.3  Responsibilities.

    (a) HQ AFCIC/ITSM:
    (1) Sets Air Force VIDOC policy.
    (2) Oversees United States Air Force (USAF) COMCAM programs and 
combat readiness.
    (3) Makes sure Air Force participates in joint actions by 
coordinating with the Office of the Secretary of Defense staff, Joint 
Chiefs of Staff (JCS), executive departments, and other branches of the 
United States Government.
    (4) Approves use of Air Force COMCAM forces in non-Air Force 
activities.
    (b) Air components:
    (1) Manage air component COMCAM and visual information support 
within their areas of responsibility. Documents significant events and 
operations for theater and national-level use.
    (2) Sets requirements for COMCAM and VI support. Includes 
requirements in operations plans (OPLAN) force lists, concept plans 
(CONPLAN), operations orders (OPORD), and similar documents. See Air 
Force Manual (AFMAN) 10-401, Operation Plan and Concept Plan Development 
and Implementation.
    (3) Coordinate with MAJCOM VI managers to plan and source VIDOC 
forces for war, contingencies, and exercises.
    (4) Provide input (VI and COMCAM requirements) to HQ AMC/SCMV, 203 
West Losey Street, Room 3180, Scott AFB, IL 62225-5223, as required to 
develop the annual VI Exercise Support Plan. Include requirements to 
exercise

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VI forces to refine operational procedures and meet defined objectives.
    (c) HQ AMC:
    (1) Provides primary Air Force ADR theater support to the air 
component commanders.
    (2) Maintains a deployable theater support Unified Transportation 
Command (UTC) to manage ADR requirements above the aviation wing level. 
This includes the gathering, editing, copying, and distribution of ADR 
images from combat aviation squadrons for operational analysis, bomb 
damage assessment, collateral intelligence, training, historical, public 
affairs, and other needs.
    (3) Sets combat training standards and develops programs for all Air 
Force COMCAM personnel (includes both formal classroom and field 
readiness training).
    (4) Coordinates and meets COMCAM needs in war, operations, and 
concept plans.
    (5) Provides the Air Force's primary COMCAM capability and assists 
air component and joint commands with deliberate and crisis action 
planning for USAF's COMCAM assets.
    (6) Provides component and theater commands COMCAM planning 
assistance and expertise for contingencies, humanitarian actions, 
exercises, and combat operations.
    (7) Acts as manpower and equipment force packaging (MEFPAK) manager 
for COMCAM UTCs.
    (8) Funds HQ AMC COMCAM personnel and equipment for contingency or 
wartime deployments. (The requester funds temporary duty and supply 
costs for planned events, such as non-JCS exercises and competitions.)
    (9) Develops and monitors the annual Air Force-wide VI Exercise 
Support Plan for the Air Staff, with assistance from air components and 
supporting MAJCOMs. (Use criteria contained in Sec. 813.4(e)(1) and 
provide equitable deployment opportunity for tasked commands' VI 
resources.)
    (d) MAJCOM VI managers:
    (1) Plan and set policy for documenting activities of operational, 
historical, public affairs, or other significance within their commands.
    (2) Train and equip VIDOC forces to document war, contingencies, 
major events, Air Force and joint exercises, and weapons tests.
    (3) Make sure COMCAM and BVISC forces meet their wartime tasking and 
identify and resolve deficiencies. Refer significant deficiencies and 
problems and proposed resolution to HQ AFCIC/ITSM.
    (4) Allow documentation of significant Air Force activities and 
events, regardless of their sensitivity or classification. Protect 
materials as the supported command directs. Safeguard classified images 
or handle them according to Department of Defense (DoD) Directive 
5200.1, DoD Information Security Program, June 7, 1982, with Changes 1 
and 2, and AFI 31-401, Information Security Program Management. The 
authority in charge of the event or operation approves documentation 
distribution.
    (5) Update UTC availability in MAJCOM information systems.
    (6) Assist Air Force Operations Group, in identifying the command's 
capability to support COMCAM and VI requirements.
    (7) Provide inputs to HQ AMC/SCMV for the annual VI Exercise Support 
Plan for JCS exercises.
    (8) Make sure units that have deployable VI teams have Status of 
Resources and Training System (SORTS) reportable designed operational 
capability (DOC) statements that accurately reflect their mission and 
taskings.
    (9) Develop and oversee measurements, such as operational readiness 
inspection criteria, to evaluate VI force readiness at DOC-tasked units.



Sec. 813.4  Combat camera operations.

    (a) Air Force COMCAM forces document Air Force and air component 
activities.
    (b) The supported unified command or joint task force commander, 
through the air component commander (when assigned), controls Air Force 
COMCAM forces in a joint environment. If an air component is assigned, 
the air component normally manages documentation of its operations. Air 
Force COMCAM and visual information

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support for joint operations will be proportionate to USAF combat force 
participation. In airlift operations, HQ AMC may be the supported 
command.
    (c) During contingencies, exercises, and other operations, the Air 
Force provides its share of Unified Command headquarters COMCAM and 
visual information support forces for still photographic, motion media, 
graphics, and other VI services.
    (d) COMCAM and VI forces take part in Air Force and joint exercises 
to test procedures and over-all readiness. COMCAM and VI forces also 
provide VI products to command, operations, public affairs, historical, 
and other significant customers.
    (e) Sourcing COMCAM forces. See AFMAN 10-401 for specific 
procedures.
    (1) When VI support teams are required, the lead wing's VI UTC 
deploys as primary, whenever possible. If lead wing VI support is not 
available, the providing command sources the requirement from other 
active or reserve component forces, or coordinates with other MAJCOMs 
for assistance.
    (2) Air Force VI personnel who assist supported commands in 
determining COMCAM and VI requirements and sourcing consider the total 
USAF VI community as a resource. Planners consider employing USAF 
deployable VI support teams, augmentation combat documentation teams 
from AFSPACECOM, AETC, and ACC, as well as active and reserve COMCAM 
teams.



Sec. 813.5  Shipping or transmitting visual information documentation images.

    (a) COMCAM images. Send COMCAM images to the DoD Joint Combat Camera 
Center, Room 5A518, Pentagon, Washington, DC 20330-3000, by the fastest 
means possible, following the approval procedures that on-scene and 
theater commanders set.
    (b) Other non-COMCAM images. After use, send significant non-COMCAM 
images to the appropriate DoD media records center through the Air Force 
record center accessioning point.
    (c) Identification of VIDOC materials. Clearly identify all VIDOC 
and COMCAM material with slates, captions, and cover stories.



Sec. 813.6  Planning and requesting combat documentation.

    (a) Planned combat documentation. Air components identify 
documentation needs as early as possible in OPLANs, CONPLANs, and OPORDs 
and send copies of these plans to HQ AMC/SCMV, 203 West Losey Street, 
Room 3180, Scott AFB, IL 62225-5223. Include the contact for planning 
and support.
    (b) Activity documentation. MAJCOMs may request that HQ AMC document 
their activities. Send information copies of requests to HQ AFCIC/ITSM, 
1250 Air Force Pentagon, Washington, DC 20330-1250, and HQ AMC/SCMV. 
When a supporting component command operationally controls HQ AMC COMCAM 
units, other organizations that need support must coordinate requests 
with the supported command.
    (c) Unplanned combat documentation. Send short notice requests to 
the supported operational commander as soon as possible, with 
information copies to HQ AFCIC/ITSM and HQ AMC/SCMO. Identify end 
product requirements, media formats, and deadlines.
    (d) Humanitarian, disaster relief, and contingencies. Theater 
commanders normally task the supporting component through the Joint 
Operation Planning and Execution System, that in turn, requests support 
from HQ AMC. HQ USAF can directly task HQ AMC to document humanitarian, 
disaster relief, or contingency activities if it does not receive other 
tasking(s). In these cases, coordinate with the supported unified 
command.



Sec. 813.7  Readiness reporting.

    All Air Force units assigned a DOC statement report readiness status 
through the SORTS process. See AFI 10-201, Status of Resources and 
Training System, for specific information and reporting criteria.

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                SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]





                   SUBCHAPTER D--CLAIMS AND LITIGATION





PART 841--LICENSING GOVERNMENT-OWNED INVENTIONS IN THE CUSTODY OF THE DEPARTMENT OF THE AIR FORCE--Table of Contents




                     Subpart A--General Information

Sec.
841.0  Purpose.
841.1  Air Force policy.
841.2  Execution of licenses.
841.3  Delegation of authority.
841.4  Definitions.
841.5  Royalties.

   Subpart B--Restrictions and Conditions for Licensing and Types of 
                                Licenses

841.6  Restrictions and conditions.
841.7  Nonexclusive licenses.
841.8  Exclusive and partially exclusive licenses.
841.9  Additional licenses.
841.10  Foreign licenses.

                     Subpart C--Licensing Procedures

841.11  Publication requirements.
841.12  Request for a license.
841.13  Contents of a license application.
841.14  Published notices.
841.15  Determination to grant or deny exclusive or partially exclusive 
          licenses.
841.16  Modification and termination.
841.17  Appeals.

      Subpart D--Transfer of Custody of Government Inventions and 
                     Confidentiality of Information

841.18  Transfer procedure.
841.19  Confidentiality of plans and reports.

    Authority: 10 U.S.C. 8012.

    Source: 50 FR 20563, May 17, 1985, unless otherwise noted.



                     Subpart A--General Information



Sec. 841.0  Purpose.

    This regulation prescribes the policies, administrative 
requirements, procedures, terms, and conditions for licensing of rights 
in federally owned patents and patent applications vested in the United 
States of America in the custody of the Department of the Air Force. It 
is consistent with General Services Administration Licensing of 
Federally Owned Inventions, 41 CFR 101-4, which implements Pub. L. 96-
517. It applies to all requests for a license under an Air Force 
invention.



Sec. 841.1  Air Force policy.

    Federally owned inventions in the custody of the Department of the 
Air Force normally will best serve the public interest when they are 
developed to the point of practical application and made available to 
the public in the shortest possible time. Nonexclusive, partially 
exclusive, or exclusive licenses for the practice of these inventions 
may be granted to applicants who agree to develop and/or market the 
inventions. All Air Force inventions normally will be made available for 
the granting of licenses to responsible applicants.



Sec. 841.2  Execution of licenses.

    Nonexclusive, partially exclusive, or exclusive licenses will be 
executed on behalf of the Department of the Air Force by the Secretary 
or by anyone to whom this authority is delegated.



Sec. 841.3  Delegation of authority.

    The administration of this part is delegated to The Judge Advocate 
General, who may redelegate the administration of this part to the 
Chief, Patents Division, Office of The Judge Advocate General. All 
communications received in any Air Force activity requesting information 
regarding the licensing of a Government invention will be acknowledged 
and sent without further action directly to HQ USAF/JACP, Washington DC 
20324.



Sec. 841.4  Definitions.

    (a) Air Force invention means an invention, plant, or design which 
is covered by a patent or patent application in the United States, or a 
patent, patent application, plant variety protection, or other form of 
protection in a foreign country, title to which has been assigned to or 
otherwise vested in the United States Government and in

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the custody of the Department of the Air Force.
    (b) Small business firm means a small business concern as defined in 
section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations 
of the Administrator of the Small Business Administration.
    (c) Practical Application means to manufacture in the case of a 
composition or product, to practice in the case of a process or method, 
or to operate in the case of a machine or system; and in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are to the extent permitted by law or 
Government regulations available to the public on reasonable terms.
    (d) United States means the United States of America, its 
territories and possessions, the District of Columbia, and the 
Commonwealth of Puerto Rico.



Sec. 841.5  Royalties.

    (a) Royalties may or may not be charged under nonexclusive licenses 
granted to US citizens and US corporations on Government inventions; 
however, the Department of the Air Force may require other 
considerations when a royalty is not charged.
    (b) Normally, an exclusive or partially exclusive license on an Air 
Force invention will contain a royalty provision and/or other 
consideration flowing to the Government.



   Subpart B--Restrictions and Conditions for Licensing and Types of 
                                Licenses



Sec. 841.6  Restrictions and conditions.

    The following restrictions and conditions apply to all licenses 
granted under this part:
    (a) Restrictions: (1) A license may be granted only if the applicant 
has supplied the Air Force with a satisfactory plan for development or 
marketing of the invention, or both, and with information about the 
applicant's capability to fulfill the plan.
    (2) A license granting rights to use or sell under an Air Force 
invention in the United States shall normally be granted only to a 
licensee who agrees that any product embodying the invention or produced 
through the use of the invention will be manufactured substantially in 
the United States.
    (b) Conditions. Licenses shall contain such terms and conditions as 
the Air Force determines are appropriate for the protection of the 
interests of the Federal Government and the public and are not in 
conflict with law or this part. The following terms and conditions apply 
to any license:
    (1) The duration of the license shall be for a period specified in 
the license agreement, unless sooner terminated according to provisions 
therein.
    (2) The license may be granted for all or less than all fields of 
use of the invention or in specified geographical areas, or both.
    (3) The license may extend to subsidiaries of the licensee or other 
parties if provided for in the license but shall be nonassignable 
without approval of the Air Force, except to the successor of that part 
of the licensee's business to which the invention pertains.
    (4) The license may provide the licensee the right to grant 
sublicenses under the license, subject to the approval of the Air Force. 
Each sublicense shall make reference to the license, including the 
rights retained by the Government, and a copy of each sublicense shall 
be furnished to the Air Force.
    (5) The license shall require the licensee to carry out the plan for 
development or marketing of the invention, or both, to bring the 
invention to practical application within a period specified in the 
license, and to continue to make the benefits of the invention 
reasonably accessible to the public.
    (6) The license shall require the licensee to report, at least 
annually, on the utilization or efforts at obtaining utilization that 
are made by the licensee, with particular reference to the plan 
submitted.
    (7) Licenses may be royalty-free or for royalties or other 
consideration.
    (8) When the licensee agrees that any products embodying the 
invention or produced through use of the invention will be manufactured 
substantially in the United States, the license shall recite such 
agreement.
    (9) The license shall provide for the right of the Air Force to 
terminate the license, in whole or in part, if:

[[Page 68]]

    (i) The Air Force determines that the licensee is not executing the 
plan submitted with its requests for a license and the licensee cannot 
otherwise demonstrate to the satisfaction of the Air Force that it has 
taken or can be expected to take within a reasonable time effective 
steps to achieve practical application of the invention;
    (ii) The Air Force determines that such action is necessary to meet 
requirements for public use specified by Federal regulations issued 
after the date of the license and such requirements are not reasonably 
satisfied by the licensee;
    (iii) The licensee has willfully made a false statement of or 
willfully omitted a material fact in the license application or in any 
report required by the license agreement; or
    (iv) The licensee commits a substantial breach of a covenant or 
agreement contained in the license.
    (10) The license may be modified or terminated consistent with this 
part upon mutual agreement of the Air Force and the licensee.
    (11) Nothing relating to the grant of a license, nor the grant 
itself, shall be construed to confer upon any person, any immunity from 
or defense under the antitrust laws or from a charge of patent misuse, 
and the acquisition and use of rights pursuant to this subpart shall not 
be immunized from the operation of state or Federal law by reason of the 
source of the grant.
    (12) The license shall contain a provision that the government makes 
no representation or warranty as to the validity of any licensed patent 
or patent application, or of the scope of any of the claims contained 
therein, or that the exercise of the license will not result in the 
infringement of any other patent and that the Government assumes no 
liability whatsoever resulting from the exercise of the license.



Sec. 841.7  Nonexclusive licenses.

    Each Air Force invention normally will be made available for the 
granting of nonexclusive licenses, subject to the provisions of any 
other license, including those in Sec. 841.8, and subject to the 
following condition: the nonexclusive license may also provide that, 
after termination of a period specified in the license agreement, the 
Air Force may restrict the license to the fields of use or geographic 
areas, or both, in which the licensee has brought the invention to 
practical application and continues to make the benefits of the 
invention reasonably accessible to the public. However, such restriction 
shall be made only in order to grant an exclusive or partially exclusive 
license according to this part.



Sec. 841.8  Exclusive and partially exclusive licenses.

    Each Government invention may be made available for the granting of 
an exclusive or partially exclusive license subject to the following 
restrictions and conditions:
    (a) Restrictions. Exclusive or partially exclusive licenses may be 
granted on federally owned inventions as follows:
    (1) Three months after notice of the invention's availability has 
been announced in the Federal Register; or
    (2) Without such notice where the Air Force determines that 
expeditious granting of such a license will best serve the interest of 
the Federal Government and the public; and
    (3) In either situation specified in paragraph (a) (1) or (2) of 
this section only if:
    (i) Notice of a prospective license, identifying the invention and 
the prospective licensee, has been published in the Federal Register, 
providing opportunity for filing written objections within a 60-day 
period;
    (ii) After expiration of the 60-day period and consideration of any 
written objections received during the period, the Air Force makes the 
determinations required by Sec. 841.15 favorably to the applicant; and
    (iii) The Air Force has given first preference to any small business 
firms submitting plans that are determined by the agency to be within 
the capabilities of the firms and as equally likely, if executed, to 
bring the invention to practical application as any plans submitted by 
applicants that are not small business firms.
    (b) Conditions. In addition to the provisions of Sec. 841.6, the 
following terms and conditions apply to domestic exclusive and partially 
exclusive licenses:

[[Page 69]]

    (1) The license shall be subject to the irrevocable royalty-free 
right of the Government of the United States to practice and have 
practiced the invention on behalf of the United States and on behalf of 
any foreign government or international organization pursuant to any 
existing or future treaty or agreement with the United States.
    (2) The license shall reserve to the Air Force the right to require 
the licensee to grant sublicenses to responsible applicants, on 
reasonable terms, when necessary to fulfill health or safety needs.
    (3) The license shall be subject to any licenses in force at the 
time of the grant of the exclusive or partially exclusive license.
    (4) The license may grant the licensee the right of enforcement of 
the licensed patent pursuant to the provisions of 35 U.S.C. 29, as 
determined appropriate in the public interest.



Sec. 841.9  Additional licenses.

    Nothing in this part will preclude the Air Force from granting 
licenses for Air Force inventions which are the result of an authorized 
exchange of rights in the settlement of patent disputes. The following 
exemplify circumstances wherein such licenses may be granted:
    (a) In consideration of the settlement of an interference;
    (b) In consideration of a release of a claim of infringement; or
    (c) In exchange for or as part of the consideration for a license 
under adversely held patents.



Sec. 841.10  Foreign licenses.

    (a) Exclusive or partially exclusive licenses may be granted on an 
Air Force invention covered by a foreign patent, patent application, or 
other form of protection, provided that:
    (1) Notice of a prospective license identifying the invention and 
prospective licensee has been published in the Federal Register, 
providing opportunity for filing written objections within a 60-day 
period and following consideration of such objections;
    (2) The Air Force has considered whether the interests of the 
Federal Government or United States industry in foreign commerce will be 
enhanced; and
    (3) The Air Force has not determined that the grant of such license 
will tend substantially to lessen competition or result in undue 
concentration in any section of the United States in any line of 
commerce to which the technology to be licensed relates, or to create or 
maintain other situations inconsistent with antitrust laws.
    (b) In addition to the provisions of Sec. 841.6, the following terms 
and conditions apply to foreign exclusive and partially exclusive 
licenses:
    (1) The license shall be subject to the irrevocable, royalty-free 
right of the United States Government to practice and have practiced the 
invention on behalf of any foreign government or international 
organization pursuant to any existing or future treaty or agreement with 
the United States.
    (2) The license shall be subject to any licenses in force at the 
time of the grant of the exclusive license.
    (3) The license may grant the licensee the right to take any 
suitable and necessary action to protect the licensed property on behalf 
of the United States Government.



                     Subpart C--Licensing Procedures



Sec. 841.11  Publication requirements.

    The Department of the Air Force will cause to be published in the 
Federal Register, and at least one other publication that the Air Force 
deems would best serve the public interest, a list of Government 
inventions in the custody of the Department of the Air Force available 
for licensing under the conditions specified in subpart B.



Sec. 841.12  Request for a license.

    Requests for a license under an Air Force invention should be 
addressed to the Chief, Patents Division, HQ USAF/JACP, Washington DC 
20324.



Sec. 841.13  Contents of a license application.

    An application for a license will include:
    (a) Identification of the invention for which the license is desired 
including the patent application serial number or

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patent number, title, and date, if known;
    (b) Identification of the type of license for which the application 
is submitted;
    (c) Name and address of the person, company, or organization 
applying for the license and the citizenship or place of incorporation 
of the applicant;
    (d) Name, address, and telephone number of the representative of the 
applicant to whom correspondence should be sent;
    (e) Nature and type of applicant's business, identifying products or 
services which the applicant has successfully commercialized, and 
approximate number of applicant's employees;
    (f) Source of information concerning the availability of a license 
on the invention;
    (g) A statement indicating whether the applicant is a small business 
firm as defined in Sec. 841.4 of this subpart;
    (h) A detailed description of the applicant's plan for development 
or marketing of the invention, or both, which should include:
    (1) A statement of the time, nature, and amount of anticipated 
investment of capital and other resources which applicant believes will 
be required to bring the invention to practical application;
    (2) A statement as to applicant's capability and intention to 
fulfill the plan, including information regarding manufacturing, 
marketing, financial, and technical resources;
    (3) A statement of the fields of use for which applicant intends to 
practice the invention; and
    (4) A statement of the geographic areas in which the applicant 
intends to manufacture any products embodying the invention and 
geographic areas where applicant intends to use or sell the invention, 
or both;
    (i) Identification of licenses previously granted to applicant under 
federally owned inventions;
    (j) A statement containing the applicant's best knowledge of the 
extent to which the invention is being practiced by private industry or 
Government, or both, or is otherwise available commercially; and
    (k) Any other information which applicant believes will support a 
determination to grant the license to applicant.



Sec. 841.14  Published notices.

    A notice that the prospective exclusive or partially exclusive 
licensee has been selected will be published by the Department of the 
Air Force in the Federal Register and a copy of the notice will be sent 
to the Attorney General. The notice will include:
    (a) Identification of the invention;
    (b) Identification of the selected licensee; and
    (c) A statement that the license will be granted unless any written 
objection is received within 60 days.



Sec. 841.15  Determination to grant or deny exclusive or partially exclusive licenses.

    (a) After the notice is published in the Federal Register that a 
prospective exclusive or partially exclusive licensee has been selected 
and the 60 days for filing written objections has expired, a decision 
will be made whether to grant or deny the license considering all 
arguments and evidence of record. A memorandum of the decision will be 
prepared and shall include:
    (1) An identification of the invention, type of license desired, and 
name and address of the party applying for the license;
    (2) The name and address of all third parties who objected to the 
granting of the license, if any;
    (3) A brief statement of the reasons for the objections, if any;
    (4) A discussion of the relative merits of the license application 
vs. the objections filed by third parties, if any;
    (5) Determinations, and reasons supporting the determinations, 
whether:
    (i) The interests of the Federal Government and the public will be 
served by the proposed license, in view of the applicant's intentions, 
plans, and ability to bring the invention to practical application or 
otherwise promote the invention's utilization by the public;
    (ii) The desired practical application has not been achieved or is 
not likely expeditiously to be achieved under any nonexclusive license 
which has been granted on the invention;
    (iii) Exclusive or partially exclusive licensing is a reasonable and 
necessary

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incentive to call forth the investment of risk capital and expenditures 
to bring the invention to practical application or otherwise promote the 
invention's utilization by the public;
    (iv) The proposed terms and scope of exclusivity are not greater 
than reasonably necessary to provide the incentive for bringing the 
invention to practical application or otherwise promote the invention's 
utilization by the public;
    (v) The grant of such license will tend substantially to lessen 
competition or result in undue concentration in any section of the 
country in any line of commerce to which the technology to be licensed 
relates, or to create or maintain other situations inconsistant with the 
antitrust laws; and
    (vi) The interest of the United States Government or industry in 
foreign commerce will be enhanced, if the license request is under a 
foreign patent, patent application, or other form of protection.
    (6) The signature of the individuals making the determinations.
    (b) A record of the determinations to grant or deny an exclusive or 
a partially exclusive license shall be maintained by the Patents 
Division.



Sec. 841.16  Modification and termination.

    Before modifying or terminating a license, other than by mutual 
agreement, the Air Force shall furnish the licensee and any sublicensee 
of record a written notice of intention to modify or terminate the 
license, and the licensee and any sublicensee shall be allowed 30 days 
after such notice to remedy any breach of the license or show cause why 
the license should not be modified or terminated.



Sec. 841.17  Appeals.

    A party whose application for a license has been denied, a licensee 
whose license has been modified or terminated, in whole or in part, or a 
party who timely filed a written objection in response to the notice 
required in Sec. 841.8 and Sec. 841.10 and who can demonstrate to the 
satisfaction of the Air Force that such party may be damaged by the 
agency action, may appeal to The Judge Advocate General, any decision or 
determination concerning the grant, denial, interpretation, 
modification, or termination of a license. The appeal must be in writing 
and submitted within 60 days from the date the decision or determination 
was mailed to the party.



      Subpart D--Transfer of Custody of Government Inventions and 
                     Confidentiality of Information



Sec. 841.18  Transfer procedure.

    Under certain circumstances it may be in the best interest of the 
Air Force to enter into an agreement to transfer its custody of any 
invention to another Government agency for purposes of administration 
including the granting of licenses pursuant to this part. Such transfers 
will be made on a case-by-case basis.



Sec. 841.19  Confidentiality of plans and reports.

    Title 35 U.S.C. 209 provides that any plan submitted pursuant to 
Sec. 841.13 above and any report required by Sec. 841.6 may be treated 
by the Air Force as commercial and financial information obtained from a 
person and priviledged and confidential and not subject to disclosure 
under 5 U.S.C. 552.



PART 842--ADMINISTRATIVE CLAIMS--Table of Contents




Sec.
842.0  Scope.

                     Subpart A--General Information

842.1  Scope of this subpart.
842.2  Definitions.
842.3  Claims authorities.
842.4  Where to file a claim.
842.5  Claims forms.
842.6  Signature on the claim form.
842.7  Who may file a claim.
842.8  Insured claimants.
842.9  Splitting a claim.

                Subpart B--Functions and Responsibilities

842.10  Scope of this subpart.
842.11  Air Force claims organization.
842.12  HQ USAF claims responsibility.
842.13  Staff Judge Advocates' responsibility.
842.14  Claims and assistant claims officers.

[[Page 72]]

 Subpart C--Claims Under Article 139, Uniform Code of Military Justice 
                         (UCMJ) (10 U.S.C. 939)

842.15  Scope of this subpart.
842.16  Definitions.
842.17  Claims payable.
842.18  Claims not payable.
842.19  Limiting provisions.
842.20  Filing a claim.

           Subpart D--Personnel Claims (31 U.S.C. 3701, 3721)

842.21  Scope of this subpart.
842.22  Definitions.
842.23  Delegations of authority.
842.24  Filing a claim.
842.25  Partial payments.
842.26  Statute of limitations.
842.27  Who may file a claim.
842.28  Who are proper claimants.
842.29  Who are not proper claimants.
842.30  General provisions.
842.31  Claims payable.
842.32  Claims not payable.
842.33  Reconsideration of a claim.
842.34  Right of subrogation, indemnity, and contribution.
842.35  Depreciation and maximum allowances.

                   Subpart E--Carrier Recovery Claims

842.36  Scope of this subpart.
842.37  Definitions.
842.38  Delegations of authority.
842.39  Statute of limitations.

             Subpart F--Military Claims Act (10 U.S.C. 2733)

842.40  Scope of this subpart.
842.41  Definitions.
842.42  Delegations of authority.
842.43  Filing a claim.
842.44  Advance payments.
842.45  Statute of limitations.
842.46  Who may file a claim.
842.47  Who are proper claimants.
842.48  Who are not proper claimants.
842.49  Claims payable.
842.50  Claims not payable.
842.51  Applicable law.
842.52  Appeal of final denials.
842.53  Right of subrogation, indemnity, and contribution.
842.54  Attorney fees.

               Subpart G--Foreign Claims (10 U.S.C. 2734)

842.55  Scope of this subpart.
842.56  Definitions.
842.57  Delegations of authority.
842.58  Filing a claim.
842.59  Advance payments.
842.60  Statute of limitations.
842.61  Who may file a claim.
842.62  Who are proper claimants.
842.63  Who are not proper claimants.
842.64  Payment criteria.
842.65  Claims not payable.
842.66  Applicable law.
842.67  Reconsideration of final denials.
842.68  Right of subrogation, indemnity, and contribution.

  Subpart H--International Agreement Claims (10 U.S.C. 2734a and 2734b)

842.69  Scope of this subpart.
842.70  Definitions.
842.71  Delegations of authority.
842.72  Filing a claim.

      Subpart I--Use of Government Property Claims (10 U.S.C. 2737)

842.73  Scope of this subpart.
842.74  Definitions.
842.75  Delegations of authority.
842.76  Filing a claim.
842.77  Statute of limitations.
842.78  Claims payable.
842.79  Claims not payable.
842.80  Reconsideration of final denial.
842.81  Settlement agreement.

 Subpart J--Admiralty Claims (10 U.S.C. 9801-9804, 9806; 46 U.S.C. 740)

842.82  Scope of this subpart.
842.83  Definitions.
842.84  Delegations of authority.
842.85  Reconsidering claims against the United States.

Subpart K--Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
                      2402, 2671, 2672, 2674-2680)

842.86  Scope of this subpart.
842.87  Definitions.
842.88  Delegations of authority.
842.89  Statute of limitations.
842.90  Reconsideration of final denials.
842.91  Settlement agreements.

Subpart L--Property Damage Tort Claims in Favor of the United States (31 
                         U.S.C. 3701, 3711-3719)

842.92  Scope of this subpart.
842.93  Delegations of authority.
842.94  Assertable claims.
842.95  Non-assertable claims.
842.96  Asserting the claim.
842.97  Referring a claim to the US Attorney or the Department of 
          Justice.
842.98  Statute of limitations.
842.99  Compromise, termination, and suspension of collection.

[[Page 73]]

  Subpart M--Claims Under the National Guard Claims Act (32 U.S.C. 715)

842.100  Scope of this subpart.
842.101  Definitions.
842.102  Delegations of authority.
842.103  Filing a claim.
842.104  Advance payments.
842.105  Statute of limitations.
842.106  Who may file a claim.
842.107  Who are proper claimants.
842.108  Who are not proper claimants.
842.109  Claims payable.
842.110  Claims not payable.
842.111  Applicable law.
842.112  Appeal of final denials.
842.113  Government's right of subrogation, indemnity, and contribution.
842.114  Attorney fees.

        Subpart N--Hospital Recovery Claims (42 U.S.C. 2651-2653)

842.115  Scope of this subpart.
842.116  Definitions.
842.117  Delegations of authority.
842.118  Assertable claims.
842.119  Nonassertable claims.
842.120  Asserting the claim.
842.121  Referring a claim to the US Attorney.
842.122  Statute of limitations.
842.123  Recovery rates in government facilities.
842.124  Waiver and compromise of United States interest.
842.125  Reconsideration of a waiver for undue hardship.

                 Subpart O--Nonappropriated Fund Claims

842.126  Scope of this subpart.
842.127  Definitions.
842.128  Delegations of authority.
842.129  Settlement of claims against NAFIs.
842.130  Payment of claims against NAFIs.
842.131  Tort and tort type claims.
842.132  Claims by NAFI employees.
842.133  Claims by customers, members, participants, or authorized 
          users.
842.134  Claims in favor of NAFIs.
842.135  Advance payments.
842.136  Claim payments and deposits.

   Subpart P--Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a), 
         8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201-208)

842.137  Scope of this subpart.
842.138  Definitions.
842.139  Delegations of authority.
842.140  Proper claimants.
842.141  Improper claimants.
842.142  Claims payable.
842.143  Claims not payable.

              Subpart Q--Advance Payments (10 U.S.C. 2736)

842.144  Scope of this subpart.
842.145  Delegation of authority.
842.146  Who may request.
842.147  When authorized.
842.148  When not authorized.
842.149  Separate advance payment claims.
842.150  Liability for repayment.

    Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, 
except as otherwise noted.

    Source: 55 FR 2809, Jan. 29, 1990, unless otherwise noted.
    Note: Air Force Regulations are available through the National 
Technical Information Service (NTIS), U.S. Department of Commerce, 5285 
Port Royal Road, Springfield, VA 22161.

    This part is derived from Air Force Regulation 112-1, Claims and 
Tort Litigation.



Sec. 842.0  Scope.

    This part establishes standard policies and procedures for 
administratively processing claims resulting from Air Force activities 
and for which the Air Force has assigned responsibility; tells how to 
present, process, and settle claims.



                     Subpart A--General Information



Sec. 842.1  Scope of this subpart.

    This subpart explains terms used in this part. It states basic Air 
Force claims policy and identifies proper claimants.



Sec. 842.2  Definitions.

    (a) Authorized agent. Any person or corporation, including a legal 
representative, empowered to act on a claimant's behalf.
    (b) Civilian personnel. Civilian employees of the Air Force who are 
paid from appropriated or nonappropriated funds. They include prisoners 
of war, interned enemy aliens performing paid labor, and volunteer 
workers except for claims under the Military Personnel and Civilian 
Employees' Claims Act.
    (c) Claim. Any signed written demand made on or by the Air Force for 
the payment of a sum certain. It does not include any obligations 
incurred in the regular procurement of services, supplies, equipment, or 
real estate. An oral demand made under Article 139,

[[Page 74]]

Uniform Code of Military Justice (UCMJ) is sufficient.
    (d) Claimant. An individual, partnership, association, corporation, 
country, state, territory, or its political subdivisions, and the 
District of Columbia. The US Government or any of its instrumentalities 
may be a claimant in admiralty, tort, carrier recovery and hospital 
recovery claims in favor of the United States.
    (e) Geographic area of claims responsibility. The base Staff Judge 
Advocate's (SJA's) jurisdiction for claims. CONUS jurisdictional areas 
are designated by HQ USAF/JACC on maps distributed to the field. HQ 
PACAF, HQ USAFE, and HQ 9AF SJAs designate these areas within their 
jurisdictions. DOD assigns areas of single service responsibility to 
each military department.
    (f) HQ USAF/JACC. Claims and Tort Litigation Staff, Office of The 
Judge Advocate General, Headquarters, United States Air Force, Building 
5683, Bolling AFB, DC 20332-6128.
    (g) HQ 9AF. Headquarters Ninth Air Force, Shaw AFB, SC 29152-5002.
    (h) Owner. A holder of a legal title or an equitable interest in 
certain property. Specific examples include:
    (1) For real property. The mortgagor, and the mortgagee if that 
individual can maintain a cause of action in the local courts involving 
a tort to that specific property.
    (2) For personal property. A bailee, lessee, mortgagee and a 
conditional vendee. A mortgagor, conditional vendor, or someone else 
other than the owner, who has the title for purposes of security are not 
owners.
    (i) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI 
96853-5001.
    (j) Personal injury. The term ``personal injury'' includes both 
bodily injury and death.
    (k) Property damage. Damage to, loss of, or destruction of real or 
personal property.
    (l) Settle. To consider and pay, or deny a claim in full or in part.
    (m) Single Base General Court-Martial Jurisdiction (GCM). For claims 
purposes, a base legal office serving the commander who exercises GCM 
authority over that base, or that base and other bases.
    (n) Subrogation. The act of assuming the legal rights of another 
after paying a claim or debt, for example, an insurance company 
(subrogee) paying its insured's (subrogor's) claim, thereby assuming the 
insured's right of recovery.
    (o) HQ USAFE. Headquarters, United States Air Forces in Europe, 
Ramstein Air Base, Germany, APO NY 09012-5001.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.3  Claims authorities.

    (a) Appellate authority. The individual authorized to review the 
final decision of a settlement authority upon appeal or reconsideration.
    (b) Settlement authority. The individual or foreign claims 
commission authorized to settle a claim upon its initial presentation.



Sec. 842.4  Where to file a claim.

    File a claim at the base legal office of the unit or installation at 
or nearest to where the accident or incident occurred. If the accident 
or incident occurred in a foreign country where no Air Force unit is 
located, file the claim with the Defense Attache (DATT) or Military 
Assistance Advisory Group (MAAG) personnel authorized to receive claims 
(DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is 
unable to obtain adequate assistance in filing a claim, the claimant may 
contact the nearest Air Force SJA. The SJA then advises HQ USAF/JACC 
thorugh claims channels of action taken and states why the DATT or MAAG 
was unable to adequately assist the claimant.



Sec. 842.5  Claims forms.

    Any signed written demand on the Air Force for a sum certain is 
sufficient to file a claim. The claimant should use these forms when 
filing a claim:
    (a) Claim processed under the Military Personnel and Civilian 
Employees' Claims Act. Use AF Form 180, Claim For Loss of or Damage To 
Personal Property Incident To Service, or DD Forms 1842, Claim for 
Personal Property Against the United States, and 1844, Schedule of 
Property and Claim Analysis Chart, to file the claim.

[[Page 75]]

    (b) Claim processed under international agreements. Use any form 
specified by the host country.
    (c) Any other type claim. Use SF 95, Claim for Damage, Injury, or 
Death.



Sec. 842.6  Signature on the claim form.

    The claimant or authorized agent signs the claim form in ink using 
the first name, middle initial, and last name.
    (a) Claim filed by an individual. (1) A married woman signs her 
name, for example, Mary A. Doe, rather than Mrs. John Doe.
    (2) An authorized agent signing for a claimant shows, after the 
signature, the title or capacity and attaches evidence of authority to 
present a claim on behalf of the claimant as agent, executor, 
administrator, parent, guardian, or other representative; for example, 
John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid 
power of attorney, court order, or other legal document is sufficient 
evidence of the agent's authority.
    (b) Claim with joint interest. Where a joint ownership or interest 
in real property exists, all joint owners must sign the claim form. This 
includes a husband and wife signing a claim if the claim is for property 
damage. However, only the military member or civilian employee signs the 
claim form for a claim under the Military Personnel and Civilian 
Employees' Claims Act.
    (c) Claim filed by a corporation. (1) A corporate officer signing 
the form must show title or capacity and affix the corporate seal (if 
any) to the claim form.
    (2) If the person signing the claim is other than the corporate 
officer they must:
    (i) Attach to the claim form a certification by a proper corporate 
officer that the individual is an agent of the corporation duly 
authorized to file and settle the claim;
    (ii) Affix to the claim form the corporate seal (if any) to the 
certification.
    (d) Claim filed by a partnership. A partner must sign the form 
showing his or her title as partner and list the full name of the 
partnership.



Sec. 842.7  Who may file a claim.

    (a) Property damage. The owner or owners of the property or their 
authorized agent may file a claim for property damage.
    (b) Personal injury or death. (1) The injured person or authorized 
agent may file a claim for personal injury.
    (2) The duly appointed guardian of a minor child or any other person 
legally entitled to do so under applicable local law may file a claim 
for a minor's personal injury.
    (3) The executor or administrator of the decedent's estate or any 
other person legally entitled to do so under applicable local law may 
file a claim based on an individual's death.
    (c) Subrogation. The subrogor (insured) and the subrogee (insurer) 
may file a claim jointly or individually. Pay a fully subrogated claim 
only to the subrogee. A joint claim must be asserted in the names of and 
signed by the real parties in interest. Make payment by sending a joint 
check to the subrogee, made payable to the subroger and subrogee. If 
separate claims are filed, make payment by check issued to each claimant 
to the extent of each undisputed interest.



Sec. 842.8  Insured claimants.

    Insured claimants must make a detailed disclosure of their insurance 
coverage by stating:
    (a) Their name and address.
    (b) Kind, amount, and dates of coverage of insurance.
    (c) Insurance policy number.
    (d) Whether a claim was presented to the insurer and, if so, in what 
amount.
    (e) Whether the insurer paid or is expected to pay the claim.
    (f) The amount of any payment made or promised.



Sec. 842.9  Splitting a claim.

    (a) A claim includes all damages accruing to a claimant by reason of 
an accident or incident. For example, when the same claimant has a claim 
for property damage and personal injury arising out of the same 
incident, each claim represents only a part of a single claim or cause 
of action. Even if local law permits filing a separate

[[Page 76]]

claim for property damage and for personal injury, do not settle or pay 
a separate or split claim without the advance approval of HQ USAF/JACC.
    (b) Filing for an advance payment, and subsequently filing a claim, 
does not constitute splitting a claim.
    (c) Process the claim of a subrogor (insured) and subrogee (insurer) 
for damages arising out of the same incident as a single claim where 
permitted. If either claim or the combined claim exceeds, or is expected 
to exceed, settlement limits, send it to the next higher settlement 
authority. Do not split subrogated claims to avoid settlement limits.



                Subpart B--Functions and Responsibilities



Sec. 842.10  Scope of this subpart.

    It sets out the claims organization within the US Air Force and 
describes the functions and responsibilities of the various claims 
offices.



Sec. 842.11  Air Force claims organization.

    Air Force claims channels are:
    (a) Continental United States (CONUS), Azores, Panama and Iceland:
    (1) Headquarters US Air Force (HQ USAF).
    (2) SJAs of bases, single base GCM authorities, stations and fixed 
installations, and commanders responsible for investigation and 
settlement of claims.
    (b) Pacific Air Forces (PACAF) and US Air Forces, Europe (USAFE):
    (1) HQ USAF.
    (2) SJAs of PACAF and USAFE.
    (3) SJAs of organizations exercising GCM authority.
    (4) SJAs of bases, stations and fixed installations, and commanders 
responsible for investigating and settling claims.
    (c) US Central Command (CENTCOM):
    (1) HQ USAF.
    (2) SJA of Headquarters Ninth Air Force (HQ 9AF).
    (3) SJAs of bases, stations, and fixed installations, and commanders 
responsible for investigation and settlement of claims.
    (d) Maneuver and disaster claims. Air Force Judge Advocates 
designated by The Judge Advocate General (TJAG) to process maneuver and 
disaster claims. Once appointed, judge advocates must process claims 
through claims channels.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.12  HQ USAF claims responsibility.

    (a) TJAG, through the Claims and Tort Litigation Staff (HQ USAF/
JACC): (1) Establishes claims and tort litigation policies and 
supervises and assists all Air Force claims activities.
    (2) Trains claims officers and paralegals.
    (3) Settles certain claims.
    Note: The authority specifically delegated to the Deputy Judge 
Advocate General to settle certain claims in no way limits the Deputy's 
authority to perform the duties of TJAG when so acting pursuant to 10 
U.S.C. 8072.
    (4) Monitors tort litigation for and against the United States 
arising out of Air Force activities.
    (b) HQ USAF/JACC. (1) Supervises and inspects claims and tort 
litigation activities through assistance visits, special audits, and 
Claims Administrative Management Program (CAMP) reviews.
    (2) Implements claims and tort litigation policies, issues 
instructions, and provides guidance and assistance to subordinate claims 
offices.
    (3) Recommends settlement action on claims and tort litigation to 
TJAG, the Secretary of the Air Force, and the United States Attorney 
General.
    (4) Maintains liaison with the Department of Defense (DOD), 
Department of Justice (DOJ), and other government agencies on claims and 
tort litigation.
    (5) Settles certain claims.
    (6) Certifies or reports claims to the General Accounting Office 
(GAO).
    (7) Prepares budget estimates for Air Force claims activities.
    (8) Monitors the collection, allocation, and expenditure of Air 
Force claims funds.
    (9) Keeps permanent records on all claims and tort litigation for 
which TJAG is responsible.
    (10) Conducts and supervises claims training activities.

[[Page 77]]



Sec. 842.13  Staff Judge Advocates' responsibility.

    (a) Major Command (MAJCOM). (1) All MAJCOM SJAs, whether or not 
exercising claims settlement authority are responsible for the general 
supervision of claims activities within their commands, including:
    (i) Conduct of periodic claims audits.
    (ii) Support of claims teams. Members may be detailed from personnel 
assigned to the command to respond to natural disasters or serious 
incidents. If resources are not available from within the command, HQ 
USAF/JACC should be contacted for assistance.
    (iii) Apportion claims funds allocated by HQ USAF.
    (2) The PACAF, USAFE, and HQ 9AF SJA:
    (i) Settles claims.
    (ii) At a minimum, through assistance visits and audits, supervises 
claims activities of those subordinate units and organizations assigned 
to them for claims purposes.
    (iii) Appoints members to foreign claims commissions.
    (iv) Monitors international claims.
    (v) Establishes and designates geographic areas of claims 
responsibility within the command, except for DOD designated single-
service areas of responsibility.
    (b) GCM: (1) The GCM SJA, whether or not he or she exercises claims 
settlement authority, is responsible for the general supervision of 
claims activities within the subordinate units.
    (2) The GCM SJA exercising settlement authority:
    (i) Settles certain claims.
    (ii) Supervises directly the claims activities of their subordinate 
units. This includes at least assistance visits and audits for all but 
single base GCMs.
    (c) Base SJAs: (1) Settle certain claims.
    (2) Have primary investigative responsibility for incidents giving 
rise to claims that occur in their geographic area of responsibility.
    (3) Notify HQ USAF/JACC through claims channels, if there is a 
question of which base can best investigate and process a particular 
claim.



Sec. 842.14  Claims and assistant claims officers.

    (a) Functions and responsibilities: (1) The claims officer, under 
the immediate supervision of the SJA, the commander, or other appointing 
authority, is responsible for all claims activity of the command, 
organization, or unit. This includes investigating and reporting 
accidents, incidents, and claims.
    (2) The assistant claims officer performs claims duties under the 
supervision of the claims officer and in the absence of the claims 
officer.
    (b) Appointment of claims and assistant claims officers: (1) The 
Commander of each Air Force base, station, fixed installation, or 
separate unit appoints a claims officer in writing.
    (2) The SJA appoints assistant claims officers in writing.
    (c) Qualifications of claims officers: Claims officers are 
commissioned officers, designated as judge advocates of the Air Force, 
or civilian attorneys employed by the United States in authorized 
attorney positions at the office of the SJA.
    (d) Qualifications of assistant claims officers: The assistant 
claims officer may be an attorney, a senior noncommissioned officer (E-7 
through E-9), or a Department of the Air Force civilian employee (GS-7 
or above).



 Subpart C--Claims Under Article 139, Uniform Code of Military Justice 
                         (UCMJ) (10 U.S.C. 939)



Sec. 842.15  Scope of this subpart.

    It sets out the Air Force procedures for processing Article 139, 
UCMJ claims.



Sec. 842.16  Definitions.

    (a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender is the appointing commander.
    (b) Board of officers. One to three commissioned officers appointed 
to investigate a complaint of willful property damage or wrongful taking 
by Air Force personnel comprise a board of officers.
    (c) Property. Property is an item that is owned or possessed by an 
individual

[[Page 78]]

or business. Property includes a tangible item such as clothing, 
household furnishings, motor vehicles, real property, and currency. The 
term does not include intangible property or items having no independent 
monetary worth. Items that should not be considered as property for the 
purpose of this part include a stock, bond, check, check book, credit 
card, telephone service and cable television services.
    (d) Willful damage. Damage or destruction caused intentionally, 
knowingly, and purposely, without justifiable excuse is willful damage.
    (e) Wrongful taking. Any unauthorized taking or withholding of 
property with intent to deprive the owner or person in lawful possession 
either temporarily or permanently.



Sec. 842.17  Claims payable.

    Claims for property willfully damaged or wrongfully taken by Air 
Force military personnel as a result of riotous, violent, or disorderly 
conduct. If a claim is payable under this part and also under another 
part, it may be paid under this part if authorized by HQ USAF/JACC.



Sec. 842.18  Claims not payable.

    Claims that are not payable are:
    (a) Claims resulting from simple negligence.
    (b) Claims for personal injury or death.
    (c) Claims resulting from acts or omissions of Air Force military 
personnel while acting within the scope of their duty.
    (d) Claims of subrogees.
    (e) Claims arising from private indebtedness.
    (f) Claims for reimbursement for bad checks.



Sec. 842.19  Limiting provisions.

    (a) Submit a complaint within 90 days of the date of the incident 
unless the appointing commander finds good cause for the delay. Command 
determination of the absence of good cause is final.
    (b) Assessment of damages in excess of $5,000 against an offender's 
pay for a single incident requires HQ USAF/JACC approval.
    (c) Payment of indirect, remote, or consequential damages is not 
authorized.



Sec. 842.20  Filing a claim.

    Claimant complains (orally or in writing) to the commander of a 
military organization or unit of the alleged offending member or members 
or to the commander of the nearest military installation. However, the 
complainant need not request a sum certain in writing, before settlement 
is made.



           Subpart D--Personnel Claims (31 U.S.C. 3701, 3721)



Sec. 842.21  Scope of this subpart.

    It explains how to settle and pay claims under the Military 
Personnel and Civilian Employees' Claims Act for incident to service 
loss and damage of personal property. These claims are paid according to 
this subpart even when another subpart may also apply.



Sec. 842.22  Definitions.

    (a) Act of God. An act occasioned exclusively by violence of nature, 
such as flood, earthquake, tornado, typhoon or hurricane, that is 
unanticipated and over which no one has any control.
    (b) Military installation. A facility used to serve a military 
purpose and used or controlled by the Air Force or any other Department 
of Defense (DOD) element.
    (c) Other authorized places: (1) Any place authorized, or apparently 
authorized by the government to receive, hold, or store personal 
property, such as offices, warehouses, baggage holding areas, hospitals.
    (2) Any area on a military installation designated for parking or 
storing vehicles.
    (3) A recreation area or any real estate the Air Force or any other 
DOD element uses or controls.
    (d) Personal property. Tangible property an individual owns, 
including but not limited to household goods, unaccompanied baggage, 
privately owned vehicles (POV), and mobile homes.
    (e) Quarters: (1) Housing the government assigns or otherwise 
provides in kind to the claimant, including substandard housing and 
trailers, when the claimant pays the government a

[[Page 79]]

fixed rental while drawing basic allowance for quarters (BAQ).
    (2) Privately owned mobile or manufactured homes parked on base in 
spaces the government provides.
    (3) Transient housing accommodations, wherever located, such as, 
hotels, motels, guest houses, transient dormitories, or other lodgings 
the government furnishes or contracts for.
    (4) Housing accommodations outside the United States which the 
claimant occupies according to local policies and procedures which were 
not assigned by or otherwise provided for by the U.S. Government. 
Quarters do not include housing occupied by foreign indigenous 
employees.
    (5) Garages, carports, driveways, and parking lots assigned to 
quarters the government provides for the occupants of the quarters to 
use.
    (6) Street parking:
    (i) At quarters.
    (ii) In the immediate vicinity of quarters.
    (iii) Reserved parking assigned to offbase housing accommodations 
overseas.
    (7) The area immediately adjacent to quarters when used for storage 
of items not commonly stored in living areas, for example, boats, 
motorcycles, motorbikes, bicycles, lawn mowers, garden equipment, and 
outdoor furniture.
    (f) Reconsideration. The original or a higher settlement authority's 
review of a prior settlement action.
    (g) Small claim. A claim for $1,000 or less.
    (h) Unusual Occurrence. Something not expected to happen in the 
normal course of events.



Sec. 842.23  Delegations of authority.

    (a) Settlement authority: (1) These individuals have been delegated 
the authority to settle claims payable for $25,000 or less if the claim 
arose before 31 October 1988, or $40,000 or less if the claim arose on 
or after 31 October 1988, and to deny claims in any amount:
    (i) The Judge Advocate General (TJAG).
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) The SJAs of HQ USAFE, HQ PACAF, and 9 AF (for claims arising out 
of HQ CENTCOM) have delegated authority to settle claims payable, and to 
deny claims filed for $25,000 or less.
    (3) The SJAs of single base GCMs and the SJAs of GCMs within PACAF 
and USAFE have delegated authority to settle claims payable, and to deny 
claims filed for $15,000 or less.
    (4) SJAs of each Air Force Base, station, and fixed installation 
have been delegated the authority to settle claims payable, and deny 
claims filed for $10,000 or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
the authority, in writing, to a subordinate judge advocate or civilian 
attorney.
    (c) Reconsideration authority. A settlement authority has the same 
authority specified in a above. However, with the exception of TJAG, a 
settlement authority may not deny a claim on reconsideration that it, or 
its delegate, had previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.24  Filing a claim.

    (a) How and when to file a claim. A claim is filed when a federal 
military agency receives from a claimant or duly authorized agent a 
properly completed AF Form 180, DD Form 1842 or other written and signed 
demand for a specified sum of money.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to the expiration of the statute of limitations by submitting a signed 
amendment. The settlement authority adjudicates and settles or forwards 
the amended claim as appropriate.
    (c) Separate claims. The claimant files a separate claim for each 
incident which caused a loss. For transportation claims, this means a 
separate claim for each shipment.

[[Page 80]]



Sec. 842.25  Partial payments.

    Upon request of a claimant, a settlement authority may make a 
partial payment in advance of final settlement when a claimant 
experiences personal hardship due to extensive property damage or loss. 
Examples where partial payments are appropriate include fires and sunken 
transport ships. Partial payments are made in this manner:
    (a) If a claim for only part of the loss is submitted and is readily 
provable, pay it up to the amount of the settlement authority. (The 
claimant may later amend the claim for the remainder of the loss.) If 
the total payable amount of the claim exceeds the payment limits of the 
settlement authority, send it with recommendations through claims 
channels to the proper settlement authority.
    (b) When the total claim is submitted and the amount payable exceeds 
the settlement authority, pay a partial payment within the limits of 
settlement authority and send the claim, with recommendations, through 
claims channels to the proper settlement authority.



Sec. 842.26  Statute of limitations.

    (a) The claimant must file the claim in writing within 2 years after 
it accrues. It accrues when the claimant discovered or reasonably should 
have discovered the full extent of the property damage or loss. For 
transportation losses, the claim usually accrues on the date of 
delivery.
    (b) To compute the statutory period, the incident date is excluded 
and the day the claim was filed is included.
    (c) Consider a claim filed after the statute has run if both of the 
following are present:
    (1) The United States is at war or in an armed conflict when the 
claim accrues, or the United States enters a war or armed conflict after 
the claim accrues. Congress or the President establishes the beginning 
and end of war or armed conflict. A claimant may not file a claim more 
than 2 years after the war or armed conflict ends.
    (2) Good cause is shown. A claimant may not file a claim more than 2 
years after the good cause ceases to exist.



Sec. 842.27  Who may file a claim.

    A claim may be filed by the:
    (a) Property owner.
    (b) Authorized agent with a power of attorney.
    (c) Property owner's survivors, who may file in this order:
    (1) Spouse.
    (2) Children.
    (3) Father or mother, or both.
    (4) Brothers or sisters, or both.



Sec. 842.28  Who are proper claimants.

    Proper claimants are:
    (a) Active duty Air Force military personnel.
    (b) Civilian employees of the Air Force who are paid from 
appropriated funds.
    (c) DOD school teachers and school administrative personnel who are 
provided logistic and administrative support by an Air Force 
installation commander.
    (d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel 
when performing active duty, full-time National Guard duty, or inactive 
duty training, ANG technicians under 32 U.S.C. 709.
    (e) Retired or separated Air Force military personnel who suffer 
damage or loss resulting from the last storage or movement of personal 
property, or for claims accruing before retirement or separation.
    (f) AFROTC cadets while on active duty for summer training.
    (g) United States Air Force Academy cadets.



Sec. 842.29  Who are not proper claimants.

    The following individuals are not proper claimants:
    (a) Subrogees and assignees of proper claimants, including insurance 
companies.
    (b) Conditional vendors and lienholders.
    (c) Non-Air Force personnel, including American Red Cross personnel, 
United Services Organization (USO) performers, employees of government 
contractors, and Civil Air Patrol (CAP) members.
    (d) AFROTC cadets who are not on active duty for summer training.

[[Page 81]]

    (e) Active duty military personnel and civilian employees of a 
military service other than the Air Force.
    (f) DOD employees who are not assigned to the Air Force.
    (g) Army and Air Force Exchange Service (AAFES) employees and other 
employees whose salaries are paid from nonappropriated funds (see 
subpart O).
    (h) Military personnel of foreign governments.



Sec. 842.30  General provisions.

    Payable claims must be for:
    (a) Personal property which is reasonable or useful under the 
circumstances of military service.
    (b) Loss, damage, destruction, confiscation, or forced abandonment 
which is incident to service.
    (c) Losses that are not collectable from any other source, including 
insurance and carriers.
    (d) Property that is owned by the claimants, their immediate 
families, or borrowed for their use.
    (e) Losses occurring without the claimants' negligence.



Sec. 842.31  Claims payable.

    Claims may be paid for:
    (a) Transportation or storage loss: (1) Pay for property damage or 
loss incident to:
    (i) Transportation under orders, whether it was in the possession of 
the government, carrier, storage warehouse, or other government 
contractor. This includes Do-It-Yourself (DITY) moves.
    (ii) Travel under orders, including temporary duty (TDY).
    (iii) Travel on a space available basis on a military aircraft, 
vessel, or vehicle.
    (2) Pay for property essential to everyday use, if the claimant has 
replaced the items that he or she reported as missing. Essential items 
may be paid for even if someone locates the property before the claimant 
files the claim.
    (b) Losses at quarters and other authorized places--(1) In the 
United States (including U.S. territories and possessions). Pay for 
personal property damage or loss, to include food spoilage, which is 
caused by fire, explosion, theft, vandalism, typhoon, hurricane, unusual 
occurrences or power outages which last for an extended period of time. 
The claimant must be free of negligence.
    (i) Claims for damage or loss caused by other acts of god are not 
paid except in those instances where the geographic area has been 
declared to be a federal disaster area or HQ USAF/JACC has determined 
that payment is appropriate because the severity of the act of god was 
truly extraordinary.
    (ii) In some areas, extreme weather, such as severe lightning 
storms, hail, or high winds, occur routinely. Damage claims from these 
storms are normally not paid. Failure to take reasonable care in 
protecting property from such known hazards may be negligence. These 
types of claims would include pitted windshields, dents, chipped paint 
on vehicles, and lightning damage to television sets, stereos, computer 
components, video recorders, and other electrical appliances.
    (2) Outside the United States. Pay for personal property damage or 
loss, to include food spoilage, which is caused by fire, explosion, 
theft, vandalism, acts of god, unusual occurrences, or power outages 
which last for an extended period of time. The claimant must be free of 
negligence. The SJA must make an affirmative determination that the act 
of god or unusual occurrence was truly extraordinary.
    (c) Privately owned vehicles (POV). Pay for damage to or loss of 
POVs caused by government negligence under subpart F or K. Pay under 
this subpart for damage or loss incident to:
    (1) Theft of POVs or their contents, or vandalism to parked POVs:
    (i) Anywhere on a military installation.
    (ii) At offbase quarters overseas.
    (iii) At other authorized places.
    (2) Government shipment:
    (i) To or from oversea areas incident to PCS.
    (ii) On a space available reimbursable basis.
    (iii) As a replacement vehicle under the provisions of the Joint 
Travel Regulations (JTR).
    (3) Authorized use for government duty other than PCS moves. The 
owner must have specific advance permission of the appropriate 
supervisor or official. Adequate proof of the permission

[[Page 82]]

and of nonavailability of official transportation must be provided prior 
to paying such claims. Claims arising while the claimant is deviating 
from the principal route or purpose of the trip should not be paid, but 
claims occurring after the claimant returns to the route or purpose 
should be paid. Travel between quarters and place of duty, including 
parking, is not authorized use for government duty.
    (4) Paint spray, smokestack emission, and other similar operations 
by the Air Force on a military installation caused by a contractor's 
negligence. (Process the claim under subpart F or K, if government 
negligence causes such losses.) If a contractor's operation caused the 
damage:
    (i) Refer the claim first to the contractor for settlement.
    (ii) Settle the claim under this subpart if the contractor does not 
pay it or excessively delays payment, and assert a claim against the 
contractor.
    (d) Damage to mobile or manufactured homes and contents in shipment. 
Pay such claims if there is no evidence of structural or mechanical 
failure for which the manufacturer is responsible.
    (e) Borrowed property. Pay for loss or damage to property claimants 
borrow for their use. Either the borrower or lender, if proper 
claimants, may file a claim. Do not pay for property borrowed to 
accommodate the lender, i.e., such as to avoid weight or baggage 
restrictions in travel.
    (f) Marine or aircraft incident. Pay claims of crewmembers and 
passengers who are in duty or leave status at the time of the incident. 
Payable items include jettisoned baggage, clothing worn at the time of 
an incident, and reasonable amounts of money, jewelry, and other 
personal items.
    (g) Combat losses. Pay for personal property losses, whether or not 
the United States was involved, due to:
    (1) Enemy action.
    (2) Action to prevent capture and confiscation.
    (3) Combat activities.
    (h) Civil activity losses. Pay for losses resulting from a 
claimant's acts to:
    (1) Quell a civil disturbance.
    (2) Assist during a public disaster.
    (3) Save human life.
    (4) Save government property.
    (i) Confiscated property. Pay for losses when:
    (1) A foreign government unjustly confiscates property.
    (2) An unjust change or application of foreign law forces surrender 
or abandonmnet of property.
    (j) Clothing and accessories worn on the person. Pay claims for 
damage to eyeglasses, hearing aids, and dentures the government did not 
supply, when the damage results from actions beyond the normal risks 
associated with daily living and working. Claimants assume the risk of 
normal wear and tear, and their negligence bars payment of the claim.
    (k) Money losses. Pay claims for loss of money when the losses are 
due to theft from quarters, other authorized places, or from the person, 
if the claimant was required to be in the area and could not avoid the 
theft by due care. As a general rule, $200.00 is reasonable to have in 
quarters, and $100.00 is reasonable to have on the person unless:
    (1) The money was in a bona fide coin collection.
    (2) The claimant can justify possession of the money for a PCS move, 
extended TDY, vacation, extensive shopping trip, or similar 
circumstances. The claimant must show a good reason why the money had 
not been deposited in a bank or converted into travelers checks or a 
money order.
    (3) Local commercial facilities are not available or because US 
personnel do not generally use such facilities.



Sec. 842.32  Claims not payable.

    A claim is not payable if:
    (a) It is not incident to the claimant's service.
    (b) The loss or damage is caused in whole or in part by the 
negligence or wrongful act of the claimant, the claimant's spouse, 
agent, or employee.
    (c) It is a subrogation or assigned claim.
    (d) The loss is recovered or recoverable from an insurer or other 
source. When a loss is recovered or is recoverable:
    (1) The amount payable by insurance should be deducted if an insurer 
denied a claim because a claimant failed to report the loss or to file a 
timely claim under the policy. The claim should be

[[Page 83]]

paid if the settlement authority determines the claimant had good cause 
for not filing with the insurer, or
    (2) The amount which the Air Force cannot recover from a carrier 
because the claimant failed to give timely notice of loss or damage 
should be subtracted from the settlement unless the claimant shows good 
cause for failure to give notice.
    (e) It is intangible property including bank books, promissory 
notes, stock certificates, bonds, baggage checks, insurance policies, 
checks, money orders, travelers checks and credit cards.
    (f) It is government property, including issued clothing items 
carried on an individual issue supply account. (Clothing not carried on 
an individual issue supply account which is stolen or clothing lost or 
damaged in transit may be considered as a payable item when claimed.)
    (g) It is enemy property.
    (h) It is a loss within the United States at offbase quarters the 
government did not provide.
    (i) It is damage to real property.
    (j) It is an appraisal fee, unless the settlement authority requires 
one to adjudicate the claim. HQ USAF/JACC must authorize payment for an 
appraisal fee of more than $100.
    (k) It is property acquired or shipped for persons other than the 
claimant or the claimant's immediate family; however, a claim for 
property acquired for bona fide gifts may be paid.
    (l) It is an article held for sale, resale, or used primarily in a 
private business.
    (m) It is an item acquired, possessed, shipped, or stored in 
violation of any U.S. Armed Force directive or regulation. This includes 
an automobile for which a member fails to comply with base registration 
or insurance regulations. A claim must not be paid if one or more of 
these factors exist:
    (1) The loss was the type the regulation or directive intended to 
prevent.
    (2) The violation was willful or in defiance of authority, rather 
than minor or technical in nature.
    (3) The violation either undermined discipline or adversely affected 
command welfare.
    (n) It is an item fraudulently claimed. Deny payment for an item 
when investigation shows the claimant has intentionally falsified the 
value, condition, extent of damage, or repair cost of it. The claim file 
must show clear intent to defraud. A mere mistake is not a fraud.
    (o) It is for charges for labor performed by the owner or immediate 
family member.
    (p) It is for financial loss due to changed or cancelled orders.
    (q) It is for expenses of enroute repair of a mobile or manufactured 
home.
    (r) It is a loss of use of personal property.
    (s) It is an attorney or agent fee.
    (t) It is the cost of preparing a claim, other than estimate fees.
    (u) It is an inconvenience expense, such as food, lodging, and 
transportation costs due to delay in delivery of household goods or 
travel to port to deliver or pick up a vehicle.
    (v) It is a loss of, or damage to POV driven during PCS.
    (w) It is a personal property insurance premium.
    (x) It is a claim for a thesis or other similar papers, except for 
the cost of materials.
    (y) It is damage to, or loss of a rental vehicle which TDY or PCS 
orders authorized. These claims may be payable through Accounting and 
Finance as a travel expense.
    (z) It is a cost to relocate a telephone or mobile or manufactured 
home due to a government ordered quarters move. The member submits such 
claims to the commander directing the move for payment from other 
Operation and Maintenance (O&M) funds.
    (aa) It is for damage to or loss of property stored at the owner's 
expense unless the claimant's duty made storage necessary.
    (bb) It is for damage to clothing and accessories caused by routine 
wrinkles.
    (cc) It is hit-and-run damage to POVs.
    (dd) It is for damage to clothing and accessories caused by contact 
with office furniture or getting in or out of a government vehicle 
unless the damage was caused by an unknown defect.



Sec. 842.33  Reconsideration of a claim.

    A claimant may request reconsideration of an initial settlement or 
denial

[[Page 84]]

of a claim. The claimant sends the request in writing, to the settlement 
authority within a reasonable time following the initial settlement or 
denial. Sixty days is considered a reasonable time, but the settlement 
authority may waive the time limit for good cause.
    (a) The original settlement authority reviews the reconsideration 
request. The settlement authority sends the entire claim file with 
recommendations and supporting rationale to the next higher settlement 
authority if all relief the claimant requests is not granted.
    (b) The decision of the higher settlement authority is the final 
administrative action on the claim.



Sec. 842.34  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. The Air 
Force does not seek contribution or indemnity from US military personnel 
or civilian employees whose conduct in scope of employment gave rise to 
government liability.



Sec. 842.35  Depreciation and maximum allowances.

    The military services have jointly established the ``Allowance List-
Depreciation Guide'' to determine values for most items and to limit 
payment for some categories of items.



                   Subpart E--Carrier Recovery Claims



Sec. 842.36  Scope of this subpart.

    This subpart explains how to assert and settle claims against 
carriers, warehousemen, and contractors for loss and damage to personal 
property.



Sec. 842.37  Definitions.

    (a) Bill of lading. A contract for movement and delivery of goods.
    (1) Carriers issue commercial bills of lading.
    (2) Transportation officers issue government bills of lading (GBL). 
GBLs include the terms and conditions of commercial bills of lading with 
certain exceptions.
    (3) The GBL is all of the following:
    (i) A receipt for goods tendered to a carrier.
    (ii) A contract.
    (iii) A document authorizing collection of transportation bills the 
carrier presents.
    (b) Carrier. Any moving company, personal property forwarder, or 
freight forwarder holding a certificate or permit issued by a federal or 
state regulatory agency or approved by the Department of Defense for 
international shipments.
    (c) Military Traffic Management Command (MTMC). The Department of 
Defense management agency for military traffic, land transportation, and 
common user ocean terminals. Among other responsibilities, MTMC manages 
the DOD household goods moving and storage program worldwide. The Army 
has single service responsibility for MTMC.
    (d) Regional Storage Management Office (RSMO). The MTMC office 
responsible for negotiating and administering all storage contracts 
within a geographical area. The contracting officer of each RSMO makes 
involuntary collections of nontemporary storage loss and damage claims.
    (e) Net weight. The weight of the fully-loaded van or shipping crate 
(gross weight), less the weight of the empty van or shipping crate (tare 
weight).
    (f) Nontemporary storage (NTS). All authorized storage not in 
connection with a GBL. NTS usually exceeds 180 days and normally 
includes packing and shipping of household goods to the warehouse.
    (g) Storage in transit (SIT). Storage of a shipment by a carrier at 
origin, enroute, or at destination. SIT is initially limited to 90 days. 
The transportation officer may extend it to a maximum of 180 days.
    (h) Tender of service. A carrier's offer to do business with the 
Department of Defense, including the terms and conditions of the 
agreement. The Personal Property Traffic Management Regulation (PPTMR), 
DOD Regulation 4500.34, Appendix A, contains this agreement.

[[Page 85]]



Sec. 842.38  Delegations of authority.

    (a) Settlement authority: (1) These individuals have delegated 
authority to settle, compromise, suspend, or terminate action on claims 
for $20,000 or less and to accept full payment on any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (v) The SJAs of HQ PACAF, HQ USAFE, and HQ 9AF (for HQ CENTCOM).
    (2) These individuals have delegated authority to settle, 
compromise, suspend, or terminate action on claims for $15,000 or less 
and to accept full payment on any claim:
    (i) SJAs of GCMs in PACAF and USAFE.
    (ii) SJAs of single base GCMs.
    (3) SJAs of each Air Force base, station, or fixed installation have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims for $10,000 or less and to accept full payment on any claim.
    (b) Redelegation of authority. An individual with settlement 
authority may redelegate this authority, in writing, to a subordinate 
judge advocate or civilian attorney.
    (c) Authority to reduce, withdraw, or restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
settlement authority.



Sec. 842.39  Statute of limitations.

    (a) International commercial air shipments. The government must file 
suit within 2 years after the delivery date. The period for notifying 
these carriers of loss or damage is 3 days for luggage, and 7 days for 
other goods. Setoff is not possible in these cases. Uncollectible claims 
are sent to HQ USAF/JACC within 6 months from the date of delivery.
    (b) All other CR claims. The government must file suit within 6 
years after the cause of action accrues. It accrues when a responsible 
US official, service member, or employee knew or reasonably should have 
known the material facts that caused the claimed loss. The requirement 
to file a claim within 9 months under commercial bills of lading does 
not apply to GBLs.



             Subpart F--Military Claims Act (10 U.S.C. 2733)



Sec. 842.40  Scope of this subpart.

    This subpart explains how to settle claims made against the United 
States for property damage, personal injury, or death caused by military 
personnel or civilian employees of the Air Force acting in the scope of 
their employment or otherwise incident to the Air Force's noncombat 
activities.



Sec. 842.41  Definitions.

    (a) Appeal. A request by the claimant or claimant's authorized agent 
to reevaluate the final decision. A request for reconsideration and an 
appeal are the same for the purposes of this subpart.
    (b) Final denial. A letter mailed from the settlement authority to 
the claimant or authorized agent advising the claimant that the Air 
Force denies the claim.
    (c) Noncombat activity. Activity, other than combat, war or armed 
conflict, that is particularly military in character and has little 
parallel in the civilian community.



Sec. 842.42  Delegations of authority.

    (a) Settlement authority: (1) The Secretary of the Air Force has 
delegated authority to:
    (i) Settle claims for $100,000 or less.
    (ii) Settle claims for more than $100,000, paying the first $100,000 
and reporting the excess to the General Accounting Office for payment.
    (iii) Deny a claim in any amount.
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000 or less and deny claims in any amount.
    (3) The following individuals have delegated authority to settle 
claims for $25,000 or less and deny claims in any amount:
    (i) The Deputy Judge Advocate General.
    (ii) The Director of Civil Law.

[[Page 86]]

    (iii) The Chief, Deputy Chief and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) The SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE have 
delegated authority to settle claims payable or deny claims filed for 
$25,000 or less.
    (5) SJAs of single base GCMs, and GCMs in PACAF and USAFE, and each 
Air Force base, station, or fixed installation have delegated authority 
to settle claims payable, or deny claims filed for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
his or her authority for claims not exceeding $25,000, to a subordinate 
judge advocate or civilian attorney in writing.
    (c) Appellate authority. Upon appeal, a settlement authority has the 
same authority specified above. However, no appellate authority below 
the Office of the Secretary of the Air Force may deny an appeal of a 
claim it had previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its delegated settlement authority, regardless 
of the amount claimed. Send uncompromised claims in excess of the 
delegated authority to the level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.
    (f) Special exceptions. Do not settle claims for the following 
without HQ USAF/JACC approval:
    (1) Legal malpractice.
    (2) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (3) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.
    (4) On-base animal bite cases.
    (5) Personal injury from asbestos or radon.
    (6) Claims based upon an act or omission of an employee of the 
government, exercising due care, in the execution of a statute or 
regulation.
    (7) Claims based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
federal agency or an employee of the government.
    (8) Claims for damage to property of a state, commonwealth, 
territory, or the District of Columbia caused by ANG personnel engaged 
in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are 
assigned to a unit maintained by that state, commonwealth, territory or 
the District of Columbia.
    (9) Claims not payable because payment is not in the best interests 
of the United States, is contrary to public policy, or is otherwise 
contrary to the basic intent of the MCA.
    (10) Claims presented by a national, or a corporation controlled by 
a national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country.
    (11) Medical malpractice.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.43  Filing a claim.

    (a) How and when filed. A claim is filed when a federal military 
agency receives from a claimant or duly authorized agent a properly 
completed Standard Form 95 or other signed and written demand for money 
damages in a sum certain. A claim belonging to another agency is 
promptly transferred to that agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. To amend a claim, the claimant or his or her authorized 
agent must submit a written, signed demand.



Sec. 842.44  Advance payments.

    Subpart Q sets forth procedures for advance payments.



Sec. 842.45  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss. The same rules governing accrual pursuant to the Federal

[[Page 87]]

Tort Claims Act should be applied with respect to the Military Claims 
Act.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) Consider claims filed after the statute has run when:
    (1) The United States is at war or in an armed conflict when the 
claim accrues, or
    (2) The United States enters a war or armed conflict after the claim 
accrues, and
    (3) Good cause is shown. A claim is barred by the statute of 
limitations if it is filed more than 2 years after the good cause ceases 
to exist or the war or armed conflict ends. Congress or the President 
establishes the beginning and end of war or armed conflict.



Sec. 842.46  Who may file a claim.

    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims for 
minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses paid 
in full by them. The parties may file claims jointly or individually, to 
the extent of each party's interest, for losses partially paid by 
insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.



Sec. 842.47  Who are proper claimants.

    (a) Citizens and inhabitants of the United States.
    (b) U.S. military personnel and civilian employees.
    Note: These personnel are not proper claimants for personal injury 
or death incident to service.
    (c) Persons in foreign countries who are not inhabitants of the 
foreign country.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Prisoners of war or interned enemy aliens.
    Note: These individuals are proper claimants for personal property 
damage but not for personal injury.
    (f) Property owners, their representatives, and those with certain 
legal relationships with the record owner, including mortgagors, 
mortgagees, trustees, bailees, lessees and conditional vendees.
    (g) Subrogees to the extent they have paid for the claim in 
question.



Sec. 842.48  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and departments of the U.S. Government.
    (c) Nonappropriated fund instrumentalities.
    (d) Subrogees of Sec. 842.48(a), (b), and (c) of this part.
    (e) Inhabitants of foreign countries.



Sec. 842.49  Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions 
committed by United States military or civilian personnel while acting 
in the scope of their employment.
    (b) Claims arising from noncombat activities of the United States, 
whether or not such injuries of damages arose out of the negligent or 
wrongful acts or omissions by United States military or civilian 
employees acting within the scope of their employment.
    (c) Claims for damage to bailed property under Sec. 842.49(a) or (b) 
of this part, where all of the following are present:
    (1) The United States armed forces assumed the duties of a bailee.
    (2) The bailor did not assume the risk of loss by express agreement.
    (3) Authorized United States armed forces military or civilian 
personnel acting in their official capacity properly accepted the 
property.
    (d) Claims for loss or damage to:

[[Page 88]]

    (1) Insured or registered mail under Sec. 842.49(a), (b), or (c) 
while in the possession of the United States armed forces military or 
civilian personnel.
    (2) Minimum fee insured mail, but only if it has an insurance number 
or requirement for hand-to-hand receipt while in the possession of the 
United States armed forces military or civilian personnel.
    (3) Any mail in the possession of the US Postal Service or a 
Military Postal Service due to an unlawful or negligent inspection, 
search, or seizure conducted in an oversea military postal facility, 
under orders of armed forces personnel.
    (e) Claims for property damage of US military personnel under 
conditions listed in paragraphs (a) and (b) of this section, where the 
damage occurred on a military installation and is not payable under the 
Military Personnel and Civilian Employees' Claims Act.
    (f) Claims filed by DOD military or civilian health care providers 
or legal personnel for their personal liability by settlement or 
judgment, to include reasonable costs of such litigation, for their 
common law tortious acts committed within the scope of their employment 
under circumstances described in 10 U.S.C. 1089(f) and 10 U.S.C. 
1054(f).

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990]



Sec. 842.50  Claims not payable.

