5 U.S.C. 301, 10 U.S.C. 113.
This part:
(a) Implements the DoD Humans Goals Charter; 29 U.S.C. 791, 792, 793, and 795; guidance from the Equal Employment Opportunity Commission (EEOC); guidance from the Office of Personnel Management (OPM); Executive Order 11830; General Services Administration Order ADM 5420.71A; Executive Orders 11141; 11246 Part II, 11375, and 12086; Office of Management and Budget (OMB) Circular No. A-11; 42 U.S.C. 2000E-16; Executive Order 11478; 38 U.S.C. 2014; 29 U.S.C. 631(b) and 633a; 5 U.S.C. chapters 43 and 72; Secretary of Defense Policy on Sexual Harassment, July 17, 1981; Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics) Multiple Addressee Memorandum, August 16, 1981; and 29 U.S.C. 206(d) by establishing the Civilian Equal Employment Opportunity (EEO) Program, to include affirmative action programs, consistent with guidance from the Equal Employment Opportunity Commission (EEOC), Office of Personnel Management (OPM), and the DoD Human Goals Charter.
(b) Consolidates in a single document provisions of Secretary of Defense Multiple Addressee Memorandum, June 23, 1981; DoD Directive 1100.11, DoD Directive 1450.1, DoD Directive 5120.46, and DoD Directive 1100.15, therefore cancelling each document.
(c) Authorizes, as an integral part of the Civilian EEO Program, the establishment of Special Emphasis Programs (SEPs) entitled the Federal Women's Program (FWP), the Hispanic Employment Program (HEP), and the Program for People with Disabilities (PPD), the Asian/Pacific Islander Employment Program (AEP), the American Indian/Alaskan Native Employment Program (AIEP), and the Black Employment Program (BEP).
(d) Establishes the Defense Equal Opportunity Council (DEOC), the Civilian EEO Review Board, the SEP Boards.
(e) Authorizes the issuance of DoD Instructions and Manuals to implement this part and guidance from standard-setting agencies such as EEOC and OPM, consistent with DoD 5025.1-M.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and activities supported administratively by OSD, the Military Departments, the Organization of the Joint Chiefs of Staff (as an element of the OSD for the purposes of this program), the Unified and Specified Commands, the Defense Agencies, the Army and Air Force Exchange Service, the National Guard Bureau, the Uniformed Services University of the Health Sciences, the Office of Civilian Health and Medical Programs of the Uniformed Services, and the DoD Dependents Schools (hereafter referred to collectively as “DoD Components”).
(b) Applies worldwide to all civilian employees and applicants for civilian employment within the Department of Defense in appropriated and non-appropriated fund positions.
(c) Does not apply to military personnel, for whom equal opportunity is covered by DoD Directive 1350.2
(d) Covers Federal employment issues under section 504 of the Rehabilitation Act of 1973, as amended, even though DoD Directive 1020.1
(a)
(b)
(c)
(d)
(1) A physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation;
(2) A physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or
(3) None of the impairments defined above but is treated by an employer as having an impairment.
(a)
(b)
(c)
(d)
(e)
(a) Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; or
(b) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or creates an intimidating, hostile, or offensive environment.
It is DoD Policy to:
(a) Recognize equal opportunity programs, including affirmative action programs, as essential elements of readiness that are vital to the accomplishment of the DoD national security mission. Equal employment opportunity is the objective of affirmative action programs.
(b) Develop and implement affirmative action programs to achieve the objective of a civilian work force in which the representation of minorities, women, and people with disabilities at all grade levels, in every occupational series, and in every major organization element is commensurate with the representation specified in EEOC and OPM guidance. Such programs, which shall be designed to identify, recruit, and select qualified personnel, shall be coordinated with the cognizant legal offices.
(c) Ensure that Civilian EEO Program activities for minorities, women, and people with disabilities are integrated fully into the civilian personnel management system.
(d) Assess progress in DoD Component programs in accordance with the affirmative action goals of the Department of Defense.
(e) Prohibit discrimination based on race, color, religion, sex, national origin, mental or physical disability, or age.
(f) Eliminate barriers and practices that impede equal employment opportunity for all employees and applicants for employment, including sexual harassment in the work force and at work sites and architectural, transportation, and other barriers affecting people with disabilities.
(a) The
(1) Represent the Secretary of Defense in all matters related to the DoD Civilian EEO Program, consistent with DoD Directive 5124.2
(2) Establish and chair the DEOC.
(3) Establish a Civilian EEO Review Board.
(4) Develop policy and provide program oversight for the Civilian EEO Program.
(5) Ensure full implementation of this part, monitor progress of affirmative action program elements, and advise the Secretary of Defense on matters relating to the Civilian EEO Program.
(6) Ensure that realistic goals that provide for significant continuing increases in the percentages of minorities, women, and people with disabilities in entry, middle, and higher grade positions in all organizations and occupations are set and accomplished until the overall DoD objective is met and sustained.
(7) Prepare a new DoD Human Goals Charter each time a new Secretary of Defense is appointed.
(8) Ensure fair, impartial, and timely investigation and resolution of complaints of discrimination in employment, including complaints of sexual harassment.
(9) Establish DoD SEPs for the FWP, HEP, HIP, AEP, AIEP, and BEP.
(10) Establish DoD Special Emphasis Program Boards to assist with implementation of SEPs under this part.
(11) Establish DoD Civilian EEO Award Programs to provide for the annual issuance of Secretary of Defense Certificates of Merit to DoD Components and individuals for outstanding achievement in the major areas covered by this part, and to review all awards and management training programs within the Department of Defense to ensure that minorities, women, and people with disabilities receive full and fair consideration consistent with their qualifications and the applicable program criteria.
(12) Issue implementing instructions and other documents, as required, to achieve the goals of the DoD Civilian EEO Program and to provide policy direction and overall guidance to the DoD Components.
(13) Represent the Department of Defense on programmatic EEO matters with EEOC, OPM, the Department of Justice, other Federal Agencies, and Congress.
(14) Represent the Department of Defense on the Interagency Committee on Handicapped Employees under E.O. 11830, as amended, and the Council on Accessible Technology under General Services Administration Order ADM 5420.71A.
(15) Represent the Department of Defense at meetings and conferences of non-Federal organizations concerned with EEO programs, and coordinate DoD support of such organizations' activities with the Assistant Secretary of Defense (Public Affairs) and with DoD General Counsel in accordance with DoD Directive 5410.18
(16) Serve as the DoD liaison with the Office of Federal Contract Compliance Programs (OFCCP), Department of Labor (DoL), for the purpose of providing contract information, forwarding complaints of discrimination filed against DoD contractors, and implementing administrative sanctions imposed against DoD contractors for
(17) Ensure that the DoD FAR Supplement contains appropriate contract provisions for EEO for Government contractors and subcontractors under Executive Orders 11141, 11246 Part II, 11375, and 12086; Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and DoL implementing regulations.
(b) The
(1) Ensure that all EEO policies are disseminated widely and that they are understood and implemented at all levels within their Components.
(2) Ensure that their Components comply with EEOC and OPM guidance and this part and that minorities, women, and people with disabilities receive full and fair consideration for civilian employment in all grade levels, occupations, and major organizations, with special emphasis on mid-level and higher grades and executive-level jobs, including the Senior Executive Service (SES) and SES candidate pools.
(3) Treat equal opportunity and affirmative action programs as essential elements of readiness that are vital to accomplishment of the national security mission.
(4) Designate a Director of Civilian Equal Opportunity and allocate sufficient staff and other resources to ensure a viable EEO program under this Directive. This includes assignment of staff to be responsible for EEO and affirmative action programs generally and SEP Managers for the SEPs established under this part at the Component level.
(5) Establish DoD SEPs, for the FWP, HEP, PPD, AEP, AIEP, and BEP at Headquarters level and at all field activities levels unless exemptions are granted to field activities. Authority to grant exceptions to field activities of DoD Components is delegated to the Component Heads who, in turn, may redelegate this authority.
(6) Require that EEO be included in critical elements in the performance appraisals of all supervisors, managers, and other Component personnel, military and civilian, with EEO responsibilities.
(7) Ensure fair, impartial, and timely investigation and resolution of complaints of discrimination in employment, including complaints of sexual harassment.
(8) Set realistic Component goals and motivate subordinate managers and supervisors to set and meet their own goals until overall DoD and Component goals are met and sustained.
(9) Evaluate employment policies, practices, and patterns within their respective Components and identify and correct and institutional barriers that restrict opportunities for recruitment, employment, advancement, awards, or training for minorities, women, and people with disabilities and ensure that EEO officers and civilian personnel officers provide leadership in eliminating these barriers.
(10) Ensure that installations and activities establish focused external recruitment programs to produce employment applications from minorities, women, and people with disabilities who are qualified to compete effectively with internal DoD candidates for employment at all levels and in all occupations.
(11) Establish a continuing EEO educational program (including training in the prevention of sexual harassment) for civilian and military personnel who supervise civilian employees.
(12) Establish EEO Awards Programs to recognize individuals and organizational units for outstanding achievement in one or all of the major EEO areas covered by this part.
(13) Review all award and management training programs to ensure that minorities, women, and people with disabilities are considered, consistent with their qualifications and program criteria.
(14) At military installations having a civilian work force and military units, ensure that the Civilian EEO Program is managed by and conducted for civilian personnel only and that the Military Equal Opportunity Program is managed by and conducted for military personnel only. Any exceptions to this
(a) Officials designated in this Directive shall allocate resources necessary to develop methods and procedures to ensure that all elements of this part are fully implemented and are in compliance with the spirit and intent of the DoD Human Goals Charter, laws, executive orders, regulatory requirements, and other Directive and Instructions governing the Civilian EEO Program within the Department of Defense.
(b) Heads of DoD Components, in accordance with EEOC and OPM guidance and subject to oversight by and supplemental guidance from the ASD(FM&P), or designee shall:
(1) Develop procedures for and implement an affirmative action program for minorities and women, consistent with section 717 of the Civil Rights Act of 1964, as amended; E.O. 11478; guidance from EEOC; and guidance from OPM.
(2) Develop procedures for and implement an affirmative action program for people with disabilities consistent with section 501 of Rehabilitation Act of 1973, as amended, and guidance from EEOC.
(3) Develop procedures for and implement an affirmative action program for disabled veterans, consistent with DoD Directive 1341.6.
(4) Develop procedures for and implement systems for investigation and resolution of complaints of employment discrimination under section 717 of the Civil Rights Act of 1964, as amended; sections 501, 503, and 504 of the Rehabilitation Act of 1973, as amended and DoD Directive 1020.1; section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; the Age Discrimination in Employment Act of 1967, as amended; guidance from EEOC; and applicable case law.
(5) Develop procedures for and implement a Federal Equal Opportunity Recruitment Program for minorities and women and a comparable special recruitment program for people with disabilities in accordance with the Civil Service Reform Act of 1978; EEOC instruction concerning affirmative action programs for people with disabilities; guidance from OPM; external recruitment programs to obtain employment applications from minorities, women, and people with disabilities who are competitive with internal DoD candidates for employment at all levels.
(6) Develop procedures for and implement all SEPs established under this part at the Component level. These SEPs shall be integral parts of the Civilian EEO Program and shall be conducted in accordance with the provisions of this part and applicable EEOC and OPM guidance.
(7) Develop procedures for and implement a program to eliminate sexual harassment in Component work places, consistent with DoD Policy on Sexual Harassment memorandums, and to ensure compliance with the Equal Pay Act.
(8) Develop procedures for and implement a program of employment preference for spouses of military personnel, in accordance with DoD Instruction 1404.12.
(9) Develop procedures for and implement a selective placement program for people with disabilities in accordance with guidance from OPM. This program shall be consistent with the program established in paragraph (b)(2) of this section, and coordinated with the Component's PPD manager.
(10) Develop procedures for and implement staffing initiatives, training and development programs, and upward mobility programs designed to increase the representation of qualified minorities, women, and people with disabilities on certificates of eligibility and accompanying lists of individuals eligible for special appointments that are provided to selecting officials at all levels within the Component. These
(11) Develop procedures for and implement a program to evaluate all supervisors and managers with EEO responsibilities on their contributions to and support of the Component's EEO program. Specifically, Component SES and General Manager personnel, when appropriate, shall have their EEO responsibilities defined as a critical element in their performance appraisals in accordance with the Civil Service Reform Act of 1978.
(12) Develop procedures for an implement a program to participate in and conduct ceremonies, where appropriate, at all levels of the Component to observe nationally proclaimed or other specially-designated community activities that particularly affect minorities, women, and people with disabilities and that support the Civilian EEO Program. Military and civilian personnel should both participate whenever possible. Example of special observances include Dr. Martin Luther King Jr.'s Birthday, Black History Month, National Women's History Week, Women's Equality Day, Hispanic Heritage Week, National Disability Employment Awareness Month, and the Decade of Disabled Persons.
(13) Develop procedures for and implement a program to revise documents and change practices and policies that discriminate against civilian personnel on the basis or race, color, sex, religion, national origin, mental or physical disability, or age.
(14) Develop procedures for and implement and affirmative action program for the continued Federal employment of minorities, women, and people with disabilities who have lost their jobs in DoD Components because of contracting decisions made under OMB Circular No. A-76. (Under OMB Circular Federal employees have, in general, the right of first refusal of employment under these contracts.)
(15) Develop procedures for and implement a program for computer support of employees with disabilities consistent with DoD participation in activities of the Council on Accessible Technology in accordance with General Services Administration Order ADM 5420.71A.
(a) EEO Managers, including SEP Managers and other staff who are responsible for EEO and affirmative action programs, shall function at a level that is sufficiently responsible with the assigned organization to enable them to communicate effectively the goals and objectives of the program and to enable them to obtain the understanding, support, and commitment of managers and other officials at all levels within the organization.
(b) It shall be the responsibility of EEO Managers, SEP Managers, and other program staff to develop, coordinate, implement, and recommend to managers, other officials, and covered groups the policy, guidance, information, and activities necessary to attain the goals of the SEPs and the overall DoD Civilian EEO Program.
(a) The DEOC shall be chaired by the ASD (FM&P) and shall coordinate policy for and review civilian and military equal opportunity programs, monitor progress of program elements, and advise the secretary of Defense on pertinent matters. One of the mandates of the DEOC shall be to pursue an aggressive course of action to increase the numbers of minorities, women, and people with disabilities in management and executive positions at grades 13 and above, including the SES and, at the request of the Secretary of Defense, Schedule C, and other noncareer executive positions in the SES and on the Executive Schedule. Members of the DEOC shall include the assistant Secretary of Defense (Reserve Affairs), Director of Administration and Management, and the Assistant Secretaries with responsibility for personnel policy and reserve affairs in the Military Departments.
(b) The Civilian EEO Review Board shall be chaired by the ASD(FM&P), or
(c) The DoD SEP Boards shall be chaired by the DoD SEP Managers. These Boards shall be comprised of designated SEP Managers from the DoD Components and such other individuals as may be necessary to advise and assist in EEO activities and policy development in the Department of Defense. The Boards shall work with career management officials, other key management officials, and union representatives in developing policies, programs, and objectives.
(d) The DEOC, Civilian EEO Review Board, and each SEP Board established at the DoD level shall have a Charter that describes its organization, management, functions, and operating procedures, consistent with DoD Directive 5105.18.
(e) Civilian EEO Review Boards and SEP Boards may be established at Component, command, and installation levels as well as the DoD level to assist in program activities.
(f) Members of covered groups should be represented on Civilian EEO Review Boards, SEP Boards, and subcommittees at all levels; and consideration should be given to participation by military personnel and by Federal employees who are union representatives.
(a) The ASD(FM&P) shall:
(1) Submit an annual report to the Secretary of Defense on the status of the DoD EEO program. This report shall be developed from existing documents, such as affirmative action plan accomplishment reports, civil rights budget reports, semiannual discrimination complaint reports, and Federal Equal Opportunity Recruitment Program reports, plus statistical data obtained from the Defense Manpower Data Center and reports of visits to DoD installations.
(2) Submit consolidated DoD annual reports on discrimination complaints to the EEOC in accordance with EEOC guidance. This reporting requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(b) Heads of DoD Components shall:
(1) Submit annual reports on discrimination complaints to the ASD(FM&P), or designee, in accordance with guidance from the EEOC. This reporting requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(2) Submit copies of affirmative action program plan, affirmative action program plan updates, and affirmative action plan accomplishment reports for minorities, women, and people with disabilities to the ASD(FM&P), or designee, in addition to copies of annual reports for the Federal Equal Opportunity Recruitment Program.
(3) Ensure that designated officials submit information for an annual report on computer support of employees with disabilities and for reports on individual computer accommodations for employees with disabilities. These reporting requirements are assigned RCS DD-FM&P (A) 1731 and RCS DD-FM&P (AR) 1732.
This part is effective May 21, 1987.
42 U.S.C. 3601 et seq.
This part:
(a) Revises 32 CFR part 192.
(b) Revises the references, policies, and procedures covering off-base housing and fair housing enforcement.
(c) Outlines discrimination complaint inquiries or investigative procedures and hearing requirements.
(d) Deletes the requirement for each Military Department to submit a semi-annual housing discrimination report to the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)).
(e) Requires each Military Service to report to the ASD(FM&P) any housing discrimination cases and their results in their Annual Military Equal Opportunity Assessment Report to the ASD(FM&P).
(f) Requires each Military Department to maintain all completed or resolved housing discrimination cases.
(g) Emphasizes liaison with other Government (local, State, or Federal) agencies.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Uniformed Services University of the Health Sciences (USUHS), the Defense Agencies, and DoD Field Activities (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps. DoD civilian employees (as defined in § 192.3) will be offered the same services that members of the Armed Forces receive.
(2) DoD civilian employees (and their dependents) who are transferred from one place of residence to another because of job requirements or recruited for job opportunities away from their current place of residence in the United States, and all DoD U.S. citizen appropriated fund and nonappropriated fund civilian employees and their dependents outside the United States.
It is DoD policy that under DoD Directive 1350.2
(a)
(1) Title VIII of P.L. 90-284 contains the following:
(i) The fair housing provisions.
(ii) Outlines the responsibilities of the Secretary of Housing and Urban Development (HUD) with regard to Public Law 90-284.
(iii) Requires all Executive Departments and Agencies to administer housing and urban development programs and activities under their jurisdiction in a manner that shall reflect “affirmatively” the furthering of title VIII.
(2) Title IX of Public Law 90-284 makes it a crime to intimidate willfully or interfere with any person by force or threat because of that person's activities in support of fair housing.
(3) Title 42 U.S.C. 1982 prohibits discrimination in housing in the United States. This statute protects DoD personnel.
(4) Public Law 100-430 amends title VIII of Public Law 90-284 by revising the procedures for the enforcement of fair housing requirements and adding protected classes of individuals.
(5) Title VIII of Public Law 90-284, as amended by Public Law 100-430, does not limit the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Additionally, provisions of such title VIII regarding familial status do not apply with respect to housing intended for, and solely occupied by, persons 62 years of age or older or intended and operated for occupancy, but at least one person 55 years of age or older. For guidance regarding housing occupied by those 55 years of age or older, use the statutory provision at section 805 b(2)(c), 102 Stat. 1623, of Public Law 100-430.
(b)
(1) That policy includes the objective of eliminating discrimination against DoD personnel in off-base housing. That objective is not achieved simply by finding a place to live in a particular part of town or in a particular facility for a specific person.
(2) The intent is achieved when a person meeting the ordinary standards of character and financial responsibility is able to obtain off-base housing equally as any other person anywhere in the area surrounding a military installation, without suffering discrimination based on race, color, religion,
(i) The accomplishment of this objective shall not be hampered by requiring the submission of a formal complaint of discrimination. A suspected discriminatory act, with or without the filing of a formal complaint, is a valid basis for investigation and, if discrimination is substantiated, imposition of restrictive sanctions.
(ii) On substantiation that an agent practiced discrimination, restrictive sanctions shall be imposed for a minimum of 180 days.
(iii) The fact that Public Law 90-284, 42 U.S.C. 1982, and Public Law 100-430 may or may not provide a remedy in a given case of discrimination affecting DoD personnel does not relieve a commander of the responsibility to ensure equal treatment and equal opportunity for such personnel or to impose restrictive sanctions against the agent and/or facility, when appropriate.
(iv) Military installations shall develop information programs to apprise Service members of the DoD policy and program for equal opportunity in off-base housing. Commanders should use local community resources, such as civil rights organizations, religious and service groups, and local information media, in support of their programs.
The
(a) Ensure nondiscrimination in referring DoD personnel to off-base housing facilities.
(b) Continue efforts (as described in DoD 4165.63-M
(c) Ensure that an office and staff required by DoD 4165.63-M are available in conjunction with the cognizant staff judge advocate or other legal authority to advise Service members on the following:
(1) The procedures in this part.
(2) The application of Public Law 90-284, 42 U.S.C. 1982, and Public Law 100-430 in specific situations.
(3) The rights of individuals to pursue remedies through civilian channels, without recourse and in addition to the procedures prescribed in this part, including the right to:
(i) Make a complaint directly to the Department of HUD and/or to the Department of Justice (DoJ) in the United States.
(ii) Bring a private civil action in any court of competent jurisdiction.
(d) Periodically review off-base housing procedures and policies to ensure effectiveness and compliance with this part. (Appendix A to this part is a checklist to help commanders with this review.)
(e) Cooperate with other Government Agencies investigating housing discrimination complaints filed by Service members.
(f) Ensure that each Military Service reports any housing discrimination cases and their results in the Annual Military Equal Opportunity Assessment Report required by DoD Instruction 1350.3.
(a) Appendix B to this part contains the detailed procedures for assisting Service members, investigating housing complaints, and reporting requirements for housing discrimination complaints.
(b) The complaint and investigative report required in section B., appendix B to this part is exempt from formal approval and licensing under DoD 7750.5-M.
A. Are all assigned personnel informed of the Equal Opportunity in Off-Base Housing Program requirements before obtaining housing off base?
B. Is there an effective information program ensuring equal opportunity in off-base housing information program?
C. Are community resources being used to support the equal opportunity in off-base housing information program?
D. Are housing discrimination complaints being processed within the required time?
E. Are complainants being informed in writing of the results of housing discrimination inquiry and/or investigating actions?
F. Are housing surveys being conducted periodically to obtain new listings?
G. Are restrictive sanctions being imposed immediately for a minimum of 180 days on agents found to be practicing discrimination?
H. Are the services of command representatives provided to assist applicants in their search for housing?
I. Are HHS personnel and equal opportunity personnel aware of and sensitive to housing problems encountered by DoD personnel?
J. Are equal opportunity in off-base housing reports being submitted accurately and on time?
DoD personnel seeking off-base housing shall be processed as follows:
1. Seen by an HRS when available (optional for DoD civilian personnel).
2. Provided assistance in seeking temporary and permanent off-base housing, as follows:
a. Counseling on the equal opportunity in off-base housing program with particular emphasis placed on reporting any indication of discrimination against DoD personnel in their search for housing.
b. Counseling and personal assistance shall include the following services:
(1) Offering to check by telephone the availability of selected listings. A record shall be made and retained for future reference of the date, time, and nature of any conversation confirming the availability of a facility. The race, color, religion, sex, national origin, handicap, or familial status of the applicant shall not be divulged. Caution must be exercised to ensure that a pattern of “confirmation only for minorities” does not develop.
(2) Offering the services of a command representative (such as a unit sponsor or other designated person, when available) to accompany and assist the applicant in the search for housing.
(3) Explaining various discriminatory methods that may be employed by agents. For instance, an agent may arbitrarily refuse to accept or consider the applicant as a tenant, falsely indicate the unit sought has been rented to another applicant, or refuse to make the unit available under the same terms and conditions as are ordinarily applied to applicants for the facilities. In such instances the following shall apply:
(a) The agent shall be queried on the reasons why the unit is not available. After all reasonable steps have been taken to ascertain whether any valid nondiscriminatory reason can be shown for the agent's rejection of the applicant, and if there appears to be no such reason, a reasonable effort shall be made to persuade the agent to make the unit available to the applicant.
(b) The incident shall be reported immediately by the command representative and the applicant to the HRS for appropriate command action.
Commanders shall ensure that all DoD personnel are informed of the scope and provisions of the DoD Equal Opportunity in Off-Base Housing Program and advised to report immediately to the HRS (when available) any form of discrimination encountered when seeking housing within a Civilian Community. Incidents should be reported to base agencies or command representatives when an HRS is not available (i.e., equal opportunity officer, unit commander, supervisor). A verbal or written statement of discriminatory policy by an agent is considered to be an act or incident of discrimination, and the investigative procedures outlined in this appendix shall be followed.
1.
a. Immediately notify the commander.
b. Promptly interview the complainant to determine the details and circumstances of the alleged discriminatory act.
c. Immediately telephone or visit the facility and/or agent concerned, if the complaint is received shortly after the time of the alleged act and it concerns the change in availability of a vacancy (i.e., “just rented,” etc.). Attempt to determine if a vacancy exists without making reference to the complaint received. Request the commander to authorize the use of verifiers, as necessary. (See this appendix, subsection B.2.)
d. Advise the complainant of the provisions and procedures in this Instruction and of the right to pursue further actions through HUD, DoJ, and local or State agencies. Coordinate efforts with the Office of Judge Advocate or other cognizant legal counsel to determine
e. Document the complainant's action for future reference and inform the commander of the results of the HRS preliminary inquiry and actions taken. The commander shall take action to assist the complainant in obtaining suitable housing. If, due to previous discriminatory practices in the community, suitable housing cannot be obtained by the complainant in a reasonable amount of time, the complainant and the commander may use this fact to justify a request for priority in obtaining military housing or for humanitarian reassignment. Reassignment action is a last resort and must be justified fully through command personnel channels.
2.
a. When selecting and using verifiers, the following applies:
(1) Verification of the vacancy shall be made expediently after alleged act of discrimination.
(2) Verifiers may be volunteers. (The equal opportunity office is a possible source for identifying individuals to be used as verifiers.)
(3) The purpose of verification is to isolate the attribute of race, color, religion, sex, national origin, age, handicap, or familial status that is the suspected basis for the alleged discrimination against the complainant. Except for those attributes that are considered to be the source of the discrimination complaint, the verifier should possess attributes that are similar to the complainant. If two verifiers are used, one may possess similar attributes to the complainant. Ideally, two verifiers should be used.
b. Instructions provided to the verifiers by HRS personnel should include the following:
(1) Explanation of the equal opportunity in off-base housing and off-base housing referral programs.
(2) Verifiers are to obtain information only on agent and/or facility operating policies, practices, and procedures for subsequent determination of complaint validity.
(3) Verifiers are not to make a verbal or written contract for the housing unit, pay any money, or say they want the housing unit.
(4) Verifiers shall be knowledgeable concerning family composition, pets, and housing requirements of the complainant; they shall ask for identical housing requirements.
(5) The following information shall be obtained by the verifier, if possible:
(a)
(b)
(6) The verifier's statement shall be completed immediately after the verification visit, if possible. It shall be accurate, objective, and factual. Include the following in the statement:
(a) Date, time of visit, persons contacted, positions of persons contacted. Include any other pertinent information obtained during visit; i.e., length of time employed at facility, in addition to the information in this appendix, subparagraph B.2.b.(5), above.
(b) When reconstructing a conversation, write in the first person and try to use direct quotes. Do not use pronouns such as “he,” “she,” or “they.” Clearly identify who said what to whom.
(c) Sign and date statement. Give full name, address, telephone number (duty or home), race, color, religion, sex, national origin, age, handicap or familial status, as relevant to the complaint.
3.
a.
(1)
(2)
b.
(1) Any necessary explanatory remarks, including comments on the facts and evidence presented.
(2) Information known about pending complaints brought by other parties on the same facility and/or agent.
(3) Comments on the civil rights laws relevant to the particular case.
4.
a. If the commander determines that more information is required, or for any reason further inquiry is deemed necessary, an officer shall be appointed from sources other than the HRS to conduct a formal inquiry or investigation, as the situation warrants. The officer, if not an attorney, shall be afforded the advice and assistance of a Staff Judge Advocate or other cognizant legal counsel.
b. If, in the commander's judgment, the inquiry or investigation fails to support the complaint the case shall be considered closed and the commander shall:
(1) Inform the complainant in writing of all actions taken and advise the complainant of rights to pursue further actions to include the following:
(a) The right to submit a complaint to the HUD and the DoJ.
(b) The right to bring a private civil action in a State or Federal court of competent jurisdiction.
(c) The availability of legal assistance from their local Staff Judge Advocate or other cognizant legal counsel in pursuing civil redress.
(2) Summarize in the report file the practices giving rise to the complaint, the actions and results of the inquiry or investigation, and if discriminatory practices were found, written assurances from the agent on future facility and/or agent practices. The following statement, completed by the complainant, shall be included, as part of the case file: “I am (am not) satisfied with the efforts taken by the commander on my behalf to achieve satisfactory resolution of my off-base housing discrimination complaint.” If the complainant indicates a lack of satisfaction, the reasons must be included in the case file.
(3) Inform the agent of the results of the inquiry by command correspondence if an informal hearing was held. Such correspondence should reiterate DoD policy and requirements for equal opportunity in off-base housing.
(4) Forward unsubstantiated complaint reports and HUD Form 903 to the HUD and the DoJ if requested by the complainant.
(5) Retain a copy of the report file for 2 years for future reference.
c. If the inquiry or investigation supports the complainant's charge of discrimination and the discriminatory act is determined by the commander to conflict with DoD policy, the commander shall:
(1) Impose restrictive sanctions against the agent and/or facility for a minimum of 180 days. Sanctions shall remain in effect until the requirements in this appendix, subparagraphs B.6.a.(1) or B.6.a.(2), below, are met. Restrictive sanctions shall be imposed when a suspected discriminatory act, despite the absence of a formal complaint, is investigated and found valid. The fact that a validated discrimination complaint and/or incident has been or is scheduled to be forwarded to another Agency (the HUD, the DoJ, etc.) is not cause for withholding sanction action pending the outcome of that Agency's further review or investigation. When imposing a restrictive sanction, the commander shall:
(a) Remove the facility listing(s) from HRO files.
(b) Impose restrictive sanctions against all facilities owned or operated by the agent concerned.
(c) Place the facility on the restrictive sanction list maintained by the HRS. The restrictive sanction list shall be prepared on official letterhead stationery, signed by the commander, and include the authority for and conditions of the restrictive sanctions.
(d) Inform the agent concerned by command correspondence that:
(1) Restrictive sanctions have been imposed.
(2) The reasons, nature, and minimum duration of the restrictions.
(3) The action required for the removal of sanctions at the conclusion of the minimum period.
(e) Provide all DoD personnel reporting to the HRS with a copy of the restrictive sanction list, and advise members of the Armed Forces that they may not rent, lease, purchase, or reside in any of the listed facilities. Obtain a signed acknowledgment of receipt of the restrictive sanction list from the HRS using a DD Form 1746, “Application for Assignment to Housing.”
(f) Advise other military installations of the restrictive sanction action taken when the sanctioned facility is located within the commuting area of their military installations.
(2) Inform the complainant in writing of all actions taken and advise the complainant that his or her case will receive continuing action to include, if the complainant requests, forwarding the case file to the HUD and/or the DoJ for action.
(3) Before forwarding the report to the respective Military Department, prepare a memorandum outlining the following:
(a) The base efforts made to obtain housing relief for the complainant.
(b) The impact of restrictive sanctions on the off-base housing program and DoD personnel and their dependents.
(c) Any other considerations deemed relevant.
(4) Include a statement completed by the complainant for the case file. (See this appendix, subparagraph B.4.b.(3), above.)
(5) If the act of discrimination falls within existing regulations, forward a copy of the complaint and investigation report directly to the HUD within 180 days after the occurrence of the alleged discriminating act, using HUD Form 903. The original report shall be sent to the appropriate HUD Regional Office or the U.S. Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity, 451 7th Street SW., Washington, DC 20410. A copy of the complaint and investigation report shall be forwarded to the Civil Rights Division, Department of Justice, Washington, DC 20530.
(6) When more than one complaint alleging discrimination in the same facility or by the same agent has been received, consolidate the complaints for the inquiry, legal review, and commander's memorandum.
d. When a commander receives a complaint alleging further discrimination in a facility or by an agent after a completed case file has been closed, the commander shall forward the summary of the facts on the subsequent complaint, outlined in this enclosure, subparagraph B.4.c.(6), above. Include brief comments indicating the extent to which the new complaint affects the previous action.
5.
a. Cooperate with the HUD, the DoJ, and the local and State agency representatives during their investigation and processing of the case, should those entities seek assistance.
b. Periodically determine the status of the case by maintaining liaison with the HUD office concerned. Contact shall be maintained until such time as the case is resolved by the HUD.
c. Ensure that the complainant is kept informed directly by the HUD and/or the DoJ.
d. Ensure that DoD personnel comply with the restrictive sanctions imposed on the facility and/or the agent. Housing personnel will comply with the following:
(1) Military personnel moving into or changing their place of residence in the commuting area of a military installation or activity may not enter into a rental, purchase, or lease arrangement with an agent or a facility that is under restrictive sanction.
(2) Implement procedures for ensuring that DoD personnel seeking housing are made aware of, and are counselled on, current restrictive sanctions.
(3) Sanctions are not applicable to the DoD personnel who may be residing in a facility when the sanction is imposed or to the extension or renewal of a rental or lease agreement originally entered into before the imposition of the sanction. Relocation of a military tenant within a restricted facility is prohibited without the written approval of the commander.
(4) If it is determined that a member of the Armed Forces has intentionally taken residency in a restricted facility contrary to instructions received by Housing Referal personnel, the commander shall take appropriate disciplinary action against that number.
(5) Periodically publish a current listing of restricted facilities in the base bulletin (or other appropriate means of internal distribution). Minimally, such publication shall occur when there has been an addition or deletion to the list.
6.
a. A facility and/or agent may be removed from restrictive sanction only if one of the following actions is taken:
(1) The restrictive sanction may be removed before completion of the 180 day restrictive period if an approved waiver request is obtained from the senior installation commander concerned, or designee. Consideration shall be given to lifting an imposed sanction only in exceptional circumstances and in conjunction with a written assurance of nondiscrimination from the agent concerned.
(2) After completion of 180 days on restrictive sanction, if the agent provides written assurance of future nondiscrimination to the HRS.
b. The commander shall inform the HRS, the equal opportunity office, and the agent in writing of the removal from restrictive sanction.
7.
Commanders of installations or activities outside the United States shall ensure that all DoD personnel, on reporting to the HRS, are clearly informed of the scope and provisions of the DoD Equal Opportunity in Off-Base Housing Program and advised to report immediately to the HRS any form of discrimination encountered as a tenant, prospective tenant, or purchaser. Incidents reported to base agencies or representatives other than the HRS (i.e., equal opportunity officer, unit commander, supervisor) shall be brought to the immediate attention of the HRS for appropriate action. On receiving a complaint of discrimination, the commander and HRS shall:
1. Consult with the Staff Judge Advocate or other cognizant legal counsel to determine if the laws of the country concerned (or any subdivision thereof) prohibit any of the actions outlined in this appendix, section B., above.
2. Take actions outlined in this appendix, section B, above, except that a HUD Form 903 shall not be completed because reports of cases arising outside the United States are not forwarded to the HUD or the DoJ. Complainants should understand that the fair housing provisions of the P.L. 90-284, “Civil Rights Act,” Title 42, United States, 1982, and Public Law 100-430, “Fair Housing Amendments Act of 1988,” September 13, 1988, are not applicable in areas outside the United States.
3. Determine, with legal advice, whether redress for the discriminatory act should be sought from authorities in the host country. Redress shall be based on the laws of the country (or subdivision thereof) concerned.
1. A copy of each complaint and investigative report that substantiates a housing discrimination shall be submitted to the appropriate Military Department (manpower and reserve affairs and/or the equal opportunity office) not later than 45 days from the date the case is completed. Under normal circumstances, the commander of the installation concerned shall complete the required investigation and processing complaints within 45 days from the date that a housing complaint is filed by a complainant.
2. A copy of complaint and investigative reports that do not substantiate allegations of housing discrimination shall be kept on file at the installation level for a 24-month period beginning from the date the case was completed.
5 U.S.C. 301.
This part sets forth policy, responsibilities, and authority in matters pertaining to Department of Defense highway needs and, when appropriate, to the highway needs of other Federal agencies, during peacetime and emergencies in the United States and its territories and possessions.
The provisions of this part apply to all components of the Department of Defense.
In order to insure that the national defense is served by adequate, safe and efficient highway transportation, it shall be the policy of the DoD to (a) integrate the highway needs of the national defense into the civil highway programs of the various State and Federal agencies, and (b) cooperate with those agencies in matters pertaining to the use of public highways and in planning their development and construction.
(a) The Secretary of the Army, as the Single Manager for Military Traffic, Land Transportation, and Common-User Ocean Terminals (see DoD Directive 5160.53, Single Manager Assignment for Military Traffic, Land Transportation, and Common-User Ocean Terminals, March 24, 1967 (32 FR 5295)), is hereby designated as the Executive Agent for the Department of Defense (hereinafter referred to as the Executive Agent), in matters pertaining to public highways to serve the national defense in meeting both peacetime and mobilization highway transportation needs in the United States, its territories and possessions; and highway needs of other Federal agencies, when appropriate. The Executive Agent, or his designee, under the policy guidance of the Assistant Secretary of Defense (Installations and Logistics), will:
(1) Coordinate the defense transportation interest in public highways, including the implementation of subsection (h), section 210 of Title 23 U.S. Code, and integrate foreseen DoD highway needs and operational requirements into the highway programs of the United States, its territories and possessions.
(2) Review and analyze DoD access road needs, and, when appropriate, those of other Federal agencies from the standpoint of approved transportation engineering practices, statutory provisions, and policies and procedures of the Bureau of Public Roads, Department of Transportation.
(3) Represent the DoD in matters pertaining to highways to serve the national defense in liaison with the Bureau of Public Roads, the American Association of State Highway Officials, and other appropriate Government and non-Government agencies.
(4) Certify on behalf of the Secretary of Defense to the appropriate Government agency, the public highway needs of the DoD and, when appropriate, the needs of other Federal agencies, as being important to the national defense. (See section 210, Title 23, U.S. Code.)
(5) Advise and assist the Assistant Secretary of Defense (Comptroller) in matters pertaining to the (i) preparation and justification of budget requirements for defense access road needs, and (ii) transfer of funds appropriated for this purpose to the Bureau of Public Roads.
(6) Develop and maintain an efficient relationship between the design of military vehicles and State and Federal standards for the design of public highways to ensure the effective and efficient utilization of such highways by military vehicles.
(7) Provide highway traffic engineering services to DoD components, when requested.
(8) Insure effective cooperation between the Department of Defense and state highway authorities in matters pertaining to special defense utilization of public highways.
(b) The other DoD Components will:
(1) Maintain official liaison with the Executive Agent in matters pertaining to the provision of public highways to serve the national defense and the access road needs of new or expanded DoD installations and activities.
(2) Furnish the Executive Agent with information and data on current and potential access-road and highway-system needs on request.
(c) The Secretaries of the Military Departments, or their designees, are authorized to act for the Secretary of Defense under the provisions of subsection (h) of section 210, Title 23, U.S. Code, in determining, in connection with the funding of contracts for the construction of classified military installations and facilities for ballistic missiles, that construction estimates and the bids of contractors did not include allowances for repairing road damages.
(d) The Secretaries of the Military Departments and the Directors of DoD Agencies will program, budget, and finance for the responsibilities assigned by this part and their access road requirements (see Pub. L. 90-180, Military Construction Appropriation Act, fiscal year 1968, and successor statutes) in accordance with applicable program and financial guidelines and procedures.
Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws referred to in appendix A.
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 (referred to in this part as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from any component of the Department of Defense.
(a)
(b)
(c) The term
(d) The term
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(e) The term
(f) The term
(g) The term
(h) The term
(i) The term
This part applies to any program for which Federal financial assistance is authorized under a law administered by any component of the Department of Defense, including the federally assisted programs and activities listed in appendix A of this part. This directive applies to money paid, property transferred, or other Federal financial assistance extended under any such program after January 7, 1965 pursuant to an application approved prior to such date. This directive does not apply to: (a) Any Federal financial assistance by way of insurance guaranty contracts, (b) money paid, property transferred, or other assistance extended under any such program before January 7, 1965, (c) any assistance to any individual who is the ultimate beneficiary under any such program, or (d) any employment practice, under any such program, of any employer, employment agency, or labor organization, except as noted in § 195.4(b)(5) of this part. The fact that a program or activity is not listed in appendix A shall not mean, if title VI of the Act is otherwise applicable, that such program is not covered. Other programs under statutes now in force or hereinafter enacted may be added to this list by notice published in the
(a)
(b)
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) In determining the site or location of facilities, a recipient may not make selections with the purpose of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part.
(iv) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(v) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(vi) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or
(vii) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program;
(viii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(4)(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.
(5) Where a primary objective of the Federal financial assistance is not to provide employment, but nevertheless discrimination on the grounds of race, color or national origin in the employment practices of the recipient or other persons subject to this Directive tends, on the grounds of race, color, or national origin of the intended beneficiaries, to exclude intended beneficiaries from participation in, to deny them benefits of, or to subject them to discrimination under any program to which this Directive applies, the recipient or other persons subject to this Directive are prohibited from (directly or through contractual or other arrangements) subjecting an individual to discrimination on the grounds of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising; employment, layoff or termination; upgrading, demotion or transfer; rates of pay and/or other forms of compensation; and use of facilities), to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of the beneficiaries. Any action taken by a component pursuant to this provision with respect to a state or local agency subject to Standards for a Merit System of Personnel Administration, 45 CFR part 70, shall be consistent with those standards and shall be coordinated with the U.S. Civil Service Commission.
(6) The enumeration of specific forms of prohibited discrimination in this section does not limit the generality of the prohibition in paragraph (a) of this section.
(a) The Assistant Secretary of Defense (Manpower) shall be responsible for insuring that the policies of this part are effectuated throughout the Department of Defense. He may review from time to time as he deems necessary the implementation of these policies by the components of the Department of Defense.
(b) The Secretary of each Military Department is responsible for implementing this part with respect to programs and activities receiving financial assistance from his Military Department; and the Assistant Secretary of Defense (Manpower) is responsible for similarly implementing this part
(c) The Assistant Secretary of Defense (Manpower) or, after consultation with the Assistant Secretary of Defense (Manpower), the Secretary of each Military Department or other responsible Department official designated by the Assistant Secretary of Defense (Manpower) may assign to officials of other departments or agencies of the Government, with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 195.11), including the achievement of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of Title VI and this part to similar programs and in similar situations.
(a)
(ii) In the case where the Federal financial assistance is to provide or is in the form of personal property, or real property or interest therein or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services and benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. In any case in which Federal financial assistance is extended without an application having been made, such extension shall be subject to the same assurances as if an application had been made. The responsible Department official shall specify the form of the foregoing assurances for each program, and the extent to which like assurances will be required of subguarantees, contractors and subcontractors, transferees, successors in interest, and other participants in the program. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interest therein, which was acquired through a program of Federal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government, the instrument effecting or recording the transfer, shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. Where no transfer of property is involved, but property is improved under a program of Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Department official, such a condition and right of reverter is appropriate to the program under which the real property
(3) The assurance required in the case of a transfer of surplus personal property shall be inserted in a written agreement by and between the Department of Defense component concerned and the recipient.
(b)
(c)
(2) The assurance required with respect to an institution of higher education, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith.
(d)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section, the responsible Department official will so inform the recipient and the complainant, if any, in writing.
(e)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(f)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Department official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Department official determines that those requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this subsection are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
All issuances heretofore issued by any officer of the Department of Defense or its components which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance under such program for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendments thereof):
(a) Executive Orders 10925 and 11114 and issuances thereunder,
(b) The “Standards for a Merit System of Personnel Administration,” issued jointly by the Secretaries of Defense, of Health, Education, and Welfare, and of Labor, 28 FR 734, or
(c) Executive Order 11063 and issuances thereunder, or any other issuances, insofar as such Order or issuances prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.
The Secretary of each Military Department shall submit regulations implementing this part to the Assistant Secretary of Defense (Manpower).
1. The Army and Air National Guard (Title 32, United States Code).
2. Various programs involving loan or other disposition of surplus property (various general and specialized statutory provisions including: 40 United States Code 483, 484, 512; 49 United States Code 1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308, 7541, 7542, 7545, 7546, 7547).
3. National Program for Promotion of Rifle Practice (10 United States Code 4307 and annual Department of Defense Appropriation Act).
4. National Defense Cadet Corps Program (10 United States Code 3540(b), 4651).
5. Office of Civil Defense assistance to programs of adult education in civil defense subjects (50 United States Code App. 2281 (e), (f)).
6. Office of Civil Defense radiological instruments grants (50 United States Code App. 2281(h)).
7. Office of Civil Defense program (with Public Health Service) for development of instructional materials on medical self-help (50 United States Code App. 2281 (e), (f)).
8. Office of Civil Defense university extension programs for civil defense instructor training (50 United States Code App. 2281 (e)).
9. Office of Civil Defense programs for survival supplies and equipment, survival training, emergency operating center construction, and personnel and administrative expenses (50 United States Code App. 2281(i), 2285).
10. Office of Civil Defense Shelter Provisioning Program (50 United States Code App. 2281(h)).
11. Office of Civil Defense assistance to students attending Office of Civil Defense schools (50 United States Code App. 2281(e)).
12. Office of Civil Defense loans of equipment or materials from OCD stockpiles for civil defense, including local disaster purposes (50 United States Code App. 2281).
13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
14. Civil Air Patrol (10 United States Code 9441).
15. Research grants made under the authority of Pub. L. 85-934 (42 United States Code 1892).
16. Contracts with nonprofit institutions of higher education or with nonprofit organizations whose primary purpose is the conduct of scientific research, wherein title to equipment purchased with funds under such contracts may be vested in such institutions or organizations under the authority of Pub. L. 85-934 (42 United States Code 1891).
17. Army Corps of Engineers participation in cooperative investigations and studies concerning erosion of shores of coastal and lake waters (33 United States Code 426).
18. Army Corps of Engineers assistance in the construction of works for the restoration and protection of shores and beaches (33 United States Code 426e-h).
19. Public park and recreational facilities at water resource development projects under the administrative jurisdiction of the Department of the Army (16 United States Code 460d and Federal Water Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
20. Payment to States of proceeds of lands acquired by the United States for flood control, navigation, and allied purposes (33 United States Code 701-c-3).
21. Grants of easements without consideration, or at a nominal or reduced consideration, on lands under the control of the Department of the Army at water resource development projects (33 United States Code 558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States Code 961; 40 United States Code 319).
22. Army Corps of Engineers assistance in the construction of small boat harbor proj-ects (33 United States Code 540 and 577, and 47 Stat. 42, Feb. 10, 1932).
23. Emergency bank protection works constructed by the Army Corps of Engineers for protection of highways, bridge approaches, and public works (33 United States Code 701r).
24. Assistance to States and local interests in the development of water supplies for municipal and industrial purposes in connection with Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43 United States Code 390b).
25. Army Corps of Engineers contracts for remedial works under authority of section 111 of Act of July 3, 1958 (33 United States Code 633).
20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
The purpose of these Title IX regulations is to effectuate Title IX of the Education Amendments of 1972, as amended (except sections 904 and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations. The effective date of these Title IX regulations shall be September 29, 2000.
As used in these Title IX regulations, the term:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
(1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees, but that may or may not offer academic study.
(a)
(b)
(c)
(1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
(d)
(a)
(b)
(2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
(c)
(2) The designated agency official will specify the extent to which such assurances will be required of the applicant's or recipient's subgrantees, contractors, subcontractors, transferees, or successors in interest.
If a recipient sells or otherwise transfers property financed in whole or in part with Federal financial assistance to a transferee that operates any education program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government, both the transferor and the transferee shall be deemed to be recipients, subject to the provisions of §§ 196.205 through 196.235(a).
(a)
(b)
(c)
The obligation to comply with these Title IX regulations is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex.
(a)
(b)
(a)
(2) Each recipient shall make the initial notification required by paragraph (a)(1) of this section within 90 days of September 29, 2000 or of the date these Title IX regulations first apply to such recipient, whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and
(ii) Memoranda or other written communications distributed to every student and employee of such recipient.
(b)
(2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by these Title IX regulations.
(c)
Except as provided in §§ 196.205 through 196.235(a), these Title IX regulations apply to every recipient and to each education program or activity operated by such recipient that receives Federal financial assistance.
(a)
(b)
These Title IX regulations do not apply to an educational institution whose primary purpose is the training of individuals for a military service of the United States or for the merchant marine.
(a)
(b)
(c)
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by these Title IX regulations.
(b)
(c)
(d)
(e)
(a)
(1) Admitted students of only one sex as regular students as of June 23, 1972; or
(2) Admitted students of only one sex as regular students as of June 23, 1965, but thereafter admitted, as regular students, students of the sex not admitted prior to June 23, 1965.
(b)
(a)
(b)
(1) State the name, address, and Federal Interagency Committee on Education Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit admits students of both sexes as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as practicable each obstacle so identified and indicate the schedule for taking these steps and the individual directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan.
(c)
(d)
(a) This section, which applies to all provisions of these Title IX regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
(2) Any program or activity of a secondary school or educational institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational institution or in an education program or activity, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided to students of the other sex;
(4) Any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant based upon a combination of factors related to the individual's personal appearance, poise, and talent. The pageant, however, must comply with other nondiscrimination provisions of Federal law.
(c)
(1) All of the operations of any entity described in paragraphs (c)(1)(i) through (iv) of this section, any part of which is extended Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title 20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(
(
(B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(iv) Any other entity that is established by two or more of the entities described in paragraphs (c)(1)(i), (ii), or (iii) of this section.
(2)(i)
(ii) For example, all of the operations of a college, university, or other postsecondary institution, including but not limited to traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities are part of a “program or activity” subject to these Title IX regulations if the college, university, or other institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
(2) Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of this section, no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, employment, or other educational program or activity operated by a recipient that receives Federal financial assistance because such individual has sought or received, or is seeking, a legal abortion, or any benefit or service related to a legal abortion.
(a)
(b)
(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission that has a disproportionately adverse effect on persons on the
(c)
(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice that so discriminates or excludes;
(3) Subject to § 196.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
A recipient to which §§ 196.300 through 196.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 196.300 through 196.310.
(a)
(b)
(a)
(b)
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c)
(d)
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.
(a)
(b)
(2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c)
(2)(i) A recipient which, through solicitation, listing, approval of housing, or otherwise, assists any agency, organization, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that provided to students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency, organization,
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
(a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
(5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.
A recipient that is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools.
(a)
(b)
(c)
(a)
(1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient's students in a manner that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b)
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
(c)
(2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 196.450.
(a)
(1) Shall assure itself that such employment is made available without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or person that discriminates on the basis of sex in its employment practices.
(b)
Subject to § 196.235(d), in providing a medical, hospital, accident, or life insurance benefit, service, policy, or plan to any of its students, a recipient shall not discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a manner that would violate §§ 196.500 through 196.550 if it were provided to employees of the recipient.
(a)
(b)
(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation as long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section, shall ensure that the separate portion is comparable to that offered to non-pregnant students.
(4) Subject to § 196.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.
(a)
(b)
(c)
(i) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d)
Nothing in these Title IX regulations shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
(a)
(2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way that could adversely affect any applicant's or employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by §§ 196.500 through 196.550, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity that admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of these Title IX regulations.
(b)
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, transfer, layoff, termination, application of nepotism policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in compensation;
(4) Job assignments, classifications, and structure, including position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition assistance, selection for sabbaticals and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational programs; and
(10) Any other term, condition, or privilege of employment.
A recipient shall not administer or operate any test or other criterion for any employment opportunity that has a disproportionately adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.
(a)
(b)
A recipient shall not make or enforce any policy or practice that, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements that classify persons on the basis of sex, unless sex is a bona fide occupational qualification for the positions in question as set forth in § 196.550.
(a)
(b)
(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan that does not provide for equal periodic benefits for members of each sex and for equal contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan that establishes different optional or compulsory retirement ages based on sex or that otherwise discriminates in benefits on the basis of sex.
(a)
(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
(b)
(c)
(d)
(a)
(b)
A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job in question.
(a)
(b)
A recipient may take action otherwise prohibited by §§ 196.500 through 196.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action
Within 60 days of September 29, 2000, each Federal agency that awards Federal financial assistance shall publish in the
The investigative, compliance, and enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”) are hereby adopted and applied to these Title IX regulations. These procedures may be found at 32 CFR 195.7 through 195.12.
5 U.S.C. 301; 10 U.S.C. chapter 55.
(a)
(b)
(2)
(c)
(ii)
(2)
(ii)
(iii)
(iv)
(A) Supervise and administer the programs and missions to:
(
(
(
(
(
(
(
(
(
(
(
(
(
(B) Direct and control of the office, activities, and functions of OCHAMPUS Europe (OCHAMPUSEUR).
The Director, OCHAMPUS, may also establish similar offices for OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific (OCHAMPUSPAC).
(C) Develop for issuance, subject to approval by the ASD(HA), such policies or regulations as required to administer and manage CHAMPUS effectively.
(v)
(d)
(e)
(f)
(1)
(ii)
(2)
(ii)
(g)
(h)
(i)
(j)
(k)
(l)
(1)
(2)
(m)
(n)
(o)
(2)
(3)
(p)
(1)
(i)
(ii)
(2)
(3)
(4)
(5)
(q)
(r)
(a)
(b)
Technically, “Absent Treatment” is an obsolete term. The current Christian Science terminology is “treatment through prayer and spiritual means,” which is employed by an authorized Christian Science practitioner either with the beneficiary being present or absent. However, to be considered for coverage under CHAMPUS, the beneficiary must be present physically when a Christian Science service is rendered, regardless of the terminology used.
Unless a specific action is deemed gross and flagrant, a pattern of inappropriate practice will normally be required to find that abuse has occurred. Also, any practice or action that constitutes fraud, as defined by this part, would also be abuse.
Acupuncture is not covered by CHAMPUS.
There is no CHAMPUS benefit entitlement during any interim waiting period.
(ii) The authorized individual professional provider rendering the medical care is qualified to perform such medical services by reason of his or her training and education and is licensed or certified by the state where the service is rendered or appropriate national organization or otherwise meets CHAMPUS standards; and
(iii) The services are furnished economically. For purposes of this part, “economically” means that the services are furnished in the least expensive level of care or medical environment adequate to provide the required medical care regardless of whether or not that level of care is covered by CHAMPUS.
(1) Circumstances in which liability benefits are paid to an injured party only when the insured party's tortious acts are the cause of the injuries; and
(2) Uninsured and underinsured coverage, in which there is a third-party tortfeasor who caused the injuries (i.e., benefits are not paid on a no-fault basis), but the insured party is not the tortfeasor.
Services of chiropractors are not covered by CHAMPUS.
(i)
(ii)
(i) Caesarean delivery; hysterectomy.
(ii) Pregnancy terminating before expiration of 26 weeks, except a voluntary abortion.
(iii) False labor or threatened miscarriage.
(iv) Nephritis or pyelitis of pregnancy.
(v) Hyperemesis gravidarum.
(vi) Toxemia.
(vii) Aggravation of a heart condition or diabetes.
(viii) Premature rupture of membrane.
(ix) Ectopic pregnancy.
(x) Hemorrhage.
(xi) Other conditions as may be determined by the Director, OCHAMPUS, or a designee.
Also refer to §199.4(e)(7) of this part.
Staff consultations required by rules and regulations of the medical staff of a hospital or other institutional provider do not qualify as consultation.
(1) Can be rendered safely and reasonably by a person who is not medically skilled; or
(2) Is or are designed mainly to help the patient with the activities of daily living.
(1) Enrolling members, former members and their dependents, and
(2) Verifying members', former members' and their dependents' eligibility for health care benefits in the direct care facilities and for CHAMPUS.
(1) Providing support for the activities of daily living in the home is not available or is unsuitable; or
(2) Members of the patient's family are unwilling to provide the care.
(i) Medicaid.
(ii) Coverage specifically designed to supplement CHAMPUS benefits.
(iii) Entitlement to receive care from the Uniformed Services medical facilities;
(iv) Entitlement to receive care from Veterans Administration medical care facilities; or
(v) Part C of the Individuals with Disabilities Education Act for services and items provided in accordance with Part C of the IDEA that are medically or psychologically necessary in accordance with the Individual Family Service Plan and that are otherwise allowable under the CHAMPUS Basic Program or the Extended Care Health Option (ECHO).
(1) Can withstand repeated use;
(2) Is primarily and customarily used to serve a medical purpose; and
(3) Generally is not useful to an individual in the absence of an illness or injury.
(2) A referral relationship exists when a CHAMPUS beneficiary is sent, directed, assigned or influenced to use a specific CHAMPUS-authorized provider, or a specific individual or entity eligible to be a CHAMPUS-authorized provider.
(3) An accreditation relationship exists when a CHAMPUS-authorized accreditation organization evaluates for accreditation an entity that is an applicant for, or recipient of CHAMPUS-authorized provider status.
(1) Up to and including 28 hours per week of skilled nursing and home health aide services combined, provided on a less-than-daily basis;
(2) Up to 35 hours per week of skilled nursing and home health aide services combined that are provided on a less-than-daily basis, subject to review by managed care support contractors on a case-by-case basis, based upon documentation justifying the need for and reasonableness of such additional care; or
(3) Up to and including full-time (
Claims for eligible CHAMPUS beneficiaries whose sponsor is classified as MIA are processed as dependents of an active duty service member.
Services of a naturopath are not covered by CHAMPUS.
(1) Has directly or indirectly a 5 percent or more ownership interest in the entity; or
(2) Is the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured (in whole or in part) by the entity or any of the property or assets thereof, which whole or part interest is equal to or exceeds 5 percent of the total property and assets of the entity; or
(3) Is an officer or director of the entity if the entity is organized as a corporation; or
(4) Is a partner in the entity if the entity is organized as a partnership.
(1) Up to and including 28 hours per week of skilled nursing and home health aide services combined for less than eight hours per day; or
(2) Up to 35 hours per week of skilled nursing and home health aide services combined for less than eight hours per day subject to review by managed care support contractors on a case-by-case basis, based upon documentation justifying the need for and reasonableness of such additional care.
The fact that the U.S. Food and Drug Administration has approved a drug for testing on humans would not qualify it within this definition.
(1) 40 dB HL or greater in one or both ears when tested at 500, 1,000, 1,500, 2,000, 3,000, or 4,000Hz; or
(2) 26 dB HL or greater in one or both ears at any three or more of those frequencies; or
(3) A speech recognition score less than 94 percent.
(1) Develops process standards and outcome standards for health care delivery programs, or knowledge standards and skill standards for health care professional certification testing, using experts both from within and outside of the health care program area or individual specialty to which the standards are to be applied;
(2) Creates measurable criteria that demonstrate compliance with each standard;
(3) Publishes the organization's standards, criteria and evaluation processes so that they are available to the general public;
(4) Performs on-site evaluations of health care delivery programs, or provides testing of individuals, to measure the extent of compliance with each standard;
(5) Provides on-site evaluation or individual testing on a national or international basis;
(6) Provides to evaluated programs and tested individuals time-limited written certification of compliance with the organization's standards;
(7) Excludes certification of any program operated by an organization which has an economic interest, as defined in this section, in the accreditation organization or in which the accreditation organization has an economic interest;
(8) Publishes promptly the certification outcomes of each program evaluation or individual test so that it is available to the general public; and
(9) Has been found by the Director, OCHAMPUS, or designee, to apply standards, criteria, and certification processes which reinforce CHAMPUS provider authorization requirements and promote efficient delivery of CHAMPUS benefits.
(i) Well controlled studies of clinically meaningful endpoints, published in refereed medical literature.
(ii) Published formal technology assessments.
(iii) The published reports of national professional medical associations.
(iv) Published national medical policy organization positions; and
(v) The published reports of national expert opinion organizations.
(2) The hierarchy of reliable evidence of proven medical effectiveness, established by (1) through (5) of this paragraph, is the order of the relative weight to be given to any particular source. With respect to clinical studies, only those reports and articles containing scientifically valid data and published in the refereed medical and scientific literature shall be considered as meeting the requirements of reliable evidence. Specifically not included in the meaning of reliable evidence are reports, articles, or statements by providers or groups of providers containing only abstracts, anecdotal evidence or personal professional opinions. Also not included in the meaning of reliable evidence is the fact that a provider or a number of providers have elected to adopt a drug, device, or medical treatment or procedure as their personal treatment or procedure of choice or standard of practice.