    Exclusions listed in Sec. 842.50 (a) through (l) of this part, are 
based on the wording of 28 U.S.C. 2680. The remainder are based either 
on statute or court decisions. The interpretation of these exclusions is 
a Federal question decided under Federal law. Where State law differs 
with Federal law, Federal law prevails. A claim is not payable under 
this subpart if it:
    (a) Is based on an act or omission of an employee of the government, 
exercising due care, in the execution of a statute or regulation, 
whether or not such statute or regulation is valid. Do not deny claims 
solely on this exception without the prior approval of HQ USAF/JACC.
    (b) Is based on the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
Federal agency or an employee of the government, whether or not the 
discretion involved is abused. Do not deny claims solely on this 
exception without the prior approval of HQ USAF/JACC.
    (c) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter, except those claims payable under 
Sec. 842.49.
    (d) Arises with respect to the assessment or collection of any tax 
or customs duty, or the detention of any goods or merchandise by any 
officer of customs or excise, or any other law enforcement officer.
    (e) Is cognizable under the Suits in Admiralty Act or under the 
Public Vessels Act.
    (f) Arises out of an act or omission of any employee of the 
government in administering the provisions of the Trading With the Enemy 
Act.
    (g) Is for damages caused by the imposition or establishment of a 
quarantine by the United States.
    (h) Arises out of an assault or battery, unless the assault or 
battery arises out of the acts or omissions of investigative or law-
enforcement officers of the US Government, or arises out of the 
performance of medical, dental or related health care functions.
    (i) Arises out of false imprisonment, false arrest, malicious 
prosecution or abuse of process, unless such actions were committed by 
an investigative or law enforcement officer of the United States who is 
empowered by law to execute searches, seize evidence, or make arrests 
for violations of federal law.
    (j) Arises out of libel, slander, misrepresentation, or deceit.
    (k) Arises out of interference with contract rights.
    (l) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system.
    (m) Arises out of the combat activities of the military or naval 
forces, or the Coast Guard, during time of war.
    (n) Arises from activities of the Tennessee Valley Authority.
    (o) Arises from the activities of the Panama Canal Company.

[[Page 89]]

    (p) Arises from the activities of a Federal land bank, a Federal 
intermediate credit bank, or a bank for cooperatives.
    (q) Is for the personal injury or death of a member of the Armed 
Forces of the United States, including the Coast Guard, incurred 
incident to service.
    (r) Is for the personal injury or death of a government employee for 
whom benefits are provided by the FECA.
    (s) Is for the personal injury or death of an employee, including 
nonappropriated fund employees, for whom benefits are provided by the 
Longshore and Harbor Workers' Compensation Act (LHWCA).
    (t) Is for the personal injury or death of any government contractor 
employee for whom benefits are provided under any worker's compensation 
law, or under any contract or agreement providing employee benefits 
through insurance, local law, or custom when the United States pays them 
either directly or as part of the consideration under the contract. Only 
HQ USAF/JACC may settle these claims.
    (u) Is for taking of property as by technical trespass or overflight 
of aircraft and of a type contemplated by the Fifth Amendment to the US 
Constitution, or otherwise constitutes a taking.
    (v) Is for damage from or by flood or flood waters at any place.
    (w) Is for damage to property or for any death or personal injury 
occurring directly or indirectly as a result of the exercise or 
performance of, or failure to exercise or perform, any function or duty 
by any Federal agency or employee of the government to carry out the 
provisions of the Federal Civil Defense Act of 1950 during the existence 
of a civil defense emergency.
    (x) Is for patent or copyright infringement.
    (y) Is for damage to property of a state, commonwealth, territory, 
or the District of Columbia caused by ANG personnel engaged in training 
or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a 
unit maintained by that state, commonwealth, territory, or the District 
of Columbia unless the express approval for payment is received from HQ 
USAF/JACC.
    (z) Is for damage to property or for any death or personal injury 
arising out of the activities of any federal agency or employee of the 
government in carrying out the provisions of the Federal Disaster Relief 
Act of 1954.
    (aa) Arises from activities that present a political question.
    (bb) Results wholly from the negligent, or wrongful act of the 
claimant or agent.
    (cc) Is for reimbursement for medical, hospital, or burial expenses 
furnished at the expense of the United States.
    (dd) Arises from contractual transactions, express or implied, 
including rental agreements, sales agreements, leases and easements, 
which are payable or enforceable under such contracts or arise out of 
irregular procurement and implied contract.
    (ee) Arises from private, as distinguished from government, 
transactions.
    (ff) Is based solely on compassionate grounds.
    (gg) Is for rent, damage, or other expenses or payments involving 
the regular acquisition, use, possession, or disposition of real 
property of interests therein by and for the Air Force.
    (hh) Is not in the best interests of the United States, is contrary 
to public policy, or is otherwise contrary to the basic intent of the 
MCA; for example, claims by inhabitants of unfriendly foreign countries 
or by or based on injury or death of individuals considered to be 
unfriendly to the United States. Claims considered not payable under 
this paragraph are forwarded, with recommendations for disposition, 
through claims channels to HQ USAF/JACC.
    (ii) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and at 
the time of the incident was, friendly to the United States. A prisoner 
of war or an interned enemy alien is not excluded as to a claim for 
damage, loss, or destruction of personal property in the custody of the 
Government otherwise payable. Claims

[[Page 90]]

considered not payable under this paragraph are forwarded with 
recommendations for disposition, through claims channels, to HQ USAF/
JACC.
    (jj) Is for personal injury or death of military or civilian 
personnel of a foreign country, if their personal injury or death was 
suffered incident to their service.
    (kk) Is for damage to or loss of bailed property when the bailor 
specifically assumes such risk.
    (ll) Is for property damage, personal injury, or death occurring in 
a foreign country to an inhabitant of that country.
    (mm) Is for the loss of a rental fee for personal property.
    (nn) Arises out of matters which are in litigation against the 
United States.
    (oo) Is payable under any one of the following statutes and 
implementing regulations:
    (1) Federal Tort Claims Act.
    (2) Foreign Claims Act.
    (3) International Agreements Claims Act.
    (4) Air Force Admiralty Claims Act and the Admiralty Extension Act.
    (5) National Guard Claims Act.
    (6) Military Personnel and Civilian Employees' Claims Act.



Sec. 842.51  Applicable law.

    This paragraph provides the existing law governing liability, 
measurement of liability and the effects of settlement upon awards.
    (a) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) When a claim arises in the United States, the law of the place 
where the act or omission occurred governs liability. The settlement 
authority considers the local law on such issues as dangerous 
instrumentalities, assumption of risk, res ipsa loquitur, last clear 
chance, discovered peril, and comparative and contributory negligence. 
Absolute liability is never imposed.
    (2) Claims in foreign countries. (i) In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to general principles of tort law common to the 
majority of American jurisdictions, as evidenced by Federal case law and 
standard legal publications, except as to the principle of absolute 
liability.
    (ii) The law of the foreign country governing the legal effect of 
contributory or comparative negligence by the claimant will be applied 
in determining the relative merits of the claim. In the unusual 
situation where foreign law governing contributory or comparative 
negligence does not exist, use traditional rules of contributory 
negligence. Foreign rules and regulations governing the operation of 
motor vehicles (rules of the road) are applied to the extent those rules 
are not specifically superseded or preempted by United States military 
traffic regulations.
    (3) When adjudicating claims based upon negligence, the principle of 
absolute liability is not applicable, even though otherwise prescribed 
by applicable local law.
    (4) The meaning and construction of the MCA is a Federal question to 
be determined by Federal law.
    (b) General information: (1) The measure of daages in claims arising 
in the United States or its possessions is determined according to the 
law of the place where the act or omission occurred. The measure of 
damages in claims arising overseas is determined according to general 
principles of American tort law.
    (2) Apportion damages against the United States in the same manner 
as they are apportioned in suites against private persons if local law 
applies comparative negligence.
    (3) Do not deduct proceeds from private insurance policies except to 
the extent allowed by local law. However, proceeds are deducted if the 
policy was paid for by the United States.
    (4) Deduct compensation and benefits from the Department of Veterans 
Affairs, or monetary value received from any U.S. Government associated 
source from the damages which may be awarded. Deduct sick and annual 
leave payments if local law allows.
    (5) Do not approve:

[[Page 91]]

    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at U.S. expense.
    (iii) Cost of burial expenses paid by the United States.
    (c) Settlement by insurer or joint tort-feasor. When settlement is 
made by an insurer or joint tort-feasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.



Sec. 842.52  Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
within a reasonable time following the final denial. Sixty days is 
considered a reasonable time, but the settlement authority may waive the 
time limit for good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.



Sec. 842.53  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs, or under contract. Do not 
seek contribution or indemnity from US military personnel or civilian 
employees whose conduct gave rise to government liability.



Sec. 842.54  Attorney fees.

    In the settlement of any claim pursuant to 10 U.S.C. 2733 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, attorney 
fees on that part of the award exceeding $1,000,000 may be determined by 
the Secretary of the Air Force. For the purposes of this paragraph, an 
award is deemed to be the cost to the United States of any trust or 
structured settlement, and not its future value.



               Subpart G--Foreign Claims (10 U.S.C. 2734)



Sec. 842.55  Scope of this subpart.

    This subpart tells how to settle and pay claims against the United 
States presented by inhabitants of foreign countries for property 
damage, personal injury, or death caused by military and civilian 
members of the US Armed Forces in foreign countries.



Sec. 842.56  Definitions.

    (a) Foreign country. A national state other than the United States, 
including any place under jurisdiction of the United States in a foreign 
country.
    (b) Inhabitant of a foreign country. A person, corporation, or other 
business association whose usual place of abode is in a foreign country. 
The term ``inhabitant'' has a broader meaning than such terms as 
``citizen'' or ``national'', but does not include persons who are merely 
temporarily present in a foreign country. It does not require foreign 
citizenship or domicile.
    (c) Appointing authority. An Air Force official authorized to 
appoint members to foreign claims commissions (FCC).



Sec. 842.57  Delegations of authority.

    (a) Settlement authority: (1) The Secretary of the Air Force has the 
authority to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Settle claims for more than $100,000, pay the first $100,000, 
and report the excess to the General Accounting Office for payment.
    (iii) Deny claims in any amount.
    (2) The Judge Advocate General has delegated authority to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Deny claims in any amount.
    (3) The Deputy Judge Advocate General, Director of Civil Law, and 
the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation 
Staff are

[[Page 92]]

each a foreign claims commission and have delegated authority to:
    (i) Settle claims for payment of $50,000 or less.
    (ii) Deny a claim in any amount.
    (4) The SJAs of PACAF, USAFE, 9AF (for CENTCOM) and AFSPACECOM (for 
Greenland and Canada) are each a foreign claims commission and have 
delegated authority to approve claims for payment arising within their 
geographic area of responsibility for $50,000 or less, or deny claims of 
$50,000 or less.
    (5) The SJAs of Numbered Air Forces in PACAF and USAFE; the SJA of 
HQ TUSLOG; the SJA of 12AF (for South America); and the SJAs of Lajes 
AB, Azores, Patrick AFB, FL, and Howard AFB, Panama are each a foreign 
claims commission and have delegated authority to:
    (i) Recommend payment in any amount.
    (ii) Settle claims for payment of $25,000 or less.
    (iii) Deny claims for $50,000 or less.
    (6) The SJAs of each Air Force base, station and fixed installation 
in PACAF, USAFE, and CENTCOM, are each a foreign claims commission and 
have delegated authority to:
    (i) Recommend payment in any amount.
    (ii) Settle claims for payment of $10,000 or less.
    (iii) Deny claims for $25,000 or less.
    (b) Authority to appoint FCCs. (1) The Chief, Claims and Tort 
Litigation Staff, has the delegated authority to appoint a judge 
advocate or civilian attorney as a FCC and to redelegate all or a part 
of his or her settlement authority to that FCC.
    (2) A settlement authority appointed as a FCC in paragraph (a) of 
this section may appoint one or more subordinate judge advocates or 
civilian attorneys as FCCs, and may redelegate all or part of that 
settlement authority to those FCCs, in writing. Every FCC must have 
authority to settle claims for at least $10,000.
    (c) Authority to reduce, withdraw, or restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority, in writing, except no one may reduce or withdraw 
the authority of a FCC to settle claims for $10,000 or less.
    (d) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its settlement authority, regardless of the 
amount claimed. Send uncompromised claims in excess of the delegated 
authority through claims channels to the level with settlement 
authority. Unsuccessful negotiations at one level do not bind higher 
authority.
    (e) Special exceptions. Do not settle claims for medical malpractice 
without HQ USAF/JACC approval.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990; 56 
FR 1574, Jan. 16, 1991]



Sec. 842.58  Filing a claim.

    (a) How and when filed. A claim is filed when a federal agency 
receives from a claimant or authorized agent a properly completed SF 95 
or other signed and written demand for money damages in a sum certain. A 
claim belonging to another agency is promptly transferred to the 
appropriate agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. An amendment must be in writing and signed by the 
claimant or authorized agent.



Sec. 842.59  Advance payments.

    Subpart Q outlines procedures for advance payments.



Sec. 842.60  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss or injury.
    (b) In computing the statutory time period, the day of the incident 
is excluded and the day the claim was filed is included.
    (c) War or armed conflict does not toll the statute of limitations.



Sec. 842.61  Who may file a claim.

    (a) Owners of the property or their authorized agents for property 
damage.
    (b) Injured persons or other authorized agents for personal injury.
    (c) Executors or administrators of a decedent's estate, or any other 
person

[[Page 93]]

legally entitled to do so under applicable local law, for an 
individual's death.
    (d) Authorized agents (including the claimant's attorney) must show 
their title or legal capacity and present evidence of authority to 
present the claim.



Sec. 842.62  Who are proper claimants.

    Claimants include inhabitants of a foreign country who are:
    (a) Foreign nationals.
    (b) US nationals, unless they reside there primarily because they 
are:
    (1) Employed directly by the United States.
    (2) Employed by a US civilian contractor to further performance of a 
contract with the United States.
    (3) Sponsored by or accompanying someone employed as described in 
Sec. 842.62(b) (1) or (2) of this part.
    (c) US corporations with a place of business in the country in which 
the claim arose.
    (d) Foreign governments and their political subdivisions, including 
a municipal and prefectural government.
    (e) Foreign companies and business entities.



Sec. 842.63  Who are not proper claimants.

    Persons who are not proper claimants include:
    (a) Insurers and other subrogees.
    (b) Dependents accompanying US military and US national civilian 
employees.
    (c) Foreign military personnel suffering property damage, personal 
injury, or death from a joint military mission with the United States or 
from conduct of a US military member or employee acting in the scope of 
employment unless an international agreement specifically provides for 
recovery.
    (d) Civilian employees of the United States, including local 
inhabitants, injured in the scope of their employment.
    (e) National governments and their political subdivisions engaging 
in war or armed conflict with the United States or its allies.
    (f) A national or nationally controlled corporation of a country 
engaging in war or armed conflict with the United States or its allies, 
unless the FCC or local military commander determines the claimant is 
friendly with the United States.



Sec. 842.64  Payment criteria.

    The following criteria is considered before determining liability.
    (a) The incident causing the damage or injury must occur outside the 
United States. It must be caused by noncombatant activities of the US 
Armed Forces or by civilian employees or military members of the Armed 
Forces.
    (b) Negligence is not a prerequisite.
    (c) Scope of employment is considered in the following situations.
    (1) It is a prerequisite to US responsibility if the employee 
causing the damage or injury is a local inhabitant, a prisoner of war, 
or an interned enemy alien. These persons are ``employees'' within the 
meaning of the Foreign Claims Act (FCA) only when in the service of the 
United States. Ordinarily, a slight deviation as to time or place does 
not constitute a departure from the scope of employment. The purpose of 
the activity and whether it furthers the general interest of the United 
States is considered. If the claim arose from the operation or use of a 
US Armed Forces vehicle or other equipment by such a person, pay it 
provided local law imposes liability on the owner of the vehicle or 
other equipment in the circumstances involved.
    (2) It is immaterial when the claim arises from the acts or 
omissions of any US Armed Forces member or employee not listed in 
Sec. 842.64(c)(1) of this part. The Act imposes responsibility on the 
United States when it places a US citizen or non-US citizen employee in 
a position to cause the injury or damage. If the cause is a criminal act 
clearly outside the scope of employment, ordinarily pay the claim and 
consider disciplinary action against the offender.



Sec. 842.65  Claims not payable.

    A claim is not payable when it:
    (a) Has been paid or denied by a competent tribunal under the North 
Atlantic Treaty Organization (NATO), Status of Forces Agreement (SOFA), 
or any similar SOFA or treaty.
    (b) Is purely contractual in nature.

[[Page 94]]

    (c) Is for attorney fees, punitive damages, a judgment or interest 
on a judgment, bail, or court costs.
    (d) Accrues from a private contractual relationship between US 
personnel and third parties about property leases, public utilities, 
hiring of domestic servants, and debts of any description. This claim is 
sent for action to the commander of the person concerned (see 32 CFR 
part 818).
    (e) Is based solely on compassionate grounds.
    Note: A Solatium payment is paid from O&M funds as an investigative 
expense.
    (f) Is a bastardy claim.
    (g) Is for patent or copyright infringement.
    (h) Is waived under an international agreement.
    (i) Is for rent, damage, or other payments involving regular 
acquisition, possession, and disposition of real property by or for the 
Air Force.
    (j) Is filed by a Communist country or its inhabitants, unless 
authorized by HQ USAF/JACC.
    (k) Is for real property taken by a continuing trespass.
    (l) Is for personal injury or death of a person covered by:
    (1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et 
seq.).
    (2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C. 
901, et seq.).
    (3) A US contract or agreement providing employee benefits through 
insurance, local law, or custom, where the United States pays for them 
either directly or as part of the consideration under the contract. (See 
42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief, 
Claims and Tort Litigation Staff, HQ USAF/JACC, may authorize an award 
where local benefits are not adequate. Local benefits are deducted from 
any award.
    (m) Results from an action by an enemy, or directly or indirectly 
from an act of the armed forces of the United States in combat, except 
that a claim may be allowed if it arises from an accident or malfunction 
incident to the operation of an aircraft of the armed forces of the 
United States, including its airborne ordnance, indirectly related to 
combat, and occurring while preparing for or going to, or returning from 
a combat mission.
    (n) Is based on negligence of a concessionaire or other independent 
contractor.
    (o) Arises out of personal activities of dependents, guests, 
servants, or pets of members and employees of the US Armed Forces. (This 
includes situations where local law imposes strict liability or where 
the head of a household is held vicariously liable for their 
negligence.)
    (p) Is the subject of litigation against the United States or its 
employees. This restriction does not apply to joint criminal/civil 
proceedings in a foreign court. Claims settlement may be authorized by 
HQ USAF/JACC in appropriate cases on request.
    (q) Is covered under US admiralty laws, unless authorized by The 
Judge Advocate General or Chief, Claims and Tort Litigation Staff.
    (r) Is one for which a foreign government is responsible under SOFA, 
treaty, or other agreement. However, HQ USAF/JACC may authorize payment 
of a claim where the foreign government refuses to recognize its legal 
responsibilities and the claimant has no other means of compensation.



Sec. 842.66  Applicable law.

    This paragraph provides guidance to determine the applicable law for 
assessment of liability.
    (a) A claim is settled under the law and standards in effect in the 
country where the incident occurred. In calculating the amount of any 
lump sum award, the present value of any periodic payment upon which the 
award is based, is computed, unless the law of the place of occurrence 
prohibits it.
    (b) Contributory negligence committed by the claimant, claimant's 
agent, or employee is not used as a bar to recovery unless local law or 
custom requires it. If the comparative negligence doctrine is used, the 
percentage of negligence of each party is reflected in the apportionment 
of liability. The amount of damage sustained by both parties is 
apportioned according to local law.
    (c) The following principles of the collateral source doctrine are 
applied

[[Page 95]]

in settling a claim except where local law provides otherwise:
    (1) Any sums the claimant recovers from collateral sources, 
including proceeds of property insurance the claimant paid for are not 
deducted from the claim except when those sums are from:
    (i) The US Government.
    (ii) A US military member or employee.
    (iii) A Joint tort-feasor.
    (iv) An Insurer of Sec. 842.66(c)(1)(i), (ii), or (iii), above.
    (2) Do not deduct insurance or any other payments where the US 
military member or employee would have to make reimbursement.



Sec. 842.67  Reconsideration of final denials.

    This paragraph provides the procedures used to reconsider a final 
denial.
    (a) An FCC may reopen, reverse, or reconsider, in whole or in part, 
any claim it previously decided if the request for reconsideration is 
received in a reasonable time. Sixty days is considered a reasonable 
time, but the FCC may waive the time limit for good cause.
    (b) An FCC reconsiders the final action on a claim when there is:
    (1) New and material evidence concerning the claim.
    (2) Obvious error in facts or calculation of the original 
settlement.
    (3) Fraud or collusion in the original submission of the claim.
    (c) The FCC must state the reason for reconsideration in its 
opinion. A court decision is not in itself sufficient basis for 
reconsidering a claim, but the facts that resulted in the judgment may 
warrant reconsideration. The amount of a court judgment is not binding 
on a FCC's determination of damage, but the commission may consider the 
judgment as evidence of the local law on the subject.



Sec. 842.68  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of indemnity and 
contribution permitted by the law of the situs or under contract. 
Contribution or indemnity should not be sought:
    (a) From US military personnel or civilian employees whose conduct 
gave rise to government liability.
    (b) Where recovery action would be harmful to international 
relations.



  Subpart H--International Agreement Claims (10 U.S.C. 2734a and 2734b)



Sec. 842.69  Scope of this subpart.

    This subpart governs Air Force actions in investigating, processing, 
and settling claims under international agreements.



Sec. 842.70  Definitions.

    The following are general definitions. See the relevant 
international agreement for the specific meaning of a term to use with a 
specific claim.
    (a) Civilian component. Civilian personnel accompanying a force of a 
contracting party, who are employed by that force. Indigenous employees, 
contractor employees, or members of the American Red Cross are not a 
part of the civilian component unless specifically included in the 
agreement.
    (b) Contracting party. A nation signing the governing agreement.
    (c) Force. Personnel belonging to the land, sea, or air armed 
services of one contracting party when in the territory of another 
contracting party in connection with their official duties.
    (d) Legally responsible. A term of art providing for settlement of 
claims under cost sharing international agreements consistent with the 
law of the receiving State. Often these claims are caused by local 
inhabitant employees, not part of the civilian component, under a 
respondeat superior theory.
    (e) Receiving state. The country where the force or civilian 
component of another party is located.
    (f) Sending state. The country sending the force or civilian 
component to the receiving State.
    (g) Third parties. Those other than members of the force and 
civilian component of the sending or receiving States. Dependents, 
tourists, and other noninhabitants of a foreign country are third 
parties unless the agreement specifically excludes them.

[[Page 96]]



Sec. 842.71  Delegations of authority.

    (a) Reimbursement authority. The following individuals have 
delegated authority to reimburse or pay a pro rata share of a claim or 
object to a claim in any amount:
    (1) The Secretary of the Air Force.
    (2) The Judge Advocate General.
    (3) The Deputy Judge Advocate General.
    (4) The Chief of Civil Law.
    (5) Chief, Deput Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (6) The SJAs and Deputy SJAs of PACAF, USAFE, 5th Air Force, Lajes 
Field, and 9th Air Force (for CENTCOM).
    (b) Redelegation of authority. A settlement authority may redelegate 
his or her authority to a subordinate judge advocate or civilian 
attorney in writing.
    (c) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.



Sec. 842.72  Filing a claim.

    (a) Claims arising in a foreign country. (1) If a third party 
claimant tries to file an international agreement claim with Air Force, 
direct that person to the appropriate receiving State office.
    (2) If the Air Force receives a claim, send it to the US sending 
State office for delivery to the receiving State.
    (b) Claims arising in the United States. The claimant files tort 
claims arising from the act or omission of military or civilian 
personnel of another contracting party at any US military installation. 
The installation receiving the claim either:
    (1) Investigates it if the foreign personnel are assigned there.
    (2) Sends it to the installation where the foreign personnel are 
assigned.



      Subpart I--Use of Government Property Claims (10 U.S.C. 2737)



Sec. 842.73  Scope of this subpart.

    This subpart explains how to settle and pay claims against the 
United States, for property damage, personal injury, or death incident 
to the use of a government vehicle or any other government property by 
Air Force military and civilian personnel which are not payable under 
any other statute.



Sec. 842.74  Definitions.

    (a) Government installation. A United States Government facility 
having fixed boundaries and owned or controlled by the government.
    (b) Vehicle. Every mechanical device used as a means of 
transportation on land.



Sec. 842.75  Delegations of authority.

    (a) Settlement authority. The following individuals have delegated 
authority to settle claims for $1,000 or less and deny them in any 
amount.
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) Director of Civil Law.
    (4) Chief, Deputy Chief and Branch Chiefs, Claims and Tort 
Litigation staff.
    (5) SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE.
    (6) SJAs of single base GCMs and GCMs in PACAF and USAFE.
    (7) The SJA of each Air Force base, station and fixed installation.
    (8) Any other judge advocate designated by The Judge Advocate 
General.
    (b) Redelegation of authority. A settlement authority may redelegate 
it to a subordinate judge advocate or civilian attorney in writing.
    (c) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.



Sec. 842.76  Filing a claim.

    (a) How and when filed. A claim has been filed when a federal agency 
receives from a claimant or the claimant's duly authorized agent written 
notification of an incident of property damage, personal injury or death 
accompanied by a demand for money damages in a sum certain. A claim 
incorrectly presented to the Air Force will be promptly transferred to 
the appropriate Federal agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to

[[Page 97]]

final Air Force action. Amendments will be submitted in writing and 
signed by the claimant or the claimant's duly authorized agent.



Sec. 842.77  Statute of limitations.

    (a) A claim must be presented in writing within 2 years after it 
accrues. It accrues at the time the claimant discovers, or in the 
exercise of reasonable care should have discovered, the existence of the 
act causing property damage, personal injury or death for which the 
claim is filed.
    (b) In computing time to determine whether the period of limitation 
has expired, exclude the incident date and include the date the claim 
was filed.



Sec. 842.78  Claims payable.

    When all of the following are present, payment of a claim in the 
amount of $1,000 or less is authorized if it:
    (a) Is for property damage, personal injury, or death. (Payment for 
a personal injury or death claim is limited to costs of reasonable 
medical, hospital, and burial expenses actually incurred and not 
otherwise furnished or paid by the United States.)
    (b) Was caused by a military member or civilian employee of the Air 
Force, whether acting within or outside the scope of employment.
    (c) Arose from the use of a government vehicle at any place or other 
government property on a government installation, and
    (d) Is not payable under any other provision of law except Article 
139, UCMJ.



Sec. 842.79  Claims not payable.

    A claim is not payable if it is:
    (a) Payable under any other provision of the law.
    (b) Caused wholly or partly by a negligent or wrongful act of the 
claimant, the claimant's agent, or employee.
    (c) A subrogated claim.
    (d) Recoverable from other sources such as an insurance policy, or 
recovered from action under Article 139, UCMJ.



Sec. 842.80  Reconsideration of final denial.

    (a) The statute does not provide for appeals. The original 
settlement authority may, however, reconsider any decision. There is no 
set format for a reconsideration but it should be submitted in writing 
within 60 days of the original decision.
    (b) The settlement authority may either grant all or any portion of 
the requested relief without referral to any other office, or forward 
the entire file with the reasons for the action and recommendations to 
the next higher claims settlement authority for independent review and 
final action.



Sec. 842.81  Settlement agreement.

    Do not pay a claim unless the claimant accepts the amount offered in 
full satisfaction of the claim and signs a settlement agreement to that 
effect.



 Subpart J--Admiralty Claims (10 U.S.C. 9801-9804, 9806; 46 U.S.C. 740)



Sec. 842.82  Scope of this subpart.

    It sets forth the procedure for administrative settlement of 
admiralty and maritime claims in favor of and against the United States.



Sec. 842.83  Definitions.

    (a) Admiralty contracts. A contract covering maritime services or a 
maritime transaction such as vessel procurement and space for commerical 
ocean transportation of DOD cargo, mail, and personnel is an admiralty 
contract.
    (b) General average. General average is the admiralty rule that when 
someone's property is thrown overbaord to save a ship, the ship owner 
and all owners of the cargo must share the loss.
    (c) Maritime torts. A maritime tort is one committed in navigable 
waters or on land or in the air where a substantial element of the 
damage, personal injury, or death occurred in navigable waters. The 
activity causing the tortious act must bear some significant 
relationship to traditional maritime activity.
    (d) Vessel. Every description of watercraft used or usable as a 
means of transportation on water is a vessel. (1 U.S.C. 3)

[[Page 98]]



Sec. 842.84  Delegations of authority.

    (a) The following officials have the authority to settle a claim 
against the Air Force in the amounts provided:
    (1) The Secretary of the Air Force has the authority to:
    (i) Settle a claim for payment of more than $500,000 and to certify 
it to Congress for payment.
    (ii) Settle and pay a claim for $500,000 or less.
    (iii) Deny a claim in any amount.
    (2) The following individuals have delegated authority to settle 
claims for $100,000 or less:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation staff.
    (b) Delegation of settlement authority on claims in favor of the 
United States.
    (1) The Secretary of the Air Force has the authority to settle 
claims for damage to property under the jurisdiction of the Air Force in 
an amount not to exceed $500,000, and to settle claims for salvage 
services performed by the Air Force in any amount.
    (2) HQ USAF/JACC refers all claims for damage to property under the 
jurisdiction of the Air Force for more than $500,000 to the Department 
of Justice.
    (3) The following individuals have delegated authority to settle 
claims for $100,000 or less and deny them in any amount:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation Staff.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990; 56 
FR 1574, Jan. 16, 1991]



Sec. 842.85  Reconsidering claims against the United States.

    This section provides the policy and procedures to reconsider any 
maritime claim made against the United States.
    (a) The settlement authority may reconsider any claim previously 
disapproved in whole or in part when either:
    (1) The claimant submits new evidence in support of the claim.
    (2) There were errors or irregularities in the submission or 
settlement of the claim.
    (b) There is no right of appeal to higher authority under this 
subpart.



Subpart K--Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
                      2402, 2671, 2672, 2674-2680)



Sec. 842.86  Scope of this subpart.

    This subpart governs claims against the United States for property 
damage, personal injury, or death, from the negligent or wrongful act or 
omission of Air Force military or civilian personnel while acting within 
the scope of their employment. It also covers similar tort claims 
generated by Air National Guard (ANG) members performing specified duty 
under 32 U.S.C. on or after 29 December 1981.



Sec. 842.87  Definitions.

    (a) Compromise. An agreed settlement based upon the facts, the law, 
and the application of the law to the facts.
    (b) Final denial. A letter the settlement authority mails to the 
claimant or authorized agent advising him or her that the Air Force 
denies his or her claim.
    (c) Reconsideration. A request by the claimant or claimant's 
authorized agent to reevaluate a final decision. A request for 
reconsideration and an appeal are the same thing.
    (d) Negligence. A departure from the conduct expected from a 
reasonably prudent person under similar circumstances.
    (e) Proximate cause. The dominant or primary cause involving a 
natural and continuous sequence unbroken by an effective cause.



Sec. 842.88  Delegations of authority.

    (a) Settlement authority. (1) Subject to the prior written, approval 
of the United States Attorney General or his designee, the following 
individuals have delegated authority to settle claims in excess of 
$25,000, to settle claims for $25,000 or less, and to deny a claim in 
any amount:

[[Page 99]]

    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (2) Subject to the prior written approval of the United States 
Attorney General or his designee, the Chief, Claims and Tort Litigation 
Staff has delegated authority to settle claims in excess of $25,000 up 
to a limit of $50,000, to settle claims for $25,000 or less; and to deny 
a claim in any amount.
    (3) The Deputy Chief and Branch Chiefs, Claims and Tort Litigation 
Staff have delegated authority to settle claims for $25,000 or less and 
deny a claim in any amount.
    (4) The SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE have 
delegated authority to settle claims payable, and deny claims filed, for 
$25,000 or less.
    (5) The following individuals have delegated authority to settle 
claims payable, and deny claims filed, for $15,000 or less:
    (i) SJAs of single base GCMs.
    (ii) SJAs of GCMs in PACAF and USAFE.
    (iii) SJAs of each Air Force base, station, or fixed installation.
    (b) Redelegation of authority. A settlement authority may be 
redelegated, in writing, to a subordinate judge advocate or civilian 
attorney.
    (c) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (d) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated authority. 
Unsettled claims in excess of the delegated authority will be sent to 
the next highest level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.
    (e) Special exceptions. Do not settle claims for the following 
without HQ USAF/JACC approval:
    (1) Legal malpractice.
    (2) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (3) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.
    (4) Animal bites.
    (5) Personal injury from asbestos or radon.
    (6) Medical malpractice.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.89  Statute of limitations.

    A claim must be presented in writing within 2 years after it 
accrues.
    (a) Federal, not state law, determines the time of accrual. A claim 
normally accrues at the time of injury when essential operative facts 
are apparent. However, in other instances, especially in complex medical 
malpractice cases, a claim accrues when the claimant discovers or 
reasonably should have discovered the existence of the act that resulted 
in the claimed loss.
    (b) In computing the statutory time period, the day of the incident 
is excluded and the day the claim was filed is included.
    (c) The Air Force has 6 months to consider a properly filed claim, 
after which the claimant may file suit. The claimant's right to sue ends 
6 months from the date the final denial is mailed.
    (d) Properly asserted third party actions, as permitted under the 
Federal Rules of Civil Procedure, may be brought against the United 
States without first filing a claim. In such instances those actions may 
start more than 2 years after the claim has accrued.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990]



Sec. 842.90  Reconsideration of final denials.

    (a) A claimant may request a settlement authority who denied a claim 
to reconsider that claim. If the settlement authority denies the 
request, the claim file is sent to the next higher claims settlement 
authority for action.
    (b) A request for reconsideration must be filed in writing within 6 
months of the final denial and prior to initiation of a suit. A request 
for reconsideration starts a new 6-month period for the Air Force to 
consider the claim. The claimant may not sue during that period.

[[Page 100]]



Sec. 842.91  Settlement agreements.

    The claimant must sign a settlement agreement and general release 
before any payment is made.



Subpart L--Property Damage Tort Claims in Favor of the United States (31 
                         U.S.C. 3701, 3711-3719)



Sec. 842.92  Scope of this subpart.

    This subpart describes how to assert, administer, and collect claims 
for damage to or loss or destruction of government property through 
negligence or wrongful act. It does not cover admiralty, hospital 
recovery, or nonappropriated fund claims.



Sec. 842.93  Delegations of authority.

    (a) Settlement authority. (1) The following individuals have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims for $20,000 or less and to accept full payment on any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) The SJA of HQ 9AF (for CENTCOM), and the SJAs of PACAF and USAFE 
have delegated authority to settle, compromise, suspend, or terminate 
action on claims for $15,000 or less and to accept full payment on any 
claim.
    (3) SJAs of GCMs located in PACAF and USAFE and single base GCMs 
located in CONUS have delegated authority to settle, compromise, 
suspend, or terminate action on claims for $15,000 or less and to accept 
full payment on any claim.
    (4) SJAs of each Air Force base, station or fixed installation have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims for $10,000 or less and to accept full payment on any claim.
    (b) Redelegation of authority. A settlement authority may redelegate 
it to a subordinate judge advocate or civilian attorney, in writing.
    (c) Authority to reduce, withdraw, or restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.



Sec. 842.94  Assertable claims.

    A claim may be asserted in writing for loss of or damage to 
government property, against a tort-feasor when:
    (a) Damage results from negligence and the claim is for:
    (1) More than $100.
    (2) Less than $100 but collection costs are small.
    (b) The claim is based on a contract and the contracting officer 
does not intend to assert a claim under the contract. The contracting 
officer's intention not to assert a claim should be recorded in a 
memorandum for the record and placed in the claim file.
    (c) The claim is for property damage arising from the same incident 
as a hospital recovery claim. (The two claims should be consolidated and 
processed under subpart N).
    (d) The Tort-feasor or his insurer presents a claim against the 
government arising from the same incident. (Both claims should be 
processed together.)
    (e) The claim is assertable as a counterclaim under an international 
agreement. (The claim should be processed under subpart H).
    (f) The claim is based on product liability. HQ USAF/JACC approval 
must be obtained before asserting the claim.



Sec. 842.95  Non-assertable claims.

    A claim is not assertable under this subpart when it is for:
    (a) Reimbursement for military or civilian employees for their 
negligence claims paid by the United States.
    (b) Loss or damage to government property:
    (1) Caused by a nonappropriated fund employee acting in the scope of 
employment.
    (2) For which a person has accountability and responsibility under 
the Report of Survey system.
    (c) Loss or damage to nonappropriated fund property assertable under 
other provisions.
    (d) Loss or damage caused by an employee of an instrumentality of 
the

[[Page 101]]

government in the absence of statutory authority to reimburse.
    (e) Monies recovered against a foreign government or any of its 
political subdivisions. (HQ USAF/JACC may authorize this claim as an 
exception to the rule).

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990]



Sec. 842.96  Asserting the claim.

    The base SJA asserts the claim against the tort-feasor by mailing, 
certified mail, return receipt requested, the original and one copy of a 
``Notice of Claim'' that includes the following:
    (a) Reference to the statutory right to collect.
    (b) A demand for payment or restoration.
    (c) A description of damage.
    (d) The date and place of incident.
    (e) The name, phone number, and office address of claims personnel 
to contact.



Sec. 842.97  Referring a claim to the US Attorney or the Department of Justice.

    All claims must be authorized for referral by HQ USAF/JACC prior to 
being sent to either the US Attorney or the Department of Justice. All 
claims for demands of more than $20,000.00 which are not collected in 
full by a settlement authority will be referred (with HQ USAF/JACC 
approval) to DOJ.



Sec. 842.98  Statute of limitations.

    The government must file suit within 3 years after the cause of 
action accrues. It accrues when a responsible US official knew or 
reasonably should have known the material facts that resulted in the 
claimed loss.



Sec. 842.99  Compromise, termination, and suspension of collection.

    This section establishes the guidelines for compromise, termination, 
or suspension of a claim.
    (a) Compromise of a claim is allowable when:
    (1) The tort-feasor is unable to pay the full amount within a 
reasonable time. (A sworn statement showing the debtor's assets and 
liabilities, income, expenses, and insurance coverage should be obtained 
and included in the claim file).
    (2) The Government is unable to collect a claim in full within a 
reasonable time even though the enforced collection proceedings are used 
for collection.
    (3) The cost to collect does not justify enforced collection of the 
full amount.
    (4) The government may have difficulty proving its case in court for 
the full amount claimed.
    (b) Compromise is not allowable when there may be fraud, 
misrepresentation, or violation of antitrust laws. The Department of 
Justice must authorize compromise of such claims.
    (c) Termination of collection is allowable when:
    (1) The government is unable to collect the debt after exhausting 
all collection methods.
    (2) The government is unable to locate the tort-feasor.
    (3) The cost to collect will exceed recovery.
    (4) The claim is legally without merit.
    (5) The evidence does not substantiate the claim.
    (d) Suspension of collection is allowable when:
    (1) The government is unable to locate tort-feasor.
    (2) The tort-feasor is presently unable to pay but:
    (i) The statute of limitations is tolled or is running anew.
    (ii) Future collection may be possible.



  Subpart M--Claims Under the National Guard Claims Act (32 U.S.C. 715)



Sec. 842.100  Scope of this subpart.

    This subpart explains how to settle claims against the United States 
arising out of the noncombat activities of the Air National Guard (ANG), 
when its members are acting within the scope of their employment and 
performing duty under 32 U.S.C. Contact HQ USAF/JACC for guidance on any 
claim for property damage, injury or death by the ANG which accrued 
prior to 29 December 1981.

[[Page 102]]



Sec. 842.101  Definitions.

    (a) Appeal. An appeal is a request by the claimant or claimant's 
authorized agent to reevaluate the final decision made on a claim. A 
request for reconsideration is considered as an appeal.
    (b) Air National Guard (ANG). The federally recognized Air National 
Guard of each state, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, and Guam.
    (c) ANG member. An ANG member is one who is performing duty under 32 
U.S.C., section 316, 502, 503, 504, or 505 for which the member is 
entitled to pay from the United States or for which the member has 
waived pay from the United States.
    (d) ANG duty status--(1) Active federal service. ANG members may 
serve on active Federal duty under 10 U.S.C. to augment the active Air 
Force under certain circumstances or for certain types of duty or 
training (e.g., overseas training exercises and ANG alert duty). Duty 
under 10 U.S.C. does not fall under this subpart.
    (2) Federally funded duty. ANG members perform specified federally 
funded duty or training under 32 U.S.C. such as weekend drills, annual 
training, field exercises, range firing, military schooling, full time 
unit support, or recruiting duties. Duty under 32 U.S.C. falls under 
this subpart for noncombat activities.
    (3) State duty. State duty is duty not authorized by federal law but 
required by the governor of the state and paid for from state funds. 
Such duty includes civil emergencies (natural or other disasters), civil 
disturbances (riots and strikes), and transportation requirements for 
official state functions, public health, or safety. State duty does not 
fall under this subpart.
    (e) Compromise. A compromise is an agreed settlement based upon the 
facts, the law, and the application of the law to the facts.
    (f) Final denial. A final denial is a letter from the settlement 
authority to the claimant or authorized agent advising of the decision 
to deny the claim.
    (g) Noncombat activity. Noncombat activity is an act, other than 
combat, war or armed conflict, which is particularly military in 
character and has little parallel in the civilian community.
    (h) ANG technicians. An ANG technician is a Federal employee 
employed under 32 U.S.C. 709. Tort claims arising out of his or her 
activity are settled under the Federal Tort Claims Act (FTCA).



Sec. 842.102  Delegations of authority.

    This paragraph outlines the levels of authority authorized to settle 
claims brought under the National Guard Claims Act (32 U.S.C. 715).
    (a) Settlement authority. (1) The Secretary of the Air Force has 
authority to:
    (i) Settle a claim for $100,000 or less.
    (ii) Settle a claim for more than $100,000, paying the first 
$100,000 and reporting the excess to the General Accounting Office for 
payment.
    (iii) Deny a claim in any amount.
    (2) The Judge Advocate General has delegated authority to settle a 
claim for $100,000 or less, and deny a claim in any amount.
    (3) The following individuals have delegated authority to settle a 
claim for $25,000 or less, and deny a claim in any amount:
    (i) The Deputy Judge Advocate General.
    (ii) The Director of Civil Law.
    (iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) The SJA of 9AF for CENTCOM and the SJAs of USAFE and PACAF have 
delegated authority to settle claims payable or deny claims filed for 
$25,000 or less.
    (5) SJAs of single base GCMs, GCMs in PACAF and USAFE and each Air 
Force base, station or fixed installation have delegated authority to 
settle claims payable, and deny claims filed, for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
up to $25,000 of settlement authority to a subordinate judge advocate or 
civilian attorney. This redelegation must be in writing and can be for 
all claims or limited to a single claim.

[[Page 103]]

    (c) Appellate authority. Upon appeal a settlement authority has the 
same authority to settle a claim as that specified above. However, no 
appellate authority below the Office of the Secretary of the Air Force 
may deny an appeal of a claim it previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated settlement authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated settlement 
authority regardless of the amount claimed. Unsettled claims in excess 
of the delegated settlement authority are sent to the individual with 
higher settlement authority. Unsuccessful negotiations at one level do 
not bind higher authority.
    (f) Special exceptions. No authority below the level of HQ USAF/JACC 
may settle claims for:
    (1) Legal malpractice.
    (2) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (3) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.



Sec. 842.103  Filing a claim.

    This paragraph explains how to file a claim under the National Guard 
Claims Act.
    (a) How and when filed. A claim is filed when a federal military 
agency receives from a claimant or duly authorized agent a properly 
completed SF 95 or other written and signed demand for money damages in 
a sum certain. Claims belonging to another agency are promptly 
transferred to the correct agency.
    (b) Receipt of claims from State National Guard agencies. The Office 
of the State Adjutant General promptly sends claims it receives to the 
appropriate Air Force claims authority in whose geographic area the 
incident occurred. The report forwarded to the Air Force includes:
    (1) The date, place, and nature of the incident.
    (2) The names and organizations of ANG members involved, and the 
statutory duty status of the ANG members at the time of the incident 
(include copies of orders, if applicable).
    (3) A scope of employment statement from the supervisors of the ANG 
members involved.
    (4) The names of the claimants.
    (5) A brief description of any damage to private property, personal 
injuries, or death.
    (c) Claims investigations. (1) Upon receipt of a claim:
    (i) It is investigated by claims office personnel responsible for 
the geographic area where the incident causing the claim occurred.
    (ii) The investigative report includes a scope of employment 
statement and a copy of the orders authorizing the performance of duty 
by the ANG member.
    (2) The State Adjutants General designate an official or office as 
point of contact for Air Force claims personnel and furnish necessary 
personnel to assist the Air Force investigation, subject to the 
availability of funds and personnel.
    (d) Amending a claim. A claimant may amend a claim at any time prior 
to final action. To amend a claim the claimant or his or her authorized 
agent must submit a written, signed demand.



Sec. 842.104  Advance payments.

    Subpart Q of this part sets forth procedures for such payments.



Sec. 842.105  Statute of limitations.

    A claim must be filed in writing within 2 years after it accrues.
    (a) Federal, not state law, determines the time of accrual. A claim 
accrues when the claimant discovers or reasonably should have discovered 
the existence of the act that resulted in the claimed loss.
    (b) In computing the statutory time period, the day of the incident 
is excluded and the day the claim was filed is included.
    (c) A claim filed after the statute has run is considered if the 
United States is at war or in an armed conflict when the claim accrues; 
or if the United States enters a war or armed conflict after the claim 
accrues, and good cause is shown. No claimant may file a claim

[[Page 104]]

more than 2 years after the good cause ceases to exist or the war or 
armed conflict ends. Congress or the President establishes the beginning 
and end of war or armed conflict.



Sec. 842.106  Who may file a claim.

    The following individuals may file a claim under this subpart.
    (a) Owners of the property or their authorized agents may file a 
claim for property damage.
    (b) Injured persons or their authorized agents may file a claim for 
personal injury.
    (c) Executors or administrators of a decedent's estate or any other 
person legally entitled to do so under applicable local law may file a 
claim based on:
    (i) An individual's death.
    (ii) A cause of action surviving an individual's death.
    (d) Insurers with subrogation rights may file a claim for losses 
paid in full by them. The parties may file a claim jointly or 
individually, to the extent of each party's interest, for losses 
partially paid by insurers with subrogation rights.
    (e) Authorized agents signing a claim must show their title or legal 
capacity and present evidence of such authority to file the claim.



Sec. 842.107  Who are proper claimants.

    Only certain individuals are proper claimants under this subpart. 
Proper claimants include:
    (a) Citizens and inhabitants of the United States.
    (b) States or territories and their agencies, unless it is the state 
of the ANG member who caused the injury or property damage.
    (c) Counties, municipalities, or units of local government, unless 
they are in the state of the ANG member who caused the injury or 
property damage.
    (d) Persons in foreign countries who are not inhabitants of a 
foreign country.
    (e) Property owners, their representatives, and those with certain 
legal relationships with the record owner, including mortgagors, 
mortgagees, trustees, bailees, lessees and conditional vendees.
    (f) Subrogees, to the extent they have paid the claim.



Sec. 842.108  Who are not proper claimants.

    The following individuals are not proper claimants:
    (a) ANG members performing duty under 32 U.S.C. when the personal 
injury or death claim arises incident to service.
    (b) Agencies and departments of the U.S. Government including the 
District of Columbia government.
    (c) Federal nonappropriated fund instrumentalities.
    (d) Governments of foreign nations, their agencies, political 
subdivisions, and municipalities.
    (e) The state territory, local government unit, or their agencies, 
whose ANG member caused the injury or property damage.
    (f) Subrogees of all the above.



Sec. 842.109  Claims payable.

    (a) Claims arising from noncombat activities of ANG members 
performing duty under 32 U.S.C and acting within the scope of their 
employment, whether or not such injuries or damages arose out of their 
negligent or wrongful acts or omissions.
    (b) Claims are payable if they are for damage to bailed property 
under Sec. 842.109(a) of this part where:
    (1) The ANG assumed the duties of a bailee.
    (2) The bailor did not assume the risk of loss by express agreement.
    (3) Authorized ANG members acting in their official capacity 
properly accepted the property.
    (c) Claims are payable if they are for loss or damage to:
    (1) Insured or registered mail, under Sec. 842.109 (a) or (b) of 
this part while in the possession of the ANG.
    (2) Minimum fee insured mail but only if it has an insurance number 
or requirement for hand-to-hand receipt and was lost or damaged while in 
the possession of the ANG.
    (3) Any mail in the possession of the United States Postal Service 
or a Military Postal Service due to an unlawful or negligent inspection, 
search, or seizure in an oversea military postal facility, which was 
ordered by ANG members.
    (d) Claims filed by ANG military or civilian health care providers 
or legal

[[Page 105]]

personnel for their personal liability by settlement or judgement, to 
include reasonable costs of such litigation, for their common law 
tortious acts committed on or after 29 Dec 1981 while performing title 
32 duty within the scope of their employment under the circumstances 
described in 10 U.S.C. 1089(f) and 10 U.S.C. 1054(f).

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990]



Sec. 842.110  Claims not payable.

    The following are not payable:
    (a) Claims payable under any one of the following statutes and 
implementing regulations:
    (1) The Federal Tort Claims Act (FTCA).
    (2) The Foreign Claims Act (FCA).
    (3) The International Agreements Claims Act.
    (4) The Air Force Admiralty Claims Act and the Admiralty Extensions 
Act.
    (5) The Military Claims Act (MCA).
    (6) The Military Personnel and Civilian Employees' Claims Act.
    (b) Claims from the combat activities of the armed forces during war 
or armed conflict.
    (c) Claims for personal injury or death of ANG members performing 
duty under 32 U.S.C. incident to their service.
    (d) Claims for damage to or loss of bailed property when the bailor 
specifically assumed such risk.
    (e) Claims for personal injury or death of a person covered by:
    (1) The Federal Employees' Compensation Act.
    (2) The Longshore and Harbor Workers' Compensation Act.
    (3) A United States contract or agreement providing employee 
benefits through insurance, local law, or custom and the United States 
pays for such benefits either directly or as a part of the consideration 
under the contract.
    (f) Claims for property damage, personal injury or death occurring 
in a foreign country to an inhabitant of that country.
    (g) Claims caused by the negligent or wrongful acts or omissions of 
members of the District of Columbia ANG.
    (h) Claims arising from a private rather than a government 
transaction.
    (i) Claims for patent or copyright infringement.
    (j) Claims for damage, use, or other expenses involving the regular 
acquisition, possession, and disposition of real property by or for the 
ANG.
    (k) Claims for the taking of private real property by a continuing 
trespass or by a technical trespass such as overflights of aircraft.
    (l) Claims for loss of rental fee for personal property.
    (m) Claims in litigation against the United States.
    (n) Claims for a maritime occurrence covered under U.S. admiralty 
laws.
    (o) Claims for:
    (1) Any tax or customs duty.
    (2) The detention of any goods or merchandise by any officer of 
customs, excise, or law enforcement officer.
    (p) Claims from an act or omission of any employee of the Government 
while administering the provisions of the Trading With the Enemy Act.
    (q) Claims for damages caused by the United States' imposition or 
establishment of a quarantine.
    (r) Claims for libel, slander, misrepresentation, deceit or 
interference with contract rights.
    (s) Claims that result wholly from the negligent or wrongful act of 
the claimant or the claimant's agent.
    (t) Claims for reimbursement of medical, hospital, or burial 
expenses furnished at the expense of the United States, any state, the 
District of Columbia, or Puerto Rico.
    (u) Claims for damage from floods or flood waters.
    (v) Claims for damages caused by the fiscal operations of the 
Treasury or by regulation of the monetary system.
    (w) Claims caused by the negligent or wrongful acts or omissions of 
ANG members acting within the scope of their employment, while 
performing duty under 32 U.S.C., on or after 29 December 1981.
    (x) Claims caused by the negligent or wrongful acts or omissions of 
ANG technicians employed under 32 U.S.C. 709.



Sec. 842.111  Applicable law.

    (a) Extent of liability. The following rules apply to determine the 
extent of liability of a claim.

[[Page 106]]

    (1) Claims arising in the United States. The law of the place where 
the act or omission occurs governs liability. The local law on dangerous 
instrumentalities, assumption of risk, res ipsa loquitur, last clear 
chance, discovered peril, and comparative and contributory negligence 
are considered. Absolute liability is never imposed.
    (2) Claims arising in foreign countries. The general principles of 
tort law common to the majority of American jurisdictions as evidenced 
by Federal case law and standard legal publications, control liability, 
except that absolute liability is not imposed. However, the law of the 
place where the act or omission occurs governs the effect of the 
claimant's comparative or contributory negligence. Where applicable, 
rules of the road and similar locally prescribed standards of care are 
followed to determine fault.
    Note: ANG personnel ordered to foreign countries proceed under title 
10, U.S.C.; consequently, the National Guard Claims Act would not apply. 
However, there may be cases where ANG personnel are inadvertently in a 
foreign country while on title 32, U.S.C. orders.
    (b) Measure of damages. The following rules apply to the measurement 
of damages.
    (1) Normally, the law of the place where the act or omission occurs 
is applied. In claims arising in foreign countries, the measure of 
damages is determined in accordance with general principles of American 
tort law.
    (2) Damages in suits against private persons are apportioned if 
local law applies comparative negligence.
    (3) Proceeds from private insurance policies are not deducted except 
to the extent the policy was paid by the Government or is allowed by 
local law.
    (4) Compensation and benefits from any U.S. Government associated 
source are deducted. However, sick and annual leave payments are 
deducted only if allowed by local law.
    (5) The following are not payable:
    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at U.S. expense.
    (iii) Cost of burial expenses paid by the United States, any 
territory or possession, any state, or the District of Columbia.
    (c) Settlement by insurer or joint tort-feasor. When settlement is 
made by an insurer or joint tort-feasor and an additional award is 
warranted, an award is made if:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.



Sec. 842.112  Appeal of final denials.

    This paragraph explains the steps to take when a denial is appealed.
    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the initial settlement 
authority within a reasonable time following the final denial. Sixty 
days is considered a reasonable time, but the time limit may be waived 
for good cause.
    (b) The initial settlement authority reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
with the claimant on an appealed claim, the entire claim file is sent to 
the next higher settlement authority, who is the appellate authority for 
that claim.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.



Sec. 842.113  Government's right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. 
Contribution or indemnity is not sought from ANG members whose conduct 
gave rise to Government liability.



Sec. 842.114  Attorney fees.

    In the settlement of any claim pursuant to 32 U.S.C. 715 and this 
subpart, attorney fees will not exceed 20 percent of any award. For the 
purposes of this paragraph, an award is deemed to be the cost to the 
United States at the time of purchase of a structured settlement, and 
not its future value.

[[Page 107]]



        Subpart N--Hospital Recovery Claims (42 U.S.C. 2651-2653)



Sec. 842.115  Scope of this subpart.

    This subpart explains how the United States asserts and settles 
claims for costs of medical care, against third parties under the 
Federal Medical Care Recovery Act (FMCRA) and various other laws.



Sec. 842.116  Definitions.

    This paragraph defines terms which are used within this subpart.
    (a) Base Staff Judge Advocate (SJA). The SJA of the base providing 
legal services to the Air Force medical facility which furnished initial 
medical care to the injured party is responsible for processing the 
hospital recovery claim. If an Air Force facility did not furnish the 
initial medical care, the SJA of the Air Force base within the claims 
jurisdiction of the initial treating facility is responsible for 
processing the claim.
    (b) Compromise. A mutually binding agreement where payment is made 
and accepted in an amount less than the full amount of the claim.
    (c) Injured party. The person who received medical care for injury 
or disease as a result of the incident on which the claim is based. The 
injured party may be represented by a guardian, personal representative, 
estate, or survivor.
    (d) Medical care. Includes medical and dental treatment, prostheses, 
and medical appliances the US furnished or reimbursed other sources for 
providing.
    (e) Reasonable value of medical care. Either:
    (1) An amount determined by reference to rates set by the Director 
of the Office of Management and Budget for the value of necessary 
medical care in US medical facilities.
    (2) The actual cost of necessary care from other sources which was 
reimbursed by the United States.
    (f) Third party. An individual, partnership, business, corporation 
(including insurance carriers), which is indebted to the United States 
for medical care provided to an injured party. (In some cases, a state 
or foreign government can be the third party.)
    (g) Waiver. The voluntary relinquishment by the United States of the 
right to collect for medical care provided to an injured party.



Sec. 842.117  Delegations of authority.

    (a) Settlement authority: (1) The following individuals have 
delegated authority to settle, compromise, or waive claims for $40,000 
or less and to accept full payment on any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) The SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE have 
delegated authority to compromise or waive claims for $30,000 or less 
and to accept full payment on any claim.
    (3) SJAs of single base GCMs, the SJAs of GMCs in PACAF and USAFE, 
and the SJAs of each Air Force base, station, or fixed installation have 
delegated authority to compromise or waive claims for $15,000 or less 
and to accept full payment on any claim.
    (b) Authority to assert a claim. Each settlement authority has 
authority to assert a claim in any amount for the reasonable value of 
medical care.
    (c) Redelegation of authority. A settlement authority may redelegate 
to a subordinate judge advocate or civilian attorney, in writing, his or 
her authority to assert, compromsie, or waive claims.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed for an amount within the delegated settlement authority. 
Claims in excess of the delegated authority must be approved by the next 
higher settlement authority. Unsuccessful negotiations at one level do 
not bind higher authority.
    Note: Telephonic approvals, in the discretion of the higher 
settlement authority, are authorized.

[[Page 108]]

    (f) Special exceptions. Only the Department of Justice (DOJ) may 
approve claims involving:
    (1) Compromise or waiver of a claim for more than $40,000.
    (2) Settlement previously referred to DOJ.
    (3) Settlement where a third party files suit against the US or the 
injured party arising out of the same incident.



Sec. 842.118  Assertable claims.

    A claim should be asserted when the Air Force has furnished or will 
furnish medical care in military health care facilities or when the Air 
Force is responsible for reimbursement to a private care provider and 
either of the following conditions are met:
    (a) Third party liability in tort exists for causing an injury or 
disease.
    (b) Local or foreign law permits the United States to recover or the 
United States is a third party beneficiary under uninsured motorist 
coverage, medical pay insurance coverage, worker's compensation, no-
fault statutes, or other statutes.
    A claim should only be asserted if the base SJA determines it merits 
assertion. Claims for $150 or less need not be asserted; they should be 
asserted only if the base SJA or designee determines the collection will 
not exceed the cost to collect, the third party offers payment and 
demands a release from the United States before paying damages to the 
injured party, or the United States asserts a property damage claim 
under subpart L arising out of the same incident.



Sec. 842.119  Nonassertable claims.

    (a) The following are considered nonassertable claims and should not 
be asserted:
    (1) Claims against any department, agency, or instrumentality of the 
United States. ``Agency or instrumentality'' includes any self-insured 
nonappropriated fund activity whether revenue producing, welfare, or 
sundry. The term does not include private associations.
    (2) Claims for care furnished a veteran by the Department of 
Veterans Affairs (VA) for service connected disability. However, claims 
may be asserted for the reasonable value of medical care an Air Force 
member receives prior to his or her discharge and transfer to the VA 
facility.
    (3) Claims for care furnished a merchant seaman under 42 U.S.C. 249. 
A claim against the seaman's employer should not be filed.
    (b) Claims should not be asserted without HQ USAF/JACC's approval 
against:
    (1) Government contractors. In claims in which the United States 
must reimburse the contractor for a claim according to the terms of the 
contract, an investigation into the claim is sent to HQ USAF/JACC by the 
base SJA. The file should contain recommendations regarding assertion 
and include citations to the specific contract clauses involved.
    (2) Foreign governments. An investigation is made regarding any 
claim against foreign governments, their political subdivisions, armed 
forces members, or civilian employees. The claims files containing the 
investigation are sent to HQ USAF/JACC along with the base SJA's 
recommendations regarding assertion.
    (3) US personnel. Claims are not asserted against members of the 
uniformed services; employees of the US, its agencies or 
instrumentalities; or an individual who is a dependent of a service 
member or employee at the time of assertion unless liability insurance 
will pay the claim.
    (4) Manufacturers of products in products liability cases.



Sec. 842.120  Asserting the claim.

    When asserting the claim, the base SJA will:
    (a) Assert it against the third parties whose liability is based in 
tort using an SF 96, Notice of Claim. Mail the original and one copy to 
each of the third parties and a copy to the third parties' insurers, if 
known.
    (b) Assert it against third parties or insurers whose liability is 
not based in tort using a formal letter written on Air Force stationery. 
The letter will include the facts and legal basis for liability. Bases 
for liability could include local foreign law, US status as a third 
party beneficiary under uninsured or underinsured motorist coverage, 
workers' compensation laws, and

[[Page 109]]

no fault statutes. The specific provision of the injured party's 
insurance contract should be cited where appropriate.
    (c) Mail all copies of the SF 96, or claim notice on Air Force 
letterhead:
    (1) By certified mail with return receipt requested in all claims in 
which the amount claimed is $5,000.00 or more or in which there is a 
substantial likelihood that the final amount claimed will be $5,000.00 
or more.
    (2) By regular or certified mail with return receipt requested at 
the SJA's discretion in cases in which the final amount claimed is less 
than $5,000.00, unless there is no response to the initial notice of 
claim within a reasonable period of time and a second notice of claim is 
required to be mailed. All second notices of claim and copies will be 
mailed by certified mail, return receipt requested.
    (d) Notify the injured parties promptly in writing that the United 
States will attempt to recover from the third parties the reasonable 
value of medical care furnished or to be furnished and that they:
    (1) Should seek advice from a legal assistance officer or civilian 
counsel and furnish the civilian counsel's name to the claims officer.
    (2) Must cooperate in the prosecution of all actions of the United 
States against third parties.
    (3) Must furnish a complete statement regarding the facts and 
circumstances surrounding the incident which caused the injury.
    (4) Must not execute a release or settle any claim which exists as a 
result of the injury without prior notice to the SJA.
    (5) Should read the enclosed Privacy Act statement.



Sec. 842.121  Referring a claim to the US Attorney.

    Only HQ USAF/JACC authorizes referral of a claim to the US Attorney. 
The base SJA ensures review of all claims not later than 2 years after 
the date of the incident. These unsettled claims are forwarded, with the 
base SJA's disposition recommendation, to HQ USAF/JACC.
    Note: On a case-by-case basis, HQ USAF/JACC will authorize referral 
of a case to the US Attorney by telephone.



Sec. 842.122  Statute of limitations.

    The United States or the injured party on behalf of the United 
States must file suit within 3 years after an action accrues. This is 
usually 3 years after the initial treatment is provided in a federal 
medical facility or after the initial payment is made by CHAMPUS, 
whichever is first.



Sec. 842.123  Recovery rates in government facilities.

    The Federal Register contains the rates set by the Office of 
Management and Budget, of which judges take judicial notice. HQ USAF/
JACC can provide certified copies of the Federal Register upon request. 
Apply the rates in effect at the time of care to claims.



Sec. 842.124  Waiver and compromise of United States interest.

    Waivers and compromises of government claims can be made. This 
paragraph lists the basic guidance for each action. (See Sec. 842.117(e) 
for claims involving waiver and compromise of amounts in excess of 
settlement authorities' delegated amounts.)
    (a) Waiver for the convenience of the government can be made when 
the tort-feasor:
    (1) Cannot be located.
    (2) Is judgment proof.
    (3) Has refused to pay and the case is too weak for litigation.
    (b) Waiver can be made when collection causes undue hardhsip to the 
injured party. Ordinarily, factors such as the following should be 
considered:
    (1) Permanent disability or disfigurement.
    (2) Decreased earning power.
    (3) Out of pocket losses.
    (4) Financial status of injured party.
    (5) Pension rights.
    (6) Other government benefits to the injured party.
    (7) An offer of settlement from a third party which includes 
virtually all the thirty party's assets, although the amount is 
considerably less than the calculation of the injured party's damages.
    (c) A compromise can be made upon written request from the injured 
party or the injured party's legal representative when liability is 
questionable, the

[[Page 110]]

injured party received excessive treatment, or the litigation risks 
dictate, and either of the following occurs:
    (1) The injured party accepts less than the jury verdict expectancy. 
When this occurs, the Air Force should consider settling its claim in a 
ratio similar to that which the total sttlement bears to the jury 
verdict expectancy.
    (2) The government's claim is almost as large as, or is larger than, 
the assets available for settlement.



Sec. 842.125  Reconsideration of a waiver for undue hardship.

    A settlement authority may reconsider its disapproval of a waiver or 
compromise, when either:
    (a) The injured party submits new evidence.
    (b) Errors exist in claim submission or settlement.



                 Subpart O--Nonappropriated Fund Claims



Sec. 842.126  Scope of this subpart.

    This subpart describes how to settle claims for and against the 
United States for property damage, personal injury, or death arising out 
of the operation of Nonappropriated Fund Instrumentalities (NAFIs).



Sec. 842.127  Definitions.

    (a) Army and Air Force Exchange Service (AAFES). The Army and Air 
Force Exchange Service is a joint command of the Army and Air Force, 
under the jurisdiction of the Chiefs of Staff of the Army and Air Force, 
which provides exchange and motion picture services to authorized 
patrons.
    (b) Morale, welfare, and recreation (MWR) activities. Air Force MWR 
activities are activities operated directly or by contract which provide 
programs to promote morale and well-being of the Air Force's military 
and civilian personnel and their dependents. They may be funded wholly 
with appropriated funds, primarily with nonappropriated funds (NAF), or 
with a combination of appropriated funds and NAFs.
    (c) Nonappropriated funds. Nonappropriated funds are funds generated 
by Department of Defense military and civilian personnel and their 
dependents and used to augment funds appropriated by the Congress to 
provide a comprehensive morale-building, welfare, religious, 
educational, and recreational program, designed to improve the well-
being of military and civilian personnel and their dependents.
    (d) Nonappropriated funds instrumentality. A nonappropriated fund 
instrumentality is a Federal government instrumentality established to 
generate and administer nonappropriated funds for programs and services 
contributing to the mental and physical well-being of personnel.



Sec. 842.128  Delegations of authority.

    (a) Settlement authority: (1) Each individual has the same delegated 
authority to settle a claim for which NAFs may be liable as that 
specified for a similar type claim in each subpart of this part. The 
decision of the settlement authority is binding upon the NAFI.
    (2) The Judge Advocate General, in addition, has delegated authority 
to settle subparts F, G, and J type claims in any amount without 
referral to the Secretary of the Air Force or the General Accounting 
Office.
    (3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff, in addition, have delegated authority to settle 
subparts F, G, and J type claims for $100,000 or less without referral 
to the Secretary of the Air Force or the General Accounting Office.
    (b) Redelegation of authority. A settlement authority may redelegate 
settlement authority to a subordinate judge advocate or civilian 
attorney, in writing.
    (c) Appellate authority. Upon appeal, a settlement authority has the 
same authority specified in Sec. 842.128(a). The Judge Advocate General 
is the final appellate authority on subpart F type claims without right 
of further appeal to the Secretary of the Air Force. However, no 
appellate authority below The Judge Advocate General may deny an appeal 
of a claim it had previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce,

[[Page 111]]

withdraw, or restore delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within its delegated authority. Send 
unsettled claims in excess of the delegated authority to the level with 
settlement authority. Unsuccessful negotiations at one level do not bind 
higher authority.



Sec. 842.129  Settlement of claims against NAFIs.

    (a) This subpart does not establish legal theories for adjudication 
of claims. Refer to the appropriate subpart to decide whether a claim is 
payable (e.g., subpart D for personnel claims; subpart K for tort 
claims), then use the rules in this subpart to decide the appropriate 
funds for payment of any approved claim.
    (b) Claims arising from property damage to or loss from vehicles or 
loss of personal items stored in base MWR facilities will be evaluated 
under the normal rules applied by the appropriate subpart of this part, 
and paid using the rules in those subparts. Examples include 
recreational vehicles stored in authorized lots and used cars parked in 
onbase sales lots. One exception to this rule is the exclusion of 
personal items stolen from onbase gym lockers (discussed below).
    (1) If a NAF fee has been charged in connection with the use of the 
storage location, a determination must be made on the nature of the fee 
charged. If the fee does no more than reimburse NAF costs in 
administering or maintaining the storage location, subpart O of this 
part applies in addition to other appropriate subparts. If the fee is 
set to generate a profit for the NAFI involved or if it is collected in 
accordance with the terms of an agreement, express or implied, under 
which the NAFI represents that it will provide some degree of security 
or safeguarding of the property, the claim will be paid with NAF funds.
    (2) Normally, theft of items from gym lockers will be paid out of 
appropriated funds providing there is affirmative evidence of theft. 
Mysterious loss of property will not be paid and, in no case, will a 
claim be paid in excess of $250.



Sec. 842.130  Payment of claims against NAFIs.

    Substantiated claims against NAFIs must not be paid solely from 
appropriated funds. Claims are sent for payment as set out in this 
subpart. Do not delay paying a claimant because doubt exists whether to 
use appropriated funds or NAFs. Pay the claim initially from 
appropriated funds and decide the correct funding source later.



Sec. 842.131  Tort and tort type claims.

    (a) Claims within the scope of this subpart. Claims which are within 
the scope of this subpart are those arising out of the operation of an 
MWR activity and are caused by:
    (1) Civilian employees paid by a NAFI acting in the scope of their 
employment.
    (2) Military personnel or appropriated fund civilian employees 
performing part-time duties for a NAFI for which a NAFI is paying.
    (3) Negligent operation or condition of premises for which a NAFI is 
responsible.
    (4) Members or authorized users of NAFI property. Such claims are 
subject to this subpart if the individual is a member of an MWR 
membership association or an authorized user of NAFI property and the 
use is in accord with applicable rules.
    (b) Claims not within the scope of this subpart. Claims are not 
payable within the scope of this subpart if they arise out of the 
operation of an MWR activity supported by a NAFI and are caused by:
    (1) Military personnel or appropriated fund civilian employees 
performing assigned Air Force duties, even though they benefit a NAFI.
    (2) Negligent operation or condition of premises for which a NAFI is 
not responsible.



Sec. 842.132  Claims by NAFI employees.

    Claims made by NAFI employees should be settled within the 
guidelines of this paragraph.
    (a) Personal injury in performance of duty and workers' compensation 
claims.

[[Page 112]]

Claims for injuries arising out of performance of duty and workers' 
compensation claims are not within the scope of this subpart because the 
exclusive remedy is one of the following.
    (1) Longshore and Harbor Workers' Compensation Act. This Act applies 
to NAFI civilian employees in the United States, its territories and 
possessions, and US citizen and resident NAFI civilian employees abroad.
    (2) Local benefits for foreign national employees abroad.
    (3) Military benefits because the injury is incident to service for 
offduty military personnel.
    (b) Property loss or damage incident to NAFI employment. Claims for 
loss or damage to property incident to NAFI employment are settled under 
subpart D. Where appropriate, liability is computed, and initial demand 
is made upon the carrier, warehouse, or insurer, directing them to send 
further correspondence to the NAFI paying the claim.



Sec. 842.133  Claims by customers, members, participants, or authorized users.

    (a) Customer complaints. Do not automatically adjudicate customer 
complaint claims until a determination is made that a valid claim 
exists. Complaints and personal property losses suffered by customers of 
MWR sales or service operations are normally not within the scope of 
this subpart. Customer complaints may not be claims at all. They may be 
no more than expressions of customer dissatisfactions. The activity 
manager is responsible for adjudicating and satisfying or otherwise 
disposing of a customer's complaint according to applicable NAFI 
regulations. Where possible, the activity manager resolves them by 
reimbursement, repair, or replacement in kind. However, if a complaint 
involving a claim cannot be satisfactorily settled under those 
procedures or includes a demand for consequential damage (such as for 
personal injury or property damage to other than the article purchased 
or serviced), process it as a tort claim.
    (b) Claims generated by concessionaires. Most concessionaires must 
have commercial insurance. Any unresolved claims or complaints against 
concessionaires or their insurers are sent to the appropriate 
contracting officers.



Sec. 842.134  Claims in favor of NAFIs.

    (a) Tort claims. Use the procedures set forth in subpart J or L, as 
appropriate.
    (b) Contract claims. See AFR 176-9 or AFR 147-14, as appropriate.
    (c) Claims involving dishonored checks and debts to NAFIs. See AFR 
176-2 and 176-10 or AFR 147-14, as appropriate.
    (d) Third Party Workers' Compensation Claims. NAF employees are 
provided workers' compensation benefits under the Longshore and Harbor 
Workers' Compensation Act (LHWCA) (33 U.S.C. 901, et seq.) as extended 
by the Nonappropriated Fund Instrumentalities Act (5 U.S.C. 8171-8173). 
For injuries suffered by NAFI employees in the course and scope of their 
employment where third parties are responsible for the injuries, the 
employing NAFIs are entitled to recover from the responsible third 
parties for the compensation and medical benefits paid to the injured 
employees (33 U.S.C. 933). Third party claims are pursued on behalf of 
employing NAFIs by the servicing staff judge advocate. A NAFI also has 
the right of offset against an employee's pay amounts recovered directly 
by the employee from third parties as provided in the LHWCA.



Sec. 842.135  Advance payments.

    The procedures set out in subpart Q should be used for advance 
payments. Do not delay paying a claimant because doubt exists whether to 
use appropriated funds or NAFIs. Pay the claim initially from 
appropriated claim funds and decide the correct funding source later.



Sec. 842.136  Claim payments and deposits.

    Unless otherwise specified in this subpart, claims for payment (in 
two copies), collected funds for deposit, and international agreement 
bills for reimbursement should be sent as follows:
    (a) AAFES: (1) Claims payable for more than $2500: HQ AAFES, 
Comptroller, Insurance Branch, P.O. Box 660202, Dallas, TX 75266-0202.
    (2) Claims payable for $2500 or less: AAFES Operations Center (OSC-
AC),

[[Page 113]]

2727 LBJ Highway, Dallas TX 75266-0320.
    (b) Civilian base restaurants and civilian welfare NAFIs: (1) For 
more than $100: Army and Air Force Civilian Welfare Fund, Washington, DC 
20310.
    (2) For $100 or less: The local NAFI giving rise to the claim.
    (c) All other NAFIs: (1) For more than $50: HQ AFMPC/DPMSCI, 
Randolph AFB TX 78150-6001.
    (2) For $50 or less: The local NAFI giving rise to the claim.
    (d) International agreement claims, all NAFIs. When a receiving 
state pays a claim under an international agreement, the NAFI involved, 
upon receipt of an extract copy of the itemized bill, will forward 
payment of its pro rata share to the sending State office.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



   Subpart P--Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a), 
         8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201-208)



Sec. 842.137  Scope of this subpart.

    This subpart explains how to process certain administrative claims:
    (a) Against the United States for property damage, personal injury, 
or death, arising out of Air Force noncombat missions performed by the 
Civil Air Patrol (CAP), as well as certain other Air Force authorized 
missions performed by the CAP in support of the Federal government.
    (b) In favor of the United States for damage to US Government 
property caused by CAP members or third parties.



Sec. 842.138  Definitions.

    (a) Civil Air Patrol (CAP). A federally chartered, non-profit 
corporation which was designated by Congress in 1948 as a volunteer 
civilian auxiliary of the Air Force.
    (b) Air Force noncombat mission. Although not defined in any 
statute, an Air Force noncombat mission is any mission for which the Air 
Force is tasked, by statute, regulation, or higher authority, which does 
not involve actual combat, combat operations or combat training. The Air 
Force, in lieu of using Air Force resources, can use the services of the 
Civil Air Patrol to fulfill these type missions. When performing an Air 
Force noncombat mission, the Civil Air Patrol is deemed to be an 
instrumentality of the United States. In order for a mission to be a 
noncombat mission of the Air Force under this part, it must either:
    (1) Have a special Air Force mission order assigned, and, the Air 
Force must exercise operational control over the mission.
    (2) Involve a peacetime mission the Air Force is tasked to perform 
by higher authority which requires the expenditure of Air Force 
resources to accomplish, and the Air Force specifically approves the 
mission as a noncombat mission, and assigns the mission to the Civil Air 
Patrol to perform.
    (c) CAP members. CAP members are private citizens who volunteer 
their time, services, and resources to accomplish CAP objectives and 
purposes. The two primary categories of members are:
    (1) Cadets. Youths, 13 years (or having satisfactorily completed the 
sixth grade) through 17 years of age, who meet such prerequisites as the 
CAP corporation may establish from time to time. Cadet status may be 
retained until age 21.
    (2) Seniors. Adults, 18 years of age or older (there is no maximum 
age), who meet such prerequisites as the CAP corporation may establish 
from time to time, and who have not retained cadet status.
    (d) Liaison officers. Active duty Air Force officers assigned to 
liaison duty at the national, regional, and wing (state) levels of CAP.



Sec. 842.139  Delegations of authority.

    The appropriate subpart of this part under which the claim is being 
considered prescribes the authority to settle it.



Sec. 842.140  Proper claimants.

    (a) Anyone suffering property damage, personal injury, or death 
arising from an Air Force noncombat mission or other specified Air Force 
authorized mission performed by CAP, who is also a proper claimant under 
the appropriate subpart of this part.

[[Page 114]]

    (b) The United States, for claims arising out of activities of CAP 
caused by negligent acts or omissions of CAP members or third parties.



Sec. 842.141  Improper claimants.

    CAP members, 18 years of age or older, whose personal injury or 
death claim is subject to the Federal Employees' Compensation Act, are 
improper claimants. FECA is their exclusive remedy.



Sec. 842.142  Claims payable.

    A claim is payable if all of the following are present:
    (a) It is for property damage, personal injury, or death.
    (b) It is proximately caused by a CAP member.
    (c) It arises from an Air Force noncombat mission performed by the 
CAP, or arises from an authorized mission performed by the CAP for which 
specific coverage under this subpart is granted by HQ USAF/JACC.
    (d) It is otherwise payable because it meets the provisions of an 
appropriate subpart of this part.



Sec. 842.143  Claims not payable.

    A claim is not payable if it:
    (a) Is for use or depreciation of privately owned property, operated 
by CAP or its members on an Air Force noncombat mission, or other 
specified Air Force authorized mission.
    (b) Is for personal services or expenses incurred by CAP or its 
members while engaged in an Air Force noncombat mission, or other 
specified Air Force authorized mission.
    (c) Arises out of a CAP incident based solely on government 
ownership of property on loan to CAP.
    (d) Arises from a CAP activity not performed as a noncombat mission 
of the Air Force or as a specified Air Force authorized mission. These 
claims are sent to HQ CAP-USAF/JA for referral to CAP's private insurer, 
with a copy of the transmittal letter to HQ USAF/JACC.



              Subpart Q--Advance Payments (10 U.S.C. 2736)



Sec. 842.144  Scope of this subpart.

    It tells how to make an advance payment before a claim is filed or 
finalized under the Military Claims, Foreign Claims and National Guard 
Claims Acts.



Sec. 842.145  Delegation of authority.

    (a) The Secretary of the Air Force has authority to make an advance 
payment of $100,000 or less.
    (b) The Judge Advocate General has delegated authority to make an 
advance payment of $100,000 or less.
    (c) The following individuals have delegated authority to make an 
advance payment of $25,000 or less:
    (1) The Deputy Judge Advocate General.
    (2) The Director of Civil Law.
    (3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE.
    (d) This authority may be redelegated either orally or in writing. 
Oral redelegations should be confirmed in writing as soon as practical.



Sec. 842.146  Who may request.

    A proper claimant or authorized agent may request an advance 
payment.



Sec. 842.147  When authorized.

    Make advance payments only where all of the following exist:
    (a) The potential claimant could file a valid claim for property 
damage or personal injury under the Military Claims, Foreign Claims, or 
National Guard Claims Acts.
    (b) The potential claimant has an immediate need amounting to a 
hardship for food, shelter, medical or burial expenses, or other 
necessities. In the case of a commercial enterprise, severe financial 
loss or backruptcy will result if the Air Force does not make an advance 
payment.
    (c) Other resources for such needs are not reasonably available.

[[Page 115]]

    (d) The potential claim equals or exceeds the amount of the advance 
payment.
    (e) The recipient signs as advance payment agreement.



Sec. 842.148  When not authorized.

    Do not make an advance payment if the claim is payable under the:
    (a) Federal Tort Claims Act.
    (b) International Agreement Claims Act.
    (c) Military Personnel and Civilian Employees' Claims Act. (Separate 
regulations issued under the Act provide for partial payments.)



Sec. 842.149  Separate advance payment claims.

    Every person suffering injury or property loss may submit a separate 
request for an advance payment. For example, where the Air Force 
destroys a house containing a family of four, each family member may 
submit a separate request for and receive an advance payment of $100,000 
or less.



Sec. 842.150  Liability for repayment.

    The claimant is liable for repayment. Deduct the advance payment 
from any award or judgment given to a claimant. Reimbursement from the 
claimant will be sought if the claimant does not file a claim or 
lawsuit.



PART 845--COUNSEL FEES AND OTHER EXPENSES IN FOREIGN TRIBUNALS--Table of Contents




Sec.
845.1  Purpose.
845.2  Statutory authority.
845.3  Responsibility.
845.4  Criteria for the provision of counsel and payment of expenses in 
          criminal cases.
845.5  Provision of bail in criminal cases.
845.6  Criteria for the provision of counsel and payment of expenses in 
          civil cases.
845.7  Procedures for hiring counsel and obligating funds.
845.8  Payment of counsel fees and other expenses.
845.9  Appropriated funds chargeable.
845.10  Reimbursement.
845.11  Correspondence.

    Authority: Sec. 8012, 70A Stat. 488, sec. 1037, 72 Stat. 1445; 10 
U.S.C. 8012, 1037.

    Source: 44 FR 75633, Dec. 21, 1979, unless otherwise noted.
    Note: This part is derived from chapter 2 of Air Force Regulation 
110-12, December 1, 1978.
    Part 806 of this chapter states the basic policies and instructions 
governing the disclosure of records and tells members of the public what 
they must do to inspect or obtain copies of the material referenced 
herein.



Sec. 845.1  Purpose.

    This part establishes criteria and assigns responsibility for the 
provision of counsel, for the provision of bail, and for the payment of 
court costs and other necessary and reasonable expenses incident to 
representation in civil and criminal proceedings, including appellate 
proceedings, before foreign courts and foreign administrative agencies, 
which involve members of the Armed Forces, civilian personnel and 
dependents. Payment of fines is not authorized hereunder.



Sec. 845.2  Statutory authority.

    10 U.S.C. 1037 provides authority for employment of counsel, and 
payment of counsel fees, court costs, bail, and other expenses incident 
to representation of persons subject to the Uniform Code of Military 
Justice before foreign tribunals. For personnel not subject to the 
Uniform Code of Military Justice, funds for similar expenses may be made 
available in cases of exceptional interest to the service concerned, 
upon prior application through the Judge Advocate General of the service 
concerned, to the appropriate service secretary.



Sec. 845.3  Responsibility.

    (a) Requests for provision of counsel, provision of bail, or payment 
of expenses will ordinarily be made by the defendant or accused through 
appropriate channels to the officer exercising general court-martial 
jurisdiction over him. This officer shall determine whether the request 
meets the criteria prescribed herein and, based upon such determination, 
shall take final action approving or disapproving the request. Within 
their geographical areas of responsibility, major commands in the 
interest of obtaining prompt and effective legal service may appoint as 
approval authority, instead

[[Page 116]]

of the officer exercising general court-martial jurisdiction, any 
subordinate officer having responsibility in a particular country for 
personnel subject to foreign criminal jurisdiction.
    (b) Notwithstanding the criteria prescribed below, an officer 
exercising approved authority may, in his discretion, deny a request for 
the provision of counsel, provision of bail or payment of expenses, 
where the otherwise eligible requestor is in an absent without leave or 
deserter status at the time of the request, or otherwise is not then 
subject to United States military control, and there is no reasonable 
basis for the belief that the requestor will return to United States 
military control at the conclusion of the proceedings of service of an 
adjudged sentence, if any.



Sec. 845.4  Criteria for the provision of counsel and payment of expenses in criminal cases.

    Requests for the provision of counsel and payment of expenses in 
criminal cases may be approved in pretrial, trial, appellate and 
posttrial proceedings in any one of the following criminal cases:
    (a) Where the act complained of occurred in the performance of 
official duty; or
    (b) Where the sentence which is normally imposed includes 
confinement, whether or not such sentence is suspended; or
    (c) Where capital punishment might be imposed; or
    (d) Where an appeal is made from any proceeding in which there 
appears to have been a denial of the substantial rights of the accused; 
or
    (e) Where conviction of the offense alleged could later form the 
basis for administrative discharge proceedings for misconduct as a 
result of civil court disposition; or
    (f) Where the case, although not within the criteria established in 
paragraphs (a), (b), (c), (d), or (e) of this section, is considered to 
have significant impact upon the relations of US forces with the host 
country or is considered to involve any other particular US interest.



Sec. 845.5  Provision of bail in criminal cases.

    Funds for the posting of bail or bond to secure the release of 
personnel from confinement by foreign authorities before, during, or 
after trial may be furnished in all criminal cases. Safeguards should be 
imposed to assure that at the conclusion of the proceedings or on the 
appearance of the defendant in court, the bail or bond will be refunded 
to the military authorities. Bail will be provided only to guarantee the 
presence of the defendant and will not be provided to guarantee the 
payment of fines or civil damages. Local US military authorities are 
expected to provide bail, in any case, only after other reasonable 
efforts have been made to secure release of pretrial custody to the US.



Sec. 845.6  Criteria for the provision of counsel and payment of expenses in civil cases.

    Requests for provision of counsel and payment of expenses in civil 
cases may be granted in trial and appellate proceedings in either of the 
following civil cases:
    (a) Where the act complained of occurred in the performance of 
official duty; or
    (b) Where the case is considered to have a significant impact upon 
the relations of US forces with the host country or is considered to 
involve any other particular US interest. No funds shall be provided 
under this part in cases where the United States of America is in legal 
effect the defendant, without prior authorization of the Judge Advocate 
General.



Sec. 845.7  Procedures for hiring counsel and obligating funds.

    (a) The selection of individual trial or appellate counsel will be 
made by the defendant. Such counsel shall represent the individual 
defendant and not the US Government. Selection shall be made from 
approved lists of attorneys who are qualified, competent and experienced 
in trial practice, and admitted for full practice, on their own account, 
before the courts of the foreign country involved. Normally, these lists 
will be coordinated with the local court or bar association, if any, and 
the appropriate US Diplomatic or Consular Mission and

[[Page 117]]

should include only those attorneys who are known or reputed, to comply 
with local attorney fee schedules or guides approved or suggested by 
local bar associations and should not exceed amounts paid under similar 
circumstances by nationals of the country where the trial is held. No 
fee may include any amount in payment for services other than those 
incident to representation before judicial and administrative agencies 
of the foreign country in the particular case for which the contract is 
made, and in no event may any contract include fees for representation 
in habeas corpus or related proceedings before tribunals of the United 
States. When appropriate and reasonable in the case, the payment of 
expenses, in addition to counsel fees, may include court costs, bail 
costs, charges for obtaining copies of records, printing and filing 
fees, interpreter fees, witness fees, and other necessary and reasonable 
expenses. Expenses will not include the payment of fines or civil 
damages, directly or indirectly.
    (b) Whenever possible, the officer responsible under Sec. 845.3 (or 
his designee), acting on behalf of the United States of America, shall 
enter into a written contract with the selected counsel. The contract 
will cover counsel fees, and, when appropriate, may cover other costs 
arising in defense of the case only in the court of first instance and 
will not include fees for representation on appeal. If the case is 
appealed to higher tribunals, supplemental agreements shall be executed 
for each appeal. A copy of the contractual agreement shall serve as the 
obligating document.
    (c) If, for example, because of unusual circumstances or local 
customs, it is not practicable to enter into a written contract as in 
paragraph (b) of this section, action will be taken to record the 
agreement reached between the officer responsible under Sec. 845.3 (or 
his designee) and the selected counsel. This requirement may be met by a 
letter of commission or letter of understanding, executed between the 
officer responsible under Sec. 845.3 (or his designee) and the selected 
counsel, or by a written request for legal services expressly or 
impliedly accepted by the selected counsel. Any such document shall 
contain, if possible, an agreed estimate of counsel fees and reasonable 
expenses and a statement that both fees and expenses will conform to 
those paid by local nationals under similar circumstances and will not 
exceed local fee schedules, if any. If this document does not include an 
agreed estimate of counsel fees and other reasonable expenses, an 
estimate will be provided by the contracting officer. A copy of the 
document, together with the estimate, will be furnished the accounting 
component and will serve as the commitment document for the reservation 
of funds.
    (d) The provision of counsel and payment of expenses under this part 
is not subject to the provisions of the Defense Acquisition Regulation 
(subchapter A, chapter I of this title). However, the contract clauses 
set forth in part 5, section VII, Defense Acquisition Regulation, may be 
used as a guide in contracting.
    (e) Because of the desirability of timely procedural action, it is 
suggested that there be designated, from among the judge advocates on 
the staffs of officers responsible under Sec. 845.3, contracting 
officers with contracting authority limited to agreements described in 
this section. The effect of this designation would be to combine within 
one office the duties of contracting officer and judge advocate.
    (f) Nothing in this part shall be construed as prohibiting the 
selection of qualified local counsel employed by the United States 
Government, if the serviceman freely selects such counsel.



Sec. 845.8  Payment of counsel fees and other expenses.

    Payment of bills submitted by the selected counsel and other costs 
shall be made in accordance with the general provision of AFM 177-102 
(Commercial Transactions at Base Level), relating to payment of 
contractual obligations and pertinent disbursing regulations. All 
payments under these procedures will be in local currency. Acceptance of 
services procured under these procedures shall be certified to by the 
officer responsible under Sec. 845.3 (or his designee). Payments of bail 
may be made when authorized by such officers. Such authorization shall 
be in the form of a

[[Page 118]]

directing letter or message citing 10 U.S.C. 1037.



Sec. 845.9  Appropriated funds chargeable.

    Authorized expenses incurred incident to implementation of the 
policies set forth in this part, including transportation and per diem 
expenses of trial observers, interpreters, and local counsel employees, 
shall be paid from appropriated funds of the service to which the 
defendant belongs. Payments shall be made from the appropriation current 
at time of payment, unless obligations for authorized costs have 
previously been established. Refunds shall be processed as appropriation 
refund. Such funds are chargeable to the base for operation and 
maintenance purposes (O&M or R&D, as applicable).



Sec. 845.10  Reimbursement.

    No reimbursement will ordinarily be required from individuals with 
respect to payments made in their behalf under this part. However, prior 
to the posting of bail on behalf of a defendant, a signed agreement 
shall be secured from him wherein he agrees to remit the amount of such 
bail or permit the application of so much of his pay as may be necessary 
to reimburse the Government in the event that he willfully causes 
forfeiture of bail. In the event of such forfeiture, bail provided under 
this part shall be recovered from the defendant in accordance with that 
agreement. The agreement should include a statement that it does not 
prejudice the defendant's right to appeal to the Comptroller General of 
the United States and the courts after such payment or deduction has 
been made, if he considers the amount erroneous.



Sec. 845.11  Correspondence.

    Judge advocates who advise officers responsible under Sec. 845.3 are 
authorized to correspond directly with each other and with the Judge 
Advocate General of the service concerned for advice with regard to 
payment of counsel fees and other expenses.

[[Page 119]]



                    SUBCHAPTER E--SECURITY [RESERVED]





                         SUBCHAPTER F--AIRCRAFT





PART 855--CIVIL AIRCRAFT USE OF UNITED STATES AIR FORCE AIRFIELDS--Table of Contents




                      Subpart A--General Provisions

Sec.
855.1  Policy.
855.2  Responsibilities.
855.3  Applicability.

                Subpart B--Civil Aircraft Landing Permits

855.4  Scope.
855.5  Responsibilities and authorities.
855.6  Aircraft exempt from the requirement for a civil aircraft landing 
          permit.
855.7  Conditions for use of Air Force airfields.
855.8  Application procedures.
855.9  Permit renewal.
855.10  Purpose of use.
855.11  Insurance requirements.
855.12  Processing a permit application.
855.13  Civil fly-ins.
855.14  Unauthorized landings.
855.15  Detaining an aircraft.
855.16  Parking and storage.
855.17  Fees for landing, parking, and storage fees.
855.18  Aviation fuel and oil purchases.
855.19  Supply and service charges.

   Subpart C--Agreements for Civil Aircraft Use of Air Force Airfields

855.20  Joint-use Agreements.
855.21  Procedures for sponsor.
855.22  Air Force procedures.
855.23  Other agreements.
Table 1--Purpose of Use/Verification/Approval Authority/Fees
Table 2--Aircraft Liability Coverage Requirements
Table 3--Landing Fees
Table 4--Parking and Storage Fees

Attachment 1 to Part 855--Glossary of References, Abbreviations, 
          Acronyms, and Terms
Attachment 2 to Part 855--Weather Alternate List
Attachment 3 to Part 855--Landing Permit Application Instructions
Attachment 4 to Part 855--Sample Joint-Use Agreement
Attachment 5 to Part 855--Sample Temporary Agreement

    Authority: 49 U.S.C. 44502 and 47103.

    Source: 60 FR 37349, July 20, 1995, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 855.1  Policy.

    The Air Force establishes and uses its airfields to support the 
scope and level of operations necessary to carry out missions worldwide. 
The Congress funds airfields in response to Air Force requirements, but 
also specifies that civil aviation access is a national priority to be 
accommodated when it does not jeopardize an installation's military 
utility. The Air Force engages in dialogue with the civil aviation 
community and the Federal Aviation Administration to ensure mutual 
understanding of long-term needs for the national air transportation 
system and programmed military force structure requirements. To 
implement the national policy and to respond to requests for access, the 
Air Force must have policies that balance such requests with military 
needs. Civil aircraft access to Air Force airfields on foreign territory 
requires host nation approval.
    (a) The Air Force will manage two programs that are generally used 
to grant civil aircraft access to its airfields: civil aircraft landing 
permits and joint-use agreements. Other arrangements for access will be 
negotiated as required for specific purposes.
    (1) Normally, landing permits will be issued only for civil aircraft 
operating in support of official Government business. Other types of use 
may be authorized if justified by exceptional circumstances. Access will 
be granted on an equitable basis.
    (2) The Air Force will consider only proposals for joint use that do 
not compromise operations, security, readiness, safety, environment, and 
quality of life. Further, only proposals submitted by authorized local 
Government representatives eligible to sponsor a public airport will be 
given the comprehensive evaluation required to conclude a joint-use 
agreement.
    (3) Any aircraft operator with an inflight emergency may land at any

[[Page 120]]

Air Force airfield without prior authorization. An inflight emergency is 
defined as a situation that makes continued flight hazardous.
    (b) Air Force requirements will take precedence on Air Force 
airfields over all civil aircraft operations, whether they were 
previously authorized or not.
    (c) Civil aircraft use of Air Force airfields in the United States 
will be subject to Federal laws and regulations. Civil aircraft use of 
Air Force airfields in foreign countries will be subject to US Federal 
laws and regulations that have extraterritorial effect and to applicable 
international agreements with the country in which the Air Force 
installation is located.



Sec. 855.2  Responsibilities.

    (a) As the program manager for joint use, the Civil Aviation Branch, 
Bases and Units Division, Directorate of Operations (HQ USAF/XOOBC), 
ensures that all impacts have been considered and addressed before 
forwarding a joint-use proposal or agreement to the Deputy Assistant 
Secretary for Installations (SAF/MII), who holds decision authority. All 
decisions are subject to the environmental impact analysis process as 
directed by the Environmental Planning Division, Directorate of 
Environment (HQ USAF/CEVP), and the Deputy Assistant Secretary for 
Environment, Safety, and Occupational Health (SAF/MIQ). The Air Force 
Real Estate Agency (AFREA/MI) handles the leases for Air Force-owned 
land or facilities that may be included in an agreement for joint use.
    (b) HQ USAF/XOOBC determines the level of decision authority for 
landing permits. It delegates decision authority for certain types of 
use to major commands and installation commanders.
    (c) HQ USAF/XOOBC makes the decisions on all requests for exceptions 
or waivers to this part and related Air Force instructions. The decision 
process includes consultation with other affected functional area 
managers when required. Potential impacts on current and future Air 
Force policies and operations strongly influence such decisions.
    (d) Major commands, direct reporting units, and field operating 
agencies may issue supplements to establish command-unique procedures 
permitted by and consistent with this part.



Sec. 855.3  Applicability.

    This part applies to all regular United States Air Force (USAF), Air 
National Guard (ANG), and United States Air Force Reserve (USAFR) 
installations with airfields. This part also applies to civil aircraft 
use of Air Force ramps at civil airports hosting USAF, ANG, and USAFR 
units.



                Subpart B--Civil Aircraft Landing Permits



Sec. 855.4  Scope.

    Air Force airfields are available for use by civil aircraft so far 
as such use does not interfere with military operations or jeopardize 
the military utility of the installation. Access will be granted on an 
equitable basis. Air Force requirements take precedence over authorized 
civil aircraft use. This part carries the force of US law, and 
exceptions are not authorized without prior approval from the Civil 
Aviation Branch, Bases and Units Division, Directorate of Operations, 
(HQ USAF/XOOBC), 1480 Air Force Pentagon, Washington DC 20330-1480. 
Proposed exceptions or waivers are evaluated as to current and future 
impact on Air Force policy and operations.



Sec. 855.5  Responsibilities and authorities.

    (a) The Air Force:
    (1) Determines whether civil aircraft use of Air Force airfields is 
compatible with current and planned military activities.
    (2) Normally authorizes civil aircraft use of Air Force airfields 
only in support of official Government business. If exceptional 
circumstances warrant, use for other purposes may be authorized.
    (3) Acts as clearing authority for civil aircraft use of Air Force 
airfields, subject to the laws and regulations of the US, or to 
applicable international agreements (e.g., status of forces agreements) 
with the country in which the Air Force installation is located.

[[Page 121]]

    (4) Reserves the right to suspend any operation that is inconsistent 
with national defense interests or deemed not in the best interests of 
the Air Force.
    (5) Will terminate authority to use an Air Force airfield if the:
    (i) User's liability insurance is canceled.
    (ii) User lands for other than the approved purpose of use or is 
otherwise in violation of this part or clearances and directives 
hereunder.
    (6) Will not authorize use of Air Force airfields:
    (i) In competition with civil airports by providing services or 
facilities that are already available in the private sector.
    Note: Use to conduct business with or for the US Government is not 
considered as competition with civil airports.
    (ii) Solely for the convenience of passengers or aircraft operator.
    (iii) Solely for transient aircraft servicing.
    (iv) By civil aircraft that do not meet US Department of 
Transportation operating and airworthiness standards.
    (v) That selectively promotes, benefits, or favors a specific 
commercial venture unless equitable consideration is available to all 
potential users in like circumstances.
    (vi) For unsolicited proposals in procuring Government business or 
contracts.
    (vii) Solely for customs-handling purposes.
    (viii) When the air traffic control tower and base operations are 
closed or when a runway is restricted from use by all aircraft.
    Note: Requests for waiver of this provision must address liability 
responsibility, emergency response, and security.
    (7) Will not authorize civil aircraft use of Air Force ramps located 
on civil airfields.
    Note: This section does not apply to use of aero club facilities 
located on Air Force land at civil airports, or civil aircraft chartered 
by US military departments and authorized use of terminal facilities and 
ground handling services on the Air Force ramp. Only the DD Form 2400, 
Civil Aircraft Certificate of Insurance, and DD Form 2402, Civil 
Aircraft Hold Harmless Agreement, are required for use of Air Force 
ramps on civil airfields.
    (b) Civil aircraft operators must:
    (1) Have an approved DD Form 2401, Civil Aircraft Landing Permit, 
before operating at Air Force airfields, except for emergency use and as 
indicated in paragraphs (d)(2) and (d)(2)(iii)(E) of this section, and , 
and Sec. 855.13(b)(1)(ii).
    (2) Ensure that pavement load-bearing capacity will support the 
aircraft to be operated at the Air Force airfield.
    (3) Ensure that aircraft to be operated at Air Force airfields are 
equipped with an operating two-way radio capable of communicating with 
the air traffic control tower.
    (4) Obtain final approval for landing from the installation 
commander or a designated representative (normally base operations) at 
least 24 hours prior to arrival.
    (5) Not assume that the landing clearance granted by an air traffic 
control tower facility is a substitute for either the approved civil 
aircraft landing permit or approval from the installation commander or a 
designated representative (normally base operations).
    (6) Obtain required diplomatic or overflight clearance before 
operating in foreign airspace.
    (7) Pay applicable costs and fees.
    (8) File a flight plan before departing the Air Force airfield.
    (c) The installation commander or a designated representative:
    (1) Exercises administrative and security control over both the 
aircraft and passengers while on the installation.
    (2) May require civil users to delay, reschedule, or reroute 
aircraft arrivals or departures to preclude interference with military 
activities.
    (3) Cooperates with customs, immigration, health, and other public 
authorities in connection with civil aircraft arrival and departure.
    (d) Decision Authority: The authority to grant civil aircraft use of 
Air Force airfields is vested in:
    (1) Directorate of Operations, Bases and Units Division, Civil 
Aviation Branch (HQ USAF/XOOBC). HQ USAF/XOOBC may act on any request 
for civil aircraft use of an Air Force airfield. Decision authority for 
the following will not be delegated below HQ USAF:
    (i) Use of multiple Air Force airfields except as designated in 
paragraph (d)(2) of this section.

[[Page 122]]

    (ii) Those designated as 2 under Approval Authority in Table 1 to 
this part.
    (iii) Any unusual or unique purpose of use not specifically 
addressed in this part.
    (2) Major Command, Field Operating Agency, Direct Reporting Unit, or 
Installation Commander. With the exception of those uses specifically 
delegated to another decision authority, major commands (MAJCOMs), field 
operating agencies (FOAs), direct reporting units (DRUs) and 
installation commanders or designated representatives have the authority 
to approve or disapprove civil aircraft landing permit applications (DD 
Forms 2400, Civil Aircraft Certificate of Insurance; 2401; Civil 
Aircraft Landing Permit, and 2402, Civil Aircraft Hold Harmless 
Agreement) at airfields for which they hold oversight responsibilities. 
Additionally, for expeditious handling of short notice requests, they 
may grant requests for one-time, official Government business flights 
that are in the best interest of the US Government and do not violate 
other provisions of this part. As a minimum, for one-time flights 
authorized under this section, the aircraft owner or operator must 
provide the decision authority with insurance verification and a 
completed DD Form 2402 before the aircraft operates into the Air Force 
airfield. Air Force authority to approve civil aircraft use of Air Force 
airfields on foreign soil may be limited. Commanders outside the US must 
be familiar with base rights agreements or other international 
agreements that may render inapplicable, in part or in whole, provisions 
of this part. Decision authority is delegated for specific purposes of 
use and or locations as follows:
    (i) Commander, 611th Air Operations Group (AOG). The Commander, 
611th AOG or a designated representative may approve commercial 
charters, on a case-by-case basis, at all Air Force airfields in Alaska, 
except Eielson and Elmendorf AFBs, if the purpose of the charter is to 
transport goods and or materials, such as an electric generator or 
construction materials for a community center, for the benefit of remote 
communities that do not have adequate civil airports.
    (ii) Commander, Air Mobility Command (AMC). The Commander, AMC or a 
designated representative may approve permits that grant landing rights 
at Air Force airfields worldwide in support of AMC contracts.
    (iii) US Defense Attache Office (USDAO). The USDAO, acting on behalf 
of HQ USAF/XOOBC, may grant a request for one-time landing rights at an 
Air Force airfield provided:
    (A) The request is for official Government business of either the US 
or the country to which the USDAO is accredited.
    (B) The Air Force airfield is located within the country to which 
the USDAO is accredited.
    (C) Approval will not violate any agreement with the host country.
    (D) The installation commander concurs.
    (E) The USDAO has a properly completed DD Form 2402 on file and has 
verified that the insurance coverage meets the requirements of Table 2 
to this part, before the aircraft operates into the Air Force airfield.



Sec. 855.6  Aircraft exempt from the requirement for a civil aircraft landing permit.

    (a) Any aircraft owned by:
    (1) Any other US Government agency.
    (2) US Air Force aero clubs established as prescribed in AFI 34-117, 
Air Force Aero Club Program, and AFMAN 3-132, Air Force Aero Club 
Operations \1\.
---------------------------------------------------------------------------

    \1\ Copies of the publications are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    Note: This includes aircraft owned by individuals but leased by an 
Air Force aero club.
    (3) Aero clubs of other US military services.
    Note: This includes aircraft owned by individuals but leased by Army 
or Navy aero clubs.
    (4) A US State, County, Municipality, or other political 
subdivision, when operating to support official business at any level of 
Government.
    (b) Any civil aircraft under:
    (1) Lease or contractual agreement for exclusive US Government use 
on a

[[Page 123]]

long-term basis and operated on official business by or for a US 
Government agency; for example, the Federal Aviation Administration 
(FAA), Department of the Interior, or Department of Energy.
    Note: The Government must hold liability responsibility for all 
damages or injury associated with operation of the aircraft.
    (2) Lease or contractual agreement to the Air Force for Air Force 
Civil Air Patrol (CAP) liaison purposes and operated by an Air Force CAP 
liaison officer on official Air Force business.
    (3) CAP control for a specific mission directed by the Air Force.
    (4) Coast Guard control for a specific mission directed by the Coast 
Guard.
    Note: For identification purposes, the aircraft will be marked with 
a sticker near the port side door identifying it as a Coast Guard 
Auxiliary aircraft. The pilot will always be in uniform and normally 
have a copy of a Coast Guard Auxiliary Patrol Order. If the aircraft is 
operating under ``verbal orders of the commander,'' the pilot can 
provide the telephone number of the cognizant Coast Guard commander.
    (5) Contractual agreement to any US, State, or local Government 
agency in support of operations involving safety of life or property as 
a result of a disaster.
    (6) Government furnished property or bailment contract for use by a 
contractor, provided the Federal, State, or local Government has 
retained liability responsibilities.
    (7) Civil aircraft transporting critically ill or injured 
individuals or transplant organs to or from an Air Force installation.
    (8) Historic aircraft being delivered for Air Force museum exhibits 
under the provisions of AFI 84-103, Museum System.\2\
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    \2\ See footnote 1 to Sec. 855.6.
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Sec. 855.7  Conditions for use of Air Force airfields.

    The Air Force authorizes use of its airfields for a specific purpose 
by a named individual or company. The authorization cannot be 
transferred to a second or third party and does not extend to use for 
other purposes. An approved landing permit does not obligate the Air 
Force to provide supplies, equipment, or facilities other than the 
landing, taxiing, and parking areas. The aircraft crew and passengers 
are only authorized activities at the installation directly related to 
the purpose for which use is granted. All users are expected to submit 
their application (DD Forms 2400, 2401, and 2402) at least 30 days 
before intended use and, except for use as a weather alternate, CRAF 
alternate, or emergency landing site, must contact the appropriate 
installation commander or a designated representative for final landing 
approval at least 24 hours before arrival. Failure to comply with either 
time limit may result in denied landing rights.



Sec. 855.8  Application procedures.

    To allow time for processing, the application (DD Forms 2400, 2401, 
and 2402) and a self-addressed, stamped envelope should be submitted at 
least 30 days before the date of the first intended landing. The 
verification required for each purpose of use must be included with the 
application. The name of the user must be the same on all forms. 
Original, hand scribed signatures, not facsimile elements, are required 
on all forms. Landing Permit Application Instructions are at attachment 
3 to this part. The user is responsible for reviewing this part and 
accurately completing the forms before submitting them to the approving 
authority.



Sec. 855.9  Permit renewal.

    When a landing permit expires, DD Forms 2401 and 2400 must be 
resubmitted for continued use of Air Force airfields.
    Note: Corporations must resubmit the DD Form 2402 every five years.



Sec. 855.10  Purpose of use.

    The purposes of use normally associated with civil aircraft 
operations at Air Force airfields are listed in Table 1. Requests for 
use for purposes other than those listed will be considered and may be 
approved if warranted by unique circumstances. A separate DD Form 2401 
is required for each purpose of use. (Users can have multiple DD Forms 
2401 that are covered by a single DD Form 2400 and DD Form 2402.)

[[Page 124]]



Sec. 855.11  Insurance requirements.

    Applicants must provide proof of third-party liability insurance on 
a DD Form 2400, with the amounts stated in US dollars. The policy 
number, effective date, and expiration date are required. The statement 
``until canceled'' may be used in lieu of a specific expiration date. 
The geographic coverage must include the area where the Air Force 
airfield of proposed use is located. If several aircraft or aircraft 
types are included under the same policy, a statement such as ``all 
aircraft owned,'' ``all aircraft owned and or operated,'' ``all non-
owned aircraft,'' or ``all aircraft operated,'' may be used in lieu of 
aircraft registration numbers. To meet the insurance requirements, 
either split limit coverage for bodily injury (individuals outside the 
aircraft), property damage, and passengers, or a single limit coverage 
is required. The coverage will be at the expense of the user with an 
insurance company acceptable to the Air Force. Coverage must be current 
during the period the Air Force airfield will be used. The liability 
required is computed on the basis of aircraft maximum gross takeoff 
weight (MGTOW) and passenger or cargo configuration. Minimum coverage 
will not be less than the amount indicated in Table 2 to this part.
    (a) Any insurance presented as a single limit of liability or a 
combination of primary and excess coverage will be an amount equal to or 
greater than the each accident minimums indicated in Table 2 to this 
part for bodily injury (individuals outside the aircraft), property 
damage, and passengers.
    (b) The policy will specifically provide that:
    (1) The insurer waives any right of subrogation it may have against 
the US by reason of any payment made under the policy for injury, death, 
or property damage that might arise, out of or in connection with the 
insured's use of any Air Force airfield.
    (2) The insurance afforded by the policy applies to the liability 
assumed by the insured under DD Form 2402.
    (3) If the insurer or the insured cancels or reduces the amount of 
insurance afforded under the listed policy before the expiration date 
indicated on DD Form 2400, the insurer will send written notice of 
policy cancellation or coverage reduction to the Air Force approving 
authority at least 30 days before the effective date of the cancellation 
or reduction. The policy must state that any cancellation or reduction 
will not be effective until at least 30 days after such notice is sent.



Sec. 855.12  Processing a permit application.

    Upon receipt of an application (DD Forms 2400, 2401, and 2402) for 
use of an Air Force airfield, the decision authority:
    (a) Determines the availability of the airfield and its capability 
to accommodate the purpose of use requested.
    (b) Determines the validity of the request and ensures all entries 
on DD Forms 2400, 2401, and 2402 are in conformance with this part.
    (c) Approves DD Form 2401 (with conditions or limitations noted) by 
completing all items in Section II--For Use by Approving Authority as 
follows:
    (1) Period of Use (Block 7): The ``From'' date will be either the 
first day of approved use or the first day of insurance coverage. The 
``From'' date cannot precede the first day of insurance coverage shown 
on the DD Form 2400. The ``Thru'' date is determined by the insurance 
expiration date and or the purpose of use. For example, the period of 
use for participants in an Air Force open house will be determined by 
both insurance coverage and open house dates. The permit would be issued 
only for the duration of the open house but must not precede or exceed 
the dates of insurance coverage. Many insurance policies terminate at 
noon on the expiration date. Therefore, if the insurance expiration is 
used to determine the permit expiration date, the landing permit will 
expire one day before the insurance expiration date shown on the DD Form 
2400. If the insurance expiration date either exceeds 2 years or is 
indefinite (for example, ``until canceled''), the landing permit will 
expire 2 years from the issue date or first day of coverage.
    (2) Frequency of Use (Block 8) is normally ``as required'' but may 
be more specific, such as ``one time.''

[[Page 125]]

    (3) Identification Number (Block 9): Installation commanders or a 
designated representative assign a permit number comprised of the last 
three letters of the installation's International Civil Aviation 
Organization identifier code, the last two digits of the calendar year, 
a number sequentially assigned, and the letter suffix that indicates the 
purpose of use (Table 1); for example, ADW 95-01C. MAJCOMs, FOAs, DRUs, 
and USDAOs use a three position organization abbreviation; such as AMC 
95-02K.
    (4) DD Form 2400 (Dated and Filed) (Block 11a): This block should 
contain the date from block 1 (Date Issued) on the DD Form 2400 and the 
identification of the unit or base where the form was approved; i.e., 30 
March 1995, HQ USAF/XOOBC.
    (5) DD Form 2402 (Dated and Filed) (Block 11b): This block should 
contain the date from block 4 (Date Signed) on the DD Form 2402 and the 
identification of the unit or base where the form was approved; i.e., 30 
March 1995, HQ USAF/XOOBC.
    (6) SA-ALC/SFR, 1014 Andrews Road, Building 1621, Kelly AFB TX 
78241-5603 publishes the list of companies authorized to purchase Air 
Force fuel on credit. Block 12 should be marked ``yes'' only if the 
permit holder's name appears on the SA-ALC list.
    (7) Landing Fees, Block 13, should be marked as indicated in Table 1 
to this part.
    (8) Permit Amendments: New entries or revisions to an approved DD 
Form 2401 may be made only by or with the consent of the approving 
authority.
    (d) Provides the applicant with written disapproval if:
    (1) Use will interfere with operations, security, or safety.
    (2) Adequate civil facilities are collocated.
    (3) Purpose of use is not official Government business and adequate 
civil facilities are available in the proximity of the requested Air 
Force airfield.
    (4) Use will constitute competition with civil airports or air 
carriers.
    (5) Applicant has not fully complied with this part.
    (e) Distributes the approved DD Form 2401 before the first intended 
landing, when possible, as follows:
    (1) Retains original.
    (2) Returns two copies to the user.
    (3) Provides a copy to HQ USAF/XOOBC.
    Note: HQ USAF/XOOBC will provide a computer report of current 
landing permits to the MAJCOMs, FOAs, DRUs, and installations.



Sec. 855.13  Civil fly-ins.

    (a) Civil aircraft operators may be invited to a specified Air Force 
airfield for:
    (1) A base open house to perform or provide a static display.
    (2) A flying safety seminar.
    (b) Civil fly-in procedures:
    (1) The installation commander or a designated representative:
    (i) Requests approval from the MAJCOM, FOA, or DRU with an 
information copy to HQ USAF/XOOBC/XOOO and SAF/PAC.
    (ii) Ensures that DD Form 2402 is completed by each user.
    Note: DD Forms 2400 and 2401 are not required for fly-in 
participants if flying activity consists of a single landing and takeoff 
with no spectators other than flightline or other personnel required to 
support the aircraft operations.
    (2) The MAJCOM, FOA, or DRU ensures HQ USAF/XOOBC/XOOO and SAF/PAC 
are advised of the approval or disapproval for the fly-in.
    (3) Aerial performance by civil aircraft at an Air Force open house 
requires MAJCOM or FOA approval and an approved landing permit as 
specified in AFI 35-201, Community Relations \3\. Regardless of the 
aircraft's historic military significance, DD Forms 2400, 2401, and 2402 
must be submitted and approved before the performance. The permit can be 
approved at MAJCOM, FOA, DRU, or installation level. Use will be 
authorized only for the period of the event. Fly-in procedures do not 
apply to aircraft transporting passengers (revenue or non-revenue) for 
the purpose of attending the open house or demonstration flights 
associated with marketing a product.
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    \3\ See footnote 1 to Sec. 855.6.
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Sec. 855.14  Unauthorized landings.

    (a) Unauthorized landing procedures. The installation commander or a 
designated representative will identify an

[[Page 126]]

unauthorized landing as either an emergency landing, an inadvertent 
landing, or an intentional landing. An unauthorized landing may be 
designated as inadvertent or intentional whether or not the operator has 
knowledge of the provisions of this part, and whether or not the 
operator filed a flight plan identifying the installation as a 
destination. Aircraft must depart the installation as soon as practical. 
On all unauthorized landings, the installation commander or a designated 
representative:
    (1) Informs the operator of Subpart B procedures and the requirement 
for notifying the Federal Aviation Administration (FAA) as specified in 
section 6 of the FAA Airman's Information Manual.
    (2) Notifies the Federal Aviation Flight Standards District Office 
(FSDO) by telephone or telefax, followed by written notification using 
FAA Form 8020-9, 8020-11, or 8020-17, as appropriate. A copy of the 
written notification must be provided to HQ USAF/XOOBC.
    (3) Ensures the operator completes a DD Form 2402, and collects 
applicable charges. (In some instances, it may be necessary to arrange 
to bill the user for the appropriate charges.) DD Form 2402 need not be 
completed for commercial carriers if it is known that the form is 
already on file at HQ USAF/XOOBC.
    (4) In a foreign country, notifies the local US Defense Attache 
Office (USDAO) by telephone or telefax and, where applicable, the 
appropriate USDAO in the country of aircraft registry, followed by 
written notification with an information copy to HQ USAF/XOOBC and the 
civil aviation authority of the country or countries concerned.
    (b) Emergency landings. Any aircraft operator who experiences an 
inflight emergency may land at any Air Force airfield without prior 
authorization (approved DD Form 2401 and 24 hours prior notice). An 
inflight emergency is defined as a situation that makes continued flight 
hazardous.
    (1) The Air Force will use any method or means to clear an aircraft 
or wreckage from the runway to preclude interference with essential 
military operations after coordinating with the FSDO and National 
Transportation Safety Board. Removal efforts will minimize damage to the 
aircraft or wreckage; however, military or other operational factors may 
be overriding.
    (2) An operator making an emergency landing:
    (i) Is not charged a landing fee.
    (ii) Pays all costs for labor, material, parts, use of equipment and 
tools, and so forth, to include, but not limited to:
    (A) Spreading foam on the runway.
    (B) Damage to runway, lighting, and navigation aids.
    (C) Rescue, crash, and fire control services.
    (D) Movement and storage of aircraft.
    (E) Performance of minor maintenance.
    (F) Fuel or oil (AFM 67-1, vol 1, part three, chapter 1, Air Force 
Stock Fund and DPSC Assigned Item Procedures \4\).
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    \4\ See footnote 1 to Sec. 855.6.
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    (c) Inadvertent unauthorized landings. (1) The installation 
commander or a designated representative may determine a landing to be 
inadvertent if the aircraft operator:
    (i) Landed due to flight disorientation.
    (ii) Mistook the Air Force airfield for a civil airport.
    (2) Normal landing fees must be charged and an unauthorized landing 
fee may be assessed to compensate the Government for the added time, 
effort, and risk involved in the inadvertent landing. Only the 
unauthorized landing fee may be waived by the installation commander or 
a designated representative if, after interviewing the pilot-in-command 
and appropriate Government personnel, it is determined that flying 
safety was not significantly impaired. The pilot-in-command may appeal 
the imposition of an unauthorized landing fee for an inadvertent landing 
to the MAJCOM, FOA, or DRU whose decision will be final. A subsequent 
inadvertent landing will be processed as an intentional unauthorized 
landing.
    (d) Intentional unauthorized landings. (1) The installation 
commander may categorize an unauthorized landing as intentional when 
there is unequivocal evidence that the pilot deliberately:

[[Page 127]]

    (i) Landed without an approved DD Form 2401 on board the aircraft.
    (ii) Landed for a purpose not approved on the DD Form 2401.
    (iii) Operated an aircraft not of a model or registration number on 
the approved DD Form 2401.
    (iv) Did not request or obtain the required final approval from the 
installation commander or a designated representative at least 24 hours 
before aircraft arrival.
    (v) Did not obtain landing clearance from the air traffic control 
tower.
    (vi) Landed with an expired DD Form 2401.
    (vii) Obtained landing authorization through fraudulent methods, or
    (viii) Landed after having been denied a request to land from any 
Air Force authority, including the control tower.
    (2) Normal landing fees and an unauthorized landing fee must be 
charged. Intentional unauthorized landings increase reporting, 
processing, and staffing costs; therefore, the unauthorized landing fee 
for paragraph (d)(1)(i) through (d)(1)(vi) of this section will be 
increased by 100 percent. The unauthorized landing fee will be increased 
200 percent for paragraph (d)(1)(vii) and (d)(1)(viii) of this section.
    (3) Intentional unauthorized landings may be prosecuted as a 
criminal trespass, especially if a debarment letter has been issued. 
Repeated intentional unauthorized landings prejudice the user's FAA 
operating authority and jeopardize future use of Air Force airfields.



Sec. 855.15  Detaining an aircraft.

    (a) An installation commander in the United States, its territories, 
or its possessions may choose to detain an aircraft for an intentional 
unauthorized landing until:
    (1) The unauthorized landing has been reported to the FAA, HQ USAF/
XOOBC, and the appropriate US Attorney.
    (2) All applicable charges have been paid.
    (b) If the installation commander wishes to release the aircraft 
before the investigation is completed, he or she must obtain bond, 
promissory note, or other security for payment of the highest charge 
that may be assessed.
    (c) The pilot and passengers will not be detained longer than is 
necessary for identification, although they may be permitted to remain 
in a lounge or other waiting area on the base at their request for such 
period as the installation commander may determine (normally not to 
exceed close of business hours at the home office of the entity owning 
the aircraft, if the operator does not own the aircraft). No person, 
solely due to an intentional unauthorized landing, will be detained 
involuntarily after identification is complete without coordination from 
the appropriate US Attorney, the MAJCOM, FOA, or DRU, and HQ USAF/XOOBC.



Sec. 855.16  Parking and storage.

    The time that an aircraft spends on an installation is at the 
discretion of the installation commander or a designated representative 
but should be linked to the purpose of use authorized. Parking and 
storage may be permitted on a nonexclusive, temporary, or intermittent 
basis, when compatible with military requirements. At those locations 
where there are Air Force aero clubs, parking and storage privileges may 
be permitted in the area designated for aero club use without regard for 
the purpose of use authorized, if consistent with aero club policies. 
Any such permission may be revoked upon notice, based on military needs 
and the installation commander's discretion.



Sec. 855.17  Fees for landing, parking, and storage.

    (a) Landing, parking, and storage fees (Tables 3 and 4 to this part) 
are determined by aircraft maximum gross takeoff weight (MGTOW). All 
fees are normally due and collectable at the time of use of the Air 
Force airfield. DD Form 1131, Cash Collection Voucher, is used to 
deposit the fees with the base accounting and finance officer. In some 
instances, it may be necessary to bill the user for charges incurred.
    (b) Landing fees are not charged when the aircraft is operating in 
support of official Government business or for any purpose, the cost of 
which is subject to reimbursement by the US

[[Page 128]]

Government. Parking and Storage Fees (Table 4 to this part) are charged 
if an aircraft must remain beyond the period necessary to conduct 
official Government business and for all non-official Government 
business operations.



Sec. 855.18  Aviation fuel and oil purchases.

    When a user qualifies under the provisions of AFM 67-1, vol. 1, part 
three, chapter 1, Air Force Stock Fund and DPSC Assigned Item 
Procedures,\5\ purchase of Air Force fuel and oil may be made on a cash 
or credit basis. An application for credit authority can be filed by 
submitting an Authorized Credit Letter to SA-ALC/SFRL, 1014 Andrews 
Road, Building 1621, Kelly AFB TX 78241-5603.
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    \5\ See footnote 1 to Sec. 855.6.
---------------------------------------------------------------------------



Sec. 855.19  Supply and service charges.

    Supplies and services furnished to a user will be charged for as 
prescribed in AFM 67-1, volume 1, part one, chapter 10, section N, Basic 
Air Force Supply Procedures, and AFR 177-102, paragraph 28.24, 
Commercial Transactions at Base Level.\6\ A personal check with 
appropriate identification, cashier's check, money order, or cash are 
acceptable means of payment. Charges for handling foreign military sales 
cargo are prescribed in AFR 170-3, Financial Management and Accounting 
for Security Assistance and International Programs.\7\
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    \6\ See footnote 1 to Sec. 855.6.
    \7\ See footnote 1 to Sec. 855.6.
---------------------------------------------------------------------------



   Subpart C--Agreements for Civil Aircraft Use of Air Force Airfields



Sec. 855.20  Joint-use agreements.

    An agreement between the Air Force and a local Government agency is 
required before a community can establish a public airport on an Air 
Force airfield.
    (a) Joint use of an Air Force airfield will be considered only if 
there will be no cost to the Air Force and no compromise of mission 
capability, security, readiness, safety, or quality of life. Further, 
only proposals submitted by authorized representatives of local 
Government agencies eligible to sponsor a public airport will be given 
the comprehensive evaluation required to conclude a joint use agreement. 
All reviewing levels will consider and evaluate such requests on an 
individual basis.
    (b) Generally, the Air Force is willing to consider joint use at an 
airfield if it does not have pilot training, nuclear storage, or a 
primary mission that requires a high level of security. Civil operations 
must begin within 5 years of the effective date of an agreement. 
Operational considerations will be based on the premise that military 
aircraft will receive priority handling (except in emergencies), if 
traffic must be adjusted or resequenced. The Air Force normally will not 
consider personnel increases solely to support civil operations but, if 
accommodated, all costs must be fully reimbursed by the joint-use 
sponsor. The Air Force will not provide personnel to install, operate, 
maintain, alter, or relocate navigation equipment or aircraft arresting 
systems for the sole use of civil aviation. Changes in equipment or 
systems to support the civil operations must be funded by the joint-use 
sponsor. The Air Force must approve siting, design, and construction of 
the civil facilities.



Sec. 855.21  Procedures for sponsor.

    To initiate consideration for joint use of an Air Force airfield, a 
formal proposal must be submitted to the installation commander by a 
local Government agency eligible to sponsor a public airport. The 
proposal must include:
    (a) Type of operation.
    (b) Type and number of aircraft to be located on or operating at the 
airfield.
    (c) An estimate of the number of annual operations for the first 5 
years.



Sec. 855.22  Air Force procedures.

    (a) Upon receipt of a joint-use proposal, the installation 
commander, without precommitment or comment, will send the documents to 
the Air Force Representative (AFREP) at the Federal Aviation 
Administration (FAA) Regional Office within the geographical area where 
the installation is located. AFI 13-201, Air Force Airspace

[[Page 129]]

Management,\8\ lists the AFREPs and their addresses. The installation 
commander must provide an information copy of the proposal to HQ USAF/
XOOBC, 1480 Air Force Pentagon, Washington DC 20330-1480.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 855.6.
---------------------------------------------------------------------------

    (b) The AFREP provides comments to the installation commander on 
airspace, air traffic control, and other related areas, and informs 
local FAA personnel of the proposal for joint use.
    (c) The installation, the numbered Air Force, and the major command 
(MAJCOM) will then evaluate the proposal. The MAJCOM will send the 
comments and recommendations from all reviewing officials to HQ USAF/
XOOBC.
    (d) Factors considered in evaluating joint use include, but are not 
limited to:
    (1) Impact on current and programmed military activities at the 
installation.
    (2) Compatibility of proposed civil aviation operations with present 
and planned military operations.
    (3) Compatibility of communications systems.
    (4) Instrument capability of crew and aircraft.
    (5) Runway and taxiway configuration. (Installations with single 
runways normally will not be considered for joint use.)
    (6) Security. The possibility for sabotage, terrorism, and vandalism 
increases with joint use; therefore, joint use will not be considered:
    (i) If military and civil aircraft would be collocated in hangars or 
on ramps.
    (ii) If access to the civil aviation facilities would require 
routine transit through the base.
    (7) Fire, crash, and rescue requirements.
    (8) Availability of public airports to accommodate the current and 
future air transportation needs of the community through construction or 
expansion.
    (9) Availability of land for civil airport complex.
    Note: The majority of land required for a terminal and other support 
facilities must be located outside the installation perimeter or at a 
site that will allow maximum separation of military and civil 
activities. If the community does not already own the needed land, it 
must be acquired at no expense to the Air Force. The Air Force may make 
real property that is not presently needed, but not excess, available by 
lease under 10 U.S.C 2667. An application for lease of Air Force real 
property must be processed through the chain of command to the Air Force 
Real Estate Agency, 172 Luke Avenue, Suite 104, Building 5683, Bolling 
AFB DC 20332-5113, as prescribed in AFI 32-9003, Granting Temporary Use 
of Air Force Real Property \9\. All real property outleases require 
payment of fair market consideration and normally are processed through 
the Corps of Engineers. The General Services Administration must be 
contacted regarding availability of excess or surplus Federal real 
property and an application submitted through FAA for an airport use 
public benefit transfer under 49 U.S.C. Sec. 47151-47153.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 855.6.
---------------------------------------------------------------------------

    (10) Sponsor's resources to pay a proportionate share of costs for 
runway operation and maintenance and other jointly used facilities or 
otherwise provide compensation that is of direct benefit to the 
Government.
    (e) When the Air Force determines that joint use may be compatible 
with its defense mission, the environmental impact analysis process must 
be completed before a final decision can be made. The Air Force will act 
as lead agency for the preparation of the environmental analysis (32 CFR 
part 989, Environmental Impact Analysis Process). The local Government 
agency representatives, working in coordination with Air Force personnel 
at the installation and other concerned local or Federal officials, must 
identify the proposed action, develop conceptual alternatives, and 
provide planning, socioeconomic, and environmental information as 
specified by the appropriate MAJCOM and HQ USAF/CEVP. The information 
must be complete and accurate in order to serve as a basis for the 
preparation of the Air Force environmental documents. All costs 
associated with the environmental studies required to complete the 
environmental impact analysis process must be paid by the joint use 
sponsor. Information on environmental analysis requirements is available 
from HQ USAF/CEVP, 1260 Air Force Pentagon, Washington DC 20330-1260.

[[Page 130]]

    (f) HQ USAF/XOOBC can begin negotiating a joint-use agreement after 
the environmental impact analysis process is completed. The agreement 
must be concluded on behalf of the Air Force by SAF/MII as the approval 
authority for use of Air Force real property for periods exceeding 5 
years. The joint-use agreement will state the extent to which the 
provisions of subpart B of this part, Civil Aircraft Landing Permits, 
apply to civil aircraft operations.
    (1) Joint-use agreements are tailored to accommodate the needs of 
the community and minimize the impact on the defense mission. Although 
each agreement is unique, attachment 4 to this part provides basic terms 
that are frequently included in such agreements.
    (2) Agreements for joint use at Air Force airfields on foreign soil 
are subject to the requirements of AFI 51-701, Negotiating, Concluding, 
Reporting, and Maintaining International Agreements \10\.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 855.6.
---------------------------------------------------------------------------

    (g) HQ USAF/XOOBC and SAF/MII approval is required to amend existing 
joint use agreements. The evaluation and decision processes followed in 
concluding an initial joint-use proposal must be used to amend existing 
joint-use agreements.



Sec. 855.23  Other agreements.

    (a) Temporary use of Air Force runways occasionally is needed for 
extended periods when a local civil airport is unavailable or to 
accommodate special events or projects. Such use requires agreement 
between the Air Force and the local airport authority or other 
equivalent responsible entity.
    (b) The local proponent and Air Force personnel should draft and 
submit an agreement to the MAJCOM Director for Operations, or equivalent 
level, for review and comment. The agreement must address all 
responsibilities for handling aircraft, cargo, and passengers, and hold 
the Air Force harmless of all liabilities. The agreement will not exceed 
3 years. Although each agreement will be unique, attachment 5 of this 
part provides one example. The draft agreement, with all comments and 
recommendations, must be sent to HQ USAF/XOOBC for final approval.
      Table 1--Purpose of Use/Verification/Approval Authority/Fees

----------------------------------------------------------------------------------------------------------------
                                                                               Approval *
              Purpose of use                          Verification             authority            Fees
----------------------------------------------------------------------------------------------------------------
Contractor or subcontractor (A). A US or   Current Government contract                  1  No.
 foreign contractor or subcontractor,       numbers; the Air Force airfields
 operating corporate, personal, or leased   required for each contract; a
 aircraft in conjunction with fulfilling    brief description of the work to
 the terms of a government contract.        be performed; and the name,
                                            telephone number, and address of
                                            the government contracting
                                            officer must be provided on the
                                            DD Form 2401 or a continuation
                                            sheet.
Note: Potential contractors may not land
 at Air Force airfields to pursue or
 present an unsolicited proposal for
 procurement of government business. One
 time authorization can be provided when
 an authorized US Government
 representative verifies that the
 potential contractor has been
 specifically invited for a sales
 presentation or to discuss their
 product.
Demonstration (B). Aircraft, aircraft      Demonstration or display must be             1  No.
 with components installed, or aircraft     a contractual requirement or
 transporting components or equipment       presented at the request of an
 operating to demonstrate or display a      authorized US Government
 product to US Government representatives   representative. The name,
 who have procurement authority or          address, and telephone number of
 certification responsibilities.            the requesting government
 (Authority granted under this paragraph    representative or contracting
 does not include aerobatic                 officer and contract number must
 demonstrations.).                          be included on the DD Form 2401.
Aerial performance (BB). Aircraft          Approval of MAJCOM, FOA, or DRU              1  No.
 performing aerobatics and or fly-bys at    and FAA as specified in AFI 35-
 Air Force airfields.                       201, Community Relations.

[[Page 131]]

 
Active duty US military and other US       Social security number in block 1            1  No.
 uniformed service members with military    on DD Form 2401.
 identification cards (includes members
 of the US Public Health Service, Coast
 Guard, and National Oceanic and
 Atmospheric Administration) (C). Service
 members, operating their own aircraft,
 leased aircraft, or other available
 aircraft for official duty travel
 (temporary duty, permanent change of
 station, etc.) or for private, non
 revenue flights.
Reserve Forces (D). Members of the US      Endorsement from member's                    1  No.
 Reserve Forces (including Reserve          commander that validates
 Officer Training Corps and National        military status and requirement
 Guard) operating their own aircraft,       for use of Air Force airfields
 leased aircraft, or other available        listed on the DD Form 2401. The
 aircraft to fulfill their official duty    endorsement may be included on
 commitment at the installation where       the DD Form 2401 or provided
 their unit is assigned and other           separately by letter. When
 installations for temporary duty           appropriate, travel orders must
 assignments.                               be on board the aircraft.
Dependents of active duty US military      Identification card (DD Form                 1  No.
 personnel, other US uniformed service      1173) number or social security
 personnel, (CC), or US Reserve Forces      number, identification card
 personnel (DD). Dependents operating       expiration date, and a letter of
 their own aircraft, leased aircraft, or    endorsement from sponsor.
 other available aircraft in conjunction
 with activities related to entitlements
 as a dependent of a uniformed service
 member.
US Government civil service employees      Supervisor's endorsement in block            1  No.
 (E). Civilian employees of the US          4 of the DD Form 2401.
 Government operating their own aircraft,   Individual must have a copy of
 leased aircraft, or other available        current travel orders or other
 aircraft for official Government           official travel certification
 business travel.                           available for verification if
                                            requested by an airfield manager
                                            or a designated representative.
Retired US military members and other      Copy of retirement orders on file            1  No.
 retired US uniformed service members       with the approving authority.
 with a military identification card
 authorizing use of the commissary, base
 exchange, and or military medical
 facilities (G). Retired Service members,
 operating their own aircraft, leased
 aircraft, or other available aircraft in
 conjunction with activities related to
 retirement entitlements authorized by
 law or regulation.
Dependents of retired US military          Identification card (DD Form                 1  No.
 personnel and other retired US uniformed   1173) number or social security
 service personnel (GG). Dependents of      number, identification card
 retired Service members operating their    expiration date, sponsor's
 own aircraft, leased aircraft, or other    retirement orders, and letter of
 available aircraft in conjunction with     endorsement from sponsor.
 activities related to entitlements
 authorized by law or regulation as a
 dependent of a retired Service member.
Civil Air Patrol (CAP) (H). CAP members    Endorsement of the application by            1  No.
 operating personal or CAP aircraft for     HQ CAP-USAF/XOO, 105 South
 official CAP activities.                   Hansell Street, Maxwell AFB AL
                                            36112-6332.
Aero club members (I). Individuals         Membership validation by the aero            6  No.
 operating their own aircraft at the Air    club manager on the DD Form 2401.
 Force airfield where they hold active
 aero club membership.
Weather alternate (J). An Air Force        List of the destination civil                1  Yes
 airfield identified on a scheduled air     airports for which the alternate
 carrier's flight plan as an alternate      will be used and certification
 airport as prescribed by Federal           of scheduled air carrier status,
 Aviation Regulations (FARs) or             such as the US Department of
 equivalent foreign Government              Transportation Fitness
 regulations. The airfield can only be      Certificate.
 used if weather conditions develop while
 the aircraft is in flight that preclude
 landing at the original destination.
 Aircraft may not be dispatched from the
 point of departure to an Air Force
 airfield designated as an approved
 weather alternate.

[[Page 132]]

 
Note: Scheduled air carriers are defined
 at Attachment 1. Only those airfields
 identified on the list at Attachment 2
 are available for use as weather
 alternates. Airfields cannot be used as
 alternates for non-scheduled operations.
 Passengers and cargo may not be
 offloaded, except with the approval of
 the installation commander when there is
 no other reasonable alternative.
 Boarding new passengers and or loading
 new cargo is not authorized.
Air Mobility Command (AMC) contractor      International flights must have              3  No.
 charter (K). An air carrier transporting   an AMC Form 8, Civil Aircraft
 passengers or cargo under the terms of     Certificate, on board the
 an AMC contract. (Landing permits for      aircraft. Domestic flights must
 this purpose are processed by HQ AMC/      have either a Certificate of
 DOKA, 402 Scott Drive, Unit 3A1, Scott     QUICK-TRANS (Navy), a
 AFB IL 62225-5302.).                       Certificate of Courier Service
                                            Operations (AMC), or a
                                            Certificate of Intra-Alaska
                                            Operations (AMC) on board the
                                            aircraft.
CRAF alternate (KK). An Air Force          Participant in the CRAF program              2  Yes.
 airfield used as an alternate airport by   and authorized by contract.
 air carriers that have contracted to
 provide aircraft for the Civil Reserve
 Air Fleet (CRAF).
US Government contract or charter          The chartering agency and name,              1  No.
 operator (L). An air carrier               address, and telephone number of
 transporting passengers or cargo for a     the Government official
 US Government department or agency other   procuring the transportation
 than US military departments.              must be listed in block 4 of the
                                            DD Form 2401. An official
                                            government document, such as an
                                            SF 1169, US government
                                            Transportation Request, must be
                                            on board the aircraft to
                                            substantiate that the flight is
                                            operating for a US Government
                                            department or agency.
Contractor or subcontractor charter (M).   The contractor or subcontractor              1  No.
 Aircraft chartered by a US or foreign      must provide written validation
 contractor or subcontractor to transport   to the decision authority that
 personnel or cargo in support of a         the charter operator will be
 current government contract.               operating on their behalf in
                                            fulfilling the terms of a
                                            government contract, to include
                                            current government contract
                                            numbers and contract titles or
                                            brief description of the work to
                                            be performed; the Air Force
                                            airfields required for use, and
                                            the name, telephone number, and
                                            address of the government
                                            contracting officer.
DOD charter (N). Aircraft transporting     Military Air Transportation                  1  No.
 passengers or cargo within the United      Agreement (MATA) approved by the
 States for the military departments to     Military Transportation
 accommodate transportation requirements    Management Command (MTMC) (this
 that do not exceed 90 days.                includes survey and approval by
                                            HQ AMC/DOB, 402 Scott Drive,
                                            Suite 132, Scott AFB IL 62225-
                                            5363). An SF 1169 or SF 1103, US
                                            Government Bill of Lading, must
                                            be on board the aircraft to
                                            validate the operation is for
                                            the military departments as
                                            specified in AFJI 24-211,
                                            Defense Traffic Management
                                            Regulation. (Passenger charters
                                            arranged by the MTMC are
                                            assigned a commercial air
                                            movement (CAM) or civil air
                                            freight movement number each
                                            time a trip is awarded.
                                            Installations will normally be
                                            notified by message at least 24
                                            hours before a pending CAM.)
Media (F). Aircraft transporting           Except for White House Press                 2  Note 1.
 representatives of the media for the       Corps charters, concurrence of
 purpose of gathering information about a   the installation commander, base
 US Government operation or event.          operations officer, and public
 (Except for the White House Press Corps,   affairs officer.
 use will be considered on a case-by-case
 basis. For example, authorization is
 warranted if other forms of
 transportation preclude meeting a
 production deadline or such use is in
 the best interest of the US Government.
 DD Forms 2400 and 2402 should be on file
 with HQ USAF/XOOBC to ensure prompt
 telephone approval for validated
 requests.).
Commercial aircraft certification testing  Application must cite the                    2  Yes.
 required by the FARs that only involves    applicable FAR, describe the
 use of normal flight facilities (P).       test, and include the name and
                                            telephone number of the FAA
                                            certification officer.

[[Page 133]]

 
Commercial development testing at Air      Statement of Capability Number or            1  Yes.
 Force flight test facilities (Q) as        Cooperative Research and
 described in AFI 99-101, Development       Development Agreement Number,
 Test & Evaluation.                         and name and telephone number of
                                            the Air Force official who
                                            approved support of the test
                                            project.
Commercial charter operations (R).         Unavailability of:                           5  Yes.
 Aircraft transporting passengers or       a. a suitable civil airport,.....
 cargo for hire for other than US          b. aircraft that could operate
 military departments.                      into the local civil airport, or.
                                           c. other modes of transportation
                                            that would reasonably satisfy
                                            the transportation requirement..
Note: Federal Aviation Administration
 (FAA) certification is required for
 airfields used by carriers certified
 under FAR, Part 121 (passenger aircraft
 that exceed 30 passenger seats). HQ USAF/
 XOOBC will request that FAA issue an
 airport operating certificate under FAR,
 Part 139, as necessary. Exceptions to
 the requirement for certification are
 Air Force airfields used for:
  a. Emergencies.
  b. Weather alternates.
  c. Air taxi operations under FAR, Part
   135. Note: This is currently under
   review. Anticipate a change that will
   eliminate the air taxi exemption.
  d. Air carrier operations in support of
   contract flights exclusively for the
   US military departments.
Commercial air crew training flights (S).  Memorandum of Understanding                  2  Yes.
 Aircraft operated by commercial air        approved by HQ USAF/XOOBC that
 carrier crews for the purpose of           establishes conditions and
 maintaining required proficiency.          responsibilities in conducting
                                            the training flights.
Private, non revenue producing flights     The verification will vary with              4  Note 2.
 (T). Aircraft operating for a variety of   the purpose for use. For
 reasons, such as transporting              example, when use is requested
 individuals to meet with Government        in conjunction with events such
 representatives or participate in          as meetings or ceremonies, the
 Government sponsored ceremonies and        applicant must provide the name
 similar events. At specified locations,    and telephone number of the
 the purpose of use may be to gain access   Government project officer.
 to collocated private sector facilities
 as authorized by lease, agreement, or
 contract.
Provisional airfield (U). An Air Force     Memorandum of Understanding,                 2  Yes.
 airfield used by civil aircraft when the   Letter of Agreement, or lease
 local civil airport is temporarily         that establishes
 unavailable, or by a commercial air        responsibilities and conditions
 carrier operating at a specific remote     for use.
 location to provide commercial air
 transportation for local military
 members under the provisions of a lease
 or other legal instrument.
Foreign government charter (V). Aircraft   Application must include name and            2  Note 3.
 chartered by a foreign government to       telephone number of the foreign
 transport passengers or cargo.             government representative
                                            responsible for handling the
                                            charter arrangements.
Flights transporting foreign military      FMS case number, requisition                 2  Note 3.
 sales (FMS) material (W). (Hazardous,      numbers, delivery term code and
 oversized, or classified cargo only.)      information as specified below:
                                           a. Description of cargo
                                            (nomenclature and or proper
                                            shipping name). The description
                                            of hazardous cargo must include
                                            the Department of Transportation
                                            exemption number, hazard class,
                                            number of pieces, and net
                                            explosive weight.
                                           b. Name, address, and telephone
                                            number of individual at Air
                                            Force base that is coordinating
                                            cargo handling and or other
                                            required terminal services.

[[Page 134]]

 
                                           c. Cargo to be loaded or off
                                            loaded must be equipped with
                                            sufficient cargo pallets and or
                                            tiedown materials to facilitate
                                            handling. Compatible 463L
                                            pallets and nets will be
                                            exchanged on a one-for-one basis
                                            for serviceable units.
                                            Nonstandard pallets and nets
                                            cannot be exchanged; however,
                                            they will be used to buildup
                                            cargo loads after arrival of the
                                            aircraft. Aircraft arriving
                                            without sufficient cargo loading
                                            and tiedown devices must be
                                            floor loaded and the aircraft
                                            crew will be responsible for
                                            purchasing the necessary ropes,
                                            chains, and so forth.
                                           d. US Government FMS case
                                            management agency to which costs
                                            for services rendered are
                                            chargeable.
                                           e. Name, address, and telephone
                                            number of freight forwarder.
                                           f. Name, address, and telephone
                                            number of shipper.
Certified flight record attempts (X).      Documentation that will validate             2  Yes.
 Aircraft operating to establish a new      National Aeronautic Association
 aviation record.                           or Federation Aeronautique
                                            Internationale sanction of the
                                            record attempt.
Political candidates (Y). (For security    The Secret Service must confirm              2  Yes.
 reasons only) Aircraft either owned or     that use has been requested in
 chartered explicitly for a Presidential    support of its security
 or Vice Presidential candidate,            responsibilities.
 including not more than one accompanying
 overflow aircraft for the candidate's
 staff and press corps. Candidate must be
 a Presidential or Vice Presidential
 candidate who is being furnished
 protection by the US Secret Service.
 Aircraft clearance is predicated on the
 Presidential or Vice Presidential
 candidate being aboard one of the
 aircraft (either on arrival or
 departure). Normal landing fees will be
 charged. To avoid conflict with US
 statutes and Air Force operational
 requirements, and to accommodate
 expeditious handling of aircraft and
 passengers, the installation commander
 will:
  a. Provide minimum official welcoming
   party.
  b. Not provide special facilities.
  c. Not permit political rallies or
   speeches on the installation.
  d. Not provide official transportation
   to unauthorized personnel, such as the
   press or local populace.
Aircraft either owned or personally        Use by other than the President              2  No.
 chartered for transportation of the        or Vice President must be for
 President, Vice President, a past          official government business.
 President of the United States, the head   All requests will be coordinated
 of any US Federal department or agency,    with the Office of Legislative
 or a member of the Congress (Z).           Liaison (SAF/LL) as prescribed
                                            in AFI 90-401, Air Force
                                            Relations with Congress.
----------------------------------------------------------------------------------------------------------------
* Approving Authority:
1=Can be approved at all levels.
2=HQ USAF/XOOBC.
3=HQ AMC/DOKA.
4=Except as specifically delegated in paragraphs 2.4.2 and 2.4.2.3, must be approved by HQ USAF/XOOBC.
5=Except as specifically delegated in paragraph 2.4.2.1, must be approved by HQ USAF/XOOBC.
6=Policy concerning private aircraft use of aero club facilities varies from base to base, primarily due to
  space limitations and military mission requirements. Therefore, applications for use of aero club facilities
  must be processed at base level.
Note 1: Landing fees are charged for White House Press Corps flights. Landing fees are not charged if the Air
  Force has invited media coverage of specific events.
Note 2: Landing fees are charged if flight is not operating in support of official Government business.
Note 3: Landing fees are charged unless US Government charters have reciprocal privileges in the foreign
  country.

            Table 2--Aircraft Liability Coverage Requirements

----------------------------------------------------------------------------------------------------------------
   Aircraft maximum gross takeoff                                  Bodily      Property
           weight  (MGTOW)                  Coverage for           injury       damage           Passenger
----------------------------------------------------------------------------------------------------------------
12,500 Pounds and Under.............  Each Person.............     $100,000  ...........  $100,000.

[[Page 135]]

 
                                      Each Accident...........      300,000      100,000  100,000 multiplied by
                                                                                           the number of
                                                                                           passenger seats.
More than 12,500 Pounds.............  Each Person.............      100,000  ...........  100,000.
                                      Each Accident...........    1,000,000    1,000,000  100,000 multiplied by
                                                                                           75% multiplied by the
                                                                                           number of passenger
                                                                                           seats.
----------------------------------------------------------------------------------------------------------------

                          Table 3--Landing Fees

----------------------------------------------------------------------------------------------------------------
                                                                                             United
                                                                                             States,
    Aircraft Maximum Gross        Normal fee    Unauthorized  Intentional fee   Minimum   Territories,  Overseas
    Takeoff Weight (MGTOW)                           fee                          fee          and
                                                                                           Possessions
----------------------------------------------------------------------------------------------------------------
                               $1.50 per 1,000  ............  ...............     $20.00  X
                                lbs MGTOW or
                                fraction
                                thereof.
                               $1.70 per 1,000  ............  ...............      25.00  ............  X
                                lbs MGTOW or
                                fraction
                                thereof.
Up to and including 12,500     ...............      $100.00   ...............  .........  X             X
 lbs.
12,501 to 40,000 lbs.........  ...............       300.00   ...............  .........  X             X
Over 40,000 lbs..............  ...............       600.00   ...............  .........  X             X
                               ...............  ............  Increase         .........  X             X
                                                               unauthorized
                                                               fee by 100% or
                                                               200%.
----------------------------------------------------------------------------------------------------------------

                    Table 4--Parking and Storage Fees

----------------------------------------------------------------------------------------------------------------
Fee per aircraft for each 24-hour   Minimum
          period or less              fee                 Charge begins                   Ramp         Hangar
----------------------------------------------------------------------------------------------------------------
$1.00 per 100,000 lbs MGTOW or        $20.00  6 hours after landing................  X              ............
 fraction thereof.
$2.00 per 100,000 lbs MGTOW or         20.00  Immediately..........................  .............  X
 fraction thereof.
----------------------------------------------------------------------------------------------------------------

    Attachment 1 to Part 855--Glossary of References, Abbreviations, 
                           Acronyms, and Terms

                          Section A--References

AFPD 10-10, Civil Aircraft Use of United States Air Force Airfields
AFI 10-1001, Civil Aircraft Landing Permits
AFI 13-201, Air Force Airspace Management
AFI 32-7061(32 CFR part 989), Environmental Impact Analysis Process
AFI 32-9003, Granting Temporary Use of Air Force Real Property
AFI 34-117, Air Force Aero Club Program
AFI 35-201, Community Relations
AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining 
          International Agreements
AFI 84-103, Museum System
AFI 90-401, Air Force Relations with Congress
AFI 99-101, Development Test and Evaluation
AFJI 24-211, Defense Traffic Management Regulation
AFM
67-1, vol 1, part 1, Basic Air Force Supply Procedures
AFM 67-1, vol 1, part 3, Air Force Stock Fund and DPSC Assigned Item 
          Procedures
AFMAN 3-132, Air Force Aero Club Operations
AFR 170-3, Financial Management and Accounting for Security Assistance 
          and International Programs
AFR 177-102, Commercial Transactions at Base Level
FAR, Part 121, Certification and Operation: Domestic, Flag, and 
          Supplemental Air Carriers and Commercial Operations of Large 
          Aircraft
FAR, Part 135, Air Taxi Operators and Commercial Operators of Small 
          Aircraft
FAR, Part 139, Certification and Operations: Land Airports Serving 
          Certain Air Carriers

                  Section B--Abbreviations and Acronyms

------------------------------------------------------------------------
      Abbreviations and acronyms                  Definitions
------------------------------------------------------------------------
AFI                                    Air Force Instruction.

[[Page 136]]

 
AFJI                                   Air Force Joint Instruction.
AFM                                    Air Force Manual.
AFMAN                                  Air Force Manual.
AFPD                                   Air Force Policy Directive.
AFR                                    Air Force Regulation.
AFREP                                  Air Force Representative.
AMC                                    Air Mobility Command.
AOG                                    Air Operations Group.
CAM                                    Commercial Air Movement.
CAP                                    Civil Air Patrol.
CRAF                                   Civil Reserve Air Fleet.
DPSC                                   Defense Personnel Support Center.
DRU                                    Direct Reporting Unit.
FAA                                    Federal Aviation Administration.
FAR                                    Federal Aviation Regulation.
FMS                                    Foreign Military Sales.
FOA                                    Field Operating Agency.
FSDO                                   Flight Standards District Office.
HQ AMC/DOKA                            Headquarters Air Mobility
                                        Command, Contract Airlift,
                                        Directorate of Operations and
                                        Transportation.
HQ USAF/CEVP                           Headquarters United States Air
                                        Force, Environmental Planning
                                        Division, Directorate of
                                        Environment.
HQ USAF/XOOBC                          Headquarters United States Air
                                        Force, Civil Aviation, Bases and
                                        Units Division, Directorate of
                                        Operations.
HQ USAF/XOOO                           Headquarters United States Air
                                        Force, Operations Group,
                                        Directorate of Operations.
MAJCOM                                 Major Command.
MATA                                   Military Air Transportation
                                        Agreement.
MGTOW                                  Maximum Gross Takeoff Weight.
MTMC                                   Military Traffic Management
                                        Command.
SAF/LL                                 Secretary of the Air Force,
                                        Office of Legislative Liaison.
SAF/MII                                Secretary of the Air Force,
                                        Deputy Assistant Secretary of
                                        the Air Force (Installations).
SAF/PAC                                Secretary of the Air Force,
                                        Office of Public Affairs,
                                        Directorate for Community
                                        Relations.
US                                     United States.
USDAO                                  United States Defense Attache
                                        Office.
------------------------------------------------------------------------

                            Section C--Terms

    Aircraft. Any contrivance now known or hereafter invented, used, or 
designated for navigation of or flight in navigable airspace as defined 
in the Federal Aviation Act.
    Airfield. An area prepared for the accommodation (including any 
buildings, installations, and equipment), landing, and take-off of 
aircraft.
    Authorized Credit Letter. A letter of agreement that qualified 
operators must file with the Air Force to purchase Air Force aviation 
fuel and oil on a credit basis under the provisions of AFM 67-1, vol 1, 
part three, chapter 1, Air Force Stock Fund and DPSC Assigned Item 
Procedures.
    Civil Aircraft. Any United States or foreign-registered aircraft 
owned by non-Governmental entities, and foreign Government-owned 
aircraft that are operated for commercial purposes.
    Civil Aviation. All civil aircraft of any national registry, 
including:
    Commercial Aviation. Civil aircraft that transport passengers or 
cargo for hire.
    General Aviation. Civil aircraft that do not transport passengers or 
cargo for hire.
    Civil Reserve Air Fleet (CRAF). US registered aircraft, certificated 
under FAR Part 121, obligated by contract to provide aircraft and crews 
to the Department of Defense during contingencies or war.
    DD Form 2400, Civil Aircraft Certificate of Insurance. A certificate 
that shows the amount of third-party liability insurance carried by the 
user and assures the United States Government of advance notice if 
changes in coverage occur.
    DD Form 2401, Civil Aircraft Landing Permit. A license which, when 
validated by an Air Force approving authority, authorizes the civil 
aircraft owner or operator to use Air Force airfields.
    DD Form 2402, Civil Aircraft Hold Harmless Agreement. An agreement, 
completed by the user, which releases the United States Government from 
all liabilities incurred in connection with civil aircraft use of Air 
Force airfields.
    Government Aircraft. Aircraft owned, operated, or controlled for 
exclusive, long-term use by any department or agency of either the 
United States or a foreign Government; and aircraft owned by any United 
States State, County, Municipality or other political subdivision; or 
any aircraft for which a Government has the liability responsibility. In 
the context of this instruction, it includes foreign registered 
aircraft, which are normally commercially operated, that have been 
wholly chartered for use by foreign Government heads of State for 
official State visits.
    Government Furnished or Bailed Aircraft. US Government-owned 
aircraft provided to a Government contractor for use in conjunction with 
a specific contractual requirement.
    Installation Commander. The individual with ultimate responsibility 
for operating the airfield and for base operations (normally a wing or 
group commander), as determined by the MAJCOM.
    Joint-Use Agreement. An agreement between the Air Force and a local 
Government agency that establishes a public airport on an Air Force 
airfield.
    Loaned Aircraft. US Government-owned aircraft made available for use 
by another US Government agency. This does not include aircraft leased 
or loaned to non-Governmental entities. Such aircraft will be considered 
as civil aircraft for purposes of this instruction.
    Military Aircraft. Aircraft used exclusively in the military 
services of the US or a foreign Government and bearing appropriate 
military and national markings or carrying appropriate identification.