(1) An indemnity supplemental insurance plan must meet all of the following criteria:
(i) It provides insurance coverage, regulated by state insurance agencies, which is available only to beneficiaries of CHAMPUS.
(ii) It is premium based and all premiums relate only to the CHAMPUS supplemental coverage.
(iii) Its benefits for all covered CHAMPUS beneficiaries are predominantly limited to non-covered services, to the deductible and cost-shared portions of the pre-determined allowable charges, and/or to amounts exceeding the allowable charges for covered services.
(iv) It provides insurance reimbursement by making payment directly to the CHAMPUS beneficiary or to the participating provider.
(v) It does not operate in a manner which results in lower deductibles or cost-shares than those imposed by law, or that waives the legally imposed deductibles or cost-shares.
(2) A supplemental insurance plan offered by a Health Maintenance Organization (HMO) must meet all of the following criteria:
(i) The HMO must be authorized and must operate under relevant provisions of state law.
(ii) The HMO supplemental plan must be premium based and all premiums must relate only to CHAMPUS supplemental coverage.
(iii) The HMO's benefits, above those which are directly reimbursed by CHAMPUS, must be limited predominantly to services not covered by CHAMPUS and CHAMPUS deductible and cost-share amounts.
(iv) The HMO must provide services directly to CHAMPUS beneficiaries through its affiliated providers who, in turn, are reimbursed by CHAMPUS.
(v) The HMO's premium structure must be designed so that no overall reduction in the amount of the beneficiary deductibles or cost-shares will result.
TRICARE is secondary payer to all third-party payers. Under limited circumstances described in § 199.8(c)(2) of this part, TRICARE payment may be authorized to be paid in advance of adjudication of the claim by certain third-party payers. TRICARE advance payments will not be made when a third-party provider is determined to be a primary medical insurer under § 199.8(c)(3) of this part.”
Unless the veteran is eligible for “retired pay,” “retirement pay,” or “retainer pay,” which refers to payments of a continuing nature and are payable at fixed intervals from the government for military service neither the veteran nor his or her dependents are eligible for benefits under CHAMPUS.
For
At 66 FR 45172, Aug. 28, 2001, § 199.2, was amended in part by revising the definition of “Director, OCHAMPUS”. However, because of inaccurate amendatory language, this amendment could not be incorporated.
(a)
(b)
(2)
(i)
(A) Must be unremarried; and
(B) Must not be covered by an employer-sponsored health plan; and
(C) Must have been married to a member or former member who performed at least 20 years of service which can be credited in determining
(D) Must not be eligible for Part A of Title XVIII of the Social Security Act (Medicare) except as provided in paragraphs (b)(3), (f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section; and
(E) Must not be the dependent of a NATO member;
(F) Must meet the requirements of paragraph (b)(2)(i)(F)(
(
(
(
(
(
(
(
(ii)
(A) A legitimate child; or
(B) An adopted child whose adoption has been legally completed on or before the child's twenty-first (21st) birthday; or
(C) A legitimate stepchild; or
(D) An illegitimate child of a
(E) An illegitimate child of a
(F) An illegitimate child of a
(G) An illegitimate child of a
(H) An individual who falls into one of the following classes:
(
Courses of education offered by institutions listed in the “Education Directory,” “Higher Education” or “Accredited Higher Institutions” issued periodically by the Department of Education meet the criteria approved by the Administering Secretary or the Secretary of Education. For determination of approval of courses offered by a foreign institution, by an institution not listed in either of the above directories, or by an institution not approved by a state agency pursuant to 38 U.S.C. chapters 34 and 35, a statement may be obtained from the Department of Education, Washington, D.C. 20202.
(
(
(
(
An institution of higher learning is a college, university, or similar institution, including a technical or business school, offering post-secondary level academic instruction that leads to an associate or higher degree, if the school is empowered by the appropriate State education authority under State law to grant an associate, or higher, degree. When there is no State law to authorize the granting of a degree, the school may be recognized as an institution of higher learning if it is accredited for degree programs by a recognized accrediting agency. The term also shall include a hospital offering educational programs at the post-secondary level regardless of whether the hospital grants a post-secondary degree. The term also shall include an educational institution that is not located in a State, that offers a course leading to a standard college degree, or the equivalent, and that is recognized as such by the Secretary of Education (or comparable official) of the country, or other jurisdiction, in which the institution is located (38 U.S.C. chapter 34, section 1661, and chapter 35, section 1701.
Courses of education offered by institutions listed in the “Education Directory,” “Higher Education” or “Accredited Higher Institutions” issued periodically by the Department of Education meet the criteria approved by the Administering Secretary or the Secretary of Education. For determination of approval of courses offered by a foreign institution, by an institution not listed in either of the above directories, or by an institution not approved by a state agency pursuant to chapters 34 and 35 of 38 U.S.C., a statement may be obtained from the Department of Education, Washington, D.C. 20202.
(
(
(iii)
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(3)
(i) Medicare eligible, who is:
(A) 65 years of age or older; and
(B) Entitled to Medicare Part A; and
(C) Enrolled in Medicare Part B, except for a person who attained age 65 prior to April 1, 2001, is not required to enroll in Part B; and
(ii) Otherwise qualified under one of the following categories:
(A) A retired uniformed service member who is entitled to retired or retainer pay, or equivalent pay including survivors who are annuitants; or
(B) A dependent of a member of the uniformed services described in one of the following:
(
(
(
(
Dependent under Section 711 of the National Defense Authorization Act for Fiscal Year 2001 includes spouse, unremarried widow/widower, child, parent/parent-in-law, unremarried former spouse, and unmarried person in the legal custody of a member or former member, as those terms of dependency are defined and periods of eligibility are set forth in 10 U.S.C. 1072(2).
(4)
(ii)
(iii)
(5)
(ii)
(iii)
(A) The date of issuance of the order referred to in paragraph (b)(5)(i) of this section; or
(B) 90 days before the date on which the period of active duty is to begin.
(iv)
(c)
(2) Beginning dates of eligibility for each class of spouse (
(i) A spouse of a member for:
(A) Medical benefits authorized by the Dependents' Medical Care Act of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1, 1966;
(C) Inpatient medical benefits under the Basic Program
(ii) A spouse of a former member:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) A former spouse:
(A) For medical benefits under the Basic Program, dates of beginning eligibility are as indicated for each category of eligible former spouse identified within paragraph (b)(2)(i) of this section.
(B) Ineligible for benefits under the Extended Care Health Option.
(3) Beginning dates of eligibility for spouses who are victims of abuse (
(i) An abused spouse meeting the requirements of paragraph (b)(2)(iii)(A)(
(A) For medical and dental care for problems associated with the physical or emotional abuse under the Basic Program for a period of up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for the period that the spouse is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(C) For medical and dental care for problems associated with the physical or emotional abuse under the Extended Care Health Option for a period up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5 for the period that the spouse is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused spouse meeting the requirements of paragraphs (b)(2)(iii)(A)(
(A) For all benefits under the CHAMPUS Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(4) Beginning dates of eligibility for spouses of certain deceased reservists,
(i) A spouse meeting the requirements of paragraph (b)(2)(i) of this section, including an eligible former spouse:
(A) For benefits under the Basic Program, November 14, 1986.
(B) Ineligible for benefits under the Extended Care Health Option.
(ii) An abused spouse of certain deceased reservists, meeting the requirements of paragraphs (b)(2)(iii) of this section, including an eligible former spouse,
(A) For benefits under the Basic Program, November 14, 1986.
(B) For benefits under the Extended Care Health Option, November 14, 1986.
(iii) An abused spouse of certain deceased reservists, including an eligible former spouse, meeting the requirements of paragraphs (b)(2)(iii) of this section:
(A) For benefits under the Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(5) Beginning dates of eligibility for each class of dependent children, (
(i) Legitimate child, adopted child, or legitimate stepchild of a
(A) Medical benefits authorized by the Dependents' Medical Care Act of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1, 1966;
(C) Inpatient medical benefits under the Basic Program
(ii) Legitimate child, adopted child or legitimate stepchild of
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) Illegitimate child of a male or female
(A) All benefits for which otherwise entitled, August 31, 1972.
(B) Extended Care Health Option benefits limited to dependent children of
(iv) Illegitimate child of:
(A) A male member or former member whose paternity
(B) A female member or former member who resides with, or in a home provided by the member or former member, or who was residing in a home provided by the member or former member at the time of the member's or former member's death, and who is or continues to be dependent on the member for over one-half of his or her support, or was so dependent on the member or former member at the time of death;
(C) A spouse of a member or former member who resides with or in a home provided by the member or former member, or the parent who is the spouse of the member or former member or was the spouse of a member or former member at the time of death, and who is and continues to be dependent upon the member or former member for over one-half of his or her support, or was so dependent on the member or former member at the time of death; for:
(
(
(6) Beginning dates of eligibility for children of certain deceased reservists who meet the requirements of paragraph (b)(2)(ii)(H)(
(i) Benefits under the Basic program, November 14, 1986.
(ii) Not eligible for benefits under the Extended Care Health Option.
(7) Beginning dates of eligibility for children who are victims of abuse,
(i) An abused child meeting the requirements of paragraph (b)(
(A) Medical and dental care for problems associated with the physical or emotional abuse under the Basic Program for a period of up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for the period that the child is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(C) Medical and dental care for problems associated with the physical or emotional abuse under the Extended Care Health Option for a period up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5 for the period that the child is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused child meeting the requirements of paragraphs (b)(2)(iii)(A)(
(A) For all benefits under the CHAMPUS Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(8) Beginning dates of eligibility for incapacitated children who meet the
(i) All benefits for which otherwise entitled, October 23, 1992.
(ii) Extended Care Health Option benefits limited to children of
(9) Beginning dates of eligibility for a child who meets the requirements of paragraph (b)(2)(ii)(H)(
(i) Has been placed in custody by a court:
(A) All benefits for which entitled, July 1, 1994.
(B) Extended Care Health Option benefits limited to children of
(ii) Has been placed in custody by a recognized adoption agency:
(A) All benefits for which entitled, October 5, 1994.
(B) Extended Care Health Option benefits limited to children of
(10) Beginning dates of eligibility for a retiree for:
(i) Medical benefits under the Basic Program January 1, 1967.
(ii) Retirees and their dependents are not eligible for benefits under the Extended Care Health Option.
(d)
No CHAMPUS eligibility arises as the result of the marriage of two active duty members.
(e)
(i) A member who is involuntarily separated from active duty.
(ii) A member of a Reserve component who is separated from active duty to which called or ordered in support of a contingency operation if the active duty is active duty for a period of more than 30 consecutive days.
(iii) A member who is separated from active duty for which the member is involuntarily retained under 10 U.S.C. 12305 in support of a contingency operation; or
(iv) A member who is separated from active duty served pursuant to a voluntary agreement of the member to remain on active duty for a period of less than 1 year in support of a contingency operation.
(2) A spouse (as described in paragraph (b)(2)(i) of this section except former spouses) and child (as described in paragraph (b)(2)(ii) of this section) of a member described in paragraph (e)(1) of this section is also eligible for TAMP benefits under TRICARE.
(3) TAMP benefits under TRICARE begin on the day after the member is separated from active duty, and, if such separation occurred on or after November 6, 2003, and end 180 days after such date. TRICARE benefits available to both the member and eligible family members are generally those available to family members of members of the uniformed services under this Part. Each branch of service will determine eligibility for its members and eligible
(f)
(1)
(ii) When an active duty member is placed on desertion status (eligibility is reinstated when the active duty member is removed from desertion status and returned to military control).
A member serving a sentence of confinement in conjunction with a sentence of punitive discharge is still considered on active duty until such time as the discharge is executed.
(2)
(ii) A retiree also loses eligibility when no longer entitled to retired, retainer, or equivalent pay.
A retiree who waives his or her retired, retainer or equivalent pay is still considered a retiree for the purposes of CHAMPUS eligibility.
(3)
An unadopted stepchild loses eligibility as of 12:01 a.m. of the day following the day the divorce becomes final.
(ii) Annulment, except for certain classes of former spouse as provided in paragraph (b)(2)(i) of this section and the member or former member's
An unadopted stepchild loses eligibility as of 12:01 a.m. of the day following the day the annulment becomes final.
(iii) Adoption, except for adoptions occurring after the death of a member or former member.
(iv) Marriage of a child, except when the marriage is terminated by death, divorce, or annulment before the child is 21 or 23 if an incapacitated child as provided in paragraph (b)(2)(ii)(H)(
(v) Marriage of a widow or widower, except for the child of the widow or widower who was the stepchild of the deceased member or former member at the time of death. The stepchild continues CHAMPUS eligibility as other classes of dependent children.
(vi) Attainment of entitlement to hospital insurance benefits (Part A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section. (This also applies to individuals living outside the United States where Medicare benefits are not available.)
(vii) Attainment of age 65, except for dependents of active duty members, beneficiaries not entitled to part A of Medicare, beneficiaries entitled to Part A of Medicare who have enrolled in Part B of Medicare, and as provided in paragraph (b)(3) of this section. For those who do not retain CHAMPUS, CHAMPUS eligibility is lost at 12:01 a.m. on the first day of the month in which the beneficiary becomes entitled to Medicare.
If the person is not eligible for Part A of Medicare, he or she must file a Social Security Administration, “Notice of Disallowance” certifying to that fact with the Uniformed Service responsible for the issuance of his or her identification card so a new card showing CHAMPUS eligibility can be issued. Individuals entitled only to supplementary medical insurance (Part B) of Medicare, but not Part A, or Part A through the Premium HI provisions (provided for under the 1972 Amendments to the Social Security Act) retain eligibility under CHAMPUS (refer to § 199.8 for additional information when a double coverage situation is involved).
(viii) End stage renal disease. All beneficiaries, except dependents of active duty members, lose their CHAMPUS eligibility when Medicare coverage becomes available to a person because of chronic renal disease unless
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions of 42 U.S.C. 426-1(a);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS eligibility through the Defense Enrollment Eligibility Reporting System (DEERS).
(ix) Individuals with certain disabilities. Each case relating to Medicare eligibility resulting from being disabled requires individual investigation. All beneficiaries except dependents of active duty members lose their CHAMPUS eligibility when Medicare coverage becomes available to a disabled person unless the following conditions have been met. CHAMPUS eligibility will continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions of 42 U.S.C. 426(b)(2);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS eligibility through the Defense Enrollment Eligibility Reporting System (DEERS).
(x) Disabled students, that is children age 21 or 22, who are pursuing a full-time course of higher education and who, either during the school year or between semesters, suffer a disabling illness or injury with resultant inability to resume attendance at the institution remain eligible for CHAMPUS medical benefits for 6 months after the disability is removed or until the student passes his or her 23rd birthday, whichever occurs first. However, if recovery occurs before the 23rd birthday and there is resumption of a full-time course of higher education, CHAMPUS benefits can be continued until the 23rd birthday. The normal vacation periods during an established school year do not change the eligibility status of a dependent child 21 or 22 years old in a full time student status. Unless an incapacitating condition existed before, and at the time of, a dependent child's 21st birthday, a dependent child 21 or 22 years old in student status
(g)
(1)
(2)
(h)
(i)
(j)
(2) Ineligibility for CHAMPUS benefits may be presumed in the absence of prescribed eligibility evidence in the DEERS file.
(3) The Director, OCHAMPUS, shall issue guidelines as necessary to implement the provisions of this section.
(a)
(1)(i)
(ii)
(2)
(3)
(4)
(5)
(i) Disclosure of such information is authorized specifically by the beneficiary;
(ii) Disclosure is necessary to permit authorized governmental officials to investigate and prosecute criminal actions, or
(iii) Disclosure is authorized or required specifically under the terms of the Privacy Act or Freedom of Information Act (refer to § 199.1(m) of this part).
(6)
(7)
(8)
(9)
(i)
(A) The ASD(HA) is responsible for issuing rules and regulations regarding Nonavailability Statements.
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE Prime, an NAS is required for services in connection with nonemergency hospital inpatient mental health care if such services are available at a military treatment facility (MTF) located within a 40-mile radius of the residence of the beneficiary, except that a NAS is not required for services otherwise available at an MTF located within a 40-mile radius of the beneficiary's residence when another insurance plan or program provides the beneficiary's primary coverage for the services. This requirement for an NAS does not apply to beneficiaries enrolled in TRICARE Prime, even when those beneficiaries use the point-of-service option under § 199.17(n)(3).
(ii)
(iii)
(iv)
(v)
(vi) In the case of any service subject to an NAS requirement under paragraph (a)(9) of this section and also subject to a preadmission (or other pre-service) authorization requirement under § 199.4 or § 199.15, the administrative processes for the NAS and pre-service authorization may be combined.
(vii) With the exception of maternity services, the Assistant Secretary of Defense for Health Affairs (ASD(HA)) may require an NAS prior to TRICARE cost-sharing for additional services from civilian sources if such services are to be provided to a beneficiary who lives within a 40-mile catchment area of an MTF where such services are available and the ASD(HA):
(A) Demonstrates that significant costs would be avoided by performing specific procedures at the affected MTF or MTFs; or
(B) Determines that a specific procedure must be provided at the affected MTF or MTFs to ensure the proficiency levels of the practitioners at the MTF or MTFs; or
(C) Determines that the lack of NAS data would significantly interfere with TRICARE contract administration; and
(D) Provides notification of the ASD(HA)'s intent to require an NAS under this authority to covered beneficiaries who receive care at the MTF or MTFs that will be affected by the decision to require an NAS under this authority; and
(E) Provides at least 60-day notification to the Committees on Armed Services of the House of Representatives
(10) [Reserved]
(11)
(12)
(ii)
(B) In cases of noncompliance with preauthorization requirements, a payment reduction shall be made in accordance with § 199.15(b)(4)(iii).
(C) For purposes of paragraph (a)(12)(ii)(B) of this section, a day of services without the appropriate preauthorization is any day of services provided prior to:
(
(
(D) Services for which payment is disallowed under paragraph (a)(12)(ii)(B) of this section may not be billed to the patient (or the patient's family).
(E) Preadmission authorization for inpatient mental health services is not required in the following cases:
(
(
(
(13)
(b)
(i)
(ii)
(iii)
(iv)
(v)
(2)
(ii)
(iii)
(iv)
(v)
(vi)
If durable medical equipment is to be used on an outpatient basis or continued in outpatient status after use as an inpatient, benefits will be provided as set forth in paragraph (d) of this section and cost-sharing will be on an outpatient basis (refer to paragraph (a)(4) of this section).
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(3)
(ii)
(iii)
(iv)
If the durable medical equipment is to be used on an outpatient basis or continued in outpatient status after use as an inpatient, benefits will be provided as set forth in paragraph (d) of this section, and cost-sharing will be on an outpatient basis (refer to paragraph (a)(4) of this section).
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(A) Nursing care provided by or under the supervision of a registered professional nurse;
(B) Bed and board in connection with the furnishing of such nursing care;
(C) Physical or occupational therapy or speech-language pathology services furnished by the SNF or by others under arrangements with them by the facility;
(D) Medical social services;
(E) Such drugs, biological, supplies, appliances, and equipment, furnished for use in the SNF, as are ordinarily furnished for the care and treatment of inpatients;
(F) Medical services provided by an intern or resident-in-training of a hospital with which the facility has such an agreement in effect; and
(G) Such other services necessary to the health of the patients as are generally provided by SNFs, or by others under arrangements with them made by the facility.
(xv)
(4)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(A) Patient has a diagnosable psychiatric disorder.
(B) Patient exhibits patterns of disruptive behavior with evidence of disturbances in family functioning or social relationships and persistent psychological and/or emotional disturbances.
(C) RTC services involve active clinical treatment under an individualized treatment plan that provides for:
(
(
(
(
(D) Unless therapeutically contraindicated, the family and/or guardian must actively participate in the continuing care of the patient either through direct involvement at the facility or geographically distant family therapy. (In the latter case, the treatment center must document that there has been collaboration with the family and/or guardian in all reviews.)
(viii)
(B) The timetable for development of the individualized treatment plan shall be as follows:
(
(
(
(C) The elements of the individualized treatment plan must include:
(
(
(
(
(
(
(D) Preauthorization requests should be made not fewer than two business days prior to the planned admission. In general, the decision regarding preauthorization shall be made within one business day of receipt of a request for preauthorization, and shall be followed with written confirmation. Preauthorizations are valid for the period of time, appropriate to the type of care involved, stated when the preauthorization is issued. In general, preauthorizations are valid for 30 days.
(ix)
(5)
(B)
(
(
(
(
(C)
(D)
(ii)
(iii)
(iv)
(v)
(A) They represent a cost to the facility rendering treatment;
(B) They are furnished to a patient receiving treatment, and are related directly to that treatment; and
(C) They are ordinarily furnished by the facility for the care and treatment of inpatients.
(vi)
(A) If ordinarily furnished by the facility for the care and treatment of patients; and
(B) If specifically related to, and in connection with, the condition for which the patient is being treated; and
(C) If ordinarily furnished to a patient for use in the hospital or other authorized institution (except in the case of a temporary or disposable item); and
(D) Use of durable medical equipment is limited to those items provided while the patient is an inpatient. If such equipment is provided for use on an outpatient basis, the provisions of paragraph (d) of this section apply.
(vii)
(viii)
(6)
(i)
(A) Patient poses a serious risk of harm to self and/or others.
(B) Patient is in need of high dosage, intensive medication or somatic and/or psychological treatment, with potentially serious side effects.
(C) Patient has acute disturbances of mood, behavior, or thinking.
(ii)
(A) The patient must be at immediate risk of serious harm to self and or others based on a psychiatric evaluation performed by a physician (or other qualified mental health professional with hospital admission authority); and
(B) The patient requires immediate continuous skilled observation and treatment at the acute psychiatric level of care.
(iii)
(B) The timetable for development of the individualized treatment plan shall be as follows:
(
(
(
(C) The elements of the individualized treatment plan must include:
(
(
(
(
(
(
(D) The request for preauthorization must be received by the reviewer designated by the Director, OCHAMPUS prior to the planned admission. In general, the decision regarding preauthorization shall be made within one business day of receipt of a request for preauthorization, and shall be followed with written confirmation. In the case of an authorization issued after an admission resulting from approval of a request made prior to the admission, the effective date of the certification shall be the date of the receipt of the request. However, if the request on which the approved authorization is based was made after the admission (and the case was not an emergency admission), the effective date of the authorization shall be the date of approval.
(E) Authorization prior to admission is not required in the case of a psychiatric emergency requiring an inpatient acute level of care, but authorization for a continuation of services must be obtained promptly. Admissions resulting from a bona fide psychiatric emergency should be reported within 24 hours of the admission or the next business day after the admission, but must be reported to the Director, OCHAMPUS or a designee, within 72 hours of the admission. In the case of an emergency admission authorization resulting from approval of a request made within 72 hours of the admission, the effective date of the authorization shall be the date of the admission. However, if it is determined that the case was not a bona fide psychiatric emergency admission (but the admission can be authorized as medically or psychologically necessary), the effective date of the authorization shall be the date of the receipt of the request.
(iv)
(7)
(i)
(ii)
(iii)
(8)
(ii)
(B) The criteria for waiver shall be those set forth in paragraph (b)(4)(vii) of this section. In applying those criteria to the context of waiver request reviews, special emphasis is placed on assuring that the record documents that:
(
(
(
(
(C) Where family or social issues complicate transfer to a lower level of intensity, the RTC is responsible for determining and arranging the supportive and adjunctive resources required to permit appropriate transfer. If the RTC fails adequately to meet this responsibility, the existence of such family or social issues shall be an inadequate basis for a waiver of the benefit limit.
(D) It is the responsibility of the patient's primary care provider to establish, through actual documentation from the medical record and other sources, that the conditions for waiver exist.
(iii) RTC day limits do not apply to services provided under the Program for Persons with Disabilities (§ 199.5) or services provided as partial hospitalization care.
(9)
(A) Adults, aged 19 and over—30 days in a fiscal year or 30 days in an admission (excluding days provided prior to October 1, 1991).
(B) Children and adolescents, aged 18 and under—45 days in a fiscal year or 45 days in an admission (excluding days provided prior to October 1, 1991).
(ii) It is the patient's age at the time of admission that determines the number of days available.
(iii)
(B) The criteria for waiver of the acute inpatient limit shall be those set forth in paragraph (b)(6)(i) of this section. In applying those criteria in the context of waiver request review, special emphasis is placed on determining whether additional days of acute inpatient mental health care are medically/psychologically necessary to complete necessary elements of the treatment plan prior to implementing appropriate discharge planning. A waiver may also be granted in cases in which a patient exhibits well-documented new symptoms, maladaptive behavior, or medical complications which have appeared in the inpatient setting requiring a significant revision to the treatment plan.
(C) The clinician responsible for the patient's care is responsible for documenting that a waiver criterion has been met and must establish an estimated length of stay beyond the date of the inpatient limit. There must be evidence of a coherent and specific plan for assessment, intervention and reassessment that reasonably can be accomplished within the time frame of the additional days of coverage requested under the waiver provision.
(D) For patients in care at the time the inpatient limit is reached, a waiver must be requested prior to the limit. For patients being readmitted after having received 30 or 45 days in the fiscal year, the waiver review will be conducted at the time of the preadmission authorization.
(iv) Acute care day limits do not apply to services provided under the Program for Persons with Disabilities (§ 199.5) or services provided as partial hospitalization care.
(10)
(i)
(ii)
(A) The patient is suffering significant impairment from a mental disorder (as defined in § 199.2) which interferes with age appropriate functioning.
(B) The patient is unable to maintain himself or herself in the community, with appropriate support, at a sufficient level of functioning to permit an adequate course of therapy exclusively on an outpatient basis (but is able, with appropriate support, to maintain a basic level of functioning to permit partial hospitalization services and presents no substantial imminent risk of harm to self or others).
(C) The patient is in need of crisis stabilization, treatment of partially stabilized mental health disorders, or services as a transition from an inpatient program.
(D) The admission into the partial hospitalization program is based on the development of an individualized diagnosis and treatment plan expected to be effective for that patient and permit treatment at a less intensive level.
(iii)
(iv)
(v)
(A) the criteria for waiver are set forth in paragraph (b)(10)(ii) of this section. In applying these criteria in the context of waiver request review, special emphasis is placed on determining whether additional days of partial hospitalization are medically/psychologically necessary to complete essential elements of the treatment plan prior to discharge. Consideration is also given in cases in which a patient exhibits well-documented new symptoms or maladaptive behaviors which have appeared in the partial hospitalization setting requiring significant revisions to the treatment plan.
(B) The clinician responsible for the patient's care is responsible for documenting the need for additional days and must establish an estimated length of stay beyond the date of the 60-day limit. There must be evidence of a coherent and specific plan for assessment, intervention and reassessment that reasonably can be accomplished within the time frame of the additional days of coverage requested under the waiver provisions.
(C) For patients in care at the time the partial hospitalization program limit is reached, a waiver must be requested prior to the limit. For patients being preadmitted after having received 60 days in the fiscal year, the waiver review will be conducted at the time of the preadmission authorization.
(vi)
(A)
(B)
(C)
(D)
(vii)
(viii)
(ix)
(x)
(xi)
(c)
(i)
(ii)
(2)
(i)
The Director, OCHAMPUS, or a designee, shall determine such additional procedures that may fall within the intent of this definition of “surgery.”
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
A separate professional charge for the oral administration of approved antineoplastic drugs is not covered.
(xv) [Reserved]
(xvi)
(3)
(i)
(A) One hundred (100) percent of the CHAMPUS-determined allowable charge for the major surgical procedure (the procedure for which the greatest amount is payable under the applicable reimbursement method); and
(B) Fifty (50) percent of the CHAMPUS-determined allowable charge for each of the other surgical procedures;
(C) Except that:
(
(
(
(ii)
This provision is not meant to imply that when extra time and special effort are required due to postsurgical or postdelivery complications, the attending physician may not request special consideration for a higher than usual charge.
(iii)
(A) If the surgical assistance occurred in a hospital that has a residency program in a specialty appropriate to the surgery;
(B) If the surgery was performed by a team of surgeons;
(C) If there were multiple surgical assistants; or
(D) If the surgical assistant was a partner of or from the same group of practicing physicians as the attending surgeon.
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(A)
(
(
(
(
(
(
(
(
(B)
(
(C)
(D)
(x)
(A) The services are prescribed and monitored by a physician;
(B) The purpose of the prescription is to reduce the disabling effects of an illness, injury, or neuromuscular disorder; and
(C) The prescribed treatment increases, stabilizes, or slows the deterioration of the beneficiary's ability to perform specified purposeful activity in the manner, or within the range considered normal, for a human being.
(xi)
(A) The following services are covered when required as a part of the specific well-child care program and when rendered by the attending pediatrician, family physician, certified nurse practitioner, or certified physician assistant.
(
(
(
(
(
(
(
(
(
(
(
(
(B) Additional services or visits required because of specific findings or because the particular circumstances of the individual case are covered if medically necessary and otherwise authorized for benefits under CHAMPUS.
(C) The Deputy Assistant Secretary of Defense, Health Services Financing, will determine when such services are separately reimbursable apart from the health supervision visit.
(xii) [Reserved]
(xiii)
(A)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(d)
(2)
(3)
(ii)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(C)
(D)
(
(
(
(E)
(iii)
Generally, the allowable charge of a medical supply item will be under $100. Any item over this amount must be reviewed to determine whether it would not qualify as a DME item. If it is, in fact, a medical supply item and does not represent an excessive charge, it can be considered for benefits under paragraph (d)(3)(iii) of this section.
(iv)
(v)
The inpatient cost-sharing provisions for ambulance transfers only apply to otherwise covered transfers between hospitals, i.e., acute care, general, and special hospitals; psychiatric hospitals; and long-term hospitals.
(A) Ambulance service cannot be used instead of taxi service and is not payable when the patient's condition would have permitted use of regular private transportation; nor is it payable when transport or transfer of a patient is primarily for the purpose of having the patient nearer to home, family, friends, or personal physician. Except as described in paragraph (d)(3)(v)(C)(
(B) Vehicles such as medicabs or ambicabs function primarily as public passenger conveyances transporting patients to and from their medical appointments. No actual medical care is provided to the patients in transit. These types of vehicles do not qualify for benefits for the purpose of CHAMPUS payment.
(C) Except as described in paragraph (d)(3)(v)(C)(1)(
(
(
(vi)
(A) Drugs administered by a physician or other authorized individual professional provider as an integral part of a procedure covered under paragraph (b) or (c) of this section (such as chemotherapy) are not covered under this subparagraph inasmuch as the benefit for the institutional services or the professional services in connection with the procedure itself also includes the drug used.
(B) CHAMPUS benefits may not be extended for drugs not approved by the U.S. Food and Drug Administration for commercial marketing. Drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be covered under CHAMPUS as if FDA approved.
(vii) Prosthetics, prosthetic devices, and prosthetic supplies, as determined by the Secretary of Defense to be necessary because of significant conditions resulting from trauma, congenital anomalies, or disease. Additionally, the following are covered:
(A) Any accessory or item of supply that is used in conjunction with the device for the purpose of achieving therapeutic benefit and proper functioning;
(B) Services necessary to train the recipient of the device in the use of the device;
(C) Repair of the device for normal wear and tear or damage;
(D) Replacement of the device if the device is lost or irreparably damaged
(viii)
(e)
(2)
Covered abortion services are limited to medical services or supplies only for the single circumstance outlined above and do not include abortion counseling or referral fees. Payment is not allowed for any services involving preparation for, or normal followup to, a noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue guidelines describing the policy on abortion.
(3)
(i)
(
(
(
(
(B)
(
(
(
(
(ii)
(A)
(
(
(
(
(
(B)
(
(
(4)
(i)
(ii)
(A)
(B)
(C)
(iii)
(B)
(iv)
(v)
(A) Active treatment has taken place during the period of the benefit limit and substantial progress has been made according to the plan of treatment.
(B) Further progress has been delayed due to the complexity of the illness.
(C) Specific evidence has been presented to explain the factors that interfered with further treatment progress during the period of the benefit limit.
(D) The waiver request includes specific time frames and a specific plan of treatment which will complete the course of treatment.
(5)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B) [Reserved]
(ii)
(6)
(i)
(A) Eyeglasses or lenses that perform the function of the human lens, lost as a result of intraocular surgery or ocular injury or congenital absence.
Notwithstanding the general requirement for U.S. Food and Drug Administration approval of any surgical implant set forth in paragraph (d)(3)(vii) of this section, intraocular lenses are authorized under CHAMPUS if they are either approved for marketing by FDA or are subject to an investigational device exemption.
(B) “Pinhole” glasses prescribed for use after surgery for detached retina.
(C) Lenses prescribed as “treatment” instead of surgery for the following conditions:
(
(
(
(
(ii)
(7)
(8)
If a surgical procedure primarily restores function, whether or not there is also a concomitant improvement in physical appearance, the surgical procedure does not fall within the provisions set forth in this paragraph (e)(8).
(i)
(A) Correction of a congenital anomaly; or
(B) Restoration of body form following an accidental injury; or
(C) Revision of disfiguring and extensive scars resulting from neoplastic surgery.
(D) Reconstructive breast surgery following a medically necessary mastectomy performed for the treatment of carcinoma, severe fibrocystic disease, other nonmalignant tumors or traumatic injuries.
(E) Penile implants and testicular prostheses for conditions resulting from organic origins (i.e., trauma, radical surgery, disease process, for correction of congenital anomaly, etc.). Also, penile implants for organic impotency.
Organic impotence is defined as that which can be reasonably expected to occur following certain diseases, surgical procedures, trauma, injury, or congenital malformation. Impotence does not become organic because of psychological or psychiatric reasons.
(F) Generally, benefits are limited to those cosmetic, reconstructive, or plastic surgery procedures performed no later than December 31 of the year following the year in which the related accidental injury or surgical trauma occurred, except for authorized postmastectomy breast reconstruction for which there is no time limitation between mastectomy and reconstruction. Also, special consideration for exception will be given to cases involving children who may require a growth period.
(ii)
(B) Cosmetic, reconstructive, or plastic surgery procedures performed primarily for psychological reasons or as a result of the aging process also are excluded.
(C) Procedures performed for elective correction of minor dermatological blemishes and marks or minor anatomical anomalies also are excluded.
(iii)
(iv)
(A) Any procedure performed for personal reasons to improve the appearance of an obvious feature or part of the body that would be considered by an average observer to be normal and acceptable for the patient's age or ethnic or racial background.
(B) Cosmetic, reconstructive, or plastic surgical procedures that are justified primarily on the basis of a psychological or psychiatric need.
(C)
(D) Face lifts and other procedures related to the aging process.
(E)
(F) Panniculectomy; body sculpture procedures.
(G) Repair of sagging eyelids (without demonstrated and medically documented significant impairment of vision).
(H) Rhinoplasties (without evidence of accidental injury occurring within the previous 6 months that resulted in significant obstruction of breathing).
(I) Chemical peeling for facial wrinkles.
(J) Dermabrasion of the face.
(K) Elective correction of minor dermatological blemishes and marks or minor anatomical anomalies.
(L) Revision of scars resulting from surgery or a disease process, except disfiguring and extensive scars resulting from neoplastic surgery.
(M) Removal of tattoos.
(N) Hair transplants.
(O) Electrolysis.
(P) Any procedures related to transsexualism or such other conditions as gender dysphoria except as provided in paragraph (e)(7) of this section.
(Q) Penile implant procedure for psychological impotency, transsexualism, or such other conditions as gender dysphoria.
(R) Insertion of prosthetic testicles for transsexualism, or such other conditions as gender dysphoria.
(9)
(10)
(i)
(A) Dental care which is medically necessary in the treatment of an otherwise covered medical (not dental) condition, is an integral part of the treatment of such medical condition and is essential to the control of the primary medical condition. The following is a list of conditions for which CHAMPUS benefits are payable under this provision:
(
(
(
(
(
(
(
(
The test of whether dental trauma is covered is whether the trauma is solely dental trauma. Dental trauma, in order to be covered, must be related to, and an integral part of medical trauma; or a result of medically necessary treatment of an injury or disease.
(B) Dental care required in preparation for medical treatment of a disease or disorder or required as the result of dental trauma caused by the medically necessary treatment of an injury or disease (iatrogenic).
(
(
(C) Dental care is limited to the above and similar conditions specifically prescribed by the Director, OCHAMPUS, as meeting the requirements for coverage under the provisions of this section.
(ii)
(B) The adding or modifying of bridgework and dentures.
(C) Orthodontia, except when directly related to and an integral part of the medical or surgical correction of a cleft palate or when required in preparation for, or as a result of, trauma to the teeth and supporting structures caused by medically necessary treatment of an injury or disease.
(iii)
(iv)
(A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue, and roof and floor of the mouth, when such conditions require a pathological (histological) examination.
(B) Surgical procedures required to correct accidental injuries of the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
(C) Treatment of oral or facial cancer.
(D) Treatment of fractures of facial bones.
(E) External (extra-oral) incision and drainage of cellulitis.
(F) Surgery of accessory sinuses, salivary glands, or ducts.
(G) Reduction of dislocations and the excision of the temporomandibular joints, when surgery is a necessary part of the reduction.
(H) Any oral surgical procedure that falls within the cosmetic, reconstructive, or plastic surgery definition is subject to the limitations and requirements set forth in paragraph (e)(8) of this section.
Extraction of unerupted or partially erupted, malposed or impacted teeth, with or without the attached follicular or development tissues, is not a covered oral surgery procedure except when the care is indicated in preparation for medical treatment of a disease or disorder or required as a result of dental trauma caused by the necessary medical treatment of an injury or illness. Surgical preparation of the mouth for dentures is not covered by CHAMPUS.
(v)
(11)
(i)
(ii)
(iii)
(B)
(C)
(D)
(E)
(F)
(iv)
(A) When a possible drug abuse situation is identified, all claims for drugs for that specific beneficiary or provider will be suspended pending the results of a review.
(B) If the review determines that a drug abuse situation does in fact exist, all drug claims held in suspense will be denied.
(C) If the record indicates previously paid drug benefits, the prior claims for that beneficiary or provider will be reopened and the circumstances involved reviewed to determine whether or not drug abuse also existed at the time the earlier claims were adjudicated. If drug abuse is later ascertained, benefit payments made previously will be considered to have been extended in error and the amounts so paid recouped.
(D) Inpatient stays primarily for the purpose of obtaining drugs and any other services and supplies related to drug abuse also are excluded.
(v)
(vi)
(12)
(i)
(ii)
(A)
(B)
(C)
CHAMPUS benefits may be extended for additional physician visits related to the treatment of a condition other than the condition for which the patient is receiving custodial care (an example is a broken leg as a result of a fall).
(D)
(iii)
(iv)
(A)
(B)
(C)
(13)
(i)
(A)
(B)
(C)
(ii)
(iii)
(14)
(A) The patient is referred for the diagnostic procedure by a physician.
(B) The CT scan procedure is consistent with the preliminary diagnosis or symptoms.
(C) Other noninvasive and less costly means of diagnosis have been attempted or are not appropriate.
(D) The CT scan equipment is licensed or registered by the appropriate state agency responsible for licensing or registering medical equipment that emits ionizing radiation.
(E) The CT scan equipment is operated under the general supervision and direction of a physician.
(F) The results of the CT scan diagnostic procedure are interpreted by a physician.
(ii)
(15)
(i)
(A) The patient is 100 pounds over the ideal weight for height and bone structure and has an associated severe medical condition. These associated medical conditions are diabetes mellitus, hypertension, cholecystitis, narcolepsy, pickwickian syndrome (and other severe respiratory disease), hypothalmic disorders, and severe arthritis of the weight-bearing joints.
(B) The patient is 200 percent or more of the ideal weight for height and bone structure. An associated medical condition is not required for this category.
(C) The patient has had an intestinal bypass or other surgery for obesity and, because of complications, requires a second surgery (a takedown). The surgeon in many cases, will do a gastric bypass, gastric stapling, or gastroplasty to help the patient avoid regaining the weight that was lost. In this situation, payment is authorized even though the patient's condition technically may not meet the definition of morbid obesity because of the weight that was already lost following the initial surgery.
(ii)
(B) CHAMPUS payment may not be made for surgical procedures other than the gastric bypass, gastric stapling, or gastroplasty, even if morbid obesity is present.
(16)
(ii)
(A) Inpatient cost-share formula applies to maternity care ending in childbirth in, or on the way to, a hospital inpatient childbirth unit, and for maternity care ending in a non-birth outcome not otherwise excluded by this part.
(B) Ambulatory surgery cost-share formula applies to maternity care ending in childbirth in, or on the way to, a birthing center to which the beneficiary is admitted and from which the beneficiary has received prenatal care, or a hospital-based outpatient birthing room.
(C) Outpatient cost-share formula applies to maternity care which terminates in a planned childbirth at home.
(D) Otherwise covered medical services and supplies directly related to “Complications of pregnancy,” as defined in § 199.2 of this part, will be cost-shared on the same basis as the related maternity care for a period not to exceed 42 days following termination of the pregnancy and thereafter cost-shared on the basis of the inpatient or outpatient status of the beneficiary when medically necessary services and supplies are received.
(17)
(i)
(A) Adjunctive treatment for Raynaud's Syndrome.
(B) Adjunctive treatment for muscle re-education of specific muscle groups or for treating pathological muscle abnormalities of spasticity, or incapacitating muscle spasm or weakness.
(ii)
(iii)
(iv)
(v)
(18)
(i)
(A) Myocardial Infarction.
(B) Coronary Artery Bypass Graft.
(C) Coronary Angioplasty.
(D) Percutaneous Transluminal Coronary Angioplasty
(E) Chronic Stable Angina (see limitations below).
(F) Heart valve surgery.
(G) Heart or Heart-lung Transplantation.
(ii)
(iii)
(iv)
(v)
(vi)
(19)
(i)
(A) Physician services.
(B) Nursing care provided by or under the supervision of a registered professional nurse.
(C) Medical social services provided by a social worker who has at least a bachelor's degree from a school accredited or approved by the Council on Social Work Education, and who is working under the direction of a physician. Medical social services include, but are not limited to the following:
(
(
(
(
(D) Counseling services provided to the terminally ill individual and the family member or other persons caring for the individual at home. Counseling, including dietary counseling, may be provided both for the purpose of training the individual's family or other care-giver to provide care, and for the purpose of helping the individual and those caring for him or her to adjust to the individual's approaching death. Bereavement counseling, which consists of counseling services provided to the individual's family after the individual's death, is a required hospice service but it is not reimbursable.
(E) Home health aide services furnished by qualified aides and homemaker services. Home health aides may provide personal care services. Aides also may perform household services to maintain a safe and sanitary environment in areas of the home used by the patient. Examples of such services are changing the bed or light cleaning and laundering essential to the comfort and cleanliness of the patient. Aide services must be provided under the general supervision of a registered nurse. Homemaker services may include assistance in personal care, maintenance of a safe and healthy environment, and services to enable the individual to carry out the plan of care. Qualifications for home health aides can be found in 42 CFR 484.36.
(F) Medical appliances and supplies, including drugs and biologicals. Only drugs that are used primarily for the relief of pain and symptom control related to the individual's terminal illness are covered. Appliances may include covered durable medical equipment, as well as other self-help and personal comfort items related to the palliation or management of the patient's condition while he or she is under hospice care. Equipment is provided by the hospice for use in the beneficiary's home while he or she is under hospice care. Medical supplies include those that are part of the written plan of care. Medical appliances and supplies are included within the hospice all-inclusive rates.
(G) Physical therapy, occupational therapy and speech-language pathology services provided for purposes of symptom control or to enable the individual to maintain activities of daily living and basic functional skills.
(H) Short-term inpatient care provided in a Medicare participating hospice inpatient unit, or a Medicare participating hospital, skilled nursing facility (SNF) or, in the case of respite care, a Medicaid-certified nursing facility that additionally meets the special hospice standards regarding staffing and patient areas. Services provided in an inpatient setting must conform to the written plan of care. Inpatient care may be required for procedures necessary for pain control or acute or chronic symptom management. Inpatient care may also be furnished to provide respite for the individual's family or other persons caring for the individual at home. Respite care is the only type of inpatient care that may be provided in a Medicaid-certified nursing facility. The limitations on custodial care and personal comfort items applicable to other CHAMPUS services are not applicable to hospice care.
(ii)
(iii)
(iv)
(v)
(vi)
(A) There must be written certification in the medical record that the CHAMPUS beneficiary is terminally ill with a life expectancy of six months or less if the terminal illness runs its normal course.
(
(
(
(
(
(
(
(
(B) The terminally ill beneficiary must elect to receive hospice care for each specified period of time; i.e., the two 90-day periods, a subsequent 30-day period, and a final period of unlimited duration. If the individual is found to be mentally incompetent, his or her representative may file the election statement. Representative means an individual who has been authorized under State law to terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill individual who is found to be mentally incompetent.
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C) The beneficiary must waive all rights to other CHAMPUS payments for the duration of the election period for:
(
(
(
(
(
(
(D) A written plan of care must be established by a member of the basic interdisciplinary group assessing the patient's needs. This group must have at least one physician, one registered professional nurse, one social worker, and one pastoral or other counselor.
(
(
(
(
(
(
(
(
(E) Complete medical records and all supporting documentation must be submitted to the CHAMPUS contractor within 30 days of the date of its request. If records are not received within the designated time frame, authorization of the hospice benefit will be denied and any prior payments made will be recouped. A denial issued for this reason is not an initial determination under § 199.10, and is not appealable.
(vii)
(20) [Reserved]
(21)
(i)
(A) Part-time or intermittent skilled nursing care furnished by a registered nurse or a licensed practical (vocational) nurse under the supervision of a registered nurse;
(B) Physical therapy, speech-language pathology, and occupational therapy;
(C) Medical social services under the direction of a physician;
(D) Part-time or intermittent services of a home health aide who has successfully completed a training program approved by the Director TMA;
(E) Medical supplies, a covered osteoporosis drug (as defined in the Social Security Act 1861(kk), but excluding other drugs and biologicals) and durable medical equipment;
(F) Medical services provided by an interim or resident-in-training of a hospital, under an approved teaching program of the hospital in the case of an HHA that is affiliated or under common control of a hospital; and
(G) Services at hospitals, SNFs or rehabilitation centers when they involve equipment too cumbersome to bring to the home but not including transportation of the individual in connection with any such item or service.
(ii)
(A) The person for whom the services are provided is an eligible TRICARE beneficiary.
(B) The HHA that is providing the services to the beneficiary has in effect a valid agreement to participate in the TRICARE program.
(C) Physician certifies the need for home health services because the beneficiary is homebound.
(D) The services are provided under a plan of care established and approved by a physician.
(
(
(E) The beneficiary must need skilled nursing care on an intermittent basis or physical therapy or speech-language pathology services, or have continued need for occupational therapy after the need for skilled nursing care, physical therapy, or speech-language pathology services has ceased.
(F) The beneficiary must receive, and an HHA must provide, a patient-specific, comprehensive assessment that:
(
(
(
(G) TRICARE is the appropriate payer.
(H) The services for which payment is claimed are not otherwise excluded from payment.
(I) Any other conditions of coverage/participation that may be required under Medicare's HHA benefit; i.e., coverage guidelines as prescribed under Sections 1861(o) and 1891 of the Social Security Act (42 U.S.C. 1395x(o) and 1395bbb) and 42 CFR Part 484.
(22)
(23) A speech generating device (SGD) as defined in § 199.2 of this part is covered as a voice prosthesis. The prosthesis provisions found in paragraph (d)(3)(vii) of this section apply.
(24) A hearing aid, but only for a dependent of a member of the uniformed services on active duty and only if the dependent has a profound hearing loss as defined in § 199.2 of this part. Medically necessary and appropriate services and supplies, including hearing examinations, required in connection with this hearing aid benefit are covered.
(25) Rehabilitation therapy as defined in § 199.2 of this part to improve, restore, or maintain function, or to minimize or prevent deterioration of function, of a patient when prescribed by a physician. The rehabilitation therapy must be medically necessary and appropriate medical care, rendered by an authorized provider, necessary to the establishment of a safe and effective maintenance program in connection with a specific medical condition, and must not be custodial care or otherwise excluded from coverage.
(f)
(2)
(i)
(A) For care rendered all eligible beneficiaries prior to April 1, 1991, or when the active duty sponsor's pay grade is E-4 or below, regardless of the date of care:
(
(
(B) For care rendered on or after April 1, 1991, for all CHAMPUS beneficiaries except dependents of active duty sponsors in pay grades E-4 or below.
(
(
(C) CHAMPUS-
(D)
(E) For any family the outpatient deductible amounts will be applied sequentially as the CHAMPUS claims are processed.
(F) If the fiscal year outpatient deductible under either paragraphs (f)(2)(i)(A) or (f)(2)(i)(B) of this section has been met by a beneficiary or a family through the submission of a claim or claims to a CHAMPUS fiscal intermediary in another geographic location from the location where a current claim is being submitted, the beneficiary or sponsor must obtain a deductible certificate from the CHAMPUS fiscal intermediary where the applicable beneficiary or family fiscal year deductible was met. Such deductible certificate must be attached to the current claim being submitted for benefits. Failure to obtain a deductible certificate under such circumstances will result in a second beneficiary or family fiscal year deductible being applied. However, this second deductible may be reimbursed once appropriate documentation, as described in paragraph (f)(2)(i)(F) of this section, is supplied to the CHAMPUS fiscal intermediary applying the second deductible.
(G) Notwithstanding the dates specified in paragraphs (f)(2)(i)(A) and (f)(B)(2)(i) of this section in the case of dependents of active duty members of rank E-5 or above with Persian Gulf Conflict service, dependents of service members who were killed in the Gulf, or who died subsequent to Gulf service, and of members who retired prior to October 1, 1991, after having served in the Gulf War, the deductible shall be the amount specified in paragraph (f)(2)(i)(A) of this section for care rendered prior to October 1, 1991, and the amount specified in paragraph (f)(2)(i)(B) of this section for care rendered on or after October 1, 1991.
(H) The Director, TRICARE Management Activity, may waive the annual individual or family fiscal year deductible for dependents of a Reserve Component member who is called or ordered to active duty for a period of more than 30 days but less than one year or a National guard member who is called or ordered to full-time federal National guard duty for a period of more than 30 days but less than one year, in support of a contingency operation (as defined in 10 U.S.C. 101(a)(13)). For purposes of this paragraph, a dependent is a lawful husband or wife of the member and a child as defined in paragraphs (b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(
(ii)
The Secretary of Defense (after consulting with the Secretary of Health and Human Services and the Secretary of Transportation) prescribes the fair charges for inpatient hospital care provided through Uniformed Services medical facilities. This determination is made each fiscal year.
(A)
(B)
(C)
(D)
(iii)
(iv)
(v)
(vi)
(3)
(i)
(ii)
(A)
(B)
(C)
(iii)
(iv)
(4)
(i)
(ii)
(iii)
(5)
(i)
(ii)
(6)-(7) [Reserved]
(8)
(ii)
(A) In the case of services provided by individual health care professionals and other noninstitutional providers, the cost-share shall be the usual percentage of the CHAMPUS allowable charge determined under § 199.14(i).
(B) In the case of services provided by institutional providers normally paid on the basis of a pre-set amount (such as DRG-based amount under § 199.14(a)(1) or per-diem amount under § 199.14(a)(2)), if the discount rate is lower than the pre-set rate, the cost-share amount that would apply for a beneficiary other than an active duty dependent pursuant to the normal pre-set rate would be reduced by the same percentage by which the pre-set rate was reduced in setting the discount rate.
(9)
(ii)
(iii)
(A) A claim for services regarding which the provider has waived the beneficiary's liability may be disallowed in full, or, alternatively, the amount payable for such a claim may be reduced by the amount of the beneficiary liability waived.
(B) Repeated noncompliance with this requirement is a basis for exclusion of a provider.
(10)
(i)
(ii)
(iii)
Under the Defense Authorization Act for Fiscal Year 2001, the cap for beneficiaries other than dependents of active duty members was reduced from $7,500 to $3,000 effective October 30, 2000. Prior to this, the Defense Authorization Act for Fiscal Year 1993 reduced this cap from $10,000 to $7,500 on October 1, 1992. The cap remains at $1,000 for dependents of active duty members.
(11)
(g)
(1)
(2)
(3)
(4)
If it is determined that the diagnostic x-ray, laboratory, and pathological services and machine tests performed during such admission were medically necessary and would have been covered if performed on an outpatient basis, CHAMPUS benefits may be extended for such diagnostic procedures only, but cost-sharing will be computed as if performed on an outpatient basis.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(i) A drug, device, or medical treatment or procedure is unproven:
(A) If the drug or device cannot be lawfully marketed without the approval or clearance of the United States Food and Drug Administration (FDA) and approval or clearance for marketing has not been given at the time the drug or device is furnished to the patient.
Although the use of drugs and medicines not approved by the FDA for commercial marketing, that is for use by humans, (even though permitted for testing on humans) is excluded from coverage as unproven, drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be covered by CHAMPUS as if FDA approved.
Certain cancer drugs, designated as Group C drugs (approved and distributed by the National Cancer Institute) and Treatment Investigational New Drugs (INDs), are not covered under CHAMPUS because they are not approved for commercial marketing by the FDA. However, medical care related to the use of Group C drugs and Treatment INDs can be cost-shared under CHAMPUS when the patient's medical condition warrants their administration and the care is provided in accordance with generally accepted standards of medical practice.
CHAMPUS can also consider coverage of
(B) If a medical device (as defined by 21 U.S.C. 321(h)) with an Investigational Device Exemption (IDE) approved by the Food and Drug Administration is categorized by the FDA as experimental/investigational (FDA Category A).
CHAMPUS will consider for coverage a device with an FDA-approved IDE categorized by the FDA as non-experimental/investigational (FDA Category B) for CHAMPUS beneficiaries participating in FDA approved clinical trials. Coverage of any such Category B device is dependent on its meeting all other requirements of the laws and rules governing CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE study protocols.
(C) Unless reliable evidence shows that any medical treatment or procedure has been the subject of well-controlled studies of clinically meaningful endpoints, which have determined its maximum tolerated dose, its toxicity, its safety, and its efficacy as compared with standard means of treatment or diagnosis. (See the definition of
(D) If reliable evidence shows that the consensus among experts regarding the medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated doses, its toxicity, its safety, or its effectiveness as compared with the standard means of treatment or diagnosis (see the definition of reliable evidence in § 199.2 for the procedures used in determining if a medical treatment or procedure is unproven).
(ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-case basis by the Director, Office of CHAMPUS, or a designee. In reviewing the case, the Director, or a designee, may consult with any or all of the following sources to determine if the proposed therapy is considered safe and effective:
(A) Trials published in refereed medical literature.
(B) Formal technology assessments.
(C) National medical policy organization positions.
(D) National professional associations.
(E) National expert opinion organizations.
(iii)
(A) Treatment that is not related to the unproven drug, device or medical treatment or procedure; e.g., medically necessary in the absence of the unproven treatment.
(B) Treatment which is necessary follow-up to the unproven drug, device or medical treatment or procedure but which might have been necessary in the absence of the unproven treatment.
(iv)
(A) Radial keratotomy (refractive keratoplasty).
(B) Cellular therapy.
(C) Histamine therapy.
(D) Stem cell assay, a laboratory procedure which allows a determination to be made of the type and dose of cancer chemotherapy drugs to be used, based on in vitro analysis of their effects on cancer cells taken from an individual.
(E) Topical application of oxygen.
(F) Immunotherapy for malignant disease, except when using drugs approved by the FDA for this purpose.
(G) Prolotherapy, joint sclerotherapy, and ligamentous injections with sclerosing agents.
(H) Transcervical block silicone plug.
(I) Whole body hyperthermia in the treatment of cancer.
(J) Portable nocturnal hypoglycemia detectors.
(K) Testosterone pellet implants in the treatment of females.
(L) Estradiol pellet implants.
(M) Epikeratophakia for treatment of aphakia and myopia.
(N) Bladder stimulators.
(O) Ligament replacement with absorbable copolymer carbon fiber scaffold.
(P) Intraoperative radiation therapy.
(Q) Gastric bubble or balloon.
(R) Dorsal root entry zone (DREZ) thermocoagulation or micorcoagulation neurosurgical procedure.
(S) Brain electrical activity mapping (BEAM).
(T) Topographic brain mapping (TBM) procedure.
(U) Ambulatory blood pressure monitoring.
(V) Bilateral carotoid body resection to relieve pulmonary system.
(W) Intracavitary administration of cisplatin for malignant disease.
(X) Cervicography.
(Y) In-home uterine activity monitoring for the purpose of preventing preterm labor and/or delivery.
(Z) Sperm evaluation, hamster penetration test.
(AA) Transfer factor (TF).
(BB) Continuous ambulatory esophageal pH monitoring (CAEpHM) is considered unproven for patients under age 12 for all indications, and for patients over age 12 for sleep apnea.
(CC) Adrenal-to-brain transplantation for Parkinson's disease.
(DD) Videofluoroscopy evaluation in speech pathology.
(EE) Applied kinesiology.
(FF) Hair analysis to identify mineral deficiencies from the chemical composition of the hair. Hair analysis testing may be reimbursed when necessary to determine lead poisoning.
(GG) Iridology (links flaws in eye coloration with disease elsewhere in the body).
(HH) Small intestinal bypass (jejunoileal bypass) for treatment of morbid obesity.
(II) Biliopancreatic bypass.
(JJ) Gastric wrapping/gastric banding.
(KK) Calcium EAP/calcium orotate and selenium (also known as Nieper therapy)—Involves inpatient care and use of calcium compounds and other non-FDA approved drugs and special diets. Used for cancer, heart disease, diabetes, and multiple sclerosis.
(LL) Percutaneous balloon valvuloplasty for mitral and tricuspid valve stenosis.
(MM) Amniocentesis performed for ISO immunization to the ABO blood antigens.
(NN) Balloon dilatation of the prostate.
(OO) Helium in radiosurgery.
(PP) Electrostimulation of salivary production in the treatment of xerostomia secondary to Sjogren's syndrome.
(QQ) Intraoperative monitoring of sensory evoked potentials (SEP). To include visually evoked potentials, brainstem auditory evoked response, somatosensory evoked potentials during spinal and orthopedic surgery, and sensory evoked potentials monitoring of the sciatic nerve during total hip replacement. Recording SEPs in unconscious head injured patients to assess the status of the somatosensory system. The use of SEPs to define conceptional or gestational age in preterm infants.
(RR) Autolymphocyte therapy (ALT) (immunotherapy used for treating metastatic kidney cancer patients).
(SS) Radioimmunoguided surgery in the detection of cancer.
(TT) Gait analysis (also known as a walk study or electrodynogram)
(UU) Use of cerebellar stimulators/pacemakers for the treatment of neurologic disorders.
(VV) Signal-averaged ECG.
(WW) Peri-urethal Teflon injections to manage urinary incontinence.
(XX) Extraoperative electrocorticography for stimulation and recording
(YY) Quantitative computed tomography (QCT) for the detection and monitoring of osteoporosis.
(ZZ) [Reserved]
(AAA) Percutaneous transluminal angioplasty in the treatment of obstructive lesions of the carotoid, vertebral and cerebral arteries.
(BBB) Endoscopic third ventriculostomy.
(CCC) Holding therapy—Involves holding the patient in an attempt to achieve interpersonal contact, and to improve the patient's ability to concentrate on learning tasks.
(DDD) In utero fetal surgery.
(EEE) Light therapy for seasonal depression (also known as seasonal affective disorder (SAD)).
(FFF) Dorsal column and deep brain electrical stimulation of treatment of motor function disorder.
(GGG) Chelation therapy, except with products and for indications approved by the FDA.
(HHH) All organ transplants
(III) Implantable infusion pumps,
(JJJ) Services related to the candidiasis hypersensitivity syndrome, yeast syndrome, or gastrointestinal candidiasis (i.e., allergenic extracts of
(KKK) Treatment of chronic fatigue syndrome.
(LLL) Extracorporeal immunoadsorption using protein A columns for conditions other than acute idopathic thrombocytopenia purpura.
(MMM) Dynamic posturography (both static and computerized).
(NNN) Laparoscopic myomectomy.
(OOO) Growth factor, including platelet-derived growth factors, for treating non-healing wounds. This includes Procurene
(PPP) High dose chemotherapy with stem cell rescue (HDC/SCR) for any of the following malignancies:
(
(
(
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(i) Well-child care.
(ii) Immunizations for individuals age six and older, as recommended by the CDC.
(iii) Rabies shots.
(iv) Tetanus shot following an accidental injury.
(v) Rh immune globulin.
(vi) Genetic tests as specified in paragraph (e)(3)(ii) of this section.
(vii) Immunizations and physical examinations provided when required in the case of dependents of active duty military personnel who are traveling outside the United States as a result of an active duty member's assignment and such travel is being performed under orders issued by a Uniformed Service.
(viii) Screening mammography for asymptomatic women 40 years of age and older, and for high risk women 35 years of age and older, when provided under the terms and conditions contained in the guidelines adopted by the Deputy Assistant Secretary of Defense, Health Services Financing.
(ix) Cancer screening Papanicolaou (PAP) test for women who are at risk for sexually transmissible diseases, women who have or have had multiple sexual partners (or if their partner has or has had multiple sexual partners), women who smoke cigarettes, and women 18 years of age and older when provided under the terms and conditions contained in the guidelines adopted by the Deputy Assistant Secretary of Defense, Health Services Financing.
(x) Other cancer screenings authorized by 10 U.S.C. 1079.
(xi) Health promotion and disease prevention visits (which may include all of the services provided pursuant to § 199.18(b)(2)) may be provided in connection with immunizations and cancer screening examinations authorized by paragraphs (g)(37)(ii) of this section or (g)(37)(viii) through (x) of this section.
(xii) Physical examinations for beneficiaries ages 5 through 11 that are required in connection with school enrollment, and that are provided on or after October 30, 2000.
(38)
(39)
(40)
(41)
In accordance with section 744 of the DoD Appropriation Act for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is permitted effective December 15, 1980, under the conditions listed below. Continued availability of benefits will depend on the language of the annual DoD Appropriation Acts.
(i)
(ii)
(A) Alopecia resulting from conditions other than treatment of malignant disease.
(B) Maintenance, wig or hairpiece supplies, or replacement of the wig or hairpiece.
(C) Hair transplants or any other surgical procedure involving the attachment of hair or a wig or hairpiece to the scalp.
(D) Any diagnostic or therapeutic method or supply intended to encourage hair regrowth.
(42)
(43)
(44)
(45) [Reserved]
(46)
(47)
(48)
(49)
(50)
(51)
(52)
(i) The procedure without electronic transmission of data or biotelemetry is otherwise an explicit or derived benefit of this section; and
(ii) The addition of electronic transmission of data or biotelemetry to the procedure is found by the Director, CHAMPUS, or designee, to be medically necessary and appropriate medical care which usually improves the efficiency of the management of a clinical condition in defined circumstances; and
(iii) That each data transmission or biotelemetry device incorporated into a procedure that is otherwise an explicit or derived benefit of this section, has been classified by the U.S. Food and Drug Administration, either separately or as a part of a system, for use consistent with the defined circumstances in paragraph (g)(52)(ii) of this section.
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(69)
In order to be approved under CHAMPUS, an institution must, in addition to meeting CHAMPUS standards, provide a level of care for which CHAMPUS benefits are payable.
(70)-(71) [Reserved]
(72)
(73)
(74)
The fact that a physician may prescribe, order, recommend, or approve a service or supply does not, of itself, make it medically necessary or make the charge an allowable expense, even though it is not listed specifically as an exclusion.
(h)
(2)
(3)
(i) The beneficiary did not know and could not reasonably have been expected to know that the services were excludable by reason of being not medically necessary; and
(ii) The provider knew or could reasonably have been expected to know that the items or services were excludable by reason of being not medically necessary.
(4)
(5)
(i) The PRO or fiscal intermediary had informed the provider that the services provided were excludable or that similar or reasonably comparable services were excludable.
(ii) The utilization review group or committee for an institutional provider or the beneficiary's attending physician had informed the provider that the services provided were excludable.
(iii) The provider had informed the beneficiary that the services were excludable.
(iv) The provider had received written materials, including notices, manual issuances, bulletins, guides, directives or other materials, providing notification of PRO screening criteria specific to the condition of the beneficiary. Attending physicians who are members of the medical staff of an institutional provider will be found to have also received written materials provided to the institutional provider.
(v) The services that are at issue are the subject of what are generally considered acceptable standards of practice by the local medical community.
(vi) Preadmission authorization was available but not requested, or concurrent review requirements were not followed.
For
(a)
(2) The purpose of the ECHO is to provide an additional financial resource for an integrated set of services and supplies designed to assist in the reduction of the disabling effects of the beneficiary's qualifying condition. Services include those necessary to maintain, minimize or prevent deterioration of function of an ECHO-eligible beneficiary.
(b)
(i) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), or (I)) of a member of one of the Uniformed Services; or
(ii) An abused dependent as described in § 199.3(b)(2)(iii); or
(iii) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), or (I)) of a member of one of the Uniformed Services who dies while on active duty. In such case the child or spouse remain eligible for benefits under the ECHO for a period of three years from the date the active duty sponsor dies; or
(iv) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), or (I)) of a deceased member of one of the Uniformed
(2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(i) The sponsor ceases to be an active duty member for any reason other than death; or
(ii) Eligibility based upon the abused dependent provisions of paragraph (b)(1)(ii) of this section expires; or
(iii) Eligibility based upon the deceased sponsor provisions of paragraphs (b)(1)(iii) or (iv) of this section expires; or
(iv) Eligibility based upon a beneficiary's participation in the Transitional Assistance Management Program ends; or
(v) The Director, TRICARE Management Activity or designee determines that the beneficiary no longer has a qualifying condition.
(4)
(c)
(1) Diagnostic procedures to establish a qualifying condition or to measure the extent of functional loss resulting from a qualifying condition.
(2) Medical, habilitative, rehabilitative services and supplies, durable equipment that is related to the qualifying condition. Benefits may be provided in the beneficiary's home or other environment as appropriate.
(3) Training that teaches the use of assistive technology devices or to acquire skills that are necessary for the management of the qualifying condition. Such training is also authorized for the beneficiary's immediate family. Vocational training, in the beneficiary's home or a facility providing such, is also allowed.
(4) Special education as provided by the Individuals with Disabilities Education Act and defined at 34 CFR 300.26
(5) Institutional care within a state, as defined in § 199.2, in private nonprofit, public, and state institutions and facilities, when the severity of the qualifying condition requires protective custody or training in a residential environment. For the purpose of this section protective custody means residential care that is necessary when the severity of the qualifying condition is such that the safety and well-being of the beneficiary or those who come into contact with the beneficiary may be in jeopardy without such care.
(6) Transportation of an ECHO beneficiary, and a medical attendant when necessary to assure the beneficiary's safety, to or from a facility or institution to receive authorized ECHO services or items.
(7)
(i) TRICARE-authorized home health agencies must provide and bill for all authorized ECHO respite care services through established TRICARE claims' mechanisms. No special billing arrangements will be authorized in conjunction with coverage that may be provided by Medicaid or other federal, state, community or private programs.
(ii) For authorized ECHO respite care, TRICARE will reimburse the allowable charges or negotiated rates.
(iii) The Government's cost-share incurred for these services accrue to the maximum monthly benefits of $2,500.
(8)
(ii)
(iii)
(d)
(2)
(3)
(4)
(5)
(6)
(7)
(i) The beneficiary is a patient in an institution or facility that ordinarily provides the same type of equipment to its patients at no additional charge in the usual course of providing services; or
(ii) The item is available to the beneficiary from a Uniformed Services Medical Treatment Facility; or
(iii) The item has deluxe, luxury, immaterial or nonessential features that increase the cost to the Department
(iv) The item is duplicate equipment as defined in § 199.2.
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(e)
(1)
(2)
(3)
(i) Physically reside within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam; and
(ii) Are homebound, as defined in § 199.2; and
(iii) Require medically necessary skilled services that exceed the level of coverage provided under the Basic Program's home health care benefit; and/or
(iv) Require frequent interventions by the primary caregiver(s) such that respite care services are necessary to allow primary caregiver(s) the opportunity to rest; and
(v) Are case managed to include a reassessment at least every 90 days, and receive services as outlined in a written plan of care; and
(vi) Receive all home health care services from a TRICARE-authorized home health agency, as described in § 199.6(b)(4)(xv), in the beneficiary's primary residence.
(4)
(5)
(ii)
(f)
(2)
(ii) The Sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section will be applied to the first allowed ECHO charges in any given month. The Government's share will be paid, up to the maximum amount specified in paragraph (f)(3) of this section, for allowed charges after the sponsor's cost-share has been applied.
(iii) The provisions of § 199.18(d)(1) and (e)(1) regarding elimination of copayments for active duty family members enrolled in TRICARE Prime do not eliminate, reduce, or otherwise affect the sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section.
(iv) The sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section does not accrue to the Basic Program's Catastrophic Loss Protection under 10 U.S.C. 1079(b)(5) as shown at §§ 199.4(f)(10) and 199.18(f).
(3)
(ii)
(B) When a beneficiary moves to a different locality within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam, the annual fiscal year cap will be recalculated to reflect the maximum established under paragraph (f)(3)(ii)(A) of this section for the beneficiary's new location and will apply to the EHHC benefit for the remaining portion of that fiscal year.
(g)
(2)
(ii) Allocating equipment expense. The ECHO beneficiary (or sponsor or guardian acting on the beneficiary's behalf) may, only at the time of the request for authorization of equipment, specify how the allowable cost of the equipment is to be allocated as an ECHO benefit. The entire allowable cost of the authorized equipment may be allocated in the month of purchase provided the allowable cost does not exceed the ECHO maximum monthly benefit of $2,500 or it may be prorated regardless of the allowable cost. Prorating permits the allowable cost of ECHO-authorized equipment to be allocated such that the amount allocated each month does not exceed the maximum monthly benefit.
(A)
(
(
(B)
(C)
(
(D)
(E)
(3)
(i) Is contracted for by a public facility as a part of a publicly funded long-term inpatient care program; and
(ii) Is provided based upon the ECHO beneficiary's being eligible for the publicly funded program which has contracted for the care; and
(iii) Is authorized by the public facility as a part of a publicly funded program; and
(iv) Would cause a cost-share liability in the absence of TRICARE eligibility; and
(v) Produces an ECHO beneficiary cost-share liability that does not exceed the maximum charge by the provider to the public facility for the contracted level of care.
(4)
(ii) For authorized ECHO home health care and respite care, TRICARE will reimburse the allowable charges or negotiated rates.
(iii) The maximum monthly Government reimbursement for EHHC, including EHHC respite care, will be based on the actual number of hours of EHHC services rendered in the month, but in no case will it exceed one-twelfth of the annual maximum Government cost-share as determined in this section.
(h)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(B) The domicile of the beneficiary shall be the basis for the determination of public facility availability when the sponsor and beneficiary are separately domiciled due to the sponsor's move to a new permanent duty station or due to legal custody requirements.
(C) Written certification, in accordance with information requirements, formats, and procedures established by the director, TRICARE Management Activity or designee that requested ECHO services or items cannot be obtained from public facilities because the services or items are not available and adequate, is a prerequisite for ECHO benefit payment for training, rehabilitation, special education, assistive technology, and institutional care in private nonprofit, public, and state institutions and facilities, and if appropriate, transportation to and from such institutions and facilities.
(
(
(
(
(4) Repair or maintenance of beneficiary owned durable equipment is exempt from the public facility use certification requirements.
(5) The requirements of this paragraph (i)(4)(v) notwithstanding, no public facility use certification is required for services and items that are provided under Part C of the Individuals with Disabilities Education Act in accordance with the Individual Family Services Plan and that are otherwise allowable under the ECHO.
(i)
(j)
(a)
(1)
(2)
Only the Secretary of Defense, the Secretary of Health and Human Services, or the Secretary of Transportation, or their designees, may authorize (in emergency situations) payment to civilian facilities in the United States that are not in compliance with title VI of the Civil Rights Act of 1964. For the purpose of the Civil Rights Act only, the United States includes the 50 states, the District of Columbia, Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal Zone, and the territories and possessions of the United States.
(3)
(4) [Reserved]
(5)
(6)
(7)
(8)
(i)
(B) A SNR or a HHA, in order to be an authorized provider under TRICARE, must enter into a participation agreement with TRICARE for all claims.
(C) Corporate services providers authorized as CHAMPUS providers under the provisions of paragraph (f) of this section must enter into a participation agreement as provided by the Director, OCHAMPUS, or designee.
(ii)
(B)
(iii)
(9)
(10)
(11)
(i)
(ii)
(iii)
(12)
(i) The cognizant state licensing authority;
(ii) The Joint Commission on Accreditation of Healthcare Organizations, or the appropriate Qualified Accreditation Organization as defined in § 199.2;
(iii) Standards of practice established by national medical organizations; and
(iv) This part.
(13)
(i) Not charge a beneficiary for the following:
(A) Services for which the provider is entitled to payment from CHAMPUS;
(B) Services for which the beneficiary would be entitled to have CHAMPUS
(C) Services not medically necessary and appropriate for the clinical management of the presenting illness, injury, disorder or maternity;
(D) Services for which a beneficiary would be entitled to payment but for a reduction or denial in payment as a result of quality review; and
(E) Services rendered during a period in which the provider was not in compliance with one or more conditions of authorization;
(ii) Comply with the applicable provisions of this part and related CHAMPUS administrative policy;
(iii) Accept the CHAMPUS determined allowable payment combined with the cost-share, deductible, and other health insurance amounts payable by, or on behalf of, the beneficiary, as full payment for CHAMPUS allowed services;
(iv) Collect from the CHAMPUS beneficiary those amounts that the beneficiary has a liability to pay for the CHAMPUS deductible and cost-share;
(v) Permit access by the Director, OCHAMPUS, or designee, to the clinical record of any CHAMPUS beneficiary, to the financial and organizational records of the provider, and to reports of evaluations and inspections conducted by state, private agencies or organizations;
(vi) Provide the Director, OCHAMPUS, or designee, prompt written notification of the provider's employment of an individual who, at any time during the twelve months preceding such employment, was employed in a managerial, accounting, auditing, or similar capacity by an agency or organization which is responsible, directly or indirectly for decisions regarding Department of Defense payments to the provider;
(vii) Cooperate fully with a designated utilization and clinical quality management organization which has a contract with the Department of Defense for the geographic area in which the provider renders services;
(viii) Obtain written authorization before rendering designated services or items for which CHAMPUS cost-share may be expected;
(ix) Maintain clinical and other records related to individuals for whom CHAMPUS payment was made for services rendered by the provider, or otherwise under arrangement, for a period of 60 months from the date of service;
(x) Maintain contemporaneous clinical records that substantiate the clinical rationale for each course of treatment, periodic evaluation of the efficacy of treatment, and the outcome at completion or discontinuation of treatment;
(xi) Refer CHAMPUS beneficiaries only to providers with which the referring provider does not have an economic interest, as defined in § 199.2; and
(xii) Limit services furnished under arrangement to those for which receipt of payment by the CHAMPUS authorized provider discharges the payment liability of the beneficiary.
(14)
(15)
(b)
(i)
(ii) Billing practices.
(A) Each institutional billing, including those institutions subject to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined all-inclusive rate reimbursement method, must be itemized fully and sufficiently descriptive for the CHAMPUS to make a determination of benefits.
(B) Institutional claims subject to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined all-inclusive rate reimbursement method, may be submitted only after the beneficiary has been discharged or transferred from the institutional provider's facility or program.
(C) Institutional claims for Residential Treatment Centers and all other institutional providers, except those listed in (B) above, should be submitted to the appropriate CHAMPUS fiscal intermediary at least every 30 days.
(2)
(i)
(ii)
(iii)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4)
(i)
(A) Is engaged primarily in providing to inpatients, by or under the supervision of physicians, diagnostic and therapeutic services for the medical or surgical diagnosis and treatment of illness, injury, or bodily malfunction (including maternity).
(B) Maintains clinical records on all inpatients (and outpatients if the facility operates an outpatient department or emergency room).
(C) Has bylaws in effect with respect to its operations and medical staff.
(D) Has a requirement that every patient be under the care of a physician.
(E) Provides 24-hour nursing service rendered or supervised by a registered professional nurse, and has a licensed practical nurse or registered professional nurse on duty at all times.
(F) Has in effect a hospital utilization review plan that is operational and functioning.
(G) In the case of an institution in a state in which state or applicable local law provides for the licensing of hospitals, the hospital:
(
(
(H) Has in effect an operating plan and budget.
(I) Is accredited by the JCAH or meets such other requirements as the Secretary of Health and Human Services, the Secretary of Transportation, or the Secretary of Defense finds necessary in the interest of the health and safety of patients who are admitted to and furnished services in the institution.
(ii)
(iii)
(iv)
(A) There are two major categories of psychiatric hospitals:
(
(
(B) In order for the services of a psychiatric hospital to be covered, the hospital shall comply with the provisions outlined in paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be accredited under the JCAHO Accreditation Manual for Hospitals (AMH) standards in order for their services to be cost-shared under CHAMPUS. In the case of those psychiatric hospitals that are not JCAHO-accredited because they have not been in operation a sufficient period of time to be eligible to request an accreditation survey by the JCAHO, the Director, OCHAMPUS, or a designee, may grant temporary approval if the hospital is certified and participating under Title XVIII of the Social Security Act (Medicare, Part A). This temporary approval expires 12 months from the date on which the psychiatric hospital first becomes eligible to request an accreditation survey by the JCAHO.
(C) Factors to be considered in determining whether CHAMPUS will cost-share care provided in a psychiatric hospital include, but are not limited to, the following considerations:
(
(
(
(
(D) Although psychiatric hospitals are accredited under the JCAHO AMH standards, their medical records must be maintained in accordance with the JCAHO Consolidated Standard Manual for Child, Adolescent, and Adult Psychiatric, Alcoholism, and Drug Abuse Facilities and Facilities Serving the Mentally Retarded, along with the requirements set forth in § 199.7(b)(3). The hospital is responsible for assuring that patient services and all treatment are accurately documented and completed in a timely manner.
(v)
(A) In order for the service of long-term hospitals to be covered, the hospital must comply with the provisions outlined in paragraph (b)(4)(i) of this section. In addition, in order for services provided by such hospitals to be covered by CHAMPUS, they must be primarily for the treatment of the presenting illness.
(B) Custodial or domiciliary care is not coverable under CHAMPUS, even if rendered in an otherwise authorized long-term hospital.
(C) The controlling factor in determining whether a beneficiary's stay in a long-term hospital is coverable by CHAMPUS is the level of professional care, supervision, and skilled nursing care that the beneficiary requires, in addition to the diagnosis, type of condition, or degree of functional limitations. The type and level of medical services required or rendered is controlling for purposes of extending CHAMPUS benefits; not the type of provider or condition of the beneficiary.
(vi)
(A) Has policies that are developed with the advice of (and with provisions for review on a periodic basis by) a group of professionals, including one or more physicians and one or more registered nurses, to govern the skilled nursing care and related medical services it provides.
(B) Has a physician, a registered nurse, or a medical staff responsible for the execution of such policies.
(C) Has a requirement that the medical care of each patient must be under the supervision of a physician, and provides for having a physician available to furnish necessary medical care in case of an emergency.
(D) Maintains clinical records on all patients.
(E) Provides 24-hour skilled nursing service that is sufficient to meet nursing needs in accordance with the policies developed as provided in paragraph (b)(4)(iv)(A) of this section, and has at least one registered professional nurse employed full-time.
(F) Provides appropriate methods and procedures for the dispensing and administering of drugs and biologicals.
(G) Has in effect a utilization review plan that is operational and functioning.
(H) In the case of an institution in a state in which state or applicable local law provides for the licensing of this type facility, the institution:
(
(
(I) Has in effect an operating plan and budget.
(J) Meets such provisions of the most current edition of the Life Safety Code
(K) Is an authorized provider under the Medicare program, and meets the requirements of Title 18 of the social Security Act, sections 1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).
(vii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(
(
(
(viii)
(ix)
An infirmary in a boarding school also may qualify under this provision, subject to review and approval by the Director, OCHAMPUS or a designee.
(x)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(xi)
(A)
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(xii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(
(
(
(xiii)
(A) Is primarily engaged in providing the care and services described under
(B) Provides bereavement counseling for the immediate family or terminally ill individuals.
(C) Provides for such care and services in individuals' homes, on an outpatient basis, and on a short-term inpatient basis, directly or under arrangements made by the hospice program, except that the agency or organization must:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(xiv)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(
(
(
(xv)
(A) Engaged in providing skilled nursing services and other therapeutic services, such as physical therapy, speech-language pathology services, or occupational therapy, medical services, and home health aide services.
(
(
(B) Policies established by a professional group associated with the agency or organization (including at least one physician and one registered nurse) to govern the services and provides for supervision of such services by a physician or a registered nurse.
(C) Maintains clinical records for all patients.
(D) Licensed in accordance with State and local law or is approved by the State or local licensing agency as meeting the licensing standards, where applicable.
(E) Enters into an agreement with TRICARE in order to participate and to be eligible for payment under the program. In this agreement the HHA and TRICARE agree that the HHA will:
(
(
(F) Abide by the following consolidated billing requirements:
(
(
(
(
(
(
(
(
(
(
(
(G) Meet such other requirements as the Secretary of Health and Human Services and/or Secretary of Defense may find necessary in the interest of the health and safety of the individuals who are provided care and services by such agency or organization.
(c)
(ii)
(iii)
(iv)
(v)
(2)
(ii)
(iii)
(iv)
(v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a physician or other health care practitioner who is eligible to receive reimbursement for services provided under Medicare (as defined in section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be considered approved to provide medical care authorized under section 1079 and section 1086 of title 10, U.S.C., chapter 55 unless the administering Secretaries have information indicating Medicare, TRICARE, or other Federal health care program integrity violations by the physician or other health care practitioner. Approval is limited to those classes of provider currently considered TRICARE authorized providers as outlined in 32 CFR 199.6. Services and supplies rendered by those providers who are not currently considered authorized providers shall be denied.
(3)
(i)
(B) Doctors of Osteopathy (D.O.).
(ii)
(A) Doctors of Dental Medicine (D.M.D.).
(B) Doctors of Dental Surgery (D.D.S.).
(iii)
(A)
(
(
(
(B)
(C)
(D)
(
(
(
(
(E)
(
(
(
(F)
(
(
(
Patients' organic medical problems must receive appropriate concurrent management by a physician.
(G)
(
(
(
(
(H)
(
(
(
(
(
(
(I)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(J)
(
(
(K)
(
(
(
(
(
(iv)
(A)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
No dual status will be recognized by the Office of CHAMPUS. Pastoral counselors must elect to become one of the categories of extramedical CHAMPUS provides specified above. Once authorized as either a pastoral counselor, or a certified marriage and family therapist, claims review and reimbursement will be in accordance with the criteria established for the elected provider category.
(C)
(
(
(
(
(
(
(
(D) The following additional information applies to each of the above categories of extramedical individual providers:
(
(
(E)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(e)
(ii) A Program for Persons with Disabilities (PFPWD) provider with TRICARE-authorized status on the effective date for the Extended Care Health Option (ECHO) Program shall be deemed to be a TRICARE-authorized provider until the expiration of all outstanding PFPWD benefit authorizations for services or items being rendered by the provider.
(2)
(A) A not-for-profit entity or a public facility; and
(B) Located within a state; and
(C) Be certified as eligible for Medicaid payment in accordance with a state plan for medical assistance under Title XIX of the Social Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate Care Facility for the Mentally Retarded, or be a TRICARE-authorized institutional provider as defined in paragraph (b) of this section, or be approved by a state educational agency as a training institution.
(ii)
(A) A TRICARE-authorized provider of services as defined in this section; or
(B) An individual, corporation, foundation, or public entity that predominantly renders services of a type uniquely allowable as an ECHO benefit and not otherwise allowable as a benefit of § 199.4, that meets all applicable licensing or other regulatory requirements of the state, county, municipality, or other political jurisdiction in which the ECHO service is rendered, or in the absence of such licensing or regulatory requirements, as determined by the Director, TRICARE Management Activity or designee.
(iii)
(3)
(f)
(ii) Payment for otherwise allowable services may be made to a CHAMPUS-authorized corporate services provider subject to the applicable requirements, exclusions and limitations of this part.
(iii) The Director, OCHAMPUS, or designee, may create discrete types within any allowable category of provider established by this paragraph (f) to improve the efficiency of CHAMPUS management.
(iv) The Director, OCHAMPUS, or designee, may require, as a condition of authorization, that a specific category or type of provider established by this paragraph (f):
(A) Maintain certain accreditation in addition to or in lieu of the requirement of paragraph (f)(2)(v) of this section;
(B) Cooperate fully with a designated utilization and clinical quality management organization which has a contract with the Department of Defense for the geographic area in which the provider does business;
(C) Render services for which direct or indirect payment is expected to be made by CHAMPUS only after obtaining CHAMPUS written authorization; and
(D) Maintain Medicare approval for payment when the Director, OCHAMPUS, or designee, determines that a category, or type, of provider established by this paragraph (f) is substantially comparable to a provider or supplier for which Medicare has regulatory conditions of participation or conditions of coverage.
(v) Otherwise allowable services may be rendered at the authorized corporate services provider's place of business, or in the beneficiary's home under such circumstances as the Director, OCHAMPUS, or designee, determines to be necessary for the efficient delivery of such in-home services.
(vi) The Director, OCHAMPUS, or designee, may limit the term of a participation agreement for any category or type of provider established by this paragraph (f).
(vii) Corporate services providers shall be assigned to only one of the following allowable categories based upon the predominate type of procedure rendered by the organization;
(A) Medical treatment procedures;
(B) Surgical treatment procedures;
(C) Maternity management procedures;
(D) Rehabilitation and/or habilitation procedures; or
(E) Diagnostic technical procedures.
(viii) The Director, OCHAMPUS, or designee, shall determine the appropriate procedural category of a qualified organization and may change the category based upon the provider's CHAMPUS claim characteristics. The category determination of the Director, OCHAMPUS, designee, is conclusive and may not be appealed.
(2)
(i) Be a corporation or a foundation, but not a professional corporation or professional association; and
(ii) Be institution-affiliated or freestanding as defined in § 199.2; and
(iii) Provide:
(A) Services and related supplies of a type rendered by CHAMPUS individual professional providers or diagnostic technical services and related supplies of a type which requires direct patient contact and a technologist who is licensed by the state in which the procedure is rendered or who is certified by a Qualified Accreditation Organization as defined in § 199.2; and
(B) A level of care which does not necessitate that the beneficiary be provided with on-site sleeping accommodations and food in conjunction with the delivery of services; and
(iv) Complies with all applicable organizational and individual licensing or certification requirements that are extant in the state, county, municipality, or other political jurisdiction in which the provider renders services; and
(v) Be approved for Medicare payment when determined to be substantially comparable under the provisions of paragraph (f)(1)(iv)(D) of this section or, when Medicare approved status is not required, be accredited by a qualified accreditation organization, as defined in § 199.2; and
(vi) Has entered into a participation agreement approved by the Director, OCHAMPUS, or designee, which at least complies with the minimum participation agreement requirements of this section.
(3)
(i) The merger of the provider corporation or foundation into another corporation or foundation, or the consolidation of two or more corporations or foundations resulting in the creation of a new corporation or foundation, constitutes a change of ownership.
(ii) Transfer of corporate stock or the merger of another corporation or foundation into the provider corporation or foundation does not constitute change of ownership.
(iii) The surviving corporation or foundation shall notify the Director, OCHAMPUS, or designee, in writing of the change of ownership promptly after the effective date of the transfer or change in ownership.
(4)
(5)
For
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(b)
(1)
(i)
(ii)
(iii)
(iv)
If name of patient is different from sponsor, explain (for example, stepchild or illegitimate child).
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(A) Date each service was rendered.
(B) Procedure code or narrative description of each procedure or service for each date of service.
(C) Individual charge for each item of service or each supply for each date.
(D) Detailed description of any unusual complicating circumstances related to the medical care provided that the physician or other individual professional provider may choose to submit separately.
(x)
(A) An itemized billing showing each item of service or supply provided for each day covered by the claim.
The Director, OCHAMPUS, or a designee, may approve, in writing, an alternative billing procedure for RTCs or other special institutions, in which case the itemized billing requirement may be waived. The particular facility will be aware of such approved alternate billing procedure.
(B) Any absences from a hospital or other authorized institution during a period for which inpatient benefits are being claimed must be identified specifically as to date or dates and provide details on the purpose of the absence. Failure to provide such information will result in denial of benefits and, in an ongoing case, termination of benefits for the inpatient stay at least back to the date of the absence.
(C) For hospitals subject to the CHAMPUS DRG-based payment system (see paragraph (a)(1)(ii)(D) of § 199.14), the following information is also required:
(
(
(
(
(
(
(D) Claims submitted by hospitals (or other authorized institutional providers) must include the name of the individual actually rendering the care, along with the individual's professional status (e.g., M.D., Ph.D., R.N., etc.).
(xi)
(A) Name of drug.
When the physician or pharmacist so requests, the name of the drugs may be submitted to the CHAMPUS fiscal intermediary directly by the physician or pharmacist.
(B) Strength of drug.
(C) Name and address of pharmacy where drug was purchased.
(D) Prescription number of drug being claimed.
(xii)
(xiii)
(3)
(i) All care rendered and billed must be appropriately documented in writing. Failure to document the care billed will result in the claim or specific services on the claim being denied CHAMPUS cost-sharing.
(ii) A pattern of failure to adequately document medical care will result in episodes of care being denied CHAMPUS cost-sharing.
(iii) Cursory notes of a generalized nature that do not identify the specific treatment and the patient's response to the treatment are not acceptable.
(iv) The documentation of medical records must be legible and prepared as soon as possible after the care is rendered. Entries should be made when the treatment described is given or the observations to be documented are made. The following are documentation requirements and specific time frames for entry into the medical records:
(A) General requirements for acute medical/surgical services:
(
(
(
(
(B) Requirements specific to mental health services:
(
(
(
(
(
(
(
(
(
(
(
A pattern of failure to meet the above criteria may result in provider sanctions prescribed under § 199.9.
(4)
(i)
(ii)
(iii)
(iv)
(5)
(A) Disclosure of such information is authorized specifically by the beneficiary;
(B) Disclosure is necessary to permit authorized governmental officials to investigate and prosecute criminal actions; or
(C) Disclosure is authorized or required specifically under the terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information Act, and the Privacy Act (refer to paragraph (m) of § 199.1 of this part).
(ii) For the purposes of determining the applicability of and implementing the provisions of §§ 199.8 and 199.9, or any provision of similar purpose of any other medical benefits coverage or entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent or notice to any beneficiary or sponsor, may release to or obtain from any insurance company or other organization, governmental agency, provider, or person, any information with respect to any beneficiary when such release constitutes a routine use duly published in the
(iii) Before a beneficiary's claim of benefits is adjudicated, the beneficiary or the provider(s) must furnish to CHAMPUS that information which is necessary to make the benefit determination. Failure to provide the requested information will result in denial of the claim. A beneficiary, by submitting a CHAMPUS claim(s) (either a participating or nonparticipating claim), is deemed to have given consent to the release of any and all medical records or documentation pertaining to the claims and the episode of care.
(c)
(i)
(ii)
(iii)
If the care was rendered to a minor and a custodial parent or legal guardian requests information prior to the minor turning 18 years of age, medical records may still be released pursuant to the signature of the parent or guardian, and claims information may still be released to the parent or guardian in response to the request, even though the beneficiary has turned 18 between the time of the request and the response. However, any follow-up request or subsequent request from the parent or guardian, after the beneficiary turns 18 years of age, will necessitate the authorization of the beneficiary (or the beneficiary's legal guardian as appointed by a cognizant court), before records and information can be released to the parent or guardian.
(iv)
(v)
(B) When the institutional provider obtains the signature of the beneficiary (or the signature of the parent or guardian when the beneficiary is under 18 years) on a CHAMPUS claim form at admission, the following participating claims may be submitted without the beneficiary's signature.
(
(
(C) Claims filed by providers using CHAMPUS-approved signature-on-file and claims submission procedures.
(2)
(i)
(A) Certifies that the specific medical care listed on the claim form was, in fact, rendered to the specific beneficiary for which benefits are being claimed, on the specific date or dates indicated, at the level indicated and by the provider signing the claim unless the claim otherwise indicates another individual provided the care. For example, if the claim is signed by a psychiatrist and the care billed was rendered by a psychologist or licensed social worker, the claim must indicate both the name and profession of the individual who rendered the care.
(B) Certifies that the provider has agreed to participate (providing this agreement has been indicated on the claim form) and that the CHAMPUS-determined allowable charge or cost will constitute the full charge or cost for the medical care listed on the specific claim form; and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS payment combined with the cost-shared amount paid by, or on behalf of the beneficiary, as full payment for the covered medical services or supplies.
(
(
(ii)
(iii)
(d)
(1)
(i) One year after the services are provided; or
(ii) 90 days from the date the claim was returned to the provider or beneficiary.
(2)
(i)
(B)
(C)
(D)
(E)
(ii)
(A) Such requests for an exception must include a complete explanation of the circumstances of the late filing, together with all available documentation supporting the request, and the specific claim denied for late filing.
(B) Each request for an exception to the claims filing deadline is reviewed individually and considered on its own merits.
(e)
(1)
(2)
(3)
(f)
(1)
(i)
(ii)
(2)
(3)
(4)
(g)
(h)
(1)
(2)
(3)
(i) Name and address of beneficiary.
(ii) Name and address of provider.
(iii) Services or supplies covered by claim for which CEOB applies.
(iv) Dates services or supplies provided.
(v) Amount billed; CHAMPUS-determined allowable charge or cost; and amount of CHAMPUS payment.
(vi) To whom payment, if any, was made.
(vii) Reasons for any denial.
(viii) Recourse available to beneficiary for review of claim decision (refer to § 199.10 of this part).
The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS beneficiary.
(4)
(i)
(j)
(a)
(2) The provision in paragraph (a)(1) of this section is made applicable specifically to retired members, dependents, and survivors by 10 U.S.C. 1086(g). The underlying intent, in addition to preventing waste of Federal resources, is to ensure that TRICARE beneficiaries receive maximum benefits while ensuring that the combined payments of TRICARE and other health and insurance plans do not exceed the total charges.
(b)
(1)
(2)
(3)
(4)
(i) Plans administered under title XIX of the Social Security Act (Medicaid);
(ii) Coverage specifically designed to supplement CHAMPUS benefits (a health insurance policy or other health benefit plan that meets the definition and criteria under supplemental insurance plan as set forth in § 199.2(b));
(iii) Entitlement to receive care from Uniformed Services medical care facilities;
(iv) Certain Federal Government programs, as prescribed by the Director, OCHAMPUS, that are designed to provide benefits to a distinct beneficiary population and for which entitlement does not derive from either premium payment of monetary contribution (for example, the Indian Health Service); or
(v) State Victims of Crime Compensation Programs.
(c)
(1)
(2)
(i) The claim is submitted for health care services furnished to a covered beneficiary; and,
(ii) The claim is identified as involving services for which a third-party payer, other than a primary medical insurer, may be liable.
(3)
(4)
(5)
(6)
(d)
(ii)
(iii)
(A) For items or services or portions or segments of items or services for which payment may be made under Medicare, the CHAMPUS payment will be the amount of the beneficiary's actual out of pocket liability, minus the amount payable by Medicare, also minus amount payable by other third party payers, subject to the limit under paragraph (d)(1)(ii) of this section.
(B) For items or services or segments of items or services for which no payment may be made under Medicare, the CHAMPUS payment will be the same as it would be for a CHAMPUS eligible retiree, dependent, or survivor beneficiary who is not Medicare eligible.
(iv)
(A) In the case of a Medicare-eligible beneficiary receiving typical physician office visit services, Medicare payment generally will be made. CHAMPUS payment will be determined consistent with paragraph (d)(1)(iii)(A) of this section.
(B) In the case of a Medicare-eligible beneficiary residing and receiving medical care overseas, Medicare payment generally may not be made. CHAMPUS payment will be determined consistent with paragraph (d)(1)(iii)(B) of this section.
(C) In the case of a Medicare-eligible beneficiary receiving skilled nursing facility services a portion of which is payable by Medicare (such as during the first 100 days) and a portion of which is not payable by Medicare (such as after 100 days), CHAMPUS payment for the first portion will be determined consistent with paragraph (d)(1)(iii)(A) of this section and for the second portion consistent with paragraph (d)(1)(iii)(B) of this section.
(v)
(vi)
(vii)
(viii)
(2)
(3)
(4)
(5)
(e)
(a)
(2) This section also sets forth provisions for invoking administrative remedies in situations requiring administrative action to enforce provisions of law, regulation, and policy in the administration of CHAMPUS and to ensure quality of care for CHAMPUS beneficiaries. Examples of such situations may include a case in which it is discovered that a provider fails to meet requirements under this part to be an authorized CHAMPUS provider; a case in which the provider ceases to be qualified as a CHAMPUS provider because of suspension or revocation of the provider's license by a local licensing authority; or a case in which a provider meets the minimum requirements under this part but, nonetheless, it is determined that it is in the best interest of the CHAMPUS or CHAMPUS beneficiaries that the provider should not be an authorized CHAMPUS provider.
(3) The administrative remedies set forth in this section are in addition to, and not in lieu of, any other remedies or sanctions authorized by law or regulation. For example, administrative action under this section may be taken in a particular case even if the same case will be or has been processed under the administrative procedures established by the Department of Defense to implement the Program Fraud Civil Remedies Act.
(4) Providers seeking payment from the Federal Government through programs such as CHAMPUS have a duty to familiarize themselves with, and comply with, the program requirements.
(5) CHAMPUS contractors and peer review organizations have a responsibility to apply provisions of this regulation in the discharge of their duties, and to report all known situations involving fraud, abuse, or conflict of interest. Failure to report known situations involving fraud, abuse, or conflict of interest will result in the withholding of administrative payments or other contractual remedies as determined by the Director, OCHAMPUS, or a designee.
(b)
(1) A pattern of waiver of beneficiary (patient) cost-share or deductible.
In a case of a legitimate bad debt write-off of patient cost-share or deductible, the provider's record should include documentation as to what efforts were made to collect the debt, when the debt was written
(2) Improper billing practices. Examples include, charging CHAMPUS beneficiaries rates for services and supplies that are in excess of those charges routinely charged by the provider to the general public, commercial health insurance carriers, or other federal health benefit entitlement programs for the same or similar services. (This includes dual fee schedules—one for CHAMPUS beneficiaries and one for other patients or third-party payers. This also includes billing other third-party payers the same as CHAMPUS is billed but accepting less than the billed amount as reimbursement. However, a formal discount arrangement such as through a preferred provider organization, may not necessarily constitute an improper billing practice.)
(3) A pattern of claims for services which are not medically necessary or, if medically necessary, not to the extent rendered. For example, a battery of diagnostic tests are given when, based on the diagnosis, fewer tests were needed.
(4) Care of inferior quality. For example, consistently furnishing medical or mental health services that do not meet accepted standards of care.
(5) Failure to maintain adequate medical or financial records.
(6) Refusal to furnish or allow the Government (for example, OCHAMPUS) or Government contractors access to records related to CHAMPUS claims.
(7) Billing substantially in excess of customary or reasonable charges unless it is determined by OCHAMPUS that the excess charges are justified by unusual circumstances or medical complications requiring additional time, effort, or expense in localities when it is accepted medical practice to make an extra charge in such cases.
(8) Unauthorized use of the term “Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)” in private business. While the use of the term “CHAMPUS” is not prohibited by federal statute, misrepresentation or deception by use of the term “CHAMPUS” to imply an official connection with the Government or to defraud CHAMPUS beneficiaries may be a violation of federal statute. Regardless of whether the actual use of the term “CHAMPUS” may be actionable under federal statute, the unauthorized or deceptive use of the term “CHAMPUS” in private business will be considered abuse for purposes of this Section.
(c)
(1) Submitting CHAMPUS claims (including billings by providers when the claim is submitted by the beneficiary) for services, supplies, or equipment not furnished to, or used by, CHAMPUS beneficiaries. For example, billing or claiming services when the provider was on call (other than an authorized standby charge) and did not provide any specific medical care to the beneficiary; providing services to an ineligible person and billing or submitting a claim for the services in the name of an eligible CHAMPUS beneficiary; billing or submitting a CHAMPUS claim for an office visit for a missed appointment; or billing or submitting a CHAMPUS claim for individual psychotherapy when a medical visit was the only service provided.
(2) Billing or submitting a CHAMPUS claim for costs for noncovered or nonchargeable services, supplies, or equipment disguised as covered items. Some examples are: (i) Billings or CHAMPUS claims for services which would be covered except for the frequency or duration of the services, such as billing or submitting a claim for two one-hour psychotherapy sessions furnished on separate days when the actual service furnished was a two-hour therapy session on a single day, (ii) spreading the billing or claims for services over a time period that reduces the apparent frequency to a level that may be cost-shared by CHAMPUS, (iii) charging to CHAMPUS, directly or indirectly, costs not incurred or not reasonably allowable to the services billed or claimed under CHAMPUS, for example, costs attributable to nonprogram activities, other enterprises, or the personal expenses of principals, or (iv) billing or submitting claim on a fee-for-service basis when in fact a personal service to
(3) Breach of a provider participation agreement which results in the beneficiary (including parent, guardian, or other representative) being billed for amounts which exceed the CHAMPUS-determined allowable charge or cost.
(4) Billings or CHAMPUS claims for supplies or equipment which are clearly unsuitable for the patient's needs or are so lacking in quality or sufficiency for the purpose as to be virtually worthless.
(5) Billings or CHAMPUS claims which involve flagrant and persistent overutilization of services without proper regard for results, the patient's ailments, condition, medical needs, or the physician's orders.
(6) Misrepresentations of dates, frequency, duration, or description of services rendered, or of the identity of the recipient of the services or the individual who rendered the services.
(7) Submitting falsified or altered CHAMPUS claims or medical or mental health patient records which misrepresent the type, frequency, or duration of services or supplies or misrepresent the name(s) of the individual(s) who provided the services or supplies.
(8) Duplicate billings or CHAMPUS claims. This includes billing or submitting CHAMPUS claims more than once for the same services, billing or submitting claims both to CHAMPUS and the beneficiary for the same services, or billing or submitting claims both to CHAMPUS and other third-parties (such as other health insurance or government agencies) for the same services, without making full disclosure of material facts or immediate, voluntary repayment or notification to CHAMPUS upon receipt of payments which combined exceed the CHAMPUS-determined allowable charge of the services involved.
(9) Misrepresentation by a provider of his or her credentials or concealing information or business practices which bear on the provider's qualifications for authorized CHAMPUS provider status. For example, a provider representing that he or she has a qualifying doctorate in clinical psychology when the degree is not from a regionally accredited university.
(10) Reciprocal billing. Billing or claiming services which were furnished by another provider or furnished by the billing provider in a capacity other than as billed or claimed. For example, practices such as the following: (i) One provider performing services for another provider and the latter bills as though he had actually performed the services (e.g., a weekend fill-in); (ii) providing service as an institutional employee and billing as a professional provider for the services; (iii) billing for professional services when the services were provided by another individual who was an institutional employee; (iv) billing for professional services at a higher provider profile than would be paid for the person actually furnishing the services, (for example, bills reflecting that an M.D. or Ph.D. performed the services when services were actually furnished by a licensed social worker, psychiatric nurse, or marriage and family counselor); or (v) an authorized provider billing for services which were actually furnished by an unauthorized or sanctioned provider.
(11) Submitting CHAMPUS claims at a rate higher than a rate established between CHAMPUS and the provider, if such a rate has been established. For example, billing or claiming a rate in excess of the provider's most favored rate limitation specified in a residential treatment center agreement.
(12) Arrangements by providers with employees, independent contractors, suppliers, or others which appear to be designed primarily to overcharge the CHAMPUS through various means (such as commissions, fee-splitting, and kickbacks) used to divert or conceal improper or unnecessary costs or profits.
(13) Agreements or arrangements between the supplier and recipient (recipient could be either a provider or beneficiary, including the parent, guardian, or other representative of the beneficiary) that result in billings or claims which include unnecessary costs or charges to CHAMPUS.
(d)
(2) CHAMPUS cost-sharing shall be denied on any claim where a conflict of interest situation is found to exist. This denial of cost-sharing applies whether the claim is submitted by the individual who provided the care, the institutional provider in which the care was furnished, or the beneficiary.
(e)
(2) CHAMPUS cost-sharing of a claim shall be denied where the services or supplies were provided by an active duty member of the Uniformed Services or a civilian employee of the Government. This denial of CHAMPUS payment applies whether the claim for reimbursement is filed by the individual who provided the care, the institutional provider in which the care was furnished, or by the beneficiary.
Physicians of the National Health Service Corps (NHSC) may be assigned to areas where there is a shortage of medical providers. Although these physicians would be prohibited from accepting CHAMPUS payments as individuals if they are employees of the United States Government, the private organizations to which they may be assigned may be eligible for payment, as determined by the Director, OCHAMPUS, or a designee.
(3) The prohibition against dual compensation does not apply to individuals under contract to the Uniformed Services or the Government.
(f)
(1)
(i)
Under the above paragraph (f)(1)(i)(A) of this section, an entity may be excluded or suspended from CHAMPUS whenever the entity is found to have a person, convicted of a crime involving CHAMPUS fraud, who has a direct or indirect ownership or control interest (see § 199.2) of 5 percent or more in the entity, or is an officer, director, agent or managing employee of the entity. The entity will have an opportunity to provide evidence to show that the ownership or control relationship has ceased. While an entity will not be excluded or suspended from CHAMPUS for employing a provider who has been sanctioned under this Section, the entity will be denied CHAMPUS payment for any services furnished by the sanctioned employee. As an authorized CHAMPUS provider, the entity is responsible for ensuring that all CHAMPUS claims involve services furnished to CHAMPUS beneficiaries by employees who meet all requirements under CHAMPUS for provider status.
(B)
(C)
(D)
(E)
(ii)
(iii)
(iv)
(v)
(
(B)
(2)
(i)
(A) The retroactive effective date of termination shall not be limited due to the passage of time, erroneous payment of claims, or any other events which may be cited as a basis for CHAMPUS recognition of the provider notwithstanding the fact that the provider does not meet program qualifications. Unless specific provision is made in this part to “grandfather” or authorize a provider who does not otherwise meet the qualifications established by this part, all unqualified providers shall be terminated.
(B) Any claims cost-shared or paid under CHAMPUS for services or supplies furnished by the provider on or after the effective date of termination, even when the effective date is retroactive, shall be deemed an erroneous payment unless specific exception is provided in this part. All erroneous payments are subject to collection under § 199.11 of this part.
(C) If an institution is terminated as an authorized CHAMPUS provider, the institution shall immediately give written notice of the termination to any CHAMPUS beneficiary (or their parent, guardian, or other representative) admitted to, or receiving care at, the institution on or after the effective date of the termination. In addition, when an institution is terminated with an effective date of termination after the date of the initial determination terminating the provider, any beneficiary admitted to the institution prior to the effective date of termination (or their parent, guardian, or other representative) shall be notified by the Director, OCHAMPUS, or a designee, by certified mail of the termination, and that CHAMPUS cost-sharing of the beneficiary's care in the institution will cease as of the effective date of the termination. However, any beneficiary admitted to the institution prior to any grace period extended to the institution under paragraph (f)(2)(ii)(A) of this section shall be advised that, if the beneficiary's care otherwise qualifies for CHAMPUS coverage, CHAMPUS cost-sharing of the care in the institution will continue in order to provide a reasonable period of transition of care; however the transitional period of CHAMPUS cost-sharing shall not exceed the last day of the month following the month in which the institution's status as a CHAMPUS provider is terminated. (This authorized CHAMPUS cost-sharing of the inpatient care received during the transition period is an exception to the general rule that CHAMPUS payment for care furnished after the effective date of termination of the provider's status shall be deemed to be an erroneous payment.) If a major violation under paragraph (f)(2)(ii)(B) of this section is involved, in order to ensure immediate action is taken to transfer beneficiaries to an approved provider, CHAMPUS cost-sharing shall not be authorized after the effective date of termination of the provider's status.
(ii)
(A)
(
(
(
(
(B)
(3)
(ii) Pursuant to § 199.11 of this part, the Director, OCHAMPUS, or a designee, may recover erroneous payments on claims involving fraud or false or misleading statements. Remedies for recovery of the erroneous payments include the use of offset against future CHAMPUS payments.
(iii) Under policies adopted by the Director, OCHAMPUS, or a designee, individuals who, based on reliable information, have previously submitted fraudulent or false CHAMPUS claims, may be required to comply with any procedures (e.g., partial or total pre-payment audit or review, restriction to a designated primary care provider, etc.) which the Director, OCHAMPUS, or a designee, deems appropriate to ensure that their future medical care and CHAMPUS claims (including the medical care and CHAMPUS claims submitted by or for members of their family) are valid.
(g)
(i)
(ii)
(A) When the case concerns all or any part of the same issues which have been the subject of criminal conviction or civil judgment involving fraud by a provider:
(
(
(
(
(
(
(
(
(
(
(B) The Director, OCHAMPUS, or a designee, may consider the following factors in determining a reasonable period of exclusion or suspension of a provider under CHAMPUS:
(
(
(
(
(
(
(
(
(
(
(
(2)
(i) Termination of the provider under CHAMPUS shall continue even if the provider obtains a license to practice in a second jurisdiction during the period of suspension or revocation of the provider's license by the original licensing jurisdiction. A provider who has licenses to practice in two or more jurisdictions and has one or more license(s) suspended or revoked will also be terminated as a CHAMPUS provider.
(A) Professional providers shall remain terminated from the CHAMPUS until the jurisdiction(s) suspending or revoking the provider's license(s) to practice restores it or removes the impediment to restoration.
(B) Institutional providers shall remain terminated under CHAMPUS until their license is restored. In the event the facility is sold, transferred, or reorganized as a new legal entity, and a license issued under a new name or to a different legal entity, the new entity must submit an application to be an authorized CHAMPUS provider.
(ii) If the CHAMPUS provider status is terminated due to the loss of the provider's license, the effective date shall be retroactive to the date the provider lost the license; however, in the case of a professional provider who has licenses in two or more jurisdictions and submitted claims from a jurisdiction from which he/she had a valid license, the effective date of the termination will be 15 calendar days from the date of the written initial determination of termination for purposes of claims from the jurisdiction in which the provider still has a valid license.
(h)
(ii) When adequate evidence exists to determine that a provider or beneficiary is submitting fraudulent or
(A) Adequate evidence is any information sufficient to support the reasonable belief that a particular act or omission has occurred.
(B) Indictment or any other initiation of criminal charges, filing of a complaint for civil fraud, issuance of an administrative complaint under the Program Fraud Civil Remedies Act, or issuance of an initial determination under this part for submitting fraudulent or false claims or claims involving practices that may be fraud or abuse as defined by this part, shall constitute adequate evidence for invoking temporary suspension of claims processing.
(iii) The Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing without first notifying the provider or beneficiary of the intent to suspend payments. Following a decision to invoke a temporary suspension, however, the Director, OCHAMPUS, or a designee, shall issue written notice advising the provider or beneficiary that:
(A) A temporary suspension of claims processing has been ordered and a statement of the basis of the decision to suspend payment. Unless the suspension is based on any of the actions set forth in paragraph (h)(1)(ii)(B) of this section, the notice shall describe the suspected acts or omissions in terms sufficient to place the provider or beneficiary on notice without disclosing the Government's evidence.
(B) Within 30 days (or, upon written request received by OCHAMPUS during the 30 days and for good cause shown, within 60 days) from the date of the notice, the provider or beneficiary may:
(
(
(C) Additional proceedings to determine disputed material facts may be conducted unless:
(
(
(iv) If the beneficiary or provider submits, either in writing or in person, additional information or argument in opposition to the suspension, the Director, OCHAMPUS, or a designee, shall issue a suspending official's decision which modifies, terminates, or leaves in force the suspension of claims processing. However, a decision to terminate or modify the suspension shall be without prejudice to the subsequent imposition of suspension of claims processing, imposition of sanctions under this § 199.9, the recovery of erroneous payments under § 199.11 of this part, or any other administrative or legal action authorized by law or regulation. The suspending official's decision shall be in writing as follows:
(A) A written decision based on all the information in the administrative record, including any submission by the beneficiary or provider, shall be final in a case:
(
(
(
(B) In a case in which additional proceedings are necessary as to disputed material facts, the suspending official's decision shall advise the beneficiary or provider that the case has been referred for handling as a hearing under § 199.10 of this part.
(v) A suspension of claims processing may be modified or terminated for reasons such as:
(A) Newly discovered evidence;
(B) Elimination of any of the causes for which the suspension was invoked; or
(C) Other reasons the Director, OCHAMPUS, or a designee, deems appropriate.
(vi) A suspension of claims processing shall be for a temporary period pending the completion of investigation and any ensuing legal or administrative proceedings, unless sooner terminated by the Director, OCHAMPUS, or a designee, or as provided in this subparagraph.
(A) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless the Government official responsible for initiation of the legal or administrative action requests its extension, in which case it may be extended for an additional 6 months. In no event may a suspension extend beyond 18 months, unless legal or administrative proceedings have been initiated during that period.
(B) The Director, OCHAMPUS, or a designee, shall notify the Government official responsible for initiation of the legal or administrative action of the proposed termination of the suspension, at least 30 days before the 12-month period expires, to give the official an opportunity to request an extension.
(2)
(A) The notice shall state which sanction will be taken and the effective date of that sanction as determined in accordance with the provisions of this part.
(B) The notice shall inform the provider of the situation(s), circumstance(s), or action(s) which form the basis for the proposed sanction and reference the paragraph of this part under which the administrative action is being taken.
(C) The notice will be sent to the provider's last known business or office address (or home address if there is no known business address.)
(D) The notice shall offer the provider an opportunity to respond within 30 days (or, upon written request received by OCHAMPUS during the 30 days and for good cause shown, within 60 days) from the date on the notice with either:
(
(
(3)
(ii) The initial determination shall include:
(A) A statement of the sanction being invoked;
(B) A statement of the effective date of the sanction;
(C) A statement of the facts, circumstances, or actions which form the basis for the sanction and a discussion of any information submitted by the provider relevant to the sanction;
(D) A statement of the factors considered in determining the period of sanction;
(E) The earliest date on which a request for reinstatement under CHAMPUS will be accepted;
(F) The requirements and procedures for reinstatement; and,
(G) Notice of the available hearing upon request of the sanctioned provider.
(4)
(B) If the Government has made erroneous payments to a provider because of claims involving fraud, abuse, or conflicts of interest, restitution of the erroneous payments shall be made before a request for reinstatement as a CHAMPUS authorized provider will be considered. Without restitution or resolution of the debt under § 199.11 of this part, a provider shall not be reinstated as an authorized CHAMPUS provider. This is not an appealable issue under § 199.10 of this part.
(C) For purposes of authorization as a CHAMPUS provider, a provider who is excluded or suspended under this § 199.9 and who submits participating claims for services furnished on or after the effective date of the exclusion or suspension is considered to have forfeited or waived any right or entitlement to bill the beneficiary for the care involved in the claims. Similarly, because a provider is expected to know the CHAMPUS requirements for qualification as an authorized provider, any participating provider who fails to meet the qualification requirements for CHAMPUS is considered to have forfeited or waived any right or entitlement to bill the beneficiary for the care involved in the CHAMPUS claims. If, in either situtation, the provider bills the beneficiary, restitution to the beneficiary may be required by the Director, OCHAMPUS, or a designee, as a condition for consideration of reinstatement as a CHAMPUS authorized provider.
(ii)
(iii)
(
(
(B) A provider entity excluded from CHAMPUS under § 199.9(f)(1)(i) may seek reinstatement by submitting a written request to the Director, OCHAMPUS, or a designee, with documentation sufficient to establish the provider's qualifications under this part to be a CHAMPUS authorized provider and either:
(
(
(
(
(
Under paragraph (h)(4)(iii)(B)(
(iv)
(A) The provider meets all requirements under this part to be an authorized CHAMPUS provider;
(B) No additional criminal, civil, or administrative action has been taken or is being considered which could subject the provider to exclusion, suspension, or termination under this section;
(C) In the case of a provider entity, verification has been made of the divestiture or termination of the owner, controlling party, officer, director, agent or managing employee whose conviction led to the entity's exclusion,
(v)
(
(
(B)
(5)
(ii) If an exclusion is voided under paragraph (h)(5)(i) of this section, CHAMPUS will make payment, either to the provider or the beneficiary (if the claim was not a participating claim) for otherwise authorized services under CHAMPUS that are furnished or performed during the period of exclusion.
(iii) CHAMPUS will also void the exclusion of any entity that was excluded under § 199.9(f)(1)(i) based
(iv) When CHAMPUS voids the exclusion of a provider or an entity, notice will be given to the agencies and others that were originally notified, in accordance with § 199.9(k).
(i)
(2)
(i) Results of audits conducted by or on behalf of the Government. Such audits can include the results of 100 percent review of claims and related records or a statistically valid sample audit of the claims or records. A statistical sampling shall constitute
(ii) Reports, including sanction reports, from various sources including a peer review organization (PRO) for the area served by the provider; state or local licensing or certification authorities; peer or medical review consultants of the Government, including consultants for Government contractors; state or local professional societies; or other sources deemed appropriate by the Director, OCHAMPUS, or a designee.
(iii) Orders or documents issued by Federal, state, foreign, or other courts of competent jurisdiction which issue findings and/or criminal convictions or civil judgments involving the provider, and administrative rulings, findings, or determinations by any agency of the Federal Government, a state, or local licensing or certification authority regarding the provider's status with that agency or authority.
(j)
(2) The normal OCHAMPUS procedure is to suspend action on the administrative process pending an investigation by the Department of Defense—Inspector General or final disposition by the Department of Justice.
(3) Though OCHAMPUS administrative action is taken independently of any action by the Department of Defense-Inspector General or by the Department of Justice, once a case is forwarded to the Department of Defense-Inspector General or the Department of
(4) In some instances there may be dual jurisdiction between agencies; as in, for example, the joint regulations issued by the Department of Justice and the Government Accounting Office regarding debt collection.
(k)
(2) If CHAMPUS has temporarily suspended claims processing, notice of such action normally will be given to the affected provider and Uniformed Services Medical Treatment Facilities, Health Benefits Advisors, beneficiaries, and sponsors. Notice may also be given to any information or news media and any other individual, professional provider, or institutional provider, as deemed appropriate. However, since a “temporary suspension of claims processing” is by definition not a final or formal agency action, the basis for the action generally will not be disclosed. It is noted that the basis for the action can be a result of questions arising from routine audits to investigation of possible criminal violations.
(l)
(2) When it is in the best interest of CHAMPUS, the Director, OCHAMPUS, has the discretionary authority to waive an action or enter into compromise or settlement of administrative actions taken under this § 199.9.
(m)
(a)
(1)
(B) CHAMPUS contractors and OCHAMPUSEUR shall notify a provider of an initial determination on a claim only if the provider participated in the claim. (See § 199.7 of this part.)
(C) CHAMPUS peer review organizations shall notify providers and fiscal intermediaries of a denial determination on a claim.
(D) Notice of an initial determination on a claim processed by a CHAMPUS contractor or OCHAMPUSEUR normally will be made on a CHAMPUS Explanation of Benefits (CEOB) form.
(E) Each notice of an initial determination on a request for benefit authorization, a request by a provider for approval as an authorized CHAMPUS provider, or a decision to disqualify or exclude a provider as an authorized provider under CHAMPUS shall state the reason for the determination and the underlying facts supporting the determination.
(F) In any case when the initial determination is adverse to the beneficiary or participating provider, or to the provider seeking approval as an authorized CHAMPUS provider, the notice shall include a statement of the beneficiary's or provider's right to appeal the determination. The procedure for filing the appeal also shall be explained.