[[Page 137]]

    Official Government Business. Activities that support or serve the 
needs of US Federal agencies located at or in the immediate vicinity of 
an Air Force installation, including nonappropriated fund entities. For 
elected or appointed Federal, State, and local officeholders, official 
business is activity performed in fulfilling duties as a public 
official.
    Other Agreement. An agreement between the Air Force and a local 
Government agency for temporary use of an Air Force runway when a local 
civil airport is unavailable, or to accommodate a special event or 
project.
    Scheduled Air Carrier. An air carrier that holds a scheduled air 
carrier certificate and provides scheduled service year round between 
two or more points.
    Unauthorized Landing. A landing at an Air Force airfield by a civil 
aircraft without prior authority (approved DD Form 2401 and 24 hours 
prior notice).
    User. The person, corporation, or other responsible entity operating 
civil aircraft at Air Force airfields.

            Attachment 2 to Part 855--Weather Alternate List

ALTUS AFB OK
ANDERSEN AFB GUAM
CANNON AFB NM
DOBBINS AFB GA
DYESS AFB TX
EARECKSON AFS AK *
---------------------------------------------------------------------------

    * Formerly Shemya AFB.
---------------------------------------------------------------------------

EGLIN AFB FL
EIELSON AFB AK
ELLSWORTH AFB SD
ELMENDORF AFB AK
FAIRCHILD AFB WA
GRAND FORKS AFB ND
HILL AFB UT
HOWARD AFB PA
KADENA AB OKINAWA
KELLY AFB TX
KUNSAN AB KOREA
LANGLEY AFB VA
LAUGHLIN AFB TX
MALMSTROM AFB MT
McCHORD AFB WA
McCONNELL AFB KS
MINOT AFB ND
MT HOME AFB ID
NELLIS AFB NV
OFFUTT AFB NE
OSAN AB KOREA
PLANT 42, PALMDALE CA
TRAVIS AFB CA
TYNDALL AFB FL
YOKOTA AB JAPAN

    Attachment 3 to Part 855--Landing Permit Application Instructions

    A3.1. DD Form 2400, Civil Aircraft Certificate of Insurance: The 
insurance company or its authorized agent must complete and sign the DD 
Form 2400. Corrections to the form made using a different typewriter, 
pen, or whiteout must be initialed by the signatory. THE FORM CANNOT BE 
COMPLETED BY THE AIRCRAFT OWNER OR OPERATOR. Upon expiration, the DD 
Form 2400 must be resubmitted along with DD Form 2401 for continued use 
of Air Force airfields. The DD Form 2400 may be submitted to the 
decision authority by either the user or insurer. (Approved by the 
Office of Management and Budget under control number 0701-0050).
    A3.1.1. Block 1, Date Issued. The date the DD Form 2400 is completed 
by the signatory.
    A3.1.2. Block 2a and 2b, Insurer Name, Address. The name and address 
of the insurance company.
    A3.1.3. Block 3a and 3b. Insured Name, Address. The name and address 
of the aircraft owner and or operator. (The name of the user must be the 
same on all the forms.)
    A3.1.4. Block 4a, Policy Number(s). The policy number must be 
provided. Binder numbers or other assigned numbers will not be accepted 
in lieu of the policy number.
    A3.1.5. Block 4b, Effective Date. The first day of current insurance 
coverage.
    A3.1.6. Block 4c, Expiration Date. The last day of current insurance 
coverage. The DD Form 2400 is valid until one day before the insurance 
expiration date. A DD Form 2400 with the statement ``until canceled,'' 
in lieu of a specific expiration date, is valid for two years from the 
issue date.
    A3.1.7. Block 5, Aircraft Liability Coverage. The amount of split 
limit coverage. All boxes in block 5 must be completed to specify the 
coverage for: each person (top line, left to right) outside the aircraft 
(bodily injury) and each passenger; and the total coverage per accident 
(second line, left to right) for: persons outside the aircraft (bodily 
injury), property damage, and passengers. IF BLOCK 5 IS USED, BLOCK 6 
SHOULD NOT BE USED. All coverages must be stated in US dollars. ALL 
SEATS THAT CAN BE USED FOR PASSENGERS MUST BE INSURED. See Table 2 for 
required minimum coverage.
    A3.1.8. Block 6, Single Limit. The maximum amount of coverage per 
accident. IF BLOCK 6 IS USED, BLOCK 5 SHOULD NOT BE USED. The minimum 
coverage required for a combined single limit is determined by adding 
the minimums specified in the ``each accident'' line of Table 2. All 
coverages must be stated in US dollars. ALL SEATS THAT CAN BE USED FOR 
PASSENGERS MUST BE INSURED.
    A3.1.9. Block 7, Excess Liability. The amount of coverage which 
exceeds primary

[[Page 138]]

coverage. All coverages must be stated in US dollars.
    A3.1.10. Block 8, Provisions of Amendments or Endorsements of Listed 
Policy(ies). Any modification of this block by the insurer or insured 
invalidates the DD Form 2400.
    A3.1.11. Block 9a, Typed Name of Insurer's Authorized 
Representative. Individual must be an employee of the insurance company, 
an agent of the insurance company, or an employee of an insurance 
broker.
    A3.1.12. Block 9b, Signature. The form must be signed in blue ink so 
that hand scribed, original signatures are easy to identify. Signature 
stamps or any type of facsimile signature cannot be accepted.
    A3.1.13. Block 9c, Title. Self-explanatory.
    A3.1.14. Block 9d, Telephone Number. Self-explanatory.
    A3.1.15. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS 
REQUIRED.
    A3.2. DD Form 2401, Civil Aircraft Landing Permit. A separate DD 
Form 2401 must be submitted for each purpose of use (Table 1). (Approved 
by the Office of Management and Budget under control number 0701-0050).
    A3.2.1. Block 1a. The name of the owner or operator. (The name of 
the user must be the same on all the forms.)
    A3.2.2. Block 1b. This block should only be completed if the 
applicant is a subsidiary, division, etc, of another company.
    A3.2.3. Block 1c. Business or home address, whichever is applicable, 
of applicant.
    A3.2.4. Block 2. List the airfields where the aircraft will be 
operating. The statement ``Any US Air Force Installation Worldwide'' is 
acceptable for users performing AMC and White House Press Corps 
charters. ``All Air Force airfields in the CONUS'' is acceptable, if 
warranted by official Government business, for all users.
    A3.2.5. Block 3. Self-explanatory. (Users will not necessarily be 
denied landing rights if pilots are not instrument rated and current.)
    A3.2.6. Block 4. Provide a brief explanation of purpose for use. The 
purposes normally associated with use of Air Force airfields are listed 
in Table 1. If use for other purposes is requested, it may be approved 
if warranted by unique circumstances. (The verification specified for 
each purpose of use must be included with the application.)
    A3.2.7. Block 5. EXCEPT AS NOTED FOR BLOCK 5C, ALL ITEMS MUST BE 
COMPLETED.
    A3.2.8. Block 5a and Block 5b. Self-explanatory.
    A3.2.9. Block 5c. If the DD Form 2400, Certificate of Insurance, 
indicates coverage for ``any aircraft of the listed model owned and or 
operated,'' the same statement can be used in block 5c in lieu of 
specific registration numbers.
    A3.2.10. Block 5d. The capacity provided must reflect only the 
number of crew required to operate the aircraft. The remaining seats are 
considered passenger seats.
    A3.2.11. Block 5e. Self-explanatory.
    A3.2.12. Block 5d. A two-way radio is required. Landing rights will 
not necessarily be denied for lack of strobe lights, a transponder, or 
IFR capabilities.
    A3.2.13. Block 6a. Self-explanatory.
    A3.2.14. Block 6b. If the applicant is an individual, this block 
should not be completed.
    A3.2.15. Block 6c. This block should contain a daytime telephone 
number.
    A3.2.16. Block 6d. The form must be signed in blue ink so that hand 
scribed, original signatures are easy to identify. Signature stamps or 
any type of facsimile signature cannot be accepted.
    A3.2.17. Block 6e. Self-explanatory.
    A3.2.18. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS 
REQUIRED.
    BLOCKS 7A THROUGH 14C ARE NOT COMPLETED BY THE APPLICANT.
    A3.2.19. Blocks 7a and 7b. The expiration date of a permit is 
determined by the insurance expiration date or the purpose of use. For 
example, the dates of an air show will determine the expiration date of 
a permit approved for participation in the air show. If the insurance 
expiration is used to determine the permit expiration date, the landing 
permit will expire one day before the insurance expiration date shown on 
the DD Form 2400, or 2 years from the date the permit is issued when the 
insurance expiration date either exceeds 2 years or is indefinite (for 
example, ``until canceled'').
    A3.2.20. APPROVED PERMITS CANNOT BE CHANGED WITHOUT THE CONSENT OF 
THE APPROVING AUTHORITY.
    A3.2.21. DD FORMS 2400 AND 2401 MUST BE RESUBMITTED TO RENEW A 
LANDING PERMIT. (Corporations must resubmit the DD Form 2402 every five 
years.)
    A3.3. DD Form 2402, Civil Aircraft Hold Harmless Agreement. A form 
submitted and accepted by an approving authority for an individual 
remains valid and need not be resubmitted to the same approving 
authority, unless canceled for cause. Forms submitted by companies, 
organizations, associations, etc, must be resubmitted at least every 
five years. (Approved by the Office of Management and Budget under 
control number 0701-0050).
    A3.3.1. Block 2a(1). This block should contain the user's name if 
the applicant is a company. If the hold harmless agreement is intended 
to cover other entities of a parent company, their names must also be 
included in this block.
    A3.3.2. Block 2a(2). This block should contain the user's address if 
the applicant is a company.

[[Page 139]]

    A3.3.3. Block 2b(1). This block should contain the name of the 
individual applying for a landing permit or the name of a corporate 
officer that is authorized to legally bind the corporation from 
litigation against the Air Force.
    A3.3.4. Block 2b(2). This block should contain the address of the 
individual applying for a landing permit. A company address is only 
required if it is different from the address in block 2a(2).
    A3.3.5. Block 2b(3). The form must be signed in blue ink so that 
hand scribed, original signatures are easy to identify. Signature stamps 
or any type of facsimile signature cannot be accepted.
    A3.3.6. Block 2b(4). This block should only be completed when the 
applicant is a company, organization, association, etc.
    A3.3.7. Block 3a(1). If the applicant is a company, organization, 
association, etc, the form must be completed and signed by the corporate 
secretary or a second corporate officer (other than the officer 
executing DD Form 2402) to certify the signature of the first officer. 
As necessary, the US Air Force also may require that the form be 
authenticated by an appropriately designated third official.
    A3.3.8. Block 3a(2). The form must be signed in blue ink so that 
hand scribed, original signatures are easy to identify. Signature stamps 
or any type of facsimile signature cannot be accepted.
    A3.3.9. Block 3a(3). Self-explanatory.
    A3.3.10. Block 4. Self-explanatory.

          Attachment 4 to Part 855--Sample Joint-Use Agreement

Joint-Use Agreement Between an Airport Sponsor and the United States Air 
                                  Force

    This Joint Use Agreement is made and entered into this -------- day 
of -------- 19----, by and between the Secretary of the Air Force, for 
and on behalf of the United States of America (``Air Force'') and an 
airport sponsor (``Sponsor'') a public body eligible to sponsor a public 
airport.
    WHEREAS, the Air Force owns and operates the runways and associated 
flight facilities (collectively ``flying facilities'') located at 
Warbucks Air Force Base, USA (``WAFB''); and
    WHEREAS, Sponsor desires to use the flying facilities at WAFB to 
permit operations by general aviation aircraft and commercial air 
carriers (scheduled and nonscheduled) jointly with military aircraft; 
and
    WHEREAS, the Air Force considers that this Agreement will be in the 
public interest, and is agreeable to joint use of the flying facilities 
at WAFB; and
    WHEREAS, this Agreement neither addresses nor commits any Air Force 
real property or other facilities that may be required for exclusive use 
by Sponsor to support either present or future civil aviation operations 
and activities in connection with joint use; and
    WHEREAS, the real property and other facilities needed to support 
civil aviation operations are either already available to or will be 
diligently pursued by Sponsor;
    NOW, THEREFORE, it is agreed:

                              1. Joint Use

    a. The Air Force hereby authorizes Sponsor to permit aircraft 
equipped with two-way radios capable of communicating with the WAFB 
Control Tower to use the flying facilities at WAFB, subject to the terms 
and conditions set forth in this Agreement and those Federal Aviation 
Regulations (FAR) applicable to civil aircraft operations. Civil 
aircraft operations are limited to 20,000 per calendar year. An 
operation is a landing or a takeoff. Civil aircraft using the flying 
facilities of WAFB on official Government business as provided in Air 
Force Instruction (AFI) 10-1001, Civil Aircraft Landing Permits, are not 
subject to this Agreement.
    b. Aircraft using the flying facilities of WAFB under the authority 
granted to Sponsor by this Agreement shall be entitled to use those for 
landings, takeoffs, and movement of aircraft and will normally park only 
in the area made available to Sponsor and designated by them for that 
purpose.
    c. Government aircraft taking off and landing at WAFB will have 
priority over all civil aircraft at all times.
    d. All ground and air movements of civil aircraft using the flying 
facilities of WAFB under this Agreement, and movements of all other 
vehicles across Air Force taxiways, will be controlled by the WAFB 
Control Tower. Civil aircraft activity will coincide with the WAFB 
Control Tower hours of operation. Any additional hours of the WAFB 
Control Tower or other essential airfield management, or operational 
requirements beyond those needed by the Air Force, shall be arranged and 
funded (or reimbursed) by Sponsor. These charges, if any, shall be in 
addition to the annual charge in paragraph 2 and payable not less 
frequently than quarterly.
    e. No civil aircraft may use the flying facilities for training.
    f. Air Force-owned airfield pavements made available for use under 
this Agreement shall be for use on an ``as is, where is'' basis. The Air 
Force will be responsible for snow removal only as required for 
Government mission accomplishment.
    g. Dust or any other erosion or nuisance that is created by, or 
arises out of, activities or operations by civil aircraft authorized use 
of the flying facilities under this Agreement will be corrected by 
Sponsor at no expense to the Air Force, using standard engineering 
methods and procedures.

[[Page 140]]

    h. All phases of planning and construction of new runways and 
primary taxiways on Sponsor property must be coordinated with the WAFB 
Base Civil Engineer. Those intended to be jointly used by Air Force 
aircraft will be designed to support the type of military aircraft 
assigned to or commonly transient through WAFB.
    i. Coordination with the WAFB Base Civil Engineer is required for 
planning and construction of new structures or exterior alteration of 
existing structures that are owned or leased by Sponsor.
    j. Sponsor shall comply with the procedural and substantive 
requirements established by the Air Force, and Federal, State, 
interstate, and local laws, for the flying facilities of WAFB and any 
runway and flight facilities on Sponsor property with respect to the 
control of air and water pollution; noise; hazardous and solid waste 
management and disposal; and hazardous materials management.
    k. Sponsor shall implement civil aircraft noise mitigation plans and 
controls at no expense to and as directed by the Air Force, pursuant to 
the requirements of the WAFB Air Installation Compatible Use Zone 
(AICUZ) study; the FAA Part 150 study; and environmental impact 
statements and environmental assessments, including supplements, 
applicable to aircraft operations at WAFB.
    l. Sponsor shall comply, at no expense to the Air Force, with all 
applicable FAA security measures and procedures as described in the 
Airport Security Program for WAFB.
    m. Sponsor shall not post any notices or erect any billboards or 
signs, nor authorize the posting of any notices or the erection of any 
billboards or signs at the airfield of any nature whatsoever, other than 
identification signs attached to buildings, without prior written 
approval from the WAFB Base Civil Engineer.
    n. Sponsor shall neither transfer nor assign this Agreement without 
the prior written consent of the Air Force.

                               2. Payment

    a. For the purpose of reimbursing the Air Force for Sponsor's share 
of the cost of maintaining and operating the flying facilities of WAFB 
as provided in this Agreement, Sponsor shall pay, with respect to civil 
aircraft authorized to use those facilities under this Agreement, the 
sum of (specify sum) annually. Payment shall be made quarterly, in equal 
installments.
    b. All payments due pursuant to this Agreement shall be payable to 
the order of the Treasurer of the United States of America, and shall be 
made to the Accounting and Finance Officer, WAFB, within thirty (30) 
days after each quarter. Quarters are deemed to end on December 31, 
March 31, June 30, and September 30. Payment shall be made promptly when 
due, without any deduction or setoff. Interest at the rate prescribed by 
the Secretary of the Treasury of the United States shall be due and 
payable on any payment required to be made under this Agreement that is 
not paid within ten (10) days after the date on which such payment is 
due and end on the day payment is received by the Air Force.

                               3. Services

    Sponsor shall be responsible for providing services, maintenance, 
and emergency repairs for civil aircraft authorized to use the flying 
facilities of WAFB under this Agreement at no cost to the Air Force. If 
Air Force assistance is required to repair an aircraft, Sponsor shall 
reimburse the Air Force for all expenses of such services. Any required 
reimbursement shall be paid not less frequently than quarterly. These 
charges are in addition to the annual charge specified in paragraph 2.

                   4. Fire Protection and Crash Rescue

    a. The Air Force maintains the level of fire fighting, crash, and 
rescue capability required to support the military mission at WAFB. The 
Air Force agrees to respond to fire, crash, and rescue emergencies 
involving civil aircraft outside the hangars or other structures within 
the limits of its existing capabilities, equipment, and available 
personnel, only at the request of Sponsor, and subject to subparagraphs 
b, c, and d below. Air Force fire fighting, crash, and rescue equipment 
and personnel shall not be routinely located in the airfield movement 
area during nonemergency landings by civil aircraft.
    b. Sponsor shall be responsible for installing, operating, and 
maintaining, at no cost to the Air Force, the equipment and safety 
devices required for all aspects of handling and support for aircraft on 
the ground as specified in the FARs and National Fire Protection 
Association procedures and standards.
    c. Sponsor agrees to release, acquit, and forever discharge the Air 
Force, its officers, agents, and employees from all liability arising 
out of or connected with the use of or failure to supply in individual 
cases, Air Force fire fighting and or crash and rescue equipment or 
personnel for fire control and crash and rescue activities pursuant to 
this Agreement. Sponsor further agrees to indemnify, defend, and hold 
harmless the Air Force, its officers, agents, and employees against any 
and all claims, of whatever description, arising out of or connected 
with such use of, or failure to supply Air Force fire fighting and or 
crash and rescue equipment or personnel.
    d. Sponsor will reimburse the Air Force for expenses incurred by the 
Air Force for fire

[[Page 141]]

fighting and or crash and rescue materials expended in connection with 
providing such service to civil aircraft. The Air Force may, at its 
option, with concurrence of the National Transportation Safety Board, 
remove crashed civil aircraft from Air Force-owned pavements or property 
and shall follow existing Air Force directives and or instructions in 
recovering the cost of such removal.
    e. Failure to comply with the above conditions upon reasonable 
notice to cure or termination of this Agreement under the provisions of 
paragraph 7 may result in termination of fire protection and crash and 
rescue response by the Air Force.
    f. The Air Force commitment to assist Sponsor with fire protection 
shall continue only so long as a fire fighting and crash and rescue 
organization is authorized for military operations at WAFB. The Air 
Force shall have no obligation to maintain or provide a fire fighting, 
and crash and rescue organization or fire fighting and crash and rescue 
equipment; or to provide any increase in fire fighting and crash and 
rescue equipment or personnel; or to conduct training or inspections for 
purposes of assisting Sponsor with fire protection.

                       5. Liability and Insurance

    a. Sponsor will assume all risk of loss and or damage to property or 
injury to or death of persons by reason of civil aviation use of the 
flying facilities of WAFB under this Agreement, including, but not 
limited to, risks connected with the provision of services or goods by 
the Air Force to Sponsor or to any user under this Agreement. Sponsor 
further agrees to indemnify and hold harmless the Air Force against, and 
to defend at Sponsor expense, all claims for loss, damage, injury, or 
death sustained by any individual or corporation or other entity and 
arising out of the use of the flying facilities of WAFB and or the 
provision of services or goods by the Air Force to Sponsor or to any 
user, whether the claims be based in whole, or in part, on the 
negligence or fault of the Air Force or its contractors or any of their 
officers, agents, and employees, or based on any concept of strict or 
absolute liability, or otherwise.
    b. Sponsor will carry a policy of liability and indemnity insurance 
satisfactory to the Air Force, naming the United States of America as an 
additional insured party, to protect the Government against any of the 
aforesaid losses and or liability, in the sum of not less than (specify 
sum) bodily injury and property damage combined for any one accident. 
Sponsor shall provide the Air Force with a certificate of insurance 
evidencing such coverage. A new certificate must be provided on the 
occasion of policy renewal or change in coverage. All policies shall 
provide that: (1) No cancellation, reduction in amount, or material 
change in coverage thereof shall be effective until at least thirty (30) 
days after receipt of notice of such cancellation, reduction, or change 
by the installation commander at WAFB, (2) any losses shall be payable 
notwithstanding any act or failure to act or negligence of Sponsor or 
the Air Force or any other person, and (3) the insurer shall have no 
right of subrogation against the United States.

                          6. Term of Agreement

    This Agreement shall become effective immediately and shall remain 
in force and effect for a term of 25 years, unless otherwise 
renegotiated or terminated under the provisions of paragraph 7, but in 
no event shall the Agreement survive the termination or expiration of 
Sponsor's right to use, by license, lease, or transfer of ownership, of 
the land areas used in connection with joint use of the flying 
facilities of WAFB.
    7. Renegotiation and Termination
    a. If significant change in circumstances or conditions relevant to 
this Agreement should occur, the Air Force and Sponsor may enter into 
negotiations to revise the provisions of this Agreement, including 
financial and insurance provisions, upon sixty (60) days written notice 
to the other party. Any such revision or modification of this Agreement 
shall require the written mutual agreement and signatures of both 
parties. Unless such agreement is reached, the existing agreement shall 
continue in full force and effect, subject to termination or suspension 
under this section.
    b. Notwithstanding any other provision of this Agreement, the Air 
Force may terminate this Agreement: (1) At any time by the Secretary of 
the Air Force, giving ninety (90) days written notice to Sponsor, 
provided that the Secretary of the Air Force determines, in writing, 
that paramount military necessity requires that joint use be terminated, 
or (2) at any time during any national emergency, present or future, 
declared by the President or the Congress of the United States, or (3) 
in the event that Sponsor ceases operation of the civil activities at 
WAFB for a period of one (1) year, or (4) in the event Sponsor violates 
any of the terms and conditions of this Agreement and continues and 
persists therein for thirty (30) days after written notification to cure 
such violation. In addition to the above rights, the Air Force may at 
any time suspend this agreement if violations of its terms and 
conditions by Sponsor create a significant danger to safety, public 
health, or the environment at WAFB.
    c. The failure of either the Air Force or Sponsor to insist, in any 
one or more instances, upon the strict performance of any of the terms, 
conditions, or provisions of this

[[Page 142]]

Agreement shall not be construed as a waiver or relinquishment of the 
right to the future performance of any such terms, conditions, or 
provisions. No provision of this Agreement shall be deemed to have been 
waived by either party unless such waiver be in writing signed by such 
party.

                               8. Notices

    a. No notice, order, direction, determination, requirement, consent, 
or approval under this Agreement shall be of any effect unless it is in 
writing and addressed as provided herein.
    b. Written communication to Sponsor shall be delivered or mailed to 
Sponsor addressed: The Sponsor, 9000 Airport Blvd, USA.
    c. Written communication to the Air Force shall be delivered or 
mailed to the Air Force addressed: Commander, WAFB, USA.

                    9. Other Agreements not Affected

    This Agreement does not affect the WAFB-Sponsor Fire Mutual Aid 
Agreement.
    IN WITNESS WHEREOF, the respective duly authorized representatives 
of the parties hereto have executed this Agreement on the date set forth 
below opposite their respective signatures.

UNITED STATES AIR FORCE
Date:___________________________________________________________________

By:_____________________________________________________________________
Deputy Assistant Secretary of the Air Force (Installations)

Date:___________________________________________________________________

By:_____________________________________________________________________
Sponsor Representative

          Attachment 5 to Part 855--Sample Temporary Agreement

Letter of Agreement for Temporary Civil Aircraft Operations at Warbucks 
                                AFB, USA

    This letter of agreement establishes policies, responsibilities, and 
procedures for commercial air carrier operations at Warbucks AFB, USA, 
(WAFB) for the period (date)    through    (date) Military requirements 
will take precedence over civil aircraft operations. Should a conflict 
arise between air carrier and Air Force operational procedures, Air 
Force procedures will apply.

                            Authorized Users

    The following air carriers are authorized use, provided they have a 
civil aircraft landing permit approved at HQ USAF/XOOBC for such use:

Flyaway Airlines
Recreation Airlines
Economy Airlines
PacAir Transport

                                Schedules

    The Bunker International Airport (BIA) manager or air carrier 
station managers will ensure that the WAFB Airfield Manager is provided 
current airline schedules during the approved period of use. Every 
effort will be made to avoid disruption of the air carriers' schedules; 
however, it is understood that the installation commander will suspend 
or change flight plans when required to preclude interference with 
military activities or operations.

                     Passenger and Luggage Handling

    The BIA terminal will be used for passenger loading and unloading. 
Security checks will be performed at the terminal before loading 
passengers on buses. Luggage on arriving aircraft will be directly 
offloaded onto vehicles and delivered to the BIA terminal. Each arriving 
and departing bus or vehicle caravan will be accompanied by a 
credentialed representative of the airline or BIA to ensure its 
integrity enroute. Buses or vehicles transporting passengers to board an 
aircraft will not depart WAFB until the passengers are airborne. Unless 
an emergency exists, arriving passengers will not deplane until the 
buses are available for transportation to the BIA terminal. All checked 
luggage will be picked up at BIA and delivered directly to the departing 
aircraft. Buses will proceed directly to the aircraft at WAFB alert 
ramp. Luggage on arriving aircraft will be directly offloaded onto a 
vehicle parked on the WAFB alert ramp. WAFB will be notified, in 
advance, if a local funeral home requires access for pickup or delivery 
of deceased persons.

             Aircraft Handling and Ground Support Equipment

    Air Force-owned fuel will not be provided. The air carriers will 
provide their own ground support equipment. Refueling equipment from BIA 
will be prepositioned at WAFB on the alert ramp. The Air Force shall not 
be responsible for any damage or loss to such equipment, and BIA 
expressly assumes all risks of any such loss or damage and agrees to 
indemnify and hold the United States harmless against any such damage or 
loss. No routine aircraft maintenance will be accomplished at WAFB. 
Emergency repairs and or maintenance are only authorized to avoid 
extended parking and storage of civil aircraft at WAFB.

                          Customs and Security

    The installation commander will exercise administrative and security 
control over both the aircraft and passengers on WAFB. Customs officials 
will be transported to and from the base by air carrier representatives. 
The installation commander will cooperate

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with customer, health, and other public officials to expedite arrival 
and departure of the aircraft. Air carrier representatives will notify 
the WAFB Airfield Manager, in advance, of armed security or law 
enforcement officers arriving or departing on a flight. BIA officials 
and air carrier representatives must provide the WAFB Airfield Manager a 
list of employees, contractors, and vehicles requiring flightline 
access. Temporary passes will be issued to authorized individuals and 
vehicles.

                    Fire, Crash, and Rescue Services

    BIA will provide technical information and training for WAFB Fire 
Department personnel prior to    (date)    . Fire, Crash, and Rescue 
Services will be provided in an emergency, but fire trucks will not 
routinely park on the flightline for aircraft arrivals and departures. 
BIA will reimburse WAFB for all such services.

                      Liability and Indemnification

    The Air Force shall not be responsible for damages to property or 
injuries to persons which may arise from or be incident to the use of 
WAFB by BIA under this Agreement, or for damages to the property of BIA 
or injuries to the person of BIA's officers, agents, servants, 
employees, or invitees. BIA agrees to assume all risks of loss or damage 
to property and injury or death to persons by reason of or incident to 
the use of WAFB under this Agreement and expressly waives any and all 
claims against the United States for any such loss, damage, personal 
injury, or death caused by or occurring as a consequence of such use. 
BIA further agrees to indemnify, save, and hold the United States, its 
officers, agents, and employees harmless from and against all claims, 
demands, or actions, liabilities, judgments, costs, and attorneys fees, 
arising out of, claimed on account of, or in any manner predicated upon 
personal injury, death or property damage resulting from, related to, 
caused by, or arising out of the use of WAFB under this Agreement.

                                  Fees

    Landing and parking fees will be charged in accordance with to AFI 
10-1001, Civil Aircraft Landing Permits. Charges will be made in 
accordance with the appropriate Air Force Instructions for any services 
or supplies required from WAFB. The WAFB Airfield Manager will be 
responsible for consolidating all charges which will be billed to BIA 
not later than    (date)    by the Accounting and Finance Office.
    IN WITNESS WHEREOF, the respective duly authorized representatives 
of the parties hereto have executed this Agreement on the date set forth 
below opposite their respective signatures.
________________________________________________________________________
BIA Representative (Name and Title)

DATE____________________________________________________________________

________________________________________________________________________
WAFB Representative (Name and Title)

DATE____________________________________________________________________



PART 861--DEPARTMENT OF DEFENSE COMMERCIAL AIR CARRIER QUALITY AND SAFETY REVIEW PROGRAM--Table of Contents




Sec.
861.1  References.
861.2  Purpose.
861.3  DOD commercial air carrier quality and safety requirements.
861.4  DOD Commercial Airlift Review Board procedures.

    Authority: 10 U.S.C. 8013; 10 U.S.C. 2640.

    Source: 57 FR 44683, Sept. 29, 1992, unless otherwise noted.



Sec. 861.1  References.

    (a) Section 1204, Public Law 99-661; 10 U.S.C. 2640, Charter Air 
Transportation of Members of the Armed Forces.
    (b) DOD Directive 4500.53, Commercial Passenger Airlift Management 
and Quality Control.
    (c) AMCR 76-8, Contract Airlift Management, Civil Air Carriers.
    (d) MTMCR 15-1, Procedure for Disqualifying and Placing Carriers in 
Nonuse.



Sec. 861.2  Purpose.

    Department of Defense Directive 4500.53, Commercial Passenger 
Airlift Management and Quality Control, charges the Commander, Air 
Mobility Command (AMC), with establishing safety standards and criteria 
for commercial passenger airlift service used by the Department of 
Defense. It also charges the Commander, AMC, jointly with the Commander, 
Military Traffic Management Command (MTMC), with establishing the 
Commercial Airlift Review Board and providing policy guidance and 
direction for its operation. This part establishes Department of Defense 
(DOD) quality and safety criteria for commercial air carriers providing 
or seeking to provide airlift services to the DOD. Included are the 
operating procedures of the Commercial Airlift Review Board (CARB). The 
CARB has the authority to suspend air carriers from DOD use

[[Page 144]]

or take other action when issues of air safety arise.



Sec. 861.3  DOD commercial air carrier quality and safety requirements.

    (a) DOD, as a customer of airlift services, expects an air carrier 
or operator soliciting for or doing business with the DOD to engage in 
quality programs and business practices that not only ensure good 
service but enhance the safety, operational, and maintenance standards 
established by the applicable Civil Aviation Agency Regulations (CARs). 
Accordingly, and as required by U.S. Public Law 99-661, the DOD has 
established a set of air carrier quality and safety requirements that 
reflect the type programs and practices the DOD seeks from air carriers 
or operators airlifting DOD resources.
    (b) A DOD survey team will use the following requirements, the 
specifics of the applicable DOD contract or agreement, the CARs, and the 
experienced judgment of DOD personnel to evaluate an air carrier's 
capability to perform for the DOD. The survey will also include, with 
the carrier's coordination, observation of cockpit crew performance, as 
well as ramp inspections of selected company aircraft. A satisfactory 
on-site survey (audit) conducted by DOD personnel is prerequisite to 
participation in the DOD air transportation program. Surveys are 
conducted prior to an air carrier's acceptance into the program; 
thereafter, surveys will be completed on a biennial basis and when 
otherwise required to validate adherence to DOD quality and safety 
requirements. DOD personnel will also assess these quality and safety 
requirements when conducting periodic commercial air carrier table-top 
performance evaluations.
    (c) The size of an air carrier, along with the type and scope of 
operations, will be considered during the on-site survey. For example, 
while an air taxi/FAA part 135 air carrier may not have a formal flight 
control function, such as a 24-hour dispatch organization, that same air 
taxi is expected to demonstrate some kind of effective flight following 
capability. On the other hand, a major carrier/FAA part 121 air carrier 
is expected to have a formal flight control or dispatch function. Both, 
however, will be evaluated based on the effectiveness and quality of 
whatever flight following function they do maintain.
    (d) The air carrier requirements stated in this part provide the 
criteria against which would-be DOD air carrier contractors may be 
subjectively evaluated by the DOD. These requirements are neither all-
inclusive nor are they inflexible in nature. They are not replacements 
for the certification criteria and other regulations established by 
civil aviation agencies; rather, these requirements are customer-
developed and describe enhanced air carrier activities sought by the 
DOD.
    Note: The term ``Civil Aviation Agency (CAA)'' is used throughout 
this part since these requirements are applicable to U.S. and 
international air carriers doing business with DOD. CAA includes the 
United States Federal Aviation Administration.
    (1) Quality and Safety Requirements--prior experience. Commercial 
air carriers or operators applying to conduct passenger or cargo 
business for the United States Department of Defense are required to 
possess 12 months of continuous service equivalent to the service sought 
by DoD. The service must have been performed for the 12 continuous 
months immediately prior to applying for DoD business. Prior experience 
must be equivalent in difficulty and complexity in regard to distance, 
weather systems, international or national procedures, similar aircraft, 
schedule demands, aircrew experience, and management required.
    (2) Quality and safety requirements--air carrier management. 
Management has clearly defined safety as the number one company 
priority, and safety is never sacrificed to satisfy passenger concern, 
convenience, or cost. Policies, procedures, and goals that enhance the 
CAA's minimum operations and maintenance standards have been established 
and implemented. A cooperative response to CAA inspections, critiques, 
or comments is demonstrated. Proper support infrastructure, including 
facilities, equipment, parts, and qualified personnel, is provided at 
the certificate holder's primary facility and en route stations. 
Personnel with aviation credentials and experience fill key management 
positions. An internal quality audit program or other method capable

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of identifying in-house deficiencies and measuring the company's 
compliance with their stated policies and standards has been 
implemented. Audit results are analyzed in order to determine the cause, 
not just the symptom, of any deficiency. The result of sound fiscal 
policy is evident throughout the company.
    (3) Quality and safety requirements--operations--(i) Flight safety. 
Establish policies that promote flight safety. These policies are 
infused among all aircrew and operational personnel who translate the 
policies into practice. New or revised safety-related data are promptly 
disseminated to affected personnel who understand that deviation from 
any established safety policy is unacceptable. An audit system that 
detects unsafe practices is in place and a feedback structure informs 
management of safety policy results including possible safety problems. 
Management ensures that corrective actions resolve every unsafe 
condition.
    (ii) Flight operations. Established flight operations policies and 
procedures are up-to-date, reflect the current scope of operations, and 
are clearly defined to aviation department employees. These adhered-to 
procedures are further supported by a flow of current, management-
generated safety and operational communications. Managers are in touch 
with mission requirements, supervise crew selection, and ensure the risk 
associated with all flight operations is reduced to the lowest 
acceptable level. Flight crews are free from undue management pressure 
and are comfortable with exercising their professional judgment during 
flight activities, even if such actions do not support the flight 
schedule. Effective lines of communication permit feedback from line 
crews to operations managers. Personnel records are maintained and 
reflect such data as experience, qualifications, and medical status.
    (iii) Flight crew hiring. Established procedures ensure that 
applicants are carefully screened, including a review of the 
individual's health and suitability to perform flight crew duties. 
Consideration is given to the applicant's total aviation background, 
appropriate experience, and the individual's potential to perform 
safely. Freedom from alcohol abuse and illegal drugs is required. If 
new-hire cockpit crewmembers do not meet industry standards for 
experience and qualification, then increased training and management 
attention to properly qualify these personnel are required.
    (iv) Aircrew training. Training, including recurrent training, that 
develops and refines skills designed to eliminate mishaps and improve 
safety is essential to a quality operation. Crew coordination training 
that facilitates full cockpit crews training and interacting together 
using standardized procedures and including the principles of Cockpit 
Resource Management (CRM) is required. Programs involving the use of 
simulators or other devices that can provide realistic training 
scenarios are desired. Captain and first officer training objectives 
cultivate similar levels of proficiency. Appropriate emergency 
procedures training (e.g., evacuation procedures) is provided to flight 
deck and flight attendant personnel as a total crew whenever possible; 
such training focuses on cockpit and cabin crews functioning as a 
coordinated team during emergencies. Crew training--be it pilot, 
engineer, or flight attendant--is appropriate to the level of risk and 
circumstances anticipated for the trainee. Training programs have the 
flexibility to incorporate and resolve recurring problem areas 
associated with day-to-day flight operations. Trainers are highly 
skilled in both subject matter and training techniques. Training 
received is documented, and that documentation is maintained in a 
current status.
    (v) Captain upgrade training. A selection and training process that 
considers proven experience, decision making, cockpit resource 
management, and response to unusual situations, including stress and 
pressure, is required. Also important is emphasis on captain 
responsibility and authority.
    (vi) Aircrew scheduling. A closely monitored system that evaluates 
operational risks, experience levels of crewmembers, and ensures the 
proper pairing of aircrews on all flights is required. New captains are 
scheduled with highly experienced first officers, and new or low-time 
first officers are

[[Page 146]]

scheduled with experienced captains. Except for aircraft new to the 
company, captains and first officers assigned to DOD charter passenger 
missions possess at least 250 hours combined experience in the type 
aircraft being operated. The scheduling system involves an established 
flight duty time program for aircrews, including flight attendants, 
carefully managed so as to ensure proper crew rest and considers 
quality-of-life factors. Attention is given to the stress on aircrews 
during strikes, mergers, or periods of labor-management difficulties.
    (vii) In-flight performance. Aircrews, including flight attendants, 
are fit for flight duties and trained to handle normal, abnormal, and 
emergency situations. They demonstrate crew discipline and a knowledge 
of aviation rules; use company-developed standardized procedures; adhere 
to checklists; and emphasize safety, including security considerations, 
throughout all preflight, in-flight, and postflight operations. 
Qualified company personnel evaluate aircrews and analyze results; known 
performance deficiencies are eliminated. Evaluations ensure aircrews 
demonstrate aircraft proficiency in accordance with company established 
standards. Flight crews are able to determine an aircraft's maintenance 
condition prior to flight and use standardized methods to accurately 
report aircraft deficiencies to the maintenance activity.
    (viii) Operational control/support. Effective mission control 
includes communications with aircrews and the capability to respond to 
irregularities or difficulties. Clear written procedures for mission 
preparation and flight following aircraft and aircrews are provided. 
There is access to weather, flight planning, and aircraft maintenance 
data. There are personnel available who are knowledgeable in aircraft 
performance and mission requirements and that can correctly respond to 
emergency situations. There is close interface between operations and 
maintenance, ensuring a mutual awareness of aircraft operational and 
maintenance status. Procedures to notify DOD in case of an accident or 
serious incident have been established. Flight crews involved in such 
accidents or incidents report the situation to company personnel who, in 
turn, have procedures to evaluate the flight crew's capability to 
continue the mission. Aircraft involved in accidents or incidents are 
inspected in accordance with Civil Aviation Regulations and a 
determination made as to whether or not the aircraft is safe from 
continued operations.
    (ix) DOD charter procedures. Detailed procedures addressing military 
charter requirements are expected. The level of risk associated with DOD 
charter missions does not exceed the risk inherent in the carrier's non-
DOD daily flight operations. Complete route planning and airport 
analyses are accomplished, and actual passenger and cargo weights are 
used in computing aircraft weight and balance.
    (4) Quality and safety requirements--maintenance. Maintenance 
supervisors ensure all personnel understand that in spite of scheduling 
pressure, peer pressure, supervisory pressure, or other factors, the 
airplane must be airworthy prior to flight. Passenger and employee 
safety is a paramount management concern. Quality, completeness, and 
integrity of work are trademarks of the maintenance manager and 
maintenance department. Nonconformance to established maintenance 
practices is not tolerated. Management ensures that contracted 
maintenance, including repair and overhaul facilities, is performed by 
maintenance organizations acceptable to the CAA.
    (i) Maintenance personnel. Air carriers are expected to hire and 
train the number of employees required to safely maintain the company 
aircraft and support the scope of the maintenance operation both at home 
station (the company's primary facility) and at en route locations. 
These personnel ensure that all maintenance tasks, including required 
inspections and airworthiness directives, are performed; that 
maintenance actions are properly documented; and that the discrepancies 
identified between inspections are corrected. Mechanics are fit for 
duty, properly certificated, the company verifies certification, and 
these personnel possess the knowledge and the necessary aircraft-
specific experience to accomplish the maintenance tasks.

[[Page 147]]

Noncertified and inexperienced personnel receive proper supervision. 
Freedom from alcohol abuse and illegal drugs is required.
    (ii) Quality assurance (continuing analysis and surveillance 
program). A system that continuously analyzes the performance and 
effectiveness of maintenance activities and maintenance inspection 
programs is required. This system evaluates such functions as 
reliability reports, audits, component tear-down reports, inspection 
procedures and results, tool calibration program, real-time aircraft 
maintenance actions, warranty programs, and other maintenance functions. 
The extent of this program is directly related to the air carrier's size 
and scope of operation. The cause of any recurring discrepancy or 
negative trend is researched and eliminated. Action is taken to prevent 
recurrence to these discrepancies and preventive actions are monitored 
to ensure effectiveness. The results of preventive actions are provided 
to appropriate maintenance technicians.
    (iii) Maintenance inspection activity. A process to ensure required 
aircraft inspections are completed and the results properly documented 
is required. Also required is a system to evaluate contract vendors, 
suppliers, and their products. Inspection personnel are identified, 
trained (initial and recurrent), and provided guidance regarding 
inspector responsibility and authority. The inspection activity is 
normally a separate entity within the maintenance department.
    (iv) Maintenance training. Training is conducted commensurate with 
the size and type of maintenance function being performed. Continuing 
education and progressive experience are provided for all maintenance 
personnel. Orientation, familiarization, on-the-job, and appropriate 
recurrent training for all full- and part-time personnel is expected. 
The use of such training aids as mockups, simulators, and computer-based 
training enhances maintenance training efforts and is desired. Training 
documentation is required; it is current, complete, well-maintained, and 
correctly identifies any special authorizations such as inspection and 
airworthiness release. Trainers are fully qualified in the subject 
matter.
    (v) Maintenance control. A method to control maintenance activities 
and track aircraft status is required. Qualified personnel monitor 
maintenance preplanning, ensure completion of maintenance actions, and 
track deferred discrepancies. Deferred maintenance actions are 
identified to supervisory personnel and corrected in accordance with the 
criteria provided by the manufacturer or regulatory agency. Constant and 
effective communications between maintenance and flight operations 
ensure an exchange of critical information.
    (vi) Aircraft maintenance program. Aircraft are properly certified 
and maintained in a manner that ensures they are airworthy and safe. The 
program includes the use of manufacturer's and CAA information, as well 
as company policies and procedures. Airworthiness directives are 
complied with in the prescribed time frame, and service bulletins are 
evaluated for applicable action. Approved reliability programs are 
proactive, providing management with visibility on the effectiveness of 
the maintenance program; attention is given to initial component and 
older aircraft inspection intervals and to deferred maintenance actions. 
Special tools and equipment are calibrated.
    (vii) Maintenance records. Maintenance actions are well documented 
and provide a complete record of maintenance accomplished and, for 
repetitive actions, maintenance required. Such records as aircraft log 
books and maintenance documentation are legibly prepared, dated, clean, 
readily identifiable, and maintained in an orderly fashion. Inspection 
compliance, airworthiness release, and maintenance release records, 
etc., are complete and signed by approved personnel.
    (viii) Aircraft appearance (in-service aircraft). Aircraft 
exteriors, including all visible surfaces and components, are clean and 
well maintained. Interiors are also clean and orderly. Required safety 
equipment and systems are available and operable.
    (ix) Fueling and servicing. Aircraft fuel is free from 
contamination, and

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company fuel facilities (farms) are inspected and results documented. 
Procedures and instructions pertaining to servicing, handling, and 
storing fuel and oil meet established safety standards. Procedures for 
monitoring and verifying vendor servicing practices are included in this 
program.
    (x) Maintenance manuals. Company policy manuals and manufacturer's 
maintenance manuals are current, available, clear, complete, and adhered 
to by maintenance personnel. These manuals provide maintenance personnel 
with standardized procedures for maintaining company aircraft. 
Management policies, lines of authority, and company maintenance 
procedures are documented in company manuals and kept in a current 
status.
    (xi) Maintenance facilities. Well maintained, clean maintenance 
facilities adequate for the level of aircraft repair authorized in the 
company's CAA certificate are expected. Safety equipment is available in 
hangars, shops, etc., and is serviceable. Shipping, receiving, and 
stores areas are likewise clean and orderly. Parts are correctly 
packaged, tagged, segregated, and shelf life properly monitored.
    (5) Quality and safety requirements--security. Company personnel are 
schooled in security responsibilities and practice applicable procedures 
during ground and in-flight operations. Compliance with provisions of 
the appropriate standard security program, established by the CAA, is 
required for all DOD missions.
    (6) Quality and safety requirements--specific equipment 
requirements. Air carriers satisfy DOD equipment and other requirements 
as specified in Air Mobility Command contracts or Military Traffic 
Management Command Military Air Transportation Agreements.

[57 FR 44683, Sept. 29, 1992, as amended at 61 FR 17841, Apr. 23, 1996]



Sec. 861.4  DOD Commercial Airlift Review Board procedures.

    (a) This part establishes the procedures to be used by the United 
States Air Force Air Mobility Command (AMC) and the United States Army 
Military Traffic Management Command (MTMC) when, in accordance with 
references Sec. 861.1 (a) through (d):
    (1) A commercial air carrier is subject to review or other action by 
the DOD Commercial Airlift Review Board (hereinafter referred to as the 
CARB),
    (2) A warning, suspension, temporary nonuse, or reinstatement action 
is taken against a carrier by the CARB, or
    (3) Review or other CARB action is escalated to a higher authority.
    These procedures apply to all commercial air carriers providing DOD 
passenger or cargo airlift through charter, individual ticket movements, 
contracts, or other transportation agreements. They also apply to 
carriers providing air transportation purchased by DOD individuals for 
which government reimbursement will be made in whole or in part.
    (b) Safety or airworthiness issues, per reference Sec. 861.1(b) must 
be referred to the CARB. AMC and MTMC may each take independent 
corrective action in accordance with their respective procedures on 
standards of service issues when safety and airworthiness issues are not 
involved. The DOD Air Carrier Survey and Analysis Directorate will be 
informed of all actions taken independently by AMC or MTMC.
    (c) Except as otherwise provided herein, the rights and remedies of 
the government and commercial air carriers outlined in these procedures 
are not exclusive and are in addition to any other rights and remedies 
provided for by law, regulation, contract, or agreement.
    (d) Definitions. (1) Letter of warning is a notice to a carrier of a 
failure to satisfy safety or airworthiness requirements which, if not 
remedied, may result in temporary nonuse or suspension. The issuance of 
a letter of warning is not a prerequisite to a suspension or other 
action.
    (2) Temporary nonuse is the immediate exclusion of a carrier from 
any flight activities in the DOD airlift transportation program, pending 
a decision on suspension, taken under the conditions outlined in 
paragraph (h)(1) of this section. By mutual agreement of the CARB and 
the air carrier involved, a suspension hearing or decision may be 
delayed and the air carrier

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continued in a temporary nonuse status for an extended period of time.
    (3) Suspension is the exclusion of an air carrier from participating 
in the DOD airlift transportation program. The period of suspension will 
normally:
    (i) Remain in effect until the carrier furnishes satisfactory 
evidence that the conditions causing the suspension have been remedied 
or
    (ii) Be for a fixed period of time as determined at the discretion 
of the CARB.
    (4) The procedures for commercial airlift safety review include five 
possible levels with increasing authority:
    (i) DOD Air Carrier Survey and Analysis Directorate.
    (ii) DOD Commercial Airlift Review Committee.
    (iii) DOD Commercial Airlift Review Board.
    (iv) Commanders MTMC and AMC.
    (v) DOD Commercial Airlift Review Authority.
    These levels are described in reference Sec. 861.1(b), with the 
exception of the DOD Commercial Airlift Review Committee, which is 
described in reference Sec. 861.1(c). The Committee provides 
multifunctional review of the efforts of the DOD Air Carrier Survey and 
Analysis Directorate, including approval or disapproval of carriers 
initially seeking DOD business, and offers advice to the higher 
authorities when appropriate.
    (e) Causes and conditions for suspension. (1) Carrier shall be 
subject to suspension for good cause, including:
    (i) Failing to comply with generally accepted standards of 
airmanship, training, and maintenance practices and procedures.
    (ii) Failing to satisfy DOD quality and safety requirements as 
described in Sec. 861.3.
    (iii) Failing to comply with all provisions of applicable statutes, 
agreements, and contract terms, as such may affect flight safety, as 
well as with all applicable Federal Aviation Administration regulations, 
airworthiness directives, orders, rules, and standards promulgated under 
the Federal Aviation Act of 1958 as amended.
    (iv) Involvement of one of the carrier's aircraft in a serious or 
fatal accident, incident, or operational occurrence (regardless of 
whether or not such aircraft is being used in the performance of 
government procured transportation).
    (v) Any other condition which affects the safe operation of the 
carrier's flights hereunder.
    (vi) Compliance with published standards does not, standing alone, 
constitute compliance with generally accepted standards or airmanship, 
training, or maintenance practices.
    (f) Reinstatement considerations. In no event shall reinstatement 
occur unless and until the carrier shows to the satisfaction of the CARB 
that deficiencies that led to suspension have been corrected and that 
actions have been implemented to preclude the recurrence of similar 
deficiencies.
    (g) CARB membership. (1) Four voting members will constitute the 
CARB; two senior, knowledgeable individuals appointed by Commander, AMC; 
one similarly knowledgeable individual appointed by USCINCTRANS; and one 
appointed by Commander, MTMC. At least one of the voting HQ AMC members 
and the MTMC member will be of general/flag officer or civilian 
equivalent rank. Other non-voting CARB members will be appointed as 
necessary to facilitate the CARB deliberative process. A non-voting 
recorder will also be appointed.
    (2) The HQ AMC senior member will act as the CARB chairperson. A 
voting member who will not be present at any meeting of the CARB, may be 
represented by a knowledgeable alternate empowered with the voting 
responsibilities of the voting member. Three voting members (or their 
alternate) shall constitute a quorum. Decisions shall be by majority 
vote. In the case of a tie vote, the chairperson will have the deciding 
vote.
    (3) The meeting date, time, and site of the CARB will be determined 
at the time of the decision to convene the CARB. Teleconferencing, if 
utilized, will be specified in the notice to the carrier.
    (4) Minutes of CARB hearings may be recorded or summarized and will 
be maintained with all other records pertaining to the CARB proceeding.
    (5) The CARB recorder shall ensure that the air carrier and 
appropriate

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DOD agencies are notified of the CARB's decision and reasons therefor.
    (h) CARB operating procedures--(1) Temporary nonuse. (i) In case of 
a fatal aircraft accident or for other good cause, the two senior 
members of the CARB (see paragraph (g)(1) of this section) will jointly 
make an immediate determination whether to place the carrier involved in 
a temporary nonuse status pending suspension proceedings. Prior notice 
to the carrier is not required.
    (ii) Such determination shall include consideration of the advice of 
the DOD Commercial Airlift Review Committee, if reasonably available, 
but will not await such advice.
    (iii) The carrier shall be promptly notified of the temporary nonuse 
determination and the basis therefore.
    (iv) Temporary nonuse status terminates automatically if suspension 
proceedings are not commenced, as set out in paragraph (h)(2)(ii) of 
this section, within 30 days of inception, unless otherwise agreed to 
per paragraph (d)(2) of this section.
    (2) Suspension: (i) On a recommendation of the DOD Air Carrier 
Survey and Analysis Directorate, the DOD Commercial Airlift Review 
Committee, or any individual member of the CARB, the CARB shall consider 
whether or not to suspend a carrier.
    (ii) If the CARB determines that suspension may be appropriate, it 
shall notify the carrier that suspension action is under consideration 
and of the basis for such consideration and offer the carrier a hearing 
thereon within 15 days of the date of the notice, or such other period 
as granted by the CARB, at which the carrier may be present and may 
offer evidence. The presiding member of the CARB shall establish 
procedures for such hearing as may be appropriate which shall be as 
informal as practicable, consistent with administrative due process.
    (iii) Types of evidence which may be considered, if appropriate, 
shall include, but not be limited to, the following:
    (A) Information and analysis provided by the DOD Air Carrier Survey 
and Analysis Directorate.
    (B) Carrier's written/oral evidence.
    (C) Corrective actions that may have been taken by the carrier to:
    (1) Correct the specific deficiencies that led the CARB to consider 
suspension, and
    (2) Preclude recurring similar deficiencies.
    (D) Such other matters as the CARB deems relevant.
    (E) The CARB's decisions on the reception or exclusion of evidence 
shall be final.
    (iv) Carriers shall have the burden of proving their suitability to 
safely perform DOD airlift services by clear and convincing evidence.
    (v) After the conclusion of such hearing, or if no hearing is 
requested and attended by the carrier within the time specified by the 
CARB, the CARB shall consider the matter and make a final decision 
whether or not to suspend the carrier or to impose such lesser sanction 
as is appropriate. The carrier shall be notified of the CARB's decision.
    (3) Reinstatement: (i) The CARB may consider reinstating a suspended 
carrier on either CARB motion or carrier motion, unless such carrier has 
become ineligible in the interim.
    (ii) The carrier has the burden of proving by clear and convincing 
evidence that the reinstatement considerations in paragraph (f) of this 
section have been satisfied.
    (iii) Carrier evidence in support of reinstatement will be provided 
in a timely manner to the CARB for its review. The CARB may 
independently corroborate the carrier-provided evidence and may, at its 
option, convene a hearing and request the participation of the carrier.
    (i) Decision by others. In the event the CARB is unable to decide an 
issue properly before it, or if the issue in the judgment of the CARB 
requires review at a DOD organizational level higher than the CARB, the 
issue will be referred to the Commander, AMC, and Commander, MTMC, for 
appropriate disposition. In such event, the decision will be made upon 
the written record only, no hearing will be held.
    (j) Appeal of a determination. (1) A carrier placed in suspension 
may administratively appeal this action to the authorities shown in 
paragraph (j)(3) of this section. An appeal, if any, must be

[[Page 151]]

filed within 15 work days after receipt of the decision of the CARB or 
Commander, AMC, and Commander, MTMC. The suspension will not be stayed 
pending appeal unless for good cause, as determined by the CARB. The 
decision of the appellate authority designated herein is final and is 
not subject to further administrative review or appeal.
    (2) An appeal will be in writing only and carriers shall not be 
entitled to a de novo hearing before the administrative appellate 
authorities.
    (3) The following administrative appellate authorities will review 
and make decisions on appeals:
    (i) When the decision being appealed was made by the CARB, the 
appellate authorities are Commander, AMC, and Commander, MTMC. They will 
jointly decide the appeal.
    (ii) When Commander, AMC, and Commander, MTMC, are unable to jointly 
agree on an appeal, they shall refer the matter to the DOD Commercial 
Airlift Review Authority (CARA) for its decision.
    (iii) When the decision being appealed was made by Commander, AMC, 
and Commander, MTMC, the appellate authority is the DOD CARA.

[57 FR 44683, Sept. 29, 1992, as amended at 61 FR 17841, Apr. 23, 1996]

[[Page 152]]



             SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL





PART 865--PERSONNEL REVIEW BOARDS--Table of Contents




      Subpart A--Air Force Board for Correction of Military Records

Sec.
865.0  Purpose.
865.1  Setup of the Board.
865.2  Board responsibilities.
865.3  Application procedures.
865.4  Board actions.
865.5  Decision of the Secretary of the Air Force.
865.6  Reconsideration of applications.
865.7  Action after final decision.
865.8  Miscellaneous provisions.

               Subpart B--Air Force Discharge Review Board

865.100  Purpose.
865.101  References.
865.102  Statutory authority.
865.103  Definition of terms.
865.104  Secretarial responsibilities.
865.105  Jurisdiction and authority.
865.106  Application for review.
865.107  DRB composition and meeting location.
865.108  Availability of records and documents.
865.109  Procedures for hearings.
865.110  Decision process.
865.111  Response to items submitted as issues by the applicant.
865.112  Decisional issues.
865.113  Recommendations by the Director of the Personnel Council and 
          Secretarial Review Authority.
865.114  Decisional document.
865.115  Issuance of decisions following discharge review.
865.116  Records of DRB proceeding.
865.117  Final disposition of the record of proceedings.
865.118  Availability of Discharge Review Board documents for public 
          inspection and copying.
865.119  Privacy Act information.
865.120  Discharge review standards.
865.121  Complaints concerning decisional documents and index entries.
865.122  Summary of statistics for Discharge Review Board.
865.123  Approval of exceptions to directive.
865.124  Procedures for regional hearings.
865.125  Report requirement.
865.126  Sample report format.



      Subpart A--Air Force Board for Correction of Military Records

    Source: 61 FR 16047, Apr. 11, 1996, unless otherwise noted.

    Authority: 10 U.S.C. 1034, 1552.



Sec. 865.0  Purpose.

    This subpart sets up procedures for correction of military records 
to remedy error or injustice. It tells how to apply for correction of 
military records and how the Air Force Board for Correction of Military 
Records (AFBCMR, or the Board) considers applications. It defines the 
Board's authority to act on applications. It directs collecting and 
maintaining information subject to the Privacy Act of 1974 authorized by 
10 U.S.C. 1034 and 1552. System of Records notice F035 SAFCB A, Military 
Records Processed by the Air Force Correction Board, applies.



Sec. 865.1  Setup of the Board.

    The AFBCMR operates within the Office of the Secretary of the Air 
Force according to 10 U.S.C. 1552. The Board consists of civilians in 
the executive part of the Department of the Air Force who are appointed 
and serve at the pleasure of the Secretary of the Air Force. Three 
members constitute a quorum of the Board.



Sec. 865.2  Board responsibilities.

    (a) Considering applications. The Board considers all individual 
applications properly brought before it. In appropriate cases, it 
directs correction of military records to remove an error or injustice, 
or recommends such correction.
    (b) Recommending action. When an applicant alleges reprisal under 
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board 
may recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against those responsible for the 
reprisal.
    (c) Deciding cases. The Board normally decides cases on the evidence 
of the record. It is not an investigative body. However, the Board may, 
in its

[[Page 153]]

discretion, hold a hearing or call for additional evidence or opinions 
in any case.



Sec. 865.3  Application procedures.

    (a) Who may apply. (1) In most cases, the applicant is a member or 
former member of the Air Force, since the request is personal to the 
applicant and relates to his or her military records.
    (2) An applicant with a proper interest may request correction of 
another person's military records when that person is incapable of 
acting on his or her own behalf, is missing, or is deceased. Depending 
on the circumstances, a child, spouse, parent or other close relative, 
an heir, or a legal representative (such as a guardian or executor) of 
the member or former member may be able to show a proper interest. 
Applicants will send proof of proper interest with the application when 
requesting correction of another person's military records.
    (b) Getting forms. Applicants may get a DD Form 149, ``Application 
for Correction of Military Record Under the Provisions of Title 10, 
U.S.C., Section 1552,'' and Air Force Pamphlet 36-2607, ``Applicants' 
Guide to the Air Force Board for Correction of Military Records 
(AFBCMR),'' from:
    (1) Any Air Force Military Personnel Flight (MPF) or publications 
distribution office.
    (2) Most veterans' service organizations.
    (3) The Air Force Review Boards Office, SAF/MIBR, 550 C Street West, 
Suite 40, Randolph AFB TX 78150-4742.
    (4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB 
MD 20331-7002.
    (c) Preparation. Before applying, applicants should:
    (1) Review Air Force Pamphlet 36-2607.
    (2) Discuss their concerns with MPF, finance office, or other 
appropriate officials. Errors can often be corrected administratively 
without resort to the Board.
    (3) Exhaust other available administrative remedies (otherwise the 
Board may return the request without considering it).
    (d) Submitting the application. Applicants should complete all 
applicable sections of the DD Form 149, including at least:
    (1) The name under which the member served.
    (2) The member's social security number or Air Force service number.
    (3) The applicant's current mailing address.
    (4) The specific records correction being requested.
    (5) Proof of proper interest if requesting correction of another 
person's records.
    (6) The applicant's signature.
    (e) Applicants should mail the original signed DD Form 149 and any 
supporting documents to the Air Force address on the back of the form.
    (f) Meeting time limits. Ordinarily, applicants must file an 
application within three years after the error or injustice was 
discovered, or, with due diligence, should have been discovered. An 
application filed later is untimely and may be denied by the Board on 
that basis.
    (1) The Board may excuse untimely filing in the interest of justice.
    (2) If the application is filed late, applicants should explain why 
it would be in the interest of justice for the Board to waive the time 
limits.
    (g) Stay of other proceedings. Applying to the AFBCMR does not stay 
other proceedings.
    (h) Counsel representation. Applicants may be represented by 
counsel, at their own expense.
    (1) The term ``counsel'' includes members in good standing of the 
bar of any state, accredited representatives of veterans' organizations 
recognized under 38 U.S.C. 3402, and other persons determined by the 
Executive Director of the Board to be competent to represent the 
interests of the applicant.
    (2) See Department of Defense Directive (DoDD) 7050.6, Whistleblower 
Protection Act, 3 September 1992,\1\ for special provisions for counsel 
in cases processed under 10 U.S.C. 1034.
---------------------------------------------------------------------------

    \1\ Copies of the publication are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (i) Page limitations on briefs. Briefs in support of applications:
    (1) May not exceed twenty-five double-spaced typewritten pages.

[[Page 154]]

    (2) Must be typed on one side of a page only with not more than 
twelve characters per inch.
    (3) Must be assembled in a manner that permits easy reproduction.
    (j) Responses to advisory opinions must not exceed ten double-spaced 
typewritten pages and meet the other requirements for briefs.
    (k) These limitations do not apply to supporting documentary 
evidence.
    (l) In complex cases and upon request, the Executive Director of the 
Board may waive these limitations.
    (m) Withdrawing applications. Applicants may withdraw an application 
at any time before the Board's decision. Withdrawal does not stay the 
three-year time limit.



Sec. 865.4  Board actions.

    (a) Board information sources. The applicant has the burden of 
providing sufficient evidence of probable material error or injustice. 
However, the Board:
    (1) May get additional information and advisory opinions on an 
application from any Air Force organization or official.
    (2) May require the applicant to furnish additional information 
necessary to decide the case.
    (b) Applicants will normally be given an opportunity to review and 
comment on advisory opinions and additional information obtained by the 
Board.
    (c) Consideration by the Board. A panel consisting of at least three 
board members considers each application. One panel member serves as its 
chair. The panel's actions and decisions constitute the actions and 
decisions of the Board.
    (d) The panel may decide the case in executive session or authorize 
a hearing. When a hearing is authorized, the procedures in paragraph (f) 
of this section apply.
    (e) Board deliberations. Normally only members of the Board and 
Board staff will be present during deliberations. The panel chair may 
permit observers for training purposes or otherwise in furtherance of 
the functions of the Board.
    (f) Board hearings. The Board in its sole discretion determines 
whether to grant a hearing. Applicants do not have a right to a hearing 
before the Board.
    (g) The Executive Director will notify the applicant or counsel, if 
any, of the time and place of the hearing. Written notice will be mailed 
thirty days in advance of the hearing unless the notice period is waived 
by the applicant. The applicant will respond not later than fifteen days 
before the hearing date, accepting or declining the offer of a hearing 
and, if accepting, provide information pertaining to counsel and 
witnesses. The Board will decide the case in executive session if the 
applicant declines the hearing or fails to appear.
    (h) When granted a hearing, the applicant may appear before the 
Board in person, represented by counsel, or in person with counsel and 
may present witnesses. It is the applicant's responsibility to notify 
witnesses, arrange for their attendance at the hearing, and pay any 
associated costs.
    (i) The panel chair conducts the hearing, maintains order, and 
ensures the applicant receives a full and fair opportunity to be heard. 
Formal rules of evidence do not apply, but the panel observes reasonable 
bounds of competency, relevancy, and materiality. Witnesses other than 
the applicant will not be present except when testifying. Witnesses will 
testify under oath or affirmation. A recorder will record the 
proceedings verbatim. The chair will normally limit hearings to two 
hours but may allow more time if necessary to ensure a full and fair 
hearing.
    (j) Additional provisions apply to cases processed under 10 U.S.C. 
1034. See DoDD 7050.6.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (k) The Board will not deny or recommend denial of an application on 
the sole ground that the issue already has been decided by the Secretary 
of the Air Force or the President of the United States in another 
proceeding.
    (l) Board decisions. The panel's majority vote constitutes the 
action of the Board. The Board's decision will be in writing and will 
include determinations on the following issues:
    (1) Whether the provisions of the Military Whistleblowers Protection

[[Page 155]]

Act apply to the application. This determination is needed only when the 
applicant invokes the protection of the Act, or when the question of its 
applicability is otherwise raised by the evidence.
    (2) Whether the application was timely filed and, if not, whether 
the applicant has demonstrated that it would be in the interest of 
justice to excuse the untimely filing. When the Board determines that an 
application is not timely, and does not excuse its untimeliness, the 
application will be denied on that basis.
    (3) Whether the applicant has exhausted all available and effective 
administrative remedies. If the applicant has not, the application will 
be denied on that basis.
    (4) Whether the applicant has demonstrated the existence of a 
material error or injustice that can be remedied effectively through 
correction of the applicant's military record and, if so, what 
corrections are needed to provide full and effective relief.
    (5) In Military Whistleblowers Protection Act cases only, whether to 
recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against any Air Force official whom the 
Board finds to have committed an act of reprisal against the applicant. 
Any determination on this issue will not be made a part of the Board's 
record of proceedings and will not be given to the applicant, but will 
be provided directly to the Secretary of the Air Force under separate 
cover (Sec. 865.2(b)).
    (m) Record of proceedings. The Board staff will prepare a record of 
proceedings following deliberations which will include:
    (1) The name and vote of each Board member.
    (2) The application.
    (3) Briefs and written arguments.
    (4) Documentary evidence.
    (5) A hearing transcript if a hearing was held.
    (6) Advisory opinions and the applicant's related comments.
    (7) The findings, conclusions, and recommendations of the Board.
    (8) Minority reports, if any.
    (9) Other information necessary to show a true and complete history 
of the proceedings.
    (n) Minority reports. A dissenting panel member may prepare a 
minority report which may address any aspect of the case.
    (o) Separate communications. The Board may send comments or 
recommendations to the Secretary of the Air Force as to administrative 
or disciplinary action against individuals found to have committed acts 
of reprisal prohibited by the Military Whistleblowers Protection Act and 
on other matters arising from an application not directly related to the 
requested correction of military records. Such comments and 
recommendations will be separately communicated and will not be included 
in the record of proceedings or given to the applicant or counsel.
    (p) Final action by the Board. The Board acts for the Secretary of 
the Air Force and its decision is final when it:
    (1) Denies any application (except under 10 U.S.C. 1034).
    (2) Grants any application in whole or part when the relief was 
recommended by the official preparing the advisory opinion, was 
unanimously agreed to by the panel, and does not involve an appointment 
or promotion requiring confirmation by the Senate.
    (q) The Board sends the record of proceedings on all other 
applications to the Secretary of the Air Force or his or her designee 
for final decision.



Sec. 865.5  Decision of the Secretary of the Air Force.

    (a) The Secretary may direct such action as he or she deems 
appropriate on each case, including returning the case to the Board for 
further consideration. Cases returned to the Board for further 
reconsideration will be accompanied by a brief statement of the reasons 
for such action. If the Secretary does not accept the Board's 
recommendation, the decision will be in writing and will include a brief 
statement of the grounds for denial.
    (b) Decisions in cases under the Military Whistleblowers Protection 
Act. The Secretary will issue decisions on such cases within 180 days 
after receipt

[[Page 156]]

of the case and will, unless the full relief requested is granted, 
inform applicants of their right to request review of the decision by 
the Secretary of Defense (SecDef). Applicants will also be informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within ninety days 
after receipt of the decision by the Secretary of the Air Force.
    (3) That the request for review must be in writing and include the 
applicant's name, address, and telephone number; a copy of the 
application to the AFBCMR and the final decision of the Secretary of the 
Air Force; and a statement of the specific reasons the applicant is not 
satisfied with the decision of the Secretary of the Air Force.
    (4) That the request must be based on the Board record; requests for 
review based on factual allegations or evidence not previously presented 
to the Board will not be considered under this section but may be the 
basis for reconsideration by the Board under Sec. 865.6.
    (c) Decisions in cases filed under Section 507, Public Law 103-160. 
The Secretary will issue a decision within 60 days of receipt of the 
case of an officer who:
    (1) Was offered the opportunity to be discharged or separated from 
active duty under the Voluntary Separation Incentive (VSI) or Special 
Separation Benefit (SSB) programs,
    (2) Elected not to accept such discharge or separation,
    (3) Was thereafter discharged or separated from active duty, after 
September 30, 1990, as a result of selection by a board convened to 
select officers for early separation (a ``RIF board''),
    (4) Files an application with the Board within two years of the date 
of separation or discharge, or one year after March 1, 1996, whichever 
is later, alleging that the officer was not effectively counseled, 
before electing not to accept discharge or separation under the VSI/SSB 
programs, concerning the officer's vulnerability to selection for 
involuntary discharge or separation (``RIF''), and
    (5) Requests expedited consideration under this section.
    (d) Upon finding of ineffective counseling, the Secretary will 
provide the officer with an opportunity to participate, at the officer's 
option, in the VSI or SSB programs or, if eligible, in an early 
retirement program.
    (e) In cases under Secs. 865.5(b) and 865.5(c) which involve 
additional issues not cognizable under those sections, the additional 
issues may be considered separately by the Board under Secs. 865.3 and 
865.4. The special time limits in Secs. 865.5(b) and 865.5(c) do not 
apply to the decision concerning these additional issues.



Sec. 865.6  Reconsideration of applications.

    The Board may reconsider an application if the applicant submits 
newly discovered relevant evidence that was not available when the 
application was previously considered. The Executive Director will 
screen each request for reconsideration to determine whether it contains 
new evidence.
    (a) If the request contains new evidence, the Executive Director 
will refer it to a panel of the Board for a decision. The Board will 
decide the relevance and weight of any new evidence, whether it was 
reasonably available to the applicant when the application was 
previously considered, and whether it was submitted in a timely manner. 
The Board may deny reconsideration if the request does not meet the 
criteria for reconsideration. Otherwise the Board will reconsider the 
application and decide the case either on timeliness or merit as 
appropriate.
    (b) If the request does not contain new evidence, the Executive 
Director will return it to the applicant without referral to the Board.



Sec. 865.7  Action after final decision.

    (a) Action by the Executive Director. The Executive Director will 
inform the applicant or counsel, if any, of the final decision on the 
application. If any requested relief was denied, the Executive Director 
will advise the applicant of reconsideration procedures and, for cases 
processed under the Military Whistleblowers Protection Act, review by 
the SecDef. The Executive Director will send decisions requiring 
corrective

[[Page 157]]

action to the Chief of Staff, U.S. Air Force, for necessary action.
    (b) Settlement of claims. The Air Force is authorized, under 10 
U.S.C. 1552, to pay claims for amounts due to applicants as a result of 
correction of military records.
    (c) The Executive Director will furnish the Defense Finance and 
Accounting Service (DFAS) with AFBCMR decisions potentially affecting 
monetary entitlement or benefits. DFAS will treat such decisions as 
claims for payment by or on behalf of the applicant.
    (d) DFAS settles claims on the basis of the corrected military 
record. Computation of the amount due, if any, is a function of DFAS. 
Applicants may be required to furnish additional information to DFAS to 
establish their status as proper parties to the claim and to aid in 
deciding amounts due.
    (e) Public access to decisions. After deletion of personal 
information, AFBCMR decisions will be made available for review and 
copying at a public reading room in the Washington, DC metropolitan 
area.



Sec. 865.8  Miscellaneous provisions.

    (a) At the request of the Board, all Air Force activities and 
officials will furnish the Board with:
    (1) All available military records pertinent to an application.
    (2) An advisory opinion concerning an application. The advisory 
opinion will include an analysis of the facts of the case and of the 
applicant's contentions, a statement of whether or not the requested 
relief can be done administratively, and a recommendation on the 
timeliness and merit of the request. Regardless of the recommendation, 
the advisory opinion will include instructions on specific corrective 
action to be taken if the Board grants the application.
    (b) Access to records. Applicants will have access to all records 
considered by the Board, except those classified or privileged. To the 
extent practicable, applicants will be provided unclassified or 
nonprivileged summaries or extracts of such records considered by the 
Board.
    (c) Payment of expenses. The Air Force has no authority to pay 
expenses of any kind incurred by or on behalf of an applicant in 
connection with a correction of military records under 10 U.S.C. 1034 or 
1552.



               Subpart B--Air Force Discharge Review Board

    Authority: Sec. 8012, 70A Stat. 488; sec. 1553, 72 Stat. 1267, 10 
U.S.C. 8012, 1553.

    Source: 48 FR 37384, Aug. 18, 1983, unless otherwise noted.



Sec. 865.100  Purpose.

    This subpart establishes policies for the review of discharges and 
dismissals under 32 CFR part 70, ``Discharge Review Boards Procedures 
and Standards,'' 47 FR 37770, August 26, 1982. 1982, and explains the 
jurisdiction, authority, and actions of the Air Force Discharge Review 
Board. It applies to all Air Force activities. This subpart is affected 
by the Privacy Act of 1974. The system of records cited in this subpart 
is authorized by 10 U.S.C. 1553 and 8012. Each data gathering form or 
format which is required by this subpart contains a Privacy Act 
Statement, either incorporated in the body of the document or in a 
separate statement accompanying each such document.



Sec. 865.101  References.

    (a) Title 10 U.S.C., section 1553.
    (b) Title 38 U.S.C., sections 101 and 3103, as amended by Pub. L. 
95-126, October 8, 1977.
    (c) DOD Directive 5000.19, ``Policies for the Management and Control 
of Information Requirements,'' March 12, 1976.
    (d) DOD Directive 5000.11, ``Data Elements and Data Codes 
Standardization Program,'' December 7, 1964.
    (e) DOD Directive 5000.12-M ``DOD Manual for Standard Data 
Elements,'' December 1981.
    (f) DOD Directive 1332.14, ``Enlisted Administrative Separations,'' 
January 28, 1982.
    (g) DOD Directive 5400.7, ``DOD Freedom of Information Act 
Program,'' March 24, 1980; title 5 U.S.C., section 552.
    (h) DOD Directive 5400.11, ``Department of Defense Privacy 
Program,'' June 9, 1982; title 5 U.S.C., section 552a.

[[Page 158]]

    (i) Title 10 U.S.C., chapter 47, Uniform Code of Military Justice.
    (j) Wood v. Secretary of Defense, Civ. No. 77-0684 (D.D.C.) (Order, 
December 3, 1981).
    (k) Urban Law Institute of Antioch College, Inc. v. Secretary of 
Defense, Civ. No. 76-0530, (D.D.C.) (Stipulation of Dismissal, January 
31, 1977) (Order and Settlement Agreement, July 30, 1982).
    (l) Air Force Regulation 35-41, Vol III, Separation Procedures for 
USAFR Members, dated October 30, 1975.
    (m) Air Force Regulation 36-2, Officer Personnel, Administrative 
Discharge Procedures, August 2, 1976.
    (n) Air Force Regulation 36-3, Officer Personnel, Administrative 
Discharge Procedures, August 2, 1976.
    (o) Air Force Regulation 36-12, Officer Personnel, Administrative 
Separation of Commissioned Officers and Warrant Officers, July 15, 1977.
    (p) Air Force Regulation 39-10, Separation Upon Expiration of Term 
of Service, for Convenience of Government, Minority, Dependency and 
Hardship, January 3, 1977.
    (q) Air Force Manual 39-12, Separation for Unsuitability, 
Misconduct, Resignation, or Request for Discharge for the Good of the 
Service and Procedures for the Rehabilitation Program, September 1, 
1966.
    (r) Air National Guard Regulation 39-10, Enlisted Personnel-
Separation, December 30, 1971.



Sec. 865.102  Statutory authority.

    The Air Force Discharge Review Board (DRB) was established within 
the Department of the Air Force under section 301 of the Serviceman's 
Readjustment Act of 1944, as amended (now 10 U.S.C. 1553) and further 
amended by Pub. L. 95-126 dated October 8, 1977.



Sec. 865.103  Definition of terms.

    (a) Applicant. A former member of the Armed Forces who has been 
dismissed or discharged administratively in accordance with Military 
Department regulations or by sentence of a court-martial (other than a 
general court-martial) and under statutory regulatory provisions whose 
application is accepted by the DRB concerned or whose case is heard on 
the DRB's own motion. If the former member is deceased or incompetent, 
the term ``applicant'' includes the surviving spouse, next-of-kin, or 
legal representative who is acting on behalf of the former member. When 
the term ``applicant'' is used in this subpart, it includes the 
applicant's counsel or representative, except that the counsel or 
representative may not submit an application for review, waive the 
applicant's right to be present at a hearing, or terminate a review 
without providing the DRB an appropriate power of attorney or other 
written consent of the former member.
    (b) Complainant. A former member of the Armed Forces (or the former 
member's counsel) who submits a complaint in accordance with 
Sec. 865.121 of this subpart with respect to the decisional document 
issued in the former member's own case; or a former member of the Armed 
Forces (or the former member's counsel) who submits a complaint stating 
that correction of the decisional document will assist the former member 
in preparing for an administrative or judicial proceeding in which the 
former member's own discharge will be at issue.
    (c) Counsel or representative. An individual or agency designated by 
the applicant who agrees to represent the applicant in a case before the 
DRB. It includes, but is not limited to: a lawyer who is a member of the 
bar of a federal court or of the highest court of a state; an accredited 
representative designated by an organization recognized by the 
Administrator of Veterans Affairs; a representative from a state agency 
concerned with veterans affairs; and representatives from private 
organizations or local government agencies.
    (d) Discharge. A general term used in this subpart that includes 
dismissal and separation or release from active or inactive military 
status, and actions that accomplish a complete severance of all military 
status. This term also includes the assignment of a reason for such 
discharge and characterization of service.
    (e) Discharge review. The process by which the reason for 
separation, the procedures followed in accomplishing separation, and 
characterization of

[[Page 159]]

service are evaluated. This includes determinations made under the 
provisions of title 38 U.S.C. 3103(e)(2).
    (f) Discharge Review Board (DRB). An administrative board 
constituted by the Secretary of the Air Force and vested with 
discretionary authority to review discharges and dismissals under the 
provisions of title 10 U.S.C. 1553.
    (g) Regional Discharge Review Board. A DRB that conducts discharge 
reviews in a location outside the National Capital Region (NCR).
    (h) DRB President. The senior line officer of any DRB convened for 
the purpose of conducting discharge reviews.
    (i) Hearing. A review involving an appearance before the DRB by the 
applicant or on the applicant's behalf by a counsel or representative.
    (j) Record review. A review of the application, available service 
records, and additional documents (if any) submitted by the applicant.
    (k) National Capital Region (NCR). The District of Columbia; Prince 
Georges and Montgomery Counties in Maryland; Arlington, Fairfax, 
Loudoun, and Prince William Counties in Virginia; and all cities and 
towns included within the outer boundaries of the foregoing counties.
    (l) Director, Air Force Personnel Council. The person designated by 
the Secretary of the Air Force who is responsible for the supervision of 
the Discharge Review function.



Sec. 865.104  Secretarial responsibilities.

    The Secretary of the Air Force is responsible for the overall 
operation of the Discharge Review program within the Department of the 
Air Force. The following delegation of authority have been made:
    (a) To the Office of the Assistant Secretary of the Air Force 
(Manpower, Reserve Affairs and Installations) to act for the Secretary 
of the Air Force in all discharge review actions subject to review by 
the Secretary as specified in Sec. 865.113 of this subpart.
    (b) To the Director, Air Force Personnel Council, for operation of 
all phases of the discharge review function and authority to take action 
in the name of the Secretary of the Air Force in all discharge review 
actions except those specified in Sec. 865.113 of this subpart.



Sec. 865.105  Jurisdiction and authority.

    The DRB has jurisdiction and authority in cases of former military 
personnel who, at the time of their separation from the Service, were 
members of the US Army Aviation components (Aviation Section, Signal 
Corps; Air Service; Air Corps; or Air Forces) prior to September 17, 
1947, or the US Air Force. The DRB does not have jurisdiction and 
authority concerning personnel of other armed services who at the time 
of their separation, were assigned to duty with the Army Air Forces or 
the US Air Force.
    (a) The DRB's review is based on the former member's available 
military records, issues submitted by the former member, or his counsel 
and on any other evidence that is presented to the DRB. The DRB 
determines whether the type of discharge or dismissal the former member 
received is equitable and proper; if not, the DRB instructs the USAF 
Manpower and Personnel Center (AFMPC) to change the discharge reason or 
to issue a new character of discharge according to the DRB's findings.
    (b) The DRB is not authorized to revoke any discharge, to reinstate 
any person who has been separated from the military service, or to 
recall any person to active duty.
    (c) The DRB, on its own motion, may review a case that appears 
likely to result in a decision favorable to the former military member, 
without the member's knowledge or presence. In this case, if the 
decision is:
    (1) Favorable, the DRB directs AFMPC to notify the former member 
accordingly at the member's last known address.
    (2) Unfavorable, the DRB returns the case to the files without any 
record of formal action; the DRB then reconsiders the case without 
prejudice in accordance with normal procedures.



Sec. 865.106  Application for review.

    (a) General. Applications shall be submitted to the Air Force DRB on 
DD Form 293, Application for Review of Discharge or Dismissal from the 
Armed

[[Page 160]]

Forces of the United States (OMB Approval No. 0704-0004) with such other 
statements, affidavits, or documentation as desired. It is to the 
applicant's advantage to submit such documents with the application or 
within 60 days thereafter in order to permit a thorough screening of the 
case. The DD Form 293 is available at most DOD installations and 
regional offices of the Veterans Administration, or by writing to: DA 
Military Review Boards Agency, Attention: SFBA (Reading Room), Room 
1E520, The Pentagon, Washington, DC 20310.
    (b) Timing. A motion or request for review must be made within 15 
years after the date of discharge or dismissal.
    (c) Applicant's responsibilities. An applicant may request a change 
in the character of or reason for discharge (or both).
    (1) Character of discharge. DD Form 293 provides an applicant an 
opportunity to request a specific change in character of discharge (for 
example, General Discharge to Honorable Discharge; Under Other Than 
Honorable Conditions Discharge to General or Honorable Discharge). Only 
a person separated on or after 1 October 1982 while in an entry level 
status may request a change from other than an honorable discharge to 
Entry Level Separation. A request for review from an applicant who does 
not have an Honorable Discharge will be treated as a request for a 
change to an Honorable Discharge unless the applicant requests a 
specific change to another character of discharge.
    (2) Reason for discharge. DD Form 293 provides an applicant an 
opportunity to request a specific change in the reason for discharge. If 
an applicant does not request a specific change in the reason for 
discharge, the DRB will presume that the request for review does not 
involve a request for change in the reason for discharge. Under its 
responsibility to examine the propriety and equity of an applicant's 
discharge, the DRB will change the reason for discharge if such a change 
is warranted.
    (3) The applicant must ensure that issues submitted to the DRB are 
consistent with the request for change in discharge set forth in ``Board 
Action Requested'' of the DD Form 293. If an ambiguity is created by a 
difference between an applicant's issue and the requested action, the 
DRB will respond to the issue in the context of the action requested in 
``Board Action Requested.'' In the case of a Personal Appearance 
hearing, the DRB will attempt to resolve the ambiguity.
    (d) If the member is deceased or mentally incompetent, the spouse, 
next-of-kin, or legal representative may, as agent for the member, 
submit the application for the review along with proof of the member's 
death or mental incompetency.
    (e) Applicants forward their requests for review to the USAF 
Manpower and Personnel Center-mailing address: AFMPC/MPCDOA1, Randolph 
AFB TX 78150. AFMPC will obtain all available military records of the 
former members from the National Personnel Records Center.
    (f) Withdrawal of application. An applicant shall be permitted to 
withdraw an application without prejudice at any time before the 
scheduled review.
    (g) Submission of issues on DD Form 293. Issues must be provided to 
the DRB on DD Form 293 before the DRB closes the review process for 
deliberation and should be submitted in accordance with the guidelines 
of this subpart for submission of issues.
    (1) Issues must be clear and specific. An issue must be stated 
clearly and specifically in order to enable the DRB to understand the 
nature of the issue and its relationship to the applicant's discharge.
    (2) Separate listing of issues. Each issue submitted by an applicant 
should be listed separately. Submission of a separate statement for each 
issue provides the best means of ensuring that the full import of the 
issue is conveyed to the DRB.
    (3) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the DRB, and its use:
    (i) Provides a means for an applicant to set forth clearly and 
specifically those matters that, in the opinion of the applicant, 
provide a basis for changing the discharge;
    (ii) Assists the DRB in focusing on those matters considered to be 
important by an applicant;

[[Page 161]]

    (iii) Assists the DRB in distinguishing between a matter submitted 
by an applicant in the expectation that it will be treated as a 
decisional issue under Sec. 865.112, and those matters submitted simply 
as background or supporting materials;
    (iv) Provides the applicant with greater rights in the event that 
the applicant later submits a complaint under Sec. 865.121 of this 
subpart concerning the decisional document.
    (v) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (4) Incorporation by reference. If the applicant makes an additional 
written submission, such as a brief, in support of the application, the 
applicant may incorporate by reference specific issues set forth in the 
written submission in accordance with the guidance on DD Form 293. The 
reference shall be specific enough for the DRB to identify clearly the 
matter being submitted as an issue. At a minimum, it shall identify the 
page, paragraph, and sentence incorporated. Because it is to the 
applicant's benefit to bring such issues to the DRB's attention as early 
as possible in the review, applicants who submit a brief are strongly 
urged to set forth all issues as a separate item at the beginning of the 
brief. If it reasonably appears that the applicant inadvertently has 
failed expressly to incorporate an issue which the applicant clearly 
identifies as an issue to be addressed by the DRB, the DRB shall respond 
to such an issue in accordance with Secs. 865.111 and 865.112 of this 
subpart.
    (5) Effective date of the new DD Form 293. With respect to 
applications received before November 27, 1982, the DRB shall consider 
issues clearly and specifically stated in accordance with the rules in 
effect at the time of submission. With respect to applications received 
on or after November 27, 1982, if the applicant submits an obsolete DD 
Form 293, the application will be returned with a copy of the revised DD 
Form 293 for reaccomplishment. The DRB will only respond to the issues 
submitted on the new form in accordance with 32 CFR part 70, 47 FR 
37770, August 26, 1982 and this subpart.
    (h) Relationship of issues to character of or reason for discharge. 
If the application applies to both character of and reason for 
discharge, the applicant is encouraged, but not required, to identify 
the issue as applying to the character of or reason for discharge (or 
both). Unless the issue is directed at the reason for discharge 
expressly or by necessary implication, the DRB will presume that it 
applies solely to the character of discharge.
    (i) Relationship of issues to the standards for discharge review. 
The DRB reviews discharges on the basis of issues of propriety and 
equity. The standards used by the DRB are set forth in Sec. 865.120 of 
this subpart. The applicant is encouraged to review those standards 
before submitting any issue upon which the applicant believes a change 
in discharge should be based. The applicant is also encouraged, but not 
required, to identify an issue as pertaining to the propriety or the 
equity of the discharge. This will assist the DRB in assessing the 
relationship of the issue to propriety or equity under Sec. 865.112(d) 
of this subpart.
    (j) Citation of matter from decisions. The primary function of the 
DRB involves the exercise of discretion on a case-by-case basis. 
Applicants are not required to cite prior decisions as the basis for a 
change in discharge. If the applicant wishes to bring the DRB's 
attention to a prior decision as background or illustrative material, 
the citation should be placed in a brief or other supporting documents. 
If, however, it is the applicant's intention to submit an issue that 
sets forth specific principles and facts from a specific cited decision, 
the following requirements apply with respect to applications received 
on or after November 27, 1982.
    (1) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (2) If an applicant's issue cites a prior decision (of the DRB, 
another Board, an agency, or a court), the applicant shall describe the 
specific principles and facts that are contained in the prior decision 
and explain the relevance of cited matter to the applicant's case.

[[Page 162]]

    (3) To insure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Correction Board Reading Room), the applicant 
must provide the DRB with copies of such decisions or of the relevant 
portion of treatise, manual, or similar source in which the principles 
were discussed. At the applicant's request, such materials will be 
returned.
    (4) If the applicant fails to comply with the requirements above, 
the decisional document shall note the defect, and shall respond to the 
issue without regard to the citation.
    (k) Identification by the DRB of issues submitted by an applicant. 
The applicant's issues shall be identified in accordance with this 
section after a review of all materials and information is made.
    (1) Issues on DD Form 293. The DRB shall consider all items 
submitted as issues by an applicant on DD Form 293 (or incorporated 
therein) in accordance with this part. With respect to applications 
submitted before November 27, 1982, the DRB shall consider all issues 
clearly and specifically stated in accordance with the rules in effect 
at the time of the submission.
    (2) Amendment of issues. The DRB shall not request or instruct an 
applicant to amend or withdraw any matter submitted by the applicant. 
Any amendment or withdrawal of an issue by an applicant shall be 
confirmed in writing by the applicant. This provision does not:
    (i) Limit by DRB's authority to question an applicant as to the 
meaning of such matter;
    (ii) Preclude the DRB from developing decisional issues based upon 
such questions:
    (iii) Prevent the applicant from amending or withdrawing such matter 
any time before the DRB closes the review process for deliberation; or
    (iv) Prevent the DRB from presenting an applicant with a list of 
proposed decisional issues and written information concerning the right 
of the applicant to add to, amend, or withdraw the applicant's 
submission. The written information will state that the applicant's 
decision to take such action (or decline to do so) will not be used 
against the applicant in the consideration of the case.
    (3) Additional Issues Identified During a Hearing. The following 
additional procedure shall be used during a hearing in order to promote 
the DRB's understanding of an applicant's presentation. If before 
closing the hearing for deliberation, the DRB believes that an applicant 
has presented an issue not listed on DD Form 293, the FRB may so inform 
the applicant, and the applicant may submit the issue in writing or add 
additional written issues at that time. This does not preclude the DRB 
from developing its own decisional issues.
    (l) Notification of possible bar to benefits. Written notification 
shall be made to each applicant whose record indicates a reason for 
discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This 
notification will advise the applicant that separate action by the Board 
for Correction of Military Records or the Veterans Administration may 
confer eligibility for VA benefits. Regarding the bar to benefits based 
upon the 180 days consecutive unauthorized absence, the following 
applies:
    (1) Such absence must have been included as part of the basis for 
the applicant's discharge under other than honorable conditions.
    (2) Such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.



Sec. 865.107  DRB composition and meeting location.

    (a) The DRB consists of five members, with the senior line officer 
acting as the presiding officer. The presiding officer convenes, 
recesses and adjourns the Board.
    (b) In addition to holding hearings in Washington, DC, the DRB, as a 
convenience to applicants, periodically conducts hearings at selected 
locations throughout the Continental United States. Reviews are 
conducted at locations central to those areas with the greatest number 
of applicants. A continuing review and appraisal is conducted to ensure 
the selected hearing locations are responsive to a majority of 
applicants. Administrative details

[[Page 163]]

and responsibilities for Regional Boards are outlined in Sec. 865.124.



Sec. 865.108  Availability of records and documents.

    (a) Before applying for discharge review, potential applicants or 
their designated resentatives may, and are encouraged to obtain copies 
of their military personnel records by submitting a General Services 
Administration Standard Form 180, Request Pertaining to Military 
Records, to the National Personnel Records Center (NPRC) 9700 Page 
Boulevard, St. Louis, Mo 63132; thus avoiding any lengthy delays in the 
processing of the application (DD Form 293) and the scheduling of 
reviews.
    (1) Once the application for discharge review (DD Form 293) is 
submitted, an applicant's military records are forwarded to the DRB 
where they cannot be reproduced. Submission of a request for an 
applicant's military records, including a request under the Freedom of 
Information Act or Privacy Act after the DD Form 293 has been submitted, 
shall result automatically in the termporary suspension of processing of 
the application for discharge review until the requested records are 
sent to an appropriate location for copying, are copied, and returned to 
the headquarters of the DRB. Processing of the application shall then be 
resumed at whatever stage of the discharge review process is 
practicable.
    (2) Applicants and their designated representatives also may examine 
their military personnel records at the site of their scheduled review 
before the hearing. The DRB shall notify applicants and their designated 
representatives of the dates the records are available for examination 
in their standard scheduling information.
    (b) The DRB is not authorized to provide copies of documents that 
are under the cognizance of another government department, office, or 
activity. Applications for such information must be made by the 
applicant to the cognizant authority. The DRB shall advise the applicant 
of the mailing address of the government department, office, or activity 
to which the request should be submitted.
    (c) If the official records relevant to the discharge review are not 
available at the agency having custody of the records, the applicant 
shall be so notified and requested to provide such information and 
documents as may be desired in support of the request for discharge 
review. A period of not less than 30 days shall be allowed for such 
documents to be submitted. At the expiration of this period, the review 
may be conducted with information available to the DRB.
    (d) The DRB may take steps to obtain additional evidence that is 
relevant to the discharge under consideration beyond that found in the 
official military records or submitted by the applicant, if a review of 
available evidence suggests that it would be incomplete without the 
additional information, or when the applicant presents testimony or 
documents that require additional information to evaluate properly. Such 
information shall be made available to the applicant, upon request, with 
appropriate modifications regarding classified material.
    (1) In any case heard on the request of an applicant, the DRB shall 
provide the applicant and counsel or representative, if any, at a 
reasonable time before initiating the decision process, a notice of the 
availability of all regulations and documents to be considered in the 
discharge review, except for documents in the official personnel or 
medical records and any documents submitted by the applicant. The DRB 
shall also notify the applicant or counsel or representative (i) of the 
right to examine such documents or to be provided with copies of 
documents upon request; (ii) of the date by which such request must be 
received; and (iii) of the opportunity to respond within a reasonable 
period of time to be set be the DRB.
    (2) When necessary to acquaint the applicant with the substance of a 
classified document, the classifying authority, on the request of the 
DRB, shall prepare a summary of or an extract from the document, 
deleting all reference to source of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interest of the United

[[Page 164]]

States. Should preparation of such summary be deemed impracticable by 
the classifying authority, information from the classified source shall 
not be considered by the DRB in its review of the case.
    (e) Current Air Force numbered publications may be obtained from the 
Chief, Central Base Administration at any major Air Force installation 
or by writing:

HQ USAF/DASJL, Washington, DC 20330

      or

DA Military Review Boards Agency, Attention: SPBA (Reading Room), Room 
1E520, Washington, DC 20310



Sec. 865.109  Procedures for hearings.

    (a) The applicant is entitled, by law, to appear in person at his or 
her request before the DRB in open session and to be represented by 
counsel of his or her own selection. The applicant also may present such 
witnesses as he or she may desire.
    (b) There are two types of reviews. They are:
    (1) Record Review. A review of the application, available service 
records, and additional documents (if any) submitted by the applicant.
    (2) Hearing. A personal appearance before the DRB by the applicant 
with or without counsel, or by the counsel only.
    (c) The Government does not compensate or pay the expenses of the 
applicant, applicant's witnesses, or counsel.
    (d) A summary of the available military records of the applicant is 
prepared for use by the DRB in the review process. A copy of the summary 
is available to the applicant and/or his or her counsel, upon request.
    (e) When an applicant has requested a personal appearance and/or 
representation by counsel on the DD Form 293, the DRB sends written 
notice of the hearing time and place to the applicant and designated 
counsel. Evidence of such notification will be placed in the applicant's 
record.
    (f) Personal appearance hearings shall be conducted with recognition 
of the rights of the individual to privacy. Accordingly, presence at 
hearings of individuals other than those whose presence is required will 
be limited to persons authorized by the presiding officer and/or 
expressly requested by the applicant, subject to reasonable limitations 
based upon available space.
    (g) Formal rules of evidence shall not be applied in DRB 
proceedings. The presiding officer shall rule on matters of procedure 
and shall ensure that reasonable bounds of relevancy and materiality are 
maintained in the taking of evidence and presentation of witnesses. 
Applicants and witnesses may present evidence to the DRB panel either in 
person or by affidavit or through counsel. If an applicant or witness 
testifies under oath or affirmation, he or she is subject to questioning 
by Board members.
    (h) There is a presumption of regularity in the conduct of 
governmental affairs. This presumption can be applied in any review 
unless there is substantial credible evidence to rebut the presumption.
    (i) Failure to appear at a hearing or respond to scheduling notice. 
(1) Except as otherwise authorized by the Secretary of the Air Force, 
further opportunity for a personal appearance hearing shall not be made 
available in the following circumstances to an applicant who has 
requested a hearing.
    (i) When the applicant and/or a designated counsel or representative 
has been sent a letter containing the date and location of a proposed 
hearing and fails to make a timely response; or
    (ii) When the applicant and/or a designated representative, after 
being notified by letter of the time and place of the hearing, fails to 
appear at the appointed time, either in person or by representative, 
without having made a prior, timely request for a postponement or 
withdrawal.
    (2) In such cases, the applicant shall be deemed to have waived his/
her right to a hearing, and the DRB shall complete its review of the 
discharge. Further request for a hearing shall not be granted unless the 
applicant can demonstrate that the failure to appear or respond was due 
to circumstances beyond the applicant's control.
    (j) Continuance and postponements. (1) A continuance of a discharge 
review hearing may be authorized by the presiding officer of the Board 
concerned, provided that such continuance is of a

[[Page 165]]

reasonable duration and is essential to achieving a full and fair 
hearing. Where a proposal for continuance is indefinite, the pending 
application shall be returned to the applicant with the option to 
resubmit when the case is fully ready for review.
    (2) Postponements of scheduled reviews normally shall not be 
permitted other than for demonstrated good and sufficient reason set 
forth by the applicant in a timely manner, or for the convenience of the 
government.
    (k) Reconsideration. A discharge review shall not be subject to 
reconsideration except:
    (1) Where the only previous consideration of the case was on the 
motion of the DRB;
    (2) When the original discharge review did not involve a personal 
appearance hearing and a personal appearance is now desired, and the 
provisions of Sec. 865.109(j) do not apply;
    (3) Where changes in discharge policy are announced subsequent to an 
earlier review of an applicant's discharge, and the new policy is made 
expressly retroactive;
    (4) Where the DRB determines that policies and procedures under 
which the applicant was discharged differ in material respects from 
policies and procedures currently applicable on a service-wide basis to 
discharges of the type under consideration, provided that such changes 
in policies or procedures represent a substantial enhancement of the 
rights afforded an applicant in such proceeding;
    (5) Where an individual is to be represented by a counsel/
representative, and was not so represented in any previous consideration 
of the case.
    (6) Where the case was not previously considered under the uniform 
standards published pursuant to Pub. L. 95-126 and application is made 
for such consideration within 15 years after the date of discharge; or
    (7) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision as to whether evidence offered by an applicant in 
support of a request for reconsideration is in fact new, substantial, 
relevant, and was not available to the applicant at the time of the 
original review will be based on a comparison of such evidence with the 
evidence considered in the previous discharge review. If this comparison 
shows that the evidence submitted would have had a probable effect on 
matters concerning the propriety or equity of the discharge, the request 
for reconsideration shall be granted.



Sec. 865.110  Decision process.

    (a) The DRB shall meet in plenary session to review discharges and 
exercise its discretion on a case-by-case basis in applying the 
standards set forth in this regulation.
    (b) The presiding officer is responsible for the conduct of the 
discharge review. The presiding officer shall convene, recess, and 
adjourn the DRB as appropriate, and shall maintain an atmosphere of 
dignity and decorum at all times.
    (c) Each board member shall act under oath or affirmation requiring 
careful, objective consideration of the application. They shall consider 
all relevant material and competent information presented to them by the 
applicant. In addition, they shall consider all available military 
records, together with such other records as may be in the files and 
relevant to the issues before the DRB.
    (d) The DRB shall identify and address issues after a review of the 
following material obtained and presented in accordance with this 
subpart and 32 CFR part 70: available official military records, 
documentary evidence submitted by or on behalf of the applicant, 
presentation of testimony by or on behalf of the applicant, oral or 
written arguments presented by or on behalf of the applicant, and any 
other relevant evidence.
    (e) Application of Standards:
    (1) When the DRB determines that an applicant's discharge was 
improper, the DRB will determine which reason for discharge should have 
been assigned based upon the facts and circumstances properly before the 
discharge authority in view of the regulations governing reasons for 
discharge at the time the applicant was discharged.
    (2) When the board determines that an applicant's discharge was 
inequitable, any change will be based on the

[[Page 166]]

evaluation of the applicant's overall record of service and relevant 
regulations.
    (f) Voting shall be conducted in closed session, a majority of the 
five members' votes constituting the DRB's decision.
    (g) Details of closed session deliberations of a DRB are privileged 
information and shall not be divulged.
    (h) A formal minority opinion may be submitted in instances of 
disagreement between members of a board. The opinion must cite findings, 
conclusions and reasons which are the basis for the opinion. The 
complete case with the majority and minority recommendations will be 
submitted to the Director, Air Force Personnel Council.
    (i) The DRB may request advisory opinions from staff offices of the 
Air Force. These opinions are advisory in nature and are not binding on 
the DRB in its decision making process.



Sec. 865.111  Response to items submitted as issues by the applicant.

    (a) If an issue submitted by an applicant contains two or more 
clearly separate issues, the DRB should respond to each issue under the 
guidance of this section as if it had been set forth separately by the 
applicant.
    (b) If an applicant uses a ``building block'' approach (that is, 
setting forth a series of conclusions on issues that lead to a single 
conclusion purportedly warranting a change in the applicant's 
discharge), normally there should be a separate response to each issue.
    (c) This section does not preclude the DRB from making a single 
response to multiple issues when such action would enhance the clarity 
of the decisional document, but such response must reflect an adequate 
response to each separate issue.
    (d) An item submitted as an issue by an applicant in accordance with 
this regulation shall be addressed as a decisional issue under 
Sec. 865.112 of this subpart in the following circumstances:
    (1) When the DRB decides that a change in discharge should be 
granted, and the DRB bases its decision in whole or in part on the 
applicant's issue; or
    (2) When the DRB does not provide the applicant with the full change 
in discharge requested, and the decision is based in whole or in part on 
the DRB's disagreement with the merits of an issue submitted by the 
applicant.
    (e) If the applicant receives the full change in discharge requested 
(or a more favorable change), that fact shall be noted and the basis 
shall be addressed as a decisional issue even if that basis is not 
addressed as an issue by the applicant. No further response is required 
to other issues submitted by the applicant.
    (f) If the applicant does not receive the full change in discharge 
requested with respect to either the character of or reason for 
discharge (or both), the DRB shall address the items submitted by the 
applicant unless one of the following responses is applicable:
    (1) Duplicate issues. The DRB may state that there is a full 
response to the issue submitted by the applicant under a specified 
decisional issue. This respose may be used only when one issue clearly 
duplicates another or the issue clearly requires discussion in 
conjunction with another issue.
    (2) Citations without principles and facts. The DRB may state that 
any issue, which consists of a citation of a previous decision without 
setting forth any principles and facts from the decision that the 
applicant states are relevant to the applicant's case, does not comply 
with the requirements of Sec. 865.106(g)(1) of this part.
    (3) Unclear issues. The DRB may state that it cannot respond to an 
item submitted by the applicant as an issue because the meaning of the 
item is unclear. An issue is unclear if it cannot be understood by a 
reasonable person familiar with the discharge review process after a 
review of the materials considered under Sec. 865.110(d) of this 
subpart.
    (4) Nonspecific issues. The DRB may state that it cannot respond to 
an item submitted by the applicant as an issue because it is not 
specific. A submission is considered not specific if a reasonable person 
familiar with the discharge review process after a review of the 
materials considered under Sec. 865.110(d), cannot determine the 
relationship between the applicant's submission and the particular 
circumstances of the case. This response may be used only if

[[Page 167]]

the submission is expressed in such general terms that no other response 
is applicable. For example, if the DRB disagrees with the applicant as 
to the relevance of matters set forth in the submission, the DRB 
normally will set forth the nature of the disagreement under the 
guidance in Sec. 865.112 of this subpart with respect to decisional 
issues, or it will reject the applicant's position on the basis of 
Sec. 865.111(f)(1) or Sec. 865.111(f)(2). If the applicant's submission 
is so general that none of those provisions is applicable, then the DRB 
may state that it cannot respond because the item is not specific.



Sec. 865.112  Decisional issues.

    (a) The decisional document shall discuss the issues that provide a 
basis for the decision whether there should be a change in the character 
of or reason for discharge. In order to enhance clarity, the DRB should 
not address matters other than issues relied upon in the decision or 
raised by the applicant.
    (b) Partial Change. When the decision changes a discharge but does 
not provide the applicant with the full change in discharge requested, 
the decisional document shall address both the issues upon which change 
is granted and the issues upon which the DRB denies the full change 
requested.
    (c) Relationship of Issue To Character of or Reason for Discharge. 
Generally, the decisional document should specify whether a decisional 
issue applies to the character of or reason for discharge (or both), but 
it is not required to do so.
    (d) Relationship of an Issue To Propriety or Equity. (1) If an 
applicant identifies an issue as pertaining to both propriety and 
equity, the DRB will consider it under both standards.
    (2) If an applicant identifies an issue as pertaining to the 
propriety of the discharge (for example, by citing a propriety standard 
or otherwise claiming that a change in discharge is required as a matter 
of law), the DRB shall consider the issue solely as a matter of 
propriety. Except as provided in Sec. 865.112(d)(4), the DRB is not 
required to consider such an issue under the equity standards.
    (3) If the applicant's issue contends that the DRB is required as a 
matter of law to follow a prior decision by setting forth an issue of 
propriety from the prior decision and decribing its relationship to the 
applicant's case, the issue shall be considered under the propriety 
standards and addressed under Sec. 865.112(e) or Sec. 865.112(f).
    (4) If the applicant's issue sets forth principles of equity 
contained in a prior DRB decision, describes the relationship to the 
applicant's case, and contends that the DRB is required as a matter of 
law to follow the prior case, the decisional document shall note that 
the DRB is not bound by its discretionary decisions in prior cases under 
the standards in Sec. 865.120 of this subpart. However, the principles 
cited by the applicant, and the description of the relationship of the 
principles to the applicant's case, shall be considered under the equity 
standards and addressed under Sec. 865.112(h) or Sec. 865.112(i).
    (5) If the applicant's issue cannot be identified as a matter of 
propriety or equity, the DRB shall address it as an issue of equity.
    (e) Change of discharge: Issues of propriety. If a change in the 
discharge is warranted under the propriety standards the decisional 
document shall state that conclusion and list the errors or expressly 
retroactive changes in policy that provide a basis for the conclusion. 
The decisional document shall cite the facts in the record that 
demonstrate the relevance of the error or change in policy to the 
applicant's case. If the change in discharge does not constitute the 
full change requested by the applicant, the reasons for not granting the 
full change shall be addressed.
    (f) Denial of the full change requested: Issues of propriety. If the 
decision rejects the applicant's position on an issue of propriety, or 
if it is otherwise decided on the basis of an issue of propriety that 
the full change in discharge requested by the applicant is not 
warranted, the decisional document shall note that conclusion. The 
decisional document shall list reasons for its conclusion on each issue 
of propriety under the following guidance:

[[Page 168]]

    (1) If a reason is based in whole or in part upon a part, statute, 
constitutional provision, judicial determination, or other source of 
law, the DRB shall cite the pertinent source of law and the facts in the 
record that demonstrate the relevance of the source of law to the 
particular circumstances in the case.
    (2) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable Air Force regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the DRB shall make a finding of fact for each 
such event or circumstance.
    (i) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (ii) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the DRB), the decisional 
document shall set forth the conflicting evidence, and explain why the 
information relied upon was more persuasive than the information that 
was rejected. If the presumption of regularity is cited as the basis for 
rejecting such information, the decisional document shall explain why 
the contradictory evidence was insufficient to overcome the presumption. 
In an appropriate case, the explanation as to why the contradictory 
evidence was insufficient to overcome the presumption of regularity may 
consist of a statement that the applicant failed to provide sufficient 
corroborating evidence, or that the DRB did not find the applicant's 
testimony to be sufficiently credible to overcome the presumption.
    (3) If the DRB disagrees with the position of the applicant on an 
issue of propriety, the following guidance applies in addition to the 
guidance in Sec. 842.112(f) (1) and (2).
    (i) The DRB may reject the applicant's position by explaining why it 
disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant).
    (ii) The DRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant) are not relevant to the 
applicant's case.
    (iii) The DRB may reject an applicant's position by stating that the 
applicant's issue of propriety is not a matter upon which the DRB grants 
a change in discharge, and by providing an explanation for this 
position. When the applicant indicates that the issue is to be 
considered in conjunction with one or more other specified issues, the 
explanation will address all such specified issues.
    (iv) The DRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the DRB agreed with the applicant's position.
    (v) If the applicant takes the position that the discharge must be 
changed because of an alleged error in a record associated with the 
discharge, and the record has not been corrected by the organization 
with primary responsibility for corrective action, respond that it will 
presume the validity of the record in the absence of such corrective 
action. If the organization empowered to correct the record is within 
the Department of the Air Force, the DRB should provide the applicant 
with a brief description of the procedures for requesting correction of 
the record. If the DRB on its own motion cites this issue as a 
decisional issue on the basis of equity, it shall address the issue as 
such.
    (vi) When an applicant's issue contains a general allegation that a 
certain course of action violated his or her constitutional rights, 
respond in appropriate cases by noting that the action was consistent 
with statutory or regulatory authority, and by citing the presumption of 
constitutionality that attaches to statutes and regulations. If, on the 
other hand, the applicant makes a specific challenge to the 
constitutionality of the action by challenging

[[Page 169]]

the application of a statute or regulation is a particular set of 
circumstances, it is not sufficient to respond solely by citing the 
presumption of constitutionality of the statute or regulation when the 
applicant is not challenging the constitutionality of the statute or 
regulation. Instead, the response must address the specific 
circumstances of the case.
    (g) Denial of the full change in discharge requested when propriety 
is not at issue. If the applicant has not submitted an issue of 
propriety and the DRB has not otherwise relied upon an issue of 
propriety to change the discharge, the decisional document shall contain 
a statement to that effect. The DRB is not required to provide any 
further discussion as to the propriety of the discharge.
    (h) Change of discharge: Issues of equity. If the DRB concludes that 
a change in the discharge is warranted under equity standards the 
decisional document shall list each issue of equity upon which this 
conclusion is based. The DRB shall cite the facts in the record that 
demonstrate the relevance of the issue to the applicant's case. If the 
change in discharge does not constitute the full change requested by the 
applicant, the reasons for not giving the full change requested shall be 
discussed.
    (i) Denial of the full change requested: Issues of equity. If the 
DRB rejects the applicant's position on an issue of equity, or if the 
decision otherwise provides less than the full change in discharge 
requested by the applicant, the decisional document shall note that 
conclusion. The DRB shall list reasons for its conclusions on each issue 
of equity in accordance with the following:
    (1) If a reason is based in whole or in part upon a part, statute, 
constitutional provision, judicial determination, or other source of 
law, the DRB shall cite the pertinent source of law and the facts in the 
record that demonstrate the relevance of the source of law to the 
exercise of discretion on the issue of equity in the applicant's case.
    (2) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable Air Force regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the DRB shall make a finding of fact for each 
such event or circumstance.
    (i) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (ii) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the DRB), the decisional 
document shall set forth the conflicting evidence, and explain why the 
information relied upon was more persuasive than the information that 
was rejected. If the presumption of regularity is cited as the basis for 
rejecting such information, the decisional document shall explain why 
the contradictory evidence was insufficient to overcome the presumption. 
In an appropriate case, the explanation as to why the contradictory 
evidence was insufficient to overcome the presumption of regularity may 
consist of a statement that the applicant failed to provide sufficient 
corroborating evidence, or that the DRB did not find the applicant's 
testimony to be sufficiently credible to overcome the presumption.
    (3) If the DRB disagrees with the position of the applicant on an 
issue of equity, the following guidance applies in addition to the 
guidance in Sec. 865.112(i) (1) and (2):
    (i) The DRB may reject the applicant's position by explaining why it 
disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant).
    (ii) The DRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant) are not relevant to the 
applicant's case.
    (iii) The DRB may reject an applicant's position by explaining why 
the applicant's issue is not a matter upon which the DRB grants a change 
in discharge as a matter of equity. When the

[[Page 170]]

applicant indicates that the issue is to be considered in conjunction 
with other specified issues, the explanation will address all such 
issues.
    (iv) The DRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the DRB agreed with the applicant's position.
    (v) If the applicant takes the position that the discharge should be 
changed as a matter of equity because of an alleged error in a record 
associated with the discharge, and the record has not been corrected by 
the organization with primary responsibility for corrective action, the 
DRB may respond that it will presume the validity of the record in the 
absence of such corrective action. However, the DRB will consider 
whether it should exercise its equitable powers to change the discharge 
on the basis of the alleged error. If it declines to do so, the DRB 
shall explain why the applicant's position did not provide a sufficient 
basis for the change in the discharge requested by the applicant.
    (4) When the DRB concludes that aggravating factors outweigh 
mitigating factors, the DRB must set forth reasons such as the 
seriousness of the offense, specific circumstances surrounding the 
offense, number of offenses, lack of mitigating circumstances, or 
similar factors. The DRB is not required, however, to explain why it 
relied on any such factors unless the applicability or weight of such 
factors are expressly raised as an issue by the applicant.
    (5) If the applicant has not submitted any issues and the DRB has 
not otherwise relied upon an issue of equity for a change in discharge, 
the decisional document shall contain a statement to that effect, and 
shall note that the major factors upon which the discharge was based are 
set forth in the service record portion of the decisional document.



Sec. 865.113  Recommendations by the Director of the Personnel Council and Secretarial Review Authority.

    (a) The Director of the Personnel Council may forward cases for 
consideration by the Secretarial Reviewing Authority (SRA) under rules 
established by the Secretary of the Air Force.
    (b) The following categories of dicharge review requests are subject 
to the review of the Secretary of the Air Force or the Secretary's 
designee.
    (1) Cases in which a minority of the DRB panel requests their 
submitted opinions be forwarded for consideration (refer to 
Sec. 865.110(h)).
    (2) Cases when required in order to provide information to the 
Secretary on specific aspects of the discharge review function which are 
of interest to the Secretary.
    (3) Any case which the Director, Air Force Personnel Council 
believes is of significant interest to the Secretary.
    (c) The Secretarial Reviewing Authority is the Secretary of the Air 
Force or the official to whom he has delegated this authority. The SRA 
may review the types of cases described above before issuance of the 
final notification of a decision. Those cases forwarded for review by 
the SRA shall be considered under the standards set forth in 
Sec. 865.121 and DOD Directive 1332.28.
    (d) There is no requirement that the Director of the Personnel 
Council submit a recommendation when a case is forwarded to the SRA. If 
a recommendation is submitted, however, it should be in accordance with 
the guidelines described below.
    (e) Format for Recommendation. If a recommendation is provided, it 
shall contain the Director's views whether there should be a change in 
the character of or reason for discharge (or both). If the Director 
recommends such a change, the particular change to be made shall be 
specified. The recommendation shall set forth the Director's position on 
decisional issues submitted by the applicant in accordance with the 
following:
    (1) Adoption of the DRB's Decisional document. The recommendation 
may state that the Director has adopted the decisional document prepared 
by the majority. The Director shall ensure that the decisional document 
meets the requirements of this regulation.
    (2) Adoption of the Specific Statements From the Majority. If the 
Director adopts the views of the majority only in part, the 
recommendation shall

[[Page 171]]

cite the specific matter adopted from the majority. If the Director 
modifies a statement submitted by the majority, the recommendation shall 
set forth the modification.
    (3) Response To Issues Not Included in Matter Adopted From the 
Majority. The recommendation shall set forth the following if not 
adopted in whole or in part from the majority:
    (i) The issues on which the Director's recommendation is based. Each 
such decisional issue shall be addressed by the Director in accordance 
with Sec. 865.112 of this subpart.
    (ii) The Director's response to items submitted as issues by the 
applicant under Sec. 865.111 of this subpart.
    (iii) Reasons for rejecting the conclusions of the majority with 
respect to decisional issues which, if resolved in the applicant's 
favor, would have resulted in greater relief for the applicant than that 
afforded by the Director's recommendation. Each issue shall be addressed 
in accordance with Sec. 865.112 of this subpart.
    (f) Copies of the proposed decisional document on cases that have 
been forwarded to the SRA (except for cases reviewed on the DRB's own 
motion without the participation of the applicant or the applicant's 
counsel) shall be provided to the applicant and counsel or 
representative, if any. The document will include the Director's 
recommendation to the SRA, if any. Classified information shall be 
summarized.
    (g) The applicant shall be provided with a reasonable period of 
time, but not less than 25 days, to submit a rebuttal to the SRA. An 
issue in rebuttal consists of a clear and specific statement by the 
applicant in support of or in opposition to the statements of the DRB or 
Director on decisional issues and other clear and specific issues that 
were submitted by the applicant. The rebuttal shall be based solely on 
matters in the record when the DRB closed the case for deliberation or 
in the Director's recommendation.
    (h) Review of the Decisional document. If corrections in the 
decisional document are required, the decisional document shall be 
returned to the DRB for corrective action. The corrected decisional 
document shall be sent to the applicant and counsel or representative, 
if any, but a further opportunity for rebuttal is not required unless 
the correction produces a different result or includes a substantial 
change in the discussion by the DRB or Director of the issues raised by 
the majority or the applicant.
    (i) The Addendum of the SRA. The decision of the SRA shall be in 
writing and shall be appended as an addendum to the decisional document.
    (1) The SRA's Decision. The addendum shall set forth the SRA's 
decision whether there will be a change in the character of or reason 
for discharge (or both); if the SRA concludes that a change is 
warranted, the particular change to be made shall be specified. If the 
SRA adopts the decision recommended by the DRB or the Director, the 
decisional document shall contain a reference to the matter adopted.
    (2) Discussion of Issues. In support of the SRA's decision, the 
addendum shall set forth the SRA's position on decisional issues, items 
submitted by an applicant and issues raised by the DRB and the Director. 
The addendum will state that:
    (i) The SRA has adopted the Director's recommendation.
    (ii) The SRA has adopted the proposed decisional document prepared 
by the DRB.
    (iii) If the SRA adopts the views of the DRB or the Director only in 
part, the addendum shall cite the specific statements adopted. If the 
SRA modifies a statement submitted by the DRB or the Director, the 
addendum shall set forth the modification.
    (3) Response To Issues Not Included in Master Adopted From the DRB 
or the Director. The addendum shall set forth the following if not 
adopted in whole or in part from the DRB or the Director:
    (i) A list of the issues on which the SRA's decision is based. Each 
such decisional issue shall be addressed by the SRA. This includes 
reasons for rejecting the conclusion of the DRB or the Director with 
respect to decisional issues which, if resolved in the applicant's 
favor, would have resulted in change to the discharge more favorable to 
the applicant than that afforded by the SRA's decision.

[[Page 172]]

    (ii) The SRA's response to items submitted as issues by the 
applicant will be in accordance with Sec. 865.111 of this subpart.
    (4) Response to Rebuttal. (i) If the SRA grants the full change in 
discharge requested by the applicant (or a more favorable change), that 
fact shall be noted, the decisional document shall be addressed 
accordingly, and no further response to the rebuttal is required.
    (ii) If the SRA does not grant the full change in discharge 
requested by the applicant (or a more favorable change), the addendum 
shall list each issue in rebuttal submitted by an applicant and shall 
set forth the response of the SRA under the following:
    (A) If the SRA rejects an issue in rebuttal, the SRA may respond in 
accordance with the principles in Sec. 865.112 of this subpart.
    (B) If the matter adopted by the SRA provides a basis for the SRA's 
rejection of the rebuttal material, the SRA may note that fact and cite 
the specific matter adopted that responds to the issue in rebuttal.
    (C) If the matter submitted by the applicant does not meet the 
requirements for rebuttal material in paragraph (g) of this section, 
that fact shall be noted.
    (j) Index Entries. Appropriate index entries shall be prepared for 
the SRA's actions for matters that are not adopted from the DRB's 
proposed decisional document.



Sec. 865.114  Decisional document.

    (a) A decisional document shall be prepared for each review 
conducted by the DRB.
    (b) At a minimum, the decisional decument shall contain:
    (1) The date, character of, and reason for discharge or dismissal 
certificate issued to the applicant upon separation from the military 
service, including the specific regulatory authority under which the 
discharge or dismissal certificate was issued.
    (2) The circumstances and character of the applicant's service as 
extracted from military records and information provided by other 
government authority or the applicant, such as, but not limited to:
    (i) Date of enlistment (YYMMDD).
    (ii) Period of enlistment.
    (iii) Age at enlistment.
    (iv) Length of service.
    (v) Periods of unauthorized absence.
    (vi) Conduct and efficiency ratings (numerical or narrative).
    (vii) Highest rank achieved.
    (viii) Awards and decorations.
    (ix) Educational level.
    (x) Aptitude test scores.
    (xi) Incidents of punishment pursuant to Article 15, Uniform Code of 
Military Justice (including nature and date of offense or punishment).
    (xii) Conviction by court-martial.
    (xiii) Prior military service and type of discharge received.
    (3) A list of the type of documents submitted by or on behalf of the 
applicant (including a written brief, letters of recommendation, 
affidavits concerning the circumstances of the discharge, or other 
documentary evidence), if any.
    (4) A statement whether the applicant testified, and a list of the 
type of witnesses, if any, who testified on behalf of the applicant.
    (5) A notation whether the application pertained to the character of 
discharge, the reason for discharge, or both.
    (6) The DRB's conclusions on the following:
    (i) Whether the character of or the reason for discharge should be 
changed.
    (ii) The specific changes to be made, if any.
    (7) A list of the items submitted as issues on DD Form 293 or 
expressly incorporated therein and such other items submitted as issues 
by the applicant that are identified as inadvertently omitted under 
Sec. 865.106(g)(4). If the issues are listed verbatim on DD Form 293, a 
copy of the relevant portion of the form may be attached. Issues that 
have been withdrawn or modified with the consent of the applicant need 
not be listed.
    (8) The response to items submitted as issues by the applicant under 
the guidance in Sec. 865.111.
    (9) A list of decisional issues and a discussion of such issues 
under the guidance of Sec. 865.112.
    (10) Minority views, if any, when authorized under the rules of the 
Secretary of the Air Force.

[[Page 173]]

    (11) The recommendation of the Director when required by 
Sec. 865.113.
    (12) Any addendum of the SRA when required by Sec. 865.113.
    (13) Advisory opinions, including those containing factual 
information, when such opinions have been relied upon for final decision 
or have been accepted as a basis for rejecting any of the applicant's 
issues. Such advisory opinions or relevant portions thereof that are not 
fully set forth in the discussion of decisional issues or otherwise in 
response to items submitted as issues by the application shall be 
incorporated by reference. A copy of the opinions incorporated by 
reference shall be appended to the decision and included in the record 
of proceedings.
    (14) A record of the DRB member's names and votes.
    (15) Index entries for each decisional issue under appropriate 
categories listed in the Subject/Category listing.
    (16) An authentication of the document by an appropriate official.



Sec. 865.115  Issuance of decisions following discharge review.

    (a) The applicant and counsel or representative, if any, shall be 
provided with a copy of the decisional document and of any further 
action in review. The applicant (and counsel, if any) shall be notified 
of the availability of the complaint process in accordance with 
Sec. 865.121 of this subpart and of the right to appeal to the Board for 
the Correction of Military Records. Final notification of decisions 
shall be issued to the applicant with a copy to the counsel or 
representative, if any.
    (b) Notification to applicants with copies to counsel or 
representatives, shall normally be made through the U.S. Postal Service. 
Such notification shall consist of a notification of the decision, 
together with a copy of the decisional document.
    (c) Notification of HQ AFMPC/MPCDOAl shall be for the purpose of 
appropriate action and inclusion of review matter in the military 
records. Such notification shall bear appropriate certification of 
completeness and accuracy.
    (d) Actions on review by Secretarial Reviewing Authority, when 
occurring, shall be provided to the applicant and counsel or 
representative in the same manner as the notification of the review 
decision.



Sec. 865.116  Records of DRB proceeding.

    (a) When the proceedings in any review have been concluded, a record 
thereof will be prepared. Records may include written records, 
electromagnetic records, or a combination thereof.
    (b) At a minimum, the record will include the following:
    (1) The application for review (DD Form 293).
    (2) A record of the testimony in verbatim, summarized, or recorded 
form at the option of the DRB.
    (3) Documentary evidence or copies thereof considered by the DRB 
other than the military record.
    (4) Brief/arguments submitted by or on behalf of the applicant.
    (5) Advisory opinions considered by the DRB, if any.
    (6) The findings, conclusions, and reasons developed by the DRB.
    (7) Notification of the DRB's decision to the cognizant custodian of 
the applicant's records, or reference to the notification document.
    (8) Minority reports, if any.
    (9) A copy of the decisional document.



Sec. 865.117  Final disposition of the record of proceedings.

    The original record of proceedings and all appendices thereto shall 
in all cases be incorporated in the military record of the applicant and 
returned to the custody of the National Personnel Records Center (NPRC), 
St. Louis, Missouri. If a portion of the original record cannot be 
stored with the service record, the service record shall contain a 
notation as to the place where the record is stored.



Sec. 865.118  Availability of Discharge Review Board documents for public inspection and copying.

    (a) A copy of the decisional document prepared in accordance with 
Sec. 865.114 of this subpart, shall be made available for public 
inspection and copying promptly after a notice of final decision is sent 
to the applicant.

[[Page 174]]

    (b) To the extent required to prevent a clearly unwarranted invasion 
of personal privacy, identifying details of the applicant and other 
persons will be deleted from documents made available for public 
inspection and copying. Names, addresses, social security numbers, and 
military service numbers must be deleted. Written justification shall be 
made for all other deletions and shall be available for public 
inspection.
    (c) The DRB shall ensure that there is a means for relating a 
decisional document number to the name of the applicant to permit 
retrieval of the applicant's records when required in processing a 
complaint in accordance with Sec. 865.121 of this subpart.
    (d) Any other privileged or classified material contained in or 
appended to any documents required to be furnished the applicant and 
counsel/representative or made available for public inspection and 
copying may be deleted therefrom only if a written statement of the 
basis for the deletions is provided the applicant and counsel/
representative and made available for public inspection. It is not 
intended that the statement be so detailed as to reveal the nature of 
the withheld material.
    (e) DRB documents made available for public inspection and copying 
shall be located in the Armed Forces Discharge Review/Correction Boards 
Reading Room. The documents shall be indexed in usable and concise form 
so as to enable the public and those who represent applicants before the 
DRB to isolate from all these decisions that are indexed those cases 
that may be similar to an applicant's case and that indicate the 
circumstances under and/or reasons for which the DRB or the Secretary of 
the Air Force granted or denied relief.
    (1) The reading file index shall include, in addition to any other 
items determined by the DRB, the case number, the date, character of, 
reason for, and authority for the discharge. It shall further include 
the decisions of the DRB and reviewing authority, if any, and the issues 
addressed in the statement of findings, conclusions and reasons.
    (2) The index shall be maintained at selected permanent locations 
throughout the United States. This ensures reasonable availability to 
applicants at least 30 days before a regional board review. The index 
shall also be made available at sites selected for regional Boards for 
such periods as the DRB is present and in operation. An applicant who 
has requested a regional board review shall be advised in the notice of 
scheduled hearings.
    (3) The Armed Forces Discharge Review/Correction Board Reading Room 
shall publish indexes quarterly for the DRB. The DRB shall be 
responsible for timely submission to the Reading Room of individual case 
information required for update of indexes. These indexes shall be 
available for public inspection or purchase (or both) at the Reading 
Room. This information will be provided to applicants in the notice of 
acceptance of the application.
    (4) Correspondence relating to matters under the cognizance of the 
Reading Room (including request for purchase of indexes) shall be 
addressed to:

DA Military Review Board Agency, Attention: SFBA (Reading Room), Room 
1E520, The Pentagon, Washington DC 20310



Sec. 865.119  Privacy Act information.

    Information protected under the Privacy Act is involved in discharge 
review functions. The provisions of 32 CFR part 286a will be observed 
throughout the processing of a request for review of discharge or 
dismissal.



Sec. 865.120  Discharge review standards.

    (a) Objective of review. The objective of a discharge review is to 
examine the propriety and equity of the applicant's discharge and to 
effect changes, if necessary. The standards of review and the underlying 
factors which aid in determining whether the standards are met shall be 
historically consistent with criteria for determining honorable service. 
No factors shall be established which require automatic change or denial 
of a change in a discharge. Neither the DRB nor the Secretary of the Air 
Force shall be bound by any methodology of weighing of the factors in 
reaching a determination. In each case, the DRB or Secretary of the Air 
Force

[[Page 175]]

shall give full, fair, and impartial consideration to all applicable 
factors prior to reaching a decision. An applicant may not receive a 
less favorable discharge than that issued at the time of separation. 
This does not preclude correction of clerical errors.
    (b) Propriety. A discharge shall be deemed to be proper unless in 
the course of discharge review, it is determined that:
    (1) There exists an error of fact, law, procedures, or discretion 
associated with the discharge at the time of issuance; and that the 
rights of the applicant were prejudiced thereby (such error shall 
constitute prejudicial error, if there is substantial doubt that the 
discharge would have remained the same if the error had not been made); 
or
    (2) A change in policy by the Air Force made expressly retroactive 
to the type of discharge under consideration, requires a change in the 
discharge.
    (c) When a record associated with the discharge at the time of 
issuance involves a matter in which the primary responsibility for 
corrective action rests with another organization (for example, another 
Board, agency, or court), the DRB will recognize an error only to the 
extent that the error has been corrected by the organization with 
primary responsibility for correcting the record.
    (d) The primary function of the DRB is to exercise its discretion on 
issues of equity by reviewing the individual merits of each application 
on a case-by-case basis. Prior decisions in which the DRB exercised its 
discretion to change a discharge based on issues of equity (including 
the factors cited in such decisions or the weight given to factors in 
such decisions) do not blind the DRB in its review of subsequent cases 
because no two cases present the same issues of equity.
    (e) The following applies to applicants who received less than fully 
honorable administrative discharges because of their civilian misconduct 
while in an inactive reserve component and who were discharged or had 
their discharge reviewed on or after April 20, 1971: the DRB shall 
either recharacterize the discharge to honorable without any additional 
proceedings or additional proceedings shall be conducted in accordance 
with the Court's Order of December 3, 1981, in Wood v. Secretary of 
Defense to determine whether proper grounds exist for the issuance of a 
less than honorable discharge, taking into account that:
    (1) An Under Other Than Honorable (formerly Undesirable) Discharge 
for an inactive reservist can only be based upon civilian misconduct 
found to have affected directly the performance of military duties;
    (2) A General Discharge for an inactive reservist can only be based 
upon civilian misconduct found to have had an adverse impact on the 
overall effectiveness of the military, including military morale and 
efficiency.
    (f) The following applies to applicants who received less than fully 
honorable administrative discharges (between June 21, 1971 and March 2, 
1982) because evidence developed by or as a direct result of complusory 
urinalysis testing was introduced in the discharge proceedings. 
Applicants who believe they are members of the above category will so 
indicate this by writing ``CATEGORY W'' in block 7 of their DD Form 293. 
AFMPC/MPCDOA1 will expedite processing these applications to the 
designated ``CATEGORY W'' reviewer. For class members the designated 
reviewer shall either recharacterize the discharge to honorable without 
any additional proceedings or complete a review to determine whether 
proper ground exists for the issuance of a less than honorable 
discharge. If the applicant is determined not to be a class member, the 
application is returned to normal review procedure channels. If new 
administrative proceedings are initiated, the former service member must 
be notified of:
    (1) The basis of separation other than drug abuse or use or 
possession of drugs based upon compelled urinalysis that was specified 
in the commander's report and upon which the Air Force now seeks to base 
a less than honorable discharge.
    (2) The full complement of procedural protections that are required 
by current regulations.
    (3) Name, address and telephone number of an Area Defense Counsel 
with

[[Page 176]]

whom the former service member has a right to consult, and
    (4) The right to participate in the new proceedings to be conducted 
at the Air Force base nearest the former service member's current 
address, or to elect to maintain his or her present character of 
discharge.
    (g) Equity. A discharge shall be deemed to be equitable unless:
    (1) In the course of a discharge review, it is determined that the 
policies and procedures under which the applicant was discharged differ 
in material respects from policies and procedures currently applicable 
on a service-wide basis to discharges of the type under consideration 
provided that:
    (i) Current policies or procedures represent a substantial 
enhancement of the rights afforded an applicant in such proceedings; and
    (ii) There is substantial doubt that the applicant would have 
received the same discharge if relevant current policies and procedures 
had been available to the applicant at the time of the discharge 
proceedings under consideration.
    (2) At the time of issuance, the discharge was inconsistent with 
standards of discipline in the Air Force; or
    (3) In the course of a discharge review, it is determined that a 
change is warranted based upon consideration of the applicant's military 
record and other evidence presented to the DRB viewed in conjunction 
with the factors listed in this section and the regulations under which 
the applicant was discharged, even though the discharge was determined 
to have been otherwise equitable and proper at the time of issuance. 
Areas of consideration include, but are not limited to:
    (i) Quality of Service, as evidenced by factors such as:
    (A) Service History, including date of enlistment, period of 
enlistment, highest rank achieved, conduct or efficiency ratings 
(numerical or narrative).
    (B) Awards and decorations.
    (C) Letters of commendation or reprimand.
    (D) Combat service.
    (E) Wounds received in action.
    (F) Record of promotions and demotions.
    (G) Level of responsibility at which the applicant served.
    (H) Other acts of merit that may not have resulted in a formal 
recognition through an award or commendation.
    (I) Length of service during the period which is the subject of the 
discharge review.
    (J) Prior military service and type of discharge received or 
outstanding post-service conduct to the extent that such matters provide 
a basis for a more thorough understanding of the performance of the 
applicant during the period of service which is the subject of the 
discharge review.
    (K) Convictions by court-martial.
    (L) Record of non-judicial punishment.
    (M) Convictions by civil authorities while a member of the Air 
Force, reflected in the discharge proceedings or otherwise noted in 
military records.
    (N) Record of periods of unauthorized absence.
    (O) Records relating to a discharge in lieu of court-martial.
    (ii) Capability to Serve, as evidenced by factors such as:
    (A) Total Capabilities. This includes an evaluation of matters such 
as age, educational level, and aptitude scores. Consideration may also 
be given to whether the individual met normal military standards of 
acceptability for military service and similar indicators of an 
individual's ability to serve satisfactorily, as well as ability to 
adjust to the military service.
    (B) Family/Personal Problems. This includes matters in extenuation 
or mitigation of the reason for discharge that may have affected the 
applicant's ability to serve satisfactorily.
    (C) Arbitrary or Capricious Actions. This includes actions by 
individuals in authority which constitute a clear abuse of such 
authority and which, although not amounting to prejudicial error, may 
have contributed to the decision to discharge or to the characterization 
of service.
    (D) Discrimination. This includes unauthorized acts as documented by 
records or other evidence.

[[Page 177]]



Sec. 865.121  Complaints concerning decisional documents and index entries.

    Former members of the Air Force or their counsel or representative 
may submit complaints with respect to the decisional document issued in 
the former member's case.
    (a) All complaints should be processed in accordance with 32 CFR 
part 70 and should be forwarded to:

Assistant Secretary of Defense, Manpower, Reserve Affairs and Logistics, 
The Pentagon, Washington, DC 20331

    (b) The Air Force Discharge Review Board will respond to all 
complaints in accordance with 32 CFR part 70.



Sec. 865.122  Summary of statistics for Discharge Review Board.

    The Air Force Discharge Review Board shall prepare and provide to 
the Deputy Assistant Secretary of Defense (Military Personnel and Force 
Management) DASD(MP&FM), Office of the ASD(MRA&L), a semiannual report 
of discharge review actions in accordance with Sec. 865.125.



Sec. 865.123  Approval of exceptions to directive.

    Only the Secretary of the Air Force may authorize or approve a 
waiver of, or exception to, any part of this subpart.



Sec. 865.124  Procedures for regional hearings.

    Composition of the board for these hearings consists of three 
members from Washington with augmentation by two members from nearby 
local Air Force resources. The nearest Air Force installation or Air 
Force Reserve Unit is tasked to provide two officers to serve as members 
of the DRB. Active duty members will serve on the board as an additional 
duty. Reserve members will be on a temporary tour of active duty (TTAD) 
for the duration of the hearings. Detailed information must be provided 
to the individuals selected to serve before each hearing date. The 
administrative staff in Washington processes all cases for regional 
hearings, establishes hearing dates, and returns the records to the 
Manpower and Personnel Center at Randolph AFB, Texas, when the case is 
finalized.



Sec. 865.125  Report requirement.

    Semi-annual reports will be submitted by the 20th day of April and 
October for the preceding 6-month reporting period (1 October through 31 
March and 1 April through 30 September). The reporting period will be 
inclusive from the first through the last days of each reporting period. 
The report will contain four parts:
    (a) Part 1--Regular Cases are all those that are not included in 
part 2 below.
    (b) Part 2--Other cases include the following:
    (1) Reconsideration of President Ford's memorandum of 19 January 
1977.
    (2) Special Discharge Review Program cases.
    (3) Statutes of Limitation Cases--those heard under Pub. L. 95-126 
by waiver of 10 U.S.C. 1553.
    (c) Part 3--Total--combine parts 1 and 2.
    (d) Part 4--Cases outstanding include all those eligible cases in 
which a DD Form 293 has been received but has not been heard by the 
Discharge Review Board as the reporting date for this report. Reports 
will be prepared by the Air Force Discharge Review Board and submitted 
to the Army Discharge Review Board (executive agent for DRB matters).



Sec. 865.126  Sample report format.

                           Summary of Statistics for Air Force Discharge Review Board
                                               RCS: DD-M(SA) 1489
                                                   [FY ------]
                                               [----------------]
----------------------------------------------------------------------------------------------------------------
                                          Record review                Hearing                    Total
                                   -----------------------------------------------------------------------------
                                                    Number                    Number                    Number
                                      Applied      approved     Applied      approved     Applied      approved
----------------------------------------------------------------------------------------------------------------
                                    ...........  ...........  ...........  ...........  ...........  ...........

[[Page 178]]

 
                                    ...........  ...........  ...........  ...........  ...........  ...........
----------------------------------------------------------------------------------------------------------------
Part 1 Regular Cases.
Part 2 Other.
Part 3 Total.
Part 4 Cases Outstanding.
 
 Note: Identify numbers separately for regional DRB hearings. Use of additional footnotes to clarify or amplify
  the statistic being reported is encouraged.


[[Page 179]]



                         SUBCHAPTER H [RESERVED]





                    SUBCHAPTER I--MILITARY PERSONNEL





PART 881--DETERMINATION OF ACTIVE MILITARY SERVICE AND DISCHARGE FOR CIVILIAN OR CONTRACTUAL GROUPS--Table of Contents




Sec.
881.1  Applying for discharge.
881.2  Screening the application.
881.3  Individual Service Review Board.
881.4  Processing the application.
881.5  If an application is approved.
881.6  If an application is denied.
881.7  Discharge upgrade.
881.8  Disposition of documents.
881.9  Form prescribed.

Appendix A to Part 881--Glossary of Terms

    Authority: 38 U.S.C. 106.

    Source: 64 FR 33400, June 23, 1999, unless otherwise noted.



Sec. 881.1  Applying for discharge.

    (a) Who may apply.
    (1) You may apply for discharge if you were a member of a recognized 
group. A spouse, next of kin, or legal representative may apply on 
behalf of a deceased or mentally incompetent person. Proof of death or 
mental incompetency must accompany such an application.
    (b) Where to apply.
    (1) Send your application for discharge to the Directorate of 
Personnel Program Management, Separations Branch, HQ AFPC/DPPRS, 550 C 
Street West, Suite 11, Randolph AFB, TX 78150-4713.
    (c) How to apply.
    (1) Fill out DD Form 2168, Application for Discharge of Member or 
Survivor of Member of Group Certified to Have Performed Active Duty With 
the Armed Forces of the U.S., or write a letter.
    (2) Obtain DD Form 2168 from HQ AFPC/DPRS, 550 C Street West, Suite 
11, Randolph AFB, TX 78150-4713 or the National Personnel Records Center 
(NPRC), 9700 Page Boulevard, St. Louis, MO 63132.
    (3) Make your application as complete as possible; the burden of 
proof is on you. Provide all available evidence to document your 
membership in the group and what services you performed.
    (d) Documentation may include:
    (1) Flight logbooks.
    (2) Separation or discharge certificates.
    (3) Mission orders.
    (4) Identification cards.
    (5) Contracts.
    (6) Personnel action forms.
    (7) Employment records.
    (8) Education certificates and diplomas.
    (9) Pay vouchers.
    (10) Certificates of awards.
    (11) Casualty information.
    (e) The Air Force will not under any circumstances provide or pay 
for legal representation for you.



Sec. 881.2  Screening the applications.

    (a) HQ AFPC/DPPRS reviews your application and does one of the 
following:
    (1) Refers your application to another military department and sends 
you a written notice or a copy of the referral letter.
    (2) Returns your application without prejudice if the Secretary of 
the Air Force has not determined whether members of your group are 
certified for discharge. You may resubmit the application after the 
Secretary determines that your group is certified.
    (3) Refers applications made by a group (or individuals on behalf of 
a group) to the Secretary of the Air Force, Manpower, Reserve Affairs 
and installations, Personnel Council (AFPC), The Pentagon, Washington, 
DC 20330 for further review. This Part does not cover such applications.
    (4) Returns the application to you if it is complete.
    (5) Refers all complete applications to the Individual Service 
Review Board for further consideration.



Sec. 881.3  Individual Service Review Board.

    (a) The Commander, Headquarters Air Force Personnel Center (HQ AFPC/
CC) establishes the Individual Service Review Board as necessary.

[[Page 180]]

    (b) The Board consists of military members in grade Lieutenant 
Colonel or higher, and civilian members, grade GS-12 or higher, 
appointed by the HQ AFPC/CC. Three members constitute a quorum. The 
senior member acts as Board chairperson. A nonvoting member keeps a 
record of the Board's actions on an application.
    (c) The Directorate of Personnel Program Management, Separations 
Branch, HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 
78150-4713, provides administrative support to the Board.



Sec. 881.4  Processing the application.

    (a) Individual Service Review Board meets in closed session to 
consider the application, the evidence submitted, and other relevant 
information. Applicants or their representatives do not have the right 
to appear before the Board.
    (b) The Board:
    (1) Evaluates the evidence.
    (2) Decides whether the applicant was a member of a recognized group 
during dates of its qualification.
    (3) Decides whether to approve the application for discharge.
    (4) Determines the period and character of the applicant's service.



Sec. 881.5  If an application is approved.

    (a) If the Board approves an application for discharge and 
determines that it should be honorable, HQ AFPC/DPPRSO issues the 
applicant a DD Form 256AF, Honorable Discharge, and a DD Form 214, 
Certificate of Release or Discharge from Active Duty under AFI 36-3202, 
Separation Documents (formerly AFR 35-6).
    (b) Enter a military grade on the DD Form 214 only if the 
Administrator of Veterans' Affairs requests it.
    (c) Enter a pay grade on the DD Form 214 only for individuals who 
were killed or received service-related injuries or disease during the 
approved period of service. For proof of grade criteria, see DoD 
1000.20, Determinations of Active Military Service and Discharge 
Civilian or Contractual Personnel, section E, paragraph 3g.
    (d) If the Board approves an application for discharge but 
determines that it should be ``under honorable conditions'' (general 
discharge), it forwards the case to the Air Force Personnel Council 
(AFPC) for final decision. HQ AFPC/DPPRSO, 550 C Street West, Suite 20, 
Randolph AFB, TX 78150-4722, then issues the appropriate discharge 
certificate and a DD Form 214 to the applicant.
    (e) To appeal the characterization of a discharge, submit DD Form 
149, Application for Correction of Military Record Under the Provisions 
of Title 10, U.S.C., Section 1552, to the Secretary of the Air Force 
through the Air Force Review Boards Office (SAF/MIBR).
    (f) If the member dies or is declared missing during the period of 
equivalent active military duty, the Directorate of Casualty Matters (HQ 
AFPC/DPW) issues DD Form 1300, Report of Casualty, including military 
pay grade, to the next of kin or a designated representative, according 
to DODI 1300.18, Military Personnel Casualty Matters, Policies and 
Procedures, and AFI 36-3002, Casualty Services (formerly AFR 30-25).



Sec. 881.6  If an application is denied.

    (a) Once the Board has decided your case, HQ AFPC/DPPRS notifies 
you:
    (1) If the Board denied your application for discharge because there 
is insufficient evidence to show that you belonged to a qualifying 
group.
    (2) If the Board determines that your service cannot be 
characterized as ``under honorable conditions.''
    (b) You have 60 days from the date of this notice to submit 
additional evidence or information to HQ AFPC/DPPRS, 550 C Street West, 
Suite 11, Randolph AFB, TX 78150-4713.
    (c) If after 60 days you have submitted new evidence, the Board 
reviews the case again. If the Board determines that your application 
now merits approval, it proceeds according to paragraph (e).
    (d) If you do not submit additional evidence or if, after review, 
the Board determines that your application should be denied, it forwards 
the case to the AFPC for final decision.
    (e) HQ AFPC/DPPRS notifies you of the final decision.
    (f) If your application is denied, the Board returns it to you 
without prejudicing any later consideration.

[[Page 181]]



Sec. 881.7  Discharge upgrade.

    If you are approved for a General Discharge, you may apply to the 
Air Force Discharge Review Board for discharge upgrade under AFI 36-
3201, Air Force Discharge Review Board (formerly AFR 20-10) or to the 
Air Force Board for Correction of Military Records under AFI 36-2603, 
Air Force Board for Correction of Military Records (formerly AFR 31-3). 
SAF/MIBR provides copies of these instructions and application forms to 
individuals who received a General Discharge.



Sec. 881.8  Disposition of documents.

    (a) File a copy of the application, supporting evidence, and DD Form 
214 in the Master Personnel Records Groups maintained at the National 
Personnel Records Center, St. Louis, MO 63132, for approved cases. Send 
copies of DD Form 214 to:
    (1) The applicant.
    (2) The Veterans' Administration.
    (3) HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 
78150-4713.



Sec. 881.9  Form prescribed.

    The following form, DD Form 2168, Application for Discharge of 
Member or Survivor of Member of a Group Certified To Have Performed 
Active Duty With the Armed Forces of the U.S., is required for 
processing the stated claims.

                Appendix A to Part 881--Glossary of Terms

    Active Military Service--See 38 U.S.C. 106.
    Civilian or Contractual Group--An organization whose members 
rendered service to the U.S. Air Force or a predecessor organization 
during a period of armed conflict. In that capacity the members were 
considered civilian employees with the Armed Forces or contractors with 
the U.S. Government, providing direct support to the Armed Forces. An 
example of such a group is the Women's Air Force Service Pilots, who 
were Federal civilian employees attached to the U.S. Army Air Force 
during World War II.
    Discharge--Complete severance from the active military service. The 
discharge includes a reason and characterization of service.
    Recognized Group--A group whose service the Secretary of the Air 
Force has determined was ``active duty for the purposes of all laws 
administered by the Department of Veterans' Affairs,'' such as VA 
benefits under 38 U.S.C. 106.



PART 884--DELIVERY OF PERSONNEL TO UNITED STATES CIVILIAN AUTHORITIES FOR TRIAL--Table of Contents




Sec.
884.0  Purpose.
884.1  Authority.
884.2  Assigned responsibilities.
884.3  Placing member under restraint pending delivery.
884.4  Release on bail or recognizance.
884.5  Requests under the interstate agreement on Detainer's Act.
884.6  Requests by Federal authorities for military personnel stationed 
          within the United States and its possessions.
884.7  Requests by state and local authorities when the requested member 
          is located in that state.
884.8  Request for delivery by state authorities when the member is 
          located in a different state.
884.9  Requests for custody of members stationed outside the United 
          States.
884.10  Returning members, employees, and family members from overseas.
884.11  Procedures for return of an Air Force member to the United 
          States.
884.12  Delays in returning members to the United States.
884.13  Denials of a request for return of a member to the United 
          States.
884.14  Compliance with court orders by civilian employees and family 
          members.
884.15  Procedures involving a request by Federal or state authorities 
          for custody of an overseas civilian employee or a command-
          sponsored family member.
884.16  Reporting requests for assistance and action.
884.17  Commander's instruction letter to member.
884.18  Civilian authority's acknowledgment of transfer of custody and 
          agreement to notify member's commander.

    Authority: 10 U.S.C. 814; 10 U.S.C. 8013; Sec. 721(a), Pub. L. 100-
456, 102 Stat. 2001.

    Source: 65 FR 64348, Oct. 27, 2000, unless otherwise noted.



Sec. 884.0  Purpose.

    This part establishes procedures for making Air Force members, 
civilian personnel, and family members available to U.S. civilian 
authorities for trial or specified court appearances. It implements 32 
CFR part 146. This part does not confer any rights, benefits, 
privileges, or form of due process procedure upon any individuals.

[[Page 182]]



Sec. 884.1  Authority.

    A general court martial convening authority (GCMCA) may authorize 
delivery of a member of that command to Federal or state civil 
authorities. The GCMCA may delegate this authority to an installation or 
equivalent commander. See AFPD 51-10, Making Military Personnel, 
Employees, and Dependents Available to Civilian authorities,\1\ 
paragraphs 8 and 9 for sources of authority.
---------------------------------------------------------------------------

    \1\ Air Force publications may be obtained through NTIS, 5285 Port 
Royal Road, Springfield, VA 22161, if not available online at http://
afpubs.hq.af.mil.
---------------------------------------------------------------------------



Sec. 884.2  Assigned responsibilities.

    (a) The Under Secretary of Defense (USD), Personnel & Readiness 
(P&R), is the denial authority for all requests for return of members to 
the United States for delivery to civilian authorities when the request 
falls under Sec. 884.9(e).
    (b) The Air Force Judge Advocate General (TJAG) may approve requests 
that fall under Sec. 884.9(e) or recommend denial of such requests. TJAG 
or a designee may approve or deny:
    (1) Requests for return of members to the United States for delivery 
to civilian authorities when the request falls under Sec. 884.9(f).
    (2) Requests for delays of up to 90 days completing action on 
requests for return of members to the United States for delivery to 
civilian authorities.
    (c) The Air Force Legal Services Agency's Military Justice Division 
(HQ AFLSA/JAJM), 172 Luke Avenue, Suite 343, Bolling AFB, DC 20332-5113, 
processes requests for return of members to the United States for 
delivery to civilian authorities and notifies requesting authorities of 
decisions on requests. HQ AFLSA/JAJM completes action on requests within 
30 days after receipt of the request, unless a delay is granted; they 
send all reports and notifications to USD/P&R and to the DoD General 
Counsel (DoD/GC), as required by this part; and they handle all 
communications with requesters.



Sec. 884.3  Placing member under restraint pending delivery.

    Continue restraint only as long as is reasonably necessary to 
deliver the member to civilian authorities. See AFPD 51-10, paragraph 5. 
To determine whether probable cause exists and whether a reasonable 
belief exists that restraint is necessary, the commander should refer to 
the Manual for Courts-Martial (MCM), 1984, specifically, Rules for 
Courts-Martial (RCM) 305(h)(2)(B), and the discussion following it. The 
requirement for the formal review of restraint found in MCM 1984, RCM 
305, and AFI 51-201, Military Justice Guide,\2\ does not apply.
---------------------------------------------------------------------------

    \2\ See footnote in Sec. 884.1.
---------------------------------------------------------------------------



Sec. 884.4  Release on bail or recognizance.

    (a) Before delivering an Air Force member to a civilian authority, 
the commander or designee directs the member in writing to report to a 
designated Air Force unit, activity, or recruiting office for further 
instructions in the event the civilian authority releases the member 
(see Sec. 884.17). The commander designates the member's unit, if the 
civilian authority is in the immediate vicinity of the member's base. 
The commander advises the designated Air Force unit, activity, or 
recruiting office of the situation. Once the member has been released 
and has reported to the designated authority, it immediately sends the 
member's name, rank, Social Security number (SSN). organization, and 
other pertinent information to the member's commander, who then provides 
further instructions.
    (b) The member's commander notifies the military personnel flight 
(MPF) of the situation. In turn, the MPF provides an information copy to 
the Air Force Personnel Center (AFPC) assignment office responsible for 
the member's Air Force specialty code (AFSC), as listed in AFMAN 36-
2105, Officer Classification,\3\ or AFMAN 36-2108, Airman 
Classification. \3\ If contact cannot be made with the member's 
commander, the Air Force unit, activity, or recruiting office previously 
designated by the commander obtains instructions from HQ AFPC/DPMARS or 
DPMRPP2.
---------------------------------------------------------------------------

    \3\ See footnote in Sec. 884.1.

---------------------------------------------------------------------------

[[Page 183]]



Sec. 884.5  Requests under the interstate agreement on Detainer's Act.

    When either the prisoner or state authorities make a request under 
the Detainer's Act, follow the procedures in Title 18 U.S.C. App. 
Section 1, et seq. The Act applies only to a person who has entered upon 
a term of imprisonment in a penal or correctional institution and is, 
therefore inapplicable to members in pretrial confinement.



Sec. 884.6  Requests by Federal authorities for military personnel stationed within the United States and its possessions.

    (a) When Federal authorities request the delivery of service 
members, the Air Force will normally deliver service members when the 
request is accompanied by a warrant issued pursuant to the Federal Rules 
of Criminal Procedure, rule 4, or when a properly identified Federal 
officer represents that such a warrant has been issued.
    (b) A U.S. marshal, deputy marshal, or other officer authorized by 
law will call for and take into custody persons desired by Federal 
authorities for trial. The officer taking custody must execute a 
statement in substantially the form set out in Sec. 884.18.



Sec. 884.7  Requests by state and local authorities when the requested member is located in that state.