(ii)
(B) An initial determination involving a CHAMPUS beneficiary entitled to Medicare Part A, who is enrolled in Medicare Part B, may be appealed by the beneficiary or their provider under this section of this Part only when the claimed services or supplies are payable by CHAMPUS and are not payable under Medicare. Both Medicare and CHAMPUS offer an appeal process when a claim for healthcare services or supplies is denied and most healthcare services and supplies are a benefit payable under both Medicare and CHAMPUS. In order to avoid confusion on the part of beneficiaries and providers and to expedite the appeal process, services and supplies denied payment by Medicare will not be considered for coverage by CHAMPUS if the Medicare denial of payment is appealable under Medicare. Because such claims are not considered for payment by CHAMPUS, there can be no CHAMPUS appeal. If, however, a Medicare claim or appeal results in some payment by Medicare, the services and supplies paid by Medicare will be considered for payment by CHAMPUS. In that situation, any decision to deny CHAMPUS payment will be appealable under this section. The following examples of CHAMPUS appealable issues involving Medicare-eligible CHAMPUS beneficiaries are illustrative; they are not all-inclusive.
(
(
(
(2)
(i)
(A) A provider disqualified or excluded as an authorized provider under CHAMPUS based on a determination of abuse or fraudulent practices or procedures under another Federal or federally funded program is not a party to the CHAMPUS action and may not appeal under this section.
(B) A beneficiary who has an interest in receiving care or has received care from a particular provider cannot be an appealing party regarding the exclusion, suspension, or termination of the provider under § 199.9 of this part.
(C) A sponsor or parent of a beneficiary under 18 years of age or guardian or an incompetent beneficiary is not a party to the initial determination and may not serve as the appealing party, although such persons may represent the appealing party in an appeal.
(D) A third party, such as an insurance company, is not a party to the initial determination and is not entitled to appeal even though it may have an indirect interest in the initial determination.
(E) A nonparticipating provider is not a party to the initial determination and may not appeal.
(ii)
(A) The representative shall have the same authority as the party to the appeal and notice given to the representative shall constitute notice required to be given to the party under this part.
(B) To avoid possible conflicts of interest, an officer or employee of the United States, such as an employee or member of a Uniformed Service, including an employee or staff member of a Uniformed Service legal office, or a CHAMPUS advisor, subject to the exceptions in 18 U.S.C. 205, is not eligible to serve as a representative. An exception usually is made for an employee or member of a Uniformed Service who
(3)
(4)
(5)
(6)
(i) A dispute regarding a requirement of the law or regulation.
(ii) The amount of the CHAMPUS-determined allowable cost or charge, since the methodology for determining allowable costs or charges is established by this part.
(iii) The establishment of diagnosis-related groups (DRGs), or the methodology for the classification of inpatient discharges within the DRGs, or the weighting factors that reflect the relative hospital resources used with respect to discharges within each DRG, since each of these is established by this part.
(iv) Certain other issues on the basis that the authority for the initial determination is not vested in CHAMPUS. Such issues include but are not limited to the following examples:
(A) Determination of a person's eligibility as a CHAMPUS beneficiary is the responsibility of the appropriate Uniformed Service. Although OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations concerning a beneficiary's eligibility in order to ensure proper disbursement of appropriated funds on each CHAMPUS claim processed, ultimate responsibility for resolving a beneficiary's eligibility rests with the Uniformed Services. Accordingly, disputed question of fact concerning a beneficiary's eligibility will not be considered an appealable issue under the provisions of this section, but shall be resolved in accordance with § 199.3 of this part.
(B) Similarly, decisions relating to the issuance of a Nonavailability Statement (DD Form 1251) in each case are made by the Uniformed Services. Disputes over the need for a Nonavailability Statement or a refusal to issue a Nonavailability Statement are not appealable under this section. The one exception is when a dispute arises over whether the facts of the case demonstrate a medical emergency for which a Nonavailability Statement is not required. Denial of payment in this one situation is an appealable issue.
(C) Any sanction, including the period of the sanction, imposed under § 199.9 of this part which is based solely
(v) A decision by the Director, OCHAMPUS, or a designee, as a suspending official when the decision is final under the provisions of § 199.9(h)(1)(iv)(A).
(7)
(i) The amount in dispute is calculated as the amount of money CHAMPUS would pay if the services and supplies involved in dispute were determined to be authorized CHAMPUS benefits. Examples of amounts of money that are excluded by the Regulation from CHAMPUS payments for authorized benefits include, but are not limited to:
(A) Amounts in excess of the CHAMPUS-determined allowable charge or cost.
(B) The beneficiary's CHAMPUS deductible and cost-share amounts.
(C) Amounts that the CHAMPUS beneficiary, or parent, guardian, or other responsible person has no legal obligation to pay.
(D) Amounts excluded under the provisions of § 199.8 of this part.
(ii) The amount of dispute for appeals involving a denial of a request for authorization in advance of obtaining care shall be the estimated allowable charge or cost for the services requested.
(iii) There is no requirement for an amount in dispute when the appealable issue involves a denial of a provider's request for approval as an authorized CHAMPUS provider or the determination to exclude, suspend, or terminate a provider's authorized CHAMPUS provider status.
(iv) Individual claims may be combined to meet the required amount in dispute if all of the following exist:
(A) The claims involve the same beneficiary.
(B) The claims involve the same issue.
(C) At least one of the claims so combined has had a reconsideration decision issued by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review organization.
A request for administrative review under this appeal process which involves a dispute regarding a requirement of law or regulation (paragraph (a)(6)(i) of this section) or does not involve a sufficient amount in dispute (paragraph (a)(7) of this section) may not be rejected at the reconsideration level of appeal. However, an appeal shall involve an appealable issue and sufficient amount in dispute under these paragraphs to be granted a formal review or hearing.
(8)
(i)
(B) Formal review by OCHAMPUS (except for CHAMPUS peer review organization reconsiderations).
(C) Hearing.
(ii)
(B) Formal review by OCHAMPUS
(C) Hearing.
(9)
(b)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(4)
(i) A statement of the issues or issue under appeal.
(ii) The provisions of law, regulation, policies, and guidelines that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that is relevant to the issue or issues under appeal.
(iv) Whether the reconsideration upholds the initial determination or reverses it, in whole or in part, and the rationale for the action.
(v) A statement of the right to appeal further in any case when the reconsideration determination is less than fully favorable to the appealing party and the amount in dispute is $50 or more.
(5)
(i) The amount in dispute is less than $50.
(ii) Appeal rights have been offered, but a request for formal review is not received by OCHAMPUS within 60 days of the date of the notice of the reconsideration determination.
(c)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(4)
(i) A statement of the issue or issues under appeal.
(ii) The provisions of law, regulation, policies, and guidelines that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that is relevant to the issue or issues under appeal.
(iv) Whether the formal review upholds the prior determination or determinations or reverses the prior determination or determinations in whole or in part and the rationale for the action.
(v) A statement of the right to request a hearing in any case when the formal review determination is less than fully favorable, the issue is appealable, and the amount in dispute is $300 or more.
(5)
(i) The issue is not appealable. (See paragraph (a)(6) of this section.)
(ii) The amount in dispute is less than $300. (See paragraph (a)(7) of this section.)
(iii) Appeal rights have been offered but a request for hearing is not received by OCHAMPUS within 60 days of the date of the notice of the formal review determination.
(d)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(ii) The hearing officer, except as otherwise provided in this Section, normally shall have 60 days from the date of written notice of assignment to review the file, schedule and hold the hearing, and issue a recommended decision to the Director, OCHAMPUS, or designee.
(iii) The Director, OCHAMPUS, or designee, may delay the case assignment to the hearing officer if additional information is needed that cannot be obtained and included in the record within the time period specified above. The appealing party will be notified in writing of the delay resulting from the request for additional information. The Director, OCHAMPUS, or a designee, in such circumstances, will assign the case to a hearing officer within 30 days of receipt of all such additional information, or within 60 days of receipt of the request for hearing, whichever shall occur last.
(iv) The hearing officer may delay submitting the recommended decision if, at the close of the hearing, any party to the hearing requests that the record remain open for submission of additional information. In such circumstances, the hearing officer will have 30 days following receipt of all such additional information including comments from the other parties to the hearing concerning the additional information to submit the recommended decision to the Director, OCHAMPUS, or a designee.
(4)
(5)
(6)
(7)
(8)
(9)
(ii)
(iii)
(A) An appealing party shall be deemed to have abandoned a request for hearing, other than when personal appearance is waived in accordance with § 199.10(d)(11)(xii), if neither the appealing party nor an appointed representative appears at the time and place fixed for the hearing and if, within 10 days after the mailing of a notice by certified mail to the appealing party by the hearing officer to show cause, such party does not show good and sufficient cause for such failure to appear and failure to notify the hearing officer before the time fixed for hearing that an appearance could not be made.
(B) An appealing party shall be deemed to have abandoned a request for hearing if, before assignment of the case to the hearing officer, OCHAMPUS is unable to locate either the appealing party or an appointed representative.
(C) An appealing party shall be deemed to have abandoned a request for hearing if the appealing party fails to prosecute the appeal. Failure to prosecute the appeal includes, but is not limited to, an appealing party's failure to provide information reasonably requested by OCHAMPUS or the hearing officer for consideration in the appeal.
(D) If the Director, OCHAMPUS, or a designee, dismisses the request for hearing because of abandonment, the formal review determination in the case shall be deemed to be final, unless the dismissal is vacated in accordance with paragraph (d)(9)(v) of this section.
(iv)
(A) When the appealing party requesting the hearing is not a proper party under paragraph (a)(2)(i) of this section, or does not otherwise have a right to participate in a hearing.
(B) When the appealing party who filed the hearing request dies, and there is no information before the Director, OCHAMPUS, or a designee, showing that a party to the initial determination who is not an appealing party may be prejudiced by the formal review determination.
(C) When the issue is not appealable (see § 199.10(a)(6)).
(D) When the amount in dispute is less than $300 (see § 199.10(a)(7)).
(E) When all appealable issues have been resolved in favor of the appealing party.
(v)
(10)
(ii)
(iii)
(11)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(A)
(B)
(xi)
(xii)
(12)
(i)
(ii)
(e)
(i)
(ii)
(2)
(a)
(b)
(2)
(i) State worker's compensation laws.
(ii) State hospital lien laws.
(iii) State no-fault automobile statutes.
(iv) Contract rights under terms of insurance policies.
(c)
(d)
(e)
(f)
(2)
(ii)
(iii)
(3)
(i) Where the other health insurance plan has not already made benefit payments to the beneficiary or provider, a claim for direct reimbursement will be asserted against the plan, pursuant to the fiscal intermediary's coordination of benefit procedures.
(ii) If the other health insurance plan has made its benefit payment prior to
(4)
(5)
(ii) When it is determined that a person was not a CHAMPUS beneficiary, the CHAMPUS fiscal intermediary and the civilian source of medical care are expected to make all reasonable efforts to obtain payment or recoup the amount of the good faith payment from the person who erroneously claimed to be a CHAMPUS beneficiary. Recoupments of good faith payments initiated by the CHAMPUS fiscal intermediary will be processed pursuant to the provisions of paragraph (f) of this section.
(6)
(ii)
(iii)
(iv)
(v)
(A) Waiver of interest consistent with 4 CFR 104.2(c)(2) in connection with a suspension of collection action pending a CHAMPUS appeal under § 199.10 of this part where there is a substantial issue of fact in dispute.
(B) Waiver of interest where the original debt arose through no fault or lack of good faith on the part of the debtor and the collection of interest would impose a financial hardship or burden on the debtor. Some examples in which such a waiver may be appropriate include: a debt arising when a CHAMPUS beneficiary, who is unaware of the loss of eligibility for CHAMPUS because he or she has become eligible for Medicare, continues to file and be paid for CHAMPUS claims, resulting in erroneous CHAMPUS payments; a debt arising when a CHAMPUS beneficiary in good faith files and is paid a CHAMPUS claim for medical services or supplies which are later determined not to be benefits of CHAMPUS; and a debt arising when a CHAMPUS beneficiary is overpaid as the result of a calculation error on the part of a fiscal intermediary or OCHAMPUS.
(C) Waiver of interest where there has been an agreement to repay a debt in installments, there is no indication of fault or lack of good faith on the part of the debtor, and the amount of interest is so large in relation to the size of the installments that the debtor can reasonably afford to pay, that it is likely the debt will never be repaid in full.
(vi)
(A) The agency's determination that a debt is owed, including the origin, nature, and the amount of the debt;
(B) The date by which payment is to be made, which will normally be 30 days from the date the demand letter is mailed;
(C) The amount, frequency, proposed beginning date and duration of the intended deductions, which will be determined in accordance with the provisions of 5 CFR 550.1104 or 32 CFR part 90, as appropriate. Ordinarily, the size of installment deductions must bear a reasonable relationship to the size of the debt and the employee's ability to pay (4 CFR 102.11). However, the amount deducted for any period must not exceed 15 percent of the disposable pay from which the deduction is made unless the debtor has agreed in writing to the deduction of a greater amount. Debts must be collected in one lump-sum whenever possible. However, if the employee is financially unable to pay in one lump-sum, or the amount of the debt exceeds 15 percent of current disposable pay for an officially established pay interval, collection must be made in installments. Such installment deductions must be made to effect collection within the period of anticipated active duty or employment. If the debtor retires or resigns or if his or her employment or period of active duty ends before collection of the debt is completed, offset from subsequent payments of any kind due the employee from the paying agency as of the date of separation shall be made to the extent necessary to liquidate the debt pursuant to 31 U.S.C. 3716 as implemented by 5 CFR part 550 and 32 CFR part 90. If possible, the installment payments should be sufficient in size and frequency to liquidate the government's claim in not more than 3 years. Installment payments of less than $50 per month should be accepted only with reasonable justification. An employee's involuntary payment of all or any portion of a debt being collected under 5 U.S.C. 5514 will not be construed as a waiver of any rights the debtor may have under that statute or any other provisions of contract or law, unless there are statutory or contractual provisions to the contrary.
(D) An explanation of interest, penalties, and administrative costs, including a statement that such assessments must be made unless excused in accordance with the Federal Claims Collection Standards;
(E) Advice that the debtor may inspect and copy government records relating to the debt or, if debtor or his or her representative cannot personally inspect the records, to request and receive a copy of such records. Requests for copies of the records relating to the debt shall be made no later than 10 days from the receipt by the debtor of the notice of indebtedness.
(F) An opportunity for a review by the agency of its determination regarding the existence or the amount of the debt, or when a repayment schedule is established other than by written agreement, concerning the terms of the repayment schedule. The debtor shall be advised that a challenge to either the existence of the debt, the amount of the debt, or the repayment schedule, must be made within 30 days of the receipt by the debtor of the notice of indebtedness or within 45 days after receipt of the records relating to the debt, if such records are requested by the debtor. A request for waiver or reconsideration should be accompanied by supporting documents indicating why the debtor believes he is not so indebted, or by a financial affidavit supporting his request for an alternative repayment schedule;
(G) Notice that the timely filing of a petition for review will stay the commencement of collection proceedings;
(H) Notice that a final decision on the review (if one is requested) will be issued at the earliest practical date, but not later than 60 days after the filing of the petition requesting the review unless the employee requests, and the agency grants, a delay in the proceedings;
(I) The opportunity, if it has not been previously provided, to enter into a written agreement to establish a schedule for repayment of the debt in lieu of offset. The agreement will be signed by both the debtor and the agency's representative and will be kept in the agency's files;
(J) Notice that any knowingly false or frivolous statements, representations, or evidence may subject the debtor to:
(
(
(
(K) Where applicable, notice of the debtor's right to appeal, under § 199.10 of this part;
(L) That amounts paid on or deducted for the debt which are later waived or found not owed to the United States will promptly be refunded to the debtor. Refunds do not bear interest unless required or permitted by law or contract;
(M) The specific address to which all correspondence regarding the debt shall be directed. Unless otherwise prohibited by law, moneys which are due and payable to a debtor from the Civil Service Retirement and Disability Fund may be administratively offset in reasonable amounts in order to collect in one full payment or a minimal number of payments debts owed to the United States by the debtor. The General Counsel, OCHAMPUS, may forward requests for offset of debts arising from the operation of CHAMPUS to the appropriate officials of the Office of Personnel Management. These requests shall comply with the provisions of 4 CFR 102.4 and 5 CFR part 550.
(vii)
(viii)
(ix)
(g)
(2)
(3)
(i) The Director, OCHAMPUS may waive collection of payments otherwise due from certain persons as a result of health benefits received under this part after the termination of the person's eligibility for such benefits. Waiver may be granted if collection of such payments would be against equity and good conscience and not in the best interest of the United States. These criteria are met by a finding that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the person who received the erroneous payment or any other person
(ii)
(A) A person who:
(1) Is entitled to Medicare Part A by reason of disability or end stage renal disease;
(2) In the absence of such entitlement, would have been eligible for CHAMPUS under 10 U.S.C. 1086; and
(3) At the time of the receipt of such benefits, was under age 65.
(B) Any participating provider of care who received direct payment for care provided to a person described in paragraph (g)(ii)(A) of this section pursuant to an assignment of benefits from such person.
(iii) The authority to waive collection of payments under this section shall apply with regard to health benefits provided during the period beginning January 1, 1967, and ending on the later of: the termination date of any special enrollment period for Medicare Part B provided specifically for such persons; or July 1, 1996.
(4)
(i) The debtor or the estate of a debtor does not have the present or prospective ability to pay the full amount within a reasonable time;
(ii) The debtor refuses to pay the claim in full and the government is unable to enforce collection of the full amount within a reasonable time by enforced collection proceedings;
(iii) There is real doubt concerning the government's ability to prove its case in court for the full amount claimed either because of the legal issues involved or a
(iv) The cost of collecting the claim does not justify enforced collection of the full amount.
(5)
(i) The debtor cannot be located; or
(ii) The debtor is unable to make payments on the government's claim or effect a compromise at the time, but the debtor's future prospects justify retention of the claim for periodic review and action and:
(A) The applicable statute of limitations has been tolled or started running anew; or
(B) Future collection action can be effected by offset, notwithstanding the statute of limitations with due regard to the 10-year limitation prescribed by 31 U.S.C. 3716(c)(1); or
(C) The debtor agrees to pay interest on the amount of the debt on which collection action will be temporarily suspended, and such temporary suspension is likely to enhance the debtor's ability to fully pay the principal amount of the debt with interest at a later date.
(iii) Consideration may be given by the Director, OCHAMPUS, or a designee, to suspend collection action pending action on a request for a review of the government's claim against the debtor or pending an administrative review under § 199.10 of this part of any CHAMPUS claim or claims directly involved in the government's claim against the debtor. Suspension under this paragraph will be based upon appropriate consideration, on a case-by-case basis as to whether:
(A) There is a reasonable possibility that the debt (in whole or in part) will be found not owing from the debtor;
(B) The Government's interest would be protected if suspension were granted by reasonable assurance that the debt would be recovered if the debtor does not prevail; and
(C) Collection of the debt will cause undue hardship.
(6)
(i) The United States cannot collect or enforce collection of any significant sum from the debtor having due regard to the judicial remedies available to the government, the debtor's future financial prospects and the exemptions available to the debtor under state and federal law;
(ii) The debtor cannot be located, and either:
(A) There is no security remaining to be liquidated, or
(B) The applicable statute of limitations has run and the prospects of collecting by offset, notwithstanding the bar of the statute of limitations, are too remote to justify retention of the claim;
(iii) The cost of further collection action is likely to exceed any recovery;
(iv) It is determined that the claim is legally without merit; or
(v) Evidence necessary to prove the claim cannot be produced or the necessary witnesses are unavailable and efforts to induce voluntary payment are unavailing.
(7)
(i) Age and health of the debtor, present and potential income, inheritance prospects, possible concealment or improper transfer of assets and the availability of assets or income which may be realized upon by enforced collection proceedings;
(ii) Applicability of exemptions available to a debtor under state or federal law;
(iii) Uncertainty as to the price which collateral or other property may bring at forced sale; or
(iv) The probability of proving the claim in court, the probability of full or partial recovery, the availability of necessary evidence and related pragmatic considerations.
(8)
(i) The exemptions available to the debtor under state and federal law;
(ii) The time necessary to collect the debt;
(iii) The litigative probabilities involved; and
(iv) The administrative and litigative costs of collection where the cost of collecting the claim is a basis for compromise.
(9)
(ii)
(10)
(h)
(2)
(i) A checklist or brief summary of the actions previously taken to collect or compromise the claim. If any of the required administrative collection actions have been omitted, the reason for its omission must be provided.
(ii) The current address or the debtor, or the same and address of the agent for a corporation upon whom service may be made. Reasonable and appropriate steps will be taken to locate missing parties in all cases. Referrals to the Department of Justice for the institution of foreclosure or other proceedings, in which the current address of any party is unknown, will be accompanied by a listing of the prior known addresses of such party and a statement of the steps taken to locate that party.
(iii) Reasonably current credit data indicating that there is a reasonable prospect of effecting enforced collection from the debtor, having due regard for the exemptions available to the debtor under state and federal law and the judicial remedies available to the government. Such credit data may take the form of a commercial credit report; an agency investigative report showing the debtor's assets, liabilities, income, and expenses; the individual debtor's own financial statement executed under penalty of perjury reflecting the debtor's assets, liabilities, income, and expenses; or an audited balance sheet of a corporate debtor. Such credit data may be omitted if a surety bond is available in an amount sufficient to satisfy the claim in full; the forced sale value of any security available for application to the government's claim is sufficient to satisfy the claim in full; the debtor is in bankruptcy or receivership; the debtor's liability to the government is fully covered by insurance, in which case such information as can be developed concerning the identity and address of the insurer and the type and amount of insurance coverage will be furnished; or the nature of the debtor is such that credit data is not normally available or cannot reasonably be obtained, for example, a unit of state or local government.
(3)
(i) Claims Involving Indications of Fraud, Filing of False Claims or Misrepresentation.
Any case in which there is an indication of fraud, filing of false claims or misrepresentation will be promptly referred to the Director, OCHAMPUS, or a designee, for processing. The Director, OCHAMPUS, or a designee, will investigate and evaluate the case and either refer the case to the appropriate investigative law enforcement agency or return the claim for other appropriate administrative action, including collection action under this section. Payment on all CHAMPUS beneficiary or provider claims in which fraud, filing false claims or misrepresentation is suspected will be suspended until payment or denial of the claim is authorized by the Director, OCHAMPUS, or a designee. Collection action on all federal claims in which a suspicion of fraud, misrepresentation or filing false claims arises will be suspended pending referral to the appropriate law enforcement agencies by the Director, OCHAMPUS, or a designee. Only the Department of Justice has authority to
(a)
(2)
(ii)
(c)
(d)
(2)
(3)
(4)
(e)
(2)
(f)
(g)
(1) This includes the authority under 10 U.S.C. 1095(e)(1) for the United States to institute and prosecute legal proceedings against a third-party payer to enforce a right of the United States under 10 u.S.C. 1095b and this section.
(2) This also includes the authority under 10 u.S.C. 1095(e)(2) for an authorized representative of the United States to compromise, settle or waive a claim of the United States under 10 U.S.C. 1095b and this section.
(3) The authorities provided by the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701
(h)
(1) To provide information regarding coverage by a third-party payer plan and/or the circumstances surrounding an injury to the patient as a conditional precedent of the processing of a TRICARE claim involving possible third-party payer coverage.
(2) To furnish such additional information as may be requested concerning the circumstances giving rise to the injury or disease for which care and treatment are being given and concerning any action instituted or to be instituted by or against a third person; and,
(3) To cooperate in the prosecution of all claims and actions by the United States against such third person.
(i)
(1)
(2)
(3)
(j)
(1)
(2)
(3)
(a)
(2)
(B) Extension of the TDP to areas outside the CONUS service area. In accordance with the authority cited in 10 U.S.C. 1076a(h), the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) may extend the TDP to areas other than those areas specified in paragraph (a)(2)(i)(A) of this section for the eligible members and eligible dependents of members of the Uniformed Services. These areas are collectively referred to as the “OCONUS (or outside the Continental United States) service area”. In extending the TDP outside the CONUS service area, the ASD(HA), or designee, is authorized to establish program elements, methods of administration and
(ii)
(iii)
(3)
(B)
(ii)
(B)
(4)
(ii) Based on the determination set forth in paragraph (a)(4)(i) of this section, any State or local law relating to health or dental insurance, prepaid health or dental plans, or other health or dental care delivery or financing methods is preempted and does not apply in connection with the TDP contract. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TDP contract. (However, DoD may, by contract, establish legal obligations on the part of the dental plan contractor to conform with requirements similar or identical to requirements of State or local laws or regulations.)
(iii) The preemption of State and local laws set forth in paragraph (a)(4)(ii) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (a)(4)(i) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees, or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health and dental services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(5)
(ii)
(iii)
(iv)
(A) Development, publication, and enforcement of benefit policy, exclusions, and limitations in compliance with the law, regulation, and the contract provisions;
(B) Adjudicating and processing claims; and conducting related supporting activities, such as enrollment, disenrollment, collection of premiums, eligibility verification, provider relations, and beneficiary communications.
(6)
(7)
(i) Disclosure of such information is necessary to the determination by a provider or the dental plan contractor of beneficiary enrollment or eligibility for coverage of specific services;
(ii) Disclosure of such information is authorized specifically by the beneficiary;
(iii) Disclosure is necessary to permit authorized Government officials to investigate and prosecute criminal actions;
(iv) Disclosure constitutes a routine use of a routine use of a record which is compatible with the purpose for which it was collected. This includes a standard and acceptable business practice commonly used among dental insurers which is consistent with the principle of preserving confidentiality of personal information and detailed clinical data. For example, the release of utilization information for the purpose of determining eligibility for certain services, such as the number of dental prophylaxis procedures performed for a beneficiary, is authorized;
(v) Disclosure is pursuant to an order from a court of competent jurisdiction; or
(vi) Disclosure by the Director, OCHAMPUS, or designee, is for the purpose of determining the applicability of, and implementing the provisions of, other dental benefits coverage or entitlement.
(8)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(i) Enrolling all active duty, Reserve and retired service members, their dependents, and the dependents of deceased service members; and
(ii) Verifying their eligibility for health care benefits in the direct care facilities and through the TDP.
(9)
(10)
(11)
(i) Clinical oral examinations;
(ii) Radiographic examinations; and
(iii) Diagnostic laboratory tests and examinations provided in connection with other dental procedures authorized as benefits of the TDP and further defined in paragraph (e) of the section.
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(c)
(2)
(A) A person who bears one of the following relationships to an active duty member (under a call or order that does not specify a period of thirty (30) days or less) or a member of the Selected Reserve (as specified in 10 U.S.C. 10143) or Individual Ready Reserve (as specified in 10 U.S.C. 10144):
(
(
(B) A member of the Selected Reserve of the Ready Reserve (as specified in 10 U.S.C. 10143).
(C) A member of the Individual Ready Reserve of the Ready Reserve (as specified in 10 U.S.C. 10144(b)) who is subject to being ordered to active duty involuntarily in accordance with 10 U.S.C. 12304.
(D) All other members of the Individual Ready Reserve of the Ready Reserve (as specified in 10 U.S.C. 10144(a)).
(ii)
(B)
(C)
(3)
(B)
(ii)
(
(B)
(
(
(
(
(
(C)
(
(
(
(D)
(E)
(
(
(
(
(
(
(
(
(
(
(d)
(i)
(ii)
(2)
(3)
(A) The percent by which the rates of basic pay of members of the Uniformed Services are increased on such date; or
(B) The sum of one-half percent and the percent computed under 5 U.S.C. 5303(a) for the increase in rates of basic pay for statutory pay systems for pay periods beginning on or after such date.
(ii) Under the legislation authorizing an increase in the monthly premium cap, the methodology for determining the active duty, Selected Reserve and Individual Ready Reserve member's TDP premium pursuant to paragraph (d)(1)(i) of this section will be applied as if the methodology had been in continuous use since December 31, 1993.
(4)
(5)
(6)
(7)
(e)
(ii)
(iii)
(B)
(iv)
(A) The service, procedure, or course of treatment must be consistent with sound professional standards of dental practice for the dental condition concerned.
(B) The service, procedure, or course of treatment must be a generally accepted alternative for a service or procedure covered by the TDP for the dental condition.
(C) Payment for the alternative service or procedure may not exceed the lower of the prevailing limits for the alternative procedure, the prevailing limits or dental plan contractor's scheduled allowance for the otherwise authorized benefit procedure for which the alternative is substituted, or the actual charge for the alternative procedure.
(2)
(i)
(A) Diagnostic services. (
(
(
(B) Preventive services. (
(
(
(
(ii)
(A) Unclassified treatment.
(B) Anesthesia.
(C) Professional consultation.
(D) Professional visits.
(E) Drugs.
(F) Miscellaneous services.
(iii)
(A) Amalgam restorations.
(B) Resin restorations.
(C) Inlay and onlay restorations.
(D) Crowns.
(E) Other restorative services.
(iv)
(A) Pulp capping.
(B) Pulpotomy and pulpectomy.
(C) Endodontic therapy.
(D) Apexification and recalcification procedures.
(E) Apicoectomy and periradicular services.
(F) Other endodontic procedures.
(v)
(A) Surgical services.
(B) Periodontal services.
(C) Other periodontal services.
(vi)
(A) Prosthodontics (removable).
(
(
(
(
(
(
(B) Prosthodontics (fixed).
(
(
(
(vii)
(A) Limited orthodontic treatment.
(B) Minor treatment to control harmful habits.
(C) Interceptive orthodontic treatment.
(D) Comprehensive orthodontic treatment.
(E) Other orthodontic services.
(viii)
(A) Extractions.
(B) Surgical extractions.
(C) Other surgical procedures.
(D) Alveoloplasty—surgical preparation of ridge for denture.
(E) Surgical incision.
(F) Repair of traumatic wounds.
(G) Complicated suturing.
(H) Other repair procedures.
(ix) Exclusion of adjunctive dental care. Adjunctive dental care benefits are excluded under the TDP. For further information on adjunctive dental care benefits under TRICARE/CHAMPUS, see § 199.4(e)(10).
(x)
(xi)
(3)
(ii)
(iii)
(f)
(2)
(3)
(4)
(5)
(6)
(i)
(ii)
(7)
(ii)
(iii)
(iv)
(v)
(vi)
(g)
(2)
(i) Nonparticipating providers (or the Beneficiaries or active duty, Selected Reserve or Individual Ready Reserve members for unassigned claims) shall be reimbursed at the equivalent of not less than the 50th percentile of prevailing charges made for similar services in the same locality (region) or state, or the provider's actual charge, whichever is lower, subject to the exception listed in paragraph (e)(3)(ii) of this section, less any cost-share amount due for authorized services.
(ii) Participating providers shall be reimbursed at the equivalent of a percentile of prevailing charges sufficiently above the 50th percentile of prevailing charges made for similar services in the same locality (region) or state as to constitute a significant financial incentive for participation, or the provider's actual charge, whichever is lower, less any cost-share amount due for authorized services.
(3)
(h)
(1)
(i)
(B)
(ii)
(A)
(B)
(iii)
(iv)
(v)
(vi)
(A) The amount of the dental plan contractor-determined allowable charge since the methodology constitutes a limitation on benefits under the provisions of this section.
(B) Certain other issues on the basis that the authority for the initial determination is not vested in OCHAMPUS. Such issues include but are not limited to the following examples:
(
(
(
(vii)
(B)
(
(
(
(
(viii)
(ix)
(2)
(3)
(4)
(ii)
(5)
(a)
(1)
(i)
(B)
(
(
(C)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(D)
(ii)
(A)
(B)
(C)
(
(
(
(
(
(
(
(
(
(
(D)
(
(
(
(
(
(
(
(
(
(E)
(F)
(iii)
(A)
(
(
(
(
(
(
(
(
(B)
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(G)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(2)
(i)
(A)
(B)
(ii)
(A)(
(
(B)
(
(C)
(iii)
(A)
(B)
(C)
(
(
(D)
(iv)
(A)
(B)
(C)
(
(
(
(v)
(A)
(B)
(C)
(D)
(vi)
(vii)
(viii)
(A)
(B)
(C)
(D)
(E)
(ix)
(B)
(
(
(C)
(D)
(3)
(i) The actual charge for such service made to the general public; or
(ii) The allowed charge applicable to the policyholders or subscribers of the CHAMPUS fiscal intermediary for comparable services under comparable circumstances, when extended to CHAMPUS beneficiaries by consent or agreement; or
(iii) The allowed charge applicable to the citizens of the community or state as established by local or state regulatory authority, excluding title XIX of the Social Security Act or other welfare program, when extended to CHAMPUS beneficiaries by consent or agreement.
(4)
(5)
(i)
(ii)
(iii)
(iv)
(b)
(2)
(3)
(4)
(c)
(d)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(4)
(5)
(6)
(e)
(1) Reimbursement for maternity care and childbirth services furnished by an authorized birthing center shall be limited to the lower of the CHAMPUS established all-inclusive rate or the center's most-favored all-inclusive rate.
(2) The all-inclusive rate shall include the following to the extent that they are usually associated with a normal pregnancy and childbirth: Laboratory studies, prenatal management, labor management, delivery, post-partum management, newborn care, birth assistant, certified nurse-midwife professional services, physician professional services, and the use of the facility.
(3) The CHAMPUS established all-inclusive rate is equal to the sum of the CHAMPUS area prevailing professional charge for total obstetrical care for a normal pregnancy and delivery and the sum of the average CHAMPUS allowable institutional charges for supplies, laboratory, and delivery room for a hospital inpatient normal delivery. The CHAMPUS established all-inclusive rate areas will coincide with those established for prevailing professional charges and will be updated concurrently with the CHAMPUS area prevailing professional charge database.
(4) Extraordinary maternity care services, when otherwise authorized, may be reimbursed at the lesser of the billed charge or the CHAMPUS allowable charge.
(5) Reimbursement for an incomplete course of care will be limited to claims for professional services and tests where the beneficiary has been screened but rejected for admission into the birthing center program, or where the woman has been admitted but is discharged from the birthing center program prior to delivery, adjudicated as individual professional services and items.
(6) The beneficiary's share of the total reimbursement to a birthing center is limited to the cost-share amount plus the amount billed for non-covered services and supplies.
(f)
(1) The all-inclusive per diem rate for RTCs operating or participating in CHAMPUS during the base period of July 1, 1987, through June 30, 1988, will be the lowest of the following conditions:
(i) The CHAMPUS rate paid to the RTC for all-inclusive services as of June 30, 1988, adjusted by the Consumer Price Index—Urban (CPI-U) for medical care as determined applicable by the Director, OCHAMPUS, or designee; or
(ii) The per diem rate accepted by the RTC from any other agency or organization (public or private) that is high enough to cover one-third of the total patient days during the 12-month period ending June 30, 1988, adjusted by the CPI-U; or
The per diem rate accepted by the RTC from any other agency or organization includes the rates accepted from entities such as Government contractors in CHAMPUS demonstration projects.
(iii) An OCHAMPUS determined capped per diem amount not to exceed the 80th percentile of all established CHAMPUS RTC rates nationally, weighted by total CHAMPUS days provided at each rate during the base period discussed in paragraph (f)(1) of this section.
(2) The all-inclusive per diem rates for RTCs which began operation after June 30, 1988, or began operation before July 1, 1988, but had less than 6 months of operation by June 30, 1988, will be calculated based on the lower of the per diem rate accepted by the RTC that is high enough to cover one-third of the total patient days during its first 6 to 12 consecutive months of operation, or the CHAMPUS determined capped amount. Rates for RTCs beginning operation prior to July 1, 1988, will be adjusted by an appropriate CPI-U inflation factor for the period ending June 30, 1988. A period of less than 12 months will be used only when the RTC has been in operation for less than 12 months. Once a full 12 months is available, the rate will be recalculated.
(3) For care on or after April 6, 1995, the per diem amount may not exceed a cap of the 70th percentile of all established Federal fiscal year 1994 RTC rates nationally, weighted by total CHAMPUS days provided at each rate during the first half of Federal fiscal year 1994, and updated to FY95. For Federal fiscal years 1996 and 1997, the cap shall remain unchanged. For Federal fiscal years after fiscal year 1997, the cap shall be adjusted by the Medicare update factor for hospitals and units exempt from the Medicare prospective payment system.
(4) All educational costs, whether they include routine education or special education costs, are excluded from reimbursement except when appropriate education is not available from, or not payable by, a cognizant public entity.
(i) The RTC shall exclude educational costs from its daily costs.
(ii) The RTC's accounting system must be adequate to assure CHAMPUS is not billed for educational costs.
(iii) The RTC may request payment of educational costs on an individual case basis from the Director, OCHAMPUS, or designee, when appropriate education is not available from, or not payable by, a cognizant public entity. To qualify for reimbursement of educational costs in individual cases, the RTC shall comply with the application procedures established by the Director, OCHAMPUS, or designee, including, but not limited to, the following:
(A) As part of its admission procedures, the RTC must counsel and assist the beneficiary and the beneficiary's family in the necessary procedures for assuring their rights to a free and appropriate public education.
(B) The RTC must document any reasons why an individual beneficiary cannot attend public educational facilities and, in such a case, why alternative educational arrangements have not been provided by the cognizant public entity.
(C) If reimbursement of educational costs is approved for an individual beneficiary by the Director, OCHAMPUS, or designee, such educational costs shall be shown separately from the RTC's daily costs on the CHAMPUS claim. The amount paid shall not exceed the RTC's most-favorable rate to any other patient, agency, or organization for special or general educational services whichever is appropriate.
(D) If the RTC fails to request CHAMPUS approval of the educational costs on an individual case, the RTC agrees not to bill the beneficiary or the beneficiary's family for any amounts disallowed by CHAMPUS. Requests for payment of educational costs must be referred to the Director, OCHAMPUS, or designee for review and a determination of the applicability of CHAMPUS benefits.
(5) Subject to the applicable RTC cap, adjustments to the RTC rates may be made annually.
(i) For Federal fiscal years through 1995, the adjustment shall be based on the Consumer Price Index-Urban (CPI-U) for medical care as determined applicable by the Director, OCHAMPUS.
(ii) For purposes of rates for Federal fiscal years 1996 and 1997:
(A) For any RTC whose 1995 rate was at or above the thirtieth percentile of all established Federal fiscal year 1995 RTC rates normally, weighted by total CHAMPUS days provided at each rate during the first half of Federal fiscal year 1994, that rate shall remain in effect, with no additional update, throughout fiscal years 1996 and 1997; and
(B) For any RTC whose 1995 rate was below the 30th percentile level determined under paragraph (f)(5)(ii)(A) of this section, the rate shall be adjusted by the lesser of: the CPI-U for medical care, or the amount that brings the rate up to that 30th percentile level.
(iii) For subsequent Federal fiscal years after fiscal year 1997, RTC rates shall be updated by the Medicare update factor for hospitals and units exempt from the Medicare prospective payment system.
(6) For care provided on or after July 1, 1995, CHAMPUS will not pay for days in which the patient is absent on leave from the RTC. The RTC must identify these days when claiming reimbursement.
(g)
(1)
(i)
(ii)
(A) A minimum of 8 hours of care must be provided within a 24-hour day starting and ending at midnight.
(B) More than half of the total actual hours being billed for each 24-hour period must be provided by either a registered or licensed practical nurse.
(C) Homemaker and home health aide services may be provided to supplement the nursing care to enable the beneficiary to remain at home.
(D) For every hour or part of an hour of continuous care furnished, the hourly rate will be reimbursed to the hospice up to 24 hours a day.
(iii)
(A) Payment for respite care may be made for a maximum of 5 days at a time, including the date of admission but not counting the date of discharge. The necessity and frequency of respite care will be determined by the hospice interdisciplinary group with input from the patient's attending physician and the hospice's medical director.
(B) Payment for the sixth and any subsequent days is to be made at the routine home care rate.
(iv)
(v)
(2)
(3)
(i)
(B) Direct patient care services are paid in addition to the adjusted national payment rate.
(
(
(ii)
(A) Attending physician may bill in his/her own right.
(B) Services will be subject to the appropriate allowable charge methodology.
(C) Reimbursement is not counted toward the hospice cap limitation.
(D) Services provided by an independent attending physician must be coordinated with any direct care services provided by hospice physicians.
(E) The hospice must notify the CHAMPUS contractor of the name of the physician whenever the attending physician is not a hospice employee.
(iii)
(4)
(5)
(i) The cap amount will be adjusted annually by the percent of increase or decrease in the medical expenditure category of the Consumer Price Index for all urban consumers (CPI-U).
(ii) The aggregate cap amount (i.e., the statutory cap amount times the number of CHAMPUS beneficiaries electing hospice care during the cap period) will be compared with total actual CHAMPUS payments made during the same cap period.
(iii) Payments in excess of the cap amount must be refunded by the hospice program. The adjusted cap amount will be obtained from the Health Care Financing Administration (HCFA) prior to the end of each cap period.
(iv) Calculation of the cap amount for a hospice which has not participated in the program for an entire cap year (November 1 through October 31) will be based on a period of at least 12 months but no more than 23 months. For example, the first cap period for a hospice entering the program on October 1, 1994, would run from October 1, 1994 through October 31, 1995. Similarly, the first cap period for hospice providers entering the program after November 1, 1993 but before November 1, 1994 would end October 31, 1995.
(6)
(i) If the number of days of inpatient care furnished to CHAMPUS beneficiaries exceeds 20 percent of the total days of hospice care to CHAMPUS beneficiaries, the total payment for inpatient care is determined follows:
(A) Calculate the ratio of the maximum number of allowable inpatient days of the actual number of inpatient care days furnished by the hospice to Medicare patients.
(B) Multiply this ratio by the total reimbursement for inpatient care made by the CHAMPUS contractor.
(C) Multiply the number of actual inpatient days in excess of the limitation by the routine home care rate.
(D) Add the amounts calculated in paragraphs (g)(6)(i) (B) and (C) of this section.
(ii) Compare the total payment for inpatient care calculated in paragraph (g)(6)(i)(D) of this section to actual payments made to the hospice for inpatient care during the cap period.
(iii) Payments in excess of the inpatient limitation must be refunded by the hospice program.
(7)
(i) Total reimbursement received and receivable for services furnished
(ii) Total reimbursement received and receivable for general inpatient care and inpatient respite care furnished to CHAMPUS beneficiaries during the cap period.
(iii) Total number of inpatient days furnished to CHAMPUS hospice patients (both general inpatient and inpatient respite days) during the cap period.
(iv) Total number of CHAMPUS hospice days (both inpatient and home care) during the cap period.
(v) Total number of beneficiaries electing hospice care. The following rules must be adhered to by the hospice in determining the number of CHAMPUS beneficiaries who have elected hospice care during the period:
(A) The beneficiary must not have been counted previously in either another hospice's cap or another reporting year.
(B) The beneficiary must file an initial election statement during the period beginning September 28 of the previous cap year through September 27 of the current cap year in order to be counted as an electing CHAMPUS beneficiary during the current cap year.
(C) Once a beneficiary has been included in the calculation of a hospice cap amount, he or she may not be included in the cap for that hospice again, even if the number of covered days in a subsequent reporting period exceeds that of the period where the beneficiary was included.
(D) There will be proportional application of the cap amount when a beneficiary elects to receive hospice benefits from two or more different CHAMPUS-certified hospices. A calculation must be made to determine the percentage of the patient's length of stay in each hospice relative to the total length of hospice stay.
(8)
(9)
(i) The patient is responsible for 5 percent of the cost of outpatient drugs or $5 toward each prescription, whichever is less. Additionally, the cost of prescription drugs (drugs or biologicals) may not exceed that which a prudent buyer would pay in similar circumstances; that is, a buyer who refuses to pay more than the going price for an item or service and also seeks to economize by minimizing costs.
(ii) For inpatient respite care, the cost-share for each respite care day is equal to 5 percent of the amount CHAMPUS has estimated to be the cost of respite care, after adjusting the national rate for local wage differences.
(iii) The amount of the individual cost-share liability for respite care during a hospice cost-share period may not exceed the Medicare inpatient hospital deductible applicable for the year in which the hospice cost-share period began. The individual hospice cost-share period begins on the first day an election is in effect for the beneficiary and ends with the close of the first period of 14 consecutive days on each of which an election is not in effect for the beneficiary.
(h)
(1)
(2)
(3)
(4)
(i) The first part of the SCIC payment adjustment reflects the adjustment to the level of payment prior to the significant change in the patient's condition during the 60-day episode.
(ii) The second part of the SCIC payment adjustment reflects the adjustment to the level of payment after the significant change in the patient's condition occurs during the 60-day episode.
(5)
(6)
(i)
(ii)
(7)
(i)
(ii)
(iii)
(8)
(9)
(i) Establishment of the payment unit, including the national 60-day prospective episode payment rate, adjustments and outlier payment.
(ii) Establishment of transition period, definition and application of the unit of payment.
(iii) Computation of the initial standard prospective payment amounts.
(iv) Establishment of case-mix and area wage adjustment factors.
(i)
(j) Reimbursement of individual health care professionals and other non-institutional, non-professional provers. The CHAMPUS-determined reasonable charge (the amount allowed by CHAMPUS) for the service of an individual health care professional or other non-institutional, non-professional provider (even if employed by or under contract to an institutional provider) shall be determined by one of the following methodologies, that is, whichever is in effect in the specific geographic location at the time covered services and supplies are provided to a CHAMPUS beneficiary.
(1)
(B)
(C)
(D)
(ii)
(B) The national prevailing charge level referred to in paragraph (g)(1)(ii)(A) of this section is the level that does not exceed the amount equivalent to the 80th percentile of billed charges made for similar services during the base period. The 80th percentile of charges shall be determined on the basis of statistical data and methodology acceptable to the Director, OCHAMPUS (or a designee).
(C) For purposes of paragraph (g)(1)(ii)(B) of this section, the base period shall be a period of 12 calendar months and shall be adjusted once a year, unless the Director, OCHAMPUS, determines that a different period for adjustment is appropriate and publishes a notice to that effect in the
(iii)
(A)
(
(
(
(B)
(
(
(
(C)
(D)
This paragraph will be implemented when CMAC rates are published.
In any case in which the national CMAC calculated in accordance with paragraphs (h)(1)(i) through (iii) of this section is less than the Medicare rate,
(iv)
(A)
(B)
(
(
(C)
(
(
(
(D)
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(v)
(A) Appropriate charge levels for care provided on or after January 1, 1991, and before the 1992 appropriate levels take effect shall be the same as those in effect on December 31, 1990, except that appropriate charge levels for care provided on or after October 7, 1991, shall be those established pursuant to this paragraph (g)(1)(v) of this section.
(B) Appropriate charge levels will be established for each locality for which a appropriate charge level was in effect immediately prior to October 7, 1991. For each procedure, the appropriate charge level shall be the prevailing charge level in effect immediately prior to October 7, 1991, adjusted as provided in (g)(1)(v)(B) (
(
(
(
(C) For purposes of this paragraph (g)(i)(v), “appropriate charge levels” in effect at any time prior to October 7, 1991 shall mean the lesser of:
(
(
(vi)
(A) For purposes of calculating the national appropriate charge levels for 1992, the prior year's appropriate charge level for each service will be considered to be the level that does not exceed the amount equivalent to the 80th percentile of billed charges made for similar services during the base period of July 1, 1986 to June 30, 1987 (determined as under paragraph (g)(1)(ii)(B) of this section), adjusted to calendar year 1991 based on the adjustments made for maximum CHAMPUS allowable charge levels through 1990
(B) The adjustment to calendar year 1991 of the product of paragraph (g)(1)(vi)(A) of this section shall be as follows:
(
(
(vii)
(A) The Director, OCHAMPUS may make adjustments to the appropriate charge levels calculated pursuant to paragraphs (g)(1)(iii) and (g)(1)(v) of this section to correct any anomalies resulting from data or statistical factors, significant differences between Medicare-relevant information and CHAMPUS-relevant considerations or other special factors that fairness requires be specially recognized. However, no such adjustment may result in reducing an appropriate charge level.
(B) The Director, OCHAMPUS will issue procedural instructions for administration of the allowable charge method.
(viii)
(A) The calculation of national prevailing charge levels, national appropriate charge levels and national CMACs for laboratory service shall begin in calendar year 1993. For purposes of the 1993 calculation, the prior year's national appropriate charge level or national prevailing charge level shall be the level that does not exceed the amount equivalent to the 80th percentile of billed charges made for similar services during the period July 1, 1991, through June 30, 1992 (referred to in this paragraph (g)(1)(viii) of this section as the “base period”).
(B) For purposes of comparison to Medicare allowable payment amounts pursuant to paragraph (g)(1)(iii) of this section, the Medicare national laboratory payment limitation amounts shall be used.
(C) For purposes of establishing laboratory service local CMACs pursuant to paragraph (g)(1)(iv) of this section, the adjustment factor shall equal the ratio of the local average charge (standardized for the distribution of clinical laboratory services) to the national average charge for all clinical laboratory services during the base period.
(D) For purposes of a special locality-based phase-in provision similar to that established by paragraph (g)(1)(iv)(B) of this section, the CMAC in a locality will not be less than 85 percent of the maximum charge level in effect for that locality during the base period.
(ix) The allowable charge for physician assistant services other than assistant-at-surgery may not exceed 85 percent of the allowable charge for a comparable service rendered by a physician performing the service in a similar location. For cases in which the physician assistant and the physician perform component services of a procedure other than assistant-at-surgery (e.g., home, office or hospital visit), the combined allowable charge for the procedure may not exceed the allowable charge for the procedure rendered by a physician alone. The allowable charge for physician assistant services performed as an assistant-at-surgery may not exceed 65 percent of the allowable charge for a physician serving as an assistant surgeon when authorized as CHAMPUS benefits in accordance with the provisions of § 199.4(c)(3)(iii). Physician assistant services must be billed through the employing physician who must be an authorized CHAMPUS provider.
(x) A charge that exceeds the CHAMPUS Maximum Allowable Charge can be determined to be allowable only when unusual circumstances or medical complications justify the higher charge. The allowable charge may not exceed the billed charge under any circumstances.
(2)
(3)
(4)
(k)
(l)
(1)
(2)
(m)
(1)
(2)
(i) In the case and individual health care professionals and other non-institutional providers, if the discounted fee is below the provider's normal billed charge and the prevailing charge level (see paragraph (g) of this section), the discounted fee shall be the provider's actual billed charge and the CHAMPUS allowable charge.
(ii) In the case of institutional providers normally paid on the basis of a pre-set amount (such as DRG-based amount under paragraph (a)(1) of this section or per-diem amount under paragraph (a)(2) of this section), if the discount rate is lower than the pre-set rate, the discounted rate shall be the CHAMPUS-determined allowable cost. This is an exception to the usual rule that the pre-set rate is paid regardless of the institutional provider's billed charges or other factors.
(3)
(i) This paragraph applies only when both the provider and the Director have agreed to the discounted payment rate. The Director's agreement may be in the context of approval of a program that allows for such discounts.
(ii) The Director of OCHAMPUS may establish uniform terms, conditions and limitations for this payment method in order to avoid administrative complexity.
(n)
(o)
The following text, appearing at 63 FR 48445, Sept. 10, 1998, could not be incorporated into § 199.14 because it was not mentioned in the amendatory instruction. For the convenience of the user, the text is set forth as follows:
(a) ***
(1) ***
(iii) * * *
(B)
(D) * * *
(
(
(
(
(
(
(
(
(
(
(G) * * *
(
(d) * * *
(3) * * *
(iv)
(h)
(a)
(2)
(3)
(4)
(5)
(6)
(b)
(2)
(ii) In any case in which payment is excluded pursuant to paragraph (b)(2)(i) of this section, the patient (or the patient's family) may not be billed for the excluded services.
(iii) Limited exceptions and other special provisions pertaining to the requirements established in paragraphs (b)(2) (i) and (ii) of this section, are set forth in § 199.4(h).
(3)
(4)
(A) The procedures for this review may be prospective (before the care is provided), concurrent (while the care is in process), or retrospective (after the care has been provided). Regardless of the procedures of this utilization review, the same generally accepted
(B) For healthcare services provided under TRICARE contracts entered into by the Department of Defense after October 30, 2000, medical necessity preauthorization will not be required for referrals for specialty consultation appointment services requested by primary care providers or specialty providers when referring TRICARE Prime beneficiaries for specialty consultation appointment services within the TRICARE contractor's network. However, the lack of medical necessity preauthorization requirements for consultative appointment services does not mean that non-emergent admissions or invasive diagnostic or therapeutic procedures which in and of themselves constitute categories of health care services related to, but beyond the level of the consultation appointment service, are not subject to medical necessity prior authorization. In fact many such health care services may continue to require medical necessity prior authorization as determined by the Director, TRICARE Management Activity, or a designee. TRICARE Prime beneficiaries are also required to obtain preauthorization before seeking health care services from a non-network provider.
(ii)
(A) The requirement for preauthorization shall be widely publicized to beneficiaries and providers.
(B) All requests for preauthorization shall be responded to in writing. Notification of approval or denial shall be sent to the beneficiary. Approvals shall specify the health care services and supplies approved and identify any special limits or further requirements applicable to the particular case.
(C) An approved preauthorization shall state the number of days, appropriate for the type of care involved, for which it is valid. In general, preauthorizations will be valid for 30 days. If the services or supplies are not obtained within the number of days specified, a new preauthorization request is required. For organ and stem cell transplants, the preauthorization shall remain in effect as long as the beneficiary continues to meet the specific transplant criteria set forth in the TRICARE/CHAMPUS Policy Manual, or until the approved transplant occurs.
(D) For healthcare services provided under TRICARE contracts entered into by the Department of Defense after October 30, 2000, medical necessity preauthorization for specialty consultation appointment services within the TRICARE contractor's network will not be required. However, the Director, TRICARE Management Activity, or designee, may continue to require or waive medical necessity prior (or pre) authorization for other categories of other health care services based on best business practice.
(iii)
(
(
(
(B) In a case described in paragraph (b)(4)(iii)(A) of this section, reimbursement will be reduced, unless such reduction is waived based on special circumstances. The amount of this reduction shall be at least ten percent of the amount otherwise allowable for services for which preauthorization (including preauthorization for continued stays in connection with concurrent review requirements) approval should have been obtained, but was not obtained.
(C) The payment reduction set forth in paragraph (b)(4)(iii)(B) of this section may be waived by the Director, OCHAMPUS when the provider could not reasonably have been expected to know of the preauthorization requirement or some other special circumstance justifies the waiver.
(D) Services for which payment is disallowed under paragraph (b)(4)(iii) of this section may not be billed to the patient (or the patient's family).
(c)
(1) Documentation that the beneficiary has received the required information about the CHAMPUS PRO program must be maintained in the same manner as is the notice required for the Medicare program by 42 CFR 466.78(b).
(2) The physician acknowledgment required for Medicare under 42 CFR 412.46 is also required for CHAMPUS as a condition for payment and may be satisfied by the same statement as required for Medicare, with substitution or addition of “CHAMPUS” when the word “Medicare” is used.
(3) Participating hospitals must execute a memorandum of understanding with the PRO providing appropriate procedures for implementation of the PRO program.
(4) Participating hospitals may not charge a CHAMPUS beneficiary for inpatient hospital services excluded on the basis of § 199.4(g)(1) (not medically necessary), § 199.4(g)(3) (inappropriate level), or § 199.4(g)(7) (custodial care) unless all of the conditions established by 42 CFR 412.42(c) with respect to Medicare beneficiaries have been met with respect to the CHAMPUS beneficiary. In such cases in which the patient requests a PRO review while the patient is still an inpatient in the hospital, the hospital shall provide to the PRO the records required for the review by the close of business of the day the patient requests review, if such request was made before noon. If the hospital fails to provide the records by the close of business, that day and any subsequent working day during which the hospital continues to fail to provide the records shall not be counted for purposes of the two-day period of 42 CFR 412.42(c)(3)(ii).
(d)
(i) Transfers of CHAMPUS beneficiaries from a hospital or hospital unit subject to the CHAMPUS DRG-based payment system to another hospital or hospital unit.
(ii) CHAMPUS admissions to a hospital or hospital unit subject to the CHAMPUS DRG-based payment system which occur within a certain period (specified by OCHAMPUS) of discharge from a hospital or hospital unit subject to the CHAMPUS DRG-based payment system.
(iii) A random sample of other CHAMPUS admissions for each hospital subject to the CHAMPUS DRG-based payment system.
(iv) CHAMPUS admissions in any DRGs which have been specifically identified by OCHAMPUS for review or which are under review for any other reason.
(2)
(i) Perform DRG validation reviews of each case under review.
(ii) Review of claim adjustments submitted by hospitals which result in the assignment of a higher weighted DRG.
(iii) Review for physician's acknowledgement of annual receipt of the penalty statement as contained in the Medicare regulation at 42 CFR 412.46.
(iv) Review of a sample of claims for each hospital reimbursed under the CHAMPUS DRG-based payment system. Sample size shall be determined based upon the volume of claims submitted.
(3)
(4)
(5)
(e)
(i) Deny payment for or recoup (in whole or in part) any amount claimed or paid for the inpatient hospital and professional services related to such determination.
(ii) Require the hospital to take other corrective action necessary to prevent or correct the inappropriate practice.
(iii) Advise the provider and beneficiary of appeal rights, as required by § 199.10 of this part.
(iv) Notify OCHAMPUS of all such actions.
(2)
(3)
(i) If the diagnostic and procedural information in the patient's medical record is found to be inconsistent with the hospital's coding or DRG assignment, the hospital's coding on the CHAMPUS claim will be appropriately changed and payments recalculated on the basis of the appropriate DRG assignment.
(ii) If the information stipulated under paragraph (d)(2) of this section is found not to be correct, the PRO will change the coding and assign the appropriate DRG on the basis of the changed coding.
(f)
(2)
(3)
(ii)
(A) A reconsidered determination that would be final in cases involving sole-function PROs under paragraph (i)(2) of this section will not be final in connection with multi-function PROs. Rather, in such cases (other than any case which is appealable under paragraph (i)(3) of this section), an opportunity for a second reconsideration shall be provided. The second reconsideration will be provided by OCHAMPUS or another contractor independent of the multi-function PRO that performed the review. The second reconsideration may not be further appealed by the provider.
(B) Procedures established by paragraphs (g) through (m) of this section shall not apply to any action of a multi-function PRO (or employee or other person or entity affiliated with the PRO) carried out in performance of functions other than functions under this section.
(g)
(h)
(i)
(2) Except as provided in paragraph (i)(3), a PRO reconsidered determination may not be further appealed by a provider.
(3) A provider may appeal a PRO reconsideration determination to OCHAMPUS and obtain a hearing on such appeal to the extent allowed under the procedures set forth in § 199.10(d) if it is a determination pursuant to § 199.4(h) that the provider knew or could reasonably have been expected to know that the services were excludable.
(4) For purposes of the hearing process, a PRO reconsidered determination shall be considered as the procedural equivalent of a formal review determination under § 199.10, unless revised at the initiative of the Director, OCHAMPUS prior to a hearing on the appeal, in which case the revised determination shall be considered as the procedural equivalent of a formal review determination under § 199.10.
(5) The provisions of § 199.10(e) concerning final action shall apply to hearings cases.
(j)
(k)
(l)
(2)
(ii) Initial denial determinations by PROs pursuant to pargraph (g) of this section (concerning medical necessity determinations, DRG validation actions, etc.) and subsequent decisions regarding those determinations are not nondisclosable quality assurance records under 10 U.S.C. 1102.
(iii) Information the subject of mandatory PRO disclosure under 42 CFR part 476 is not a nondisclosable quality assurance record under 10 U.S.C. 1102.
(m)
(2) The provisions of 42 U.S.C. section 1395ww(f)(2) concerning circumvention by any hospital of the applicable payment methods for inpatient services shall apply to CHAMPUS payment
(3) The Director, or a designee, of CHAMPUS shall determine whether to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this section. Providers may appeal adverse sanctions decisions under the procedures set forth in § 199.10(d).
(n)
(2) In any case in which such a contractor has comparable responsibility and authority regarding utilization review in both an MTF (or MTFs) and CHAMPUS, determinations as to medical necessity in connection with services from an MTF or CHAMPUS-authorized provider may be consolidated.
(3) In any case in which an MTF reserves authority to separate an MTF determination on medical necessity from a CHAMPUS PRO program determination on medical necessity, the MTF determination is not binding on CHAMPUS.
(a)
(2) This section applies to the program, known as the supplemental care program, which provides for the payment by the uniformed services to private sector health care providers for health care services provided to active duty members of the uniformed services. Although not part of CHAMPUS, the supplemental care program is similar to CHAMPUS in that it is a program for the uniformed services to purchase civilian health care services for active duty members. For this reason, the Director, OCHAMPUS assists the uniformed services in the administration of the supplemental care program.
(3) This section applies to all health care services covered by the CHAMPUS. For purposes of this section, health care services ordered by a military treatment facility (MTF) provider for an MTF patient (who is not an active duty member) for whom the MTF provider maintains responsibility are also covered by the supplemental care program and subject to the requirements of this section.
(b)
(2)
(c)
(d)
(1) There is no patient cost sharing under the supplemental care program. All amounts due to be paid to the provider shall be paid by the program.
(2) Preauthorization by the Uniformed Services of each service is required for the supplemental care program
(3) With respect to the filing of claims and similar administrative matters for which this part refers to activities of the CHAMPUS fiscal intermediaries, for purposes of the supplemental care program, responsibilities for claims processing, payment and some other administrative matters may be assigned by the Director, OCHAMPUS to the same fiscal intermediaries, other contractor, or to the nearest military medical treatment facility or medical claims office.
(4) The annual cost pass-throughs for capital and direct medical education costs that are available under the CHAMPUS DRG-based payment system are also available, upon request, under the supplemental care program. To obtain payment include the number of active duty bed days as a separate line item on the annual request to the CHAMPUS fiscal intermediaries.
(5) For providers other than participating providers, the Director, OCHAMPUS may authorize payment in excess of CHAMPUS allowable amounts. No provider may bill an active duty member any amount in excess of the CHAMPUS allowable amount.
(e)
(2)
(i) Has a permanent duty assignment that is greater than fifty miles or approximately one hour drive from a military treatment facility or military clinic designated as adequate to provide the needed primary care services to the active duty service member; and
(ii) Pursuant to the assignment of such duty, resides at a location that is greater than fifty miles or approximately one hour from a military medical treatment facility or military clinic designated as adequate to provide the needed primary care services to the active duty service member.
(3)
(4)
(f)
(g)
(2) The Assistant Secretary of Defense for Health Affairs is responsible for the overall policy direction of the supplemental care program and the administration of this part.
(3) The Director, OCHAMPUS shall issue procedural requirements for the implementation of this section, including requirement for claims submission similar to those established by § 199.7.
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(i)
(A) Active duty members, all of whom are automatically enrolled in TRICARE Prime;
(B) TRICARE Prime enrollees;
(C) TRICARE Standard participants, who are all CHAMPUS eligible beneficiaries who are not enrolled in TRICARE Prime;
(D) Non-CHAMPUS beneficiaries, who are beneficiaries eligible for health care services in military treatment facilities, but not eligible for CHAMPUS;
(ii)
(A) “TRICARE Prime,” which is a health maintenance organization (HMO)-like program. It generally features use of military treatment facilities and substantially reduced out-of-pocket costs for CHAMPUS care. Beneficiaries generally agree to use military treatment facilities and designated civilian provider networks and to follow certain managed care rules and procedures.
(B) “TRICARE Extra,” which is a preferred provider organization (PPO) program. It allows TRICARE Standard beneficiaries to use the TRICARE provider network, including both military facilities and the civilian network, with reduced out-of-pocket costs. These beneficiaries also continue to be eligible for military medical treatment facility care on a space-available basis.
(C) “TRICARE Standard” which is the basic CHAMPUS program. All eligible beneficiaries are automatically included in Standard unless they have enrolled in Prime. It preserves broad freedom of choice of civilian providers, but does not offer reduced out-of-pocket costs. These beneficiaries continue to be eligible to receive care in military medical treatment facilities on a space available basis.
(iii)
(A) Resource sharing agreements, under which a TRICARE contractor provides to a military medical treatment facility, personnel and other resources to increase the availability of services in the facility. All beneficiary
(B) Health care finder, an administrative activity that facilitates referrals to appropriate health care services in the military facility and civilian provider network. All beneficiary enrollment categories may use the health care finder.
(C) Integrated quality and utilization management services, potentially standardizing reviews for military and civilian sector providers. All beneficiary categories may benefit from these services.
(iv)
(7)
(ii) Based on the determination set forth in paragraph (a)(7)(i) of this section, any State or local law relating to health insurance, prepaid health plans, or other health care delivery or financing methods is preempted and does not apply in connection with TRICARE regional contracts. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE regional contracts. (However, the Department of Defense may by contract establish legal obligations of the part of TRICARE contractors to conform with requirements similar or identical to requirements of State or local laws or regulations).
(iii) The preemption of State and local laws set forth in paragraph (a)(7)(ii) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (a)(7)(i) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health and dental services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(b)
(1)
(2)
(3)
(c)
(1)
(2)
(i) Dependents of active duty members are eligible to enroll in Prime. After all active duty members are enrolled, those dependents of active duty members in the grade of E-1 to E-4 will have second priority and all other dependents of active duty members will have third priority.
(ii) If all dependents of active duty members within the area concerned cannot be accepted for enrollment in Prime at the same time, the MTF Commander (or other authorized individual) may establish priorities within this beneficiary group category. The priorities may be based on first-come, first-served, or alternatively, be based on rank of sponsor, beginning with the lowest pay grade.
(3)
(ii) If all eligible retired members, dependents of retired members, and survivors within the area concerned cannot be accepted for enrollment in Prime at the same time, the MTF Commander (or other authorized individual) may allow enrollment within this beneficiary group category on a first come, first served basis.
(4)
(d)
(1)
(A) Active duty service members;
(B) Active duty service members' dependents and survivors of service members who died on active duty, who are enrolled in TRICARE Prime;
(C) Retirees, their dependents and survivors, who are enrolled in TRICARE Prime;
(D) Active duty service members' dependents and survivors of service members who died on active duty, who are not enrolled in TRICARE Prime; and
(E) Retirees, their dependents and survivors who are not enrolled in
(ii)
(2)
(3)
(e)
(f)
(1)
(2)
(3)
(4)
(g)
(2)
(3)
(A) The family member's active duty sponsor has been assigned permanent duty as a recruiter; as an instructor at an educational institution, an administrator of a program, or to provide administrative services in support of a program of instruction for the Reserve Officers' Training Corps; as a full-time adviser to a unit of a reserve component; or any other permanent duty designated by the Director, TRICARE Management Activity that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military treatment facility that is adequate to provide care.
(B) The family members and active duty sponsor, pursuant to the assignment of duty described in paragraph (g)(3)(i)(A) of this section, reside at a location designed by the Director, TRICARE Management Activity, that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility that is adequate to provide care.
(C) The family member, having resided together with the active duty sponsor while the sponsor served in an assignment described in (g)(3)(i)(A), continues to reside at the same location after the sponsor relocates without the family member pursuant to orders for a permanent change of duty station, and the orders do not authorize dependents to accompany the sponsor to the new duty station at the expense of the United States.
(ii) A family member who is a dependent of a reserve component member is eligible for TRICARE Prime Remote for Active Duty Family members if he or she is eligible for CHAMPUS and meets all of the following additional criteria:
(A) The reserve component member has been ordered to active duty for a period of more than 30 days.
(B) The family member resides with the member.
(C) The Director, TRICARE Management Activity, determines the residence of the reserve component member is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility that is adequate to provide care.
(D) “Resides with” is defined as the TRICARE Prime Remote residence address at which the family resides with the activated reservist upon activation.
(4)
(5)
(6)
(h)
(1) In connection with internal resource sharing agreements, beneficiary cost sharing requirements shall be the same as those applicable to health care services provided in facilities of the uniformed services.
(2) Under internal resource sharing agreements, the double coverage requirements of § 199.8 shall be replaced by the Third Party Collection procedures of 32 CFR part 220, to the extent permissible under such part. In such a case, payments made to a resource sharing agreement provider through the TRICARE managed care support contractor shall be deemed to be payments by the MTF concerned.
(3) Under internal or external resource sharing agreements, the commander of the MTF concerned may authorize the provision of services, pursuant to the agreement, to Medicare-eligible beneficiaries, if such services are not reimbursable by Medicare, and if the commander determines that this will promote the most cost-effective provision of services under the TRICARE program.
(i)
(j)
(k)
(l)
(2)
(3)
(4)
(m)
(1)
(ii) For Standard participants, TRICARE Extra cost sharing applies. The deductible is the same as standard CHAMPUS. Cost shares are as follows:
(A) For outpatient professional services, cost sharing will be reduced from 20 percent to 15 percent for dependents of active duty members.
(B) For most services for retired members, dependents of retired members, and survivors, cost sharing is reduced from 25 percent to 20 percent.
(C) In fiscal year 1996, the per diem inpatient hospital copayment for retirees, dependents of retirees, and survivors when they use a preferred provider network hospital is $250 per day, or 25 percent of total charges, whichever is less. There is a nominal copayment for active duty dependents, which is the same as under the CHAMPUS program (see § 199.4). The per diem amount may be updated for subsequent years based on changes in the standard CHAMPUS per diem.
(iii) For Medicare-eligible beneficiaries, cost sharing will generally be as applicable to Medicare participating providers.
(2)
(ii) For Standard participants, cost sharing is as specified for the basic CHAMPUS program.
(3)
(ii) For Standard participants, cost sharing is as provided in military treatment facilities.
(iii) For Medicare eligible beneficiaries, where made applicable by the commander of the
(4)
(ii) For TRICARE Standard participants, cost sharing applicable to services provided by military facility personnel shall be as applicable to services in military treatment facilities; that applicable to non-military providers, including institutional and related ancillary charges, shall be as applicable to services provided under TRICARE Extra.
(5)
(6)
(ii) For retirees, their dependents, and survivors in all enrollment categories, there is no charge for outpatient visits provided in military medical treatment facilities.
(7)
(ii) Eligible family members will be able to access their provider without preauthorization. To obtain the waiver of charges, eligible family members are required to use network providers, where available and within the TRICARE access standards. Failure to do so will result in claims being processed under TRICARE Standard rules. For beneficiaries who are enrolled in TRICARE Prime, existing specialty care preauthorization requirements and Point of Service rules remain in effect.
(iii) To the greatest extent possible, contractors will assist eligible members in finding a TRICARE network, participating, or authorized provider. If a network provider cannot be identified within the access standards established
(n)
(1)
(ii) Prime enrollees who are dependents of active duty members in pay grades E-1 through E-4 shall have priority over other active duty dependents for enrollment with MTF PCMs, subject to MTF capacity.
(2)
(i) Prime enrollees must obtain all primary health care from the primary care manager or from another provider to which the enrollee is referred by the primary care manager or an authorized Health Care Finder.
(ii) For any necessary specialty care and nonemergent inpatient care, the primary care manager or the Health Care Finder will assist in making an appropriate referral.
(A) For healthcare services provided under managed care support contracts entered into by the Department of Defense before October 30, 2000, all such nonemergency specialty care and inpatient care must be preauthorized by the primary care manager or the Health Care Finder.
(B) For healthcare services provided under TRICARE contracts entered into by the Department of Defense on or after October 30, 2000, referral requests (consultation requests) for specialty care consultation appointment services for TRICARE Prime beneficiaries must be submitted by primary care managers. Such referrals will be authorized by Health Care Finders (authorization numbers will be assigned so as to facilitate claims processing) but medical necessity preauthorization will not be required for referral consultation appointment services within the TRICARE contractor's network. Some health care services subsequent to consultation appointments (invasive procedures, nonemergent admissions and other health care services as determined by the Director, TRICARE Management Activity, or a designee) will require medical necessity preauthorization. Though referrals for specialty care are generally the responsibility of the primary care managers, subject to discretion exercised by the TRICARE Regional Directors, and established in regional policy or memoranda of understanding, specialist providers may be permitted to refer patients for additional specialty consultation appointment services within
(iii) The following procedures will apply to health care referrals and preauthorizations in catchment areas under TRICARE Prime:
(A) The first priority for referral for specialty care or inpatient care will be to the local MTF (or to any other MTF in which catchment area the enrollee resides).
(B) If the local MTF(s) are unavailable for the services needed, but there is another MTF at which the needed services can be provided, the enrollee may be required to obtain the services at that MTF. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the MTF involved for the service involved.
(C) If the needed services are available within civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a provider within the network. Subject to availability, the enrollee will have the freedom to choose a provider from among those in the network.
(D) If the needed services are not available within the civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a designated civilian provider outside the area. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the provider involved for the service involved (with the provider and service either identified specifically or in connection with some appropriate classification).
(E) In cases in which the needed health care services cannot be provided pursuant to the procedures identified in paragraphs (n)(2)(iii) (A) through (D) of this section, the enrollee will receive authorization to obtain services from a CHAMPUS-authorized civilian provider(s) of the enrollee's choice not affiliated with the civilian preferred provider network.
(iv) When Prime is operating in noncatchment areas, the requirements in paragraphs (n)(2)(iii) (B) through (E) of this section shall apply.
(v) Any health care services obtained by a Prime enrollee, but not obtained in accordance with the utilization management rules and procedures of Prime will not be paid for under Prime rules, but may be covered by the point-of-service option (see paragraph (n)(3) of this section). However, Prime rules may cover such services if the enrollee did not know and could not reasonably have been expected to know that the services were not obtained in accordance with the utilization management rules and procedures of Prime.
(vi) In accordance with guidelines issued by the Assistant Secretary of Defense for Health Affairs, certain travel expenses may be reimbursed when a TRICARE Prime enrollee is referred by the primary care manager for medically necessary specialty care more than 100 miles away from the primary care manager's office received on or after October 30, 2000. Such guidelines shall be consistent with appropriate provisions of generally applicable Department of Defense rules and procedures governing travel expenses.
(3)
(o)
(1)
(2)
(i) Beneficiaries who select the TRICARE Prime option or the TRICARE Prime Remote for Active
(ii) Exceptions to the 12-month enrollment period.
(A) Beneficiaries who are eligible to enroll in TRICARE Prime but have less than one year of TRICARE eligibility remaining.
(B) The dependents of a reservist who is called or ordered to active duty or of a member of the National Guard who is called or ordered to full-time federal National Guard duty for a period of more than 30 days.
(3)
(4)
(5)
(6)
(7)
(p)
(1)
(2)
(3)
(4)
(i) They must be CHAMPUS authorized providers and CHAMPUS participating providers.
(ii) All physicians in the preferred provider network must have staff privileges in a hospital accredited by the Joint Commission on Accreditation of Health Care Organizations (JCAHO). This requirement may be waived in any case in which a physician's practice does not include the need for admitting privileges in such a hospital, or in locations where no JCAHO accredited facility exists. However, in any case in which the requirement is waived, the physician must comply with alternative qualification standards as are established by the MTF Commander (or other authorized official).
(iii) All preferred providers must agree to follow all quality assurance, utilization management, and patient referral procedures established pursuant to this section, to make available to designated DoD utilization management or quality monitoring contractors medical records and other pertinent records, and to authorize the release of information to MTF Commanders regarding such quality assurance and utilization management activities.
(iv) All preferred network providers must be Medicare participating providers, unless this requirement is waived based on extraordinary circumstances. This requirement that a provider be a Medicare participating provider does not apply to providers not eligible to be participating providers under Medicare.
(v) The provider must be available to Extra participants.
(vi) The provider must agree to accept the same payment rates negotiated for Prime enrollees for any person whose care is reimbursable by the Department of Defense, including, for example, Extra participants, supplemental care cases, and beneficiaries from outside the area.
(vii) All preferred providers must meet all other qualification requirements, and agree to comply with all other rules and procedures established for the preferred provider network.
(5)
(i) Under normal circumstances, enrollee travel time may not exceed 30 minutes from home to primary care delivery site unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area.
(ii) The wait time for an appointment for a well-patient visit or a specialty care referral shall not exceed four weeks; for a routine visit, the wait time for an appointment shall not exceed one week; and for an urgent care visit the wait time for an appointment shall generally not exceed 24 hours.
(iii) Emergency services shall be available and accessible to handle emergencies (and urgent care visits if not available from other primary care providers pursuant to paragraph (p)(5)(ii) of this section), within the service area 24 hours a day, seven days a week.
(iv) The network shall include a sufficient number and mix of board certified specialists to meet reasonably the anticipated needs of enrollees. Travel time for specialty care shall not exceed one hour under normal circumstances, unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area. This requirement does not apply under the Specialized Treatment Services Program.
(v) Office waiting times in nonemergency circumstances shall not exceed 30 minutes, except when emergency care is being provided to patients, and the normal schedule is disrupted.
(6)
(7)
(i) There may be an acquisition under the Federal Acquisition Regulation, either conducted locally for that catchment area, in a larger area in concert with other MTF Commanders, regionally as part of a CHAMPUS acquisition, or on some other basis.
(ii) To the extent allowed by law, there may be a modification by the Director, OCHAMPUS, of an existing CHAMPUS fiscal intermediary contract to add TRICARE program functions to the existing responsibilities of the fiscal intermediary contractor.
(iii) The MTF Commander (or other authorized official) may follow the “any qualified provider” method set forth in paragraph (q) of this section.
(iv) Any other method authorized by law may be used.
(q)
(1) The provider must meet all applicable requirements in paragraph (p)(4) of this section.
(2) The provider must agree to follow all quality assurance and utilization management procedures established pursuant to this section.
(3) The provider must be a Participating Provider under CHAMPUS for all claims.
(4) The provider must meet all other qualification requirements, and agree to all other rules and procedures, that are established, publicly announced, and uniformly applied by the commander (or other authorized official).
(5) The provider must sign a preferred provider network agreement covering all applicable requirements. Such agreements will be for a duration of one year, are renewable, and may be canceled by the provider or the MTF Commander (or other authorized official) upon appropriate notice to the other party. The Director, OCHAMPUS shall establish an agreement model or other guidelines to promote uniformity in the agreements.
(r)
(s)
(1) The TRICARE Extra Plan and the TRICARE Standard Plan may be offered without the TRICARE Prime Plan.
(2) In remote sites, where complete implementation of TRICARE is impracticable, TRICARE Prime may be offered to a limited group of beneficiaries. In such cases, normal requirements of TRICARE Prime which the Assistant Secretary of Defense (Health Affairs) determines are impracticable may be waived.
(3) The TRICARE program may be limited to particular services, such as mental health services.
(t)
(u)
(v)
(a)
(b)
(2) Certain preventive care services not normally provided as part of basic program benefits under CHAMPUS are covered benefits when provided to Prime enrollees by providers in the civilian provider network. Standards for preventive care services shall be developed based on guidelines from the U.S. Department of Health and Human Services. Such standards shall establish a specific schedule, including frequency or age specifications for:
(i) Laboratory and x-ray tests, including blood lead, rubella, cholesterol, fecal occult blood testing, and mammography;
(ii) Pap smears;
(iii) Eye exams;
(iv) Immunizations;
(v) Periodic health promotion and disease prevention exams;
(vi) Blood pressure screening;
(vii) Hearing exams;
(viii) Sigmoidoscopy or colonoscopy;
(ix) Serologic screening; and
(x) Appropriate education and counseling services. The exact services offered shall be established under uniform standards established by the Assistant Secretary of Defense (Health Affairs).
(3) In addition to preventive care services provided pursuant to paragraph (b)(2) of this section, other benefit enhancements may be added and other benefit restrictions may be waived or relaxed in connection with health care services provided to include the Uniform HMO Benefit. Any such other enhancements or changes must be approved by the Assistant Secretary of Defense (Health Affairs) based on uniform standards.
(c)
(2)
(3)
(d)
(2)
(i) For most physician office visits and other routine services, there is a per visit fee for retirees and their dependents. This fee applies to primary care and specialty care visits, except as
(ii) There is a copayment for outpatient mental health visits. It is a per visit fee for retirees and their dependents for individual visits. For group visits, there is a lower per visit fee for retirees and their dependents.
(iii) There is a cost share of durable medical equipment, prosthetic devices, and other authorized supplies for retirees and their dependents.
(iv) For emergency room services, there is a per visit fee for retirees and their dependents.
(v) For ambulatory surgery services, there is a per service fee for retirees and their dependents.
(vi) There is a copayment for prescription drugs per prescription, including medical supplies necessary for administration, for dependents of active duty members and for retirees and their dependents under the Pharmacy Benefits Program (see § 199.17(m)(5)).
(vii) There is a copayment for ambulance services for retirees and their dependents.
(3)
(i) For most physician office visits and other routine services, as described in paragraph (d)(2)(i) of this section, the per visit fee for retirees and their dependents is $12.
(ii) For outpatient mental health visits, the per visit fee for retirees and their dependents is $25. For group outpatient mental health visits, there is a lower per visit fee for retirees and their dependents of $17.
(iii) The cost share for durable medical equipment, prosthetic devices, and other authorized supplies for retirees and their dependents is 20 percent of the negotiated fee.
(iv) For emergency room services, the per visit fee for retirees and their dependents is $30.
(v) For primary surgeon services in ambulatory surgery, the per service fee for retirees and their dependents is $25.
(vi) The copayments for prescription drugs are established under the Pharmacy Benefits Program (see § 199.21).
(vii) The copayment for ambulance services for retirees and their dependents is $20.
(e)
(2)
(3)
(f)
(2) The limits established by paragraph (f)(1) of this section do not apply to out-of-pocket costs incurred pursuant to paragraph (m)(1)(i) or (m)(2)(i) of § 199.17 under the point-of-service option of TRICARE Prime.
(g)
(a)
(b)
(c)
(d)
(i) Members of Uniformed Services, who:
(A) Are discharged or released from active duty (or full time National Guard duty), whether voluntarily or involuntarily, under other than adverse conditions;
(B) Immediately preceding that discharge or release, were entitled to medical and dental care under 10 U.S.C. 1074(a) (except in the case of a member discharged or released from full-time National Guard duty); and,
(C) After that discharge or release and any period of transitional health care provided under 10 U.S.C. 1145(a) would not otherwise be eligible for any benefit under 10 U.S.C. chapter 55.
(ii) A person who:
(A) Ceases to meet requirements for being considered an unmarried dependent child of a member or former member of the armed forces under 10 U.S.C. 1072(2)(D);
(B) On the day before ceasing to meet those requirements, was covered under a health benefits plan under 10 U.S.C. chapter 55, or transitional health care under 10 U.S.C. 1145(a) as a dependent of the member or former member; and,
(C) Would not otherwise be eligible for any benefits under 10 U.S.C. chapter 55.
(iii) A person who:
(A) Is an unremarried former spouse of a member or former member of the armed forces;
(B) On the day before the date of the final decree of divorce, dissolution, or annulment was covered under a health benefits plan under 10 U.S.C. chapter 55, or transitional health care under 10 U.S.C. 1145(a) as a dependent of the member or former member; and,
(C) Is not a dependent of the member or former member under 10 U.S.C. 1072(2)(F) or (G) or ends a one-year period of dependency under 10 U.S.C. 1072(2)(H).
(iv) An unmarried person who:
(A) Is placed in the legal custody of a member or former member by a court or who is placed in the home of a member or former member by a recognized placement agency in anticipation of the legal adoption of the child; and
(B) Either:
(
(
(C) Is dependent on the member or former member for over one-half of the person's support; and
(D) Resides with the member or former member unless separated by the necessity of military service or to receive institutional care as a result of disability or incapacitation; and
(E) Is not a dependent of a member or former member as described in § 199.3(b)(2).
(2)
(3)
(ii) In the case of a member who becomes (or will become) eligible for continued coverage, the Department of Defense shall notify the member of their rights for coverage as part of pre-separation counseling conducted under 10 U.S.C. 1142.
(iii) In the case of a child of a member or former member who becomes eligible for continued coverage:
(A) The member or former member may submit to the Third Party Administrator a notice of the child's change in status (including the child's name, address, and such other information needed); and
(B) The Third Party Administrator, within 14 days after receiving such information, will inform the child of the child's rights under 10 U.S.C. 1142.
(iv) In the case of a former spouse of a member or former member who becomes eligible for continued coverage, the Third Party Administrator will notify the individual of eligibility for CHCBP when he or she declares the change in marital status to a military personnel office.
(4)
(A) The date of the discharge or release of the member from active duty or full-time National Guard duty;
(B) The date on which the period of transitional health care applicable to the member under 10 U.S.C. 1145(a) ends;
(C) In the case of an unremarried former spouse of a member or former member, the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) expires; or
(D) The date the member receives the notification of eligibility.
(ii) A member of the armed forces who is eligible for enrollment under paragraph (d)(1)(i) of this section may elect self-only or family coverage. Family members who may be included in such family coverage are the spouse and children of the member.
(5)
(i) A Defense Enrollment Eligibility Reporting System (DEERS) printout which indicates the appropriate sponsor status and the sponsor's and dependent's eligibility dates;
(ii) A copy of a verified and approved DD Form 1172, “Application for Uniformed Services Identification and Privilege Card”;
(iii) A front and back copy of a DD Form 1173, “Uniformed Services Identification and Privilege Card” overstamped “TA” for Transition Assistance Management Program; or
(iv) A copy of a DD Form 214—“Certificate of Release or Discharge from Active Duty”.
(6)
(i) For a member discharged or released from active duty (or full time National Guard duty), whether voluntarily or involuntarily, the date which is 18 months after the date the member ceases to be entitled to care under 10 U.S.C. 1074(a) and any transitional care under 10 U.S.C. 1145.
(ii) In the case of an unmarried dependent child of a member or former member, the date which is 36 months after the date on which the person first ceases to meet the requirements for being considered an unmarried dependent child under 10 U.S.C. 1072(2)(D).
(iii) In the case of an unremarried former spouse of a member or former member, the date which is 36 months after the later of:
(A) The date on which the final decree of divorce, dissolution, or annulment occurs; or
(B) If applicable, the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) expires.
(iv) In the case of an unremarried former spouse of a member or former member, whose divorce occurred prior to the end of transitional coverage, the period of coverage under the CHCBP is unlimited, if:
(A) Has not remarried before the age of 55; and
(B) Was enrolled in the CHCBP as the dependent of an involuntarily separated member during the 18-month period before the date of the divorce, dissolution, or annulment; and
(C) Is receiving a portion of the retired or retainer pay of a member or former member or an annuity based on the retainer pay of the member; or
(D) Has a court order for payment of any portion of the retired or retainer pay; or
(E) Has a written agreement (whether voluntary or pursuant to a court order) which provides for an election by the member or former member to provide an annuity to the former spouse.
(v) For the beneficiary who becomes eligible for the Continued Health Care Benefit Program by ceasing to meet the requirements for being considered an unmarried dependent child of a member or former member, health care coverage may not extend beyond the date which is 36 months after the date the member becomes ineligible for medical and dental care under 10 U.S.C. 1074(a) and any transitional health care under 10 U.S.C. 1145(a).
(vi) Though beneficiaries have sixty-days (60) to elect coverage under the CHCBP, upon enrolling, the period of coverage must begin the day after entitlement to a military health care plan (including transitional health care under 10 U.S.C. 1145(a)) ends.
(e)
(2)
(i) Paragraph (a)(2) of this section concerning eligibility:
(ii) All provisions regarding nonavailability statements or requirements to use facilities of the Uniformed Services.
(3)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(2)
(i) The Extended Care Health Option (ECHO) under § 199.5.
(ii) The Active Duty Dependents Dental Plan under § 199.13;
(iii) The Supplemental Health Care Program under § 199.16; and
(iv) The TRICARE Enrollment Program under § 199.17, except for TRICARE Extra program under that section.
(3)
(i) Home Health Care Demonstration; and
(ii) Home Health Care-Case Management Demonstration.
(q)
(2) Effects of failure to make premium payments. Failure by enrollees to submit timely and proper premium payments will result in denial of continued enrollment and denial of payment of medical claims. Premium payments which are late 30 days or more past the start of the quarter for which
(r)
(2) Enrollment in the U.S. VIP program may continue up to October 1, 1994. Policies written prior to October 1, 1994, will remain in effect until the end of the policy life.
(3) On or after the October 1, 1994, implementation of the Continued Health Care Benefit Program, beneficiaries who enrolled in the U.S. VIP program prior to October 1, 1994, may elect to cancel their U.S. VIP policy and enroll in the CHCBP.
(4) With the exception of persons enrolled in the U.S. VIP program who may convert to the CHCBP, individuals who lost their entitlement to regular military health services system coverage prior to August 2, 1994, are not eligible for the CHCBP.
(s)
(a) General—(1)
(2)
(3)
(i) The uniform formulary will assure the availability of pharmaceutical agents in the complete range of therapeutic classes authorized as basic program benefits.
(ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the procedures established by paragraphs (e) and (f) of this seciton, pharmaceutical agents in each therapeutic class are selected for inclusion on the uniform formulary based upon the relative clinical effectiveness and cost effectiveness of the agents in such class. If a pharmaceutical agent in a therapeutic class is determined by the Department of Defense Pharmacy and Therapeutics Committee not to have a significant, clinically meaningful therapeutic advantage in terms of safety, effectiveness, or clinical outcome over other pharmaceutical agents included on the uniform formulary, the Committee may recommend it be classified as a non-formulary agent. In addition, if the evaluation by the Pharmacy and Therapeutics Committee concludes that a pharmaceutical agent in a therapeutic class is not cost effective relative to other pharmaceutical agents in that therapeutic class, considering costs, safety, effectiveness, and clinical outcomes, the Committee
(iii) Pharmaceutical agents which are used exclusively in medical treatments or procedures that are expressly excluded from the TRICARE benefit by statute or regulation will not be considered for inculsion on the uniform formulary. Excluded pharmaceutical agents shall not be available as non-formulary agents, nor will they be cost-shared under the TRICARE pharmacy benefits program.
(b)
(1)
(2)
(c)
(2)
(3)
(d)
(e)
(ii) Sources of information may include but are not limited to:
(A) Medical and pharmaceutical textbooks and reference books;
(B) Clinical literature;
(C) U.S. Food and Drug Administration determinations and information;
(D) Information from pharmaceutical companies;
(E) Clinical practice guidelines, and
(F) Expert opinion.
(iii) The DoD Pharmacy and Therapeutics Committee will evaluate the relative clinical effectiveness of pharmaceutical agents within a therapeutic class by considering information about their safety, effectiveness, and clinical outcome.
(iv) Information considered by the Committee may include but is not limited to:
(A) U.S. Food and Drug Administration approved and other studied indications;
(B) Pharmacology;
(C) Pharmacokinetics;
(D) Contraindications;
(E) Warnings/precautions;
(F) Incidence and severity of adverse effects;
(G) Drug to drug, drug to food, and drug to disease interactions;
(H) Availability, dosing, and method of administration;
(I) Epidemiology and relevant risk factors for diseases/conditions in which the pharmaceutical agents are used;
(J) Concomitant therapies;
(K) Results of safety and efficacy studies;
(L) Results of effectiveness/clinical outcomes studies, and
(M) Results of meta-analyses.
(2) Cost effectiveness. (i) In considering the relative cost effectiveness of pharmaceutical agents in a therapeutic class, the DoD Pharmacy and Therapeutics Committee shall evaluate the costs of the agents in relation to the safety, effectiveness, and clinical outcomes of the other agents in the class.
(ii) Information considered by the Committee concerning the relative cost effectiveness of pharmaceutical agents may include but is not limited to:
(A) Cost of the pharmaceutical agent to the Government;
(B) Impact on overall medical resource utilization and costs;
(C) Cost-efficacy studies;
(D) Cost-effectiveness studies;
(E) Cross-sectional or retrospective economic evaluations;
(F) Pharmacoeconomic models;
(G) Patent expiration dates;
(H) Clinical practice guideline recommendations, and
(I) Existence of existing or proposed blanket purchase agreements, incentive price agreements, or contracts.
(f)
(1) Approval of a new pharmaceutical agent by the U.S. Food and Drug Administration;
(2) Approval of a new indication for an existing pharmaceutical agent;
(3) Changes in the clinical use of existing pharmaceutical agents;
(4) New information concerning the safety, effectiveness or clinical outcomes of existing pharmaceutical agents;
(5) Price changes;
(6) Shifts in market share;
(7) Scheduled review of a therapeutic class; and
(8) Requests from Pharmacy and Therapeutics Committee members, military treatment facilities, or other Military Health System officials.
(g)
(2)
(3)
(h)
(i) Military Treatment Facilities (MTFs);
(ii) Retail network pharmacies: Those are non-MTF pharmacies that are a part of the network established for TRICARE retail pharmacy services;
(iii) Retail non-network pharmacies: Those are non-MTF pharmacies that are not part of the network established for TRICARE retail pharmacy services, and
(iv) the TRICARE Mail Order Pharmacy (TMOP).
(2)
(ii)
(3)
(ii)
(iii)
(iv)
(i)
(2)
(i) For pharmaceutical agents obtained from a military treatment facility, there is no co-payment.
(ii) For pharmaceutical agents obtained from a retail network pharmacy there is a:
(A) $9.00 co-payment per prescription required for up to a 30-day supply of a formularly pharmaceutical agent.
(B) $3.00 co-payment per prescription for up to a 30-day supply of a generic pharmaceutical agent.
(C) $22.00 co-payment per prescription for up to a 30-day supply of a non-formulary pharmaceutical agent.
(iii) For formulary and generic pharmaceutical agents obtained from a retail non-network pharmacy there is a 20 percent or $9.00 co-payment (whichever is greater) per prescription for up to a 30-day supply of the pharmaceutical agent.
(iv) For non-formulary pharmaceutical agents obtained at a retail non-network pharmacy there is a 20 percent or $22.00 co-payment (whichever is greater) per prescription for up to a 30-day supply of the pharmaceutical agent.
(v) For pharmaceutical agents obtained under the TMOP program there is a:
(A) $9.00 co-payment per prescription for up to a 90-day supply of a formulary pharmaceutical agent.
(B) $3.00 co-payment for up to a 90-day supply of a generic pharmaceutical agent.
(C) $22.00 co-payment for up to a 90-day supply of a non-formulary pharmaceutical agent.
(vi) For TRICARE Prime beneficiaries who obtain prescriptions from retail non-network pharmacies, the enrollment year deductible for outpatient claims is $300 per individual; $600 per family; and a point of service cost-share of 50 percent thereafter applies in lieu of the 20 percent co-payment.
(vii) Except as provided in paragraph (h)(2)(viii) of this section, for pharmaceutical agents acquired by TRICARE Standard beneficiaries from retail non-network pharmacies, beneficiaries are subject to the $150.00 per individual or $300.00 maximum per family annual fiscal year deductible.
(viii) Under TRICARE Standard, dependents of members of the uniformed services whose pay grade is E-4 or below are subject to the $50.00 per indiviudal or $100.00 maximum per family annual fiscal year deductible.
(ix) The TRICARE catastrophic cap limits apply to pharmacy benefits program cost-sharing.
(x) The per prescription co-payments established in this paragraph (i)(2) of this section may be adjusted periodically based on experience with the uniform formulary, changes in economic circumstances, and other appropriate factors. Any such adjustment may be made upon the recommendation of the Pharmacy and Therapeutics Committee and approved by the Assistant Secretary of Defense (Health Affairs). Any such adjusted amount will maintain compliance with the requirements of 10 U.S.C. 1074g(a)(6).
(3)
(ii) A clinical necessity for use of a non-formulary pharmaceutical agent is established when the beneficiary or their provider submits sufficient information to show that one or more of the following conditions exist:
(A) The use of formualry pharmaceutical agents is contraindicated;
(B) The patient experiences significant adverse effects from formulary pharmaceutical agents, or the provider shows that the patient is likely to experience significant adverse effects from formulary pharmaceutical agents;
(C) Formulary pharmaceutical agents result in therapeutic failure, or the provider shows that the formulary pharmaceutical agent is likely to result in therapeutic failure;
(D) The patient previously responded to a non-formulary pharmaceutical agent and changing to a formulary pharmaceutical agent would incur unacceptable clinical risk; or
(E) There is no alternative pharmaceutical agent on the formulary.
(iii) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent should be provided to TRICARE for prescriptions submitted to a retail network pharmacy.
(iv) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent should be provided as part of the claims processes for non-formulary pharmaceutical agents obtained through non-network points of service, claims as a result of other health insurance, or any other situations requiring the submission of a manual claim.
(v) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent may be provided with the prescription submitted to the TMOP contractor.
(vi) Information to establish clinical necessity for use of a non-formulary
(vii) The process of establishing clinical necessity will not unnecessarily delay the dispensing of a prescription. In situations where clinical necessity cannot be determined in a timely manner, the non-formulary pharmaceutical agent will be dispensed at the non-formulary co-payment and a refund provided to the beneficiary should clinical necessity be established.
(viii) Peer review and appeal and hearing procedures. All levels of peer review, appeals, and grievances established by the Contractor for internal review shall be exhausted prior to forwarding to TRICARE Management Activity for a formal review. Procedures comparable to those established under §§ 199.15 and 199.10 of this part shall apply. If it is determined that the prescription is clinically necessary, the pharmaceutical agent will be provided to the beneficiary at the formulary cost-share. TRICARE may require that the time periods for peer review or for appeal and hearing be expedited under the pharmacy benefits program. For purposes of meeting the amount in dispute requirement of § 199.10(a)(7), the relevant amount is the difference between the cost shares of a formulary versus non-formulary drug. The amount for each of multiple prescriptions involving the same drug to treat the same medical condition and filled within a 12-month period may be combined to meet the required amount in dispute.
(j)
(2) The pharmacy benefits program generally requires mandatory substitution of generic drugs listed with an “A” rating in the current Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book) published by the FDA and generic equivalents of grandfather or Drug Efficacy Study Implementation (DESI) category drugs for brand name drugs. In cases in which there is a clinical justification for a brand name drug in lieu of a generic equivalent, under the standards and procedures of paragraph (h)(3) of this section, the generic substitution policy is waived.
(3) When a blanket purchase agreement, incentive price agreement, Government contract, or other circumstances results in a brand pharmaceutical agent being the most cost effective agent for purchase by the Government, the Pharmacy and Therapeutics Committee may also designate that the drug be cost-shared at the generic rate.
(k)
(2) The Pharmacy and Therapeutics Committee will assess the need to prior authorize a given agent by considering the relative clinical and cost effectiveness of pharmaceutical agents within a therapeutic class. Pharmaceutical agents that require prior authorization will be identified by a majority vote of the Pharmacy and Therapeutics Committee. The Pharmacy and Therapeutics Committee will establish the prior authorization criteria for the pharamaceutical agent.
(3) Prescriptions for pharmaceutical agents for which prior authorization criteria are not met will not be cost-shared under the TRICARE pharmacy benefits program.
(4) The Director, TRICARE Management Activity, may issue policies, procedures, instructions, guidelines,
(l)
(m)
(n)
(o)
(2) Based on the determination set forth in paragraph (o)(1) of this section, any State or local law relating to health insurance, prepaid health plans, or other health care delivery or financing methods is preempted and does not apply in connection with TRICARE pharmacy contracts. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE pharmacy contracts. However, the Department of Defense may by contract establish legal obligations on the part of TRICARE contractors to conform with requirements similar or identical to requirements of State or local laws or regulations.
(3) The preemption of State and local laws set forth in paragraph (o)(1) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (o)(1) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD pharmacy services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD pharmacy services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(p)
(a)
(b)
(2) Premium costs for this coverage will be paid by the enrollee.
(3) The program is applicable to authorized providers in the 50 United States and the District of Columbia, Canada, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands.
(4) Except as otherwise provided in this section or by the Assistant Secretary of Defense (Human Affairs) or designee, the TRDP is administered in a manner similar to the Active Duty Dependents Dental Plan under § 199.13 of this part.
(5) The TRDP shall be administered through a contract.
(c)
(d)
(i) Members of the Uniformed Services who are entitled to retired pay, or former members of the armed forces who are Medal of Honor recipients and who are not otherwise entitled to dental benefits;
(ii) Members of the Retired Reserve under the age of 60;
(iii) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the enrollment of the member;
(iv) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not enrolled in the program and the member meets at least one of the conditions in paragraphs (d)(1)(iv)(A) through (C) of this section. Already enrolled members must satisfy any remaining enrollment commitment prior to enrollment of dependents becoming effective under this paragraph, at which time the dependent-only enrollment will continue on a voluntary, month-to-month basis as specified in paragraph (d)(4) of this section. Members must provide documentation to the TRDP contractor giving evidence of compliance with paragraphs (d)(1)(iv)(A), (B), or (C) of this section at the time of application for enrollment of their dependents under this paragraph.
(A) The member is enrolled under Section 1705 of Title 38, United States Code, to receive ongoing, comprehensive dental care from the Department of Veterans Affairs pursuant to Section 1712 of Title 38, United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization of such dental care must be confirmed in writing by the Department of Veterans Affairs.
(B) The member is enrolled in a dental plan that is available to the member as a result of employment of the member that is separate from the Uniformed Service of the member, and the dental plan is not available to dependents of the member as a result of such separate employment by the member. Enrollment in this dental plan and the exclusion of dependents from enrollment in the plan must be confirmed by
(C) The member is prevented by a current and enduring medical or dental condition from being able to obtain benefits under the TRDP. The specific medical or dental condition and reason for the inability to use the program's benefits over time, if not apparent based on the condition, must be documented by the member's physician or dentist.
(v) The unremarried surviving spouse and eligible child dependents of a deceased member who died while in status described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section; the unremarried surviving spouse and eligible child dependents who receive a surviving spouse annuity; or the unremarried surviving spouse and eligible child dependents of a deceased member who died while on active duty for a period of more than 30 days and whose eligible dependents are not eligible or no longer eligible for the Active Duty Dependents Dental Plan.
Note to paragraphs (d)(1)(iii), (d)(1)(iv), and (d)(1)(v): Eligible dependents of Medal of Honor recipients are described in§ 199.3(b)(2)(i) (except for former spouses) and§ 199.3(b)(2)(ii) (except for a child placed in legal custody of a Medal of Honor recipient under § 199.3(b)(2)(ii)(H)(
(2)
(3)
(4)
(ii)
(5)
(ii)
(6)
(e)
(1)
(2)
(3)
(f)
(1)
(i) Diagnostic Periodic oral evaluation (00120); Comprehensive oral evaluation (limited to one exam per year in the same dental office) (00150), Intraoral-complete series (including bitewings) (00210); Intraoral-periapical-first film (00220); Intraoral-periapical-each additional film (00230); Intraoral-occlusal film (00240); Bitewings-single film (00270); Bitewings-two films (00272); Bitewings-four films (00274); Panoramic film (00330); Caries susceptibility tests, by report (00425); Pulp vitality tests (00460).
(ii) Preventive: Prophaylaxis-adult (limit-once per year) (01110); Prophylaxis-child (01120); Topical application of fluoride (excluding prophylaxis)-child (01203); Topical application of fluoride (excluding prophylaxis)-adult, by report, once per year (01204); Sealant-per tooth (01351); Space maintainer-fixed-unilateral (01510); Space maintainer-fixed-bilateral (01515); Space maintainer-removable-unilateral (01520); Space maintainer-removable-bilateral (01525); Recementation of space maintainer (01550).
(iii) Restorative: Amalgam-one surface, primary (02110); Amalgam-two surfaces, primary (02120); Amalgam-three surfaces, primary (02130); Amalgam-four or more surfaces, primary (02131); Amalgam-one surface, permanent (02140); Amalgam-two surfaces, permanent (02150); Amalgam-three surfaces, permanent (02160); Amalgam-four or more surfaces, permanent (02161);
(iv) Endodontic: Pulp cap-indirect (excluding final restoration) (03120); Therapeutic pulpotomy (excluding final restoration) (03220); Pulpal therapy (resorbable filling)-anterior, primary tooth (excluded final restoration) (03230); Pulpal therapy (resorbable filling)-posterior, primary tooth (excluded final restoration) (03240); Anterior root canal (excluding final restoration) (03310); Bicuspid root canal (excluding final restoration) (03320); Molar root canal (excluding final restoration) (03330); Retreatment-anterior, by report (03346); Retreatment-bicuspid, by report (03347); Retreatment-molar, by report (03348); Apexification/recalcification-initial visit (apical closure/calcific repair of perforations, root resorption, etc.) (03351); Apexification/recalcification-interim medication replacement (apical closure/calcific repair of perforations, root resorption, etc.) (03352); Apexification/recalcification-final visit (includes completed root canal therapy-apical closure/calcific repair of perforations, root resorption, etc.) (03353); Apicoectomy/Periradicular surgery-anterior (03410); Apicoectomy/Periradicular surgery-bicuspid (first root) (03421); Apicoectomy/Periradicular surgery-molar (first root) (03425); Apicoectomy/Periradicular surgery (each additional root) (03426); Retrograde filling-per root (03430); Root amputation-per root (03450); Hemisection (including any root removal), not including root canal therapy (03920).
(v) Periodontic: Gingivectomy or gingivoplasty-per quadrant (04210); Gingivectomy or gingivoplasty-per tooth (04211); Gingival curettage, surgical, per quadrant, by report (04220); Gingival flap procedure, including root planing-per quadrant (04240); Mucogingival surgery-per quadrant (04250); Osseous surgery (including flap entry and closure)-per quadrant (04260); Bone replacement graft-single site (including flap entry and closure) (04263); Bone replacement graft-multiple sites (including flap entry and closure) (04264); Guided tissue regeneration—resorbable barrier (04266); Guided tissue regeneration—nonresorbable barrier (04267); Pedicle soft tissue graft procedure (04270); Free soft tissue graft procedure (including donor site) (04271); Periodontal scaling and root planing-per quadrant (04341); Periodontal maintenance procedures (following active therapy) (04910); Unscheduled dressing change (by someone other than treating dentist) (04920).
(vi) Oral Surgery: Single tooth (07110); Each additional tooth (07120); Root removal-exposed roots (07130) Surgical removal or erupted tooth requiring elevation of mucoperiosteal flap and removal of bone and/or section of tooth (07210); Removal of impacted tooth-soft tissue (07220); Removal of impacted tooth-partially bony (07230); Removal of impacted tooth-completely bony (07240); Surgical removal of residual tooth roots (cutting procudure) (07250); Oral antral fistula closure (07260); Tooth reimplantation and/or stabilization of accidentially evulsed or displaced tooth and/or alveolus (07270); Surgical exposure of impacted or unerupted tooth to aid eruption (07281); Biopsy of oral tissue-hard (07285); Biopsy of oral tissue-soft (07286); Surgical repositioning of teeth (074290); Alveoloplasty in conjunction with extractions-per quadrant (07310); Suture of recent small wounds up to 5 cm (07910); Complicated suture-up to 5 cm (07911); Complicated suture-greater than 5 cm (07912); Excision of pericoronal gingiva (07971).
(vii) Emergency: Limited oral evaluation—problem focused (00140); Palliative (emergency) treatment of dental pain-minor procedures (09110).
(viii) Drugs: Therapeutic drug injection, by report (09610); Other drugs and/or medications, by report (09630).
(ix) Postsurgical: Treatment of complications (post-surgical) unusual circumstances, by report (09930).
(2)
(3)
(i) The service, procedure, or course of treatment must be consistent with sound professional standards of generally accepted dental practice for the dental condition concerned.
(ii) The service, procedure, or course of treatment must be a generally accepted alternative for a service or procedure covered by the TRDP for the dental condition.
(iii) Payment for the alternative service or procedure may not exceed the lower of the prevailing limits for the alternative procedure, the prevailing limits or dental plan contractor's scheduled allowance for the otherwise authorized benefit procedure for which the alternative is substituted, or the actual charge for the alternative procedure.
(g)
(h)
(i)
(j)
(1) Billed charges; or
(2) Usual, Customary and Reasonable rates, in which the customary rate is calculated at the 50th percentile of billed charges in that geographic area, as measured in an undiscounted charge profile in 1995 or later for that geographic area (as defined by three-digit zip code).
(k)
(l)
(2) Based on the determination set forth in paragraph (l)(1) of this section, any State or local law or regulation pertaining to health or dental insurance, prepaid health or dental plans, or other health or dental care delivery, administration, and financing methods is preempted and does not apply in connection with the TRICARE Retiree Dental Program contract. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE Retiree Dental Program contract. (However, the Department of Defense may, by contract, establish legal obligations on the part of the TRICARE Retiree Dental Program contractor to conform with requirements similar to or identical to requirements of State or local laws or regulations).
(3) The preemption of State and local laws set forth in paragraph (l)(2) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of section 1103. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For the purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health and dental services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(m)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(A) Under 21 years of age; or
(B) Incapable of self-support because of mental or physical incapacity and is in fact dependent on the member for more than
(C) Is under 23 years of age, is enrolled in a full-time course of study in an institution of higher education and is in fact dependent on the member for more than one-half of the child's support.
(10)
(11)
(12)
(i) A dependent of a member of the armed forces residing with the member outside the United States, whether or not that dependent is command sponsored, or
(ii) An employee of a military department who is a national of the United States and is residing outside the United States in connection with such individual's employment or a dependent of such individual residing with the employee outside the United States; or
(iii) An employee of a Department of Defense contractor who is a national of the United States and is residing outside the United States in connection with such individual's employment or a dependent of such individual residing with the employee outside the United States.
(13)
(14)
(15)
(16)
(17)
(i) Is a citizen of the U.S.; or
(ii) Is not a citizen of the United States, but who owes permanent allegiance to the United States, as determined in accordance with the Immigration and Nationality Act.
(18)
(19)
(20)
(i) The presence of detrimental or abnormal nutritional conditions detectable by biochemical, physical, developmental or anthropometric data, or
(ii) Other documented nutritionally related medical conditions, or
(iii) Documented evidence of dietary deficiencies that impair or endanger health, or
(iv) Conditions that directly affect the nutritional health of a person, such as alcoholism or drug abuse, or
(v) Conditions that predispose persons to inadequate nutritional patterns, habits of poor nutritional choices or nutritionally related medical conditions.
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(c)
(i) Meet one of the participant type requirements: be a member of the armed forces on duty overseas; a family member/dependent of a member of the armed forces on duty overseas; a U.S. national employee of a military department serving overseas; a family member of a U.S. national employee of a DoD contractor serving overseas; a family member of a U.S. national employee of a DoD contractor serving overseas;
(ii) Reside in the geographic area served by the WIC Overseas office;
(iii) Meet the income criteria specified in this section; and
(iv) Meet the nutrition risk criteria specified in this section.
(2) In terms of income eligibility, the following apply:
(i) The Department of Defense shall use the Alaska income poverty guidelines published by the DHHS for making determinations regarding income eligibility for the Program.
(ii) Program income eligibility guidelines shall be adjusted annually to conform to annual adjustments made by the DHHS.
(iii) For income eligibility, the Program may consider the income of the family during the past 12 months and the family's current rate of income to determine which indicator accurately reflects the family's status.
(iv) A pregnant woman who is ineligible for participation in the Program
(v) The Program shall define income according to USDA regulations with regard to the USDA-administered WIC Program. In particular—
(A) A basic allowance for housing is excluded from income as required by section 674 of the National Defense Authorization Act for Fiscal Year 2000.
(B) The value of in-kind housing benefits is excluded from income as required under USDA regulations.
(C) Cost of living allowances for duty outside the continental U.S. (OCONUS) is excluded from income as required under 7 CFR 246.7(d)(2)(iv)(A)(
(D) Public assistance and welfare payments are included in income.
(3) Participants must be found to be at nutritional risk to be eligible for program benefits.
(i) A Competent Professional Authority (CPA) shall determine if an applicant is at nutritional risk.
(ii) At the request of the program, applicants shall provide, according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed impracticable), nutritional risk data as a condition of certification in the Program. Such data includes:
(A) Anthropometric measurements,
(B) The results of hematological tests,
(C) Physical examination,
(D) Dietary information, or
(E) Developmental testing
(iii) A pregnant woman who meets all other eligibility criteria and for whom a nutritional risk assessment cannot immediately be completed will be considered presumptively eligible to participate in the Program for a period up to 60 days.
(iv) Infants under 6 months of age may be deemed to be at nutritional risk if the infant's mother was a Program participant during pregnancy or if medical records document that the mother was at nutritional risk during pregnancy.
(v) Unless otherwise specified herein or in 7 CFR 246.7(e), required nutritional risk data shall be provided to, or obtained by, the WIC Overseas Program office within 90 days of enrollment.
(4) In the event that it is impracticable for the WIC Overseas Program to adhere to the income and nutritional risk eligibility guidelines contained in USDA regulations, the Director, TRICARE Management Activity (TMA) may waive the Department's use of USDA WIC Program eligibility criteria by determining that it is impracticable to use these standards to certify participants in the WIC Overseas Program.
(i) Such determination shall consider relevant practical, administrative, national security, financial factors and existing Department policies and their application to the population served by the WIC Overseas Program.
(ii) Absent a written finding of impracticability described in section 199.23(c)(4), the eligibility criteria for the WIC program, contained in USDA regulations shall apply.
(5) An applicant for the WIC Overseas Program who presents a valid WIC Program Verification of Certification card, which is issued to participants in the domestic WIC Program when they intend to move, shall be considered eligible for participation in the WIC Overseas Program for the duration of the individual's current domestic WIC certification period, as long as he/she is an eligible service/family member or eligible civilian/family member.
(d)
(i) Drafts shall at a minimum list the food items to be redeemed and the date-to-use.
(ii) Food items listed on the draft must be approved for use under the Program.
(iii) Drafts generally shall allow for a three-month supply of food items for each participant, unless the participant's nutritional status necessitates more frequent contacts with the WIC Overseas office.
(iv) Participating commissaries and NEXMARTS shall accept the drafts in exchange for approved food items.
(v) Commissary and NEXMART personnel shall be trained on verification and processing of drafts.
(vi) Program guidelines shall provide for training of new participants in how to redeem drafts.
(2)
(i) The Director, TMA shall identify to the Defense Commissary Agency (DeCA) and NEXCOM a list of food items approved for the WIC Overseas Program. This list shall be developed in consultation with the USDA and shall include information regarding the appropriate package and/or container sizes and quantities available for participants, as well as the frequency with which food items can be acquired. Additions and/or deletions of food items from this list shall be communicated to the commissaries and NEXMARTS on an ongoing basis.
(ii) A CPA shall prescribe appropriate foods from among the approved list to be included in food packages.
(iii) A CPA shall coordinate documentation of medical need when such documentation is a prerequisite for prescribing certain food items.
(iv) The Director, TMA may authorize changes regarding the supplemental foods to be made available in the WIC Overseas Program when local conditions preclude strict compliance or when such compliance is impracticable.
(3)
(i) The WIC Overseas nutrition education program shall be locally overseen by a CPA based on guidance and materials provided by TMA.
(ii) Nutrition education and its means of delivery be tailored to the greatest extent practicable to the specific nutritional, cultural, practical, and other needs of the participant. Participant profiles created during certification may be used in designing appropriate nutrition education. A CPA may develop individual care plans, as necessary, consistent with USDA regulations.
(iii) Nutrition education shall consist of sessions wherein individual participants or groups of participants meet with a CPA in an interactive setting such that participants can ask, and the CPA can answer, questions related to nutrition practices. In addition, nutrition education shall utilize prepared educational materials and/or Internet sites. Both the sessions and the information materials shall be designed to improve health status, achieve positive change in dietary habits, and emphasize relationships between nutrition and health. Individual and group sessions can be accomplished through, among other things, face-to-face meetings, remote tele-videoconferencing, real-time computer-based distance learning, or other means.
(iv) Nutrition education services shall generally be provided to participants twice during each 6-month certification period, unless a different schedule is specified in USDA regulations.
(v) The nutrition education program shall promote breastfeeding as the optimal method of infant nutrition, encourage pregnant participants to breastfeed unless contraindicated for health reasons, and educate all participating women about the harmful effects of substance abuse.
(vi) Individual participants shall not be denied supplemental food due to the failure to attend scheduled nutrition education sessions.
(e)
(i) Verification may utilize sampling techniques.
(ii) Payment of drafts shall be made out of Defense Health Program funds.
(f)
(i) The agreement shall identify a contract brand of food item.
(ii) Under the agreement, the manufacturer shall rebate to the Department an agreed portion of the amounts paid by DoD for the procurement of the contract brand.
(2) The DoD shall use competitive procedures under title 10, chapter 137 to select the contract brand.
(3) Amounts rebated shall be credited to the appropriation available for carrying out the program and shall be applied against expenditures for the program in the same period as the other sums in the appropriation.
(g)
(2) Benefits shall not be provided while an appeal is pending when an applicant is denied benefits, a participant's certification has expired or a participant becomes categorically ineligible.
(3) A request for appeal shall be submitted in writing within five working days. If the decision is an adverse one it shall include notice to the applicant of his further appeal rights as reflected in (iii) below, and that he/she has five working days to effect any such appeal.
(4) Appeal reviews shall be conducted in the first instance by the CPA or team leader in charge of the local WIC Overseas office.
(i) Written notice of a decision shall be provided to the applicant within five working days.
(ii) If the appeal is upheld, retroactive benefits shall not be provided.
(iii) At an applicant's request a denied appeal may be forwarded to the regional program manager for review, who will provide a decision on the appeal within 5 working days.
(iv) If the regional program manager denies the appeal, there shall be no further right of appeal.
(5) Complaints about discriminatory treatment shall be handled in accordance with procedures established at each local WIC Overseas site.
(h)
(2) Information and personnel security requirements shall be consistent with applicable laws and regulations.
(a)
(1)
(2)
(3)
(4)
(i)
(B) Certain special programs established in 32 CFR Part 199 are not available to enrollees in TRICARE Reserve Select. These include the Supplemental Health Care Program (see § 199.16), the Extended Health Care Option Program (see § 199.5), and the Special Supplemental Food Program (see § 199.23). The TRICARE Dental Program (see § 199.13) is independent of this program and is otherwise available to all members of the Selected Reserve and their dependents whether or not they are enrolled in TRICARE Reserve Select.
(ii)
(iii)
(b)
(i)
(A) Is called or ordered to active duty for a period of more than 30 days on or after September 11, 2001 under a provision of law referred to in 10 U.S.C. 101(a)(13)(B).
(B) Serves continuously on active duty for 90 days or more pursuant to such call or order to active duty (unless such continuous service on active duty is less than 90 days solely due to an injury, illness, or disease incurred or aggravated while deployed, as provided in 10 U.S.C. 1076d(b(2)(A));.
(C) Is released from active duty after April 26, 2005.
(D) On or before the date of release from active duty, agrees to serve continuously in the Selected Reserve for a period of 1 or more years upon release from active duty; and
(E) Meets the qualifications for continued membership in the Selected Reserve as determined by the member's Reserve component.
(ii)
(A) Was called or ordered to active duty for a period of more than 30 days on or after September 11, 2001 under a provision of law referred to in 10 U.S.C. 101(a)(13)(B).
(B) Served continuously on active duty for 90 days or more pursuant to such call or order to active duty (unless such continuous service on active duty is less than 90 days solely due to an injury, illness, or disease incurred or aggravated while deployed, as provided in 10 U.S.C. 1076d(b(2)(A)).
(C) Was released from active duty on or before April 26, 2005.
(D) Prior to enrollment in TRICARE Reserve Select, signs an agreement no later than October 28, 2005 to serve continuously in the Selected Reserved for a period of 1 or more years; and
(E) Meets the qualifications for continued membership in the Selected Reserve as determined by the member's Reserve component.
(iii)
(2)
(c)
(2)
(3)
(i) Except members released from active duty on or before April 26, 2005, coverage begins at the expiration of TAMP benefits under § 199.3(e) of this part and runs continuously until eligibility expires or is otherwise terminated, or the member is disenrolled. (See paragraphs (c)(4)(i), (5), or (6) of this section.) When enrollment is terminated, a member may not re-enroll unless recalled to active duty and the member re-qualifies for a new period of benefits under paragraph (b) of this section.
(ii) For members released from active duty on or before April 26, 2005, coverage begins on the date that is the later of the expiration of TAMP benefits under § 199.3(e) or the effective date of the member's agreement referred to in paragraph (b)(1)(ii)(D) of this section.
(iii) When a member enrolled in TRICARE Reserve Select is recalled to active duty for a period of more than 30 days TRICARE Reserve Select coverage is superseded by active duty military medical benefits for the member and for any family member enrolled in TRICARE Reserve Select, but the coverage period continues to run. When the member is released from active duty, TRICARE Reserve Select coverage will resume for the member (and the member's family members provided the member had been enrolled in self and family coverage on the date TRICARE Reserve Select coverage was superseded by active duty health benefits). TRICARE Reserve Select coverage will continue until the member's eligibility expires or is otherwise terminated, or the member is disenrolled. (See paragraphs (c)(4)(i), (5), or (6) of this section.) Following the member's release from active duty, TRICARE Reserve Select coverage will also be superseded by TAMP benefits under § 199.3(e) of this Part, if applicable. In addition, TRICARE Reserve Select coverage is also superseded, if applicable, by any period of early TRICARE coverage based on delayed effective date orders under § 199.3(b)(5) of this Part or by a new enrollment, as a result of re-qualifying through another period of active duty service in support of a contingency operation under § 199.24(c) of this Part. During any period in which TRICARE Reserve Select coverage is superseded, no premium payments for TRICARE Reserve Select are due.