    (a) The Air Force normally will turn over to the civilian 
authorities of the state, upon their request. Air Force members charged 
with an offense against state or local law. Each request by such 
civilian authorities for the surrender of a member of the Air Force 
should normally be accompanied by a copy of an indictment, information, 
or other document used in the state to prefer charges, or a warrant that 
reflects the charges and is issued by a court of competent jurisdiction.
    (b) Before making delivery to civilian authorities of a state, the 
commander having authority to deliver will obtain a written agreement, 
substantially in the form of Sec. 884.18, from a duly authorized officer 
of the state.
    (c) Where the state authority cannot agree to one or more of the 
conditions set out in the form, the commander may authorize 
modification. The requirements of the agreement are substantially met 
when the state authority informs the accused's commander of the 
accused's prospective release for return to military authorities and 
when the state furnishes the accused transportation back to his or her 
station, together with necessary funds to cover incidental expenses en 
route. The accused's commander provides copies of the statement or 
agreement of this section and in Sec. 884.6(b) to the civilian authority 
to whom the member was delivered and to the Air Force unit, activity, or 
recruiting office nearest to the place of trial designated in the 
agreement as the point of contact in the event of release on bail or on 
recognizance (see Sec. 884.4). The accused's commander immediately 
notifies the civilian authority if the member has been discharged from 
the Air Force.



Sec. 884.8  Request for delivery by state authorities when the member is located in a different state.

    (a) This part applies to members who are located in the United 
States. With respect to the extradition process, Air Force personnel 
have the same status as persons not in the Armed Forces. Accordingly, if 
a state other than the state in which the member is located requests the 
delivery of a military member, in the absence of a waiver of extradition 
process by the member concerned, that state must use its normal 
extradition procedures to make arrangements to take the individual into 
custody in the state where he or she is located.
    (b) The Air Force will not transfer a military member from a base 
within one state to a base within another state for the purpose of 
making the member amenable to prosecution by civilian authorities.



Sec. 884.9  Requests for custody of members stationed outside the United States.

    (a) Authority. This section implements Pub. L. 100-456, section 
721(a), and DoD Directive 5525.9, December 27, 1988.
    (b) The Air Force expects members to comply with orders issued by 
Federal or state court of competent jurisdiction, unless noncompliance 
is legally

[[Page 184]]

justified. Air Force members who persist in noncompliance are subject to 
adverse administrative action, including separation for cause under AFI 
36-3206, Administrative Discharge Procedures, and AFI 36-3208, 
Administrative Separation of Airmen.
    (c) Air Force officials will ensure that members do not use 
assignments or officially sponsored residence outside the United States 
to avoid compliance with valid orders of Federal or state court of 
competent jurisdiction.
    (d) Noncompliance with a court order may be legally justified when 
the individual can adequately demonstrate that the conduct, which is the 
subject of the complaint or request, was sanctioned by supplemental 
court orders, equally valid court orders of other jurisdictions, good 
faith legal efforts to resist the request, or other reasons. HQ USAF/
JAG, HQ AFLSA/JACA, and Air Force legal offices in the jurisdiction 
concerned will provide legal support to servicing staff judge advocates 
who request assistance in reviewing these issues.
    (e) When Federal, state, or local authorities request delivery of an 
Air Force member stationed outside the United States who is convicted of 
or charged with a felony or other serious offense or who is sought by 
such authorities in connection with the unlawful or contemptuous taking 
of a child from the jurisdiction of a court or from the lawful custody 
of another person, the member's commander will normally expeditiously 
return the member to the United States for delivery to the requesting 
authorities.
    (1) A serious offense is defined as one punishable by confinement 
for more than 1 year under the laws of the requesting jurisdiction.
    (2) Delivery of the member is not required if the controversy can be 
resolved without returning the member to the United States or if the 
request for delivery of the member is denied in accordance with this 
instruction.
    (f) Ordinarily, do not return an Air Force member stationed outside 
the United States to the United States for delivery to civilian 
authorities if the offense is not specified in paragraph (e) of this 
section. TJAG may direct return when deemed appropriate under the facts 
and circumstances of the particular case.
    (g) Before taking action under this section, give the member the 
opportunity to provide evidence of legal efforts to resist the court 
order or process sought to be enforced or otherwise to show legitimate 
cause for noncompliance.\4\
---------------------------------------------------------------------------

    \4\ See footnote in Sec. 884.1
---------------------------------------------------------------------------



Sec. 884.10  Returning members, employees, and family members from overseas.

    The Air Force expects persons overseas wanted by Federal or state 
authorities to make themselves available to those authorities for 
disposition. If they do not, DoD Directive 5525.9, Compliance of DoD 
Members, Employees, and Family Members Outside the United States With 
Court Orders, 10 U.S.C. 814, and Pub. L. 100-456, section 721(a), 
authorize and require commanders to respond promptly to requests from 
civilian authorities for assistance in returning members, civilian 
employees, and family members from overseas.



Sec. 884.11  Procedures for return of an Air Force member to the United States.

    (a) Include the following information in a request for return of an 
Air Force member to the United States for delivery to civilian 
authorities.
    (1) Fully identify the member sought by providing the member's name, 
grade, SSN, and unit of assignment, to the extent the information is 
known.
    (2) Specify the offense for which the member is sought. If the 
member is charged with a crime, specify the maximum punishment under the 
laws of the requesting jurisdiction. Specify whether the member is 
sought in connection with the unlawful or contemptuous taking of a child 
from the jurisdiction of a court or the lawful custody of another.
    (3) Include copies of all relevant requests for assistance, 
indictments, information, or other instruments used to bring charges, 
all relevant court orders or decrees, and all arrest warrants, writs of 
attachment or capias (writs authorizing arrests), or other

[[Page 185]]

process directing or authorizing the requesting authorities to take the 
member into custody. Also, include reports of investigation and other 
materials concerning the background of the case if reasonably available.
    (4) Indicate whether the requesting authorities will secure the 
member's lawful delivery or extradition from the port of entry to the 
requesting jurisdiction, whether they will do so at their own expense, 
and whether they will notify HQ AFLSA/JAJM of the member's release from 
custody and of the ultimate disposition of the matter.
    (5) Any U.S. attorney or assistant U.S. attorney, governor or other 
duly authorized officer of a requesting state or local jurisdiction, or 
the judge, magistrate, or clerk of a court of competent jurisdiction 
must sign the request.
    (b) Civilian authorities making requests for return of members to 
the United States for delivery to them should direct their request to HQ 
AFLSA/JAJM. If another Air Force agency or official receives the 
request, immediately send it to HQ AFLSA/JAJM.
    (c) Upon receipt of a request, HQ AFLSA/JAJM promptly notifies the 
member's commander, who consults with the servicing staff judge 
advocate. The commander provides a report of relevant facts and 
circumstances and recommended disposition of the request through command 
channels to HQ AFLSA/JAJM. If the commander recommends denial of the 
request or a delay in processing or approving it, the commander provides 
the information specified in Sec. 884.12(a)(1) through (a)(4) or 
Sec. 884.13(a)(1) through (a)(4).
    (d) After proper authority has approved a request for return of a 
member to the United States for delivery to civilian authorities, HQ 
AFLSA/JAJM notifies AFPC of the decision to return the member to the 
United States. AFPC issues permanent change of station (PCS) orders, 
assigning the member to an installation as close to the requesting 
jurisdiction as possible, considering the needs of the Air Force for 
personnel in the member's rank and AFSC.
    (e) HQ AFLSA/JAJM notifies requesting authorities of the member's 
new assignment, port of entry into the United States and estimated time 
of arrival. Except during unusual circumstances, HQ AFLSA/JAJM notifies 
requesting authorities at least 10 days before the member's return.



Sec. 884.12  Delays in returning members to the United States.

    (a) On a request to return a member to the United States for 
delivery to civilian authorities. TJAG may grant a delay of not more 
than 90 days in completing action when one or more of the following are 
present:
    (1) Efforts are in progress to resolve the controversy to the 
satisfaction of the requesting authorities without the member's return 
to the United States.
    (2) Additional time is required to permit the member to provide 
satisfactory evidence of legal efforts to resist the request or to show 
legitimate cause for noncompliance.
    (3) Additional time is required to permit the commander to determine 
the specific effect of the loss of the member on command mission and 
readiness or to determine pertinent facts and circumstances relating to 
any international agreement, foreign judicial proceeding, DoD, Air 
Force, or other military department investigation or court-martial 
affecting the member.
    (4) Other unusual facts or circumstances warrant delay.
    (b) AFLSA/JAJM promptly reports all delays in cases falling under 
AFPD 51-10,\5\ paragraph 3, through SAF/GC and SAF/MI or USD/P&R and to 
DoD/GC.
---------------------------------------------------------------------------

    \5\ See footnote in Sec. 884.1.
---------------------------------------------------------------------------

    (c) Delays in excess of 90 days are not authorized in cases falling 
under AFPD 51-10, paragraph 3, unless approved by USD/P&R.



Sec. 884.13  Denials of a request for return of a member to the United States.

    (a) A request for return of a member to the United States for 
delivery to civilian authorities may be denied when:
    (1) The member's return would have an adverse impact on operational 
readiness or mission requirements.
    (2) An international agreement precludes the member's return.

[[Page 186]]

    (3) The member is the subject of foreign judicial proceedings, 
court-martial, or a DoD, Air Force, or other military department 
investigation.
    (4) The member showed satisfactory evidence of legal efforts to 
resist the request or other legitimate cause for noncompliance or when 
other unusual facts or circumstances warrant a denial.
    (b) Commanders promptly send to HQ AFLSA/JAJM information supporting 
a determination that denial may be appropriate. In cases warranting 
denial, TJAG promptly sends a recommendation and supporting 
documentation, through SAF/GC and SAF/MI, to USD/P&R for decision.
    (c) The fact that a recommendation for denial is pending does not by 
itself authorize noncompliance or a delay in compliance with any 
provision of this section, but TJAG may consider a pending request for 
denial in determining whether to grant a delay.



Sec. 884.14  Compliance with court orders by civilian employees and family members.

    (a) The Air Force expects civilian employees and family members to 
comply with orders issued by Federal or state court of competent 
jurisdiction, unless noncompliance is legally justified. Air Force 
civilian employees who persist in noncompliance are subject to adverse 
administrative action, including separation for cause as provided in AFI 
36-704, Discipline and Adverse Actions (PA).\6\
---------------------------------------------------------------------------

    \6\ See footnote in Sec. 884.1
---------------------------------------------------------------------------

    (b) Air Force officials ensure that civilian personnel and family 
members do not use assignments or officially sponsored residence outside 
the United States to avoid compliance with valid orders of Federal or 
state court of competent jurisdiction.



Sec. 884.15  Procedures involving a request by Federal or state authorities for custody of an overseas civilian employee or a command-sponsored family member.

    (a) The procedures of this section apply to civilian employees, 
including nonappropriated fund instrumentality (NAFI) employees, who are 
assigned outside the United States, and to command-sponsored family 
members residing outside the United States.
    (b) This section applies only when Air Force authorities receive a 
request for assistance from Federal, state, or local authorities 
involving noncompliance with a court order and when noncompliance is the 
subject of any of the following: An arrest warrant; indictment, 
information, or other document used in the jurisdiction to prefer 
charges; or a contempt citation involving the unlawful or contemptuous 
removal of a child from the jurisdiction of the court or the lawful 
custody of a parent or third party.
    (c) To the maximum extent possible, consistent with provisions of 
international agreements and foreign court orders, DoD and military 
department investigations, and judicial proceedings, commanders comply 
with requests for assistance. After exhausting all reasonable efforts to 
resolve the matter without the employee or family member returning to 
the United States, the commander shall strongly encourage the individual 
to comply. The commander shall consider imposing disciplinary action 
(including removal) against the employee or withdrawing command 
sponsorship of the family member, as appropriate, for failure to comply.



Sec. 884.16  Reporting requests for assistance and action.

    The commander or designee promptly reports each request for 
assistance and intended action by message. Send reports to HQ AFLSA/
JAJM, which submits required reports, through channels, to USD/P&R, HQ 
AFLSA/JAJM conducts all communications with requesters.



Sec. 884.17  Commander's instruction letter to member.

Subject: Instructions in Case of Release on Bail or Personal 
          Recognizance

    1. You are being delivered to the custody of civilian authorities, 
pursuant to the provisions of AFI 51-1001. This action does not 
constitute a discharge from the Air Force. In the event that you are 
released from civilian custody on bail or on your own recognizance, 
report immediately in person or by telephone to the (Air Force unit, 
activity, or recruiting office) for further instructions. Advise the 
commander of your name, rank,

[[Page 187]]

SSN, organization, the circumstances of your release from custody, and 
the contents of this letter.
    2. Certain restrictions may be placed upon you by civilian 
authorities in connection with your temporary release from custody. Be 
certain to include in your report what these limitations are.
    3. AFI 51-1001, paragraph 4 provides that the authority to whom you 
report will notify your commander. If that is not possible, request the 
nearest Air Force base military personnel flight to contact HQ AFPC/
DPMARS or DPMRPP2 by the fastest means available. Provide your name, 
rank, SSN, organization, and the circumstances of your release; further 
instruction will then be given to you.


[Signature Element]



Sec. 884.18  Civilian authority's acknowledgment of transfer of custody and agreement to notify member's commander.

    1. A warrant for the arrest of (name, rank, and SSN), hereinafter 
referred to as the ``member,'' and who is charged with (offenses) has 
been issued by (civilian authority) and in execution, thereof, I accept 
his or her custody.
    2. In consideration of the delivery of member at (location) to me 
for trial upon the above charge, pursuant to the authority vested in me 
as (position), I hereby agree to the following:
    a. The commander (name, rank, unit, telephone), will be advised of 
the disposition of the charges.
    b. The member will be immediately returned to the custody of the 
military upon completion of the trial, if acquitted; or upon satisfying 
the sentence imposed, if convicted; or upon other disposition of the 
case.
    c. The member's return will be to (location) or to such other place 
as may be designated by the Department of the Air Force.
    3. The member's return will not be required if the member's 
commander has indicated that return is not appropriate. Instead of 
actual delivery, transportation for the member may be arranged so long 
as it is without expense to the United States or to the member.
    4. Pending disposition of the charges, the member will remain in the 
custody of [name of agency and location], unless released on bail or the 
member's own recognizance, in which event [Air Force unit, activity, or 
recruiting office nearest place of trial] will be notified.


[Signature Element]



PART 887--ISSUING OF CERTIFICATES IN LIEU OF LOST OR DESTROYED CERTIFICATES OF SEPARATION--Table of Contents




Sec.
887.0  Purpose.
887.1  Explanation of terms.
887.2  Safeguarding certificates.
887.3  Persons authorized CILs.
887.4  Requesting CILs.
887.5  Issuing CILs.
887.6  Who must sign CILs.
887.7  Persons separated under other than honorable conditions 
          (undesirable or bad conduct) or dishonorable discharge.
887.8  Where to apply for certificates.
887.9  Furnishing photocopies of documents.

    Authority: 10 U.S.C. 1041.

    Source: 53 FR 876, Jan. 14, 1988, unless otherwise noted.



Sec. 887.0  Purpose.

    This part tells who may apply for a certificate in lieu of a lost or 
destroyed certificate of separation. It explains where and how to apply. 
It implements 10 U.S.C. 1041 and DOD Instruction 1332.13, December 23, 
1968. This publication applies to ANG and USAFR members. It authorizes 
collection of information protected by the Privacy Act of 1974. The 
authority to collect the information is title 10, U.S.C. 8912 and 
Executive Order 9397. Each form used to collect personal information has 
an associated Privacy Act Statement that will be given to the individual 
before information is collected. System of records notice F035 AF MP C, 
Military Personnel Records System, applies.



Sec. 887.1  Explanation of terms.

    (a) Certificate in lieu (CIL). A certificate issued in lieu of a 
lost or destroyed certificate of service, discharge, or retirement.
    (b) Service person. One who:
    (1) Is currently serving as a member of the Air Force; or
    (2) Formerly served in the active military service as a member of 
the Air Force and all military affiliation was terminated after 
September 25, 1947.
    (c) Surviving spouse. A survivor who was legally married to a member 
of the service at the time of the member's death.

[[Page 188]]

    (d) Guardian. A person or group of persons legally placed in charge 
of the affairs of a service member adjudicated mentally incompetent.



Sec. 887.2  Safeguarding certificates.

    Certificates of separation are important personal documents. 
Processing applications for CILs is costly to the Air Force. To keep 
requests for CILs at a minimum:
    (a) Personnel officers will tell members of the importance of 
safeguarding the original certificates.
    (b) Persons who issue CILs will type or stamp across the lower 
margin ``THIS IS AN IMPORTANT RECORD--SAFEGUARD IT'' (if it is not 
printed on the certificate).
    Note: Do not show this legend on DD Form 363AF, Certificate of 
Retirement.



Sec. 887.3  Persons authorized CILs.

    CILs may be issued only to:
    (a) A service member whose character of service was honorable or 
under honorable conditions.
    (b) A surviving spouse.
    (c) A guardian, when a duly certified or otherwise authenticated 
copy of the court order of appointment is sent with the application.



Sec. 887.4  Requesting CILs.

    (a) Standard Form 180 (SF 180), Request Pertaining to Military 
Records, should be used by persons who had service as shown in 
Sec. 887.3(a). However, a letter request, with sufficient identifying 
data and proof that the original certificate of separation was lost or 
destroyed, may be used. Members on active duty will forward their 
applications through their unit commander.
    (b) SF 180, or any similar form used by agencies outside the 
Department of Defense, will be used by persons shown in Sec. 887.3(b), 
(c), and Sec. 887.7.
    Note: Persons authorized CILs may be assisted in their request by 
the Customer Service Unit (DPMAC) in the consolidated base personnel 
office.



Sec. 887.5  Issuing CILs.

    The issuing authority makes sure that the proper CIL form is issued, 
particularly if the service member has had service in both the Army and 
Air Force. The assignment status as of September 26, 1947 determines if 
the person was in the Army or Air Force at the time of discharge or 
release from active duty. Separations that took place on or before 
September 25, 1947 are considered Army separations. Those that took 
place on or after September 26, 1947 are considered Air Force 
separations, unless the records clearly show the person actually served 
as a member of the Army during the period of service for which the CIL 
is requested. Individuals indicated in Sec. 887.3 may be issued CILs 
prepared on one of the following forms:
    (a) DD Form 303AF, Certificate in Lieu of Lost or Destroyed 
Discharge, is used to replace any lost or destroyed certificate of 
discharge from the Air Force.
    (b) DD Form 363AF, Certificate of Retirement, is used to replace any 
lost or destroyed certificate of retirement from the Air Force (issued 
only to service members).
    (c) AF Form 386, Certificate in Lieu of Lost or Destroyed Discharge 
(AUS), is used to replace any lost or destroyed certificate of discharge 
from the Army.
    (d) AF Form 681, Certificate in Lieu of Lost or Destroyed 
Certificate of Service (AUS), is used to replace any lost or destroyed 
certificate of service, or like form, issued on release from extended 
active duty (EAD) in the Army.
    (e) AF Form 682, Certificate in Lieu of Lost or Destroyed 
Certificate of Service (USAF), is used to replace any lost or destroyed 
certificate of service, or like form, issued on release from EAD in the 
Air Force.



Sec. 887.6  Who must sign CILs.

    (a) DD Form 363AF must be signed by a general officer or colonel.
    (b) All other CILs must be signed by a commissioned officer, NCO in 
grade of master sergeant or above, or a civilian in grade GS-7 or above.



Sec. 887.7  Persons separated under other than honorable conditions (undesirable or bad conduct) or dishonorable discharge.

    Those persons whose character of service was under other than 
honorable conditions or dishonorable are not eligible for CILs. However, 
an official photocopy of the report of separation

[[Page 189]]

or certificate of discharge (DD Form 214, Certificate of Release or 
Discharge From Active Duty, or equivalent form), if available, may be 
sent on written request of the member.
    (a) On the DD Forms 214 issued before October 1, 1979, the following 
items will be masked out before a photocopy is sent out:
    (1) Specific authority for separation.
    (2) Narrative reason for separation.
    (3) Reenlistment eligibility code.
    (4) SPD or separation designation number (SDN).
    (b) For DD Forms 214 issued after October 1, 1979, send one copy 
with the Special Additional Information Section, and one copy without 
it.
    (c) If a report of separation is not available, furnish a brief 
official statement of military service. Use the letterhead stationery of 
the issuing records custodian. File copy of the statement in the master 
personnel record (MPerR).
    (d) If (obsolete form) DD Form 258AF, Undesirable Discharge 
Certificate, has been issued, it may be replaced with DD Form 794AF, 
Discharge Under Other Than Honorable Conditions.
    (e) A $4.25 fee may be charged for issuing a document under this 
section, with the exception of paragraph (d) of this section.



Sec. 887.8  Where to apply for certificates.

    (a) For DD Form 363AF: Headquarters, Air Force Military Personnel 
Center, Officer Actions Branch (HQ AFMPC/DPMD00), Randolph AFB TX 78150-
6001, for officers; and Headquarters, Air Force Military Personnel 
Center, Analysis and Certification Section (HQ AFMPC/DPMD0A2), Randolph 
AFB TX 78150-6001, for enlisted members. Applicants must attach a copy 
of the retirement order to SF 180 or letter.
    (b) All other certificates:
    (1) HQ AFMPC/DPMD00 for officers, and HQ AFMPC/DPMD0A2, for enlisted 
members, Randolph AFB TX 78150-6001 for:
    (i) Members on EAD or on the temporary disability retired list 
(TDRL).
    (ii) General officers in retired pay status.
    (2) National Personnel Records Center, Military Personnel Records--
Air Force (NPRC/MPR-AF), 9700 Page Boulevard, St. Louis MO 63132, for 
officers and enlisted members:
    (i) Completely separated from the Air Force or Air National Guard.
    (ii) In a retired pay status, except general officers.
    (iii) In the retired Reserve who cannot become eligible for retired 
pay.
    (3) Headquarters, Air Reserve Personnel Center, Reference Services 
Branch (HQ ARPC/DSMR), Denver CO 80280-5000, for Air National Guard and 
Air Force Reserve officers and enlisted members not on EAD, including 
retired Reserve who will be eligible for retired pay at age 60.



Sec. 887.9  Furnishing photocopies of documents.

    This part does not prohibit authorities (see Sec. 887.8) from 
supplying photocopies of certificates of service, reports of separation, 
or similar documents. Agencies that provide copies of DD Form 214 (or 
their equivalent) will conspicuously affix an ``official'' seal or stamp 
on them to indicate that these documents are copies made from official 
United States Air Force military personnel records.

                        PARTS 888-888g [RESERVED]

[[Page 190]]



               SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]





               SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS





PART 901--APPOINTMENT TO THE UNITED STATES AIR FORCE ACADEMY--Table of Contents




Sec.
901.0  Purpose.

            Subpart A--Appointment Policies and Requirements

901.1  General policy.
901.2  Appointments and nominations.
901.3  Categories of nominations for appointment.
901.4  Basic eligibility requirements.
901.5  Academic examination requirements.
901.6  Candidate fitness test requirement.

            Subpart B--Nomination Procedures and Requirements

901.7  Precandidate evaluation.
901.8  Congressional and U.S. Possessions categories.
901.9  Vice-Presidential category.
901.10  Presidential category.
901.11  Children of deceased or disabled veterans and children of 
          military or civilian personnel in a missing status category.
901.12  Honor military and honor Naval schools--AFROTC and AFJROTC 
          category.
901.13  Children of Medal of Honor recipients category.
901.14  Regular airmen category.
901.15  Reserve airmen category.
901.16  Superintendent category.
901.17  Foreign students category.
901.18  Appointment vacancy selection.
901.19  Qualified alternate selection.
901.20  Notice of nomination.
901.21  Notification of selection or nonselection.
901.22  Notification of change of address or station assignment.
901.23  Filling Presidential and airmen nominating categories.
901.24  Supply of forms.
901.25  Obligation of cadet appointment.
901.26  Cadet's oath of allegiance.
901.27  Charging of appointees.
901.28  OMB approval of information collection requirements.

    Authority: 10 U.S.C., Chapter 903, and 10 U.S.C. 8012, except as 
otherwise noted.

    Source: 51 FR 23221, June 26, 1986, unless otherwise noted.
    Note: This part is derived from Air Force Regulation 53-10, October 
22, 1985.

    Part 806 of this chapter states the basic policies and instructions 
governing the disclosure of records and tells members of the public what 
they must do to inspect or obtain copies of the material referenced 
herein.



Sec. 901.0  Purpose.

    This part tells civilian and enlisted personnel (including Air Force 
Reserve and National Guard) the methods of applying and the requirements 
and procedures for appointing young men and women to the United States 
Air Force Academy.
    Note: This part is affected by the Privacy Act of 1974. The systems 
of records prescribed in this part are authorized by 10 U.S.C., chapter 
903; and 10 U.S.C. 8012. Each form that is subject to the provisions of 
part 806b.5 of this chapter, and is required by this part, contains a 
Privacy Act Statement either incorporated in the body of the document or 
in a separate statement accompanying each such document.



            Subpart A--Appointment Policies and Requirements



Sec. 901.1  General policy.

    Appointments as U.S. Air Force Academy cadets are offered to those 
candidates having the strongest potential to become successful career 
officers. Offers of appointment are made according to the law and 
guidance provided by HQ USAF to most effectively accomplish the 
Academy's mission. All candidates are appointed as cadets under the 
authority of the President; however, an appointment is conditional until 
the candidate is admitted.



Sec. 901.2  Appointments and nominations.

    Appointments and nominations are based on statutory authority 
contained in 10 U.S.C., chapter 903. Specific authorities may nominate 
eligible applicants for appointment vacancies at the Academy. Each 
applicant must obtain a nomination to receive an appointment. Applicants 
may apply for a nomination in each category in which they are eligible.

[[Page 191]]



Sec. 901.3  Categories of nominations for appointment.

    All appointees must have a nomination in at least one of the 
following categories:
    (a) Congressional and U.S. Possessions categories include the 
following nominating authorities:
    (1) U.S. Senators and Representatives.
    (2) Delegates in Congress from the District of Columbia, Guam, 
Virgin Islands, and American Samoa.
    (3) Resident Commissioner of Puerto Rico.
    (4) Governor of Puerto Rico.
    (5) Administrator of the Panama Canal Commission.
    (b) Vice-Presidential category.
    (c) Presidential competitive category.
    (d) Children of deceased or disabled veterans and children of 
military or civilian personnel in missing status competitive category.
    (e) Honor military and honor Naval schools, Air Force Reserve 
Officers' Training Corps (AFROTC), and Air Force Junior Reserve 
Officers' Training Corps (AFJROTC) competitive category.
    (f) Children of Medal of Honor recipients category.
    (g) Air Force enlisted regular competitive category.
    (h) Air Force enlisted reserve competitive category.
    (i) Superintendent competitive category.
    (j) Foreign students competitive category (40 foreign persons 
designated to receive instruction under 10 U.S.C 9344).



Sec. 901.4  Basic eligibility requirements.

    Each applicant must meet the following eligibility requirements:
    (a) Age. Applicants must be at least 17, and not have passed their 
22nd birthday on July 1 of the year of entry into the Academy.
    (b) Citizenship. Except for students sponsored by foreign 
governments under 10 U.S.C. 9344, applicants must be citizens or 
nationals of the United States. All incoming cadets must verify 
citizenship status before admission:
    (1) For American-born citizens, certified birth certificate 
presented to the Director of Admissions (USAFA/RRS), U.S. Air Force 
Academy, Colorado Springs CO 80840-5651 before administration of oath of 
appointment.
    (2) Foreign cadets must present certified copies of certificates of 
arrival and nationalization or citizenship to USAFA/RRS before 
administration of oath of appointment.
    Note: Facsimiles, copies, photographs or otherwise of birth 
certificate or certificate of citizenship will not be accepted unless 
properly certified by the raised seal of the issuing authority.
    (c) Domicile. If nominated by an authority designated in the 
Congressional and U.S. Possessions categories, the applicant must be 
domiciled within the constituency of such authority.
    (d) Exemplary standards. Applicants must be of highest moral 
character, personal conduct, and integrity. The Academy requires 
applicants to explain or clarify any of the circumstances below. For any 
military applicant or nominee whose official records indicate 
questionable background, commanders furnish the applicable information 
to USAFA/RRS.
    (1) Applicant is or has been a conscientious objector. In this case, 
an affidavit is required stating that such beliefs and principles have 
been abandoned so far as they pertain to willingness to bear arms and 
give full and unqualified military service to the United States.
    (2) Any facts that indicate the applicant's appointment may not be 
consistent with the interests of national security.
    (3) Conviction by court-martial of other than a ``minor offense'' 
(MCM, 1984, part V, paragraph 1e, page V-1) or conviction of a felony in 
a civilian court.
    (4) Elimination from any officer training program or any preparatory 
school of the Army, Navy, or Air Force Academies for military 
inaptitude, indifference, or undesirable traits of character. This 
includes any person who resigned in lieu of impending charges or who was 
eliminated by official action.
    (5) Habitual alcohol misuse or drug abuse which exceeds the 
standards of AFR 30-2 is disqualifying.

[[Page 192]]

    (6) Any behavior, activity, or association showing the applicant's 
conduct is incompatible with exemplary standards of personal conduct, 
moral character, and integrity.
    (e) Marital status. Applicant must be unmarried. (Any cadet who 
marries is disenrolled from the Academy.)
    (f) Dependents. Applicant must not have a legal obligation to 
support a child, children, or any other person.
    Note: For the purpose of this regulation, children are defined as 
the natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.
    (g) Medical requirements for admission. Before being admitted to the 
academy, candidates must take a medical examination and meet the medical 
standards outlined in AFRs 160-13 and 160-43. All candidates must meet 
the medical standards specified by the Secretary of the Air Force. 
Waivers may be granted by the Air Force Academy Command Surgeon. As 
specified by HQ USAF, most of the candidates admitted to the Academy 
must meet the eligibility standards for flying training.



Sec. 901.5  Academic examination requirements.

    Before being offered an appointment, candidates must take either the 
College Board Admission Testing Program (ATP) or the American College 
Testing Program (ACT) test.
    (a) ATP. A candidate who elects to use the ATP tests must take the 
Scholastic Aptitude Tests (SAT). The candidate is encouraged but not 
required to take achievement tests of English Composition and Level 1 
(Standard) Mathematics or Level II (Intensive) Mathematics. (Level 1 
recommended for candidates without advanced high school mathematics.)
    (b) ACT. Candidates who elect to use the ACT tests must take the 
complete battery of tests: English, mathematics, social studies, and 
natural sciences.



Sec. 901.6  Candidate fitness test requirement.

    Before being offered an appointment, candidates must take a 
Candidate Fitness Test (CFT) which consists of exercises designed to 
measure muscular strength, coordination, and aerobic power. Waivers to 
the CFT requirement may be granted by the Air Force Academy Director of 
Athletics if a candidate's participation in high school athletics 
conflicts with test administration dates and the candidate clearly 
demonstrates an acceptable level of physical fitness.



            Subpart B--Nomination Procedures and Requirements



Sec. 901.7  Precandidate evaluation.

    The Air Force Academy conducts a precandidate evaluation program as 
an initial step in the admissions process and as an aid to Members of 
Congress in screening their applicants for nomination.
    (a) Applicants normally are sent a precandidate packet, including 
USAFA Form 149, Precandidate Questionnaire, with a request for the 
applicant to provide academic, athletic, leadership, and medical 
information.
    (b) The Academy evaluates the precandidate information and provides 
an analysis to appropriate congressional offices. Such information gives 
the nominating authorities an indication of the applicant's potential to 
qualify for admission and the applicant's self-reported medical status; 
it does not, however, reflect the applicant's final admission status. It 
is intended only to aid in selecting the best-qualified applicants for 
nomination.
    (c) Applicants whose evaluation indicates they are fully qualified 
will be notified and advised to seek a nomination. Individuals whose 
evaluations reflect areas needing improvement are informed and 
encouraged to submit additional test scores or information in an effort 
to meet the qualifying levels.



Sec. 901.8  Congressional and U.S. Possessions categories.

    Individuals who meet the basic eligibility requirements of 
Sec. 901.4 may apply for a nomination according to their domicile 
(permanent legal residence).
    (a) U.S. Senators, U.S. Representatives, the District of Columbia 
Delegate to the House of Representatives, and the Resident Commissioner 
of Puerto Rico are each authorized a quota of five cadets attending the 
Academy at any one time. If a vacancy

[[Page 193]]

occurs in their quota, each may nominate ten candidates to fill each 
vacancy.
    (b) Delegates in Congress from Guam and from the Virgin Islands are 
each authorized a quota of two cadets attending the Academy at any one 
time. If a vacancy occurs in their quota, each may make ten nominations. 
Eligible residents may apply for a nomination directly to their 
Delegate.
    (c) The Governor of Puerto Rico, the Delegate from American Samoa, 
and the Panama Canal Commission Administrator may each have one cadet 
attending the Academy and each may nominate ten candidates to fill their 
vacancy.
    (1) Applicants domiciled in and natives of Puerto Rico may apply to 
the Governor of Puero Rico in addition to the Resident Commissioner.
    (2) Applicants domiciled in American Samoa may apply to their 
Delegate.
    (3) Children of civilian personnel of the U.S. Government residing 
in the Republic of Panama who are citizens of the United States may 
apply to the Panama Canal Commission Administrator.
    (d) Nominating authorities in these categories normally submit their 
nominations by January 31 for the class entering the following summer.
    (1) These nominating authorities may nominate only if a vacancy 
occurs from their authorized quota of cadets attending the Academy. 
Vacancies normally occur from graduation or separation of cadets from 
the Academy. Failure of a member of a graduating class to complete the 
Academy program with his class does not delay the admission of his or 
her successor. HQ USAF/DPPA maintains the master records of cadets 
nominated and appointed, determines vacancies in each nominating 
authority's quota, and validates nominations submitted by each 
nominating authority.
    (2) These nominating authorities forward their nominations on DD 
Form 1870, Nomination for Appointment to the U.S. Military Academy, 
Naval Academy, or Air Force Academy, for each Air Force Academy nominee 
through HQ USAF/DPPA, Washington, DC 20330-5060, to USAFA/RRS, USAF 
Academy, Colorado Springs, CO 80840-5651.



Sec. 901.9  Vice-Presidential category.

    The Vice President of the United States nominates from the United 
States at large, and is authorized a quota of five cadets attending the 
Academy at any one time. For each vacancy occurring in the quota, ten 
individuals may be nominated to fill the vacancy. Requests for a 
nomination are submitted directly to the Vice President no later than 
October 31. Any individual who meets the basic eligibility requirements 
of Sec. 901.4 may apply to the Vice President for a nomination. The Vice 
President forwards nominations on DD Form 1870 for each Air Force 
Academy nominee through HQ USAF/DPPA, Washington, DC 20330-5060, to 
USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651.



Sec. 901.10  Presidential category.

    Appointments to fill vacancies from this category are made from 
candidates in order of merit. One hundred appointments are authorized 
each year.
    (a) The child of a Regular or Reserve member of the Armed Forces of 
the United States is eligible for nomination if:
    (1) The parent is on active duty and has completed 8 years of 
continuous active duty service (other than for training) by July 1 of 
the year that the candidate would enter the U.S. Air Force Academy; or
    (2) The parent was retired with pay or was granted retired or 
retainer pay (children of reservists retired and receiving pay pursuant 
to 10 U.S.C., chapter 67, are ineligible); or
    (3) The parent died after retiring with pay or died after being 
granted retired or retainer pay (children of such reservists who were 
retired and receiving pay pursuant to 10 U.S.C., chapter 67, are 
ineligible); and
    (4) The applicant does not meet the eligibility requirements for the 
Children of Deceased or Disabled Veterans (CODDV) nomination category. 
(By law, a person eligible for appointment consideration under the DOCCV 
category is not a candidate in the Presidential category.)

[[Page 194]]

    (b) An eligible individual applies to USAFA/RRS, U.S. Air Force 
Academy, Colorado Springs, CO 80840-5651. A suggested letter format is 
included in the precandidate packet. The nominating period opens on May 
1 and closes January 31. Applicants do not write directly to the 
President of the United States, since the applications are processed by 
the Air Force Academy.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.



Sec. 901.11  Children of deceased or disabled veterans and children of military or civilian personnel in a missing status category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. Appointments authorized in this 
category are limited to 65 cadets at the Academy at any one time.
    (a) The child of a deceased or disabled member of the Armed Forces 
of the United States is eligible for nomination if:
    (1) The parent was killed in action or died of wounds or injuries 
received or diseases contracted while in active service or of 
preexisting injury or disease aggravated by active service; or
    (2) The parent has a permanent service-connected disability rated at 
not less than 100 percent resulting from wounds or injuries received or 
diseases contracted while in active service, or of preexisting injury or 
disease aggravated by active service.
    (b) The child of a parent who is in ``missing status'' is eligible 
if the parent is a member of the Armed Services or a civilian employee 
in active government service who is officially carried or determined to 
be absent in a status of missing; missing in action; interned in a 
foreign country; captured, beleaguered, or beseiged by a hostile force; 
or detained in a foreign country against the person's will.
    (c) To request a nomination in this category, an individual submits 
an application to USAFA/RRS between May 1 and January 31. A suggested 
letter format is included in the precandidate packet.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before the 15th birthday.



Sec. 901.12  Honor military and honor Naval schools--AFROTC and AFJROTC category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. Twenty appointments are 
authorized each year.
    (a) Honor military and honor Naval schools:
    (1) Five honor graduates, or prospective honor graduates, from each 
designated honor military and honor naval school may be nominated to 
fill the vacancies allocated to this category. School authorities must 
certify that each nominee is a prospective honor graduate or an honor 
graduate, and meets the basic eligibility requirements.
    (2) School authorities submit nominees directly to the Academy 
(USAFA/RRS) using specific nomination forms. Such nominations are 
submitted no later than January 31 of the entry year. Nominations are 
not limited to honor graduates of the current year. An individual 
eligible for nomination in this category applies to the administrative 
authority of the school involved.
    (b) AFROTC and AFJROTC:
    (1) Five students from each college or university AFROTC detachment 
may be nominated to compete for the vacancies allocated in this 
category.
    (i) Students must apply for nomination to the Professor of Aerospace 
Studies (PAS) who must certify that the applicants meet the basic 
eligibility requirements and have or will have satisfactorily completed 
at least 1 year of scholastic work at the time the class for which they 
are applying enters the Academy.
    (ii) The PAS uses the forms provided by the Academy to recommend for 
nomination the five best-qualified applicants to the president of the 
educational institution in which the AFROTC detachment is established.

[[Page 195]]

    (iii) Nominations from the president of the institution are 
submitted directly to the Academy (USAFA/RRS) by January 31 of the entry 
year.
    (2) Five students from each high school AFJROTC detachment may be 
nominated to compete for the vacancies allocated to this category.
    (i) Students must apply for nomination to the Aerospace Science 
Instructor, who must certify that the applicants meet the basic 
eligibility requirements and have or will have successfully completed 
the prescribed AFJROTC program by the end of the school year.
    (ii) The Aerospace Science Instructor uses the nomination forms 
provided by the Academy to recommend for nomination the five best-
qualified applicants to the principal of the high school in which the 
AFJROTC detachment is established.
    (iii) Nominations from the principal of the high school are 
submitted directly to the Academy by January 31 of the entry year.



Sec. 901.13  Children of Medal of Honor recipients category.

    (a) The child of any Medal of Honor recipient who served in any 
branch of the Armed Forces may apply for nomination. If applicants meet 
the eligibility criteria and qualify on the entrance examinations, they 
are admitted to the Academy. Appointments from this category are not 
limited.
    (b) The applicant applies directly to the Academy requesting a 
nomination in this category. The nominating period opens on May 1 and 
closes January 31. A suggested letter format is included in the 
precandidate packet.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.



Sec. 901.14  Regular airmen category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. A total of 85 appointments are 
authorized from this category each year. Applications must be submitted 
no later than January 31 of the entry year.
    (a) Any enlisted member of the Regular component of the Air Force 
may apply for nomination. Selectees must be in active duty enlisted 
status when appointed as cadets.
    (b) Regular category applicants must arrange to have their high 
school transcripts submitted to USAFA/RRS. They must also complete AF 
Form 1786, ``Application for Appointment to the United States Air Force 
Academy Under Quota Allotted to Enlisted Members of the Regular and 
Reserve Components of the Air Force,'' and submit it to their 
organization commander who:
    (1) Determines if the applicant meets the basic eligibility 
requirements shown in Sec. 901.4 of this part. If disqualified, the 
application is returned and the applicant is informed of the reason.
    (2) Advises the Consolidated Base Personnel Office (CBPO) to hold 
any reassignment action of the airman pending selection for an 
appointment. The CBPO places the airman in assignment availability code 
(AAC) 05 and coordinates on AF Form 1786. Applicants not selected are 
reassigned on Academy notification to the CBPO. Applicants to technical 
school follow-on training (if there is any) or PCS to their end 
assignment also are reassigned. The initial application package from the 
technical training center CBPO to USAFA/RRS includes the following 
information on all pipe-line students: name, SSN, AFSC, course 
graduation date, follow-on training, and end assignment.
    (3) Completes an indorsement and forwards AF Form 1786 through the 
CBPO to USAFA/RRS, USAF Academy, Colorado Springs CO 80840-5651. The 
commander's indorsement must include a comprehensive statement of the 
applicant's character, ability, and motivation to become a career 
officer. Statements in the application regarding component, length of 
service, and date of birth must be verified from official records.



Sec. 901.15  Reserve airmen category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. A total of 85 appointments are 
authorized from this category each year. Applications must be submitted 
no later than January 31 of the entry year.

[[Page 196]]

    (a) Any enlisted member of the Air Force Reserve or the Air National 
Guard of the United States (ANGUS) may apply for nomination.
    (b) A Reserve commissioned officer who satisfactorily completes 1 
year of service in an active Reserve assignment by July 1 of the year in 
which admission is sought may apply for vacancies in this category. 
(Reserve commissioned officer on extended active duty (EAD) may apply 
for vacancies in the Regular competitive category.) If selected, such 
candidates must have commissioned officer status terminated and be in 
the enlisted Air Force Reserve before appointment as Air Force Academy 
cadets. Cadets in this category who are separated from the Air Force 
Academy without prejudice and under honorable conditions may apply for 
reappointment as Reserve commissioned officers.
    (c) Reserve category applicants must arrange to have their high 
school transcripts submitted to USAFA/RRS, complete AF Form 1786, and 
submit it to their organization commander. The organization commander 
processes the application as outlined in Sec. 901.14(b). A Reserve 
applicant is not placed on active duty to be processed for nomination or 
appointment to the Air Force Academy.
    (d) Reserve airmen on EAD as a result of an honor suspension from 
the Air Force Academy Cadet Wing must reapply for admission under the 
procedures specified in Sec. 901.14(b). Additionally, the AF Form 1786 
which they submit must be endorsed by their wing commander, as well as 
their squadron commander, and must make specific recommendations about 
their potential to conform to Cadet Honor Code standards.



Sec. 901.16  Superintendent category.

    Fifty eligible applicants who have not secured a nomination to the 
Academy from any other nominating authority may be nominated by the 
Superintendent. Highly qualified applicants are selected for nomination 
from the nationwide precandidate program by the Academy. Appointments 
from this category are made in order of merit from the nationwide pool 
of qualified alternates to fill the class.



Sec. 901.17  Foreign students category.

    (a) The Academy is authorized to provide instruction to as many as 
40 foreign persons at any one time. Foreign citizens must apply to the 
government of their own country. Coordination with the U.S. Embassy is 
necessary to ensure all admission and appointment requirements are met. 
HQ USAF/DPPA effects necessary consultation before nomination 
invitations are forwarded to each country.
    (b) The application must contain complete particulars about the 
applicant's background and must be submitted as early as possible. 
Nominations from this category must be received by the Academy by 
December 31 before their desired summer admission. Applicants in these 
categories must meet the eligibility and admissions requirements 
established for all Academy candidates, except the requirement to be a 
U.S. citizen, and they must be able to read, write, and speak English 
proficiently.



Sec. 901.18  Appointment vacancy selection.

    To fill a vacancy in the Vice-Presidential quota or in the quota of 
a nominating authority in the congressional and U.S. Possessions 
categories, selections for appointment offers are made according to the 
following nomination methods.
    (a) The principal numbered-alternate method. The nominating 
authority indicates his or her personal preference by designating a 
principal nominee and listing nine numbered alternate nominees in order 
of preference, and the appointment is offered to the first fully 
qualified nominee.
    (b) The principal competitive-alternate method. The nominating 
authority designates his or her principal nominee and names up to nine 
other nominees who are evaluated by the Academy and ranked behind the 
principal nominee in order of merit. If the principal nominee is fully 
qualified, that individual is offered the appointment; otherwise, the 
fully qualified nominee ranked the highest by the Academy is offered the 
appointment.
    (c) The competitive method. At the request of the nominating 
authority, the Academy evaluates the records of all

[[Page 197]]

the nominees and ranks them in order of merit. The fully qualified 
nominee ranked the highest by the Academy is offered the appointment.



Sec. 901.19  Qualified alternate selection.

    Fully qualified candidates not offered appointments in their 
nominating category are placed in a nationwide pool of qualified 
alternates. To bring the Cadet Wing up to full strength, additional 
appointments are selected from this pool in order of merit. The first 
150 additional appointments are of individuals having nominations from 
Members of Congress. Thereafter, three of every four additional 
appointments are of individuals having nominations from the Vice 
President, Members of Congress, Delegates to Congress (from the District 
of Columbia, Virgin Islands, and Guam), Governor of Puerto Rico, 
Resident Commissioner of Puerto Rico, or Administrator of Panama Canal 
Commission.



Sec. 901.20  Notice of nomination.

    The Director of Admissions (USAFA/RRS) acknowledges receipt of all 
applicants' nominations. If not previously received, USAFA/RRS forwards 
a precandidate questionnaire for completion. If the precandidate 
questionnaire indicates the potential to qualify for admission to the 
Academy or the Preparatory School, USAFA/RRS sends the individual a 
candidate kit which includes: USAFA Form 146, AFA Candidate Personal 
Data Record; USAFA Form 147, AFA Candidate Activities Record; and USAFA 
Form 148, AFA Request for Secondary School Transcript; AF Form 2030, 
Drug Abuse Certificate; and complete processing instructions.



Sec. 901.21  Notification of selection or nonselection.

    (a) Notification of candidates selected for appointment are 
furnished by USAFA/RRS to HQ USAF/DPPA. HQ USAF/DPPA notifies Members of 
Congress and the Vice President of offers of appointment. After HQ USAF/
DPPA notifies the nominating sources and advises USAFA/RRS that 
notification has been completed, USAFA/RRS notifies each appointee 
(civilian, Regular or Reserve service member) by letter, enclosing an 
acceptance or declination statement form. On receipt of an acceptance 
statement for each unconditional offer of appointment, USAFA/RRS 
forwards the completed candidate file to Cadet Examinations and Records 
(USAFA/RR). Conditional offers of appointment that have been accepted 
are held by USAFA/RRS until the conditional factor is resolved--medical 
status cleared, satisfactory preparatory school or college transcript 
received, proof of citizenship provided, etc. HQ USAF/DPPA is notified 
of removal of conditional status from offer of appointment in order to 
notify nominating sources as stated above. USAFA/RR completes admissions 
in-processing by:
    (1) Forwarding an appointment kit which includes detailed reporting 
instructions to each appointee.
    (2) Issuing invitation to travel orders.
    (3) Notifying the Directorate of Cadet Personnel (USAFA/DPYC) of 
Regular airmen appointees. Regular airmen in technical school completes 
all phases of training, if time permits, before reporting to the 
Academy. On graduation, the airmen remain at the technical school in 
casual status (unless otherwise directed by HQ AFMPC/MPCRAC1) until 
earliest reporting date for the Academy.
    (b) The Department of Defense Medical Examination Review Board 
(DODMERB) notifies applicants of their medical status. USAFA/RRS informs 
HQ USAF/DPPA of changes in medical status of candidates offered 
conditional appointments.
    (c) USAFA/RRS notifies each unsuccessful candidate by May 1. For 
active duty Air Force personnel, the servicing CBPO also is notified and 
cancels the airman's Assignment Availability Code 05.



Sec. 901.22  Notification of change of address or station assignment.

    The applicant or nominee is personally responsible for notifying 
USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651, of every 
change of address or station assignment. Notifications from military 
personnel must include complete name, grade, SSN, and new organization 
or unit to which assigned.

[[Page 198]]



Sec. 901.23  Filling Presidential and airmen nominating categories.

    If any of the annual quotas of cadets authorized in the Regular 
airman, Reserve airman, or Presidential nomination categories are not 
filled, then candidates from the other two categories may fill the 
vacancies on a best-qualified basis.



Sec. 901.24  Supply of forms.

    USAFA Forms 146, 147, 148 and 149 are stocked and issued by USAFA/
RRS, USAF Academy, Colorado Springs, CO 80840-5651. DD Form 1870 is 
stocked and issued by the Air Force Academy Activities Group, HQ USAF/
DPPA, Washington, DC 20330-5060.



Sec. 901.25  Obligation of cadet appointment.

    (a) A cadet who enters the Air Force Academy directly from civilian 
status and takes an oath of allegiance as a cadet normally assumes a 
military service obligation of not less than 6 years nor more than 8 
years under 10 U.S.C. 651.
    (b) A cadet who enters the Air Force Academy from the Regular or 
Reserve component of the Air Force and fails to complete the Academy 
course of instruction reverts to enlisted status to complete any prior 
service obligation under 10 U.S.C. 516.
    (c) If they are minors, cadets are required to sign an agreement 
with the parent's or guardian's consent that they will fulfill the 
following obligations:
    (1) Complete the Academy course of instruction unless disenrolled 
from the Academy by competent authority.
    (2) Accept an appointment and on graduation serve as a commissioned 
officer in a Regular component of one of the armed services for 5 years.
    (3) Serve as a commissioned officer in the Reserve component until 
the 8th anniversary if authorized to resign from the Regular component 
before the 8th anniversary of their graduation.
    (4) Be subject to the separation policies in AFR 53-3 and, perhaps, 
be required to serve on active duty in enlisted status if disenrolled 
from the Academy before graduation.
    (5) Reimburse the U.S. Air Force under regulations prescribed by the 
Secretary of the Air Force for the costs of Academy education if the 
recipient, voluntarily or because of misconduct, fails to complete the 
period of active duty incurred.



Sec. 901.26  Cadet's oath of allegiance.

    On admission, each appointee (except foreign cadets) will be 
required to take the following oath of allegiance:

    I (name), having been appointed an Air Force cadet in the United 
States Air Force, do solemnly swear (or affirm) that I will support and 
defend the Constitution of the United States against all enemies, 
foreign and domestic; that I will bear true faith and allegiance to the 
same; that I take this obligation freely, without any mental reservation 
or purpose of evasion; and that I will well and faithfully discharge the 
duties of the office of which I am about to enter. So Help Me God.


If an appointee refuses to take and subscribe to the oath, the 
appointment is terminated.



Sec. 901.27  Charging of appointees.

    Appointment of candidates is according to Sec. 901.18. Selecting of 
the charged cadets from the nominees for each vacancy is accomplished as 
follows:
    (a) Principal nominee, numbered-alternate method. Principal, if 
meeting the admission criteria, is appointed and charged. Otherwise the 
1st alternate, if meeting the admission criteria, is appointed and 
charged or the next succeeding numbered alternate who meets the 
admission criteria is appointed and charged. In instances where a 
candidate received two principal nominations from two Congressional 
sources, the principal normally is charged to the Member of Congress 
submitting the principal nomination first.
    (b) Principal nominee, competitive-alternate method. Principal, if 
meeting the admission criteria, is appointed and charged. All alternates 
are ranked according to merit. If the principal does not meet admission 
criteria, the highest ranking alternate is appointed and charged.
    (c) Competitive nominee method. The group of competitive nominees 
are evaluated, ranked according to merit, and the highest-ranked 
nominee, if meeting the admission criteria, is appointed and charged.

[[Page 199]]

    (d) Multiple Congressional nominations. For candidates receiving 
numerous nominations, normally the candidate is charged to the 
congressional source. If the candidate is nominated by several 
congressional sources, the candidate normally is charged to the slate of 
the congressional member where the candidate ranks the highest, unless 
the candidate is the principal nominee or a numbered alternate.
    (e) Other sources of nomination. All other candidates not nominated 
by congressional, Vice-Presidential, or U.S. Possessions who are 
appointed are charged to that nominating source (Presidential, AFJROTC, 
AFROTC, CODDV, Medal of Honor, etc.).
    (f) Qualified alternates. To bring the Cadet Wing up to strength, 
the qualified alternate appointed according to Sec. 901.19 is charged to 
the Secretary of the Air Force as a qualified alternate. Those 
candidates having congressional, Vice-Presidential, or U.S. Possessions 
nominations appear as a qualified alternate for that nominating source.
    (g) Multiple congressional and other sources of nominations. For 
appointees who have multiple nominations, USAFA/RRS determines the 
appointment category to which they are assigned. Normally a cadet with 
both congressional and non-congressional nominations is assigned to a 
congressional authority. Designation of ``charged'' cadets (those 
filling a Vice-Presidential, congressional, or U.S. Possessions quota) 
also is accomplished by USAFA/RRS according to Sec. 901.18. USAFA/RRS 
notifies HQ USAF/DPPA of these assignments which are audited and 
verified by HQ USAF/DPPA. The Vice Presidential and nominating 
authorities in Congress and U.S. Possessions are notified of their 
charged appointees and other nominees who win appointments by HQ USAF/
DPPA.



Sec. 901.28  OMB approval of information collection requirements.

    The information collection requirements in this part 901 have been 
approved by the Office of Management and Budget under control numbers 
0701-0026, 0701-0063, 0701-0064, 0701-0066 and 0701-0087.



PART 903--AIR FORCE ACADEMY PREPARATORY SCHOOL--Table of Contents




Sec.
903.1  Purpose.
903.2  Preparatory school.
903.3  Yearly schedule.
903.4  School location.
903.5  Who is eligible.
903.6  When to apply.
903.7  Application procedures.
903.8  Selection procedures.
903.9  Notification of selection or nonselection.
903.10  Disenrollment.
903.11  Reassignment of students who are disenrolled or not offered an 
          appointment to a service academy.
903.12  Reassignment of regular and reserve members of the Air Force and 
          regular members of the Army, Navy, and Marine Corps who accept 
          an appointment to a service academy.
903.13  Reserve enlistment procedures.
903.14  Sample letter.
903.15  Statement.

    Authority: 10 U.S.C. 8012, except as otherwise noted.

    Source: 44 FR 47929, Aug. 16, 1979, unless otherwise noted.
    Note: This part is derived from Air Force Regulation 53-14, May 22, 
1979.
    Part 806 of this chapter states the basic policies and instructions 
governing the disclosure of records and tells members of the public what 
they must do to inspect or obtain copies of the material referenced 
herein.



Sec. 903.1  Purpose.

    This part tells how to apply for the Air Force Academy Preparatory 
School Program. It also explains the procedures for selection, 
disenrollment, and assignment.
    Note: This part is affected by the Privacy Act of 1974. The systems 
of records prescribed here are authorized by Headquarters USAF (AFOMO 
126) letter, April 11, 1969; and 10 U.S.C. 8012. Each form that is 
subject to AFR 12-35, paragraph 30, and is required by this part has a 
Privacy Act Statement, either incorporated in the body of the document 
or in a separate statement accompanying the document.



Sec. 903.2  Preparatory school.

    The mission of the United States Air Force Academy Preparatory 
School (USAFAPS) is to prepare and evaluate selected personnel for 
entrance into the Cadet Wing of the United States Air Force Academy. It 
provides indepth instruction in mathematics, English,

[[Page 200]]

and the basic sciences, to enable students to qualify for entering into 
the Cadet Wing.



Sec. 903.3  Yearly schedule.

    Classes are conducted each year from July to early May. A limited 
number of Regular and Reserve airmen may be enrolled at appropriate 
times after the July starting date.



Sec. 903.4  School location.

    The USAFAPS is located at the United States Air Force Academy near 
Colorado Springs, Colorado.



Sec. 903.5  Who is eligible.

    To be eligible, USAFAPS candidates must:
    (a) Be at least 17 years old and not have passed their 21st birthday 
by July 1 of the year to be admitted.
    (b) Be a citizen of the United States.
    (c) Be unmarried and have no dependent children.
    (d) Be on extended active duty. Air Force Reserve or Air National 
Guard members may apply while not on extended active duty but must agree 
to a call to active duty if selected to attend. Air National Guard 
members selected to attend will be transferred to the Air Force Reserve 
prior to being called to active duty.
    (e) Agree, if a Regular member of the Armed Forces, to extend his or 
her current enlistment, if the obligated tour of duty or enlistment 
contract expires prior to the date of preparatory school graduation.
    (f) Be medically qualified for an appointment to the Air Force 
Academy.
    (g) Achieve a satisfactory score on the Scholastic Aptitude Test 
(SAT) offered by the Educational Testing Service, or on the American 
College Testing (ACT) program tests, or on the Air Force Academy 
Selection Test.
    (h) Have an acceptable academic record as determined by the Air 
Force Academy Director of Cadet Admissions.
    (i) Not have previously attended a service academy preparatory 
school.
    (j) Have received a nomination to the Air Force Academy, if a 
Regular member of the Army, Navy, or Marine Corps.
    (k) Have completed Basic Training, if a Reserve airman entering 
after normal July entry date.



Sec. 903.6  When to apply.

    (a) Regular and Reserve members of the Air Force must send a 
complete application to the Air Force Academy Director of Cadet 
Admissions not later than May 1.
    (b) Regular members of the Army, Navy, or Marine Corps who are 
nominated for an appointment to the Air Force Academy must establish 
their eligibility for nomination by May 1.



Sec. 903.7  Application procedures.

    (a) Regular and Reserve members of the Air Force must send the 
following through their organization commander and servicing CBPO 
(active duty only) to the Air Force Academy Director of Cadet 
Admissions.
    (1) AF Form 1786, Application for Appointment to the United States 
Air Force Academy Under Quota Allotted to Enlisted Members of the 
Regular and Reserve Components of the Air Force.
    (2) A certified transcript from each high school, civilian 
preparatory school, or college that the applicant attended.
    (b) Regular members of the Army, Navy or Marine Corps must request 
enrollment by sending a letter as shown in Sec. 903.14 to the Air Force 
Academy Director of Cadet Admissions through their organization 
commander.
    (c) The organization commander is responsible for:
    (1) Sending the following to the Air Force Academy Director of Cadet 
Admissions (for active duty Air Force personnel, the commander will send 
the completed application to the servicing CBPO):
    (i) An AF Form 1786 for a Regular or Reserve member of the Air 
Force, or a letter requesting enrollment by a Regular member of the 
Army, Navy, or Marine Corps.
    (ii) Certified transcripts from each high school, civilian 
preparatory school, or college attended by the applicant.
    (iii) One copy of the applicant's most recent Airman Performance 
Report (AF Form 909 or 910, as applicable).

[[Page 201]]

    (iv) One copy of the applicant's Report of Individual Report (RIP).
    (v) A recommendation for selection or nonselection which gives a 
full description of the applicant's character and suitability for the 
Preparatory School program and includes the following statement:

    Information regarding component, length of service, and date of 
birth have been verified from official records.

    (d) The servicing CBPO (for active duty personnel) is responsible 
for:
    (1) Making sure that the applicant is assigned an Assignment 
Availability Code ``05'' IAW table 3-3, AFR 39-11.
    (2) Sending the application to the Air Force Academy Director of 
Cadet Admissions.



Sec. 903.8  Selection procedures.

    Applicants are selected for enrollment by the Air Force Academy on 
the basis of test scores, medical examination, prior academic record, 
recommendation of the organization commander, and other reports and 
records which indicate the applicant's aptitude, achievement, or ability 
to complete the program successfully.



Sec. 903.9  Notification of selection or nonselection.

    (a) When applicable, the Air Force Academy Director of Cadet 
Admissions will send a notice of nonselection for Air Force personnel, 
to the applicant and the servicing CBPO.
    (b) Upon receipt of a notice of nonselection, the servicing CBPO for 
Regular members of the Air Force will cancel the applicant's Assignment 
Availability Code 05.
    (c) Upon selection of Air Force personnel to attend the USAFAPS, the 
Air Force Academy Director of Cadet Admissions will notify the Air Force 
Academy CBPO/DPMUM of the selectee's name, grade, SSAN, AFSC, and unit 
of assignment. The Air Force Academy CBPO will insure that the selectee 
is assigned to the USAFAPS, USAF Academy CO 80840.
    (d) The Department of Defense Medical Examination Review Board 
(DODMERB) will notify applicants of their medical status.
    (e) Air Force personnel entering the USAF Academy Preparatory School 
will enter in the highest active duty grade they held as of the date of 
entrance without change to DOR or effective date. Future promotions will 
be in accordance with AFR 39-29.



Sec. 903.10  Disenrollment.

    Students may be disenrolled when the Commander of the Prep School 
determines that one or more of the following conditions exist:
    (a) The student has failed to meet and maintain academic standards.
    (b) The student has failed to demonstrate adaptability and 
suitability for the Air Force Academy academic, military, or physical 
training programs.
    (c) The student's conduct is unsatisfactory.
    (d) The student's retention in the program is not in the best 
interests of the government.
    (e) The student marries.
    (f) The student becomes medically disqualified for an appointment to 
the Air Force Academy.
    (g) The student request disenrollment.



Sec. 903.11  Reassignment of students who are disenrolled or not offered an appointment to a service academy.

    These students will be reported by USAFA/PL to USAFA/DPMU.
    (a) Regular Air Force members will be reported by USAFA/DPMU to 
AFMPC/MPCRAC 3 for reassignment as follows:
    (1) Name, grade, and SSAN.
    (2) CAFSC, PAFSC, and any additional AFSCs.
    (3) Former unit, base, and command of assignment.
    (4) DOS.
    (5) ODSD/STRD and last area of oversea assignment.
    (6) Oversea volunteer status.
    (7) Assignment preferences.
    (8) Assignment deferment status.
    (9) Reason for reassignment action.
    (10) Statement as to the airman's possible appointment to another 
service academy.
    (b) Air Force reservists are reassigned as follows:

[[Page 202]]

    (1) Reserve Air Force members called to active duty solely to attend 
the school will be discharged from the United States Air Force under the 
authority of this part and AFR 39-10.
    (2) Reserve Air Force members previously assigned to a Reserve Unit 
will be released from active duty and reassigned to the Air Reserve 
Personnel Center under the authority of this part and AFR 39-10.
    (3) Air National Guard members previously assigned to an ANG unit 
will be released from active duty and reassigned to the appropriate 
State Adjutant General under the authority of this part and AFR 39-10.
    (c) Regular members of the other services will be reported as 
follows:
    (1) Members of the Navy will be reported to the Officer-in-Charge, 
NAVUN Lowry, Colorado Springs Detachment, 801 Prospect Lake Drive, 
Colorado Springs CO 80901.
    (2) Members of the Army will be reported as currently specified in 
AR 600-635.
    (3) Members of the Marine Corps will be reported to MARTU, MARTC, 
Denver CO 80240.



Sec. 903.12  Reassignment of regular and reserve members of the Air Force and regular members of the Army, Navy, and Marine Corps who accept an appointment to a 
          service academy.

    (a) Regular and Reserve Airmen will be released from enlisted active 
duty and will be reassigned as active duty Air Force Academy cadets, to 
be effective on the date of entry into the Academy in accordance with:
    (1) DAF Letter, ``Members of the Armed Forces Appointed to a Service 
Academy,'' July 8, 1957.
    (2) 10 U.S.C. 516, 8201, 8203, 8205, and 8214.
    (3) AFR 39-10.
    (b) Records for Regular and Reserve members of the Air Force who 
enter the Air Force Academy will be retained by the Academy until the 
airman is commissioned or disenrolled. These members will not be issued 
DD Form 214, Report of Separation from Active Duty.
    (c) Records for Regular Airmen who enter one of the other academies 
will be forwarded to AFMPC/MPCDOB for processing.
    (d) Regular airmen who enter any of the three service academies will 
be required to sign the statement shown at Sec. 903.15.
    (e) Regular members of the Army, Navy, or Marine Corps who enter the 
Air Force Academy will be reported to the appropriate service as shown 
in Sec. 903.11(c).
    (f) HQ USAFA/DPMQS will publish relieved from active duty orders for 
USAF Academy Preparatory School students who are regular and reserve 
airmen and who, upon completion of the USAF Academy Preparatory School, 
accept appointments to a service academy.



Sec. 903.13  Reserve enlistment procedures.

    The enlistment into the Air Force Reserve of civilian selectees for 
the USAF Academy Preparatory School will be accomplished as follows:
    (a) The Office of Cadet Admissions and Registrar (RRS), USAF 
Academy, CO, will send to each selectee a DD Form 1966, Application for 
Enlistment-Armed Forces of the United States, with instructions for its 
completion. The selectee will be instructed to send the completed DD 
form 1966 to HQ ARPC/DPRPP, Denver CO 80280. A preaddressed envelope 
will be provided for this purpose.
    (b) Upon receipt of the completed DD Form 1966, HQ ARPC/DPRPP will 
review the form for completion and acceptance of the applicant for 
enlistment.
    (c) If the applicant is acceptable for enlistment, HQ ARPC/DPRPP 
will complete a DD Form 4, Enlistment or Reenlistment Agreement--Armed 
Forces of the United States, for each applicant.
    (d) HQ ARPC/DPRPP and the USAF Academy Preparatory School will be 
responsible for administering the oath of enlistment for each applicant. 
This oath is administered on the date of inprocessing at the USAF 
Academy Preparatory School, and the effective date of enlistment is the 
date the applicant took the oath.
    (e) HQ ARPC/DPRPP will publish Reserve Orders placing the applicant 
on

[[Page 203]]

active duty for the purpose of attending the USAF Academy Preparatory 
School. The school will determine the date of call to active dute 
(usually, this is the date the applicant was administered the oath of 
enlistment). HQ ARPC/DPRPP will give copies of the orders to the CBPO/
DPMA, USAF Academy CO 80840 on the date of inprocessing.



Sec. 903.14  Sample letter.


Subject: Application To Attend Air Force Academy Preparatory School.

Thru: Organization Commander.

To: USAFA/RRS USAF Academy CO 80840.

    1. I hereby apply under the provision of AFR 53-14 to attend the Air 
    Force Academy Preparatory School for Air Force Academy candidates.
    1. (Use appropriate sentence(s) listed below):

    a. I have been nominated by (indicate name of Senator/
Representative) for appointment to the Air Force Academy.
    b. I have applied for candidacy to the Air Force Academy under the 
following competition(s) (list those that apply)

    Presidential.
    Sons or Daughters of Deceased or Disabled Veterans.
    Sons or Daughters of Medal of Honor Recipients.

    3. (Use appropriate sentence(s) listed below):
    a. My academic transcripts are attached.
    b. My academic transcripts are being requested from the appropriate 
school officials. They will mail them to the Director of Cadet 
Admissions, USAFA/RRS. I last attended (name of high school, college, or 
preparatory school), (address of school).
    4. I was born on (day) (month) (year). My present enlistment expires 
(day) (month) (year).
    NAME, Grade, Branch of Service.
    SSAN.
    Organization.
    Location.
    Telephone No.

    Note: To be used only by military nominee--see Sec. 903.7(b) (Army, 
Navy, and Marine Corps only) (Regular and Reserve Air Force applicants 
must use AF Form 1786).



Sec. 903.15  Statement.

    Upon acceptance as a Cadet in the -------- Academy, effective ------
-- I understand that in accordance with the provisions of Pub. L. 614, 
84th Congress, should my appointment be terminated for reasons other 
than acceptance of a commission in a Regular or Reserve component of the 
Armed Forces, or for physical Disability, I will revert to my former 
enlisted or inducted status in effect immediately prior to acceptance of 
appointment as a cadet in the -------- for the purpose of completing any 
remaining active and inactive service required under my enlistment 
contract or my service obligation under the Universal Military Training 
and Service Act, or both, as appropriate. I further understand that any 
time served as a Cadet shall be counted as time served under my 
enlistment contract or period of obligated service, or both, as 
appropriate.

[[Page 204]]



                       SUBCHAPTERS L-M [RESERVED]





            SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS





PART 935--WAKE ISLAND CODE--Table of Contents




                           Subpart A--General

Sec.
935.1  Applicability.
935.2  Purpose.
935.3  Definitions.
935.4  Effective date.

                Subpart B--Civil Administration Authority

935.10  Designation and delegation of authority.
935.11  Permits.
935.12  Functions, powers, and duties.
935.13  Revocation or suspension of permits and registrations.
935.14  Autopsies.
935.15  Notaries public.
935.16  Emergency authority.

                          Subpart C--Civil Law

935.20  Applicable law.
935.21  Civil rights, powers, and duties.

                         Subpart D--Criminal Law

935.30  General.

                        Subpart E--Petty Offenses

935.40  Criminal offenses.

                          Subpart F--Penalties

935.50  Petty offenses.
935.51  Motor vehicle violations.
935.52  Violations of Subpart O or P of this part.
935.53  Contempt.

                          Subpart G--Judiciary

935.60  Wake Island Judicial Authority
935.61  Wake Island Court.
935.62  Island Attorney.
935.63  Public Defender.
935.64  Clerk of the Court.
935.65  Jurisdiction.
935.66  Court of Appeals.
935.67  Clerk of the Court of Appeals.
935.68  Jurisdiction of the Court of Appeals.
935.69  Qualifications and admission to practice.

                    Subpart H--Statute of Limitations

935.70  Limitation of actions.

                 Subpart I--Subpoenas, Wake Island Court

935.80  Subpoenas.

                        Subpart J--Civil Actions

935.90  General.
935.91  Summons.
935.92  Service of complaint.
935.93  Delivery of summons to plaintiff.
935.94  Answer.
935.95  Proceedings; record; judgment.
935.96  Execution of judgment.
935.97  Garnishment.

                       Subpart K--Criminal Actions

935.100  Bail.
935.101  Seizure of property.
935.102  Information.
935.103  Motions and pleas.
935.104  Sentence after a plea of guilty.
935.105  Trial.

                    Subpart L--Appeals and New Trials

935.110  Appeals.
935.111  New trial.

                        Subpart M--Peace Officers

935.120  Authority.
935.121  Qualifications of peace officers.
935.122  Arrests.
935.123  Warrants.
935.124  Release from custody.
935.125  Citation in place of arrest.

                      Subpart N--Motor Vehicle Code

935.130  Applicability.
935.131  Right-hand side of the road.
935.132  Speed limits.
935.133  Right-of-way.
935.134  Arm signals.
935.135  Turns.
935.136  General operating rules.
935.137  Operating requirements.
935.138  Motor bus operation.
935.139  Motor vehicle operator qualifications.
935.140  Motor vehicle maintenance and equipment.

               Subpart O--Registration and Island Permits

935.150  Registration.
935.151  Island permit for boat or vehicle.
935.152  Activities for which permit is required.

[[Page 205]]

                        Subpart P--Public Safety

935.160  Emergency requirements and restrictions.
935.161  Fire hazards.
935.162  Use of special areas.
935.163  Unexploded ordnance material.
935.164  Boat operations.
935.165  Floating objects.

    Authority: Sec. 48, Pub. L. 86-624, 74 Stat. 424; E.O. 11048, Sept. 
1, 1962, 27 FR 8851, 3 CFR, 1959-1963 Comp., p. 632; agreement between 
the Department of Interior and Department of the Air Force, dated 19 
June 1972, 37 FR 12255; and Secretary of the Air Force Order 111.1, 
dated 26 April 1999.

    Source: 67 FR 16999, Apr. 9, 2002, unless otherwise noted.



                           Subpart A--General



Sec. 935.1  Applicability.

    (a) The local civil and criminal laws of Wake Island consist of this 
part and applicable provisions of the laws of the United States.
    (b) For the purposes of this part, Wake Island includes Wake, Peale, 
and Wilkes Islands, and the appurtenant reefs, shoals, shores, bays, 
lagoons, keys, territorial waters, and superadjacent airspace of them.



Sec. 935.2  Purpose.

    The purpose of this part is to provide--
    (a) For the civil administration of Wake Island;
    (b) Civil laws for Wake Island not otherwise provided for;
    (c) Criminal laws for Wake Island not otherwise provided for; and
    (d) A judicial system for Wake Island not otherwise provided for.



Sec. 935.3  Definitions.

    In this part--
    (a) General Counsel means the General Counsel of the Air Force or 
his successor in office.
    (b) Commander means the Commander, Wake Island.
    (c) Commander, Wake Island means the Commander of Pacific Air Forces 
or such subordinate commissioned officer of the Air Force to whom he may 
delegate his authority under this part.
    (d) He or his includes both the masculine and feminine genders, 
unless the context implies otherwise.
    (e) Judge includes Judges of the Wake Island Court and Court of 
Appeals.



Sec. 935.4  Effective date.

    This part was originally applicable at 0000 June 25, 1972. 
Amendments to this part apply April 10, 2002.



                Subpart B--Civil Administration Authority



Sec. 935.10  Designation and delegation of authority.

    (a) The civil administration authority at Wake Island is vested in 
the Secretary of the Air Force. That authority has been delegated to the 
General Counsel of the Air Force with authority to redelegate all or any 
part of his functions, powers, and duties under this part to such 
officers and employees of the Air Force as he may designate, but 
excluding redelegation of the power to promulgate, amend, or repeal this 
part, or any part thereof. Such redelegation must be in writing and must 
be in accordance with any applicable Secretary of the Air Force Orders. 
Such redelegation may be further redelegated subject to such 
restrictions as the delegating authority may impose. A redelegation may 
also be made to a commissioned officer serving in another United States 
military service who exercises military command, but such redelegation 
must explicitly and specifically list the powers redelegated and shall 
not include the power or authority to issue permits, licenses, or other 
outgrants unless individually approved by the Air Force official who 
made the redelegation. The Commander is the agent of the Secretary, his 
delegate and designee when carrying out any function, power, or duty 
assigned under this part.
    (b) The authority of the General Counsel to appoint Judges shall not 
be delegated.
    (c) Judges and officers of the court may not redelegate their powers 
or authorities except as specifically noted in this part.



Sec. 935.11  Permits.

    (a) Permits in effect on the dates specified in Sec. 935.4 continue 
in effect

[[Page 206]]

until revoked or rescinded by the Commander. Permits issued by the 
Commander shall conform to the requirements of Air Force Instruction 32-
9003 (Available from the National Technical Information Service, 5285 
Port Royal Road, Springfield, VA 22161.). No permit or registration 
shall be issued under other authority that is inconsistent with this 
part. The Commander may issue island permits or registration for--
    (1) Businesses, including any trade, profession, calling, or 
occupation, and any establishment where food or beverages are prepared, 
offered, or sold for human consumption.
    (2) Self-propelled motor vehicles, except aircraft, including 
attached trailers.
    (3) Vehicle operators.
    (4) Boats.
    (5) Food handlers.
    (6) Drugs, narcotics, and poisons.
    (7) Construction.
    (8) Burials.
    (b) To the extent it is not inconsistent with this part, any permit 
or registration issued pursuant to Air Force directives or instructions 
as applicable to Wake Island shall constitute a permit or registration 
under this section, and no other permit or registration shall be 
required.



Sec. 935.12  Functions, powers, and duties.

    The Commander may--
    (a) Appoint Peace Officers;
    (b) Direct the abatement of any public nuisance upon failure of any 
person to comply with a notice of removal;
    (c) Direct sanitation and fire prevention inspections;
    (d) Establish records of vital statistics;
    (e) Direct the registration and inspections of motor vehicles, 
boats, and aircraft;
    (f) Impose quarantines;
    (g) Direct the impoundment and destruction of unsanitary food, fish, 
or beverages;
    (h) Direct the evacuation of any person from a hazardous area;
    (i) Commission notaries public;
    (j) Establish and maintain a facility for the restraint or 
confinement of persons and provide for their care;
    (k) Direct the removal of any person from Wake Island and prohibit 
his future presence on the island;
    (l) Issue traffic regulations that are not inconsistent with this 
part, and post traffic signs;
    (m) Prohibit the posting, distribution, or public display of 
advertisements, signs, circulars, petitions, or similar materials, 
soliciting, picketing, or parading in any public place or area if he 
determines it would interfere with public business or endanger the 
health and safety of persons and property on Wake Island;
    (n) Perform or direct any other acts, not inconsistent with this 
part or applicable laws and regulations, if he considers it necessary 
for protection of the health or safety of persons and property on Wake 
Island; and
    (o) Issue any order or notice necessary to implement this section. 
Any order or notice issued pursuant to Air Force directives and 
instructions as applicable to Wake Island shall constitute an order or 
notice issued pursuant to this section.



Sec. 935.13  Revocation or suspension of permits and registrations.

    (a) The Commander may revoke or suspend any island permit or 
registration for cause, with or without notice.
    (b) The holder of any revoked or suspended permit or registration 
may demand a personal hearing before the Commander within 30 days after 
the effective date of the revocation or suspension.
    (c) If a hearing is demanded, it shall be granted by the Commander 
within 30 days of the date of demand. The applicant may appear in person 
and present such documentary evidence as is pertinent. The Commander 
shall render a decision, in writing, setting forth his reasons, within 
30 days thereafter.
    (d) If a hearing is not granted within 30 days, a written decision 
is not rendered within 30 days after a hearing, or the applicant desires 
to appeal a decision, he may, within 30 days after the latest of any of 
the foregoing dates appeal in writing to the General Counsel, whose 
decision shall be final.

[[Page 207]]



Sec. 935.14  Autopsies.

    The medical officer on Wake Island, or any other qualified person 
under his supervision, may perform autopsies upon authorization of the 
Commander or a Judge of the Wake Island Court.



Sec. 935.15  Notaries public.