(iv) Members who are eligible for TRICARE Reserve Select under paragraph (b) of this section may enroll for one year of TRICARE Reserve Select coverage for every 90 days of continuous active-duty service, subject to the limitation in paragraph (c)(3)(v) of this section. If such continuous service on active duty is less than 90 days solely due to an injury, illness, or disease incurred or aggravated while deployed, then the otherwise eligible member may enroll for one year of TRICARE Reserve Select coverage, as provided in 10 U.S.C. 1076d(b(2)(A).
(v) The number of years for which the member and family are eligible under paragraph (c)(3)(iv) of this section may not exceed the number of whole years for which the member agrees to continue service in the Selected Reserves before coverage begins, per the service agreement entered into under paragraph (b)(1) of this section. The number of years established by the member's agreement that was entered into prior to beginning coverage under TRICARE Reserve Select may not later be changed, even if that number of years was fewer than the maximum number of years that the member could have established in the agreement. The
(vi) When a member's eligibility is terminated or the member is disenrolled from TRICARE Reserve Select under paragraphs (c)(4)(i), (5), or (6) of this section, the member may not re-enroll unless recalled to active duty and the member re-qualifies for a new period of benefits under paragraph (b) of this section.
(4)
(i)
(ii)
(iii)
(5)
(6)
(7)
(i) In the case of disenrollment due to ineligibility (other than relating to the death of a member), on the date of ineligibility.
(ii) In the case of disenrollment due to nonpayment of premiums, at the end of the last month for which premiums were paid.
(iii) In all other cases, at the end of the month in which the event causing disenrollment occurred.
(8)
(d)
(1)
(ii) Initial annual rates are based on the annual premiums for the Blue Cross and Blue Shield Standard Service Benefit Plan under the Federal Employees Health Benefits Program, a nationwide plan closely resembling TRICARE Standard coverage, with an adjustment based on estimated differences in covered populations, as determined by the ASD(HA).
(2)
(3)
(ii) For calendar year 2005, the annual premium for self and family coverage under TRICARE Reserve Select is $2,796.
(e)
(f)
(2) Based on the determination set forth in paragraph (e)(1) of this section, any State or local law or regulation pertaining to health insurance, prepaid health plans, or other health care delivery, administration, and financing methods is preempted and does not apply in connection with TRICARE Reserve Select. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to TRICARE Reserve Select. (However, the Department of Defense may, by contract, establish legal obligations on the part of DoD contractors to conform with requirements similar to or identical to requirements of State or local laws or regulations with respect to TRICARE Reserve Select.)
(3) The preemption of State and local laws set forth in paragraph (e)(2) of this section includes State and local laws imposing premium taxes on
(g)
10 U.S.C. 2705.
Part 203 is issued under the authority of section 2705 of Title 10, United States Code. In 1994, Congress authorized the Department of Defense (DoD) to develop a program to facilitate public participation by providing technical assistance to local community members of Restoration Advisory Boards (RABs) and Technical Review Committees (TRCs) (section 326 of the National Defense Authorization Act for Fiscal Year 1995, Pub.L. 103-337). In 1996, Congress revised this authority (section 324 of the National Defense Authorization Act for Fiscal Year 1996, Pub.L. 104-112). It is pursuant to this revised authority, which is codified as new subsection (3) of section 2705, that the Department of Defense issues this part.
(a) This part establishes the Technical Assistance for Public Participation (TAPP) program for the Department of Defense. It sets forth policies and procedures for providing technical assistance to community members of TRCs and RABs established at DoD installations in the United States and its territories. This part sets forth the procedures for the Department of Defense to accept and evaluate TAPP applications, to procure the assistance desired by community members of RABs and TRCs, and to manage the TAPP program. These provisions are applicable to all applicants/recipients of technical assistance as discussed in § 203.4 of this part.
(b) Any reference to documents made in this part necessary to apply for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or DoD forms) are available through the DoD installations, the military department headquarters, or from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security (DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.
As used in this part, the following terms shall have the meaning set forth:
Technical assistance does not include those activities prohibited under Section 203.11 of this part, such as litigation or underwriting legal actions; political activity; generation of new primary data such as well drilling and testing, including split sampling; reopening final DoD decisions or conducting disputes with the Department of Defense; or epidemiological or health studies, such as blood or urine testing.
(a) The Department of Defense will issue purchase orders to technical assistance, facilitation, training, and other public participation assistance providers subject to the purchase limit per order as resources continue to be available. If multiple purchase orders are needed to assist community members of a particular RAB or TRC, the combined sum of these purchase orders cannot exceed $100,000 or, during any one year, the lesser of $25,000 or 1 percent of the installation's total projected environmental restoration cost-to-complete. Note that these limitations refer to the maximum allowable technical assistance funding per RAB/TRC. Resources available within a given year may vary. These limitations apply unless a waiver is granted by the DoD Component Secretary or equivalent for the installation in question. The $100,000 total and $25,000 annual limitations may be waived, as appropriate, to reflect the complexity of response action, the nature and extent of contamination at the installation, the level of activity at the installation, projected total needs as identified by the TAPP recipient, the size and diversity of the affected population, and the ability of the TAPP recipient to identify and raise funds from other sources.
(b) Community members of the RAB/TRC will provide a description of the services requested (TAPP Project Description) and, if desired, the names of one or more proposed technical assistance providers to the DoD RAB Co-Chair, who will ensure the application is submitted to the installation commander or other designated authority
This section provides an overview of the TAPP process. Specific details referred to in this section can be found in subsequent sections of this part.
(a)
(1) Closure status.
(2) Budget.
(3) Installation restoration program status.
(4) Presence (or absence) of alternate funding.
(5) Relative risk posed by sites at the installation.
(6) Type of task to be funded.
(7) Community concern.
(8) Available funding.
(b)
(c)
(d)
(e)
(a) Non-profit contractors must comply with the cost principles in OMB Circular A-122. Copies of the circular may be obtained from EOP Publications, 725 17th NW, NEOB, Washington, DC 20503.
(b) For-profit contractors and subcontractors must comply with the cost principles in the FAR (48 CFR part 31).
Eligible applicants are community members of RABs or TRCs. Furthermore, the RABs or TRCs must be comprised of at least three community members to ensure community interests are broadly represented. The applicant must certify that the request represents the wishes of a simple majority of the community members of the RAB or TRC. Certification includes, but is not limited to, the results of a roll call vote of community members of the RAB or TRC documented in the meeting minutes. Other requirements of the application are detailed in § 203.9 of this part.
The Department of Defense will begin the TAPP procurement process only after it has determined that all eligibility and responsibility requirements listed in §§ 203.6, 203.7, and 203.9 of this part are met, and after review of the specific provider qualifications as submitted in the narrative section of the application. In addition, the proposed
The applicant must submit a TAPP application to begin the TAPP procurement process. The application form is included as appendix A of this part and can be obtained from the DoD installation, the DoD Component headquarters, or directly from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The applications will not be considered complete until the following data elements have been entered into the form:
(a) Installation.
(b) Source of TAPP request (names of RAB or TRC).
(c) Certification of majority request.
(d) RAB/TRC contact point for TAPP project.
(e) Project title.
(f) Project type (e.g. data interpretation, training, etc.).
(g) Project purpose and description (descriptions, time and locations of products or services desired).
(h) Statement of eligibility of project.
(i) Proposed provider, if known.
(j) Specific qualifications or criteria for provider.
(a) TAPP procurements should be pursued by the RAB or TRC only to the extent that Federal, State, or local agencies responsible for overseeing environmental restoration at the facility do not have the necessary technical expertise for the proposed project, or the proposed technical assistance will contribute to the efficiency, effectiveness, or timeliness of environmental restoration activities at the installation and is likely to contribute to community acceptance of those activities.
(b) TAPP procurements may be used to fund activities that will contribute to the public's ability to provide advice to decision-makers by improving the public's understanding of overall conditions and activities. Categories of eligible activities include the following:
(1)
(i) Installation restoration program site studies, engineering documents, such as site inspections, remedial investigations, feasibility studies, engineering evaluation and cost analyses, and decision documents (including records of decision);
(ii) Risk assessments, including baseline and ecological risk assessments conducted by the installation; and
(iii) Health assessments, such as those conducted by the Agency for Toxic Substances and Disease Registry (ATSDR).
(2)
(3)
(4)
(5)
The following activities are ineligible for assistance under the TAPP program:
(a) Litigation or underwriting legal actions, such as paying for attorney fees or paying for a technical assistance provider to assist an attorney in preparing legal action or preparing for and serving as an expert witness at any legal proceeding regarding or affecting the site.
(b) Political activity and lobbying as defined by OMB Circular A-122.
(c) Other activities inconsistent with the cost principles stated in OMB Circular A-122, “Cost Principles for Non-Profit Organizations.”
(d) Generation of new primary data, such as well drilling and testing, including split sampling.
(e) Reopening final DoD decisions, such as the Records of Decision (see limitations on judicial review of remedial actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 113(h)) or conducting disputes with the Department of Defense).
(f) Epidemiological or health studies, such as blood or urine testing.
(g) Community outreach efforts, such as renting a facility and conducting public meetings, or producing and distributing newsletters.
(a) A technical assistance provider must possess the following credentials:
(1) Demonstrated knowledge of hazardous or toxic waste issues and/or laws.
(2) Academic training in a relevant discipline (e.g., biochemistry, toxicology, environmental sciences, engineering).
(3) Ability to translate technical information into terms understandable to lay persons.
(b) A technical assistance provider should possess the following credentials:
(1) Experience working on hazardous or toxic waste problems.
(2) Experience in making technical presentations.
(3) Demonstrated writing skills.
(4) Previous experience working with affected individuals or community groups or other groups of individuals.
(c) The technical assistance provider's qualifications will vary according to the type of assistance to be provided. Community members of the RAB/TRC may suggest additional provider qualifications as part of the application for technical assistance. These additional qualifications may be used by the Department of Defense to target the most appropriate providers during the procurement process. Examples of such criteria could include prior work in the area, knowledge of local environmental conditions or laws, specific technical capabilities, or other relevant expertise.
Procurements will be conducted as purchase orders in accordance with the FAR (48 CFR part 13). Under these procedures, procurements not exceeding $100,000 are reserved exclusively for small businesses, and will be conducted as competitive procurements. Procurements below a value of $2,500 are considered “micro-purchases.” These procurements do not require the solicitation of bids and may be conducted at the discretion of the contracting officer.
The community point of contact of the RAB or TRC must submit a report, to be provided to the installation and to DUSD(ES), to enable the Department of Defense to meet DoD reporting requirements to Congress. This report should include a description of the TAPP project, a summary of services and products obtained, and a statement regarding the overall satisfaction of the community member of the RAB or TRC with the quality of service and/or products received.
The SAP set forth in FAR (48 CFR part 13) require purchase orders to be conducted on a firm-fixed-price basis, unless otherwise authorized by agency procedures. The Department of Defense anticipates all TAPP awards to be firm-fixed-price procurements.
The recipient technical assistance providers shall keep and preserve detailed records in connection with the contract reflecting acquisitions, work progress, reports, expenditures and commitments, and indicate the relationship to established costs and schedules.
Each technical assistance provider shall submit progress reports, financial status reports, materials prepared for the RAB/TRC, and a final report to the DoD installation for the TAPP project as specified by the specific purchase order agreement. The final report shall document TAPP project activities over the entire period of support and shall describe the achievements with respect to stated TAPP project purposes and objectives.
The Department of Defense shall require each prospective assistance provider on any contract to provide, with its bid or proposal:
(a) Information on its financial and business relationship with the installation, RAB/TRC members, or any/all potentially responsible parties (PRPs) at the site, and with their parent companies, subsidiaries, affiliates, subcontractors, contractors, and current clients or attorneys and agents. This disclosure requirement encompasses past and anticipated financial and business relationships, including services related to any proposed or pending litigation, with such parties.
(b) Certification that, to the best of its knowledge and belief, it has disclosed such information or no such information exists.
(c) A statement that it shall disclose immediately any such information discovered after submission of its bid or after award. The contracting officer shall evaluate such information and shall exclude any prospective contractor if the contracting officer determines the prospective contractor has a potential conflict of interest that is both significant and cannot be avoided or otherwise resolved. If, after award, the contracting officer determines that a conflict of interest exists that is both significant and cannot be avoided or resolved, the contract will be terminated for cause.
(d) Contractors and subcontractors may not be technical assistance providers to community members of RABs/TRCs at an installation where they are performing cleanup activities for the Federal or State government or any other entity.
DoD Components will establish an appeals process to settle potential disputes between the Department of Defense and the public regarding certain decisions arising out of the TAPP process. The Department of Defense recognizes that the RAB/TRC may disagree with the findings of the installation commander that a proposed TAPP project is ineligible, either because of the availability of alternate sources of assistance or because the project does not meet the eligibility criteria established in this part. It is in the best interests of the Department of Defense and the community members of RABs and TRCs to anticipate and avoid disputes and to work cooperatively to resolve potential differences of opinion. However, in certain circumstances, the RAB/TRC community members may feel that their needs were not adequately served by the decisions of the Department of Defense. In this instance, the hierarchical structure and chain-of-command within each DoD Component will serve as the avenue for appeal. Appeals will be considered within the chain-of-command, and, in general, will be resolved at the lowest level possible. The highest level of appeal will be at the DoD Component Deputy Assistant Secretary level with authority over the DERP and BRAC environmental programs. Inherently governmental functions, such as the procurement process governed by the FAR, are not subject to appeal.
31 U.S.C. 483a.
This part reissues 32 CFR part 204 and implements the DoD program under 31 U.S.C. 9701, and OMB Circular A-25 for establishing appropriate charges for authorized services provided by DoD organizations.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). None of the provisions in this part should be construed as providing authority for the sale or lease of property, or the rendering of special services. Actions to convey such special benefits must be authorized by separate authority. The user charge policy is applicable except when other statutes or directives specifically direct other practices or procedures.
(a)
(1) Enables the recipient to obtain more immediate or substantial gain or values (which may or may not be measureable in monetary terms) than those which accrue to the general public; or
(2) Is performed at the request of the recipient and is above and beyond the services regularly received by or available without charge to the general public.
(b)
(2) When federally owned resources or property are leased or sold, a fair market value shall be obtained. Fair market value shall be determined by the application of sound business management principles and, so far as practicable and feasible, in accordance with comparable commercial practices. Charges based on fair market value need not be limited to the recovery of costs; they may produce net revenues to the Government.
(c)
(i) Morale, welfare, and recreation services to military personnel and civilian employees of the Department of Defense and other services provided in accordance with § 204.9.
(ii) Sale or disposal of surplus property under approved programs (See DoD Instruction 7310.1
(iii) Services furnished the general public relating to, or in furtherance of, the U.S. Armed Forces recruiting program.
(iv) Services furnished to representatives of the public information media in the interest of public understanding of the U.S. Armed Forces.
(v) U.S. Armed Forces participation in public events. Charges for such participation are governed by the provisions of 32 CFR part 238.
(vi) Records made available to the public, under the Freedom of Information Act, pursuant to 32 CFR part 286. Charges for such record searches and copies of records are governed by § 286.61.
(vii) Services furnished to non-Federal audio-visual media Charges for such services are governed by the provisions of DoD Instruction 5410.15.
(viii) Government-developed computer programs released to non-Federal customers. Charges for software packages are governed by DoD Instruction 7930.2.
(ix) Pricing of performance by industrial fund activities which shall be in accordance with DoD Directive 7410.4.
(2) Charges may be waived or reduced when:
(i) The recipient of the benefits is engaged in nonprofit activity designed for public safety, health, or welfare.
(ii) Payment of the full fee by a state, local government, or nonprofit group would not be in the interest of the program.
(iii) Furnishing of the service without charge is an appropriate courtesy to a foreign country or international organization, or comparable fees are set on a reciprocal basis with a foreign country.
(iv) The incremental cost of collecting the fees would be an unduly large part of the receipts from the activity.
(a) Identify each service or activity covered by this part.
(b) Determine the extent of the special benefit provided.
(c) Determine applicable cost and fair market value.
(d) Establish appropriate charges and collect from recipients of special services.
(e) Grant cost waivers or reductions consistent with guidance in this part.
(f) Recommend to the Comptroller of the Department of Defense necessary additions and revisions to § 204.10.
(a)
(2) Cost accounting systems shall not be established solely for the purpose of determining charges, but the results of existing cost accounting systems shall be used. Total cost shall include all direct and indirect costs (see Chapter 71, DoD 7220.9-M).
(3) Charges and fees established in advance must be projected to the midpoint of the future period. Projected amounts shall be reviewed annually or whenever significant changes in cost or value occur.
(4) Internal management controls (see DoD Directive 5010.38
(b)
(i) Civilian salaries or wages, including the full cost of benefits, such as leave, retirement, and medical and life insurance.
(ii) The full cost of military personnel services, including retirement, other personnel support, leave, and permanent change of station factors.
(iii) The cost of materials, supplies, travel expenses, communications, utilities, equipment and property rental, and maintenance of property and equipment.
(iv) Depreciation expense and interest of investment (currently at a 10 percent annual rate) (OMB Circular No. A-94) in DoD-owned, fixed assets.
(v) Other operational, administrative, and accessorial (DoD Instruction 7510.4
(2)
(3)
(c)
(1) In cases involving the lease or rental of military equipment, when there is no commercial counterpart, fair market value will be based on the computation of an annual rent which will be the sum of the annual depreciation plus interest on investment. The amount of interest on investment is determined by applying the interest rate to the net book value; that is, acquisition cost plus additions less depreciation. The current interest rate in OMB Circular No. A-94 shall be used. Support, if furnished, and applicable general administration expenses will be extra. In determining the value, consideration may be given to the responsibility of the lessee to assume the risk of loss or damage to the property and to hold the Government harmless against claims or liabilities by the lessee or third parties.
(2) In cases involving the sale of property when there is no known fair market value, costs shall be based on the total of the standard price of the item carried in inventory, or the reduced price when so authorized for sale within the Department of Defense and the accessorial and administrative costs computed under DoD Instruction 7510.4.
(a) Collections of charges and fees shall be made in advance of rendering the service, except when preservation of life or property is involved, performance is authorized by law without advance payment, or advance payment is impractical because multiple requests for services are received on a continuing basis from a reliable requester (i.e., consistently prompt payments for services received). When an advance collection exception is approved, an accounts receivable will be established to control collections. The policies in DoD 7220.9-M, DoD Directive 5010.38, and DoD Directive 7045.13 shall be used in accounting, controlling, and managing cash and debt collections.
(1) Collections of fees and charges normally will be deposited to Miscellanous Receipts of the Treasury unless otherwise authorized by law or regulation.
(2) Collections for utilities and services in connection with the lease of property will be deposited to the appropriation or fund responsible for financing the operations of the equipment or facility.
In cases where collections of fees and charges for services or property are limited or restricted by provisions of existing law, the DoD Component(s) concerned will submit appropriate remedial legislative proposals under applicable legislative procedures. (See DoD Instruction 5500.4.
(a) Services requested by members of the U.S. Armed Forces in their capacity as Service members.
(b) Services requested by members of the U.S. Armed Forces who are in a casualty status, or requested by their next of kin or legal representative, or requested by any source, when it relates to a casualty.
(c) The address of record of a member or former member of the U.S. Armed Forces when the address is available readily through a directory (locator) service, and when the address is requested by a member of the U.S. Armed Forces or by a relative or a legal representative of a member of the U.S. Armed Forces or when the address of record is requested by any source for the purpose of paying monies or forwarding property to a member or former member of the U.S. Armed Forces.
(d) Services requested by or on behalf of a member or former member of the U.S. Armed Forces or, if deceased, his or her next of kin or legal representative that pertain to the following:
(1) Information required to obtain financial benefits regardless of the terms of separation from the Service.
(2) Document showing membership and military record in the Armed Forces if discharge or release was under honorable conditions, except as provided in paragraphs (1) and (2) of this section.
(3) Information relating to a decoration or award or required for memorilization purposes.
(4) Review or change in type of discharge or correction of records.
(5) Personal documents, such as birth certificates, when such documents are required to be furnished by the member.
(e) Services that are furnished free in accordance with statutes or executive orders.
(f) Information from or copies of medical and dental records or X-ray films of patients or former patients of military medical or dental facilities, when such information is required and requests for such data are (1) submitted by an accredited medical facility, physician, or dentist; or (2) requested by the patient, his or her next of kin, or legal representative.
(g) Services involving confirmation of employment, disciplinary or other records, and salaries of active or separated civilian or military personnel, when requested by prospective employers or recognized sources of inquiry for credit or financial purposes.
(h) Services requested by and furnished to a Member of Congress for official use.
(i) Services requested by state, territorial, county, or municipal government, or an agency thereof, that is performing a function related to or furthering of a DoD objective.
(j) Services requested by a court, when the service will serve as a substitute for personal court appearance of a military or civilian employee of the Department of Defense.
(k) Services requested by a nonprofit organization that is performing a function related to or furthering an objective of the Federal Government or that is in the interest of public health and welfare, including education.
(l) Services requested by an individual or corporation that is performing a function related to or furthering an objective of the Federal Government, when the cost of such services would be chargeable to a Federal Government contract or grant held by the individual or corporation.
(m) Services requested by donors with respect to their gifts.
(n) Requests for occasional and incidental services (including requests from residents of foreign countries), that are not requested often, when it is
(o) Requests from Federal employees for the completion of claims for reimbursement under the Federal Employees Health Benefit Act of 1959.
(p) Administrative services provided by reference or reading rooms to inspect public records, excluding copies of records or documents furnished.
(q) Requests for military locator service by financial organizations that are located on DoD installations.
(r) Requests for military locator service by financial organizations that are engaged in the direct deposit program and that are not located on DoD installations. Requests for an address of record shall include the following:
(1) A statement that the financial organization is listed as a direct deposit recipient in the current U.S. Treasury Bureau of Accounts, “Financial Organizations Directory.”
(2) A statement that the individual, whose address is being requested, has his or her pay forwarded as a direct deposit by a DoD disbursing officer.
(3) The individual's financial organization's account number.
(s) Services rendered in response to requests for classification review of DoD classified records, submitted under Executive Order 12065 and implemented by 32 CFR part 159. Such services consist of the work performed in conducting the classification review or in granting and completing an appeal from a denial of declassification following such review.
(t) Services of a humanitarian nature performed in such emergency situations as life-saving transportation for non-U.S. Armed Forces patients, search and rescue operations, and airlift of personnel and supplies to a disaster site. This does not mean that inter- and intra-Governmental agreements to recover all or part of costs should not be negotiated. Rather, it means the recipient or beneficiary will not be assessed a “user charge.”
This schedule applies to authorized services related to copying, certifying, and searching records rendered to the public by DoD Components, except when those services are excluded or excepted from charges under subsection D.3. of the basic Instruction, or § 204.9. Except as provided in special cases prescribed below, a minimum fee of $3.50 will be levied for processing any chargeable case. Normally only one copy of any record or document will be provided.
(a)
(b)
(c)
(2) Copies of releasable military personnel records (e.g., effectiveness reports for officers and enlisted personnel) reproduced for the personal use
(d)
Prices may vary by 20% of these average charges based on local inhouse labor, equipment, and supply (raw stock) costs.
(2)
(3)
35mm film processing for motion pictures is not done in-house by the DoD. Charges for this type of processing will be at prevailing contract rates on a case-by-case basis.
(e)
(f)
(g)
Charges for professional search or research will be made in accordance with 10.b., below.
(h)
(1)
Plus:
(ii) (Examples: Cost of 20 forms, $5.50; cost of a publication with 100 pages, $5.50; cost of microfiche publication consisting of 10 fiches, $4.50)
(2) Office copy reproduction (when shelf stock is not available):
(i)
(j)
10 U.S.C. 131.
This part:
(a) Supersedes the Deputy Secretary of Defense Memorandum, “End Use Certificates,” April 9, 1991.
(b) Establishes policies, assigns responsibilities, and prescribes procedures for signing EUCs on foreign defense items.
This part applies to the Office of the Secretary of Defense; the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Commands; the Office of the Inspector General, Department of Defense; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
(a)
(b)
This part is intended to authorize the execution of EUCs when such a certificate is necessary to facilitate purchases of foreign products when the purchase of such products is in the best interest of the United States.
(a) The Military Departments and other DoD Components purchase products produced by allies and friendly countries and participate in cooperative development programs to promote interoperability, standardization, and an expanded procurement base, and to obtain products that best meet U.S. needs at the lowest cost.
(b) U.S. worldwide security responsibilities are extensive and recognition of these special circumstances has resulted in long-time acceptance in international agreements, by allies and friends, of the need for flexibility in the authorized uses or transfer of purchased or co-developed articles and data. In various circumstances, international agreements have recognized that permissible use of an item or data for U.S. “defense purposes” as defined in § 205.3(b).
(c) Consistent with paragraphs (a) and (b) of this section, DoD Components may sign EUCs, in accordance with the policy and procedures outlined below. While most EUCs requested by foreign governments use general language, their effects may be divided into three categories, as described in the following paragraphs. Authority to approve their execution is limited as follows:
(1) Category I. Secretaries of the Military Departments and Directors of Defense Agencies may authorize EUCs:
(i) For acquisition of items classified for security purposes by a foreign government.
(ii) For the acquisition of items covered by the nonproliferation agreements to which the United States is a party, such as missile technology, or
(iii) That permit the item to be “used for defense purposes” as defined in § 205.3(b), by the United States.
(2) Category II. EUCs that are not Category I or III are Category II. Secretaries of the Military Departments and Directors of Defense Agencies may authorize Category II EUCs only after a determination is made through the coordination procedures set forth in § 205.6(a)(1) that, notwithstanding the use or transfer limitations, the purchase is in the U.S. national interest. The least restrictive provisions possible should be negotiated.
(3) Category III. Secretaries of Military Departments and Directors of Defense Agencies may not authorize the signature of EUCs which limit the right:
(i) For use by or for the U.S. Government in any part of the world, or
(ii) To provide the item to allies engaged together with the United States in armed conflict with a common enemy. Waivers to this prohibition may be granted by the Under Secretary of Defense (Acquisition) (USD(A)). Procedures for requesting such waivers are at § 205.6(a)(1).
(a) The Under Secretary of Defense (Acquisition) shall:
(1) Monitor compliance with this part.
(2) Develop procedures to ensure timely review of Category II and III items with the Under Secretary of Defense for Policy (USD(P)).
(3) Upon obtaining the concurrence of the USD(P), waive the restrictions in § 205.4(c)(3) when purchase of the item is in the national interest.
(4) When requested, and in coordination with the USD(P), assist the Military Departments and Defense Agencies in negotiating the elimination or
(b) The Under Secretary of Defense for Policy shall:
(1) Consult with the USD(A) on waivers authorized by this part and, if appropriate, coordinate with the Department of State.
(2) When requested, and in coordination with the USD(A), assist the Military Departments and Defense Agencies in negotiating the elimination or amelioration of the EUC's restrictive language.
(3) Develop procedures for coordination and review of EUC's internally and with the Department of State.
(4) Establish, with the concurrence of the USD(A), specific acceptable end use restrictions in addition to those set forth in Category I, which shall be added immediately to Category I and a corresponding administrative change made to § 205.4(c)(1).
(c) The Secretaries of the Military Departments and the Directors of the Defense Agencies shall:
(1) Authorize the execution of Category I and II EUCs in accordance with the procedures outlined in § 205.6. This responsibility may not be delegated by the Directors of Defense Agencies; it may be delegated by Secretaries of the Military Departments to civilian officers of their respective departments appointed by the President with the advice and consent of the Senate. Once EUC execution is authorized, the Director of a Defense Agency, or Military Department civilian official who has been delegated authorization authority may delegate the authority to sign individual EUCs.
(2) Establish procedures to ensure compliance with this part. These procedures should ensure compliance, for the life of the purchased item, with the transfer or use restrictions agreed to in signing an EUC. They should also ensure 21-calendar day notification to USD(A) before authorizing the execution of a Category II EUC.
(a) Procedures for the three categories of EUCs established in § 205.4(c) are:
(1) Category I. Secretaries of the Military Departments and Directors of Defense Agencies may authorize Category I EUCs.
(2) Category II. Not less than 21 calendar days before authorizing the execution of a Category II EUC, Military Departments and Defense Agencies shall provide notification to the USD(A). The notification will contain a description of the item and the limitations to be imposed by the exporting government. The USD(A) shall coordinate with the USD(P), providing at least 14 days for review. If appropriate, the USD(P) shall coordinate with the Department of State. The USD(A) shall notify the submitting DoD Component of any further action required before final authorization of the EUC; otherwise, concurrence may be assumed after expiration of the 21-day period.
(3) Category III. To acquire an item requiring a Category III EUC, the Secretary of a Military Department or Director of a Defense Agency must request a waiver from the USD(A). Requests for waivers should specify:
(i) Why it is in the interest of the U.S. Government to procure the item.
(ii) The limitations to be imposed by the exporting government and a justification for acceptance of those limitations by the U.S. Government.
(iii) A statement that no satisfactory alternative to the item, considering cost, schedule, or operational requirements, is available from domestic or foreign sources without equivalent limitations.
(b) Copies of signed EUCs of all three categories shall be provided promptly to USD(A).
(c) A record of any waivers or modifications of this policy shall be maintained by the USD(A).
20 U.S.C. 1141(a).
(a) The Institutional Grants Program provides support in the form of grants to U.S. institutions of higher education. During the 1994-95 and 1995-96 academic years, a program of pilot grants is being initiated with an annual competition for grants held during the spring of each year. Grants to institutions will complement NSEP scholarship and fellowship programs. NSEP encourages the development of programs and curricula which:
(1) Improves the quality and infrastructure of international education;
(2) Addresses issues of national capacity; and
(3) Defines innovative approaches to issues not addressed by NSEP scholarship and fellowship programs.
(b) The NSEP Grants Program is designed to address a number of important objectives critical to the United States:
(1) To equip Americans with an understanding of less commonly taught languages and cultures and enable them to become integrally involved in global issues.
(2) To build a critical base of future leaders in the marketplace and in government service who have cultivated international relationships and worked and studied along-side foreign experts.
(3) To develop a cadre of professionals with more than the traditional knowledge of language and culture who can use this ability to help the U.S. make sound decisions and deal effectively with global issues; and
(4) To enhance institutional capacity and increase the number of faculty who can educate U.S. citizens toward achieving these goals.
(c) Grants will be awarded for initial 1- or 2-year periods. Potential follow-on commitments will be based on a rigorous evaluation and assessment process. Between 15 and 25 awards are expected to be made in the first year ranging from approximately $25,000 to $250,000. These are only estimates and do not bind the NSEP to a specific number of grants or to the amount of the grant.
(d) The following key characteristics will be emphasized in the NSEP Institutional Grants Program:
(1)
(2)
(i) Who will benefit from the program funded by the grant?
(ii) What need does the program address?
(iii) How will this program augment the capacity of the Federal Government or of the field of education in areas consistent with the objectives of the NSEP? How does it fit the national requirement?
(3) Cooperation and collaboration among institutions is mandated in order to ensure that a wider cross-section of colleges and universities benefit from a program funded under NSEP. NSEP is committed to providing opportunities to the widest cross-section of the higher education population as is feasible. Cooperation can be in the form of formal consortia arrangements or less formal but equally effective agreements among institutions. Both vertical (among different types of institutions) and horizontal (among similar institutions across functional areas) integration are encouraged. Outreach to institutions that do not normally benefit from such programs is also strongly favored.
(4) Complementary to other Federal programs such as Title VI of the Higher Education Act. NSEP is designed to
(5) NSEP encourages proposals that address two categories of issues relating to the mission of NSEP:
(i) Programs in specific foreign languages, countries or areas; and/or
(ii) Programs addressing professional, disciplinary and/or interdisciplinary opportunities involving international education.
(6) NSEP views student funding as portable and hopes that universities will develop ways to move students to programs and to provide credit with these programs. NSEP believes that programs need to be developed that are available to a wider cross-section of students. Thus, they need to be “open” to students from other institutions. Programs might also be “transportable” from one institution to another.
(7) NSEP emphasizes leveraging of funds and cost-sharing in order to maximize the impact of NSEP funding. It encourages institutions to seek other sources of funding to leverage against NSEP funding and to commit institutional resources in support of the program as well. NSEP also emphasizes burden sharing between the institution and the Program. NSEP encourages institutions to demonstrate a commitment to international education and to present a plan for how funding for the proposed program will be achieved over a 3-5 year period so that NSEP can reduce its financial commitment to programs. The funds requested from NSEP should minimize costs allocated to unassigned institutional “overhead.” NSEP institutional grants are assumed to be for training programs. Consequently, university/college indirect costs associated with training programs should be used as a general benchmark for determining appropriate overhead rates.
(8) NSEP encourages creativity and is responsive to the needs of higher education to expand the capacity to provide more opportunities for quality international education. We do not suggest that the guidelines presented in the grant solicitation will cover all problems and issues. Quite to the contrary, we encourage careful consideration of issues confronting international education in the U.S. and thoughtful proposals that address these issues, consistent with the overall mission of the NSEP.
Any accredited U.S. institution of higher education, as defined by section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)), may apply for and receive a grant. This includes 2- and 4-year colleges and universities, both public and private. Other organizations, associations, and agencies may be included in proposals but may not be direct recipients of a grant. Foreign institutions may also be included in a proposal but may not be direct recipients of a grant. Only U.S. citizens and U.S. institutions may receive funds through a grant awarded by the NSEP.
(a) The NSEP grants to institutions program focuses on two broad program areas that reflect the challenges to building the infrastructure for international education in U.S. higher education:
(1) Development and expansion to quality programs in overseas locations.
(i) Programs that offer important opportunities for U.S. students, both undergraduate and graduate, to study in critical areas under-represented by U.S. students, and
(ii) Development of meaningful competencies in foreign languages and cultures.
(2) Development and implementation of programs and curricula on U.S. campuses that provide more opportunities for study of foreign languages and cultures and the integration of these studies into overall programs of study.
(b)
(1) Expand program opportunities in critical countries where limited opportunities currently exist.
(2) Establish program opportunities in critical countries where no opportunities exist.
(3) Enhance meaningful opportunities for foreign language and foreign culture acquisition in conjunction with study abroad.
(4)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
The purpose of this section is to explain the NSEP review process. [
(a) The grants to institutions program will be administered by the National Security Education Program Office (NSEPO). However, the NSEPO will function as an administrative office much in the same manner as the Institute of International Education and the Academy for Educational Development function in administering NSEP scholarship and fellowship programs, respectively. The NSEPO will not review or evaluate proposals. The proposals will be reviewed and evaluated by national screening panels.
(b) The NSEP will use a two-stage review process in order to evaluate a broad range of proposal ideas. In the first stage, applicants will submit a five-page summary (double-spaced) of their proposal. An institution may submit more than one proposal, but each proposal should be submitted and will be evaluated separately and independently.
(c) NSEP expects competition for grants to be intense. By implementing a two-stage process, potential grantees are given an opportunity to present their ideas without creating a paperwork burden on both the proposal authors and the reviewers.
(d)
(e) Panel members will reflect the nature of the grants program. Each panel will include a recognized expert in a field of international education.
(f) Preliminary proposals will be reviewed according to a set of criteria developed in consultation with representatives from higher education, and provided to the panels. The applicant shall, at a minimum, deal with the following issues in the preliminary proposal:
(1) How the proposal addresses issues of national capacity in international education.
(2) What area(s), language(s), and discipline(s) the proposal addresses and the importance of these to U.S. national capacity.
(3) What the applicant is proposing to do.
(4) How the proposal deals with the key characteristics of the NSEP.
(5) Demonstration of thorough knowledge of the state of the art in the particular area of the proposal and how this proposal develops or builds capacity, not duplicates existing capacity.
(g) The applicant must also include a budget estimate. This budget estimate, for the first year of the proposal, must include the following:
(1) A summary of anticipated direct costs including professional salaries, funds for students, travel, materials and supplies, consultants, etc., and how or why these costs are needed.
(2) An estimate of institutional indirect costs. The budget estimate must also indicate whether funding is also being requested for a second year and, if so, an estimate of the amount to be requested.
(h) Panelists will review and rank proposals and forward their recommendations to the NSEPO. NSEPO will review and analyze these recommendations and inform all applicants of decisions.
NSEPO will provide detailed comments on proposals to all applicants who are invited to prepare a final proposal.
(a) Final proposals should be limited to no more than 25 double-spaced pages. Proposals will be reviewed by national panels constructed similarly to those designed to review preliminary proposals. In addition to a field review process, panelists will be assembled in Washington D.C. to discuss and review the independent and competing merits of proposals.
(b) Proposals will be evaluated in two basic categories:
(1) Proposals that address study abroad infrastructure and
(2) Proposals that address domestic infrastructure. Should proposals deal with both of these issues, they will be evaluated in a third category. This grouping of proposals will ensure that all categories of proposals receive funding consideration.
(c) In general, final proposals will be considered on the following selection criteria:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(d) Applicants should also indicate if they currently receive or are seeking support from other sources. Applicants should indicate why support from NSEP is appropriate, if other sources are also being sought.
Section 740 of Public Law 106-181, 114 STAT. 173 as amended by Section 1051 of Public Law 107-314, 116 STAT. 2648.
At 68 FR 27905, May 22, 2003, part 207 was added, effective May 22, 2003, until Sept. 30, 2006.
Section 740 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, as amended, allows the Department of Defense (DoD), during the period 4 April 2000 through 30 September 2006, to sell aircraft and aircraft parts to a person or entity that provides oil spill response services (including the application of oil dispersants by air). This part implements that section.
The sections in this part apply to the sale of aircraft and aircraft parts determined to be DoD excess under the definition of the Federal Property Management Regulations (FPMR) or the Federal Management Regulation (FMR), and listed in Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997)
(a) Aircraft and aircraft parts sold under the Act shall be used primarily for oil spill spotting, observation, and dispersant delivery, and may not have a secondary purpose that interferes with oil spill response efforts under an oil spill response plan. Use for a secondary purpose requires the prior written approval of the Secretary of Defense and the Secretary of Transportation, and a certificate from the Federal Aviation Administration, to be obtained in advance, for the proposed secondary use.
(b) Aircraft may not be flown outside of or removed from the U.S. except for the purpose of fulfilling an international agreement to assist in oil spill dispersing efforts, for immediate response efforts for an oil spill outside United States waters that has the potential to threaten United States waters, or for purposes that are jointly approved by the Secretary of Defense and the Secretary of Transportation.
(c) The DoD sale of aircraft and aircraft parts sold under the Act shall not extend past the time limits of the Act.
The Secretary of Transportation must certify in writing to the Secretary of Defense prior to sale that the person or entity is capable of meeting the terms and conditions of a contract to perform oil spill response services by air, and that the overall system to be employed by the person or entity for the delivery and application of oil spill dispersants has been sufficiently tested to ensure that the person or entity is capable of participating in an oil spill response plan that has been approved by the Secretary of the Department in which the Coast Guard is operating.
(a) Prior to sales offerings of aircraft or aircraft parts, the U.S. Department of Transportation (DoT) must provide to the Defense Reutilization and Marketing Service (DRMS), in writing, a list or persons or entities eligible to bid under this Act, including expiration date of each DOT contract, and locations covered by the DOT contract.
(b) This requirement may not be delegated to the U.S. Coast Guard (USCG).
Sale of aircraft and aircraft parts must be in accordance with the provisions of Chapter 4 of DoD 4160.21-M (August 1997), paragraph B 2, and with other pertinent parts of this manual, with the following changes and additions:
(a) Sales shall be limited to the aircraft types listed in Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997), and parts thereto.
(b) Sales shall be made at fair market value (FMV), as determined by the Secretary of Defense and, to the extent practicable, on a competitive basis.
(1) DRMS must conduct sales utilizing FMVs that are either provided by the Military Services on the Disposal Turn-In Documents (DTIDs) or based on DRMS's professional expertise and knowledge of the market. Advice regarding FMV shall be provided to DRMS by DOT, as appropriate.
(2) If the high bid for a sale item does not equal or exceed the FMV, DRMS is vested with the discretion to reject all bids and reoffer the item:
(i) As excess property on another oil spill sale, if there is indication that reoffer may be successful; or,
(ii) As surplus property if, after reporting the aircraft to the General Services Administration (GSA) for utilization and donation screening, there are no Federal or State Agency requirements as determined by GSA.
(3) Disposition of proceeds from sale of aircraft under the Act, net of DRMS's expenses, will be to the general fund of the United States Treasury as miscellaneous receipts.
(c) Purchasers shall certify that aircraft and aircraft parts will be used only in accordance with conditions stated in § 207.3.
(1) Sales solicitations will require bidders to submit end-use certificates with their bids, stating the intended use and proposed areas of operation.
(2) The completed end-use certificates shall be used in the bid evaluation process.
(d) Sales contracts shall include terms and conditions for verifying and enforcing the use of the aircraft and aircraft parts in accordance with provisions of the guidance.
(1) The DRMS Sales Contracting Officer (SCO) is responsible for verifying and enforcing the use of aircraft and aircraft parts in accordance with the terms and conditions of the sales contract.
(i) Sales contracts include provisions for on-site visits to the purchaser's place(s) of business and/or worksite(s).
(ii) Sales contracts require the purchaser to make available to the SCO, upon his or her request, all records concerning the use of aircraft and aircraft parts.
(2) DOT shall nominate in writing, and the SCO shall appoint, qualified Government employees (not contract employees) to serve as Contracting Officer's Representatives (CORs) for the purpose of conducting on-site verification and enforcement of the use of aircraft and aircraft parts for those purposes permitted by the sales contract.
(i) COR appointments must be in writing and must state the COR's duties, the limitations of the appointment, and the reporting requirements.
(ii) DOT bears all COR costs.
(iii) The SCO may reject any COR nominee for cause, or terminate any COR appointment for cause.
(3) Sales contracts require purchasers to comply with the Federal Aviation Agency (FAA) requirements in Chapter 4 of DoD 4160.21-M (August 1997), paragraphs B 2 b (4) (d)
(4) Sales contracts require purchasers to comply with the Flight Safety Critical Aircraft Parts regime in Chapter 4 of DoD 4160.21-M (August 1997), paragraph B 26 c and d, and in Attachment 3 to Chapter 4 of DoD 4160.21-M (August 1997).
(5) Sales contracts require purchasers to obtain the prior written consent of the SCO for resale of aircraft or aircraft parts purchased from DRMS under this Act. Resales are only permitted to other entities that, at time of resale, meet the qualifications required of initial purchasers. The SCO must seek, and DOT must provide, written assurance as to the acceptability of a prospective repurchaser before approving resale. Resales will normally be approved for oil spill response contractors that have completed their contracts, or that have had their contracts terminated, or that can provide other valid reasons for seeking resale that are acceptable to the SCO.
(i) If it is determined by the SCO that there is no interest in the aircraft or aircraft parts being offered for resale among entities deemed qualified repurchasers by DOT, the SCO may permit resale to entities outside the oil spill response industry.
(ii) When an aircraft or aircraft parts are determined to be uneconomically repairable and suitable only for cannibalization and/or scrapping, the purchaser shall advise the SCO in writing and provide evidence in the form of a technical inspection document from a qualified FAA airframe and powerplant mechanic, or equivalent.
(iii) The policy outlined in paragraph (d)(5) of this section also applies to resales by repurchasers, and to all other manner of proposed title transfer (including, but not limited to, exchanges and barters).
(iv) Sales of aircraft and aircraft parts under the Act are intended for principals only. Sales offerings will caution prospective purchasers not to buy with the expectation of acting as brokers, dealers, agents, or middlemen for other interested parties.
(6) The failure of a purchaser to comply with the sales contract terms and conditions may be cause for suspension and/or debarment, in addition to other administrative, contractual, civil, and criminal (including, but not limited to, 18 U.S.C. 1001) remedies which may be available to the Department of Defense.
(7) Aircraft parts will be made available as follows:
(i) DRMS may, based on availability and demand, offer for sale under the Act whole unflyable aircraft, aircraft carcasses for cannibalization, or aircraft parts, utilizing substantially the same provisions outlined in paragraphs (a) through (d)(6) of this section for flyable aircraft.
(ii) Sales contracts for unflyable aircraft shall contain a restriction in perpetuity against use for flight. DRMS will not issue a bill of sale for these aircraft. When unflyable aircraft or aircraft residue is to be sold for parts use, the data plates must be removed
(iii) If DOT requests that DRMS set aside parts for sale under Act, DOT must provide listings of parts required, by National Stock Number and Condition Code.
(iv) Only qualified oil spill response operators who fly the end-item aircraft will be allowed to purchase unflyable aircraft, aircraft carcasses, or aircraft parts applicable to that end-item.
(v) FMVs are not required for aircraft parts. DRMS will utilize historic prices received for similar parts in making sale determinations.
Prior to any sales effort, the Secretary of Defense shall, to the maximum extent practicable, consult with the Administrator of GSA, and with the heads of other Federal departments and agencies as appropriate, regarding reutilization and transfer requirements for aircraft and aircraft parts under this Act (see Chapter 4 of DoD 4160.21-M (August 1997), paragraphs B 2 b (1) through B 2 b (3)).
(a) DOT shall notify Army, Navy, and/or Air Force, in writing, of their aircraft requirements as they arise, by aircraft type listed in Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997).
(b) When aircraft become excess, the owning Military Service will screen for reutilization requirements within the Department of Defense, and those requirements shall take precedence over DOT requirements under this Act.
(c)
(2) If a Federal agency requirement exists, GSA shall advise the owning Military Service, in writing, of its intent to issue the aircraft to satisfy the Federal agency requirement. The Military Service will notify DOT of the competing Federal requirement for the aircraft. If DOT disputes the priority given to the Federal requirement, it shall end a written notice of dispute to the owning Military Service and to the Deputy Under Secretary of Defense (Logistics and Materiel Readiness (DUSD (L&MR)) within thirty (30) days of receipt of notice from the Military Service. DUSD (L&MR) shall then resolve the dispute, in writing. The aircraft cannot be issued until notification is given and any dispute is resolved.
(d)
(2) Report excess aircraft that survive reutilization and transfer screening and are available for sale to Headquarters, Defense Reutilization and Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue North, Battle Creek, Michigan 49017-3092. The Military Services must use a DD Form 1348-1A, DTID, for this purpose.
(3) Transfer excess aircraft that survive reutilization and transfer screening to the Aerospace Maintenance and Regeneration Center (AMARC), Davis-Monthan AFB, AZ, and place the aircraft in an “excess” storage category while aircraft are undergoing oil spill response sale. Aircraft shall not be made available or offered to oil spill response operators from the Military Service's airfield. The Military Service shall be responsible for the AMARC aircraft induction charges. The aircraft purchaser will be liable for all AMARC withdrawal charges, to include any aircraft preparation required from AMARC. Sale of parts required for aircraft preparation is limited to those not required for the operational mission forces, and only if authorized by specific authority of the respective Military Service's weapon system program manager.
Not later than 31 March 2003, the Secretary of Defense must submit to the Committees on Armed Services and
(a) The number and type of aircraft sold under this authority, and the terms and conditions under which the aircraft were sold.
(b) The persons or entities to which the aircraft were sold.
(c) An accounting of the current use of the aircraft sold.
(d) DOT must submit to Headquarters, Defense Reutilization and Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue North, Battle Creek, Michigan, 49017-3092, not later than 1 February 2006, a report setting forth an accounting of the current disposition of all aircraft sold under the authority of the Act.
(e) DRMS must compile the report, based on sales contract files and (for the third report element) input from the DOT. The report must be provided to Headquarters Defense Logistics Agency not later than 1 March 2006. Headquarters Defense Logistics Agency shall forward the report to Deputy Under Secretary of Defense (Logistics & Materiel Readiness) not later than 15 March 2006.
This part expires on 30 September 2006.
63 Stat. 377, as amended, 18 U.S.C. 13; 40 U.S.C. 318a through d., 40 U.S.C. 612.
This part establishes policies pursuant to the requirements of DoD Directive 6055.4,
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies.
(b) The provisions encompass all persons who operate or control a motor vehicle or otherwise use the streets of a military installation over which the United States exercises exclusive or concurrent legislative jurisdiction.
(c) The provisions govern only vehicular and traffic offenses or infractions that cannot be assimilated under 18 U.S.C. 13, thereby precluding application of state laws to traffic offenses committed on military installations.
(a) It is the policy of the Department of Defense that an effective, comprehensive traffic safety program be established and maintained at all military installations as prescribed in DoD Directive 6055.4.
(b) State vehicular and pedestrian traffic laws that are now or may hereafter be in effect shall be expressly adopted and made applicable on military installations to the extent provided by this part. All persons on a military installation shall comply with the vehicular and pedestrian traffic laws of the state in which the installation is located.
(c) Pursuant to the authority established in the Enclosure 1 to DoD Directive 5525.4
(d) A person found guilty of violating, on a military installation, any state vehicular or pedestrian traffic law or local installation vehicular or pedestrian traffic rule or regulation made applicable to the installation under the provisions of this part is subject to a fine of not more than $50 or imprisonment for not more than 30 days, or both, for each violation (40 U.S.C. 318c).
(e) A copy of this part shall be posted in an appropriate place on the DoD installation concerned.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) shall modify this part as appropriate.
(b) Secretaries of the Military Departments shall comply with this part.
5 U.S.C. 301 and 10 U.S.C. 133.
This part (a) is reissued without substantive change, to correct superseded references; and (b) defines the tax relief policy of the Department of Defense, designates the organizational element which has continuing responsibility for the overall direction of the DoD Foreign Tax Relief Program, delineates the responsibilities of other organizational elements to implement and monitor the program, and requires the preparation and maintenance of specified foreign country tax law studies in order to facilitate the institution of statistical reporting procedures.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified Command, and the Defense Agencies (hereafter referred to as “DoD Components”).
(b) The policy set forth in this part applies to:
(1) Military functions expenditures by the Department of Defense, and
(2) Expenditures by nonappropriated fund activities of the Department of Defense that are subject to taxes imposed by:
(i) Foreign countries in which U.S. military forces are regularly stationed (other than attache and other military personnel assigned to a U.S. diplomatic mission); and
(ii) Any other foreign country in which all or most U.S. defense activities, in a collective sense, are conducted in the interest of the common defense or otherwise significantly improve the military security of that country.
(c) The policy set forth in this part also applies to Military Assistance Program (MAP) expenditures in all countries.
(a) Regardless of how a charge is denominated in foreign law or regulation, the words “tax” and “taxes” include all direct or indirect foreign customs duties, import and export taxes, excises, fees and other charges imposed at the national, local or intermediate level of a foreign country other than charges for services rendered or for other consideration received.
(b) For example, taxes include but are not limited to purchase tax, sales tax, use tax, gross receipts tax, stamp tax, transfer tax, transaction tax, turnover tax, value added tax, service tax, trade tax, business tax, license tax, transportation tax, circulation tax,
(c) The word “relief” includes any method, technique, or procedure by which the ultimate economic burden of a tax on DoD funds may be avoided or otherwise remedied, such as exemption, refund, or drawback.
It is the policy of the Department of Defense to secure, to the maximum extent practicable, effective relief from all foreign taxes wherever the ultimate economic burden of those taxes would, in the absence of such relief, be borne by funds appropriated or allocated to the Department of Defense (including MAP appropriations) or under the control of its nonappropriated fund activities. In those cases in which the total economic burden of a tax not readily identifiable in the normal course of business is so small that it may be considered a
(a) The
(1) Provide overall supervision and direction of the DoD Foreign Tax Relief Program.
(2) Resolve any significant issues relating to the program.
(3) Designate those countries that come within § 211.2(b)(2)(ii) of this part.
(4) Direct the preparation of country tax law studies for countries not within the scope of § 211.2(b) of this part.
(5) Designate the DoD member of the Inter-Agency Committee on Foreign Tax Relief, established by the Department of State.
(b) The
(c) The
(d) The
(e) The
(f)
(g) For each foreign country that comes within the scope of subsection B.2. of this directive, a single Military Commander shall be designated by the Commander of the Unified Command. The designated Military Commander shall be the same designated under the procedures in 32 CFR 151.3(c). The designated Military Commander shall:
(1) Make and maintain a current country tax law study in accordance with § 211.6 of this part.
(2) Be the single point of contact for U.S. contracting officers and activities for the investigation and resolution of specific matters that relate to the foreign tax relief program within the country for which the Military Commander is designated and for the forwarding of major problems affecting that program through proper channels to the General Counsel of the Department of Defense.
(3) Provide liaison with the responsible U.S. diplomatic mission on current tax relief problems and, where appropriate, with local foreign tax authorities.
(a) The taxes covered by each country tax law study shall be limited to those which in the absence of tax relief, would affect, or would appear to affect, U.S. Government expenditures, even as a
(b) Each country tax law study shall consist of the following:
(1) A general survey of all applicable taxes, together with translations, as appropriate, of the salient features of the law or regulations imposing those taxes.
(2) For each applicable tax, a summary statement containing: Its name; its rate (or rates); the taxing authority (national, provincial, or municipal); the legal incidence of the tax (the nature of the taxpayer or other entity liable for the payment of the tax to the taxing authority under the law of the country); its description (including the base or bases on which the tax is imposed); the applicability of the tax to various types of contracts (supplies, services, or construction) in the event the tax is applicable to only one or several of such types of contracts; the applicability of the tax to the prime contract, as well as to any subcontracts or purchase orders issued by the prime contractor or subcontractor; the applicability of the tax to contractor and subcontractor personnel; the variation, if any, of the applicability of the tax depending upon the domicile of the contractor or contractor personnel, such as United States, host country, or third country; any applicable exemptions or deductions of significance; and the method of collection of the tax.
(3) The basis upon which it is concluded that each applicable tax, in absence of tax relief, would affect, or would appear to affect, U.S. Government expenditures; and any evidence of the degree to which its ultimate economic burden would, in absence of tax relief, be borne by the U.S. Government rather than be absorbed by others.
(4) The substantive tax relief, if any, from each applicable tax that is available to the U.S. Government either by international agreements in force or under the tax law or other regulation of the country; the procedures which may be used to obtain any such relief; the requirement, if any, for the issuance of a tax exemption certificate by the military procuring agency or by an agency of the country to secure an exemption; the entitlement, if any, of the taxpayer to interest on any tax refund made by the host country; the credits, if any, that may be available against any other taxes otherwise payable by the taxpayer resulting from the payment of the tax under analysis; the approximate amount of the tax that should be involved in a particular case, if such can be estimated, taking into account the costs of filing a claim for refund by a contractor to warrant filing such a claim; and a brief narration of any significant problems which have occurred in attempting to obtain relief in particular cases.
(5) A conclusion with regard to the adequacy of current tax relief measures; and such recommendations as may be appropriate for more efficient
(c) Appended to each country tax law study shall be a verbatim quotation of all provisions relating to tax relief afforded by the country that are contained in international agreements in force.
(d) One copy of each country tax law study shall be forwarded to the General Counsel of the Department of Defense and to each of the Cognizant Offices of the Military Departments and Defense Agencies within 30 days after its approval by the designated Military Commander. The information contained in the studies shall be disseminated by the Cognizant Offices to U.S. contracting officers and activities when required.
(e) Country tax law studies shall be subject to continuing review. When there is a significant change in country tax laws, regulations, tax relief procedures, or in pertinent international agreements in force, the corresponding revision shall be promptly forwarded by the designated Military Commander to each of the offices referred to in § 211.6(d).
(a) The reporting requirement contained in § 211.6 relating to the submission of country tax law studies and revisions thereof is assigned Report Control Symbol DDSD (AR) 1036.
(b) Each January a summary of significant activities during the preceding year in implementation of the DoD Foreign Tax Relief Program shall be furnished by the Heads of Cognizant Offices to the General Counsel of the Department of Defense. The summary, in narrative form, shall include actions taken by the Cognizant Office to discharge its responsibility for supervising and monitoring the implementation of the foreign tax relief program within its Military Department or Defense Agency, and for disseminating the information contained in country tax law studies to U.S. contracting officers and activities. The reporting requirement contained in this subsection is assigned Report Control Symbol DDGC (A) 1198.
(c) Each January a summary of significant activities during the preceding year of the administration of the foreign tax relief program shall be furnished by Commanders of the Unified Commands to the General Counsel of the Department of Defense. The summary, in narrative form, shall include actions taken by the Unified Command to discharge its responsibility to supervise and coordinate the preparation and maintenance of country tax law studies. The reporting requirement contained in this subsection is assigned Report Control Symbol DDGC (A) 1199.
5 U.S.C. 301.
This part:
(a) Revises 32 CFR part 212.
(b) Implements policy in DoD Directive 5124.5.
(c) Updates responsibilities and procedures to define and reestablish parameters for private organizations located on DoD installations for their authorization and support.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and DoD Field Activities (hereafter referred to collectively as the “DoD Components”).
(b) Private organizations authorized to operate on DoD installations.
(a)
(b)
It is DoD policy under DoD Directive 5124.5 that procedures be established for the operation of private organizations on DoD installations to prevent the official sanction, endorsement, or support by DoD Components except as in 32 CFR part 84. Private organizations are not entitled to sovereign immunity and privileges accorded to Federal entities and instrumentalities. Private organizations are not Federal entities and are not to be treated as such, in order to avoid conflicts of interest and unauthorized expenditures of appropriated, commissary surcharge, or nonappropriated funds.
(a) The
(b) The
(1) Ensure for each such private organization that the membership provisions and purposes on the basis of which the organization was permitted on the installation continue to apply, thereby justifying continuance on the installation. Substantial changes to those conditions shall necessitate further review, documentation, and approval for continued permission to remain on the installation.
(2) Furnish reports to the Assistant Secretary of Defense for Force Management Policy on private organizations covered by this part as required.
(a) To prevent the appearance of an official sanction or support by the Department of Defense, a private organization covered by this part shall not utilize the following in its title or letterhead:
(1) The name or seal of the Department of Defense or the acronym “DoD.”
(2) The name, abbreviation, or seal of any DoD Component or instrumentality.
(3) The seal, insignia, or other identifying device of the local installation.
(4) Any other name, abbreviation, seal, logo, insignia, or the like, used by any DOD Component to identify any of its programs, locations, or activities.
(b) Activities of private organizations covered by this part shall not in any way prejudice or discredit the DoD Components or the other Agencies of the Federal Government.
(c) The nature, function, and objectives of a private organization covered by this part shall be delineated in a written constitution, by-laws, charter, articles of agreement, or other authorization documents acceptable to the head of the DoD installation. That documentation shall also include:
(1) Description of membership eligibility in the private organization.
(2) Designation of management responsibilities, to include the accountability for assets, satisfaction of liabilities, disposition of any residual assets on dissolution, and other matters that show responsible financial management.
(3) Documentation indicating an understanding by all members as to whether they are personally liable if the assets are insufficient to discharge all liabilities.
(d) A private organization covered by this part that offers programs or services similar to either appropriated or nonappropriated fund activities on a DoD installation shall not compete with, but may, when specifically authorized in the approval document, supplement those activities.
(e) Private organizations covered by this part shall be self-sustaining, primarily through dues, contributions, service charges, fees, or special assessment of members. There shall be no financial assistance to a private organization from a nonappropriated fund instrumentality in the form of contributions, repairs, services, dividends, or other donations of money or other assets. Fundraising and membership drives are governed by 32 CFR part 84.
(f) The DoD Components may provide logistical support to private organizations with appropriated Federal Government resources in accordance with 32 CFR part 84. In conformance with DoD Directive 1015.1,
(g) Personal and professional participation in private organizations by DoD employees is governed by 32 CFR part 84.
(h) Neither appropriated fund activities nor nonappropriated fund instrumentalities may assert any claim to the assets, or incur or assume any obligation of any private organization covered by this part except as may arise out of contractual relationships. Property abandoned by a private organization on its disestablishment or departure from the installation, or donated by it to the installation, may be acquired by the DoD installation under the terms of applicable agreements, statutes, and DoD policy.
(i) Adequate insurance, as defined by the Service concerned, shall be secured by the organization to protect against public liability and property damage claims or other legal actions that may arise as a result of activities of the organization or one or more of its members acting in its behalf, or the operation of any equipment, apparatus or device under the control and responsibility of the private organization.
(j) Private organizations shall be responsible for ensuring applicable fire and safety regulations, environmental laws, local, state, and Federal tax codes, and any other applicable statutes and regulations are complied within the operation of the private organization.
(k) Income shall not accrue to individual members except through wages and salaries as employees of the private organization or as award recognition for service rendered to the private organization or military community. The head of a DoD installation concerned may approve the operation of private organizations, such as investment clubs, in which the investment of members' personal funds result in a return on investment directly and solely to the individual members.
(l) No person because of race, color, creed, sex, age, disability or national origin shall be unlawfully denied membership, unlawfully excluded from participation, or otherwise subjected to unlawful discrimination by any private organization on a DoD installation covered by this part. DoD installations will publicly disseminate information on procedures for individuals to follow at the local installation when unlawful discrimination by private organizations is suspected.
(m) Applicable laws on labor standards for employment shall be observed.
(n) This part does not apply to the following organizations, which are governed by DoD Directives and Instructions as referenced:
(1) Scouting organizations operating at U.S. military installations located overseas (DoD Instruction 1015.9).
(2) American National Red Cross (DoD Directive 1330.5).
(3) United Service Organizations, Inc. (DoD Directive 1330.12).
(4) United Seamen's Service (DoD Directive 1330.16).
(5) Financial Institutions on DoD Installations (32 CFR part 231).
(o) Certain unofficial activities may be conducted on DoD installations, but need not be formally authorized because of the limited scope of their activities, membership or funds. Examples are office coffee funds, flower funds, and similar small, informal activities and funds. DoD Components shall establish the basis upon which
Chapter 15 of title 10 U.S.C. (10 U.S.C. 331 et seq.).
This part establishes uniform Department of Defense policies, assigns responsibilities, and furnishes general guidance for utilizing DoD military and civilian personnel, facilities, equipment or supplies:
(a) In support of civil authorities during civil disturbances within the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivision thereof.
(b) In other related instances where military resources may be used to protect life or Federal property or to prevent disruption of Federal functions.
This part is applicable to all components of the Department of Defense (the Military Departments, Organization of the Joint Chiefs of Staff, Defense Agencies, and the unified and specified commands) having cognizance over military resources which may be utilized in accordance with the policies set forth herein.
(a)
(b)
(c)
(d) A
(a) Under the Constitution and laws of the United States, the protection of life and property and the maintenance of public order are primarily the responsibilities of State and local governments, which have the necessary authority to enforce the laws. The Federal Government may assume this responsibility and this authority only in certain limited instances.
(b) Aside from the constitutional limitations of the power of the Federal Government at the local level, there are additional legal limits upon the use of military forces within the United States. The most important of these from a civil disturbance standpoint is the Posse Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of the Army or the Air Force to execute or enforce the laws, except as authorized by the Constitution or Act of Congress.
(c) The Constitution and Acts of Congress establish six exceptions, generally applicable within the entire territory of the United States, to which the Posse Comitatus Act prohibition does not apply.
(1) The constitutional exceptions are two in number and are based upon the inherent legal right of the U.S. Government—a sovereign national entity under the Federal Constitution—to insure the preservation of public order and the carrying out of governmental
(i)
(ii)
(2) There are four exceptions to the Posse Comitatus Act based on Acts of Congress.
(i) In the cases of each of the first three of those described, paragraphs (c)(2)(i) (
(
(
(
(
(ii) It should be noted that none of the above authorities, in and of itself, provides sufficient legal basis to order members of the Reserve components to active Federal service.
(a) The employment of DoD military resources for assistance to civil authorities in controlling civil disturbances will normally be predicated upon the issuance of a Presidential Executive order or Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality. Exceptions to this condition will be limited to:
(1) Cases of sudden and unexpected emergencies as described in § 215.4(c)(1)(i), which require that immediate military action be taken.
(2) Providing military resources to civil authorities as prescribed in § 215.9 of this part.
(b) The Attorney General of the United States has been designated to receive and coordinate preliminary requests from States for Federal military assistance authorized by 10 U.S.C. 331 (§ 215.4(c)(2)(i)(
(c) The Secretary of the Army is delegated any and all of the authority of the President under chapter 15 of title 10, U.S.C. (§ 215.4(c)(2)(i) (
(d) The Secretary of the Navy and the Secretary of the Air Force are delegated all that authority which has been or may be hereafter delegated by the President to the Secretary of Defense to order to active duty, units and members of the Reserve Components under their respective jurisdictions, except National Guard units and members, for use pursuant to chapter 15 of title 10, U.S.C. (§ 215.4(c)(2)(i) (
(e) DoD components and their subordinate activities will coordinate with local civil authorities or local military commanders as appropriate, to assure mutual understanding of the policies and procedures to be adhered to in an actual or anticipated civil disturbance situation.
(f) DoD civilian employees generally should not be used to assist civil authorities in connection with civil disturbances, except as provided for in § 215.9(b)(3).
(g) The prepositioning of more than a battalion-sized unit, as authorized in § 215.6(a)(6), will be undertaken only with the approval of the President. Requests for the prepositioning of forces will be addressed to the Attorney General.
(a) The Secretary of the Army is designated as the Executive Agent for the Department of Defense in all matters pertaining to the planning for, and the deployment and employment of military resources in the event of civil disturbances. As DoD Executive Agent, the Secretary of the Army (or the Under Secretary of the Army, as his designee) is responsible for:
(1) Providing policy and direction concerning plans, procedures, and requirements to all DoD components having cognizance over military resources which may be employed under the provisions of this part.
(2) Improving and evaluating the capabilities of the National Guard to deal with civil disturbances.
(3) Establishing DoD policies and procedures for:
(i) Calling the National Guard to active Federal service and ordering the National Guard and other Reserve components to active duty; and
(ii) The employment of such forces that may be required to carry out the purposes of this part.
(4) Calling to active Federal service:
(i) The Army National Guard units or members required to carry out the provisions of the Presidential Executive order or other appropriate authority.
(ii) The Air National Guard units or members required to carry out the provisions of the Presidential Executive order or other appropriate authority, subject to the provisions of paragraph (c)(1)(i) of this section.
(5) Providing military resources of the U.S. Army, consistent with defense priorities to include:
(i) The military resources of the Army National Guard called to active Federal service under the provisions of paragraph (a)(4)(i) of this section.
(ii) The military resources of the Army Reserve (other than Army National Guard) ordered to active duty to carry out the purposes of this part.
(6) Exercising through designated military commanders the direction of military resources committed or assigned for employment in the event of actual or potential civil disturbances. When circumstances warrant, such direction will include:
(i) Alerting, and, if necessary, prepositioning predesignated ground forces; and
(ii) Directing the Secretary of the Air Force to alert and provide the necessary airlift resources (see § 215.5(g)).
(7) Devising command, control, and communications arrangements to insure effective coordination and responsiveness among Defense agencies, military departments, the Joint Chiefs of Staff, and Commanders-in-Chief (CINCs) of unified and specified commands, under conditions of prepositioning, deployment, or employment of military resources. Maximum utilization will be made of existing reports of the Joint Reporting Structure
(8) Promulgating in implementation of DoD Directive 5200.27, “Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense,” March 1, 1971,
(9) Keeping the Secretary of Defense informed of unusual military resource requirements (actual or potential) and other significant developments in connection with civil disturbance planning and operations.
(10) Establishing procedures for the review and coordination of all DoD components' directives, instructions, and plans affecting civil disturbance planning and operations to assure conformity with DoD policies stated herein and DoD Executive Agent policies.
(11) Providing for the establishment of a DoD Civil Disturbance Steering Committee and a Directorate of Military Support (see § 215.8).
(12) Providing the necessary facilities, equipment, and personnel as required by the Assistant Secretary of Defense (Public Affairs) in the accomplishment of his public affairs responsibilities set forth in paragraph (f) of this section.
(13) Within the restrictions established by DoD Directive 5200.27, “Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense,” March 1, 1971,
(b) The Joint Chiefs of Staff are responsible for:
(1) Establishing procedures that will promptly transfer military resources that are assigned to unified and specified commands (i) to the military departments for civil disturbance operations in the Continental United States (CONUS) or (ii) to unified commands for such operations outside the CONUS, as directed by the DoD Executive Agent and consistent with defense priorities.
(2) Maintaining an appropriate strategic reserve for worldwide employment and contingency operations.
(3) Insuring that directives concerning civil disturbances are issued to the commanders of unified commands, for the employment of military resources outside the CONUS, in accordance with direction and guidance provided by the DoD Executive Agent.
(c) The Secretary of the Air Force is responsible for:
(1) Providing military resources of the U.S. Air Force, as required by the DoD Executive Agent and consistent with defense priorities, to include:
(i) Designating and providing the specific units or members of the Air National Guard to be called to active Federal service under the provisions of paragraph (a)(4)(ii) of this section.
(ii) Designating and providing the military resources of the Air Force Reserve (other than Air National Guard) order to active duty to carry out the purposes of this part.
(2) Exercising for the DoD Executive Agent, through designated military commanders, coordinating authority over and direction of DoD provided military and commercial obligated airlift resources used to fulfill civil disturbance airlift requirements.
(3) Providing airlift to deploy and redeploy civil disturbance forces and for supply, resupply, and aeromedical evacuation.
(d) The Secretary of the Navy is responsible for:
(1) Designating and providing military resources of the U.S. Navy and the
(2) Insuring that Navy and Marine forces committed in connection with civil disturbances are trained and equipped in accordance with criteria established by the DoD Executive Agent.
(3) Making airlift resources available to the Secretary of the Air Force, consistent with defense priorities, as requested by him in the accomplishment of his airlift responsibilities set forth in paragraph (c) of this section.
(e) The Defense agencies are responsible for providing military resources as required, and advice and assistance on matters within their spheres of responsibility, to the DoD Executive Agent and to the Secretaries of the military departments and to the Joint Chiefs of Staff in the discharge of their responsibilities.
(f) The Assistant Secretary of Defense (Public Affairs) is responsible for all DoD public affairs matters related to civil disturbances. To assure efficiency and responsiveness in keeping the public fully informed, he will:
(1) Provide direction and guidance to the DoD Executive Agent on all aspects of public release of information relating to civil disturbances.
(2) Assign Public Affairs representatives, of appropriate rank, to the Directorate of Military Support during civil disturbance operations.
(3) Designate as required onsite DoD Public Affairs Chiefs who will furnish appropriate advice and guidance to task force commanders and, upon request or by direction of appropriate authorities, to other representatives of the Federal Government. The onsite Public Affairs Chief is responsible for releasing all military information to the public in the affected area(s). He will be responsible for such other public affairs functions as directed by competent authority. In the event of a disagreement concerning the releasing of military information to the public between a task force commander and the onsite Public Affairs Chief, the issue will be resolved by the ASD(PA) who will coordinate with the DoD Executive Agent to the extent feasible.
(a) In the event of civil disturbances within the CONUS:
(1) Military resources of the unified or specified commands will be transferred by the JCS to their respective military departments, when directed by the DoD Executive Agent. (Such resources will revert to the unified or specified commands when directed by the DoD Executive Agent.)
(2) The DoD Executive Agent is delegated the authority to exercise, through the Chief of Staff, U.S. Army, the direction of those forces assigned or committed to him by the military departments.
(b) In the event of civil disturbances outside of CONUS, the DoD Executive Agent is delegated the authority to exercise the direction of those forces assigned or committed to the commanders of unified or specified commands through the Chief of Staff, U.S. Army, and Task Force Commanders designated by JCS.
(c) At objective areas, designated task force commanders will exercise operational control over all military forces assigned for employment in the event of civil disturbances.
(a) A DoD Civil Disturbance Steering Committee will be established to provide advice and assistance to the DoD Executive Agent concerning civil disturbance matters. The Committee Chairman will be the Under Secretary of the Army. Members will include:
(b) A Directorate of Military Support (DOM's) will be established by the DoD Executive Agent with a joint service
This section provides general guidance for the handling of requests for DoD facilities, personnel, equipment, or supplies, received from officials of the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivision thereof, for use in connection with civil disturbances.
(a)
(1)
(i)
(ii)
(iii)
(2) Requests for personnel to be used in a direct law enforcement role are not within the purview of this part and must be made by the legislature or governor of a State in accordance with 10 U.S.C. 331. Pursuant to the Posse Comitatus Act, DoD operating personnel employed in connection with loaned equipment may not be used in a direct law enforcement role.
(3) Repair parts and POL items are classified according to the group of the equipment for which the parts or POL are intended.
(b)
(2) Requests for Group Two military resources may be granted only with the personal approval of the DoD Executive Agent, or the following individuals when designated by him for that purpose:
(i) The Under Secretary of the Army;
(ii) The Director and Deputy Director of Military Support; or
(iii) A Task Force Commander employed at an objective area during a civil disturbance.
(3) Requests for Group Three resources may be granted by Secretaries of the military departments, CINCs of unified and specified commands outside CONUS; or commanders of military installations or organizations who have been delegated such authority by the appropriate Service Secretary or CINC.
(i) Installation commanders are authorized to provide emergency explosive ordnance disposal service in accordance with applicable regulations of respective military departments.
(ii) The Director, Defense Supply Agency, is authorized to approve requests from subordinate agencies for firefighting assistance in connection with civil disturbances. Where installation fire departments have mutual aid agreements with nearby civil communities, the installation commander is authorized to provide emergency civilian or mixed civilian/military firefighting assistance. In the absence of a mutual aid agreement and when it is in the best interest of the United States, a commander with Group Three approval authority is authorized to provide emergency civilian or mixed civilian/military assistance in extinguishing fires and in preserving life or property from fire, within the vicinity of an installation. In either case, civilian firefighters may be used provided:
(
(
(
(4) Requests for Groups One, Two, or Three resources, and for renewal of outstanding loans, may be denied at any level in the chain of command down to and including commanders delegated Group Three approval authority.
(c)
(2) Requests will be forwarded and processed in keeping with the degree of urgency dictated by the situation.
(3) Requests received by personnel of Defense agencies will be referred to local military commanders for processing, except that DSA subordinate agencies will forward requests for firefighting assistance to DSA.
(4) Request from civil law enforcement agencies for training assistance related to the control of civil disturbances will not be approved at the local level. Such requests should be referred to the nearest U.S. attorney, Department of Justice.
(d)
(i) To the military department headquarters, in the case of requests received in the CONUS by the four Services.
(ii) To the DoD Executive Agent, in the case of requests for firefighting assistance received by the Defense Supply Agency.
(iii) To the JCS, in the case of requests received by organizations or installations over which the commanders of the unified and specified commands exercise command authority.
(2) Reports received by the military department headquarters and JCS will be transmitted to the DoD Executive Agent, who, in turn, will transmit information copies of all approved requests for Groups One and Two military resources to the General Counsel of the DoD and the Deputy Attorney General of the United States.
(3) In addition, a weekly summary report of all requests will be compiled by the DoD Executive Agent, showing action taken (approved, denied, or pending) and submitted to the General Counsel of the DoD, the Assistant Secretary of Defense (Installations and Logistics), and the Deputy Attorney General of the United States. Negative summary reports are required.
(4) The reporting requirements prescribed herein are assigned Report Control Symbol DD-A(AR)1112.
(a) Reporting requirements to provide for financing costs associated with civil disturbance operations, to include reimbursement of military department expenditures, will be in accordance with DoD Instruction 7200.9, “Financing and Reporting Costs of Military Resources Used in Civil Disturbances,” January 26, 1970,
(b) Military assistance (Groups One, Two, and Three military resources) provided to civil authorities, under the provisions of § 215.9, will be on a reimbursable or reclaimable basis as appropriate.
10 U.S.C. 983.
This part:
(a) Implements the National Defense Authorization Act of 1995 (108 Stat. 2663),
(b) Implements 10 U.S.C. 983, and
(c) Implements the Omnibus Consolidated Appropriations Act, 1997 (110 Stat. 3009).
(d) Updates policy and responsibilities relating to the management of covered schools that have a policy of either denying, or effectively preventing military recruiting personnel entry to their campuses, access to their students, or access to student recruiting information.
(e) Updates policy and responsibilities relating to the management of covered schools that have an anti-ROTC policy.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD components”). The policies herein also affect the Departments of Transportation, Labor, Health and Human Services, Education, and Related Agencies. The term “Military Services,” as used herein, refers to the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard, including their Reserve or National Guard components. The term “Related Agencies,” as used herein, refers to the Armed Forces Retirement Home, the Corporation for National and Community Service, the Corporation for Public Broadcasting, the Federal Mediation and Conciliation Service, the Federal Mine Safety and Health Review Commission, the National Commission on Libraries and Information Science, the National Council on Disability, the National Education Goals Panel, the National Labor Relations Board, the National Mediation Board, the Occupational Safety and Health Review Commission, the Physician Payment Review Commission, the Prospective payment Assessment Commission, the Social Security Administration, the Railroad Retirement Board and the United States Institute of Peace.
(a)
(b)
(1) In the event of a determination (§ 216.5) affecting only a subelement of a parent institution (see § 216.3(d)), the limitations on the use of funds (§ 216.4(a) and (b)) shall apply only to the subelement and not to the parent institution as a whole.
(2) The limitations on the use of funds (§ 216.4(a) and (b)) shall not apply to any individual institution of higher education that is part of a single university system if that individual institution does not prevent entry to campus, access to students, or access to student recruiting information by military recruiters, or have an anti-ROTC policy, even though another campus of the same system is affected by a determination under § 216.5(a).
(c)
(d)
(e)
(f)
(g)
(h)
It is policy that:
(a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of Defense, Transportation (with respect to military recruiting), Labor, Health and Human and Human Services, Education, and Related Agencies may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered school if the Secretary of Defense determines that the covered school has a policy or practice (regardless of when implemented) that either prohibits or in effect prevents the Secretary of Defense from obtaining, for military recruiting purposes, entry to campuses, access to students on campuses, or access to directory information on students (student recruiting information).
(b) Under 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of Labor, Health and Human Services, Education, and Related Agencies may be provided by contract or grant (including a grant of funds to be available for student aid) to a covered school that has an anti-ROTC policy or practice (regardless of when implemented). Additionally, under 10 U.S.C. 983, no funds appropriated or otherwise available to the Department of Defense may be made obligated by contract or by grant to a covered school that has such a policy or practice.
(c) The limitations established in paragraph (a) of this section, shall not apply to a covered school if the Secretary of Defense determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (a) of this section;
(2) Has a long-standing policy of pacifism based on historical religious affiliation;
(3) When not providing requested access to campuses or to students on campus, certifies that all employers are similarly excluded from recruiting on the premises of the covered school, or presents evidence that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers;
(4) When not providing any student recruiting information, certifies that such information is not maintained by the covered school; or that such information already has been provided to the Military Service concerned for that current semester, trimester, quarter, or other academic term, or within the past four months (for institutions without academic terms);
(5) When not providing student recruiting information for specific students, certifies that each student concerned has formally requested the covered school to withhold this information from third parties;
(6) Permits employers to recruit on the premises of the covered school only in response to an expression of student interest, and the covered school;
(i) Provides the Military Services with the same opportunities to inform the students of military recruiting activities as are available to other employers; or
(ii) Certifies that too few students have expressed an interest to warrant accommodating military recruiters, applying the same criteria that are applicable to other employers; or
(7) Is prohibited by the law of any State, or by the order of any State court, from allowing Federal military recruiting on campus. Such exemption does not apply to funds available to the Department of Defense, in accordance with 108 Stat. 2663.
This exemption terminated effective March 29, 1998, in accordance with 110 Stat. 3009.
(d) The limitations established in paragraph (b) of this section, shall not apply to a covered school if the Secretary of Defense determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (b) of this section;
(2) Has a long-standing policy of pacifism based on historical religious affiliation;
(3) Is prohibited by the law of any State, or by the order of any State court, from allowing Senior Reserve Officer Training Corps activities on campus. Such exemption does not apply to funds available to the Department of Defense, in accordance with 10 U.S.C. 983.
This exemption terminated effective March 29, 1998, in accordance with 110 Stat. 3009.
(e) A covered school may charge for actual costs incurred in providing military recruiters access to student recruiting information, provided such charges are reasonable and customary; in this case, the school must explain to the military recruiter, within 15 days of a request by the recruiter, its method for determining costs, and its basis for concluding that such charges are reasonable and customary.
(f) An evaluation to determine whether a covered school maintains a policy or practice covered by paragraph (a) of this section shall be undertaken when:
(1) Military recruiting personnel cannot gain entry to campus, cannot obtain access to students on campus, or are denied access to student recruiting information (however, military recruiting personnel shall accommodate a covered school's reasonable preferences as to times and places for scheduling on-campus recruiting, to the same extent such preferences are applicable to employers, generally);
(2) The costs being charged by the school for providing student recruiting information are believed by the military recruiter to be excessive, and the school does not provide information sufficient to support a conclusion that such charges are reasonable and customary; or
(3) The covered school is unwilling to declare in writing, in response to an inquiry from a DoD component, that the covered school does not have a policy or practice of denying, and that it does not effectively prevent, the Secretary of Defense from obtaining for military recruiting purposes entry to campuses, access to students on campuses, or access to student recruiting information.
(g) An evaluation to determine whether a covered school has an anti-ROTC policy covered by paragraph (b) of this section shall be undertaken when:
(1) A Secretary of a Military Department of designee cannot obtain permission to establish, maintain, or efficiently operate a unit of the Senior ROTC; or
(2) Absent a Senior ROTC unit at the covered school, students cannot obtain permission from a covered school to participate, or are effectively prevented from participating, in a unit of the Senior ROTC at another institution of higher education.
(a) The Assistant Secretary of Defense for Force Management Policy, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information described in paragraph (b)(3) of this section:
(i) Make a final determination under 108 Stat. 2663, 10 U.S.C., section 983; and 110 Stat. 3009 and/or this part, and notify any affected school of that determination along with the basis, and that it is therefore ineligible to receive
(ii) Disseminate to Federal agencies affected by 110 Stat. 3009, to the DoD components, and to the General Services Administration (GSA) the names of covered schools identified under paragraph (a)(1)(i) of this section, and the basis of the determination.
(iii) Disseminate the names of covered schools identified under paragraph (a)(1)(i) of this section, to the Secretary of Education and to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives.
(iv) Inform the applicable school identified under paragraph (a)(1)(i) of this section, that its funding eligibility may be restored if the school provides sufficient new information that the basis for the determination under paragraph (a)(1)(i) of this section no longer exists.
(2) Not later than 45 days after receipt of a covered school's request to restore its eligibility:
(i) Determine whether the funding status of the covered school should be changed, and notify the applicable school of that determination.
(ii) Notify the parties reflected in paragraphs (a)(1)(ii) and (iii) of this section when a determination of funding ineligibility (paragraph (a)(1)(i) of this section) has been rescinded.
(3) Publish in the
(4) Publish in the
(b) The Secretaries of the Military Departments shall:
(1) Identify covered schools that, by policy or practice, deny military recruiting personnel entry to the campus(es) of those schools, access to their students, or access to student recruiting information.
(i) When requests by military recruiters to schedule recruiting visits or to obtain student recruiting information are unsuccessful, the Military Service concerned shall seek written confirmation of the school's present policy from the head of the school through a letter of inquiry. A letter similar to that shown in appendix A of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments to accompany the submission to the ASD(FMP), and shall be provided 30 days to offer such clarifying comments.
(ii) When a request for student recruiting information is not fulfilled within a reasonable period, normally 30 days, a letter similar to that shown in appendix A of this part shall be used to communicate the problem to the school, and the inquiry shall be managed as described in § 216.5.(b)(1)(i). Schools may stipulate that requests for student recruiting information shall be in writing.
(2) Identify covered schools that, by policy or practice, deny establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or deny students permission to participate, or effectively prevent students from participating in a unit of the Senior ROTC at another institution of higher education. The Military Service concerned shall seek written confirmation of the school's policy from the head of the school through a letter of inquiry. A letter similar to that shown in appendix B of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments to accompany the
(3) Evaluate responses to the letter of inquiry, and other such evidence obtained in accordance with this part, and submit to the ASD(FMP) the names and addresses of covered schools that are believed to be in violation of policies established in § 216.4. Full documentation shall be furnished to the ASD(FMP) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies.
(c) The Heads of the DoD components shall:
(1) Provide the ASD(FMP) with the names and addresses of covered schools identified as a result of evaluation(s) required under §§ 216.4(f) and (g).
(2) Take immediate action to deny obligations of DoD Funds to covered schools identified under paragraph (a)(1)(i) of this section, and to restore eligibility of covered schools identified under paragraph (a)(2) of this section.
The information requirements identified at §§ 216.5 (b) and (c)(1) have been assigned Report Control Symbol P&R-(AR)-2038 in accordance with DoD 8910.1-M.
Dear Dr. Doe: I understand that military recruiting personnel (are unable to recruit on the campus of ABC College) (have been refused student recruiting information
This letter provides you an opportunity to clarify your institution's policy regarding military recruiting on the campus of ABC College. In that regard, I request, within the next 30 days, a written policy statement of the institution with respect to access to campus and students, and to student recruiting information by military recruiting personnel.
Your response should highlight any difference between access for military recruiters and access for recruiting by other potential employers.
Based on this information, Department of Defense officials will make a determination as to your institution's eligiblity to receive funds by grant or contract. That decision may affect eligiblity for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and Related Agencies. Should it be determined that ABC College is in violation of the aforementioned statutes, such funding would be stopped, and the school would be ineligible to receive such funds in the future.
I regret that this action may have to be taken. Successful recruiting requires that Department of Defense recruiters have reasonable access to students on the campuses of colleges and universities, and at the same time have effective relationships with the officials and student bodies of those institutions. I hope it will be possible to (define the correction to the aforementioned problem area(s). I am available to answer any questions.
Sincerely,
Dear Dr. Smith: I understand that ABC College has (refused a request from a Military Department to establish a Senior ROTC
This letter provides you an opportunity to clarify your institution's policy regarding ROTC access on the campus of ABC College. In that regard, I request, within the next 30 days, a written statement of the institution with respect to (define the problem area(s)).
Based on this information, Department of Defense officials will make a determination as to your institution's eligibility to receive funds by grant or contract. The decision may affect eligibility for funding from appropriations of the Departments of Defense, Labor, Health and Human Services, Education, and Related Agencies. Should it be determined that ABC College is in violation of the aforementioned statutes, such funding would be stopped, and the school would be ineligible to receive such funds in the future.
I regret that this action may have to be taken. Successful officer procurement requires that the Department of Defense maintain a strong ROTC program. I hope it will be possible to (define the correction to the aforementioned problem area(s)). I am available to answer any questions.
Pub. L. 98-542, 98 Stat. 2725 (38 U.S.C. 354 Note.)
(a) Upon request by the Veterans Administration in connection with a claim for compensation, or by a veteran or his or her representative, available information shall be provided by the applicable Military Service which shall include all material aspects of the radiation environment to which the veteran was exposed and shall include inhaled, ingested and neutron doses. In determining the veteran's dose, initial neutron, initial gamma, residual gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall be considered. However, doses will be reported as gamma dose, neutron dose, and internal dose. The minimum standards for reporting dose estimates are set forth in § 218.4.
(b) The basic means by which to measure dose from exposure to ionizing radiation is the film badge. Of the estimated 220,000 Department of Defense participants in atmospheric nuclear weapons tests, about 145,000 have film badge dose data available. The information contained in the records has been reproduced in a standard format and is being provided to each military service, which can use the film badge dose data to obtain a radiation dose for a particular individual from that service. This is done upon request from the individual, the individual's representative, the Veterans Administration, or others as authorized by the Privacy Act. Upon request, the participant or his or her authorized representative will be informed of the specific methodologies and assumptions employed in estimating his or her dose. The participant can use this information to obtain independent options regarding exposure.
(c) From 1945 through 1954, the DoD and Atomic Energy Commission (AEC) policy was to issue badges only to a portion of the personnel in a homogeneous unit such as a platoon of a battalion combat team, Naval ship or aircraft crew. Either one person was badged in a group performing the same function, or only personnel expected to be exposed to radiation were badged. After 1954, the policy was to badge all
(d) In order to determine the radiation dose to individuals for whom film badge data are not available, alternative approaches are used as circumstances warrant. All approaches require investigation of individual or group activities and their relationship to the radiological environment. First, if it is apparent that personnel were not present in the radiological environment and had no other potential for exposure, then their dose is zero. Second, if some members of a group had film badge readings and others did not—and if all members had a common relationship with the radiological enviroment—then doses for unbadged personnel can be calculated. Third, where sufficient badge readings or a common relationship to the radiological environment does not exist, dose reconstruction is performed. This involves correlating a unit's or individual's detailed activities with the quantitively determined radiological environment. The three approaches are described as follows:
(1) Activities of an individual or his unit are researched for the period of participation in an atmospheric nuclear test. Unit locations and movements are related to areas of radiation. If personnel were far distant from the nuclear detonation(s), did not experience fallout or enter a fallout area, and did not come in contact with radioactive samples or contaminated objects, they were judged to have received no dose.
(2) Film badge data from badged personnel may be used to estimate individual doses for unbadged personnel. First, a group of participants must be identified that have certain common characteristics and a similar potential for exposure to radiation. Such characteristics are: Individuals must be doing the same kind of work, referred to as activity, and all members of the group must have a common relationship to the radiological environment in terms of time, location or other factors. Identification of these groups is based upon research of historical records, technical reports or correspondence. A military unit may consist of several groups or several units may comprise a single group. Using proven statistical methods, the badge data for each group is examined to determine if it adequately reflects the entire group, is valid for use in statistical calculations, or if the badge data indicate the group should be sub-divided into smaller groups. For a group that mets the tests described above, the mean dose, variance and confidence limits are determined. An estimated dose equal to 95% probability that the actual exposure did not exceed the estimate is assigned to unbadged personnel. This procedure is statistically sound and will insure that unbadged personnel are assigned doses much higher than the average/mean for the group.
(3) Dose reconstruction is performed if film badge data are unavailable for all or part of the period or radiation exposure, if film badge data are partially available but cannot be used statistically for calculations, special activities are indicated for specific individuals, or if other types of radiation exposures are indicated. In dose reconstruction, the conditions of exposure are reconstructed analytically to arrive at a radiation dose. Such reconstruction is not a new concept; it is standard scientific practice used by health physicists when the circumstances of a radiation exposure require investigation. The underlying method is in each case the same. The radiation environment is characterized in time and space, as are the activities and geometrical position of the individual. Thus, the rate at which radiation is accrued is determined throughout the time of exposure, from which the total dose is integrated. An uncertainty analysis of the reconstruction provides a calculated mean dose with confidence limits. The specific method used in a dose reconstruction depends on what type of data are available to provide the required characterizations as well as the nature of the radiation
The following procedures govern the approach taken in dose determination:
(a) Use individual film badge data where available and complete, for determining the external gamma dose.
(b) Identify group activities and locations for period(s) of possible exposure.
(c) Qualitatively assess the radiation environment in order to delineate contaminated areas. If no activities occurred in these areas, and if no other potential for exposure exists, a no dose received estimate is made.
(d) If partial film badge data are available, define group(s) of personnel with common activities and relationships to radiation environment.
(e) Using standard statistical methods, verify from the distribution of film badge readings whether the badged sample adequately represents the intended group.
(f) Calculate the mean external gamma dose, with variance and confidence limits, for each unbadged population. Assign a dose equal to 95% probability that actual exposure did not exceed the assigned dose.
(g) If badge data is not available for a statistical calculation, conduct a dose reconstruction.
(h) For dose reconstruction, define radiation environment through use of all available scientific data, e.g., measurements of radiation intensity, decay, radioisotopic composition.
(i) Quantitatively relate activities shielding, position, and other factors to radiation environment as a function of time. Integrate dose throughout period of exposure.
(j) Where possible, calculate mean dose with confidence limits; otherwise calculate best estimate dose or, if data are too sparse, upper limit dose.
(k) Compare calculations with available film badge records to verify the calculated doses. Whether or not film badge data is available, calculate initial and internal doses where identified as a meaningful contribution to the total dose.
(a)
(b)
(2) The initial radiation environment results from several types of gamma and neutron emissions. Prompt neutron and gamma radiation are emitted at the time of detonation, while delayed neutrons and fission-product gamma, from the decay of radioactive products in the fireball, continue to be emitted as the fireball rises. In contrast to these essentially point sources of radiation, there is gamma radiation from neutron interactions with air and soil, generated within a fraction of a second. Because of the complexity of these radiation sources and their varied interaction properties with air and soil, it is necessary to obtain solutions of the Boltzmann radiation transport equation. The radiation environment thus derived includes the effects of shot-specific parameters such as weapon type and yield, neutron and gamma output, source and target geometry, and atmospheric conditions. The calculated neutron and gamma radiation environments are checked for consistency with existing measured data as available. In those few cases displaying significant discrepancies that cannot be resolved, an environment based on extrapolation of the data is used if it leads to a larger calculated dose.
(3) In determining the residual radiation environment, all possible sources are considered including radioactive clouds, radiation that may have been encountered from other tests, and radioactive debris that may have been deposited in water during oceanic tests. The residual radiation environment is divided into two general components—neutron-activated material that subsequently emits, over a period of time, beta and gamma radiation; and radioactive debris from the fission reaction or from unfissioned materials that emit alpha, beta, and gamma radiation. Because residual radiation decays, the characterization of the residual environment is defined by the radiation intensity as a function of type and time. Radiological survey data are used to determine specific intensities at times of personnel exposure. Interpolation and extrapolation are based on known decay characteristics of the individual materials that comprise the residual contamination. In those rare cases where insufficient radiation data exist to adequately define the residual environment, source data are obtained from the appropriate weapon design laboratory and applied in standard radiation transport codes to determine the initial radiation at specific distances from the burst. This radiation, together with material composition and characteristics, leads to description of the neutron-activated field for each location and time of interest. In all cases observed data, as obtained at the time of the operation, are used to calibrate the calculations.
(c)
(d)
(2) The calculation of the dose from residual radiation follows from the characterized radiation environment and personnel activities. Because radiation intensities are calculated for a field (i.e., in two spatial dimensions) and in time, the radiation intensity is determinable for each increment of personnel activity regardless of direction or at what time. The dose from exposure to a radiation field is obtained by summing the contribution (product of intensity and time) to dose at each step. The dose calculated from the radiation field does not reflect the shielding of the film badge afforded by the human body. This shielding has been determined for pertinent body positions by the solution of radiation transport equations as applied to a radiation field. Conversion factors are used to arrive at a calculated film badge dose, which not only facilitates comparison with film badge data, but serves as a substitute for an unavailable film badge reading.
(3) The calculation of the dose from inhaled or ingested radioactivity primarily involves the determination of what radiosotopes entered the body in what quantity. Published conversion factors are then applied to these data to arrive at the radiation dose and future dose commitments to internal organs. Inhalation or ingestion of radioactive material is calculated from the radioactive environment and the processes of making these materials inhalable or ingestible. Activities and processes that cause material to become airborne (such as wind, decontamination or traffic) are used with empirical data on particle lofting to determine airborne concentrations under specific circumstances. Volumetric breathing rates and durations of exposure are used to calculate the total material intake. Data on time-dependent weapon debris isotopic composition and the above-mentioned conversion factors are used to calculate the dose commitment to the body and to specific body organs.
(e)
(f)
(2) Film badge data may, in some cases, be unrepresentative of the total exposure of a given individual or group; nevertheless, they are extremely useful for direct comparison of incremental doses for specific periods, e.g., validating the calculations for the remaining, unbadged period of exposure. Moreover, a wide distribution of film badge data often leads to more definitive personnel grouping for dose calculations
The following minimum standards for reporting dose estimates shall be uniformly applied by the Military Services when preparing information in response to an inquiry by the Veterans Administration, in connection with a claim for compensation, or by a veteran or his or her representative. The information shall include all material aspects of the radiation environment to which the veteran was exposed and shall include inhaled, ingested, and neutron doses, when applicable. In determining the veteran's dose, initial neutron, initial gamma, residual gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall be considered. However, doses will be reported as gamma dose, neutron dose, and internal dose. To the extent to which the information is available, the responses will address the following questions:
(a) Can it be documented that the veteran was a test participant? If so, what tests did he attend and what were the specifics of these tests (date, time, yield (unless classified) type, location and other relevant details)?
(b) What unit was the man in? What were the mission and activities of the units at the test?
(c) To the extent to which the available records indicate, what were his duties at the test?
(d) Can you corroborate the specific information relevant to the potential exposure provided by the claimant to the Veterans Administration and forwarded to the Department of Defense? What is the impact of these specific activities on the claimant's reconstructed dose?
(e) Is there any recorded radiation exposure for the individual? Does this recorded exposure cover the full period of test participation? What are the uncertainties associated with the recorded film badge dose?
(f) If recorded dosimetry data is unavailable or incomplete, what is the dose reconstruction for the most probable dose, with error limits, if available?
(g) Is there evidence of a neutron or internal exposure? What is the reconstruction?
5 U.S.C. 301; 42 U.S.C. 300v-1(b).
(a) Except as provided in paragraph (b) of this section, this policy applies to all research involving human subjects conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research. This includes research conducted by federal civilian employees or military personnel, except that each department or agency head may adopt such procedural modifications as may be appropriate from an administrative standpoint. It also includes research conducted, supported, or otherwise subject to regulation by the federal government outside the United States.
(1) Research that is conducted or supported by a federal department or agency, whether or not it is regulated as defined in § 219.102(e), must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal department or agency but is subject to regulation as defined in § 219.102(e) must be reviewed and approved, in compliance with § 219.101, § 219.102, and § 219.107 through § 219.117 of this policy, by an institutional review board (IRB) that operates in accordance with the pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads, research activities in which the only involvement of human subjects will be in one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human subjects can be identified, directly or through identifiers linked to the subjects; and
(ii) Any disclosure of the human subjects' responses outside the research could reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects' financial standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior that is not exempt under paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or candidates for public office; or
(ii) Federal statute(s) require(s) without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter.
(4) Research, involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or subject to the approval of department or agency heads, and which are designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs;
(ii) Procedures for obtaining benefits or services under those programs;
(iii) Possible changes in or alternatives to those programs or procedures; or
(iv) Possible changes in methods or levels of payment for benefits or services under those programs.
(6) Taste and food quality evaluation and consumer acceptance studies,
(i) If wholesome foods without additives are consumed or
(ii) If a food is consumed that contains a food ingredient at or below the level and for a use found to be safe, or agricultural chemical or environmental contaminant at or below the level found to be safe, by the Food and Drug Administration or approved by
(c) Department or agency heads retain final judgment as to whether a particular activity is covered by this policy.
(d) Department or agency heads may require that specific research activities or classes of research activities conducted, supported, or otherwise subject to regulation by the department or agency but not otherwise covered by this policy, comply with some or all of the requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent federal laws or regulations which provide additional protections for human subjects.
(f) This policy does not affect any state or local laws or regulations which may otherwise be applicable and which provide additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which may otherwise be applicable and which provide additional protections to human subjects of research.
(h) When research covered by this policy takes place in foreign countries, procedures normally followed in the foreign countries to protect human subjects may differ from those set forth in this policy. (An example is a foreign institution which complies with guidelines consistent with the World Medical Assembly Declaration (Declaration of Helsinki amended 1989) issued either by sovereign states or by an organization whose function for the protection of human research subjects is internationally recognized.) In these circumstances, if a department or agency head determines that the procedures prescribed by the institution afford protections that are at least equivalent to those provided in this policy, the department or agency head may approve the substitution of the foreign procedures in lieu of the procedural requirements provided in this policy. Except when otherwise required by statute, Executive Order, or the department or agency head, notices of these actions as they occur will be published in the
(i) Unless otherwise required by law, department or agency heads may waive the applicability of some or all of the provisions of this policy to specific research activities or classes of research activities otherwise covered by this policy. Except when otherwise required by statute or Executive Order, the department or agency head shall forward advance notices of these actions to the Office for Human Research Protections, Department of Health and Human Services (HHS), or any successor office, and shall also publish them in the
(a)
(b)
(c)
(d)
(e)
(f)
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
(g)
(h)
(i)
(j)
(a) Each institution engaged in research which is covered by this policy and which is conducted or supported by a federal department or agency shall provide written assurance satisfactory to the department or agency head that it will comply with the requirements set forth in this policy. In lieu of requiring submission of an assurance, individual department or agency heads shall accept the existence of a current assurance, appropriate for the research in question, on file with the Office for Human Research Protections, HHS, or any successor office, and approved for federalwide use by that office. When the existence of an HHS-approved assurance is accepted in lieu of requiring submission of an assurance, reports (except certification) required by this policy to be made to department and agency heads shall also be made to the
(b) Departments and agencies will conduct or support research covered by this policy only if the institution has an assurance approved as provided in this section, and only if the institution has certified to the department or agency head that the research has been reviewed and approved by an IRB provided for in the assurance, and will be subject to continuing review by the IRB. Assurances applicable to federally supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the discharge of its responsibilities for protecting the rights and welfare of human subjects of research conducted at or sponsored by the institution, regardless of whether the research is subject to federal regulation. This may include an appropriate existing code, declaration, or statement of ethical principles, or a statement formulated by the institution itself. This requirement does not preempt provisions of this policy applicable to department- or agency-supported or regulated research and need not be applicable to any research exempted or waived under § 219.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with the requirements of this policy, and for which provisions are made for meeting space and sufficient staff to support the IRB's review and recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees; representative capacity; indications of experience such as board certifications, licenses, etc., sufficient to describe each member's chief anticipated contributions to IRB deliberations; and any employment or other relationship between each member and the institution; for example: full-time employee, part-time employee, member of governing panel or board, stockholder, paid or unpaid consultant. Changes in IRB membership shall be reported to the department or agency head, unless in accord with § 219.103(a) of this policy, the existence of an HHS-approved assurance is accepted. In this case, change in IRB membership shall be reported to the Office for Human Research Protections, HHS, or any successor office.
(4) Written procedures which the IRB will follow (i) for conducting its initial and continuing review of research and for reporting its findings and actions to the investigator and the institution; (ii) for determining which projects require review more often than annually and which projects need verification from sources other than the investigators that no material changes have occurred since previous IRB review; and (iii) for ensuring prompt reporting to the IRB of proposed changes in a research activity, and for ensuring that such changes in approved research, during the period for which IRB approval has already been given, may not be initiated without IRB review and approval except when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB, appropriate institutional officials, and the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any serious or continuing noncompliance with this policy or the requirements or determinations of the IRB and (ii) any suspension or termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to act for the institution and to assume on behalf of the institution the obligations imposed by this policy and shall be filed in such form and manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances submitted in accordance with this policy through such officers and employees of the department or agency and such experts or consultants engaged for this purpose as the department or agency head determines to be appropriate. The department or agency head's evaluation will take into consideration the adequacy of the proposed IRB in light of the anticipated scope of the institution's research activities and the types of subject populations likely to be involved, the appropriateness of the proposed initial and continuing review procedures in light of the probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head may approve or disapprove the assurance, or enter into negotiations to develop an approvable one. The department or agency head may limit the period during which any particular approved assurance or class of approved assurances shall remain effective or otherwise condition or restrict approval.
(f) Certification is required when the research is supported by a federal department or agency and not otherwise exempted or waived under § 219.101 (b) or (i). An institution with an approved assurance shall certify that each application or proposal for research covered by the assurance and by § 219.103 of this Policy has been reviewed and approved by the IRB. Such certification must be submitted with the application or proposal or by such later date as may be prescribed by the department or agency to which the application or proposal is submitted. Under no condition shall research covered by § 219.103 of the Policy be supported prior to receipt of the certification that the research has been reviewed and approved by the IRB. Institutions without an approved assurance covering the research shall certify within 30 days after receipt of a request for such a certification from the department or agency, that the application or proposal has been approved by the IRB. If the certification is not submitted within these time limits, the application or proposal may be returned to the institution.
(a) Each IRB shall have at least five members, with varying backgrounds to promote complete and adequate review of research activities commonly conducted by the institution. The IRB shall be sufficiently qualified through the experience and expertise of its members, and the diversity of the members, including consideration of race, gender, and cultural backgrounds and sensitivity to such issues as community attitudes, to promote respect for its advice and counsel in safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific research activities, the IRB shall be able to ascertain the acceptability of proposed research in terms of institutional commitments and regulations, applicable law, and standards of professional conduct and practice. The IRB shall therefore include persons knowledgeable in these areas. If an IRB regularly reviews research that involves a vulnerable category of subjects, such as children, prisoners, pregnant women, or handicapped or mentally disabled persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB consists entirely of men or entirely of women, including the institution's consideration of qualified persons of both sexes, so long as no selection is made to the IRB on the basis of gender. No IRB may consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns are in scientific areas and at least one member whose primary concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or continuing review of any project in which the member has a conflicting interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence in special areas to assist in the review of issues which require expertise beyond or in addition to that available on the IRB. These individuals may not vote with the IRB.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in § 219.103(b)(4) and, to the extent required by, § 219.103(b)(5).
(b) Except when an expedited review procedure is used (see § 219.110), review proposed research at convened meetings at which a majority of the members of the IRB are present, including at least one member whose primary concerns are in nonscientific areas. In order for the research to be approved, it shall receive the approval of a majority of those members present at the meeting.
(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this policy.
(b) An IRB shall require that information given to subjects as part of informed consent is in accordance with § 219.116. The IRB may require that information, in addition to that specifically mentioned in § 219.116, be given to the subjects when in the IRB's judgment the information would meaningfully add to the protection of the rights and welfare of subjects.
(c) An IRB shall require documentation of informed consent or may waive documentation in accordance with § 219.117.
(d) An IRB shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed research activity, or of modifications required to secure IRB approval of the research activity. If the IRB decides to disapprove a research activity, it shall include in its written notification a statement of the reasons for its decision and give the investigator an opportunity to respond in person or in writing.
(e) An IRB shall conduct continuing review of research covered by this policy at intervals appropriate to the degree of risk, but not less than once per year, and shall have authority to observe or have a third party observe the consent process and the research.
(a) The Secretary, HHS, has established, and published as a Notice in the
(b) An IRB may use the expedited review procedure to review either or both of the following:
(1) Some or all of the research appearing on the list and found by the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period (of one year or less) for which approval is authorized.
(c) Each IRB which uses an expedited review procedure shall adopt a method for keeping all members advised of research proposals which have been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate, or
(a) In order to approve research covered by this policy the IRB shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized:
(i) By using procedures which are consistent with sound research design and which do not unnecessarily expose subjects to risk, and
(ii) Whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result. In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished from risks and benefits of therapies subjects would receive even if not participating in the research). The IRB should not consider possible long-range effects of applying knowledge gained in the research (for example, the possible effects of the research on public policy) as among those research risks that fall within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted and should be particularly cognizant of the special problems of research involving vulnerable populations, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or the subject's legally authorized representative, in accordance with, and to the extent required by § 219.116.
(5) Informed consent will be appropriately documented, in accordance with, and to the extent required by § 219.117.
(6) When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.
Research covered by this policy that has been approved by an IRB may be subject to further appropriate review and approval or disapproval by officials of the institution. However, those officials may not approve the research if it has not been approved by an IRB.
An IRB shall have authority to suspend or terminate approval of research that is not being conducted in accordance with the IRB's requirements or that has been associated with unexpected serious harm to subjects. Any suspension or termination of approval shall include a statement of the reasons for the IRB's action and shall be reported promptly to the investigator, appropriate institutional officials, and the department or agency head.
Cooperative research projects are those projects covered by this policy which involve more than one institution. In the conduct of cooperative research projects, each institution is responsible for safeguarding the rights and welfare of human subjects and for complying with this policy. With the approval of the department or agency
(a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB activities, including the following:
(1) Copies of all research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to show attendance at the meetings; actions taken by the IRB; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the investigators.
(5) A list of IRB members in the same detail as described is § 219.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in § 219.103(b)(4) and § 219.103(b)(5).
(7) Statements of significant new findings provided to subjects, as required by § 219.116(b)(5).
(b) The records required by this policy shall be retained for at least 3 years, and records relating to research which is conducted shall be retained for at least 3 years after completion of the research. All records shall be accessible for inspection and copying by authorized representatives of the department or agency at reasonable times and in a reasonable manner.
Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in paragraph (c) or (d) of this section, in seeking informed consent the following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts to the subject;
(3) A description of any benefits to the subject or to others which may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as to
(7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights, and whom to contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one or more of the following elements of information shall also be provided to each subject:
(1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent;
(3) Any additional costs to the subject that may result from participation in the research;
(4) The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject;
(5) A statement that significant new findings developed during the course of the research which may relate to the subject's willingness to continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth above, or waive the requirement to obtain informed consent provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine:
(i) Public benefit of service programs;
(ii) Procedures for obtaining benefits or services under those programs;
(iii) Possible changes in or alternatives to those programs or procedures; or
(iv) Possible changes in methods or levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth in this section, or waive the requirements to obtain informed consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and welfare of the subjects;
(3) The research could not practicably be carried out without the waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended to preempt any applicable federal, state, or local laws which require additional information to be disclosed in order for informed consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable federal, state, or local law.
(a) Except as provided in paragraph (c) of this section, informed consent shall be documented by the use of a
(b) Except as provided in paragraph (c) of this section, the consent form may be either of the following:
(1) A written consent document that embodies the elements of informed consent required by § 219.116. This form may be read to the subject or the subject's legally authorized representative, but in any event, the investigator shall give either the subject or the representative adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements of informed consent required by § 219.116 have been presented orally to the subject or the subject's legally authorized representative. When this method is used, there shall be a witness to the oral presentation. Also, the IRB shall approve a written summary of what is to be said to the subject or the representative. Only the short form itself is to be signed by the subject or the representative. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary shall be given to the subject or the representative, in addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. Each subject will be asked whether the subject wants documentation linking the subject with the research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to subjects and involves no procedures for which written consent is normally required outside of the research context.
Certain types of applications for grants, cooperative agreements, or contracts are submitted to departments or agencies with the knowledge that subjects may be involved within the period of support, but definite plans would not normally be set forth in the application or proposal. These include activities such as institutional type grants when selection of specific projects is the institution's responsibility; research training grants in which the activities involving subjects remain to be selected; and projects in which human subjects' involvement will depend upon completion of instruments, prior animal studies, or purification of compounds. These applications need not be reviewed by an IRB before an award may be made. However, except for research exempted or waived under § 219.101 (b) or (i), no human subjects may be involved in any project supported by these awards until the project has been reviewed and approved by the IRB, as provided in this policy, and certification submitted, by the institution, to the department or agency.
In the event research is undertaken without the intention of involving human subjects, but it is later proposed to involve human subjects in the research, the research shall first be reviewed and approved by an IRB, as provided in this policy, a certification submitted, by the institution, to the department or agency, and final approval given to the proposed change by the department or agency.
(a) The department or agency head will evaluate all applications and proposals involving human subjects submitted to the department or agency through such officers and employees of the department or agency and such experts and consultants as the department or agency head determines to be appropriate. This evaluation will take into consideration the risks to the subjects, the adequacy of protection against these risks, the potential benefits of the research to the subjects and others, and the importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head may approve or disapprove the application or proposal, or enter into negotiations to develop an approvable one.
Federal funds administered by a department or agency may not be expended for research involving human subjects unless the requirements of this policy have been satisfied.
(a) The department or agency head may require that department or agency support for any project be terminated or suspended in the manner prescribed in applicable program requirements, when the department or agency head finds an institution has materially failed to comply with the terms of this policy.
(b) In making decisions about supporting or approving applications or proposals covered by this policy the department or agency head may take into account, in addition to all other eligibility requirements and program criteria, factors such as whether the applicant has been subject to a termination or suspension under paragarph (a) of this section and whether the applicant or the person or persons who would direct or has have directed the scientific and technical aspects of an activity has have, in the judgment of the department or agency head, materially failed to discharge responsibility for the protection of the rights and welfare of human subjects (whether or not the research was subject to federal regulation).
With respect to any research project or any class of research projects the department or agency head may impose additional conditions prior to or at the time of approval when in the judgment of the department or agency head additional conditions are necessary for the protection of human subjects.
5 U.S.C. 301; 10 U.S.C. 1095.
(a) This part implements the provisions of 10 U.S.C. 1095, 1097b(b), and 1079b. In general, 10 U.S.C. 1095 establishes the statutory obligation of third party payers to reimburse the United States the reasonable charges of healthcare services provided by facilities of the Uniformed Services to covered beneficiaries who are also covered
(b) This part applies to all facilities of the Uniformed Services; the Department of Transportation administers this part with respect to facilities to the Coast Guard, not the Department of Defense.
(c) This part applies to pathology services provided by the Armed Forces Institute of Pathology. However, in lieu of the rules and procedures otherwise applicable under this part, the Assistant Secretary of Defense (Health Affairs) may establish special rules and procedures under the authority of 10 U.S.C. 176 and 177 in relation to cooperative enterprises between the Armed Forces Institute of Pathology and the American Registry of Pathology.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(1) Express exclusions or limitations in third party payer plans that are inconsistent with 10 U.S.C. 1095(b) are inoperative.
(2) No objection, precondition or limitation may be asserted that defeats the statutory purpose of collecting from third party payers.
(3) Third party payers may not treat claims arising from services provided in facilities of the uniformed services less favorably than they treat claims arising from services provided in other hospitals.
(4) No objection, precondition or limitation may be asserted that is contrary to the basic nature of facilities of the uniformed services.
(c)
(1)
(2)
(3)
(4)
(5)
(i) Expressly disallows payment as the primary payer to all providers to whom payment would not be made under Medicare (including payment under Part A, Part B, a Medicare HMO, or a Medicare+Choice plan); and
(ii) Is otherwise in accordance with applicable law.
(a)
(b)
(2) Except as provided by 10 U.S.C. 1095, this part, or other applicable law, third party payers are not required to treat claims arising from services provided in or through facilities of the Uniformed Services more favorably than they treat claims arising from services provided in other facilities or by other health care providers.
(c)
(1)
(2)
(ii) Such provisions are not permissible if they are applied in a manner that would result in claims arising from services provided by or through facilities of the Uniformed Services being treated less favorably than claims arising from services provided by other hospitals or providers.
(iii) Such provisions are not permissible if they would not affect a third party payer's obligation under this part. For example, concurrent review of an inpatient hospitalization would generally not affect the third party payer's obligation because of the DRG-based, per-admission basis for calculating reasonable charges under § 220.8(a) (except in long stay outlier cases, noted in § 220.8(a)(4)).
(3)
(d)
Pursuant to 10 U.S.C. 1095(c), facilities of the uniformed services, when requested, shall make available to representatives of any third party payer from which the United States seeks payment under 10 U.S.C. 1095 for inspection and review appropriate health care records (or copies of such records) of individuals for whose care payment is sought. Appropriate records which will be made available are records which document that the services which are the subject of the claims for payment under 10 U.S.C. 1095 were provided as claimed and were provided in a manner consistent with permissible terms and conditions of the third party payer's plan. This is the sole purpose for which patient care records will be made available. Records not needed for this purpose will not be made available.
(a)
(b)
(c)
(d)
(1) That have been in continuous effect without amendment or renewal since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services or other authorized representative for the United States makes a determination, based on documentation provided by the third party payer, that the policy or plan clearly excludes payment for such services. Plans entered into, amended or renewed on or after November 5, 1990, are subject to this section, as are prior plans that do not clearly exclude payment for services covered by this section.
(a) Pursuant to 10 U.S.C. 1095(e)(1), the United States may institute and prosecute legal proceedings against a third party payer to enforce a right of the United States under 10 U.S.C. 1095 and this part.
(b) Pursuant to 10 U.S.C. 1095(e)(2), an authorized representative of the United States may compromise, settle or waive a claim of the United States under 10 U.S.C. 1095 and this part.
(c) The authorities provided by 31 U.S.C. 3701,
(d) A third party payer may not, without the consent of a U.S. Government official authorized to take action under 10 U.S.C. 1095 and this part, offset or reduce any payment due under 10 U.S.C. 1095 or this part on the grounds that the payer considers itself due a refund from a facility of the Uniformed Services. A request for refund must be submitted and adjudicated separately from any other claims submitted to the third party payer under 10 U.S.C. 1095 or this part.
(a)
(2) The general rule is that reasonable charges under this part are based on the rates used by CHAMPUS under 32 CFR 199.14 to reimburse authorized providers. There are some exceptions to this general rule, as outlined in this section.
(b)
(c)
(2)
(3)
(4)
(5)
(i) Hospital charges (which refers to routine service charges associated with the hospital stay and ancillary charges).
(ii) Professional charges (which refers to professional services provided by physicians and certain other providers).
(d)
(e)
(f)
(1) The charge for ambulance services is based on the full costs of operating the ambulance service.
(2) With respect to inpatient hospital charges in the Burn Center at Brooke Army Medical Center, the Assistant Secretary of Defense for Health Affairs may establish an adjustment to the rate otherwise applicable under the DRG payment methodology under this section to reflect unique attributes of the Burn Center.
(3) Charges for dental services (including oral diagnosis and prevention, periodontics, prosthodontics (fixed and removable), implantology, oral surgery, orthodontics, pediatric dentistry and endodontics) will be based on a full cost of the dental services.
(4) With respect to service provided prior to January 1, 2003, reasonable charges for anesthesia services will be based on an average DoD cost of service in all Military Treatment Facilities. With respect to services provided on or after January 1, 2003, reasonable charges for anesthesia services will be based on an average cost per minute of service in all Military Treatment Facilities.
(5) The charge for immunizations, allergin extracts, allergic condition tests, and the administration of certain medications when these services are provided in a separate immunizations or shot clinic, are based on CHAMPUS prevailing rates in cases in which such rates are available, and in cases in which such rates are not available, on the average full cost of these services, exclusive of any costs considered for purposes of any outpatient visit. A separate charge shall be made for each immunization, injection or medication administered.
(6) The charges for pharmacy, durable medical equipment and supplies are based on CHAMPUS prevailing rates in cases in which such rates are available, in cases in which such rates are not available, on the average full cost of these items, exclusive of any costs considered for purposes of any outpatient visit. A separate charge shall be made for each item provided.
(7) Charges for aero-medical evacuation will be based on the full cost of the aero-medical evacuation services.
(g)
(h)
(i)
(j)
(a)
(b)
(c)
(2) Uniformed Services beneficiaries are required to take other reasonable steps to cooperate with the efforts of the facility of the Uniformed Services to make collections under 10 U.S.C. 1095 and this part, such as submitting to the third party payer (or other entity involved in adjudicating a claim) any requests or documentation that might be required by the third party payer (or other entity), if consistent with this part, to facilitate payment under this part.
(3) Intentionally providing false information or willfully failing to satisfy a beneficiary's obligations are grounds for disqualification for health care services from facilities of the Uniformed Services.
(d)
(a)
(b)
(2) Only one deductible charge shall be made per hospital admission (or Medicare benefit period), regardless of whether the admission is to a facility of the Uniformed Services or a Medicare certified civilian hospital. To ensure that a Medicare supplemental insurer is not charged the inpatient hospital deductible twice when an individual who is entitled to benefits under both DoD retiree benefits and Medicare, the following payment rules apply:
(i) If a dual beneficiary is first admitted to a Medicare-certified hospital and is later admitted to a facility of the Uniformed Services within the same benefit period initiated by the admission to the Medicare-certified hospital, the facility of the Uniformed Services shall not charge the Medicare supplemental insurance plan an inpatient hospital deductible.
(ii) If a dual beneficiary is admitted first to a facility of the Uniformed Services and secondly to a Medicare-certified hospital within 60 days of discharge from the facility of the Uniformed Services, the facility of the Uniformed Services shall refund to the Medicare supplemental insurer any inpatient hospital deductible that the insurer paid to the facility of the Uniformed Services so that it may pay the deductible to the Medicare-certified hospital.
(c)
(i) Be based on percentage amounts of the per diem, per visit and other rates established by § 220.8 comparable to the percentage amounts of beneficiary financial responsibility under Medicare for the service involved;
(ii) Include adjustments, as appropriate, to identify major components of the all inclusive per diem or per visit rates for which Medicare has special rules.