    (a) To the extent he considers there to be a need for such services, 
the Commander may commission one or more residents of Wake Island as 
notaries public. The Commander of Pacific Air Forces may not redelegate 
this authority.
    (b) A person applying for commission as a notary public must be a 
citizen of the United States and shall file an application, together 
with evidence of good character and a proposed seal in such form as the 
Commander requires, with a fee of $50 which shall be deposited in the 
Treasury as a miscellaneous receipt.
    (c) Upon determining there to be a need for such a service and after 
such investigation as he considers necessary, the Commander may 
commission an applicant as a notary public. Commissions shall expire 3 
years after the date thereof, and may be renewed upon application upon 
payment of a fee of $25.
    (d) Judges and the Clerk of the Wake Island Court and the Island 
Attorney shall have the general powers of a notary public.



Sec. 935.16  Emergency authority.

    During the imminence and duration of any emergency declared by him, 
the Commander may perform or direct any acts necessary to protect life 
and property.



                          Subpart C--Civil Law



Sec. 935.20  Applicable law.

    Civil acts and deeds taking place on Wake Island shall be determined 
and adjudicated as provided in this part; and otherwise, as provided in 
the Act of June 15, 1950 (64 Stat. 217) (48 U.S.C. 644a), according to 
the laws of the United States relating to such an act or deed taking 
place on the high seas on board a merchant vessel or other vessel 
belonging to the United States.



Sec. 935.21  Civil rights, powers, and duties.

    In any case in which the civil rights, powers, and duties of any 
person on Wake Island are not otherwise prescribed by the laws of the 
United States or this part, the civil rights, powers, and duties as they 
obtain under the laws of the State of Hawaii will apply to persons on 
Wake Island.



                         Subpart D--Criminal Law



Sec. 935.30  General.

    In addition to any act made criminal in this part, any act committed 
on Wake Island that would be criminal if committed on board a merchant 
vessel or other vessel belonging to the United States is a criminal 
offense and shall be adjudged and punished according to the laws 
applicable on board those vessels on the high seas.



                        Subpart E--Petty Offenses



Sec. 935.40  Criminal offenses.

    No person may on Wake Island--
    (a) Sell or give an alcoholic beverage manufactured for consumption 
(including beer, ale, or wine) to any person who is not at least 21 
years of age;
    (b) Procure for, engage in, aid or abet in, or solicit for 
prostitution;
    (c) Use any building, structure, vehicle, or public lands for the 
purpose of lewdness, assignation, or prostitution;
    (d) Possess or display (publicly or privately) any pornographic 
literature, film, device, or any matter containing obscene language, 
that tends to corrupt morals;
    (e) Make any obscene or indecent exposure of his person;
    (f) Commit any disorderly, obscene, or indecent act;
    (g) Commit any act of voyeurism (Peeping Tom);
    (h) Enter upon any assigned residential quarters or areas 
immediately adjacent thereto, without permission of the assigned 
occupant;
    (i) Discard or place any paper, debris, refuse, garbage, litter, 
bottle, can, human or animal waste, trash, or junk in any public place, 
except into a receptacle or place designated or used for that purpose;

[[Page 208]]

    (j) Commit any act of nuisance;
    (k) With intent to provoke a breach of the peace or under such 
circumstances that a breach of the peace may be occasioned thereby, act 
in such a manner as to annoy, disturb, interfere with, obstruct, or be 
offensive to any other person;
    (l) Be drunk in any public place;
    (m) Use any profane or vulgar language in a public place;
    (n) Loiter or roam about Wake Island, without any lawful purpose, at 
late and unusual hours of the night;
    (o) Lodge or sleep in any place without the consent of the person in 
legal possession of that place;
    (p) Grossly waste any potable water;
    (q) Being a male, knowingly enter any area, building, or quarters 
reserved for women, except in accordance with established visiting 
procedures;
    (r) Smoke or ignite any fire in any designated and posted ``No 
Smoking'' area, or in the immediate proximity of any aircraft or fueling 
pit;
    (s) Enter any airplane parking area or ramp, unless he is on duty 
therein, is a passenger under appropriate supervision, or is authorized 
by the Commander to enter that place;
    (t) Interfere or tamper with any aircraft or servicing equipment or 
facility, or put in motion the engine of any aircraft without the 
permission of its operator;
    (u) Post, distribute, or publicly display advertisements, signs, 
circulars, petitions, or similar materials, or solicit, picket, or 
parade in any public place or area where prohibited by the Commander 
pursuant to Sec. 935.12;
    (v) Import onto or keep on Wake Island any plant or animal not 
indigenous to the island, other than military working dogs or a guide 
dog for the blind or visually-impaired accompanying its owner; or
    (w) Import or bring onto or possess while on Wake Island any 
firearm, whether operated by air, gas, spring, or otherwise, or 
explosive device, including fireworks, unless owned by the United 
States.



                          Subpart F--Penalties



Sec. 935.50  Petty offenses.

    Whoever is found guilty of a violation of any provision of subpart E 
of this part is subject to a fine of not more than $500 or imprisonment 
of not more than 6 months, or both.



Sec. 935.51  Motor vehicle violations.

    Whoever is found guilty of a violation of subpart N of this part is 
subject to a fine of not more than $100, imprisonment of not more than 
30 days, or suspension or revocation of his motor vehicle operator's 
permit, or any combination or all of these punishments.



Sec. 935.52  Violations of Subpart O or P of this part.

    (a) Whoever is found guilty of a violation of subpart O or P of this 
part is subject to a fine of not more than $100, or imprisonment of not 
more than 30 days, or both.
    (b) The penalties prescribed in paragraph (a) of this section are in 
addition to and do not take the place of any criminal penalty otherwise 
applicable and currently provided by the laws of the United States.



Sec. 935.53  Contempt.

    A Judge may, in any civil or criminal case or proceeding, punish any 
person for disobedience of any order of the Court, or for any contempt 
committed in the presence of the Court, by a fine of not more than $100, 
or imprisonment of not more than 30 days, or both.



                          Subpart G--Judiciary



Sec. 935.60  Wake Island Judicial Authority.

    (a) The judicial authority under this part is vested in the Wake 
Island Court and the Wake Island Court of Appeals.
    (b) The Wake Island Court and the Wake Island Court of Appeals shall 
each have a seal approved by the General Counsel.
    (c) Judges and Clerks of the Courts may administer oaths.

[[Page 209]]



Sec. 935.61  Wake Island Court.

    (a) The trial judicial authority for Wake Island is vested in the 
Wake Island Court.
    (b) The Wake Island Court consists of one or more Judges, appointed 
by the General Counsel as needed. The term of a Judge shall be for one 
year, but he may be re-appointed. When the Wake Island Court consists of 
more than one Judge, the General Counsel shall designate one of the 
Judges as the Chief Judge who will assign matters to Judges, determine 
when the Court will sit individually or en banc, and prescribe rules of 
the Court not otherwise provided for in this Code. If there is only one 
Judge appointed, that Judge shall be the Chief Judge.
    (c) Sessions of the Court are held on Wake Island or Hawaii at times 
and places designated by the Chief Judge.



Sec. 935.62  Island Attorney.

    There is an Island Attorney, appointed by the General Counsel as 
needed. The Island Attorney shall serve at the pleasure of the General 
Counsel. The Island Attorney represents the United States in the Wake 
Island Court and in the Wake Island Court of Appeals.



Sec. 935.63  Public Defender.

    There is a Public Defender, appointed by the General Counsel as 
needed. The Public Defender shall serve at the pleasure of the General 
Counsel. The Public Defender represents any person charged with an 
offense under this part who requests representation and who is not able 
to afford his own legal representation.



Sec. 935.64  Clerk of the Court.

    There is a Clerk of the Court, who is appointed by the Chief Judge. 
The Clerk shall serve at the pleasure of the Chief Judge. The Clerk 
maintains a public docket containing such information as the Chief Judge 
may prescribe, administers oaths, and performs such other duties as the 
Court may direct. The Clerk is an officer of the Court.



Sec. 935.65  Jurisdiction.

    (a) The Wake Island Court has jurisdiction over all offenses under 
this part and all actions of a civil nature, cognizable at law or in 
equity, where the amount in issue is not more than $1,000, exclusive of 
interests and costs, but not including changes of name or domestic 
relations matters.
    (b) The United States is not subject to suit in the Court.
    (c) The United States may intervene in any matter in which the 
Island Attorney determines it has an interest.



Sec. 935.66  Court of Appeals.

    (a) The appellate judicial authority for Wake Island is vested in 
the Wake Island Court of Appeals.
    (b) The Wake Island Court of Appeals consists of a Chief Judge and 
two Associate Judges, appointed by the General Counsel as needed. The 
term of a judge shall be for one year, but he may be reappointed. The 
Chief Judge assigns matters to Judges, determines whether the Court sits 
individually or en banc, and prescribes rules of the Court not otherwise 
provided for in this part.
    (c) Sessions of the Court of Appeals are held in the National 
Capital Region at times and places designated by the Chief Judge. The 
Court may also hold sessions at Wake Island or in Hawaii.
    (d) A quorum of the Court of Appeals will consist of one Judge when 
sitting individually and three Judges when sitting en banc.
    (e) The address of the Court of Appeals is--Wake Island Court of 
Appeals, SAF/GC, Room 4E856, 1740 Air Force Pentagon, Washington, DC 
20330-1740.



Sec. 935.67  Clerk of the Court of Appeals.

    There is a Clerk of the Court of Appeals, who is appointed by the 
Chief Judge. The Clerk serves at the pleasure of the Chief Judge. The 
Clerk maintains a public docket containing such information as the Chief 
Judge may prescribe, administers oaths, and performs such other duties 
as the Court directs. The Clerk is an officer of the Court.



Sec. 935.68  Jurisdiction of the Court of Appeals.

    The Court of Appeals has jurisdiction over all appeals from the Wake 
Island Court.

[[Page 210]]



Sec. 935.69  Qualifications and admission to practice.

    (a) No person may be appointed a Judge, Island Attorney, or Public 
Defender under this part who is not a member of the bar of a State, 
Commonwealth, or Territory of the United States or of the District of 
Columbia.
    (b) Any person, other than an officer or employee of the Department 
of the Air Force, appointed as a Judge, Island Attorney, Public 
Defender, or to any other office under this part shall, prior to 
entering upon the duties of that office, take an oath, prescribed by the 
General Counsel, to preserve, protect, and defend the Constitution of 
the United States. Such oath may be administered by any officer or 
employee of the Department of the Air Force.
    (c) Civilian officers and employees of the Department of the Air 
Force may be appointed as a Judge, Island Attorney, Public Defender, or 
Clerk, as an additional duty and to serve without additional 
compensation. Officers and employees of the Department of the Air Force, 
both civilian and military, who serve in positions designated as 
providing legal services to the Department and who are admitted to 
practice law in an active status before the highest court of a State, 
Commonwealth, or territory of the United States, or of the District of 
Columbia, and are in good standing therewith, are admitted to the Bar of 
the Wake Island Court and the Wake Island Court of Appeals.
    (d) No person may practice law before the Wake Island Court or the 
Wake Island Court of Appeals who is not admitted to Bar of those courts. 
Any person admitted to practice law in an active status before the 
highest court of a State, Commonwealth, or territory of the United 
States, or of the District of Columbia, and in good standing therewith, 
may be admitted to the Bar of the Wake Island Court and the Wake Island 
Court of Appeals. Upon request of the applicant, the Court, on its own 
motion, may grant admission. A grant of admission by either court 
constitutes admission to practice before both courts.



                    Subpart H--Statute of Limitations



Sec. 935.70  Limitation of actions.

    (a) No civil action may be filed more than 1 year after the cause of 
action arose.
    (b) No person is liable to be tried under this part for any offense 
if the offense was committed more than 1 year before the date the 
information or citation is filed with the Clerk of the Wake Island 
Court.



                 Subpart I--Subpoenas, Wake Island Court



Sec. 935.80  Subpoenas.

    (a) A Judge or the Clerk of the Court shall issue subpoenas for the 
attendance of witnesses. The subpoena must include the name of the Court 
and the title, if any, of the proceeding; and shall command each person 
to whom it is directed to attend and give testimony at the time and 
place specified therein. The Clerk may issue a subpoena for a party 
requesting it, setting forth the name of the witness subpoenaed.
    (b) A Judge or the Clerk may also issue a subpoena commanding the 
person to whom it is directed to produce the books, papers, documents, 
or other objects designated therein. The Court may direct that books, 
papers, documents, or other objects designated in the subpoena be 
produced before the Court at a time before the trial or before the time 
when they are to be offered into evidence. It may, upon their 
production, allow the books, papers, documents, or objects or portions 
thereof to be inspected by the parties and their representatives.
    (c) Any peace officer or any other person who is not a party and who 
is at least 18 years of age may serve a subpoena. Service of a subpoena 
shall be made by delivering a copy thereof to the person named.
    (d) The Clerk of the Court shall assess and collect a witness fee of 
$40 for each subpoena requested by any party other than the United 
States, which shall be tendered to the witness as his witness fee 
together with service of the subpoena. Witnesses subpoenaed by the 
Island Attorney shall be entitled to a

[[Page 211]]

fee of $40 upon presentment of a proper claim therefor on the United 
States. No duly summoned witness may refuse, decline, or fail to appear 
or disobey a subpoena on the ground that the witness fee was not 
tendered or received.
    (e) Upon a showing that the evidence is necessary to meet the ends 
of justice and that the defendant is indigent, the Public Defender may 
request the Court to direct the Island Attorney to obtain the issuance 
of a subpoena on behalf of a defendant in a criminal case. Witnesses so 
called on behalf of the defendant shall be entitled to the same witness 
fees as witnesses requested by the Island Attorney.
    (f) Subpoenas may be credited only to persons or things on Wake 
Island.
    (g) No person who is being held on Wake Island because of 
immigration status shall be entitled to a witness fee, but shall 
nevertheless be subject to subpoena like any other person.



                        Subpart J--Civil Actions



Sec. 935.90  General.

    (a) The Federal Rules of Civil Procedure (28 U.S.C.) apply to civil 
actions in the Court to the extent the presiding Judge considers them 
applicable under the circumstances.
    (b) There is one form of action called the ``Civil Action.''
    (c) Except as otherwise provided for in this part, there is no trial 
by jury.
    (d) A civil action begins with the filing of a complaint with the 
Court. The form of the complaint is as follows except as it may be 
modified to conform as appropriate to the particular action:

                        In the Wake Island Court

[Civil Action No. ------]
------------ (Plaintiff) vs. --------------, (Defendant)

                                Complaint

------------ plaintiff alleges that the defendant is indebted to 
plaintiff in the sum of $------; that plaintiff has demanded payment of 
said sum; that defendant has refused to pay; that defendant resides at 
---------- on Wake Island; that plaintiff resides at ------------.



Sec. 935.91  Summons.

    Upon the filing of a complaint, a Judge or Clerk of the Court shall 
issue a summons in the following form and deliver it for service to a 
peace officer or other person specifically designated by the Court to 
serve it:

                        In the Wake Island Court

[Civil Action No. ------]
----------------(Plaintiff), vs. ---------------- (Defendant)

                                 Summons

    To the above-named defendant:
    You are hereby directed to appear and answer the attached cause at 
------------ on ------------ day of ------ 20--, at ------------ -.M. 
and to have with you all books, papers, and witnesses needed by you to 
establish any defense you have to said claim.
    You are further notified that in case you do not appear, judgment 
will be given against you, for the amount of said claim, together with 
cost of this suit and the service of this order.

    Dated: ------------, 20 ------------. (Clerk, Wake Island Court) --
--------------



Sec. 935.92  Service of complaint.

    (a) A peace officer or other person designated by the Court to make 
service shall serve the summons and a copy of the complaint at Wake 
Island upon the defendant personally, or by leaving them at his usual 
place of abode with any adult residing or employed there.
    (b) In the case of a corporation, partnership, joint stock company, 
trading association, or other unincorporated association, service may be 
made at Wake Island by delivering a copy of the summons and complaint to 
any of its officers, a managing or general agent, or any other agent 
authorized by appointment or by law to receive service.



Sec. 935.93  Delivery of summons to plaintiff.

    The Clerk of the Court shall promptly provide a copy of the summons 
to the plaintiff, together with notice that if the plaintiff fails to 
appear at the Court at the time set for the trial, the case will be 
dismissed. The trial shall be set at a date that will allow each party 
at least 7 days, after the pleadings are closed, to prepare.

[[Page 212]]



Sec. 935.94  Answer.

    (a) The defendant may, at his election, file an answer to the 
complaint.
    (b) The defendant may file a counterclaim, setoff, or any reasonable 
affirmative defense.
    (c) If the defendant elects to file a counterclaim, setoff, or 
affirmative defense, the Court shall promptly send a copy of it to the 
plaintiff.



Sec. 935.95  Proceedings; record; judgment.

    (a) The presiding Judge is responsible for the making of an 
appropriate record of each civil action.
    (b) All persons shall give their testimony under oath or 
affirmation. The Chief Judge shall prescribe the oath and affirmation 
that may be administered by any Judge or the Clerk of the Court.
    (c) Each party may present witnesses and other forms of evidence. In 
addition, the presiding Judge may informally investigate any 
controversy, in or out of the Court, if the evidence obtained as a 
result is adequately disclosed to all parties. Witnesses, books, papers, 
documents, or other objects may be subpoenaed as provided for in 
Sec. 935.80 for criminal cases.
    (d) The Court may issue its judgment in writing or orally from the 
bench. However, if an appeal is taken from the judgment, the presiding 
Judge shall, within 10 days after it is filed, file a memorandum of 
decision as a part of the record. The Judge shall place in the 
memorandum findings of fact, conclusions of law, and any comments that 
he considers will be helpful to a thorough understanding and just 
determination of the case on appeal.



Sec. 935.96  Execution of judgment.

    (a) If, after 60 days after the date of entry of judgment (or such 
other period as the Court may prescribe), the judgment debtor has not 
satisfied the judgment, the judgment creditor may apply to the Court for 
grant of execution on the property of the judgment debtor.
    (b) Upon a writ issued by the Court, any peace officer may levy 
execution on any property of the judgment debtor except--
    (1) His wearing apparel up to a total of $300 in value;
    (2) His beds, bedding, household furniture and furnishings, stove, 
and cooking utensils, up to a total of $300 in value; and
    (3) Mechanics tools and implements of the debtor's trade up to a 
total of $200 in value.
    (c) Within 60 days after levy of execution, a peace officer shall 
sell the seized property at public sale and shall pay the proceeds to 
the Clerk of the Court. The Clerk shall apply the proceeds as follows:
    (1) First, to the reasonable costs of execution and sale and court 
costs.
    (2) Second, to the judgment.
    (3) Third, the residue (if any) to the debtor.
    (d) In any case in which property has been seized under a writ of 
execution, but not yet sold, the property seized shall be released upon 
payment of the judgment, court costs, and the costs of execution.



Sec. 935.97  Garnishment.

    (a) If a judgment debtor fails to satisfy a judgment in full within 
60 days after the entry of judgment (or such other period as the Court 
may prescribe), the Court may, upon the application of the judgment 
creditor issue a writ of garnishment directed to any person having money 
or property in his possession belonging to the judgment debtor or owing 
money to the judgment debtor. The following are exempt from judgment:
    (1) Ninety percent of so much of the gross wages as does not exceed 
$200 due to the judgment debtor from his employer.
    (2) Eighty percent of so much of the gross wages as exceeds $200 but 
does not exceed $500 due to the judgment debtor from his employer.
    (3) Fifty percent of so much of the gross wages as exceeds $500 due 
to the judgment debtor from his employer.
    (b) The writ of garnishment shall be served on the judgment debtor 
and the garnishee and shall direct the garnishee to pay or deliver from 
the money or property owing to the judgment debtor such money or 
property as the Court may prescribe.
    (c) The garnished amount shall be paid to the Clerk of the Court, 
who shall apply it as follows:

[[Page 213]]

    (1) First, to satisfy the costs of garnishment and court costs.
    (2) Second, to satisfy the judgment.
    (3) Third, the residue (if any) to the judgment debtor.
    (d) Funds of the debtor held by the United States are not subject to 
garnishment.



                       Subpart K--Criminal Actions



Sec. 935.100  Bail.

    (a) A person who is arrested on Wake Island for any violation of 
this part is entitled to be released on bail in an amount set by a Judge 
or Clerk of the Court, which may not exceed the maximum fine for the 
offense charged. If the defendant fails to appear for arraignment, trial 
or sentence, or otherwise breaches any condition of bail, the Court may 
direct a forfeiture of the whole or part of the bail and may on motion 
after notice to the surety or sureties, if any, enter a judgment for the 
amount of the forfeiture.
    (b) The Chief Judge of the Wake Island Court may prescribe a 
schedule of bail for any offense under this part which the defendant may 
elect to post and forfeit without trial, in which case the Court shall 
enter a verdict of guilty and direct forfeiture of the bail.
    (c) Bail will be deposited in cash with the Clerk of the Court.



Sec. 935.101  Seizure of property.

    Any property seized in connection with an alleged offense (unless 
the property is perishable) is retained pending trial in accordance with 
the orders of the Court. The property must be produced in Court, if 
practicable. At the termination of the trial, the Court shall restore 
the property or the funds resulting from the sale of the property to the 
owner, or make such other proper order as may be required and 
incorporate its order in the record of the case. Any item used in the 
commission of the offense, may, upon order of the Court, be forfeited to 
the United States. All contraband, which includes any item that is 
illegal for the owner to possess, shall be forfeited to the United 
States; such forfeiture shall not relieve the owner from whom the item 
was taken from any costs or liability for the proper disposal of such 
item.



Sec. 935.102  Information.

    (a) Any offense may be prosecuted by a written information signed by 
the Island Attorney. However, if the offense is one for which issue of a 
citation is authorized by this part and a citation for the offense has 
been issued, the citation serves as an information.
    (b) A copy of the information shall be delivered to the accused, or 
his counsel, as soon as practicable after it is filed.
    (c) Each count of an information may charge one offense only and 
must be particularized sufficiently to identify the place, the time, and 
the subject matter of the alleged offense. It shall refer to the 
provision of law under which the offense is charged, but any error in 
this reference or its omission may be corrected by leave of Court at any 
time before sentence and is not grounds for reversal of a conviction if 
the error or omission did not mislead the accused to his prejudice.



Sec. 935.103  Motions and pleas.

    (a) Upon motion of the accused at any time after filing of the 
information or copy of citation, the Court may order the prosecutor to 
allow the accused to inspect and copy or photograph designated books, 
papers, documents, or tangible objects obtained from or belonging to the 
accused, or obtained from others by seizure or process, upon a showing 
that the items sought may be material to the preparation of his defense 
and that the request is reasonable.
    (b) When the Court is satisfied that it has jurisdiction to try the 
accused as charged, it shall require the accused to identify himself and 
state whether or not he has counsel. If he has no counsel, but desires 
counsel, the Court shall give him a reasonable opportunity to procure 
counsel.
    (c) When both sides are ready for arraignment, or when the Court 
determines that both sides have had adequate opportunities to prepare 
for arraignment, the Court shall read the charges to the accused, 
explain them (if necessary), and, after the reading or stating of each 
charge in Court, ask the accused whether he pleads ``guilty'' or ``not 
guilty''. The Court shall enter

[[Page 214]]

in the record of the case the plea made to each charge.
    (d) The accused may plead ``guilty'' to any or all of the charges 
against him, except that the Court may in its discretion refuse to 
accept a plea of guilty, and may not accept a plea without first 
determining that the plea is made voluntarily with understanding of the 
nature of the charge.
    (e) The accused may plead ``not guilty'' to any or all of the 
charges against him. The Court shall enter a plea of not guilty if the 
answer of the accused to any charge is such that it does not clearly 
amount to a plea of guilty or not guilty.
    (f) The accused may, at any stage of the trial, with the consent of 
the Court, change a plea of not guilty to one of guilty. The Court shall 
then proceed as if the accused had originally pleaded guilty.



Sec. 935.104  Sentence after a plea of guilty.

    If the Court accepts a plea of guilty to any charge or charges, it 
shall make a finding of guilty on that charge. Before imposing sentence, 
the Court shall hear such statements for the prosecution and defense, if 
any, as it requires to enable it to determine the sentence to be 
imposed. The accused or his counsel may make any reasonable statement he 
wishes in mitigation or of previous good character. The prosecution may 
introduce evidence in aggravation, or of bad character if the accused 
has introduced evidence of good character. The Court shall then impose 
any lawful sentence that it considers proper.



Sec. 935.105  Trial.

    (a) If the accused pleads not guilty, he is entitled to a trial on 
the charges in accordance with procedures prescribed in the Rules of 
Criminal Procedure for the U.S. District Courts (18 U.S.C.), except as 
otherwise provided for in this part, to the extent the Court considers 
practicable and necessary to the ends of justice. There is no trial by 
jury.
    (b) All persons shall give their testimony under oath or 
affirmation. The Chief Judge shall prescribe the oath and affirmation 
that may be administered by any Judge or the Clerk of the Court.
    (c) Upon completion of the trial, the Court shall enter a judgment 
consisting of a finding or findings and sentence or sentences, or 
discharge of the accused.
    (d) The Court may suspend any sentence imposed, may order the 
revocation of any Island automobile permit in motor vehicle cases, and 
may place the accused on probation. It may delay sentencing pending the 
receipt of any presentencing report ordered by it.



                    Subpart L--Appeals and New Trials



Sec. 935.110  Appeals.

    (a) Any party to an action may, within 15 days after judgment, 
appeal an interlocutory order, issue of law, or judgment, except that an 
acquittal may not be appealed, by filing a notice of appeal with the 
Clerk of the Wake Island Court and serving a copy on the opposing party. 
Judgment is stayed while the appeal is pending.
    (b) Upon receiving a notice of appeal with proof of service on the 
opposing party, the Clerk shall forward the record of the action to the 
Wake Island Court of Appeals.
    (c) The appellant shall serve on the opposing party and file a 
memorandum setting forth his grounds of appeal with the Wake Island 
Court of Appeals within 15 days after the date of the judgment. The 
appellee may serve and file a reply memorandum within 15 days 
thereafter. An appeal and the reply shall be deemed to be filed when 
deposited in the U.S. mail with proper postage affixed, addressed to the 
Clerk, Wake Island Court of Appeals, at his address in Washington, DC. 
The period for filing an appeal may be waived by the Court of Appeals 
when the interests of justice so require.
    (d) The Court of Appeals may proceed to judgment on the record, or, 
if the Court considers that the interests of justice so require, grant a 
hearing.
    (e) The decision of the Court of Appeals shall be in writing and 
based on the record prepared by the Wake Island Court, on the 
proceedings before the Court of Appeals, if any be had, and on any 
memoranda that are filed. If the

[[Page 215]]

Court of Appeals considers the record incomplete, the case may be 
remanded to the Wake Island Court for further proceedings.
    (f) The decision of the Court of Appeals is final.



Sec. 935.111  New trial.

    A Judge of the Wake Island Court may order a new trial as required 
in the interest of justice, or vacate any judgment and enter a new one, 
on motion made within a reasonable time after discovery by the moving 
party of matters constituting the grounds upon which the motion for new 
trial or vacation of judgment is made.



                        Subpart M--Peace Officers



Sec. 935.120  Authority.

    Peace officers--
    (a) Have the authority of a sheriff at common law;
    (b) May serve any process on Wake Island that is allowed to be 
served under a Federal or State law; the officer serving the process 
shall execute any required affidavit of service;
    (c) May conduct sanitation or fire prevention inspections;
    (d) May inspect motor vehicles, boats, and aircraft;
    (e) May confiscate property used in the commission of a crime;
    (f) May deputize any member of the Air Force serving on active duty 
or civilian employee of the Department of the Air Force to serve as a 
peace officer;
    (g) May investigate accidents and suspected crimes;
    (h) May direct vehicular or pedestrian traffic;
    (i) May remove and impound abandoned or unlawfully parked vehicles, 
boats, or aircraft, or vehicles, boats, or aircraft interfering with 
fire control apparatus or ambulances;
    (j) May take possession of property lost, abandoned, or of unknown 
ownership;
    (k) May enforce quarantines;
    (l) May impound and destroy food, fish, or beverages found 
unsanitary;
    (m) May be armed;
    (n) May exercise custody over persons in arrest or confinement;
    (o) May issue citations for violations of this part; and
    (p) May make arrests, as provided for in Sec. 935.122.



Sec. 935.121  Qualifications of peace officers.

    Any person appointed as a peace officer must be a citizen of the 
United States and have attained the age of 18 years. The following 
persons, while on Wake Island on official business, shall be deemed 
peace officers: special agents of the Air Force Office of Special 
Investigations, members of the Air Force Security Forces, agents of the 
Federal Bureau of Investigation, United States marshals and their 
deputies, officers and agents of the United States Secret Service, 
agents of the United States Bureau of Alcohol, Tobacco, and Firearms, 
agents of the United States Customs Service, and agents of the United 
States Immigration and Naturalization Service.



Sec. 935.122  Arrests.

    (a) Any person may make an arrest on Wake Island, without a warrant, 
for any crime (including a petty offense) that is committed in his 
presence.
    (b) Any peace officer may, without a warrant, arrest any person on 
Wake Island who violates any provision of this part or commits a crime 
that is not a violation of this part, in his presence, or that he 
reasonably believes that person to have committed.
    (c) In making an arrest, a peace officer must display a warrant, if 
he has one, or otherwise clearly advise the person arrested of the 
violation alleged, and thereafter require him to submit and be taken 
before the appropriate official on Wake Island.
    (d) In making an arrest, a peace officer may use only the degree of 
force needed to effect submission, and may remove any weapon in the 
possession of the person arrested.
    (e) A peace officer may, whenever necessary to enter any building, 
vehicle, or aircraft to execute a warrant of arrest, force an entry 
after verbal warning.
    (f) A peace officer may force an entry into any building, vehicle, 
or aircraft whenever--

[[Page 216]]

    (1) It appears necessary to prevent serious injury to persons or 
damage to property and time does not permit the obtaining of a warrant;
    (2) To effect an arrest when in hot pursuit; or
    (3) To prevent the commission of a crime which he reasonably 
believes is being committed or is about to be committed.



Sec. 935.123  Warrants.

    Any Judge may issue or direct the Clerk to issue a warrant for 
arrest if, upon complaint, it appears that there is probable cause to 
believe an offense has been committed and that the person named in the 
warrant has committed it. If a Judge is not available, the warrant may 
be issued by the Clerk and executed, but any such warrant shall be 
thereafter approved or quashed by the first available Judge. The issuing 
officer shall--
    (a) Place the name of the person charged with the offense in the 
warrant, or if his name is not known, any name or description by which 
he can be identified with reasonable certainty;
    (b) Describe in the warrant the offense charged;
    (c) Place in the warrant a command that the person charged with the 
offense be arrested and brought before the Wake Island Court;
    (d) Sign the warrant; and
    (e) Issue the warrant to a peace officer for execution.



Sec. 935.124  Release from custody.

    The Chief Judge may authorize the Clerk to issue pro forma orders of 
the Court discharging any person from custody, with or without bail, 
pending trial, whenever further restraint is not required for protection 
of persons or property on Wake Island. Persons not so discharged shall 
be brought before a Judge or U.S. Magistrate as soon as a Judge or 
Magistrate is available. Judges may discharge defendants from custody, 
with or without bail or upon recognizance, or continue custody pending 
trial as the interests of justice and public safety require.



Sec. 935.125  Citation in place of arrest.

    In any case in which a peace officer may make an arrest without a 
warrant, he may issue and serve a citation if he considers that the 
public interest does not require an arrest. The citation must briefly 
describe the offense charged and direct the accused to appear before the 
Wake Island Court at a designated time and place.



                      Subpart N--Motor Vehicle Code



Sec. 935.130  Applicability.

    This subpart applies to self-propelled motor vehicles (except 
aircraft), including attached trailers.



Sec. 935.131  Right-hand side of the road.

    Each person driving a motor vehicle on Wake Island shall drive on 
the right-hand side of the road, except where necessary to pass or on 
streets where a sign declaring one-way traffic is posted.



Sec. 935.132  Speed limits.

    Each person operating a motor vehicle on Wake Island shall operate 
it at a speed--
    (a) That is reasonable, safe, and proper, considering time of day, 
road and weather conditions, the kind of motor vehicle, and the 
proximity to persons or buildings, or both; and
    (b) That does not exceed 40 miles an hour or such lesser speed limit 
as may be posted.



Sec. 935.133  Right-of-way.

    (a) A pedestrian has the right-of-way over vehicular traffic when in 
the vicinity of a building, school, or residential area.
    (b) In any case in which two motor vehicles have arrived at an 
uncontrolled intersection at the same time, the vehicle on the right has 
the right-of-way.
    (c) If the driver of a motor vehicle enters an intersection with the 
intent of making a left turn, he shall yield the right-of-way to any 
other motor vehicle that has previously entered the intersection or is 
within hazardous proximity.
    (d) When being overtaken by another motor vehicle, the driver of the 
slower vehicle shall move it to the right to allow safe passing.

[[Page 217]]

    (e) The driver of a motor vehicle shall yield the right-of-way to 
emergency vehicles on an emergency run.



Sec. 935.134  Arm signals.

    (a) Any person operating a motor vehicle and making a turn or coming 
to a stop shall signal the turn or stop in accordance with this section.
    (b) A signal for a turn or stop is made by fully extending the left 
arm as follows:
    (1) Left turn--extend left arm horizontally.
    (2) Right turn--extend left arm upward.
    (3) Stop or decrease speed--extend left arm downward.
    (c) A signal light or other device may be used in place of an arm 
signal prescribed in paragraph (b) of this section if it is visible and 
intelligible.



Sec. 935.135  Turns.

    (a) Each person making a right turn in a motor vehicle shall make 
the approach and turn as close as practicable to the right-hand curb or 
road edge.
    (b) Each person making a left turn in a motor vehicle shall make the 
approach and turn immediately to the right of the center of the road, 
except that on multi-lane roads of one-way traffic flow he may make the 
turn only from the left lane.
    (c) No person may make a U-turn in a motor vehicle if he cannot be 
seen by the driver of any approaching vehicle within a distance of 500 
feet.
    (d) No person may place a vehicle in motion from a stopped position, 
or change from or merge into a lane of traffic, until he can safely make 
that movement.



Sec. 935.136  General operating rules.

    No person may, while on Wake Island--
    (a) Operate a motor vehicle in a careless or reckless manner;
    (b) Operate or occupy a motor vehicle while he is under the 
influence of a drug or intoxicant;
    (c) Consume an alcoholic beverage (including beer, ale, or wine) 
while he is in a motor vehicle;
    (d) Operate a motor vehicle that is overloaded or is carrying more 
passengers than it was designed to carry;
    (e) Ride on the running board, step, or outside of the body of a 
moving motor vehicle;
    (f) Ride a moving motor vehicle with his arm or leg protruding, 
except when using the left arm to signal a turn;
    (g) Operate a motor vehicle in a speed contest or drag race;
    (h) Park a motor vehicle for a period longer than the posted time 
limit;
    (i) Stop, park, or operate a motor vehicle in a manner that impedes 
or blocks traffic;
    (j) Park a motor vehicle in an unposted area, except adjacent to the 
right-hand curb or edge of the road;
    (k) Park a motor vehicle in a reserved or restricted parking area 
that is not assigned to him;
    (l) Sound the horn of a motor vehicle, except as a warning signal;
    (m) Operate a tracked or cleated vehicle in a manner that damages a 
paved or compacted surface;
    (n) Operate any motor vehicle contrary to a posted traffic sign;
    (o) Operate a motor vehicle as to follow any other vehicle closer 
than is safe under the circumstances;
    (p) Operate a motor vehicle off of established roads, or in a cross-
country manner, except when necessary in conducting business;
    (q) Operate a motor vehicle at night or when raining on the traveled 
part of a street or road, without using operating headlights; or
    (r) Operate a motor vehicle without each passenger wearing a safety 
belt; this shall not apply to military combat vehicles designed and 
fabricated without safety belts.



Sec. 935.137  Operating requirements.

    Each person operating a motor vehicle on Wake Island shall--
    (a) Turn off the highbeam headlights of his vehicle when approaching 
an oncoming vehicle at night; and
    (b) Comply with any special traffic instructions given by an 
authorized person.



Sec. 935.138  Motor bus operation.

    Each person operating a motor bus on Wake Island shall--
    (a) Keep its doors closed while the bus is moving with passengers on 
board; and

[[Page 218]]

    (b) Refuse to allow any person to board or alight the bus while it 
is moving.



Sec. 935.139  Motor vehicle operator qualifications.

    (a) No person may operate a privately owned motor vehicle on Wake 
Island unless he has an island operator's permit.
    (b) The Commander may issue an operator's permit to any person who 
is at least 18 years of age and satisfactorily demonstrates safe-driving 
knowledge, ability, and physical fitness.
    (c) No person may operate, on Wake Island, a motor vehicle owned by 
the United States unless he holds a current operator's permit issued by 
the United States.
    (d) Each person operating a motor vehicle on Wake Island shall 
present his operator's permit to any peace officer, for inspection, upon 
request.



Sec. 935.140  Motor vehicle maintenance and equipment.

    (a) Each person who has custody of a motor vehicle on Wake Island 
shall present that vehicle for periodic safety inspection, as required 
by the Commander.
    (b) No person may operate a motor vehicle on Wake Island unless it 
is in a condition that the Commander considers to be safe and operable.
    (c) No person may operate a motor vehicle on Wake Island unless it 
is equipped with an adequate and properly functioning--
    (1) Horn;
    (2) Wiper, for any windshield;
    (3) Rear vision mirror;
    (4) Headlights and taillights;
    (5) Brakes;
    (6) Muffler;
    (7) Spark or ignition noise suppressors; and
    (8) Safety belts.
    (d) No person may operate a motor vehicle on Wake Island if that 
vehicle is equipped with a straight exhaust or muffler cutoff.



               Subpart O--Registration and Island Permits



Sec. 935.150  Registration.

    (a) Each person who has custody of any of the following on Wake 
Island shall register it with the Commander.
    (1) A privately owned motor vehicle.
    (2) A privately owned boat.
    (3) An indigenous animal, military working dog, or guide dog for the 
blind or visually-impaired accompanying its owner.
    (4) A narcotic or dangerous drug or any poison.
    (b) Each person who obtains custody of an article described in 
paragraph (a) (4) of this section shall register it immediately upon 
obtaining custody. Each person who obtains custody of any other article 
described in paragraph (a) of this section shall register it within 10 
days after obtaining custody.



Sec. 935.151  Island permit for boat and vehicle.

    (a) No person may use a privately owned motor vehicle or boat on 
Wake Island unless he has an island permit for it.
    (b) The operator of a motor vehicle shall display its registration 
number on the vehicle in a place and manner prescribed by the Commander.



Sec. 935.152  Activities for which permit is required.

    No person may engage in any of the following on Wake Island unless 
he has an island permit:
    (a) Any business, commercial, or recreational activity conducted for 
profit, including a trade, profession, calling, or occupation, or an 
establishment where food or beverage is prepared, offered, or sold for 
human consumption (except for personal or family use).
    (b) The practice of any medical profession, including dentistry, 
surgery, osteopathy, and chiropractic.
    (c) The erection of any structure or sign, including a major 
alteration or enlargement of an existing structure.
    (d) The burial of any human or animal remains, except that fish and 
bait

[[Page 219]]

scrap may be buried at beaches where fishing is permitted, without 
obtaining a permit.
    (e) Keeping or maintaining an indigenous animal.
    (f) Importing, storing, generating, or disposing of hazardous 
materials.
    (g) Importing of solid wastes and importing, storing, generating, 
treating, or disposing of hazardous wastes, as they are defined in the 
Solid Waste Disposal Act, as amended, 42 U.S.C. 6901 et seq., and its 
implementing regulations (40 CFR chapter I).



                        Subpart P--Public Safety



Sec. 935.160  Emergency requirements and restrictions.

    In the event of any fire, crash, search and rescue, natural 
disaster, national peril, radiological hazard, or other calamitous 
emergency--
    (a) No person may impede or hamper any officer or employee of the 
United States or any other person who has emergency authority;
    (b) No unauthorized persons may congregate at the scene of the 
emergency; and
    (c) Each person present shall promptly obey the instructions, 
signals, or alarms of any peace officer, fire or crash crew, or other 
authorized person, and any orders of the Commander.



Sec. 935.161  Fire hazards.

    (a) Each person engaged in a business or other activity on Wake 
Island shall, at his expense, provide and maintain (in an accessible 
location) fire extinguishers of the type, capacity, and quantity 
satisfactory for protecting life and property in the areas under that 
person's control.
    (b) To minimize fire hazards, no person may store any waste or 
flammable fluids or materials except in a manner and at a place 
prescribed by the Commander.



Sec. 935.162  Use of special areas.

    The Commander may regulate the use of designated or posted areas on 
Wake Island, as follows:
    (a) Restricted areas--which no person may enter without permission.
    (b) Prohibited activities areas--in which no person may engage in 
any activity that is specifically prohibited.
    (c) Special purpose areas-in which no person may engage in any 
activity other than that for which the area is reserved.



Sec. 935.163  Unexploded ordnance material.

    Any person who discovers any unexploded ordnance material on Wake 
Island shall refrain from tampering with it and shall immediately report 
its site to the Commander.



Sec. 935.164  Boat operations.

    The operator of each boat used at Wake Island shall conform to the 
limitations on its operations as the Commander may prescribe in the 
public interest.



Sec. 935.165  Floating objects.

    No person may anchor, moor, or beach any boat, barge, or other 
floating object on Wake Island in any location or manner other than as 
prescribed by the Commander.

[[Page 220]]



             SUBCHAPTER O--SPECIAL INVESTIGATION [RESERVED]





                       SUBCHAPTERS P-S [RESERVED]





                 SUBCHAPTER T--ENVIRONMENTAL PROTECTION





PART 989--ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP)--Table of Contents




Sec.
989.1  Purpose.
989.2  Concept.
989.3  Responsibilities.
989.4  Initial considerations.
989.5  Organizational relationships.
989.6  Budgeting and funding.
989.7  Requests from Non-Air Force agencies or entities.
989.8  Analysis of alternatives.
989.9  Cooperation and adoption.
989.10  Tiering.
989.11  Combining EIAP with other documentation.
989.12  AF Form 813, Request for Environmental Impact Analysis.
989.13  Categorical exclusion.
989.14  Environmental assessment.
989.15  Finding of no significant impact.
989.16  Environmental impact statement.
989.17  Notice of intent.
989.18  Scoping.
989.19  Draft EIS.
989.20  Final EIS.
989.21  Record of decision (ROD).
989.22  Mitigation.
989.23  Contractor prepared documents.
989.24  Public notification.
989.25  Base closure and realignment.
989.26  Classified actions (40 CFR 1507.3(c)).
989.27  Occupational safety and health.
989.28  Airspace and range proposals.
989.29  Force structure and unit move proposals.
989.30  Air quality.
989.31  Pollution prevention.
989.32  Noise.
989.33  Environmental justice.
989.34  Special and emergency procedures.
989.35  Reporting requirements.
989.36  Waivers.
989.37  Procedures for analysis abroad.
989.38  Requirements for analysis abroad.

Appendix A to Part 989--Glossary of References, Abbreviations, Acronyms, 
          and Terms.
Appendix B to Part 989--Categorical Exclusions.
Appendix C to Part 989--Procedures for Holding Public Hearings on Draft 
          Environmental Impact Statements (EIS).

    Authority: 10 U.S.C. 8013.

    Source: 64 FR 38129, July 15, 1999, unless otherwise noted.



Sec. 989.1  Purpose.

    (a) This part implements the Air Force Environmental Impact Analysis 
Process (EIAP) and provides procedures for environmental impact analysis 
both within the United States and abroad. Because the authority for, and 
rules governing, each aspect of the EIAP differ depending on whether the 
action takes place in the United States or outside the United States, 
this part provides largely separate procedures for each type of action. 
Consequently, the main body of this part deals primarily with 
environmental impact analysis under the authority of the National 
Environmental Policy Act of 1969 (NEPA) (Public Law 91-190, 42 United 
States Code (U.S.C.) Sections 4321 through 4347), while the primary 
procedures for environmental impact analysis of actions outside the 
United States in accordance with Executive Order (E.O.) 12114, 
Environmental Effects Abroad of Major Federal Actions, are contained in 
Secs. 989.37 and 989.38.
    (b) The procedures in this part are essential to achieve and 
maintain compliance with NEPA and the Council on Environmental Quality 
(CEQ) Regulations for Implementing the Procedural Provisions of the NEPA 
(40 CFR Parts 1500 through 1508, referred to as the ``CEQ 
Regulations''). Further requirements are contained in Department of 
Defense Directive (DoDD) 4715.1, Environmental Security, Department of 
Defense Instruction (DoDI) 4715.9, Environmental Planning and Analysis, 
DoDD 5000.1, Defense Acquisition, and Department of Defense Regulation 
5000.2-R, Mandatory Procedures for Major Defense Acquisition Programs 
and Major Automated Information System Acquisition Programs.\1\ To 
comply with NEPA and complete the EIAP, the

[[Page 221]]

CEQ Regulations and this part must be used together.
---------------------------------------------------------------------------

    \1\ Copies of the publications are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Air Force activities abroad will comply with this part, E. O. 
12114, and 32 CFR Part 187 (DoDD 6050.7, Environmental Effects Abroad of 
Major Department of Defense Actions, March 31, 1979). To comply with 
E.O. 12114 and complete the EIAP, the Executive Order, 32 CFR Part 187, 
and this part must be used together.
    (d) Appendix A is a glossary of references, abbreviations, acronyms, 
and terms. Refer to 40 CFR 1508 for definitions of other terminology 
used in this part.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.2  Concept.

    (a) This part provides a framework on how to comply with NEPA and 
E.O. 12114 according to Air Force Policy Directive (AFPD) 32-70 \2\. The 
Air Force specific procedures and requirements in this part are intended 
to be used by Air Force decision-makers to fully comply with NEPA and 
the EIAP.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (b) Major commands (MAJCOM) provide additional implementing guidance 
in their supplemental publications to this part. MAJCOM supplements must 
identify the specific offices that have implementation responsibility 
and include any guidance needed to comply with this part. All references 
to MAJCOMs in this part include the Air National Guard Readiness Center 
(ANGRC) and other agencies designated as ``MAJCOM equivalent'' by HQ 
USAF.



Sec. 989.3  Responsibilities.

    (a) Office of the Secretary of the Air Force:
    (1) The Deputy Assistant Secretary of the Air Force for Environment, 
Safety and Occupational Health (SAF/MIQ):
    (i) Develops environmental planning policy and provides oversight of 
the EIAP program.
    (ii) Determines the level of environmental analysis required for 
especially important, visible, or controversial Air Force proposals and 
approves selected Environmental Assessments (EAs) and all Environmental 
Impact Statements (EISs) prepared for Air Force actions, whether 
classified or unclassified, except as specified in paragraph (c)(3) of 
this section.
    (iii) Is the liaison on environmental matters with Federal agencies 
and national level public interest organizations.
    (iv) Ensures appropriate offices in the Office of the Secretary of 
Defense are kept informed on EIAP matters of Defense-wide interest.
    (2) The General Counsel (SAF/GC). Provides final legal advice to 
SAF/MI, HQ USAF, and HQ USAF Environment, Safety and Occupational Health 
Committee (ESOHC) on EIAP issues.
    (3) Office of Legislative Liaison (SAF/LL):
    (i) Assists with narrowing and defining key issues by arranging 
consultations with congressional delegations on potentially sensitive 
actions.
    (ii) Distributes draft and final EISs to congressional delegations.
    (iii) Reviews and provides the Office of the Secretary of Defense 
(OSD) with analyses of the Air Force position on proposed and enrolled 
legislation and executive department testimony dealing with EIAP issues.
    (4) Office of Public Affairs (SAF/PA):
    (i) Reviews and clears environmental documents in accordance with 
Air Force Instruction (AFI) 35-101, Public Affairs Policies and 
Procedures \3\ prior to public release.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (ii) Assists the environmental planning function and the Air Force 
Legal Services Agency, Trial Judiciary Division (AFLSA/JAJT), in 
planning and conducting public scoping meetings and hearings.
    (iii) Ensures that public affairs aspects of all EIAP actions are 
conducted in accordance with this part and AFI 35-101.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (iv) The National Guard Bureau, Office of Public Affairs (NGB-PA), 
will assume the responsibilities of SAF/PA for the EIAP involving the 
National Guard Bureau, Air Directorate.
    (b) Headquarters U.S. Air Force (HQ USAF). The Civil Engineer (HQ 
USAF/ILE) is responsible for execution of the EIAP program. The National 
Guard

[[Page 222]]

Bureau Air Directorate (NGB-CF) oversees the EIAP for Air National Guard 
actions.
    (c) MAJCOMs, the Air National Guard, Field Operating Agencies 
(FOAs), and Single Manager Programs. These organizations establish 
procedures that comply with this part wherever they are the host unit 
for preparing and using required environmental documentation in making 
decisions about proposed actions and programs within their commands or 
areas of responsibility.
    (1) Air Force Center for Environmental Excellence (AFCEE). The AFCEE 
Environmental Conservation and Planning Directorate (AFCEE/EC) is 
available to provide technical assistance and has the capability to 
provide contract support to the proponent, EPF, and MAJCOMs in 
developing EIAP documents.
    (2) Air Force Regional Environmental Offices (REOs). REOs review 
non-Air Force environmental documents that may have an impact on the Air 
Force. Requests for review of such documents should be directed to the 
proper REO (Atlanta, Dallas, or San Francisco) along with any relevant 
comments. The REO:
    (i) Notifies the proponent, after receipt, that the REO is the 
single point of contact for the Air Force review of the document.
    (ii) Requests comments from potentially affected installations, 
MAJCOMs, the ANG, and HQ USAF, as appropriate.
    (iii) Consolidates comments into the Air Force official response and 
submits the final response to the proponent.
    (iv) Provides to HQ USAF/ILEB and the appropriate MAJCOMs and 
installations a copy of the final response and a complete set of all 
review comments.
    (3) Single Manager Acquisition Programs (system-related NEPA). The 
proponent Single Manager (i.e., System Program Director, Materiel Group 
Managers, and Product Group Managers) for all programs, regardless of 
acquisition category, shall comply with DoD Regulation 5000.2-R. SAF/
AQR, as the Air Force Acquisition Executive Office, is the final 
approval authority for all system-related NEPA documents. SAF/AQR is 
responsible for accomplishing appropriate Headquarters EPC/ESOHC review. 
The Single Manager will obtain appropriate Product Center EPC approval 
prior to forwarding necessary EIAP documents (i.e., Notices of Intent 
(NOIs) and preliminary draft and final EAs and EISs) to SAF/AQR. The 
Single Manager will allow for concurrent review of EIAP documents by HQ 
AFMC/CEV and the Operational Command (HQ ACC, HQ AMC, HQ AFSPC, etc.) 
The Single Manager is responsible for budgeting and funding EIAP 
efforts, including EIAP for research, development, testing, and 
evaluation activities.
    (4) Key Air Force environmental participants. The EIAP must be 
approached as an integrated team effort including key participants 
within the Air Force and also involving outside federal agencies, state, 
Tribal, and local governments, interested outside parties, citizens 
groups, and the general public. Key Air Force participants may include 
the following functional areas, as well as others:

Proponent
Civil Engineers/Environmental Planning Function
Staff Judge Advocate
Public Affairs
Medical Service (Bioenvironmental Engineer)
Safety Office
Range and Airspace Managers
Bases and Units
Plans and Programs
Logistics
Personnel
Legislative Liaison

    (d) Proponent. Each office, unit, single manager, or activity at any 
level that initiates Air Force actions is responsible for:
    (1) Complying with the EIAP and shall ensure integration of the EIAP 
during the initial planning stages of proposed actions so that planning 
and decisions reflect environmental values, delays are avoided later in 
the process, and potential conflicts are precluded.
    (2) Notifying the EPF of a pending action and completing Section I 
of AF Form 813, Request for Environmental Impact Analysis. Prepare the 
Description of Proposed Action and Alternatives (DOPAA) through an 
interdisciplinary team approach including

[[Page 223]]

the EPF and other key Air Force participants.
    (3) Identifying key decision points and coordinating with the EPF on 
EIAP phasing to ensure that environmental documents are available to the 
decision-maker before the final decision is made and ensuring that, 
until the EIAP is complete, resources are not committed prejudicing the 
selection of alternatives nor actions taken having an adverse 
environmental impact or limiting the choice of reasonable alternatives.
    (4) Determining, with the EPF, as early as possible whether to 
prepare an EIS. The proponent and the EPF will conduct an early internal 
scoping process as part of the EIAP process. The internal scoping 
process should involve key Air Force environmental participants (see 
Sec. 989.3(c)(4)) and other Air Force offices as needed and conclude 
with preparation of a DOPAA. For complex or detailed EAs or EISs, an 
outside facilitator trained in EIAP may be used to focus and guide the 
discussion. Department of the Air Force personnel, rather than 
contractors, should generally be used to prepare the DOPAA.
    (5) Presenting the DOPAA to the EPC for review and comment.
    (6) Coordinating with the EPF, Public Affairs, and Staff Judge 
Advocate prior to organizing public or interagency meetings which deal 
with EIAP elements of a proposed action and involving persons or 
agencies outside the Air Force.
    (7) Subsequent to the decision to prepare an EIS, assisting the EPF 
and Public Affairs Office in preparing a draft NOI to prepare an EIS. 
All NOIs must be forwarded through the MAJCOM EPF to HQ USAF/ILEB for 
review and publication in the Federal Register. Publication in the 
Federal Register is accomplished in accordance with AFI 37-120, Federal 
Register.\5\ (See Sec. 989.17.)
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (8) Ensuring that proposed actions are implemented as described in 
the final EIAP decision documents.
    (e) Environmental Planning Function (EPF). At every level of 
command, the EPF is one of the key Air Force participants responsible 
for the EIAP. The EPF can be the environmental flight within a civil 
engineer squadron, a separate environmental management office at an 
installation, the CEV at MAJCOMs, or an equivalent environmental 
function located with a program office. The EPF:
    (1) Supports the EIAP by bringing key participants in at the 
beginning of a proposed action and involving them throughout the EIAP. 
Key participants play an important role in defining and focusing key 
issues at the initial stage.
    (2) At the request of the proponent, prepares environmental 
documents using an interdisciplinary approach, or obtains technical 
assistance through Air Force channels or contract support. Assists the 
proponent in obtaining review of environmental documents.
    (3) Assists the proponent in preparing a DOPAA and actively supports 
the proponent during all phases of the EIAP.
    (4) Evaluates proposed actions and completes Sections II and III of 
AF Form 813, subsequent to submission by the proponent and determines 
whether a Categorical Exclusion (CATEX) applies. The responsible EPF 
member signs the AF Form 813 certification.
    (5) Identifies and documents, with technical advice from the 
Bioenvironmental Engineer and other staff members, environmental quality 
standards that relate to the action under evaluation.
    (6) Supports the proponent in preparing environmental documents, or 
obtains technical assistance through Air Force channels or contract 
support and adopts the documents as official Air Force papers when 
completed and approved.
    (7) Ensures the EIAP is conducted on base-level and MAJCOM-level 
plans, including contingency plans for the training, movement, and 
operations of Air Force personnel and equipment.
    (8) Prepares the NOI to prepare an EIS with assistance from the 
proponent and the Public Affairs Office.
    (9) Prepares applicable portions of the Certificate of Compliance 
for each

[[Page 224]]

military construction project according to AFI 32-1021, Planning and 
Programming of Facility Construction Projects.\6\
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (10) Submits one hard copy and one electronic copy of the final EA/
Finding of No Significant Impact (FONSI) and EIS/Record of Decision 
(ROD) to the Defense Technical Information Center.
    (f) Environmental Protection Committee (EPC). The EPC helps 
commanders assess, review, and approve EIAP documents in accordance with 
AFI 32-7005, Environmental Protection Committees.\7\
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (g) Staff Judge Advocate (SJA). The Staff Judge Advocate:
    (1) Advises the proponent, EPF, and EPC on CATEX determinations and 
the legal sufficiency of environmental documents.
    (2) Advises the EPF during the scoping process of issues that should 
be addressed in EISs and on procedures for the conduct of public 
hearings.
    (3) Coordinates the appointment of the independent hearing officer 
with AFLSA/JAJT and provides support for the hearing officer in cases of 
public hearings on the draft EIS. The proponent pays administrative and 
Temporary Duty (TDY) costs. The hearing officer presides at hearings and 
makes final decisions regarding hearing procedures.
    (4) Promptly refers all matters causing or likely to cause 
substantial public controversy or litigation through channels to AFLSA/
JACE (or NGB-JA).
    (h) Public Affairs Officer. This officer:
    (1) Advises the EPF, the EPC, and the proponent on public affairs 
activities on proposed actions and reviews environmental documents for 
public involvement issues.
    (2) Advises the EPF of issues and competing interests that should be 
addressed in the EIS or EA.
    (3) Assists in preparation of and attends public meetings or media 
sessions on environmental issues.
    (4) Prepares, coordinates, and distributes news releases and other 
public information materials related to the proposal and associated EIAP 
documents.
    (5) Notifies the media (television, radio, newspaper) and purchases 
advertisements when newspapers will not run notices free of charge. The 
EPF will fund the required advertisements.
    (6) Determines and ensures Security Review requirements are met for 
all information proposed for public release.
    (7) For more comprehensive instructions about public affairs 
activities in environmental matters, see AFI 35-101.\8\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------

    (i) Medical Service. The Medical Service, represented by the 
Bioenvironmental Engineer, provides technical assistance to EPFs in the 
areas of environmental health standards, environmental effects, and 
environmental monitoring capabilities. The Air Force Armstrong 
Laboratory, Occupational and Environmental Health Directorate, provides 
additional technical support.
    (j) Safety Office. The Safety Office provides technical review and 
assistance to EPFs to ensure consideration of safety standards and 
requirements.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.4  Initial considerations.

    Air Force personnel will:
    (a) Consider and document environmental effects of proposed Air 
Force actions through AF Forms 813, EAs, FONSIs, EISs, RODs, and 
documents prepared according to E.O. 12114.
    (b) Evaluate proposed actions for possible CATEX from environmental 
impact analysis (appendix B).
    (c) Make environmental documents, comments, and responses, including 
those of other federal agencies, state, Tribal, and local governments, 
and the public, part of the record available for review and use at all 
levels of decisionmaking.
    (d) Review the specific alternatives analyzed in the EIAP when 
evaluating the proposal prior to decisionmaking.
    (e) Ensure that alternatives to be considered by the decisionmaker 
are both reasonable and within the range of alternatives analyzed in the 
environmental documents.

[[Page 225]]

    (f) Pursue the objective of furthering foreign policy and national 
security interests while at the same time considering important 
environmental factors.
    (g) Consider the environmental effects of actions that affect the 
global commons.
    (h) Determine whether any foreign government should be informed of 
the availability of environmental documents. Formal arrangements with 
foreign governments concerning environmental matters and communications 
with foreign governments concerning environmental agreements will be 
coordinated with the Department of State by the Deputy Assistant 
Secretary of the Air Force for Environment, Safety, and Occupational 
Health (SAF/MIQ) through the Deputy Under Secretary of Defense 
(Environmental Security). This coordination requirement does not apply 
to informal working-level communications and arrangements.



Sec. 989.5  Organizational relationships.

    (a) The host EPF manages the EIAP using an interdisciplinary team 
approach. This is especially important for tenant-proposed actions, 
because the host command is responsible for the EIAP for actions related 
to the host command's installations.
    (b) The host command prepares environmental documents internally or 
directs the host base to prepare the environmental documents. 
Environmental document preparation may be by contract (requiring the 
tenant to fund the EIAP), by the tenant unit, or by the host. Regardless 
of the preparation method, the host command will ensure the required 
environmental analysis is accomplished before a decision is made on the 
proposal and an action is undertaken. Support agreements should provide 
specific procedures to ensure host oversight of tenant compliance, 
tenant funding or reimbursement of host EIAP costs, and tenant 
compliance with the EIAP regardless of the tenant not being an Air Force 
organization.
    (c) For aircraft beddown and unit realignment actions, program 
elements are identified in the Program Objective Memorandum. Subsequent 
Program Change Requests must include AF Form 813.
    (d) To ensure timely initiation of the EIAP, SAF/AQ forwards 
information copies of all Mission Need Statements and System Operational 
Requirements Documents to SAF/MIQ, HQ USAF/ILEB (or ANGRC/CEV), the Air 
Force Medical Operations Agency, Aerospace Medicine Office (AFMOA/SG), 
and the affected MAJCOM EPFs.
    (e) The MAJCOM of the scheduling unit managing affected airspace is 
responsible for preparing and approving environmental analyses.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.6  Budgeting and funding.

    Contract EIAP efforts are proponent MAJCOM responsibilities. Each 
year, the EPF programs for anticipated out-year EIAP workloads based on 
inputs from command proponents. If proponent offices exceed the budget 
in a given year or identify unforeseen requirements, the proponent 
offices must provide the remaining funding.



Sec. 989.7  Requests from Non-Air Force agencies or entities.

    (a) Non-Air Force agencies or entities may request the Air Force to 
undertake an action, such as issuing a permit or outleasing Air Force 
property, that may primarily benefit the requester or an agency other 
than the Air Force. The EPF and other Air Force staff elements must 
identify such requests and coordinate with the proponent of the non-Air 
Force proposal, as well as with concerned state, Tribal, and local 
governments.
    (b) Air Force decisions on such proposals must take into 
consideration the potential environmental impacts of the applicant's 
proposed activity (as described in an Air Force environmental document), 
insofar as the proposed action involves Air Force property or programs, 
or requires Air Force approval.
    (c) The Air Force may require the requester to prepare, at the 
requester's expense, an analysis of environmental impacts (40 CFR 
1506.5), or the requester may be required to pay for an EA or EIS to be 
prepared by a contractor selected and supervised by the Air Force. The 
EPF may permit requesters to submit draft EAs for their

[[Page 226]]

proposed actions, except for actions described in Sec. 989.16(a) and 
(b), or for actions the EPF has reason to believe will ultimately 
require an EIS. For EISs, the EPF has the responsibility to prepare the 
environmental document, although responsibility for funding remains with 
the requester. The fact that the requester has prepared environmental 
documents at its own expense does not commit the Air Force to allow or 
undertake the proposed action or its alternatives. The requester is not 
entitled to any preference over other potential parties with whom the 
Air Force might contract or make similar arrangements.
    (d) In no event is the requester who prepares or funds an 
environmental analysis entitled to reimbursement from the Air Force. 
When requesters prepare environmental documents outside the Air Force, 
the Air Force must independently evaluate and approve the scope and 
content of the environmental analyses before using the analyses to 
fulfill EIAP requirements. Any outside environmental analysis must 
evaluate reasonable alternatives as defined in Sec. 989.8.



Sec. 989.8  Analysis of alternatives.

    (a) The Air Force must analyze reasonable alternatives to the 
proposed action and the ``no action'' alternative in all EAs and EISs, 
as fully as the proposed action alternative.
    (b) ``Reasonable'' alternatives are those that meet the underlying 
purpose and need for the proposed action and that would cause a 
reasonable person to inquire further before choosing a particular course 
of action. Reasonable alternatives are not limited to those directly 
within the power of the Air Force to implement. They may involve another 
government agency or military service to assist in the project or even 
to become the lead agency. The Air Force must also consider reasonable 
alternatives raised during the scoping process (see Sec. 989.18) or 
suggested by others, as well as combinations of alternatives. The Air 
Force need not analyze highly speculative alternatives, such as those 
requiring a major, unlikely change in law or governmental policy. If the 
Air Force identifies a large number of reasonable alternatives, it may 
limit alternatives selected for detailed environmental analysis to a 
reasonable range or to a reasonable number of examples covering the full 
spectrum of alternatives.
    (c) The Air Force may expressly eliminate alternatives from detailed 
analysis, based on reasonable selection standards (for example, 
operational, technical, or environmental standards suitable to a 
particular project). In consultation with the EPF, the appropriate Air 
Force organization may develop written selection standards to firmly 
establish what is a ``reasonable'' alternative for a particular project, 
but they must not so narrowly define these standards that they 
unnecessarily limit consideration to the proposal initially favored by 
proponents. This discussion of reasonable alternatives applies equally 
to EAs and EISs.
    (d) Except in those rare instances where excused by law, the Air 
Force must always consider and assess the environmental impacts of the 
``no action'' alternative. ``No action'' may mean either that current 
management practice will not change or that the proposed action will not 
take place. If no action would result in other predictable actions, 
those actions should be discussed within the no action alternative 
section. The discussion of the no action alternative and the other 
alternatives should be comparable in detail to that of the proposed 
action.



Sec. 989.9  Cooperation and adoption.

    (a) Lead and cooperating agency (40 CFR 1501.5 and 1501.6). When the 
Air Force is a cooperating agency in the preparation of an EIS, the Air 
Force reviews and approves principal environmental documents within the 
EIAP as if they were prepared by the Air Force. The Air Force executes a 
ROD for its program decisions that are based on an EIS for which the Air 
Force is a cooperating agency. The Air Force may also be a lead or 
cooperating agency on an EA using similar procedures, but the MAJCOM EPC 
retains approval authority unless otherwise directed by HQ USAF. Before 
invoking provisions of 40 CFR 1501.5(e), the lowest authority level 
possible resolves disputes concerning which agency is the lead agency.

[[Page 227]]

    (b) Adoption of EA or EIS. The Air Force, even though not a 
cooperating agency, may adopt an EA or EIS prepared by another entity 
where the proposed action is substantially the same as the action 
described in the EA or EIS. In this case, the EA or EIS must be 
recirculated as a final EA or EIS but the Air Force must independently 
review the EA or EIS and determine that it is current and that it 
satisfies the requirements of this part. The Air Force then prepares its 
own FONSI or ROD, as the case may be. In the situation where the 
proposed action is not substantially the same as that described in the 
EA or the EIS, the Air Force may adopt the EA or EIS, or a portion 
thereof, by circulating the EA or EIS as a draft and then preparing the 
final EA or EIS.



Sec. 989.10  Tiering.

    The Air Force should use tiered (40 CFR 1502.20) environmental 
documents, and environmental documents prepared by other agencies, to 
eliminate repetitive discussions of the same issues and to focus on the 
issues relating to specific actions. If the Air Force adopts another 
Federal agency's environmental document, subsequent Air Force 
environmental documents may also be tiered.



Sec. 989.11  Combining EIAP with other documentation.

    (a) The EPF combines environmental analysis with other related 
documentation when practicable (40 CFR 1506.4) following the procedures 
prescribed by the CEQ regulations and this part.
    (b) The EPF must integrate comprehensive planning (AFI 32-7062, Air 
Force Comprehensive Planning \9\) with the requirements of the EIAP. 
Prior to making a decision to proceed, the EPF must analyze the 
environmental impacts that could result from implementation of a 
proposal identified in the comprehensive plan.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------



Sec. 989.12  AF Form 813, Request for Environmental Impact Analysis.

    The Air Force uses AF Form 813 to document the need for 
environmental analysis or for certain CATEX determinations for proposed 
actions. The form helps narrow and focus the issues to potential 
environmental impacts. AF Form 813 must be retained with the EA or EIS 
to record the focusing of environmental issues.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.13  Categorical exclusion.

    (a) CATEXs define those categories of actions that do not 
individually or cumulatively have potential for significant effect on 
the environment and do not, therefore, require further environmental 
analysis in an EA or an EIS. The list of Air Force-approved CATEXs is in 
Appendix B. Supplements to this part may not add CATEXs or expand the 
scope of the CATEXs in Appendix B.
    (b) Characteristics of categories of actions that usually do not 
require either an EIS or an EA (in the absence of extraordinary 
circumstances) include:
    (1) Minimal adverse effect on environmental quality.
    (2) No significant change to existing environmental conditions.
    (3) No significant cumulative environmental impact.
    (4) Socioeconomic effects only.
    (5) Similarity to actions previously assessed and found to have no 
significant environmental impacts.
    (c) CATEXs apply to actions in the United States and abroad. General 
exemptions specific to actions abroad are in 32 CFR part 187. The EPF or 
other decision-maker forwards requests for additional exemption 
determinations for actions abroad to HQ USAF/ILEB with a justification 
letter.
    (d) Normally, any decision-making level may determine the 
applicability of a CATEX and need not formally record the determination 
on AF Form 813 or elsewhere, except as noted in the CATEX list.
    (e) Application of a CATEX to an action does not eliminate the need 
to meet air conformity requirements (see Sec. 989.30).

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]

[[Page 228]]



Sec. 989.14  Environmental assessment.

    (a) When a proposed action is one not usually requiring an EIS but 
is not categorically excluded, the EPF supports the proponent in 
preparing an EA (40 CFR 1508.9). Every EA must lead to either a FONSI, a 
decision to prepare an EIS, or no action on the proposal.
    (b) Whenever a proposed action usually requires an EIS, the EPF 
responsible for the EIAP may prepare an EA to definitively determine if 
an EIS is required based on the analysis of environmental impacts. 
Alternatively, the EPF may choose to bypass the EA and proceed with 
preparation of an EIS.
    (c) An EA is a written analysis that:
    (1) Provides analysis sufficient to determine whether to prepare an 
EIS or a FONSI.
    (2) Aids the Air Force in complying with the NEPA when no EIS is 
required.
    (d) The length of an EA should be as short and concise as possible, 
while matching the magnitude of the proposal. An EA briefly discusses 
the need for the proposed action, reasonable alternatives to the 
proposed action, the affected environment, the environmental impacts of 
the proposed action and alternatives (including the ``no action'' 
alternative), and a listing of agencies and persons consulted during 
preparation. The EA should not contain long descriptions or lengthy, 
detailed data. Rather, incorporate by reference background data to 
support the concise discussion of the proposal and relevant issues.
    (e) The format for the EA may be the same as the EIS. The 
alternatives section of an EA and an EIS are similar and should follow 
the alternatives analysis guidance outlined in Sec. 989.8.
    (f) The EPF should design the EA to facilitate rapidly transforming 
the document into an EIS if the environmental analysis reveals a 
significant impact.
    (g) As a finding contained in the draft FONSI, a Finding of No 
Practicable Alternative (FONPA) must be submitted (five hard copies and 
an electronic version) to the MAJCOM EPF when the alternative selected 
could be located in wetlands or floodplains, and must discuss why no 
other practicable alternative exists to avoid impacts. See AFI 32-7064, 
Integrated Natural Resources Management.
    (h) EAs and accompanying FONSIs that require the Air Force to make 
Clean Air Act General Conformity Determinations shall be submitted (five 
hard copies and an electronic version) through the MAJCOM EPF to HQ 
USAF/ILEB for SAF/MIQ approval. SAF/MIQ signs all General Conformity 
Determinations and will also sign the companion FONSIs, when requested 
by the MAJCOM (see Sec. 989.30).
    (i) In cases potentially involving a high degree of controversy or 
Air Force-wide concern, the MAJCOM, after consultation with HQ USAF/
ILEB, may request HQ USAF ESOHC review and approval of an EA, or HQ USAF 
may direct the MAJCOM to forward an EA (five hard copies and an 
electronic version) for HQ USAF ESOHC review and approval.
    (j) As a minimum, the following EAs require MAJCOM approval because 
they involve topics of special importance or interest. Unless directed 
otherwise by HQ USAF/ILEB, the installation EPF must forward the 
following types of EAs to the MAJCOM EPF, along with an unsigned draft 
FONSI: (MAJCOMs can require other EAs to receive MAJCOM approval in 
addition to those types specified here.)
    (1) All EAs on non-Air Force proposals that require an Air Force 
decision, such as use of Air Force property for highways, space ports, 
and joint-use proposals.
    (2) EAs where mitigation to insignificance is accomplished in lieu 
of initiating an EIS (Sec. 989.22(c)).
    (k) A few examples of actions that normally require preparation of 
an EA (except as indicated in the CATEX list) include:
    (1) Public land withdrawals of less than 5,000 acres.
    (2) Minor mission realignments and aircraft beddowns.
    (3) New building construction on base within developed areas.
    (4) Minor modifications to Military Operating Areas (MOAs), air-to-
ground weapons ranges, and military training routes.
    (l) The Air Force will involve other federal agencies, state, 
Tribal, and local governments, and the public in

[[Page 229]]

the preparation of EAs (40 CFR 1501.4(b) and 1506.6). The extent of 
involvement usually coincides with the magnitude and complexity of the 
proposed action and its potential environmental effect on the area. For 
proposed actions described in Sec. 989.15(e)(2), use either the scoping 
process described in Sec. 989.18 or the public notice process in 
Sec. 989.24.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.15  Finding of no significant impact.

    (a) The FONSI (40 CFR 1508.13) briefly describes why an action would 
not have a significant effect on the environment and thus will not be 
the subject of an EIS. The FONSI must summarize the EA or, preferably, 
have it attached and incorporated by reference, and must note any other 
environmental documents related to the action.
    (b) If the EA is not incorporated by reference, the FONSI must 
include:
    (1) Name of the action.
    (2) Brief description of the action (including alternatives 
considered and the chosen alternative).
    (3) Brief discussion of anticipated environmental effects.
    (4) Conclusions leading to the FONSI.
    (5) All mitigation actions that will be adopted with implementation 
of the proposal (see Sec. 989.22).
    (c) Keep FONSIs as brief as possible. Only rarely should FONSIs 
exceed two typewritten pages. Stand-alone FONSIs without an attached EA 
may be longer.
    (d) For actions of regional or local interest, disseminate the FONSI 
according to Sec. 989.24. The MAJCOM and NGB are responsible for release 
of FONSIs to regional offices of Federal agencies, the state single 
point of contact (SPOC), and state agencies concurrent with local 
release by the installations.
    (e) The EPF must make the EA and unsigned FONSI available to the 
affected public and provide the EA and unsigned FONSI to organizations 
and individuals requesting them and to whomever the proponent or the EPF 
has reason to believe is interested in the action, unless disclosure is 
precluded for security classification reasons. Draft EAs and unsigned 
draft FONSIs will be clearly identified as drafts and distributed via 
cover letter which will explain their purpose and need. The EPF provides 
a copy of the documents without cost to organizations and individuals 
requesting them. The FONSI transmittal date (date of letter of 
transmittal) to the state SPOC or other equivalent agency is the 
official notification date.
    (1) Before the FONSI is signed and the action is implemented, the 
EPF should allow sufficient time to receive comments from the public. 
The time period will reflect the magnitude of the proposed action and 
its potential for controversy. The greater the magnitude of the proposed 
action or its potential for controversy, the longer the time that must 
be allowed for public review. Mandatory review periods for certain 
defined actions are contained in Sec. 989.15(e)(2). These are not all 
inclusive but merely specific examples. In every case where an EA and 
FONSI are prepared, the proponent and EPF must determine how much time 
will be allowed for public review. In all cases, other than classified 
actions, a public review period should be the norm unless clearly 
unnecessary due to the lack of potential controversy.
    (2) In the following circumstances, the EA and unsigned FONSI are 
made available for public review for at least 30 days before FONSI 
approval and implementing the action (40 CFR 1501.4(e)(2)):
    (i) When the proposed action is, or is closely similar to, one that 
usually requires preparation of an EIS (see Sec. 989.16).
    (ii) If it is an unusual case, a new kind of action, or a precedent-
setting case in terms of its potential environmental impacts.
    (iii) If the proposed action would be located in a floodplain or 
wetland.
    (iv) If the action is mitigated to insignificance in the FONSI, in 
lieu of an EIS (Sec. 989.22(c)).
    (v) If the proposed action is a change to airspace use or 
designation.
    (vi) If the proposed action would have a disproportionately high and 
adverse environmental effect on minority populations and low-income 
populations.
    (f) As a general rule, the same organizational level that prepares 
the EA also reviews and recommends the

[[Page 230]]

FONSI for approval by the EPC. MAJCOMs may decide the level of EA 
approval and FONSI signature, except as provided in Sec. 989.14(g), (h), 
(i), and (j).



Sec. 989.16  Environmental impact statement.

    (a) Certain classes of environmental impacts normally require 
preparation of an EIS (40 CFR 1501.4). These include, but are not 
limited to:
    (1) Potential for significant degradation of the environment.
    (2) Potential for significant threat or hazard to public health or 
safety.
    (3) Substantial environmental controversy concerning the 
significance or nature of the environmental impact of a proposed action.
    (b) Certain other actions normally, but not always, require an EIS. 
These include, but are not limited to:
    (1) Public land withdrawals of over 5,000 acres (Engle Act, 43 
U.S.C. 155 through 158).
    (2) Establishment of new air-to-ground weapons ranges.
    (3) Site selection of new airfields.
    (4) Site selection of major installations.
    (5) Development of major new weapons systems (at decision points 
that involve demonstration, validation, production, deployment, and area 
or site selection for deployment).
    (6) Establishing or expanding supersonic training areas over land 
below 30,000 feet MSL (mean sea level).
    (7) Disposal and reuse of closing installations.



Sec. 989.17  Notice of intent.

    The EPF must furnish, through the MAJCOM, to HQ USAF/ILEB the NOI 
(40 CFR 1508.22) describing the proposed action for congressional 
notification and publication in the Federal Register. The EPF, through 
the host base public affairs office, will also provide the approved NOI 
to newspapers and other media in the area potentially affected by the 
proposed action. The EPF must provide copies of the notice to the SPOC 
and must also distribute it to requesting agencies, organizations, and 
individuals. Along with the draft NOI, the EPF must also forward the 
completed DOPAA, through the MAJCOM, to HQ USAF for information.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.18  Scoping.

    (a) After publication of the NOI for an EIS, the EPF must initiate 
the public scoping process (40 CFR 1501.7) to determine the scope of 
issues to be addressed and to help identify significant environmental 
issues to be analyzed in depth. Methods of scoping range from soliciting 
written comments to conducting public scoping meetings (see 40 CFR 
1501.7 and 1506.6(e)). The scoping process is an iterative, pro-active 
process of communicating with individual citizens, neighborhood, 
community, and local leaders, public interest groups, congressional 
delegations, state, Tribal, and local governments, and federal agencies. 
The scoping process must start prior to official public scoping meetings 
and continue through to preparation of the draft EIS. The purpose of 
this process is to de-emphasize insignificant issues and focus the scope 
of the environmental analysis on significant issues (40 CFR 1500.4(g)). 
Additionally, scoping allows early and more meaningful participation by 
the public. The result of scoping is that the proponent and EPF 
determine the range of actions, alternatives, and impacts to be 
considered in the EIS (40 CFR 1508.25). The EPF must send scripts for 
scoping meetings to USAF/ILEV (or ANGRC/CEV) no later than 30 days 
before the first scoping meeting. Scoping meeting plans are similar in 
content to public hearing plans (see Appendix C). Public scoping 
meetings should generally be held at locations not on the installation.
    (b) Where it is anticipated the proposed action and its alternatives 
will have disproportionately high and adverse human health or 
environmental effects on minority populations or low-income populations, 
special efforts shall be made to reach these populations. This might 
include special informational meetings or notices in minority and low-
income areas concerning the regular scoping process.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001; 66 FR 26793, 
May 15, 2001]

[[Page 231]]



Sec. 989.19  Draft EIS.

    (a) Preliminary draft. The EPF supports the proponent in preparation 
of a preliminary draft EIS (PDEIS) (40 CFR 1502.9) based on the scope of 
issues decided on during the scoping process. The format of the EIS must 
be in accordance with the format recommended in the CEQ regulations (40 
CFR 1502.10 and 1502.11). The CEQ regulations indicate that EISs 
normally contain fewer than 150 pages (300 pages for proposals of 
unusual complexity). The EPF provides a sufficient number of copies of 
the PDEIS to HQ USAF/ILEB for HQ USAF ESOHC security and policy review 
in each member's area of responsibility and to AFCEE/EC for technical 
review.
    (b) Review of draft EIS. After the HQ USAF ESOHC review, the EPF 
assists the appropriate Air Force organization in making any necessary 
revisions to the PDEIS and forwards it to HQ USAF/ILEB as a draft EIS to 
ensure completion of all security and policy reviews and to certify 
releasability. Once the draft EIS is approved, HQ USAF/ILEB notifies the 
EPF to print sufficient copies of the draft EIS for distribution to 
congressional delegations and interested agencies at least 7 calendar 
days prior to publication of the Notice of Availability (NOA) in the 
Federal Register. After congressional distribution, the EPF sends the 
draft EIS to all others on the distribution list. HQ USAF/ILEB then 
files the document with the U.S. Environmental Protection Agency (USEPA) 
and provides a copy to the Deputy Under Secretary of Defense for 
Environmental Security.
    (c) Public review of draft EIS (40 CFR 1502.19 and 1506.6): (1) The 
public comment period for the draft EIS is at least 45 days starting 
from the publication date of the NOA of the draft EIS in the Federal 
Register. USEPA publishes in the Federal Register NOAs of EISs filed 
during the preceding week. This public comment period may be extended by 
the EPF. If the draft EIS is unusually long, the EPF may distribute a 
summary to the public with an attached list of locations (such as public 
libraries) where the entire draft EIS may be reviewed. The EPF must 
distribute the full draft EIS to certain entities, for example, agencies 
with jurisdiction by law or agencies with special expertise in 
evaluating the environmental impacts, and anyone else requesting the 
entire draft EIS (40 CFR 1502.19 and 1506.6).
    (2) The EPF sponsors public hearings on the draft EIS according to 
the procedures in Appendix C to this part. Hearings take place no sooner 
than 15 days after the Federal Register publication of the NOA and at 
least 15 days before the end of the comment period. Scheduling hearings 
toward the end of the comment period is encouraged to allow the public 
to obtain and more thoroughly review the draft EIS. The EPF must provide 
hearing scripts to HQ USAF/ILEB (or ANGRC/CEV) no later than 30 days 
prior to the first public hearing. Public hearings should generally be 
held at off-base locations. Submit requests to deviate from procedures 
in Appendix C to this part to HQ USAF/ILEB for SAF/MIQ approval.
    (3) Where analyses indicate that a proposed action will potentially 
have disproportionately high and adverse human health or environmental 
effects on minority populations or low-income populations, the EPF 
should make special efforts to ensure that these potentially impacted 
populations are brought into the review process.
    (d) Response to comments (40 CFR 1503.4). The EPF must incorporate 
in the Final EIS its responses to comments on the Draft EIS by modifying 
the text and referring in the appendix to where the comment is addressed 
or providing a written explanation in the comments section, or both. The 
EPF may group comments of a similar nature together to allow a common 
response and may also respond to individuals separately.
    (e) Seeking additional comments. The EPF may, at any time during the 
EIS process, seek additional public comments, such as when there has 
been a significant change in circumstances, development of significant 
new information of a relevant nature, or where there is substantial 
environmental controversy concerning the proposed action. Significant 
new information leading to public controversy regarding the scope after 
the scoping process is such a changed circumstance. An additional

[[Page 232]]

public comment period may also be necessary after the publication of the 
draft EIS due to public controversy or changes made as the result of 
previous public comments. Such periods when additional public comments 
are sought shall last for at least 30 days.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.20  Final EIS.

    (a) If changes in the draft EIS are minor or limited to factual 
corrections and responses to comments, the proponent and EPF may, with 
the prior approval of HQ USAF/ILEB and SAF/MIQ, prepare a document 
containing only comments on the Draft EIS, Air Force responses, and 
errata sheets of changes staffed to the HQ USAF ESOHC for coordination. 
However, the EPF must submit the Draft EIS and all of the above 
documents, with a new cover sheet indicating that it is a final EIS (40 
CFR 1503.4(c)), to HQ USAF/ILEB for filing with the EPA (40 CFR 1506.9). 
If more extensive modifications are required, the EPF must prepare a 
preliminary final EIS incorporating these modifications for coordination 
within the Air Force. Regardless of which procedure is followed, the 
final EIS must be processed in the same way as the draft EIS, including 
receipt of copies of the EIS by SAF/LLP, except that the public need not 
be invited to comment during the 30-day post-filing waiting period. The 
Final EIS should be furnished to every person, organization, or agency 
that made substantive comments on the Draft EIS or requested a copy. 
Although the EPF is not required to respond to public comments received 
during this period, comments received must be considered in determining 
final decisions such as identifying the preferred alternative, 
appropriate mitigations, or if a supplemental analysis is required.
    (b) The EPF processes all necessary supplements to EISs (40 CFR 
1502.9) in the same way as the original Draft and Final EIS, except that 
a new scoping process is not required.
    (c) If major steps to advance the proposal have not occurred within 
5 years from the date of the Final EIS approval, reevaluation of the 
documentation should be accomplished to ensure its continued validity.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.21  Record of decision (ROD).

    (a) The proponent and the EPF prepare a draft ROD, formally staff it 
through the MAJCOM EPC, to HQ USAF/ILEB for verification of adequacy, 
and forwards it to either SAF/MIQ or SAF/AQR, as the case may be, for 
approval and designation of the signator. A ROD (40 CFR 1505.2) is a 
concise public document stating what an agency's decision is on a 
specific action. The ROD may be integrated into any other document 
required to implement the agency's decision. A decision on a course of 
action may not be made until the later of the following dates:
    (1) 90 days after publication of the DEIS; or
    (2) 30 days after publication of the NOA of the Final EIS in the 
Federal Register.
    (b) The Air Force must announce the ROD to the affected public as 
specified in Sec. 989.24, except for classified portions. The ROD should 
be concise and should explain the conclusion, the reason for the 
selection, and the alternatives considered. The ROD must identify the 
course of action, whether it is the proposed action or an alternative, 
that is considered environmentally preferable regardless of whether it 
is the alternative selected for implementation. The ROD should summarize 
all the major factors the agency weighed in making its decision, 
including essential considerations of national policy.
    (c) The ROD must state whether the selected alternative employs all 
practicable means to avoid, minimize, or mitigate environmental impacts 
and, if not, explain why.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.22  Mitigation.

    (a) When preparing EIAP documents, indicate clearly whether 
mitigation measures (40 CFR 1508.20) must be implemented for the 
alternative selected. If using Best Management Practices (BMPs), 
identify the specific BMPs

[[Page 233]]

being used and include those BMPs in the mitigation plan. Discuss 
mitigation measures in terms of ``will'' and ``would'' when such 
measures have already been incorporated into the proposal. Use terms 
like ``may'' and ``could'' when proposing or suggesting mitigation 
measures. Both the public and the Air Force community need to know what 
commitments are being considered and selected, and who will be 
responsible for implementing, funding, and monitoring the mitigation 
measures.
    (b) The proponent funds and implements mitigation measures in the 
mitigation plan that is approved by the decision-maker. Where possible 
and appropriate because of amount, the proponent should include the cost 
of mitigation as a line item in the budget for a proposed project. The 
proponent must ensure compliance with mitigation requirements, 
monitoring their effectiveness, and must keep the EPF informed of the 
mitigation status. The EPF reports its status, through the MAJCOM, to HQ 
USAF/ILEB when requested. Upon request, the EPF must also provide the 
results of relevant mitigation monitoring to the public.
    (c) The proponent may ``mitigate to insignificance'' potentially 
significant environmental impacts found during preparation of an EA, in 
lieu of preparing an EIS. The FONSI for the EA must include these 
mitigation measures. Such mitigations are legally binding and must be 
carried out as the proponent implements the project. If, for any reason, 
the project proponent later abandons or revises in environmentally 
adverse ways the mitigation commitments made in the FONSI, the proponent 
must prepare a supplemental EIAP document before continuing the project. 
If potentially significant environmental impacts would result from any 
project revisions, the proponent must prepare an EIS.
    (d) For each FONSI or ROD containing mitigation measures, the 
proponent prepares a plan specifically identifying each mitigation, 
discussing how the proponent will execute the mitigations, identifying 
who will fund and implement the mitigations, and stating when the 
proponent will complete the mitigation. The mitigation plan will be 
forwarded, through the MAJCOM EPF to HQ USAF/ILEB for review within 90 
days from the date of signature of the FONSI or ROD.

[64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001]



Sec. 989.23  Contractor prepared documents.

    All Air Force EIAP documents belong to and are the responsibility of 
the Air Force. EIAP correspondence and documents distributed outside of 
the Air Force should generally be signed out by Air Force personnel and 
documents should reflect on the cover sheet they are an Air Force 
document. Contractor preparation information should be contained within 
the document's list of preparers.



Sec. 989.24  Public notification.

    (a) Except as provided in Sec. 989.26, public notification is 
required for various aspects of the EIAP.
    (b) Activities that require public notification include:

(1) An EA and FONSI.
(2) An EIS NOI.
(3) Public scoping meetings.
(4) Availability of the draft EIS.
(5) Public hearings on the draft EIS (which should be included in the 
NOA for the draft EIS).
(6) Availability of the final EIS.
(7) The ROD for an EIS.

    (c) For actions of local concern, the list of possible notification 
methods in 40 CFR 1506.6(b)(3) is only illustrative. The EPF may use 
other equally effective means of notification as a substitute for any of 
the methods listed. Because many Air Force actions are of limited 
interest to persons or organizations outside the Air Force, the EPF may 
limit local notification to the SPOC, local government representatives, 
and local news media. For all actions covered under Sec. 989.15(e)(2), 
and for all EIS notices, the public affairs office must purchase with 
EPF funds an advertisement in a prominent section of the local 
newspaper(s) of general circulation (not ``legal'' newspapers or ``legal 
section'' of general newspapers).

[[Page 234]]

    (d) For the purpose of EIAP, the EPF begins the time period of local 
notification when it sends written notification to the state SPOC or 
other equivalent agency (date of letter of notification).



Sec. 989.25  Base closure and realignment.

    Base closure or realignment may entail special requirements for 
environmental analysis. The permanent base closure and realignment law, 
10 U.S.C. 2687, requires a report to the Congress when an installation 
where at least 300 DoD civilian personnel are authorized to be employed 
is closed, or when a realignment reduces such an installation by at 
least 50 percent or 1,000 of such personnel, whichever is less. In 
addition, other base closure laws may be in effect during particular 
periods. Such nonpermanent closure laws frequently contain provisions 
limiting the extent of environmental analysis required for actions taken 
under them. Such provisions may also add requirements for studies not 
necessarily required by NEPA.



Sec. 989.26  Classified actions (40 CFR 1507.3(c)).

    (a) Classification of an action for national defense or foreign 
policy purposes does not relieve the requirement of complying with NEPA. 
In classified matters, the Air Force must prepare and make available 
normal NEPA environmental analysis documents to aid in the decision-
making process; however, Air Force staff must prepare, safeguard, and 
disseminate these documents according to established procedures for 
protecting classified documents. If an EIAP document must be classified, 
the Air Force may modify or eliminate associated requirements for public 
notice (including publication in the Federal Register) or public 
involvement in the EIAP. However, the Air Force should obtain comments 
on classified proposed actions or classified aspects of generally 
unclassified actions, from public agencies having jurisdiction by law or 
special expertise, to the extent that such review and comment is 
consistent with security requirements. Where feasible, the EPF may need 
to help appropriate personnel from those agencies obtain necessary 
security clearances to gain access to documents so they can comment on 
scoping or review the documents.
    (b) Where the proposed action is classified and unavailable to the 
public, the Air Force may keep the entire NEPA process classified and 
protected under the applicable procedures for the classification level 
pertinent to the particular information. At times (for example, during 
weapons system development and base closures and realignments), certain 
but not all aspects of NEPA documents may later be declassified. In 
those cases, the EPF should organize the EIAP documents, to the extent 
practicable, in a way that keeps the most sensitive classified 
information (which is not expected to be released at any early date) in 
a separate annex that can remain classified; the rest of the EIAP 
documents, when declassified, will then be comprehensible as a unit and 
suitable for release to the public. Thus, the documents will reflect, as 
much as possible, the nature of the action and its environmental 
impacts, as well as Air Force compliance with NEPA requirements.
    (c) Where the proposed action is not classified, but certain aspects 
of it need to be protected by security classification, the EPF should 
tailor the EIAP for a proposed action to permit as normal a level of 
public involvement as possible, but also fully protect the classified 
part of the action and environmental analysis. In some instances, the 
EPF can do this by keeping the classified sections of the EIAP documents 
in a separate, classified annex.
    (d) For Sec. 989.26(b) actions, an NOI or NOA will not be published 
in the Federal Register until the proposed action is declassified. For 
Sec. 989.26(c) actions, the Federal Register will run an unclassified 
NOA which will advise the public that at some time in the future the Air 
Force may or will publicly release a declassified document.
    (e) The EPF similarly protects classified aspects of FONSIs, RODs, 
or other environmental documents that are part of the EIAP for a 
proposed action, such as by preparing separate classified annexes to 
unclassified documents, as necessary.
    (f) Whenever a proponent believes that EIAP documents should be kept 
classified, the EPF must make a report

[[Page 235]]

of the matter to SAF/MIQ, including proposed modifications of the normal 
EIAP to protect classified information. The EPF may make such 
submissions at whatever level of security classification is needed to 
provide a comprehensive understanding of the issues. SAF/MIQ, with 
support from SAF/GC and other staff elements as necessary, makes final 
decisions on EIAP procedures for classified actions.



Sec. 989.27  Occupational safety and health.

    Assess direct and indirect impacts of proposed actions on the safety 
and health of Air Force employees and others at a work site. The EIAP 
document does not need to specify compliance procedures. However, the 
EIAP documents should discuss impacts that require a change in work 
practices to achieve an adequate level of health and safety.



Sec. 989.28  Airspace and range proposals.

    (a) EIAP Review. Airspace and range proposals require review by HQ 
USAF/XOO prior to public announcement and preparation of the DOPAA. 
Unless directed otherwise, the airspace proponent will forward the DOPAA 
as an attachment to the proposal sent to HQ USAF/XOO.
    (b) Federal Aviation Administration. The DoD and the Federal 
Aviation Administration (FAA) have entered into a Memorandum of 
Understanding (MOU) that outlines various airspace responsibilities. For 
purposes of compliance with NEPA, the DoD is the ``lead agency'' for all 
proposals initiated by DoD, with the FAA acting as the ``cooperating 
agency.'' Where airspace proposals initiated by the FAA affect military 
use, the roles are reversed. The proponent's action officers (civil 
engineering and local airspace management) must ensure that the FAA is 
fully integrated into the airspace proposal and related EIAP from the 
very beginning and that the action officers review the FAA's 
responsibilities as a cooperating agency. The proponent's airspace 
manager develops the preliminary airspace proposal per appropriate FAA 
handbooks and the FAA-DoD MOU. The preliminary airspace proposal is the 
basis for initial dialogue between DoD and the FAA on the proposed 
action. A close working relationship between DoD and the FAA, through 
the FAA regional Air Force representative, greatly facilitates the 
airspace proposal process and helps resolve many NEPA issues during the 
EIAP.



Sec. 989.29  Force structure and unit move proposals.

    Unless directed otherwise, the MAJCOM plans and programs proponent 
will forward a copy of all EAs for force structure and unit moves to HQ 
USAF/ILEB for information only at the preliminary draft and preliminary 
final stages.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec. 989.30  Air quality.

    Section 176(c) of the Clean Air Act Amendments of 1990, 42 U.S.C. 
7506(c), establishes a conformity requirement for Federal agencies which 
has been implemented by regulation, 40 CFR 93, Subpart B. All EIAP 
documents must address applicable conformity requirements and the status 
of compliance. Conformity applicability analyses and determinations are 
developed in parallel with EIAP documents, but are separate and distinct 
requirements and should be documented separately. To increase the 
utility of a conformity determination in performing the EIAP, the 
conformity determination should be completed prior to the completion of 
the EIAP so as to allow incorporation of the information from the 
conformity determination into the EIAP. See AFI 32-7040, Air Quality 
Compliance.\10\
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------



Sec. 989.31  Pollution prevention.

    The Pollution Prevention Act of 1990, 42 U.S.C. 13101(b), 
established a national policy to prevent or reduce pollution at the 
source, whenever feasible. Pollution prevention approaches should be 
applied to all pollution-generating activities. The environmental 
document should analyze potential pollution that may result from the 
proposed action and alternatives and must discuss potential pollution 
prevention

[[Page 236]]

measures when such measures are feasible for incorporation into the 
proposal or alternatives. Where pollution cannot be prevented, the 
environmental analysis and proposed mitigation measures should include, 
wherever possible, recycling, energy recovery, treatment, and 
environmentally safe disposal actions (see AFI 32-7080, Pollution 
Prevention Program \11\).
---------------------------------------------------------------------------

    \11\ See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------



Sec. 989.32  Noise.

    Aircraft noise data files used for analysis during EIAP will be 
submitted to HQ AFCEE for review and validation prior to public release, 
and upon completion of the EIAP for database entry. Utilize the current 
NOISEMAP computer program for air installations and the Assessment 
System for Aircraft Noise for military training routes and military 
operating areas. Guidance on standardized Air Force noise data 
development and analysis procedures is available from HQ AFCEE/EC. 
Develop EIAP land use analysis relating to aircraft noise impacts 
originating from air installations following procedures in AFI 32-7063, 
Air Installation Compatible Use Zone (AICUZ) Program. Draft EIAP 
aircraft noise/land use analysis associated with air installations will 
be coordinated with the MAJCOM AICUZ program manager.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec. 989.33  Environmental justice.

    During the preparation of environmental analyses under this 
instruction, the EPF should ensure compliance with the provisions of 
E.O. 12898, Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations, and Executive Memorandum of 
February 11, 1994, regarding E.O. 12898.



Sec. 989.34  Special and emergency procedures.

    (a) Special procedures. During the EIAP, unique situations may arise 
that require EIAP strategies different than those set forth in this 
part. These situations may warrant modification of the procedures in 
this part. EPFs should only consider procedural deviations when the 
resulting process would benefit the Air Force and still comply with NEPA 
and CEQ regulations. EPFs must forward all requests for procedural 
deviations to HQ USAF/ILEB (or ANGRC/CEV) for review and approval by 
SAF/MIQ.
    (b) Emergency procedures (40 CFR 1506.11). Emergency situations do 
not exempt the Air Force from complying with NEPA, but do allow 
emergency response while completing the EIAP. Certain emergency 
situations may make it necessary to take immediate action having 
significant environmental impact, without observing all the provisions 
of the CEQ regulations or this part. If possible, promptly notify HQ 
USAF/ILEB, for SAF/MIQ coordination and CEQ consultation, before 
undertaking emergency actions that would otherwise not comply with NEPA 
or this part. The immediate notification requirement does not apply 
where emergency action must be taken without delay. Coordination in this 
instance must take place as soon as practicable.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec. 989.35  Reporting requirements.

    (a) EAs, EISs, and mitigation measures will be tracked at bases and 
MAJCOMs through an appropriate environmental management system.
    (b) Proponents, EPFs, and public affairs offices may utilize the 
World Wide Web, in addition to more traditional means, to notify the 
public of availability of EAs and EISs. When possible, allow 
distribution of documents electronically. Public review comments should 
be required in writing, rather than by electronic mail.
    (c) All documentation will be disposed of according to AFMAN 37-139, 
Records Disposition Schedule.\12\
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec. 989.1.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec. 989.36  Waivers.

    In order to deal with unusual circumstances and to allow growth in 
the NEPA process, SAF/MIQ may grant waivers to those procedures 
contained

[[Page 237]]

in this part not required by NEPA or the CEQ Regulations. Such waivers 
shall not be used to limit compliance with NEPA or the CEQ Regulations 
but only to substitute other, more suitable procedures relative to the 
context of the particular action. Such waivers may also be granted on 
occasion to allow experimentation in procedures in order to allow growth 
in the EIAP. This authority may not be delegated.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec. 989.37  Procedures for analysis abroad.

    Procedures for analysis of environmental actions abroad are 
contained in 32 CFR Part 187. That directive provides comprehensive 
policies, definitions, and procedures for implementing E.O. 12114. For 
analysis of Air Force actions abroad, 32 CFR Part 187 will be followed.



Sec. 989.38  Requirements for analysis abroad.

    (a) The EPF will generally perform the same functions for analysis 
of actions abroad that it performs in the United States. In addition to 
the requirements of 32 CFR Part 187, the following Air Force specific 
rules apply:
    (b) For EAs dealing with global commons (geographic areas beyond the 
jurisdiction of the United States or any foreign nation), HQ USAF/ILEB 
will review actions that are above the MAJCOM approval authority. In 
this instance, approval authority refers to the same approval authority 
that would apply to an EA in the United States. The EPF documents a 
decision not to do an EIS.
    (c) For EISs dealing with the global commons, the EPF provides 
sufficient copies to HQ USAF/ILEB for the HQ USAF ESOHC review and 
AFCEE/EC technical review. After ESOHC review, the EPF makes a 
recommendation as to whether the proposed draft EIS will be released as 
a draft EIS.
    (d) For environmental studies and environmental reviews, forward, 
when appropriate, environmental studies and reviews to HQ USAF/ILEB for 
coordination among appropriate federal agencies. HQ USAF/ILEB makes 
environmental studies and reviews available to the Department of State 
and other interested federal agencies, and, on request, to the United 
States public, in accordance with 32 CFR Part 187. HQ USAF/ILEB also may 
inform interested foreign governments or furnish copies of studies, in 
accordance with 32 CFR Part 187.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]

Appendix A to Part 989--Glossary of References, Abbreviations, Acronyms, 
                                and Terms

                               References

                               Legislative

10 U.S.C. 2687, Base Closures and Realignments
42 U.S.C. 4321-4347, National Environmental Policy Act of 1969
42 U.S.C. 7506(c), Clean Air Act Amendments of 1990
42 U.S.C. 13101(b), Pollution Prevention Act of 1990
43 U.S.C. 155-158, Engle Act

                            Executive Orders

Executive Order 11988, Floodplain Management, May 24, 1977
Executive Order 11990, Protection of Wetlands, May 24, 1977
Executive Order 12088, Federal Compliance with Pollution Control 
Standards.
Executive Order 12114, Environmental Effects Abroad of Major Federal 
Actions, January 4, 1979
Executive Order 12372, Intergovernmental Review of Federal Programs, 
July 14, 1982
Executive Order 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations, February 11, 1994

                   U.S. Government Agency Publications

Council on Environmental Quality Regulations for Implementing the 
Procedural Provisions of the National Environmental Policy Act, 40 CFR 
parts 1500-1508
Department of Defense Directive (DoDD) 4715.1, Environmental Security
Department of Defense Directive (DoDD) 6050.7, Environmental Effects 
Abroad of Major Department of Defense Actions, March 31, 1979 (32 CFR 
Part 187)
Department of Defense Instruction (DoDI) 4715.9, Environmental Planning 
and Analysis
DoDD 5000.1, Defense Acquisition
Department of Defense Regulation 5000.2-R, Mandatory Procedures for 
Major Defense Acquisition Programs and Major Automated Information 
System Acquisition Programs

[[Page 238]]

                         Air Force Publications

AFPD 32-70, Environmental Quality
AFI 32-1021, Planning and Programming of Facility Construction Projects
AFI 32-7002, Environmental Information Management System
AFI 32-7005, Environmental Protection Committees
AFI 32-7040, Air Quality Compliance
AFI 32-7062, Air Force Comprehensive Planning
AFI 32-7063, Air Installation Compatible Use Zone Program
AFI 32-7064, Integrated Natural Resources Management
AFI 32-7080, Pollution Prevention Program
AFI 35-101, Public Affairs Policies and Procedures
AFMAN 37-139, Records Disposition Schedule

                       Abbreviations and Acronyms

 
------------------------------------------------------------------------
   Abbreviation or Acronym                     Definition
------------------------------------------------------------------------
AFCEE........................  Air Force Center for Environmental
                                Excellence
AFCEE/EC.....................  Air Force Center for Environmental
                                Excellence/Environmental Conservation
                                and Planning Directorate
AFI..........................  Air Force Instruction
AFLSA/JACE...................  Air Force Legal Services Agency/
                                Environmental Law and Litigation
                                Division
AFLSA/JAJT...................  Air Force Legal Services Agency/Trial
                                Judiciary Division
AFMAN........................  Air Force Manual
AFMOA/SG.....................  Air Force Medical Operations Agency/
                                Aerospace Medicine Office
AFPD.........................  Air Force Policy Directive
AFRES........................  Air Force Reserve
ANG..........................  Air National Guard
ANGRC........................  Air National Guard Readiness Center
BMP..........................  Best Management Practice
CATEX........................  Categorical Exclusion
CEQ..........................  Council on Environmental Quality
CFR..........................  Code of Federal Regulations
DoD..........................  Department of Defense
DoDD.........................  Department of Defense Directive
DoDI.........................  Department of Defense Instruction
DOPAA........................  Description of Proposed Action and
                                Alternatives
EA...........................  Environmental Assessment
EIAP.........................  Environmental Impact Analysis Process
EIS..........................  Environmental Impact Statement
E.O..........................  Executive Order
EPA..........................  Environmental Protection Agency
EPC..........................  Environmental Protection Committee
EPF..........................  Environmental Planning Function
ESOHC........................  Environmental Safety and Occupational
                                Health Committee
FAA..........................  Federal Aviation Administration
FEIS.........................  Final Environmental Impact Statement
FOA..........................  Field Operating Agency
FONPA........................  Finding of No Practicable Alternative
FONSI........................  Finding of No Significant Impact
GSA..........................  General Services Administration
HQ AFMC......................  Headquarters, Air Force Materiel Command
HQ USAF......................  Headquarters, United States Air Force
HQ USAF/ILE..................  The Air Force Civil Engineer
MAJCOM.......................  Major Command
MGM..........................  Materiel Group Manager
MOA..........................  Military Operating Area
MOU..........................  Memorandum of Understanding
MSL..........................  Mean Sea Level
NEPA.........................  National Environmental Policy Act of 1969
NGB-CF.......................  National Guard Bureau Air Directorate
NGB-JA.......................  National Guard Bureau Office of the Staff
                                Judge Advocate
NGB-PA.......................  National Guard Bureau Office of Public
                                Affairs
NOA..........................  Notice of Availability
NOI..........................  Notice of Intent
OSD..........................  Office of the Secretary of Defense
OSHA.........................  Occupational Safety and Health
                                Administration
PDEIS........................  Preliminary Draft Environmental Impact
                                Statement
PGM..........................  Product Group Manager
REO..........................  Air Force Regional Environmental Office
ROD..........................  Record of Decision
SAF/AQR......................  Deputy Assistant Secretary of the Air
                                Force (Science, Technology, and
                                Engineering)
SAF/GC.......................  Air Force General Counsel
SAF/LL.......................  Air Force Office of Legislative Liaison
SAF/MI.......................  Assistant Secretary of the Air Force for
                                Manpower, Reserve Affairs,
                                Installations, and Environment
SAF/MIQ......................  Deputy Assistant Secretary of the Air
                                Force (Environment, Safety, and
                                Occupational Health)
SAF/PA.......................  Air Force Office of Public Affairs
SJA..........................  Staff Judge Advocate

[[Page 239]]

 
SM...........................  Single Manager
SPD..........................  Single Program Director
SPOC.........................  Single Point of Contact
TDY..........................  Temporary Duty
U.S.C........................  United States Code
------------------------------------------------------------------------

                                  Terms

    Note: All definitions in the CEQ Regulations, 40 CFR part 1508, 
apply to this part. In addition, the following definitions apply:

    Best Management Practices (BMPs)--Under the EIAP, BMPs should be 
applied in furtherance of 40 CFR 1508.22, Mitigations or to fulfill 
permit requirements (see also E.O. 12088, ``Federal Compliance with 
Pollution Control Standards).
    Description of Proposed Action and Alternatives (DOPAA)--An Air 
Force document that is the framework for assessing the environmental 
impact of a proposal. It describes the purpose and need for the action, 
the alternatives to be considered, and the rationale used to arrive at 
the proposed action. The DOPAA often unfolds as writing progresses. The 
DOPAA can change during the internal scoping and public scoping process, 
especially as ideas and issues become clearer, and as new information 
makes changes necessary.
    Environmental Impact Analysis Process (EIAP)--The Air Force program 
that implements the requirements of NEPA and requirements for analysis 
of environmental effects abroad under E.O. 12114.
    Finding of No Practicable Alternative (FONPA)--Finding contained in 
a FONSI or ROD, according to Executive Orders 11988 and 11990, that 
explains why there are no practicable alternatives to an action 
affecting a wetland or floodplain, based on appropriate EIAP analysis or 
other documentation.
    Interdisciplinary--An approach to environmental analysis involving 
more than one discipline or branch of learning.
    Pollution Prevention--``Source reduction,'' as defined under the 
Pollution Prevention Act, and other practices that reduce or eliminate 
pollutants through increased efficiency in the use of raw materials, 
energy, water, or other resources, or in the protection of natural 
resources by conservation.
    Proponent--Any office, unit, or activity that proposes to initiate 
an action.
    Scoping--A process for proposing alternatives to be addressed and 
for identifying the significant issues related to a proposed action. 
Scoping includes affirmative efforts to communicate with other federal 
agencies, state, Tribal, and local governments, and the public.
    Single Manager--Any one of the Air Force designated weapon system 
program managers, that include System Program Directors (SPDs), Product 
Group Managers (PGMs), and Materiel Group Managers (MGMs).
    United States--All states, commonwealths, the District of Columbia, 
territories and possessions of the United States, and all waters and 
airspace subject to the territorial jurisdiction of the United States. 
The territories and possessions of the United States include American 
Samoa, Guam, Johnston Atoll, Kingman Reef, Midway Island, Navassa 
Island, Palmyra Island, the Virgin Islands, and Wake Island.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]

             Appendix B to Part 989--Categorical Exclusions

                   A2.1. Proponent/EPF Responsibility

    Although a proposed action may qualify for a categorical exclusion 
from the requirements for environmental impact analysis under NEPA, this 
exclusion does not relieve the EPF or the proponent of responsibility 
for complying with all other environmental requirements related to the 
proposal, including requirements for permits, and state regulatory 
agency review of plans.

                        A2.2. Additional Analysis

    Circumstances may arise in which usually categorically excluded 
actions may have a significant environmental impact and, therefore, may 
generate a requirement for further environmental analysis. Examples of 
situations where such unique circumstances may be present include:
    A2.2.1. Actions of greater scope or size than generally experienced 
for a particular category of action.
    A2.2.2. Potential for degradation (even though slight) of already 
marginal or poor environmental conditions.
    A2.2.3. Initiating a degrading influence, activity, or effect in 
areas not already significantly modified from their natural condition.
    A2.2.4. Use of unproved technology.
    A2.2.5. Use of hazardous or toxic substances that may come in 
contact with the surrounding environment.

[[Page 240]]

    A2.2.6. Presence of threatened or endangered species, archaeological 
remains, historical sites, or other protected resources.
    A2.2.7. Proposals adversely affecting areas of critical 
environmental concern, such as prime or unique agricultural lands, 
wetlands, coastal zones, wilderness areas, floodplains, or wild and 
scenic river areas.
    A2.2.8. Proposals with disproportionately high and adverse human 
health or environmental effects on minority populations or low-income 
populations.

                            A2.3. CATEX List

    Actions that are categorically excluded in the absence of unique 
circumstances are:
    A2.3.1. Routine procurement of goods and services.
    A2.3.2. Routine Commissary and Exchange operations.
    A2.3.3. Routine recreational and welfare activities.
    A2.3.4. Normal personnel, fiscal or budgeting, and administrative 
activities and decisions including those involving military and civilian 
personnel (for example, recruiting, processing, paying, and records 
keeping).
    A2.3.5. Preparing, revising, or adopting regulations, instructions, 
directives, or guidance documents that do not, themselves, result in an 
action being taken.
    A2.3.6. Preparing, revising, or adopting regulations, instructions, 
directives, or guidance documents that implement (without substantial 
change) the regulations, instructions, directives, or guidance documents 
from higher headquarters or other Federal agencies with superior subject 
matter jurisdiction.
    A2.3.7. Continuation or resumption of pre-existing actions, where 
there is no substantial change in existing conditions or existing land 
uses and where the actions were originally evaluated in accordance with 
applicable law and regulations, and surrounding circumstances have not 
changed.
    A2.3.8. Performing interior and exterior construction within the 5-
foot line of a building without changing the land use of the existing 
building.
    A2.3.9. Repairing and replacing real property installed equipment.
    A2.3.10. Routine facility maintenance and repair that does not 
involve disturbing significant quantities of hazardous materials such as 
asbestos and lead-based paint.
    A2.3.11. Actions similar to other actions which have been determined 
to have an insignificant impact in a similar setting as established in 
an EIS or an EA resulting in a FONSI. The EPF must document application 
of this CATEX on AF Form 813, specifically identifying the previous Air 
Force approved environmental document which provides the basis for this 
determination.
    A2.3.12. Installing, operating, modifying, and routinely repairing 
and replacing utility and communications systems, data processing cable, 
and similar electronic equipment that use existing rights of way, 
easements, distribution systems, or facilities.
    A2.3.13. Installing or modifying airfield operational equipment 
(such as runway visual range equipment, visual glide path systems, and 
remote transmitter or receiver facilities) on airfield property and 
usually accessible only to maintenance personnel.
    A2.3.14. Installing on previously developed land, equipment that 
does not substantially alter land use (i.e., land use of more than one 
acre). This includes outgrants to private lessees for similar 
construction. The EPF must document application of this CATEX on AF Form 
813.
    A2.3.15. Laying-away or mothballing a production facility or 
adopting a reduced maintenance level at a closing installation when (1) 
agreement on any required historic preservation effort has been reached 
with the state historic preservation officer and the Advisory Council on 
Historic Preservation, and (2) no degradation in the environmental 
restoration program will occur.
    A2.3.16. Acquiring land and ingrants (50 acres or less) for 
activities otherwise subject to CATEX. The EPF must document application 
of this CATEX on AF Form 813.
    A2.3.17. Transferring land, facilities, and personal property for 
which the General Services Administration (GSA) is the action agency. 
Such transfers are excluded only if there is no change in land use and 
GSA complies with its NEPA requirements.
    A2.3.18. Transferring administrative control of real property within 
the Air Force or to another military department or to another Federal 
agency, not including GSA, including returning public domain lands to 
the Department of the Interior.
    A2.3.19. Granting easements, leases, licenses, rights of entry, and 
permits to use Air Force controlled property for activities that, if 
conducted by the Air Force, could be categorically excluded in 
accordance with this Appendix. The EPF must document application of this 
CATEX on AF Form 813.
    A2.3.20. Converting in-house services to contract services.
    A2.3.21. Routine personnel decreases and increases, including work 
force conversion to either on-base contractor operation or to military 
operation from contractor operation (excluding base closure and 
realignment actions which are subject to congressional reporting under 
10 U.S.C. 2687).
    A2.3.22. Routine, temporary movement of personnel, including 
deployments of personnel on a TDY basis where existing facilities are 
used.
    A2.3.23. Personnel reductions resulting from workload adjustments, 
reduced personnel funding levels, skill imbalances, or other similar 
causes.

[[Page 241]]

    A2.3.24. Study efforts that involve no commitment of resources other 
than personnel and funding allocations.
    A2.3.25. The analysis and assessment of the natural environment 
without altering it (inspections, audits, surveys, investigations). This 
CATEX includes the granting of any permits necessary for such surveys, 
provided that the technology or procedure involved is well understood 
and there are no adverse environmental impacts anticipated from it. The 
EPF must document application of this CATEX on AF Form 813.
    A2.3.26. Undertaking specific investigatory activities to support 
remedial action activities for purposes of cleanup of Environmental 
Restoration Account (ERA)--Air Force and Resource Conservation and 
Recovery Act (RCRA) corrective action sites. These activities include 
soil borings and sampling, installation, and operation of test or 
monitoring wells. This CATEX applies to studies that assist in 
determining final cleanup actions when they are conducted in accordance 
with legal agreements, administrative orders, or work plans previously 
agreed to by EPA or state regulators.
    A2.3.27. Normal or routine basic and applied scientific research 
confined to the laboratory and in compliance with all applicable safety, 
environmental, and natural resource conservation laws.
    A2.3.28. Routine transporting of hazardous materials and wastes in 
accordance with applicable Federal, state, interstate, and local laws.
    A2.3.29. Emergency handling and transporting of small quantities of 
chemical surety material or suspected chemical surety material, whether 
or not classified as hazardous or toxic waste, from a discovery site to 
a permitted storage, treatment, or disposal facility.
    A2.3.30. Immediate responses to the release or discharge of oil or 
hazardous materials in accordance with an approved Spill Prevention and 
Response Plan or Spill Contingency Plan or that are otherwise consistent 
with the requirements of the National Contingency Plan.
    A2.3.31. Relocating a small number of aircraft to an installation 
with similar aircraft that does not result in a significant increase of 
total flying hours or the total number of aircraft operations, a change 
in flight tracks, or an increase in permanent personnel or logistics 
support requirements at the receiving installation. Repetitive use of 
this CATEX at an installation requires further analysis to determine 
there are no cumulative impacts. The EPF must document application of 
this CATEX on AF Form 813.
    A2.3.32. Temporary (for less than 30 days) increases in air 
operations up to 50 percent of the typical installation aircraft 
operation rate or increases of 50 operations a day, whichever is 
greater. Repetitive use of this CATEX at an installation requires 
further analysis to determine there are no cumulative impacts.
    A2.3.33. Flying activities that comply with the Federal aviation 
regulations, that are dispersed over a wide area and that do not 
frequently (more than once a day) pass near the same ground points. This 
CATEX does not cover regular activity on established routes or within 
special use airspace.
    A2.3.34. Supersonic flying operations over land and above 30,000 
feet MSL, or over water and above 10,000 feet MSL and more than 15 
nautical miles from land.
    A2.3.35. Formal requests to the FAA, or host-nation equivalent 
agency, to establish or modify special use airspace (for example, 
restricted areas, warning areas, military operating areas) and military 
training routes for subsonic operations that have a base altitude of 
3,000 feet above ground level or higher. The EPF must document 
application of this CATEX on AF Form 813, which must accompany the 
request to the FAA.
    A2.3.36. Adopting airfield approach, departure, and en route 
procedures that are less than 3,000 feet above ground level, and that 
also do not route air traffic over noise-sensitive areas, including 
residential neighborhoods or cultural, historical, and outdoor 
recreational areas. The EPF may categorically exclude such air traffic 
patterns at or greater than 3,000 feet above ground level regardless of 
underlying land use.
    A2.3.37. Participating in ``air shows'' and fly-overs by Air Force 
aircraft at non-Air Force public events after obtaining FAA coordination 
and approval.
    A2.3.38. Conducting Air Force ``open houses'' and similar events, 
including air shows, golf tournaments, home shows, and the like, where 
crowds gather at an Air Force installation, so long as crowd and traffic 
control, etc., have not in the past presented significant safety or 
environmental impacts.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]

Appendix C to Part 989--Procedures for Holding Public Hearings on Draft 
                  Environmental Impact Statements (EIS)

                       A.3.1. General Information

    A3.1.1. The Office of the Judge Advocate General, through the Air 
Force Legal Services Agency/Trial Judiciary Division (AFLSA/JAJT) and 
its field organization, is responsible for conducting public hearings 
and assuring verbatim transcripts are accomplished.
    A3.1.2. The EPF, with proponent, AFLSA/JAJT, and Public Affairs 
support, establishes the date and location, arranges for hiring the 
court reporter, funds temporary duty

[[Page 242]]

costs for the hearing officer, makes logistical arrangements (for 
example, publishing notices, arranging for press coverage, obtaining 
tables and chairs, etc.).
    A3.1.3. The procedures outlined below have proven themselves through 
many prior applications. However, there may be rare instances when 
circumstances warrant conducting public hearings under a different 
format, e.g., public/town meeting, information booths, third party 
moderator, etc. In these cases, forward a request with justification to 
deviate from these procedures to HQ USAF/ILEVP for SAF/MIQ approval.

                 A3.2. Notice of Hearing (40 CFR 1506.6)

    A3.2.1. Public Affairs officers:
    A3.2.1.1. Announce public hearings and assemble a mailing list of 
individuals to be invited.
    A3.2.1.2. Distribute announcements of a hearing to all interested 
individuals and agencies, including the print and electronic media.
    A3.2.1.3. Place a newspaper display advertisement announcing the 
time and place of the hearing as well as other pertinent particulars.
    A3.2.1.4. Distribute the notice in a timely manner so it will reach 
recipients or be published at least 15 days before the hearing date. 
Distribute notices fewer than 15 days before the hearing date when you 
have substantial justification and if the justification for a shortened 
notice period appears in the notice.
    A3.2.1.5. Develop and distribute news release.
    A3.2.2. If an action has effects of national concern, publish 
notices in the Federal Register and mail notices to national 
organizations that have an interest in the matter.
    A3.2.2.1. Because of the longer lead time required by the Federal 
Register, send out notices for publication in the Federal Register to 
arrive at HQ USAF/ILEB no later than 30 days before the hearing date.
    A3.2.3. The notice should include:
    A3.2.3.1. Date, time, place, and subject of the hearing.
    A3.2.3.2. A description of the general format of the hearing.
    A3.2.3.3. The name and telephone number of a person to contact for 
more information.
    A3.2.3.4. A suggestion that speakers submit (in writing or by return 
call) their intention to participate, with an indication of which 
environmental impact (or impacts) they wish to address.
    A3.2.3.5. Any limitation on the length of oral statements.
    A3.2.3.6. A suggestion that speakers submit statements of 
considerable length in writing.
    A3.2.3.7. A summary of the proposed action.
    A3.2.3.8. The location where the draft EIS and any appendices are 
available for examination.

           A.3.3. Availability of the Draft EIS to the Public.

    The EPF makes copies of the Draft EIS available to the public at an 
Air Force installation and other reasonably accessible place in the 
vicinity of the proposed action and public hearing (e.g., public 
library).

                       A3.4. Place of the Hearing

    The EPF arranges to hold the hearing at a time and place and in an 
area readily accessible to military and civilian organizations and 
individuals interested in the proposed action. Generally, the EPF should 
arrange to hold the hearing in an off-base civilian facility, which is 
more accessible to the public.

                          A3.5. Hearing Officer

    A3.5.1. The AFLSA/JAJT selects a military trial judge to preside 
over hearings. The hearing officer does not need to have personal 
knowledge of the project, other than familiarity with the Draft EIS. In 
no event should the hearing officer be a judge advocate from the 
proponent or subordinate command, be assigned to the same installation 
with which the hearing is concerned, or have participated personally in 
the development of the project, or have rendered legal advice or 
assistance with respect to it (or be expected to do so in the future). 
The principal qualification of the hearing officer should be the ability 
to conduct a hearing as an impartial participant.
    A3.5.2. The primary duties of the hearing officer are to make sure 
that the hearing is orderly, is recorded, and that interested parties 
have a reasonable opportunity to speak. The presiding officer should 
direct the speakers' attention to the purpose of the hearing, which is 
to consider the environmental impacts of the proposed project. Speakers 
should have a time limit to ensure maximum public input to the decision-
maker.

                       A3.6. Record of the Hearing

    The EIS preparation team must make sure a verbatim transcribed 
record of the hearing is prepared, including all stated positions, all 
questions, and all responses. The EIS preparation team should append all 
written submissions that parties provide to the hearing officer during 
the hearing to the record as attachments. The EIS preparation team 
should also append a list of persons who spoke at the hearing and 
submitted written comments and a list of the organizations or interests 
they represent with addresses. The EIS preparation team must make sure a 
verbatim transcript of the hearing is provided to the EPF for inclusion 
as an appendix to

[[Page 243]]

the Final EIS. The officer should also ensure that all persons who 
request a copy of the transcript get a copy when it is completed. 
Copying charges are determined according to 40 CFR 1506.6(f).

                          A3.7. Hearing Format

    Use the format outlined below as a general guideline for conducting 
a hearing. Hearing officers should tailor the format to meet the hearing 
objectives. These objectives provide information to the public, record 
opinions of interested persons on environmental impacts of the proposed 
action, and set out alternatives for improving the EIS and for later 
consideration.
    A3.7.1. Record of Attendees. The hearing officer should make a list 
of all persons who wish to speak at the hearing to help the hearing 
officer in calling on these individuals, to ensure an accurate 
transcript of the hearing, and to enable the officer to send a copy of 
the Final EIS (40 CFR 1502.19) to any person, organization, or agency 
that provided substantive comments at the hearing. The hearing officer 
should assign assistants to the entrance of the hearing room to provide 
cards on which individuals can voluntarily write their names, addresses, 
telephone numbers, organizations they represent, and titles; whether 
they desire to make a statement at the hearing; and what environmental 
area(s) they wish to address. The hearing officer can then use the cards 
to call on individuals who desire to make statements. However, the 
hearing officer will not deny entry to the hearing or the right to speak 
to people who decline to submit this information on cards.
    A3.7.2. Introductory Remarks. The hearing officer should first 
introduce himself or herself and the EIS preparation team. Then the 
hearing officer should make a brief statement on the purpose of the 
hearing and give the general ground rules on how it will be conducted. 
This is the proper time to welcome any dignitaries who are present. The 
hearing officer should explain that he or she does not make any 
recommendation or decision on whether the proposed project should be 
continued, modified, or abandoned or how the EIS should be prepared.
    A3.7.3. Explanation of the Proposed Action. The Air Force EIS 
preparation team representative should next explain the proposed action, 
the alternatives, the potential environmental consequences, and the 
EIAP.
    A3.7.4. Questions by Attendees. After the EIS team representative 
explains the proposed action, alternatives, and consequences, the 
hearing officer should give attendees a chance to ask questions to 
clarify points they may not have understood. The EIS preparation team 
may have to reply in writing, at a later date, to some of the questions. 
While the Air Force EIS preparation team should be as responsive as 
possible in answering questions about the proposal, they should not 
become involved in debate with questioners over the merits of the 
proposed action. Cross-examination of speakers, either those of the Air 
Force or the public, is not the purpose of an informal hearing. If 
necessary, the hearing officer may limit questioning or conduct portions 
of the hearing to ensure proper lines of inquiry. However, the hearing 
officer should include all questions in the hearing record.
    A3.7.5. Statement of Attendees. The hearing officer must give the 
persons attending the hearing a chance to present oral or written 
statements. The hearing officer should be sure the recorder has the name 
and address of each person who submits an oral or written statement. The 
officer should also permit the attendees to submit written statements 
within a reasonable time, usually two weeks, following the hearing. The 
officer should allot a reasonable length of time at the hearing for 
receiving oral statements. The officer may waive any announced time 
limit at his or her discretion. The hearing officer may allow those who 
have not previously indicated a desire to speak to identify themselves 
and be recognized only after those who have previously indicated their 
intentions to speak have spoken.
    A3.7.6. Ending or Extending a Hearing. The hearing officer has the 
power to end the hearing if the hearing becomes disorderly, if the 
speakers become repetitive, or for other good cause. In any such case, 
the hearing officer must make a statement for the record on the reasons 
for terminating the hearing. The hearing officer may also extend the 
hearing beyond the originally announced date and time. The officer 
should announce the extension to a later date or time during the hearing 
and prior to the hearing if possible.

                      A3.8. Adjourning the Hearing

    After all persons have had a chance to speak, when the hearing has 
culled a representative view of public opinion, or when the time set for 
the hearing and any reasonable extension of time has ended, the hearing 
officer adjourns the hearing. In certain circumstances (for example, if 
the hearing officer believes it is likely that some participants will 
introduce new and relevant information), the hearing officer may justify 
scheduling an additional, separate hearing session. If the hearing 
officer makes the decision to hold another hearing while presiding over 
the original hearing he or she should announce that another public 
hearing will be scheduled or is under consideration. The officer gives 
notice of a decision to continue these hearings in essentially the same 
way he or she announced the original hearing, time permitting. The 
Public Affairs officer provides the required public notices and

[[Page 244]]

directs notices to interested parties in coordination with the hearing 
officer. Because of lead-time constraints, SAF/MIQ may waive Federal 
Register notice requirements or advertisements in local publications. At 
the conclusion of the hearing, the hearing officer should inform the 
attendees of the deadline (usually 2 weeks) to submit additional written 
remarks in the hearing record. The officer should also notify attendees 
of the deadline for the commenting period of the Draft EIS.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001, as amended at 
66 FR 31177, June 11, 2001]

[[Page 245]]

       Subtitle B--Other Regulations Relating to National Defense

  --------------------------------------------------------------------


[[Page 247]]



                  CHAPTER XII--DEFENSE LOGISTICS AGENCY




  --------------------------------------------------------------------

                         SUBCHAPTER A [RESERVED]
                       SUBCHAPTER B--MISCELLANEOUS
Part                                                                Page
1280            Investigating and processing certain 
                    noncontractual claims and reporting 
                    related litigation......................         249
1285            Defense Logistics Agency Freedom of 
                    Information Act Program.................         252
1288            Registration of privately owned motor 
                    vehicles................................         271
1290            Preparing and processing minor offenses and 
                    violation notices referred to U.S. 
                    District Courts.........................         273
1292            Security of DLA activities and resources....         281
1293            Standards of conduct........................         282

[[Page 249]]



                         SUBCHAPTER A [RESERVED]





                       SUBCHAPTER B--MISCELLANEOUS





PART 1280--INVESTIGATING AND PROCESSING CERTAIN NONCONTRACTUAL CLAIMS AND REPORTING RELATED LITIGATION--Table of Contents




Sec.
1280.1  Purpose and scope.
1280.2  Definitions.
1280.3  Significant changes.
1280.4  Responsibilities.
1280.5  Procedures.

    Authority: 5 U.S.C. 301; 10 U.S.C. 125; 28 U.S.C. 2672; and DoD 
Directive 5105.22 dated December 9, 1965.

    Source: 39 FR 19470, June 3, 1974, unless otherwise noted.



Sec. 1280.1  Purpose and scope.

    (a) This part 1280 provides procedures for investigating and 
processing claims and related litigation:
    (1) By civilian and military personnel of DLA for property lost or 
damaged incident to service (31 U.S.C. 240 through 243).
    (2) Incident to use of Government vehicles and other property of the 
United States not cognizable under other law (10 U.S.C. 2737).
    (3) Based on Negligence of Civilian and Military Employees under the 
Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 through 2680.
    (4) In favor of the United States, other than contractual, for loss, 
damage, or destruction of real or personal property in the possession, 
custody, or control of DLA.
    (b) This part 1280 is applicable to HQ DLA and DLA field activities, 
except nonappropriated funds and related activities established pursuant 
to DSAR 1330.2, Open Messes and Other Military Sundry Associations and 
Funds, and DSAR 1330.4, Civilian Nonappropriated Funds and Related 
Activities. Claims involving these activities are processed pursuant to 
the regulations referenced therein.



Sec. 1280.2  Definitions.

    (a) Claims Investigating Officer. A military officer or civilian 
employee of DLA, appointed in accordance with this part 1280, to 
investigate and process claims within the purview of this part 1280.
    (b) Member of the Army, member of the Navy, member of the Marine 
Corps, member of the Air Force. Officers and enlisted personnel of these 
Military Services.



Sec. 1280.3  Significant changes.

    This revision provides current citations to the Army regulations 
which have superseded those previously prescribed for the processing of 
some claims. It reflects the new Army claims processing procedures 
effected upon the reorganization of the Army. Finally, it provides 
specific procedures for Air Force processed claims.



Sec. 1280.4  Responsibilities.

    (a) DLA field activities. (1) Heads of DLA Primary Level Field 
Activities are responsible for:
    (i) Designating a qualified individual under their command, 
preferably one experienced in the conduct of investigations, as the 
Claims Investigating Officer for the activity.
    (ii) Authorizing Heads of subordinate activities to appoint Claims 
Investigating Officers where necessary.
    (2) The Commander, DLA Administrative Support Center (DLASC) is 
responsible for designating a qualified individual, preferably one 
experienced in the conduct of investigations, as the Claims 
Investigating Officer for DLASC and HQ DLA.
    (3) Claims Investigating Officers are responsible for the 
expeditious conduct of all investigations and the processing of reports 
in accordance with appropriate Departmental regulations as prescribed by 
this part 1280. To ensure prompt investigation of every incident while 
witnesses are available, and before damage has been repaired, the duties 
of personnel as Claims Investigating Officers will ordinarily have 
priority over any other assignments they may have.
    (4) The Counsel, DLA Field Activities are responsible for:

[[Page 250]]

    (i) Receiving claims reports and information about related 
litigation, and processing these reports and information in accordance 
with this part 1280 and appropriate Departmental regulations.
    (ii) Providing directions and guidance to Claims Investigating 
Officers in the investigation and processing of claims.
    (b) The Counsel, DLA (DLAH-G) is responsible for:
    (1) Providing guidance to Counsel at DLA field activities on all 
claims and litigation matters within the purview of this part 1280.
    (2) Receiving claims reports and information on related litigation 
forwarded to HQ DLA, Attention: DLAH-G, and processing these in 
accordance with this part 1280 and appropriate Departmental regulations.
    (3) Maintaining this part 1280 in a current status and reviewing it 
annually.



Sec. 1280.5  Procedures.\1\

    (a) Claims by military and civilian personnel of DLA for property 
lost or damaged incident to service (31 U.S.C. 240 through 243). (1) The 
Claims Investigating Officer will conduct his investigation and prepare 
all necessary forms and reports in accordance with the appropriate 
portions of AR 27-20 where the claimant is a member of the Army or a DLA 
civilian employee; JAGINST 5800.7A where the claimant is a member of the 
Navy or Marine Corps; or AFM 112-1 where the claimant is a member of the 
Air Force.
    (2) The completed report will be forwarded by the Claims 
Investigating Officer to one of the following activities for settlement:
    (i) Where the claimant is a DLA civilian employee or a member of the 
Army; the Staff Judge Advocate designated in AR 27-20, appendix F, as 
the Area Claims Authority where the claim arose.
    (ii) Where the claimant is a member of the Navy or Marine Corps the 
cognizant adjudicating authority as listed in JAGINST 5800.7A, paragraph 
2124.
    (iii) Where the claimant is a member of the Air Force; the Base 
Staff Judge Advocate of the nearest Air Force Base.
    (b) Claims incident to the use of Government property not cognizable 
under any other law (10 U.S.C. 2737). (1) The Claims Investigating 
Officer will conduct his investigation and prepare all necessary forms 
and reports in accordance with the appropriate portions of AR 27-20 
where the claimant is a member of the Army or a DLA civilian employee; 
JAGINST 5800.7A where the claimant is a member of the Navy or Marine 
Corps; or AFM 112-1 where the claimant is a member of the Air Force.
    (2) The completed report will be forwarded by the Claims 
Investigating Officer to the Counsel for his activity or, if the 
activity has no Counsel, to the next higher echelon having such a 
position.
    (3) The activity Counsel receiving the Claims Investigating 
Officer's report will review the report, and take all necessary action 
to assure that it is complete and in accordance with the appropriate 
regulation. He will forward the report together with his comments and 
recommendations to one of the following activities for settlement. Where 
the incident giving rise to the claim was occasioned by an act or 
omission of:
    (i) DLA civilian personnel. Counsel, DLA.
    (ii) A member of the Army. The Staff Judge Advocate designated in AR 
27-20, appendix F, as the Area Claims Authority where the claim arose.
    (iii) A member of the Navy or Marine Corps. The Director of the Navy 
Law Center in the Naval District in which the incident giving rise to 
the claim occurred.
    (iv) A member of the Air Force. The Base Staff Judge Advocate of the 
Air Force Base nearest the place where the incident giving rise to the 
claim occurred.
    (c) Claims under the Federal Tort Claims Act arising from negligence 
of DLA military or civilian personnel. (1) The Claims Investigating 
Officer will conduct his investigation and prepare all necessary forms 
and reports in accordance with the appropriate portions of AR 27-20 
where the claim involves a member of the Army or a DLA civilian 
employee; JAGINST 5800.7A where the claim involves a member of the Navy 
or Marine Corps; or AFM 112-1 where

[[Page 251]]

the claim involves a member of the Air Force.
    (2) The completed report of investigation will be forwarded by the 
Claims Investigating Officer to one of the following activities for 
settlement. Where the incident giving rise to the claim was occasioned 
by an act or omission of:
    (i) DLA civilian personnel or a member of the Army. The Staff Judge 
Advocate designated in AR 27-20, appendix F, as the Area Claims 
Authority where the incident giving rise to the claim occurred.
    (ii) A member of the Navy or Marine Corps. The Director of the Navy 
Law Center in the Naval District in which the incident giving rise to 
the claim occurred.
    (iii) A member of the Air Force. The Base Staff Judge Advocate of 
the Air Force Base nearest the place where the incident giving rise to 
the claim occurred.
    (d) Tort claims in favor of the United States for damage to or loss 
or destruction of DLA property, or property in its custody or control. 
(1) These claims will be investigated and processed in accordance with 
the provisions of AR 27-40, Chapter 5, except:
    (i) The duties of the claims officer will be performed by the Claims 
Investigating Officer.
    (ii) The duties of the Staff Judge Advocate will be performed by 
Counsel, except where the property is a GSA motor pool system vehicle 
(see paragraph (e) of this section).
    (iii) The reports of the Claims Investigating Officer will be 
furnished direct to Counsel for his activity or, if his activity has no 
Counsel, to the next higher echelon having such a position.
    (iv) With respect to reports referred to them, Counsel are 
authorized to give receipts for any payments received and to execute 
releases where payment in full is received, except where the property is 
a GSA motor pool system vehicle (see paragraph (e) of this section). 
Offers of compromise will be processed pursuant to DSAM 7000.1, chapter 
12, section V, paragraph 120502.
    (v) Where payment in full is not received after reasonable efforts 
have been made to collect the claim administratively, Counsel will refer 
the case directly to the U.S. Attorney unless:
    (a) The amount of the claim exceeds $10,000, in which event the case 
will be referred to Counsel, DLA.
    (b) The amount of the debt is less than $250; or the record clearly 
shows that the debtor is unable to pay; or the debtor cannot be located; 
in which event the file may be closed and the debt treated as an 
uncollectable which does not have to be referred to the General 
Accounting Office.
    (2) If, at any stage of the processing of a claim under this 
paragraph (d), a claim is filed against the Government arising out of 
the same incident, or it becomes apparent that one will be filed, the 
claim under this paragraph (d) will be treated as a counterclaim, and 
included under the report filed in accordance with the applicable 
paragraph of this part 1280.
    (e) Claims involving GSA motor pool system vehicles. (1) Where a 
motor pool system vehicle issued to a DLA activity is involved in an 
accident giving rise to a claim under the Federal Tort Claims Act, the 
claim will be handled pursuant to paragraph (c) of this section.
    (2) In the event of damage to a motor pool system vehicle which is 
not due to the fault of the operator, Counsel receiving the report will 
submit the report to GSA's Regional Counsel for the region that issued 
the vehicle pursuant to the Federal Property Management Regulation, 
Sec. 101-39.805. Damages to motor pool system vehicles caused by the 
negligence of vehicle operator employed by DLA or caused by the 
negligence or misconduct of any other officer or employee of DLA are 
reimbursed to General Services Administration (GSA). Determination 
affixing responsibility will be made by the Counsel to which the report 
is referred, after considering the views of GSA.
    (f) Reporting legal proceedings. (1) All process and pleadings 
served on any personnel or activity of DLA, and related to a claim 
covered by this part 1280 or involving an incident which may give rise 
to a claim covered by this part 1280, together with other immediately 
available data concerning the commencement of legal proceedings, will be 
promptly referred to

[[Page 252]]

Counsel for the activity involved, or, if the activity has no Counsel, 
to the next higher echelon having such a position.
    (2) Any Military Service member or civilian employee of DLA (or his 
personal representative) against whom a domestic civil action or 
proceeding is brought for damage to property, or for personal injury or 
death, on account of his operation of a motor vehicle (Government- or 
privately-owned) in the scope of his employment (28 U.S.C. 2679) will:
    (i) Upon receipt of process and pleadings or any other information 
regarding the commencement of such action or proceeding, immediately 
inform the Head of his activity and Counsel as specified in paragraph 
(f)(1) of this section.
    (ii) Promptly deliver all process and pleadings served upon him, or 
an attested true copy thereof, to Counsel.
    (3) Upon receipt of information or process and pleadings pursuant to 
paragraph (f)(1) or (2) of this section, Counsel will promptly prepare 
and process reports in accordance with the appropriate portions of AR 
27-40 except that:
    (i) If the incident giving rise to the litigation was occasioned by 
an act or omission of a member of the Navy or Marine Corps, or a member 
of the Air Force, information and reports required to be furnished to 
The Judge Advocate General of the Army will be furnished instead to The 
Judge Advocate General of the Navy and Air Force respectively.
    (ii) If the litigation is under the Federal Tort Claims Act and no 
administrative claim has been filed, Counsel will immediately advise the 
U.S. Attorney and furnish him a report of all information the activity 
has with respect to the claim and an affidavit by the Claims 
Investigating Officer to the effect that no administrative claim has 
been filed. Two copies of the foregoing will be provided to the 
appropriate Military Service Judge Advocate General. If an 
administrative claim has been filed and has been referred to a Military 
Service, a copy of the process and pleadings and any information not 
previously furnished will be sent to the appropriate Military Service 
Judge Advocate General.



PART 1285--DEFENSE LOGISTICS AGENCY FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




Sec.
1285.1  Purpose and scope.
1285.2  Policy.
1285.3  Definitions.
1285.4  Responsibilities.
1285.5  Procedures.
1285.6  Fees and fee waivers.
1285.7  Reports.

Appendix A to Part 1285--Gaining Access to DLA Records

    Authority: 5 U.S.C. 552.

    Source: 56 FR 65423, Dec. 17, 1991, unless otherwise noted.



Sec. 1285.1  Purpose and scope.

    This rule provides policies and procedures for the DLA 
implementation of DoD 5400.7-R,\1\ DoD Freedom of Information Act 
Program. It applies to HQ DLA and all DLA field activities and takes 
precedence over all DLA regulations that supplement the FOIA program. A 
list of mailing addresses for DLA activities is provided at appendix A 
to this part.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161-
2171.
---------------------------------------------------------------------------



Sec. 1285.2  Policy.

    (a) General. The public has a right to information concerning the 
activities of its Government. DLA policy is to conduct its activities in 
an open manner and provide the public with a maximum amount of accurate 
and timely information concerning its activities, consistent always with 
the legitimate public and private interests of the American people. A 
DLA record requested by a member of the public who follows rules 
established herein shall be withheld only when it is exempt from 
mandatory public disclosure under the FOIA. In order that the public may 
have timely information concerning DLA activities, records requested 
through public information channels by news media representatives that 
would not be withheld if requested under the FOIA should be released 
upon request. Prompt responses to requests for information from news

[[Page 253]]

media representatives should be encouraged to eliminate the need for 
these requesters to invoke the provisions of the FOIA and thereby assist 
in providing timely information to the public. Similarly, requests from 
other members of the public for information should continue to be 
honored through appropriate means even though the request does not 
qualify under FOIA requirements.
    (b) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed to ensure compliance with 
the FOIA. A release determination must be made and the requester 
informed within the time limits specified in this rule. Any request for 
DLA records that either explicitly or implicitly cites the FOIA shall be 
processed under the provisions of this rule, unless otherwise required 
by paragraph (m) of this section.
    (c) Compliance with the FOIA. DLA personnel are expected to comply 
with the FOIA and this rule in both letter and spirit. This strict 
adherence is necessary to provide uniformity in the implementation of 
the DLA FOIA program and to create conditions that will promote public 
trust. To promote a positive attitude among DLA personnel, each DLA 
Primary Level Field Activity (PLFA) will establish education and 
training programs described in part 286, subpart H, of this title. 
Training materials, including supplements, will be coordinated with DLA-
XAM prior to publication or issuance.
    (d) Openness with the public. DLA shall conduct its activities in an 
open manner consistent with the need for security and adherence to other 
requirements of law and regulation. Records not exempt from disclosure 
under the Act shall, upon request, be made readily accessible to the 
public in accordance with rules promulgated herein, whether or not the 
Act is invoked.
    (e) Avoidance of procedural obstacles. DLA activities shall ensure 
that procedural matters do not unnecessarily impede a requester from 
obtaining DLA records promptly. DLA activities shall provide assistance 
to requesters to help them understand and comply with procedures 
established by this rule and any rules published by the DLA PLFA's.
    (f) Prompt action on requests. When a member of the public complies 
with the procedures established in this rule for obtaining DLA records, 
the request shall receive prompt attention; a reply shall be dispatched 
within 10 working days unless a delay is authorized. When a DLA activity 
has a significant number of requests, e.g., 10 or more, the requests 
shall be processed in order of receipt. However, this does not preclude 
an activity from completing action on a request which can be easily 
answered, regardless of its ranking within the order of receipt. A DLA 
activity may expedite action on a request regardless of its ranking 
within the order of receipt upon a showing of exceptional need or 
urgency. Exceptional need or urgency is determined at the discretion of 
the activity processing the request.
    (g) Public domain. Nonexempt records released under the authority of 
this rule are considered to be in the public domain. Such records may 
also be made available in reading rooms to facilitate public access. 
Exempt records released pursuant to this rule or other statutory or 
regulatory authority, however, may be considered to be in the public 
domain only when their release constitutes a waiver of the FOIA 
exemption. When the release does not constitute such a waiver, such as 
when disclosure is made to a properly constituted advisory committee or 
to a Congressional committee, the released records do not lose their 
exempt status. Also, while authority may exist to disclose records to 
individuals in their official capacity, the provisions of this rule 
apply if the same individual seeks the records in a private or personal 
capacity.
    (h) Creating a record. (1) There is no obligation to create nor 
compile a record to satisfy an FOIA request. A DLA activity, however, 
may compile a new record when doing so would result in a more useful 
response to the requester or be less burdensome to the activity provided 
the requester does not object. The cost of creating or compiling such a 
record may not be charged to the requester unless the fee for creating 
the record is equal to or less than the fee which would be charged for 
providing the existing

[[Page 254]]

record. Fee assessments shall be in accordance with Sec. 1285.6 of this 
part and part 286, subpart F, of this title.
    (2) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, or 
particular format are questionable, DLA activities should apply a 
standard of reasonableness. In other words, if the capability exists to 
respond to the request and the effort would be a business-as-usual 
approach, then the request should be processed. However, the request 
need not be processed where the capability to respond does not exist 
without a significant expenditure of resources, thus not being a normal 
business-as-usual approach.
    (i) Description of the requested record. (1) Identification of the 
record desired is the responsibility of the member of the public who 
requests a record. The requester must provide a description of the 
desired record that enables DLA to locate the record with a reasonable 
amount of effort. When a DLA activity receives a request that does not 
reasonably describe the requested record, it shall notify the requester 
of the defect. The requester may be asked to provide the type of 
information outlined in paragraph (i)(2) of this section. Activities are 
not obligated to act on the request until the requester responds to the 
specificity letter. When practicable, DLA activities shall offer 
assistance to the requester in identifying the records sought and in 
reformulating the request to reduce the burden on the agency in 
complying with the Act.
    (2) The following guidelines are provided to deal with ``fishing 
expedition'' requests and are based on the principle of reasonable 
effort. Descriptive information about a record may be divided into two 
broad categories.
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, nonrandom search based on the activity's filing 
arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search. The decision of the 
DLA activity concerning reasonableness of description must be based on 
knowledge of its files. If the description enables DLA activity 
personnel to locate the record with reasonable effort, the description 
is adequate.
    (4) The following guidelines deal with requests for personal 
records. Ordinarily, when only personal identifiers are provided in 
connection with a request for records concerning the requester, then 
only records retrievable by personal identifiers need be searched. The 
search for such records may be conducted under Privacy Act procedures 
contained in DLAR 5400.21.\2\ No record may be denied that is releasable 
under the FOIA.
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    \2\ Copies may be obtained, at cost, from DASC-PD, Cameron Station, 
Alexandria, VA 22304-6130.
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    (j) Possession and control. A record must exist and be in the 
possession and control of DLA at the time of the search to be considered 
subject to this rule and the FOIA. Mere possession of a record does not 
presume Agency control. Information created or originated by another 
activity shall be referred to that activity for release determination 
and direct response to the requester.
    (1) Referring requests. A DLA activity having no responsive records 
to an FOIA request may refer the request to another DLA activity, DoD 
component, or Federal agency if, after consultation with such activity, 
component, or agency, the intended recipient confirms that it has the 
requested record. In cases where the DLA activity receiving the request 
has reason to believe that the existence or nonexistence or the record 
may in itself be classified, that activity shall consult the DoD 
component having cognizance over the

[[Page 255]]

record in question before referring the request. If the DoD component 
that is consulted determines that the existence or nonexistence of the 
record is in itself classified, the requester shall be so notified by 
the DLA activity originally receiving the request, and no referral shall 
take place. Otherwise, the request shall be referred to the other DoD 
component, and the requester shall be notified of any such referral. Any 
DLA activity receiving a request that has been misaddressed shall refer 
the request to the proper address and advise the requester.
    (2) Referring records. (i) Whenever a record or a portion of a 
record is, after prior consultation, referred to another DLA activity, 
DoD component, or to a Government agency outside of the DoD for a 
release determination and direct response, the requester shall be 
informed of the referral. Referred records shall only be identified to 
the extent consistent with security requirements.
    (ii) A DLA activity shall refer an FOIA request for a classified 
record that it holds to another DoD component or agency outside the 
Department of Defense if the record originated in the other DoD 
component or outside agency or if the classification is derivative. In 
this situation, provide the record and a release recommendation on the 
record with the referral action.
    (iii) A DLA activity may refer a request for a record that it 
originated to another DoD component or agency when the record was 
created for the use of the other DoD component or agency. The DoD 
component or agency for which the record was created may have an equally 
valid interest in withholding the record as the DLA activity that 
created the record. In such situations, provide the record and a release 
recommendation on the record with the referral action.
    (iv) Within DLA, an activity shall ordinarily refer an FOIA request 
for a record that it holds but that was originated by another activity 
or that contains substantial information obtained from another activity 
to that activity for direct response after coordination and obtaining 
concurrence from the activity. The requester shall then be notified of 
such referral. DLA activities shall not, in any case, release or deny 
such records without prior consultation with the other activity.
    (3) On-loan documents. A DLA activity shall refer to the agency that 
provided the record any FOIA request for investigative, intelligence, or 
any other type of records that are on loan to DLA for a specific purpose 
if the records are restricted from further release and so marked. 
However if, for investigative or intelligence purposes, the outside 
agency desires anonymity, a DLA activity may only respond directly to 
the requester after coordination with the outside agency.
    (4) General Accounting Office (GAO) documents. On occasion, the DoD 
receives FOIA requests for GAO documents containing DoD information. 
Even though the GAO is outside the executive branch and not subject to 
the FOIA, all FOIA requests from GAO documents containing DoD 
information received either from the public or on referral from GAO will 
be processed under the provisions of the FOIA.
    (5) Agencies not subject to the FOIA. A DLA activity may refer an 
FOIA request for any record that originated in an agency outside the DoD 
or that is based on information obtained from an outside agency to the 
agency for direct response to the requester after coordination with the 
outside agency, if that agency is subject to FOIA. Otherwise, the DLA 
activity must respond to the request.
    (6) Time to respond. DLA activities that receive referred requests 
shall answer them in accordance with the time limits established by the 
FOIA and this rule. Those time limits shall begin to run upon proper 
receipt of the referral by the PLFA FOIA manager to respond.
    (7) Accumulating fees. Requesters receiving the first two hours of 
search and the first 100 pages of duplication without charge (see part 
286, subpart F, of this title) are entitled to such only once per 
request. Consequently, if a DLA activity, after completing its portion 
of a request, finds it necessary to refer the request to another DLA 
activity or another DoD component to action their portion of the 
request, the referring activity shall inform the recipient of the 
expended amount of

[[Page 256]]

search time and duplication cost to date.
    (k) Requests for authentication of records. FOIA requests for 
authentication of records shall be authenticated with an appropriate 
seal, whenever necessary, to fulfill an official Government or other 
legal function according to DLA Regulation 5105.5.\3\ This service, 
however, is in addition to that required under the FOIA and is not 
included in the FOIA fee schedule. DLA activities may charge for the 
service at a rate of $5.20 for each authentication.
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    \3\ See Footnote 2 to Sec. 1285.2(i)(4).
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    (l) Records management. FOIA records shall be maintained and 
disposed of in accordance with DLA Manual 5015.1.\4\
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    \4\ See Footnote 2 to Sec. 1285.2(i)(4).
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    (m) Relationship between the FOIA and the Privacy Act. Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records. In some instances, they may cite neither 
Act but will imply one or both Acts. For these reasons, the following 
guidelines are provided to ensure that requesters receive the greatest 
amount of access rights under both Acts:
    (1) Requesters who seek records about themselves contained in a 
Privacy Act system of records and who cite or imply the Privacy Act, 
will have their requests processed under the provisions of the Privacy 
Act, 5 U.S.C. 552a.
    (2) Requesters who seek records about themselves which are not 
contained in a Privacy Act system of records and who cite or imply the 
Privacy Act, will have their requests processed under the provisions of 
the FOIA, since they have no access rights under the Privacy Act.
    (3) Requesters who seek records about themselves which are contained 
in a Privacy Act system of records and who cite or imply the FOIA or 
both Acts will have their requests processed under the time limits of 
the FOIA and the exemption and fee provisions of the Privacy Act.
    (4) Requesters who seek access to Agency records and who cite or 
imply the Privacy Act, the FOIA, or both will have their requests 
processed under the FOIA.
    (5) Requesters should be advised in final responses why their 
request was processed under a particular act.
    (n) Reading rooms. (1) DLA activities may provide a facility or room 
where the public may inspect and copy or have copied the so-called 
``(a)(2)'' material (see Sec. 1285.3(b) of this part). At those 
activities where it is impractical to set up a formal reading room, the 
FOIA manager will arrange for a review of ``(a)(2)'' material at a 
suitable time and location. Identifying details that, if revealed, would 
create a clearly unwarranted invasion of personal privacy may be deleted 
from ``(a)(2)'' materials prior to placement in reading rooms. However, 
in every case, justification for the deletion must be fully explained in 
writing. The public's right to inspect first and then decide what is to 
be copied applies only to ``(a)(2)'' material. Activities may elect to 
place other documents in their reading room, including so-called 
``(a)(1)'' material (see Sec. 1285.3(a) of this part), as a means to 
provide public access to such documents and allow the public to first 
inspect them before copying. When appropriate, the cost of copying may 
be imposed on the person requesting the material in accordance with 
Sec. 1285.6 of this part and part 286, subpart F, of this title.
    (2) ``(a)(2)'' materials index. Each activity maintaining a reading 
room shall maintain an index of the ``(a)(2)'' materials that are 
issued, adopted, or promulgated after 4 July 1967. No ``(a)(2)'' 
materials issued, promulgated, or adopted after 4 July 1967 that are not 
indexed and either made available or published may be relied upon or 
used or cited as precedent against any individual unless such individual 
has actual and timely notice of the contents of such materials. Each 
index shall be arranged topically or by descriptive words rather than by 
case name or numbering system so that members of the public can readily 
locate material. Case name and numbering arrangements, however, may also 
be included for the convenience of the DLA activity. Such materials 
issued, promulgated, or adopted before 4 July 1967 need not be indexed 
but must be made available upon request if not exempted under part 286, 
subpart C, of this title.

[[Page 257]]

    (3) DLA publications and PLFA supplements may, at the discretion of 
the DLA activity, be regarded as ``(a)(2)'' material and placed in 
reading rooms subject to the restrictions in paragraph (o)(2) of this 
section. Otherwise, requests for publications will be handled according 
to paragraph (o)(1) of this section.
    (o) Publications of DLA regulations, manuals, handbooks, and 
uncontrolled forms. (1) Since most DLA publications are available to the 
public through the publications distribution sales outlet, the requester 
may be referred to that outlet.
    (2) Requests for DLA publications which are classified, marked ``FOR 
OFFICIAL USE ONLY,'' or have limited distribution state