(iii) Provide for offsets and/or refunds to ensure that Medicare supplemental insurers are not required to pay a limited benefit more than one time in cases in which beneficiaries receive similar services from both a facility of the uniformed services and a Medicare certified provider; and
(iv) Otherwise conform with the requirements of this section and this part.
(2) If collections are sought under paragraph (c) of this section, the effective date of such collections will be prospective from the date the Assistant Secretary of Defense (Health Affairs) provides notice of such collections, and will exempt policies in continuous effect without amendment or renewal since the date the Assistant Secretary of Defense (Health Affairs) provides notice of such collections.
(d)
(e)
(1) That have been in continuous effect without amendment since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services (or other authorized representative of the United States) makes a determination, based on documentation provided by the Medicare supplemental plan, that the plan agreement clearly excludes payment for
(a)
(b)
(2)
(c)
(1) That have been in continuous effect without amendment since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services (or other authorized representative of the United States) makes a determination, based on documentation provided by the third party payer, that the policy or plan clearly excludes payment for services covered by this section. Plans entered into, amended or renewed on or after November 5, 1990, are subject to this section, as are prior plans that do not clearly exclude payment for services covered by this section.
(a)
(b)
(1)
(2)
(ii) If a settlement appears to represent an attempt to shift to the facility of the Uniformed Services the responsibility of providing uncompensated services or items for the treatment of the work-related condition, the settlement will not be recognized and reimbursement to the uniformed health care facility will be required. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the employer or workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, the facility of the Uniformed Services must be reimbursed.
(iii) Except as specified in paragraph (b)(2)(iv) of this section, if a lump-sum compromise settlement forecloses the possibility of future payment or workers' compensation benefits, medical expenses incurred by a facility of the Uniformed Services after the date of the settlement are not reimbursable under this section.
(iv) As an exception to the rule of paragraph (b)(2)(iii) of this section, if the settlement agreement allocates certain amounts for specific future medical services, the facility of the Uniformed Services is entitled to reimbursement for those specific services and items provided resulting from the work-related injury, illness, or disease up to the amount of the lump-sum settlement allocated to future expenses.
(3)
(1) Circumstances in which liability benefits are paid to an injured party only when the insured party's tortious acts are the cause of the injuries; and
(2) Uninsured and underinsured coverage, in which there is a third party tortfeasor who caused the injuries (i.e., benefits are not paid on a no-fault basis), but the insured party is not the tortfeasor.
(1) Any plan offered by an insurer, re-insurer, employer, corporation, organization, trust, organized health care group or other entity.
(2) Any plan for which the beneficiary pays a premium to an issuing agent as well as any plan to which the beneficiary is entitled as a result of employment or membership in or association with an organization or group.
(3) Any Employee Retirement Income and Security Act (ERISA) plan.
(4) Any Multiple Employer Trust (MET).
(5) Any Multiple Employer Welfare Arrangement (MEWA).
(6) Any Health Maintenance Organization (HMO) plan, including any such plan with a point-of-service provision or option.
(7) Any individual practice association (IPA) plan.
(8) Any exclusive provider organization (EPO) plan.
(9) Any physician hospital organization (PHO) plan.
(10) Any integrated delivery system (IDS) plan.
(11) Any management service organization (MSO) plan.
(12) Any group or individual medical services account.
(13) Any preferred provider organization (PPO) plan or any PPO provision or option of any third party payer plan.
(14) Any Medicare supplemental insurance plan.
(15) Any automobile liability insurance plan.
(16) Any no fault insurance plan, including any personal injury protection plan or medical payments benefit plan for personal injuries arising from the operation of a motor vehicle.
(1) State and local governments that provide such plans other than Medicaid.
(2) Insurance underwriters or carriers.
(3) Private employers or employer groups offering self-insured or partially self-insured medical service or health plans.
(4) Automobile liability insurance underwriter or carrier.
(5) No fault insurance underwriter or carrier.
(6) Workers' compensation program or plan sponsor, underwriter, carrier, or self-insurer.
(7) Any other plan or program that is designed to provide compensation or coverage for expenses incurred by a beneficiary for healthcare services or products.
(1) Operated by or under the authority of any law of any State (or the District of Columbia, American Samoa, Guam, Puerto Rico, and the Virgin Islands).
(2) Operated through an insurance arrangement or on a self-insured basis by an employer.
(3) Operated under the authority of the Federal Employees Compensation Act or the Longshoremen's and Harbor Workers' Compensation Act.
Public Law 99-660, title IV (44 U.S.C. 11131-11152).
This part:
(a) Establishes DoD policy, assigns responsibilities, and prescribes procedure for implementing Public Law 99-660, title IV and the objectives of the Memorandum of Understanding (MOU) between the Department of Health and Human Services (DHHS) and the Department of Defense, September 21, 1987, which outlines the DoD's participation in the National Practitioner Data Bank (NPDB).
(b) Specifies the content of confidential reports to the NPDB established under part B of Public Law 99-660, and reporting responsibilities.
This part applies to:
(a) The Office of the Secretary of Defense (OSD) and the Military Departments (including their National Guard and Reserve components). The term, “Military Departments,” as used herein, refers to the Army, the Navy, and the Air Force.
(b) Healthcare personnel who are in professions required to possess a license under DoD Directive 6025.6
(a)
(b)
(c)
It is DoD policy that:
(a) Professional review shall occur in every case of alleged malpractice.
(b) When a malpractice claim results in a monetary payment for the benefit of a physician, dentist, or other healthcare practitioner required to be licensed by DoD Directive 6025.6, it shall be reported to the NPDB.
(c) Practitioners shall have benefit of due process procedures for professional review activities under requirements of Public Law 99-660, Military Department regulations, and healthcare entity professional staff by-laws.
(d) Information on adverse privileging actions and other professional review actions shall be reported to the appropriate State agencies and the NPDB.
(1) The Department of Defense shall continue to provide State(s) of known licensure the information required by DoD Directive 6025.11.
(2) Physicians and dentists shall be reported for both malpractice payment and privileging actions. All other personnel required to be licensed by DoD Directive 6025.6 shall also be reported for malpractice payments.
(3) Other healthcare personnel shall be reported for privileging actions only
(e) The NPDB shall be queried during the accessioning process of a healthcare practitioner, and at least every 24 months, thereafter, as a part of the Military medical departments' recredentialing and reprivileging procedures. Inquiries on healthcare practitioners, on board at the time this part is implemented, should be performed at the time of their next recredentialing and reprivileging. If the granting of initial clinical privileges occurs more than 1 year after the query for accessioning, querying the data bank shall be required as a part of the initial privileging.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall:
(1) Monitor implementation of this part and issue such DoD Instructions as may be necessary.
(2) Authorize exceptions to requirements of this part, if deemed necessary.
(b) The General Counsel of the Department of Defense (GC, DoD) shall provide legal advice on the interpretation and implementation of this part and any subsequent DoD Instructions.
(c) The Secretaries of the Military Departments shall implement the requirements of this part and the DoD Instructions issued under paragraph (a) of this section.
(a) The ASD(HA) shall issue Instructions, in accordance with § 221.5(a).
(b) The Military Departments shall:
(1) Develop policy and procedures that comply with requirements of this Directive and any subsequent DoD Instructions.
(2) Ensure that their Office of the Surgeon General (OTSG) sends the appropriate information, in accordance with § 221.7, to the NPDB and the Office of the Deputy Assistant Secretary of Defense (Professional Affairs and Quality Assurance) (ODASD(PA&QA)).
(3) Ensure that the NPDB is queried appropriately, in accordance with § 221.7.
(a) The method of reporting information to, and querying information from, the NPDB shall be by use of the Health Resources and Services Administration (HRSA) forms or, when possible, electronically.
(b) Reports to the ODASD(PA&QA) shall be submitted through electronic means, when available. Until then, DD Form 2499, “Health Care Provider Clinical Privileges Action Report,” and DD Form 2526, “Case Abstract For Malpractice Claims,” shall be used, as appropriate.
(c) The reporting requirements in this section have been assigned Report Control Symbols DD-HA(AR)1611 and DD-HA(AR)1782.
10 U.S.C. 128 and 5 U.S.C. 552(b)(3).
This part implements 10 U.S.C. 128 by establishing policy, assigning responsibilities, and prescribing procedures for identifying, controlling, and limiting the dissemination of unclassified information on the physical protection of DoD special nuclear material (SNM), equipment, and facilities. That information shall be referred to as “the Department of Defense Unclassified Controlled Nuclear Information (DoD
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(b) Implements 10 U.S.C. 128, which is the statutory basis for controlling the DoD UCNI in the Department of Defense. 10 U.S.C. 128 also constitutes the authority for invoking 32 CFR part 286 to prohibit mandatory disclosure of DoD UCNI under the “Freedom of Information Act (FOIA)” in 5 U.S.C. 552.
(c) Supplements the security classification guidance contained in CG-W-5
(d) Applies to all SNM, regardless of form, in reactor cores or to other items under the direct control of the DoD Components.
(e) Applies equally to DoE UCNI under DoD control, except the statute applicable to DoE UCNI (42 U.S.C. 2011
(a)
(1) Development, production, testing, sampling, maintenance, repair, modification, assembly, utilization, transportation, or retirement of nuclear weapons or nuclear weapon components.
(2) Production, utilization, or transportation of DoD SNM for military applications.
(3) Safeguarding of activities, equipment, or facilities that support the functions in paragraphs (a) (1) and (2) of this section, including the protection of nuclear weapons, nuclear weapon components, or DoD SNM for military applications at a fixed facility or in transit.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
It is DoD policy:
(a) To prohibit the unauthorized dissemination of unclassified information on security measures, including security plans, procedures, and equipment for the physical protection of DoD SNM, equipment, or facilities.
(b) That the decision to protect unclassified information as DoD UCNI shall be based on a determination that the unauthorized dissemination of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
(c) That government information shall be made publicly available to the fullest extent possible by applying the minimum restrictions consistent with the requirements of 10 U.S.C. 128 necessary to protect the health and safety of the public or the common defense and security.
(d) That nothing in this part prevents a determination that information previously determined to be DoD UCNI is classified information under applicable standards of classification.
(a) The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence shall:
(1) Administer the DoD program for controlling DoD UCNI.
(2) Coordinate DoD compliance with the DoE program for controlling DoE UCNI.
(3) Prepare and maintain the reports required by 10 U.S.C. 128.
(b) The Assistant Secretary of Defense (Public Affairs) shall provide guidance to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)), other elements of the OSD, and the Heads of the DoD Components on the FOIA (5 U.S.C. 552), as implemented in DoD 5400.7-R,
(c) The Heads of the DoD Components shall:
(1) Implement this part in their DoD Components.
(2) Advise the ASD(C3I) of the following, when information not in the guidelines in appendix B to this part is determined to be DoD UCNI:
(i) Identification of the type of information to be controlled as DoD UCNI. It is not necessary to report each document or numbers of documents.
(ii) Justification for identifying the type of information as DoD UCNI, based on the guidelines in appendix B to this part and prudent application of the adverse effects test.
Appendix A to this part outlines the procedures for controlling DoD UCNI. Appendix B to this part provides general and topical guidelines for identifying information that may qualify for protection as DoD UCNI. The procedures and guidelines in appendices A and B to this part complement the DoD Component Programs to protect other DoD-sensitive unclassified information and may be used with them.
(a) Section 128 of 10 U.S.C. requires that the Secretary of Defense prepare on a quarterly basis a report to be made available on the request of any interested person. Appendix A to this part outlines the procedures for preparing the quarterly report.
(b) The report is exempt from licensing in accordance with paragraph E.4.e of DoD 7750.5-M.
1. The Secretary of Defense's authority for prohibiting the unauthorized disclosure and dissemination of DoD UCNI may be exercised by the Heads of the DoD Components and by the officials to whom such authority is specifically delegated by the Heads of the DoD Components. These procedures for identifying and controlling DoD UCNI are provided as guidance for the Heads of the DoD Components to implement the Secretary of Defense's authority to prohibit the unauthorized dissemination of unclassified information on security measures, including security plans, procedures, and equipment, for the physical protection of DoD SNM, equipment, or facilities.
2. The decision to protect unclassified information as DoD UCNI shall be based on a determination that the unauthorized dissemination of such information could reasonably be expected to have an adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
3. Government information shall be made publicly available to the fullest extent possible by applying the minimum restrictions consistent with the requirements of 10 U.S.C. 128, necessary to protect the health and safety of the public or the common defense and security.
4. DoD personnel, in making a determination to protect unclassified information as DoD UCNI, shall consider the probability of an illegal production, theft, diversion, or sabotage if the information proposed for protection were made available for pubic disclosure and dissemination. The determination to protect specific documents or information is not related to the ability of DoD UCNI to be obtained by other sources. For determining the control of DoD UCNI, the cognizant official should consider how the unauthorized disclosure or dissemination of such information could assist a potential adversary in the following:
a. Selecting a target for an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., relative importance of a facility or the location, form, and quantity of DoD SNM). Information that can be obtained by observation from public areas outside controlled locations should not be considered as DoD UCNI.
b. Planning or committing an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., design of security systems; building plans; methods and procedures for transfer, accountability, and handling of DoD SNM; or security plans, procedures, and capabilities).
c. Measuring the success of an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., actual or hypothetical consequences of the sabotage of specific vital equipment or facilities).
d. Illegally producing a nuclear explosive device (e.g., unclassified nuclear weapon design information useful in designing a primitive nuclear device; location of unique DoD SNM needed to fabricate such a device; or location of a nuclear weapon).
e. Dispersing DoD SNM in the environment (e.g., location, form, and quantity of DoD SNM).
5. DoD UCNI shall be identified, controlled, marked, transmitted, and safeguarded in the DoD Components, the North Atlantic Treaty Organization (NATO), and among DoD contractors, consultants, and grantees authorized to conduct official business for the Department of Defense. Contracts requiring the preparation of unclassified information that could be DoD UCNI shall have the requirements for identifying and controlling the DoD UCNI.
6. DoE GG-2
1. To be considered for protection as DoD UCNI, the information must:
a. Be unclassified.
b. Pertain to security measures, including plans, procedures, and equipment, for the physical protection of DoD SNM, equipment, or facilities.
c. Meet the adverse effects test; i.e., that the unauthorized dissemination of such information could reasonably be expected to
2. Information, in the categories in section C. of appendix B to this part, about DOD SNM should be considered for protection as DoD UCNI.
3. Material originated before the effective date of those procedures, which is found in the normal course of business to have DoD UCNI, shall be protected as DoD UCNI. There is no requirement to conduct detailed file searches to retroactively identify and control DoD UCNI. As existing documents or materials are withdrawn from file, they should be reviewed to determine if they meet the criteria for protection as DoD UCNI and marked and controlled, accordingly.
1. A Reviewing Official is an Authorized Individual for documents or materials that the Reviewing Official determines to contain DoD UCNI. An Authorized Individual, for DoD UCNI, may determine that another person is an Authorized Individual who may be granted routine access to the DoD UCNI, and who may further disseminate the DoD UCNI under the procedures specified in paragraph E., below. This recipient of DoD UCNI from an Authorized Individual is also an Authorized Individual for the specific DoD UCNI to which routine access has been granted. An Authorized Individual designates another person to be an Authorized Individual by the act of giving that person a document or material that contains DoD UCNI. No explicit designation or security clearance is required. This second Authorized Individual may further disseminate the UCNI under the procedures specified in section E. of the appendix.
2. A person granted routine access to DoD UCNI must have a need to know the specific DoD UCNI in the performance of official duties or of DoD-authorized activities. The recipient of the document or material shall be informed of the physical protection and access requirements for DoD UCNI. In addition to a need to know, the person must meet at least one of the following requirements:
a. The person is a U.S. citizen who is one of the following:
(1) A Federal Government employee or member of the U.S. Armed Forces.
(2) An employee of a Federal Government contractor, subcontractor, or of a prospective Federal Government contractor or subcontractor who will use the DoD UCNI for the purpose of bidding on a Federal Government contract or subcontract.
(3) A Federal Government consultant or DoD advisory committee member.
(4) A member of Congress.
(5) A staff member of a congressional committee or of an individual Member of Congress.
(6) The Governor of a State or designated State government official or representative.
(7) A local government official or an Indian tribal government official; or
(8) A member of a State, local, or Indian tribal law enforcement or emergency response organization.
b. The person is other than a U.S. citizen, and is one of the following:
(1) A Federal Government employee or a member of the U.S. Armed Forces.
(2) An employee of a Federal Government contractor or subcontractor; or
(3) A Federal Government consultant or DoD advisory committee member.
c. The person may be other than a U.S. citizen who is not otherwise eligible for routine access to DoD UCNI under paragraph C. 2.b of this appendix, but who requires routine access to specific DoD UCNI in conjunction with one of the following:
(1) An international nuclear cooperative activity approved by the Federal Government.
(2) U.S. diplomatic dealings with foreign government officials; or
(3) Provisions of treaties, mutual defense acts, or Government contracts or subcontracts.
3. A person not authorized routine access to DoD UCNI under paragraph C.2. of this appendix, may submit a request for special access to DoD UCNI to Heads of DoD Components, or their designated representative, as appropriate. A special access request must include the following information:
a. The name, current residence or business address, birthplace, birth date, and country of citizenship of the person submitting the request.
b. A description of the DoD UCNI for which special access is being requested.
c. A description of the purpose for which the DoD UCNI is needed; and
d. Certification by the requester of his or her understanding of, and willingness to abide by, the requirements for the protection of DoD UCNI contained in this part.
4. Heads of DoD Components, or their designated representative, shall base his or her decision to grant special access to DoD UCNI on an evaluation of the following criteria:
a. The sensitivity of the DoD UCNI for which special access is being requested (i.e., the worst-case, adverse effect on the health and safety of the public or the common defense and security which would result from unauthorized use of the DoD UCNI).
b. The purpose for which the DoD UCNI is needed (e.g., the DoD UCNI will be used for commercial or other private purposes, or will be used for public benefit to fulfill statutory or regulatory responsibilities).
c. The likelihood of an unauthorized dissemination by the requester of the DoD UCNI; and
d. The likelihood of the requester using the DoD UCNI for illegal purposes.
5. Heads of DoD Components, or their designated representative, shall attempt to notify a person who requests special access to DoD UCNI within 30 days of receipt of the request as to whether or not special access to the requested DoD UCNI is granted. If a final determination on the request cannot be made within 30 days of receipt of the request, Heads of DoD Components, or their designated representative, shall notify the requester, within 30 days of the request, as to when the final determination on the request may be made.
6. A person granted special access to specific UCNI is not an Authorized Individual and shall not further disseminate the DoD UCNI to which special access has been granted.
7. An Authorized Individual granting routine access to specific DoD UCNI to another person shall notify each person granted access (other than when the person being granted such access is a Federal Government employee, a member of the U.S. Armed Forces, or an employee of a Federal Government contractor or subcontractor) of applicable regulations concerning the protection of DoD UCNI and of any special dissemination limitations that the Authorized Individual determines to apply for the specific DoD UCNI to which routine access is being granted.
8. Heads of DoD Components, or their designated representative, shall notify each person granted special access to DoD UCNI of applicable regulations concerning the protection of DoD UCNI prior to dissemination of the DoD UCNI to the person.
9. The requirement to notify persons granted routine access or special access to specific DoD UCNI may be met by attachment of an appropriate cover sheet to the front of each document or material containing DoD UCNI prior to its transmittal to the person granted access.
1. An unclassified document with DoD UCNI shall be marked “DoD Unclassified Controlled Nuclear Information” at the bottom on the outside of the front cover, if any, and on the outside of the back cover, if any.
2. In an unclassified document, an individual page that has DoD UCNI shall be marked to show which of its portions contain DoD UCNI information. In marking sections, parts, paragraphs, or similar portions, the parenthetical term “(DoD UCNI)” shall be used and placed at the beginning of those portions with DoD UCNI.
3. In a classified document, an individual page that has both DoD UCNI and classified information shall be marked at the top and bottom of the page with the highest security classification of information appearing on that page. In marking sections, parts, paragraphs, or similar portions, the parenthetical term “(DoD UCNI)” shall be used and placed at the beginning of those portions with DoD UCNI. In a classified document, an individual page that has DoD UCNI, but no classified information, shall be marked “DoD Unclassified Controlled Information” at the bottom of the page. The DoD UCNI marking may be combined with other markings, if all relevant statutory and regulatory citations are included.
4. Other material (e.g., photographs, films, tapes, or slides) shall be marked “DoD Unclassified Controlled Nuclear Information” to ensure that a recipient or viewer is aware of the status of the information.
1. DoD UCNI may be disseminated in the DoD Components, the NATO, and among the DoD contractors, consultants, and grantees on a need-to-know basis to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means to preclude unauthorized disclosure or dissemination. Contracts that shall require access to DoD UCNI shall require compliance with this part and the DoD Component regulations and have the requirements for the marking, handling, and safeguarding of DoD UCNI.
2. DoD holders of DoD UCNI are authorized to convey such information to officials in other Departments or Agencies on a need-to-know basis to fulfill a Government function. Transmittal documents shall call attention to the presence of DoD UCNI attachments using an appropriate statement in the text, or marking at the bottom of the transmittal document, that “The attached document contains DoD Unclassified Controlled Nuclear Information (DoD UCNI).” Similarly, documents transmitted shall be marked, as prescribed in section D. of this appendix.
3. DoD UCNI transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the DoD UCNI marking. That may be accomplished by typing or stamping the following statement on the document before transfer:
4. When not commingled with classified information, DoD UCNI may be sent by first-class mail in a single, opaque envelope or wrapping.
5. DoD UCNI may only be discussed or transmitted over an unprotected telephone or telecommunications circuit (to include facsimile transmissions) in an emergency.
6. Each part of electronically transmitted messages with DoD UCNI shall be marked appropriately. Unclassified messages with DoD UCNI shall have the abbreviation “DoD UCNI” before the beginning of the text.
7. DoD UCNI may be processed, stored, or produced on stand-alone personal computers, or shared-logic work processing systems, if protection from unauthorized disclosure or dissemination, in accordance with the procedures in section F. of this appendix, can be ensured.
8. A document marked as having DoD UCNI may be reproduced minimally without permission of the originator and consistent with the need to carry out official business.
1. During normal working hours, documents determined to have DoD UCNI shall be placed in an out-of-sight location, or otherwise controlled, if the work area is accessible to unescorted personnel.
2. At the close of business, DoD UCNI material shall be stored so to preclude disclosure. Storage of such material with other unclassified documents in unlocked receptacles; i.e., file cabinets, desks, or bookcases, is adequate, when normal Government or Government-contractor internal building security is provided during nonduty hours. When such internal building security is not provided, locked rooms or buildings normally provide adequate after-hours protection. If such protection is not considered adequate, DoD UCNI material shall be stored in locked receptacles; i.e., file cabinets, desks, or bookcases.
3. Nonrecord copies of DoD UCNI materials must be destroyed by tearing each copy into pieces to reasonably preclude reconstruction and placing the pieces in regular trash containers. If the sensitivity or volume of the information justifies it, DoD UCNI material may be destroyed in the same manner as classified material rather than by tearing. Record copies of DoD UCNI documents shall be disposed of, in accordance with the DoD Components' record management regulations. DoD UCNI on magnetic storage media shall be disposed of by overwriting to preclude its reconstruction.
4. The unauthorized disclosure of DoD UCNI material does not consititute disclosure of DoD information that is classified for security purposes. Such disclosure of DoD UCNI justifies investigative and administrative actions to determine cause, assess impact, and fix responsibility. The DoD Component that originated the DoD UCNI information shall be informed of its unauthorized disclosure and the outcome of the investigative and administrative actions.
1. Any unclassified document or material which is not marked as containing DoD UCNI but which may contain DoD UCNI shall be marked upon retirement in accordance with the DoD Components' record management regulations.
2. A document or material marked as containing DoD UCNI is not required to be reviewed by a Reviewing Official upon or subsequent to retirement. A Reviewing Official shall review any retired document or material upon a request for its release made under 5 U.S.C. 552.
DoD 5400.7-R applies. Information that qualifies as DoD UCNI, under 10 U.S.C. 128, is exempt from mandatory disclosure under 5 U.S.C. 552. Consequently, requests for the public release of DoD UCNI shall be denied under 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 as authority.
The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence shall prepare and maintain the quarterly reports required by 10 U.S.C. 128. The Heads of the DoD Components shall advise the ASD(C3I) when information not in the guidelines in appendix B to this part is determined to be DoD UCNI. Those reports shall have the following information:
1. Identification of the information to be controlled as DoD UCNI. It is not necessary to report each document or numbers of documents.
2. Justification for identifying the type of information to be controlled as DoD UCNI.
3. Certification that only the minimal information necessary to protect the health and safety of the public or the common defense and security is being controlled as DoD UCNI.
1. These guidelines for determining DoD UCNI are the bases for determining what unclassified information about the physcial protection of DoD SNM, equipment or facilities in a given technical or programmatic subject area is DoD UCNI.
2. The decision to protect unclassified information as DoD UCNI shall be based on a
1. The policy for protecting unclassified information about the physical protection of DoD SNM, equipment, or facilities is to protect the public's interest by controlling certain unclassified Government information so to prevent the adverse effects described in section D. of this appendix and in appendix A to this part, without restricting public availability of information that would not result in those adverse effects.
2. In controlling DoD SNM information, only the minimum restrictions needed to protect the health and safety of the public or the common defense and security shall be applied to prohibit the disclosure and dissemination of DoD UCNI.
3. Any material that has been, or is, widely and irretrievably disseminated into the public domain and whose dissemination was not, or is not, under Government control is exempt from control under these guidelines. However, the fact that information is in the public domain is not a sufficient basis for determining that similar or updated Government-owned and -controlled information in another document or material is not, or is no longer, DoD UCNI; case-by-case determinations are required.
The following elements of information shall be considered by the DoD Components during the preparation of unclassified information about the physical protection of DoD SNM to determine if it qualifies for control as DoD UCNI:
a. General vulnerabilities that could be associated with specific DoD SNM, equipment, or facility locations.
b. The fact that DoD SNM facility security-related projects or upgrades are planned or in progress.
c. Identification and description of security system components intended to mitigate the consequences of an accident or act of sabotage at a DoD SNM facility.
a. Total quantity or categories of DoD SNM at a facility.
b. Control and accountability plans or procedures.
c. Receipts that, cumulatively, would reveal quantities and categories of DoD SNM of potential interest to an adversary.
d. Measured discards, decay losses, or losses due to fission and transmutation for a reporting period.
e. Frequency and schedule of DoD SNM inventories.
a. Maps, conceptual design, and construction drawings of a DoD SNM facility showing construction characteristics of building and associated electrical systems, barriers, and back-up power systems not observable from a public area.
b. Maps, plans, photographs, or drawings of man-made or natural features in a DoD SNM facility not observable from a public area; i.e., tunnels, storm or waste sewers, water intake and discharge conduits, or other features having the potential for concealing surreptitious movement.
a. Information on the layout or design of security and alarm systems at a specific DoD SNM facility, if the information is not observable from a public area.
b. The fact that a particular system make or model has been installed at a specific DoD SNM facility, if the information is not observable from a public area.
c. Performance characteristics of installed systems.
a. Types and models of keys, locks, and combinations of locks used in DoD SNM facilities and during shipment.
b. Method of application of tamper-indicating devices.
c. Vulnerability information available from unclassified vendor specifications.
a. Information about arrangements with local, State, and Federal law enforcement Agencies of potential interest to an adversary.
b. Information in “nonhostile” contingency plans of potential value to an adversary to defeat a security measure; i.e., fire, safety, nuclear accident, radiological release, or other administrative plans.
c. Required response time of security forces.
a. Method of evaluating physical security measures not observable from public areas.
b. Procedures for inspecting and testing communications and security systems.
a. Fact that a shipment is going to take place.
b. Specific means of protecting shipments.
c. Number and size of packages.
d. Mobile operating and communications procedures that could be exploited by an adversary.
e. Information on mode, routing, protection, communications, and operations that must be shared with law enforcement or other civil agencies, but not visible to the public.
f. Description and specifications of transport vehicle compartments or security systems not visible to the public.
Refer to CG-W-5 for guidance about the physical protection of information on nuclear weapon stockpile and storage requirements, nuclear weapon destruction and disablement systems, and nuclear weapon physical characteristics that may, under certain circumstances, be unclassified. Such information meets the adverse effects test shall be protected as DoD UCNI.
10 U.S.C. 137.
This part:
(a) Revises 32 CFR part 224 and updates the policy, procedures, and responsibilities for the Department of Defense (DoD) Committee Management Program.
(b) Excludes Federal advisory committees from coverage under this part. They shall be established and administered in accordance with the provisions of DoD Directive 5105.4.
This Directive applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Joint Chiefs of Staff (JCS) and Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
(a)
(b)
(1)
(2)
(3)
(4)
(5)
It is DoD policy that:
(a) Committees shall be established only when their functions cannot be accomplished within the existing organizational structure.
(b) Committees shall be established to perform such tasks as fact-finding, research, evaluation, studies, and reviews.
(c) Committees may be established to perform operational, administrative, or management functions.
(d) When establishing committees, consideration shall be given to ensuring necessity, economy and efficiency of operation, and execution within resource constraints.
(e) Committees shall be disestablished when the purpose for which they were established has been served.
(f) Nothing contained in this part shall be construed to limit or restrict the free exchange of information, advice, and ideas between representatives of DoD Components or other Federal Agencies through ad hoc occasional meetings or other means.
(a) The
(1) Provide policy guidance on the DoD Committee Management Program to DoD Components.
(2) Represent the Department of Defense and maintain liaison with the Congress, General Accounting Office (GAO), Office of Management and Budget (OMB), and other Government agencies, as required, on matters involving the DoD Committee Management Program.
(3) Obtain such information, analyses, reports, and assistance from DoD Components as is required to respond to inquiries from the Congress, GAO, OMB, and other Government agencies, consistent with the provisions of DoD Directive 7750.5.
(4) Serve as DoD Committee Management Officer with responsibility to monitor compliance with the provisions of this part.
(b) The
(1) Ensure that the committees under their cognizance are established and administered consistent with the provisions of this part.
(2) Develop operating procedures and provide supplemental guidance as required for the efficient operation of the committees under their cognizance.
(3) Administer their committee management programs, including: the approval or disapproval of proposals for the establishment, revision, continuation, or termination of operational, interagency, international, intra-Component, and joint DoD committees under their cognizance; the development of pertinent operating documents such as charters, membership lists, terms of reference, memoranda of understanding, and international agreements; and, the maintenance and disposition of reports, records, and minutes of meetings.
(4) Approve or disapprove proposals for participation by their Components on committees chaired by another DoD Component, Government agency, or foreign government.
(5) Maintain information about the program, objectives, and activities of each committee established within their Component and provide such information, when requested, to the DA&M.
(6) Conduct periodic reviews of existing committees, and evaluate recommendations for their revision, consolidation, or termination.
(7) Designate a Committee Management Officer to assist in the performance of the above responsibilities.
10 U.S.C. 2546.
This part implements 10 U.S.C. 2546 by establishing Department of Defense policy for the Department of Defense Shelter for the Homeless Program.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Unified and Specified Commands, the Defense Agencies, and Department of Defense Field Activities (hereafter referred to collectively as “Department of Defense Components”).
(a) By Memorandum for the Secretaries of the Military Departments from the Secretary of Defense dated October 29, 1984, and entitled: “Shelter for the Homeless”, the Secretary of Defense stated it is Department of Defense policy that shelters for the homeless may be established on military installations.
(b) The Secretary of a Military Department, or designee, may make military installations under his or her jurisdiction available for the furnishing of shelter to persons without adequate shelter in accordance with 10 U.S.C. 2546 and this part if he or she, or designee, determines that such shelter will not interfere with military preparedness or ongoing military functions.
(c) The Secretary of a Military Department, after determining that a shelter for the homeless may be established on a military installation, shall ensure that the plans for the shelter be developed in cooperation with appropriate State or local governmental entities and charitable organizations. The State or local government entity, either separately or in conjunction with the charitable organization, shall be responsible for operating and staffing any shelter established under the Shelter for the Homeless Program.
(d) Services that may be provided by a Military Department incident to the furnishing of shelter under 10 U.S.C. 2546 are the following:
(1) Utilities.
(2) Bedding.
(3) Security.
(4) Transportation.
(5) Renovation of facilities.
(6) Minor repairs undertaken specifically to make suitable space available for shelter to be provided in accordance with 10 U.S.C. 2546 and this part.
(7) Property liability insurance.
(e) The Military Departments should be especially sensitive to establishing shelters in the following areas:
(1) Family housing areas,
(2) Troop billeting areas,
(3) Service facilities such as commissaries, exchanges, dining facilities, hospitals, clinics, recreation centers, etc.,
(4) Safety arcs formed by firing ranges and impact areas,
(5) Frequently used training areas.
(f) Shelters for the homeless shall normally be established in only those facilities where the homeless will have exclusive use at all times. Shelters for the homeless shall normally not be established in facilities “shared” with military functions.
(g) In addition to providing shelter and incidental services, Department of Defense Components may provide bedding for support of shelters for the homeless that are located on other than Department of Defense real property. Bedding may be provided without reimbursement, but may only be provided to the extent that the provision of such bedding will not interfere with military requirements.
(h) Individuals or entities interested in establishing shelters on military installations shall:
(1) Submit a request to the Installation Commander where the shelter is desired, and
(2) Provide, at a minimum, the following data: The name and address of the organization that will operate the shelter, the name and address of the affiliated state or local governmental entity, numbers of people to be served, type of program, hours of operation, special needs of the people to be served, incidental services required, estimated date when the services are requested, estimate of when services will no longer be necessary, and what security provisions are to be provided (physical security).
(a) The Deputy Assistant Secretary of Defense (Installations) shall:
(1) Administer the Homeless Assistance Program and issue such supplemental guidance as is necessary.
(2) Appoint an individual as Director, The Homeless Assistance Program, who shall be the Department of Defense program manager responsible for monitoring the Shelter for the Homeless program and answering all inquiries.
(b) The Assistance Secretary of Defense (Comptroller) shall provide guidance on the use of Department of Defense funds to finance the items issued in support of the Shelter for the Homeless program.
(c) The Secretaries of the Military Departments shall:
(1) Implement the Shelter for the Homeless program.
(2) Appoint a senior manager to monitor the Shelter for the Homeless program within that Department and to provide any assistance that may be required to the Deputy Assistant Secretary of Defense (Installations). Such official, after consultation with the Director, The Homeless Assistance Program ODASD(I), shall approve or disapprove all requests to establish a Shelter for the Homeless in accordance with 10 U.S.C. 2546 and this part.
(3) Ensure that upon receipt of a formal request for assistance, as defined in § 226.3(h) of this part, the Military Department concerned provides an appropriate response to the requester within 30 days.
(4) Ensure that each Installation Commander is informed about the Shelter for the Homeless Program and the types of assistance that they may provide as authorized by 10 U.S.C. 2546 and this part.
(d) Department of Defense Installation Commanders shall:
(1) Acknowledge all requests for assistance.
(2) Upon receipt of a request, initiate such action as is necessary to determine the availability of facilities at that installation for use as a shelter for the homeless.
(3) Forward each request, through the chain of command, to the Service Senior Manager with a copy to the DASD(I). The Installation Commander's recommendation shall accompany each request.
This part is effective October 30, 1987. Forward one copy of implementing documents to the Deputy Assistant Secretary of Defense (Installations) within 60 days.
40 U.S.C. 318-318c.
This part applies to all property under the charge and control of the Director, NSA, and to all persons entering in or on such property (hereinafter referred to as “protected property”). Employees of the NSA and any other persons entering upon protected property shall be subject to these regulations.
Persons in and on protected property shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the direction of Security Protective Officers and any other duly authorized personnel.
Access to protected property shall be restricted to ensure the orderly and secure conduct of Agency business. Admission to protected property will be restricted to employees and other persons with proper authorization who shall, when requested, display government or other identifying credentials to the Security Protective Officers or other duly authorized personnel when entering, leaving, or while on the property.
Drivers of all vehicles entering or while on protected property shall comply with the signals and directions of Security Protective Officers or other duly authorized personnel and any posted traffic instructions. All vehicles shall be driven in a safe and careful manner at all times, in compliance with applicable motor vehicle laws.
For reasons of security, parking regulations shall be strictly enforced. Except with proper authorization, parking on protected property is not allowed without a permit. Parking without a permit or other authorization, parking in unauthorized locations or in locations reserved for other persons, or parking contrary to the direction of posted signs or applicable state or federal laws and regulations is prohibited. Vehicles parked in violation, where warning signs are posted, shall be subject to removal at the owner's risk, which shall be in addition to any penalties assessed pursuant to § 228.18. The Agency assumes no responsibility for the payment of any fees or costs related to such removal which may be charged to the owner of the vehicle by the towing organization. This paragraph may be supplemented from time to time with the approval of the NSA Director of Security or his designee by the issuance and posting of such specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if made a part hereof. Proof that a vehicle was parked in violation of these regulations or directives may be taken as
Any personal property, including but not limited to any packages, briefcases, containers or vehicles brought into, while on, or being removed from protected property are subject to inspection. A search of a person may accompany an investigative stop or an arrest.
No persons entering or while on protected property shall carry or possess, either openly or concealed, firearms, any illegal or legally controlled weapon (e.g., throwing stars, switchblades), explosives, or items intended to be used to fabricate an explosive or incendiary device, except as authorized by the NSA Director of Security or his designee at each Agency facility. The use of chemical agents (Mace, tear gas, etc.) on protected property in circumstances that do not include an immediate and unlawful threat of physical harm to any person or persons is prohibited; however, this prohibition does not apply to use by law enforcement personnel in the performance of their duties.
No person entering or while on protected property shall bring or possess any kind of photographic, recording or transmitting equipment (including but not limited to cameras, cellular telephones, or recorders), except as specially authorized by the NSA Director of Security or his designee at each Agency facility.
Entering or being on protected property under the influence of, or while using or possessing, any narcotic drug, hallucinogen, marijuana, barbiturate or amphetamine is prohibited. Operation of a motor vehicle entering or while on protected property by a person under the influence of narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines is also prohibited. These prohibitions shall not apply in cases where the drug is being used as prescribed for a patient by a licensed physician.
Entering or being on protected property under the influence of alcoholic beverages is prohibited. Operation of a motor vehicle entering or while on protected property by a person under the influence of alcoholic beverages is prohibited. The use of alcoholic beverages on protected property is also prohibited, except on occasions and on protected property for which the NSA Deputy Director for Support Services or his designee has granted approval for such use.
In order to protect the security of the Agency's facilities, photographs may be taken on protected property only with the consent of the NSA Director of Security or his designee. The taking of photographs includes the use of television cameras, video taping equipment, and still or motion picture cameras.
The willful destruction of, or damage to any protected property, or any buildings or personal property thereon, is prohibited. The theft of any personal property, the creation of any hazard on protected property to persons or things, and the throwing of articles of any kind at buildings or persons on protected property is prohibited. The improper disposal of trash or rubbish, or any unauthorized or hazardous materials on protected property is also prohibited.
Any conduct which impedes or threatens the security of protected property, or any buildings or persons thereon, or which disrupts the performance of official duties by Agency employees, or which interferes with ingress to or egress from protected property is prohibited. Also prohibited is any disorderly conduct, any failure to obey an order to depart the premises, any unwarranted loitering, any behavior which creates loud or unusual noise or nuisance, or any conduct which obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways or parking lots.
Participating in games for money or other personal property, or the operating of gambling devices, the conduct of a lottery, or the selling or purchasing of numbers tickets, in or on protected property is prohibited. This prohibition shall not apply to the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a State law and conducted by an agency of a State as authorized by section 2(a)(5) of the Randolph-Sheppard Act, as amended (20 U.S.C. 107(a)(5)).
No animals except guide dogs for the blind or hearing impaired, or guard or search dogs used by authorized state or federal officials, shall be brought upon protected property, except as authorized by the NSA Director of Security or his designee at each Agency facility.
Commercial or political soliciting, vending of all kinds, displaying or distributing commercial advertising, collecting private debts or soliciting alms on protected property is prohibited. This does not apply to:
(a) National or local drives for welfare, health, or other purposes as authorized by the “Manual on Fund Raising Within the Federal Service,” issued by the U.S. Office of Personnel Management under Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139,
(b) Authorized employee notices posted on Agency bulletin boards.
Distributing, posting or affixing materials, such as pamphlets, handbills, or flyers, on protected property is prohibited, except as provided by § 228.16, as authorized by the NSA Director of Security or his designee at each Agency facility, or when conducted as part of authorized Government activities.
Whoever shall be found guilty of violating any provision of these regulations is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both. In the case of traffic and parking violations, fines assessed shall be in accordance with the schedule(s) of fines adopted by the United States District Court for the District where the offense occurred. Nothing in these regulations shall be construed to abrogate or supersede any other Federal laws or any State or local laws or regulations applicable to any area in which the protected property is situated.
The information collection and reporting requirements in this part were approved by the Office of Management and Budget under control number 1024-0037.
Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 (16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L. 59-209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).
(a) The regulations in this part implement provisions of the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm) by establishing the uniform definitions, standards, and procedures to be followed by all Federal land managers in providing protection for archaeological resources, located on public lands and Indian lands of the United States. These regulations enable Federal land managers to protect archaeological resources, taking into consideration provisions of the American Indian Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996), through permits authorizing excavation and/or removal of archaeological resources, through civil penalties for unauthorized excavation and/or removal, through provisions for the preservation of archaeological resource collections and data, and through provisions for ensuring confidentiality of information about archaeological resources when disclosure would threaten the archaeological resources.
(b) The regulations in this part do not impose any new restrictions on activities permitted under other laws, authorities, and regulations relating to mining, mineral leasing, reclamation,
(a) The regulations in this part are promulgated pursuant to section 10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ii), which requires that the Secretaries of the Interior, Agriculture and Defense and the Chairman of the Board of the Tennessee Valley Authority jointly develop uniform rules and regulations for carrying out the purposes of the Act.
(b) In addition to the regulations in this part, section 10(b) of the Act (16 U.S.C. 470ii) provides that each Federal land manager shall promulgate such rules and regulations, consistent with the uniform rules and regulations in this part, as may be necessary for carrying out the purposes of the Act.
As used for purposes of this part:
(a)
(1)
(2)
(3) The followiing classes of material remains (and illustrative examples), if they are at least 100 years of age, are of archaeological interest and shall be considered archaeological resources unless determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this section:
(i) Surface or subsurface structures, shelters, facilities, or features (including, but not limited to, domestic structures, storage structures, cooking structures, ceremonial structures, artificial mounds, earthworks, fortifications, canals, reservoirs, horticultural/agricultural gardens or fields, bedrock mortars or grinding surfaces, rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, burial pits or graves, hearths, kilns, post molds, wall trenches, middens);
(ii) Surface or subsurface artifact concentrations or scatters;
(iii) Whole or fragmentary tools, implements, containers, weapons and weapon projectiles, clothing, and ornaments (including, but not limited to, pottery and other ceramics, cordage, basketry and other weaving, bottles and other glassware, bone, ivory, shell, metal, wood, hide, feathers, pigments, and flaked, ground, or pecked stone);
(iv) By-products, waste products, or debris resulting from manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to, vegetal and animal remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth, mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios and other works of artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of the above material remains;
(ix) All portions of shipwrecks (including, but not limited to, armaments, apparel, tackle, cargo);
(x) Any portion or piece of any of the foregoing.
(4) The following material remains shall not be considered of archaeological interest, and shall not be considered to be archaeological resources for purposes of the Act and this part, unless found in a direct physical relationship with archaeological resources as defined in this section:
(i) Paleontological remains;
(ii) Coins, bullets, and unworked minerals and rocks.
(5) The Federal land manager may determine that certain material remains, in specified areas under the Federal land manager's jurisdiction, and under specified circumstances, are not or are no longer of archaeological interest and are not to be considered
(6) For the disposition following lawful removal or excavations of Native American human remains and “cultural items”, as defined by the Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred to NAGPRA and its implementing regulations.
(b)
(c)
(1) With respect to any public lands, the secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands, including persons to whom such management authority has been officially delegated;
(2) In the case of Indian lands, or any public lands with respect to which no department, agency or instrumentality has primary management authority, such term means the Secretary of the Interior;
(3) The Secretary of the Interior, when the head of any other agency or instrumentality has, pursuant to section 3(2) of the Act and with the consent of the Secretary of the Interior, delegated to the Secretary of the Interior the responsibilities (in whole or in part) in this part.
(d)
(1) Lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or the national forest system; and
(2) All other lands the fee title to which is held by the United States, except lands on the Outer Continental Shelf, lands under the jurisdiction of the Smithsonian Institution, and Indian lands.
(e)
(f)
(1) Any tribal entity which is included in the annual list of recognized tribes published in the
(2) Any other tribal entity acknowledged by the Secretary of the Interior pursuant to 25 CFR part 54 since the most recent publication of the annual list; and
(3) Any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), and any Alaska Native village or tribe which is recognized by the Secretary of the Interior as eligible for services provided by the Bureau of Indian Affairs.
(g)
(h)
(i)
(a) Under section 6(a) of the Act, no person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological
(b) No person may sell, purchase, exchange, transport, or receive any archaeological resource, if such resource was excavated or removed in violation of:
(1) The prohibitions contained in paragraph (a) of this section; or
(2) Any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.
(c) Under section (d) of the Act, any person who knowingly violates or counsels, procures, solicits, or employs any other person to violate any prohibition contained in section 6 (a), (b), or (c) of the Act will, upon conviction, be fined not more than $10,000.00 or imprisoned not more than one year, or both: provided, however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500.00, such person will be fined not more than $20,000.00 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person will be fined not more than $100,000.00, or imprisoned not more than five years, or both.
(a) Any person proposing to excavate and/or remove archaeological resources from public lands or Indian lands, and to carry out activities associated with such excavation and/or removal, shall apply to the Federal land manager for a permit for the proposed work, and shall not begin the proposed work until a permit has been issued. The Federal land manager may issue a permit to any qualified person, subject to appropriate terms and conditions, provided that the person applying for a permit meets conditions in § 229.8(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use, when those activities are exclusively for purposes other than the excavation and/or removal of archaeological resources, even though those activities might incidentally result in the disturbance of archaeological resources. General earth-moving excavation conducted under a permit or other authorization shall not be construed to mean excavation and/or removal as used in this part. This exception does not, however, affect the Federal land manager's responsibility to comply with other authorities which protect archaeological resources prior to approving permits, leases, licenses, or entitlements for use; any excavation and/or removal of archaeological resources required for compliance with those authorities shall be conducted in accordance with the permit requirements of this part.
(2) No permit shall be required under this part for any person collecting for private purposes any rock, coin, bullet, or mineral which is not an archaeological resource as defined in this part, provided that such collecting does not result in disturbance of any archaelogical resource.
(3) No permit shall be required under this part or under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or removal by any Indian tribe or member thereof of any archaeological resource located on Indian lands of such Indian tribe, except that in the absence of tribal law regulating the excavation or removal or archaeological resources on Indian lands, an individual tribal member shall be required to obtain a permit under this part;
(4) No permit shall be required under this part for any person to carry out any archaeological activity authorized by a permit issued under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the enactment of the Archaeological Resources Protection Act of 1979. Such permit shall remain in effect according to its terms and conditions until expiration.
(5) No permit shall be required under section 3 of the Act of June 8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit is issued under this part.
(c) Persons carrying out official agency duties under the Federal land manager's direction, associated with the management of archaeological resources, need not follow the permit application procedures of § 229.6. However, the Federal land manager shall insure that provisions of § 229.8 and § 229.9 have been met by other documented means, and that any official duties which might result in harm to or destruction of any Indian tribal religious or cultural site, as determined by the Federal land manager, have been the subject of consideration under § 229.7.
(d) Upon the written request of the Governor of any State, on behalf of the State or its educational institutions, the Federal land manager shall issue a permit, subject to the provisions of §§ 229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10, 229.12, and 229.13(a) to such Governor or to such designee as the Governor deems qualified to carry out the intent of the Act, for purposes of conducting archaeological research, excavating and/or removing archaeological resources, and safeguarding and preserving any materials and data collected in a university, museum, or other scientific or educational institution approved by the Federal land manager.
(e) Under other statutory, regulatory, or administrative authorities governing the use of public lands and Indian lands, authorizations may be required for activities which do not require a permit under this part. Any person wishing to conduct on public lands or Indian lands any activities related to but believed to fall outside the scope of this part should consult with the Federal land manager, for the purpose of determining whether any authorization is required, prior to beginning such activities.
(a) Any person may apply to the appropriate Federal land manager for a permit to excavate and/or remove archaeological resources from public lands or Indian lands and to carry out activities associated with such excavation and/or removal.
(b) Each application for a permit shall include:
(1) The nature and extent of the work proposed, including how and why it is proposed to be conducted, proposed time of performance, locational maps, and proposed outlet for public written dissemination of the results.
(2) The name and address of the individual(s) proposed to be responsible for conducting the work, institutional affiliation, if any, and evidence of education, training, and experience in accord with the minimal qualifications listed in § 229.8(a).
(3) The name and address of the individual(s), if different from the individual(s) named in paragraph (b)(2) of this section, proposed to be responsible for carrying out the terms and conditions of the permit.
(4) Evidence of the applicant's ability to initiate, conduct, and complete the proposed work, including evidence of logistical support and laboratory facilities.
(5) Where the application is for the excavation and/or removal of archaeological resources on public lands, the names of the university, museum, or other scientific or educational institution in which the applicant proposes to store all collections, and copies of records, data, photographs, and other documents derived from the proposed work. Applicants shall submit written certification, signed by an authorized official of the institution, of willingness to assume curatorial responsibility for the collections, records, data, photographs and other documents and to safeguard and preserve these materials as property of the United States.
(6) Where the application is for the excavation and/or removal of archaeological resources on Indian lands, the name of the university, museum, or other scientific or educational institution in which the applicant proposes to store copies of records, data, photographs, and other documents derived from the proposed work, and all collections in the event the Indian owners do not wish to take custody or otherwise dispose of the archaeological resources. Applicants shall submit written certification, signed by an authorized official of the institution, or willingness to assume curatorial responsibility for the collections, if applicable, and/or the records, data, photographs, and other
(c) The Federal land manager may require additional information, pertinent to land management responsibilities, to be included in the application for permit and shall so inform the applicant.
(d)
(a) If the issuance of a permit under this part may result in harm to, or destruction of, any Indian tribal religious or cultural site on public lands, as determined by the Federal land manager, at least 30 days before issuing such a permit the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be sent to the chief executive officer or other designated official of the tribe. Indian tribes are encouraged to designate a tribal official to be the focal point for any notification and discussion between the tribe and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native American group that is known by the Federal land manager to consider sites potentially affected as being of religious or cultural importance.
(3) Upon request during the 30-day period, the Federal land manager may meet with official representatives of any Indian tribe or group to discuss their interests, including ways to avoid or mitigate potential harm or destruction such as excluding sites from the permit area. Any mitigation measures which are adopted shall be incorporated into the terms and conditions of the permit under § 229.9.
(4) When the Federal land manager detemines that a permit applied for under this part must be issued immediately because of an imminent threat of loss or destruction of an archaeological resource, the Federal land manager shall so notify the appropriate tribe.
(b)(1) In order to identify sites of religious or cultural importance, the Federal land manager shall seek to identify all Indian tribes having aboriginal or historic ties to the lands under the Federal land manager's jurisdiction and seek to determine, from the chief executive officer or other designated official of any such tribe, the location and nature of specific sites of religious or cultural importance so that such information may be on file for land management purposes. Information on sites eligible for or included in the National Register of Historic Places may be withheld from public disclosure pursuant to section 304 of the Act of October 15, 1966, as amended (16 U.S.C. 470w-3).
(2) If the Federal land manager becomes aware of a Native American group that is not an Indian tribe as defined in this part but has aboriginal or historic ties to public lands under the Federal land manager's jurisdiction, the Federal land manager may seek to communicate with official representatives of that group to obtain information on sites they may consider to be of religious or cultural importance.
(3) The Federal land manager may enter into agreement with any Indian tribe or other Native American group for determining locations for which such tribe or group wishes to receive notice under this section.
(4) The Federal land manager should also seek to determine, in consultation with official representatives of Indian tribes or other Native American groups, what circumstances should be the subject of special notification to the tribe or group after a permit has been issued. Circumstances calling for notification might include the discovery of human remains. When circumstances for special notification have been determined by the Federal land manager, the Federal land manager will include a requirement in the terms and conditions of permits, under § 229.9(c), for permittees to notify the Federal land manger immediately upon the occurrence of such circumstances. Following the permittee's notification, the Federal land manager will notify and consult with the tribe or group as appropriate. In cases involving Native American human remains and other “cultural items”, as defined by NAGPRA, the Federal land manager is referred to NAGPRA and its implementing regulations.
(a) The Federal land manager may issue a permit, for a specified period of time appropriate to the work to be conducted, upon determining that:
(1) The applicant is appropriately qualified, as evidenced by training, education, and/or experience, and possesses demonstrable competence in archaeological theory and methods, and in collecting, handling, analyzing, evaluating, and reporting archaeological data, relative to the type and scope of the work proposed, and also meets the following minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or equivalent training and experience;
(ii) The demonstrated ability to plan, equip, staff, organize, and supervise activity of the type and scope proposed;
(iii) The demonstrated ability to carry research to completion, as evidenced by timely completion of theses, research reports, or similar documents;
(iv) Completion of at least 16 months of professional experience and/or specialized training in archaeological field, laboratory, or library research, administration, or management, including at least 4 months experience and/or specialized training in the kind of activity the individual proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology should have had at least one year of experience in research concerning archaeological resources of the historic period. Applicants proposing to engage in prehistoric archaeology should have had at least one year of experience in research concerning archaeological resources of the prehistoric period.
(2) The proposed work is to be undertaken for the purpose of furthering archaeological knowledge in the public interest, which may include but need not be limited to, scientific or scholarly research, and preservation of archaeological data;
(3) The proposed work, including time, scope, location, and purpose, is not inconsistent with any management plan or established policy, objectives, or requirements applicable to the management of the public lands concerned;
(4) Where the proposed work consists of archaelogical survey and/or data recovery undertaken in accordance with other approved uses of the public lands or Indian lands, and the proposed work has been agreed to in writing by the Federal land manager pursuant to section 106 of the National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a) (2) and (3) shall be deemed satisfied by the prior approval.
(5) Written consent has been obtained, for work proposed on Indian lands, from the Indian landowner and the Indian tribe having jurisdiction over such lands;
(6) Evidence is submitted to the Federal land manager that any university, museum, or other scientific or educational institution proposed in the application as the repository possesses adequate curatorial capability for safeguarding and preserving the archaeological resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after the date the final report is submitted to the Federal land manager, the following
(i) All artifacts, samples, collections, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit where the permit is for the excavation and/or removal of archaeological resources from public lands.
(ii) All artifacts, samples and collections resulting from work under the requested permit for which the custody or disposition is not undertaken by the Indian owners, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit, where the permit is for the excavation and/or removal of archaeological resources from Indian lands.
(b) When the area of the proposed work would cross jurisdictional boundaries, so that permit applications must be submitted to more than one Federal land managers, the Federal land manager shall coordinate the review and evaluation of applications and the issuance of permits.
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the permit, including the time, duration, scope, location, and purpose of the work;
(2) The name of the individual(s) responsible for conducting the work and, if different, the name of the individual(s) responsible for carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or educational insitutions in which any collected materials and data shall be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions as deemed necessary, consistent with this part, to protect public safety and other values and/or resources, to secure work areas, to safeguard other legitimate land uses, and to limit activities incidental to work authorized under a permit.
(c) The Federal land manager shall include in permits issued for archaeological work on Indian lands such terms and conditions as may be requested by the Indian landowner and the Indian tribe having jurisdiction over the lands, and for archaeological work on public lands shall include such terms and conditions as may have been developed pursuant to § 229.7.
(d) Initiation of work or other activities under the authority of a permit signifies the permittee's acceptance of the terms and conditions of the permit.
(e) The permittee shall not be released from requirements of a permit until all outstanding obligations have been satisfied, whether or not the term of the permit has expired.
(f) The permittee may request that the Federal land manager extend or modify a permit.
(g) The permittee's performance under any permit issued for a period greater than 1 year shall be subject to review by the Federal land manager, at least annually.
(a)
(2) The Federal land manager may revoke a permit upon assessment of a civil penalty under § 229.15 upon the permittee's conviction under section 6 of the Act, or upon determining that the permittee has failed after notice under this section to correct the situation which led to suspension of the permit.
(b)
Any affected person may appeal permit issuance, denial of permit issuance, suspension, revocation, and terms and conditions of a permit through existing administrative appeal procedures, or through procedures which may be established by the Federal land manager pursuant to section 10(b) of the Act and this part.
Issuance of a permit in accordance with the Act and this part does not constitute an undertaking requiring compliance with section 106 of the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance of such a permit does not excuse the Federal land manager from compliance with section 106 where otherwise required.
(a) Archaeological resources excavated or removed from the public lands remain the property of the United States.
(b) Archaeological resources excavated or removed from Indian lands remain the property of the Indian or Indian tribe having rights of ownership over such resources.
(c) The Secretary of the Interior may promulgate regulations providing for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, for the ultimate disposition of archaeological resources, and for standards by which archaeological resources shall be preserved and maintained, when such resources have been excavated or removed from public lands and Indian lands.
(d) In the absence of regulations referenced in paragraph (c) of this section, the Federal land manager may provide for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, when such resources have been excavated or removed from public lands under the authority of a permit issued by the Federal land manager.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, the Federal land manager will follow the procedures required by NAGPRA and its implementing regulations for determining the disposition of Native American human remains and other “cultural items”, as defined by NAGPRA, that have been excavated, removed, or discovered on public lands.
(a)
(b)
(c)
(1) Reconstruction of the archaeological resource;
(2) Stabilization of the archaeological resource;
(3) Ground contour reconstruction and surface stabilization;
(4) Research necessary to carry out reconstruction or stabilization;
(5) Physical barriers or other protective devices, necessitated by the disturbance of the archaeological resource, to protect it from further disturbance;
(6) Examination and analysis of the archaeological resource including recording remaining archaeological information, where necessitated by disturbance, in order to salvage remaining values which cannot be otherwise conserved;
(7) Reinterment of human remains in accordance with religious custom and State, local, or tribal law, where appropriate, as determined by the Federal land manager.
(8) Preparation of reports relating to any of the above activities.
(a) The Federal land manager may assess a civil penalty against any person who has violated any prohibition contained in § 229.4 or who has violated any term or condition included in a permit issued in accordance with the Act and this part.
(b)
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of this part or to a permit issued pursuant to this part allegedly violated;
(3) The amount of penalty proposed to be assessed, including any initial proposal to mitigate or remit where appropriate, or a statement that notice of a proposed penalty amount will be served after the damages associated with the alleged violation have been ascertained;
(4) Notification of the right to file a petition for relief pursuant to paragraph (d) of this section, or to await the Federal land manager's notice of assessment, and to request a hearing in accordance with paragraph (g) of this section. The notice shall also inform the person of the right to seek judicial review of any final administrative decision assessing a civil penalty.
(c) The person served with a notice of violation shall have 45 calendar days from the date of its service (or the date of service of a proposed penalty amount, if later) in which to respond. During this time the person may:
(1) Seek informal discussions with the Federal land manager;
(2) File a petition for relief in accordance with paragraph (d) of this section;
(3) Take no action and await the Federal land manager's notice of assessment;
(4) Accept in writing or by payment the proposed penalty, or any mitigation or remission offered in the notice. Acceptance of the proposed penalty or mitigation or remission shall be deemed a waiver of the notice of assessment and of the right to request a hearing under paragraph (g) of this section.
(d)
(e)
(2) The Federal land manager shall take into consideration all available information, including information provided pursuant to paragraphs (c) and (d) of this section or furnished upon further request by the Federal land manager.
(3) If the facts warrant a conclusion that no violation has occurred, the Federal land manager shall so notify the person served with a notice of violation, and no penalty shall be assessed.
(4) Where the facts warrant a conclusion that a violation has occurred, the Federal land manager shall determine a penalty amount in accordance with § 229.16.
(f)
(1) The facts and conclusions from which it was determined that a violation did occur;
(2) The basis in § 229.16 for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and
(3) Notification of the right to request a hearing, including the procedures to be followed, and to seek judicial review of any final administrative decision assessing a civil penalty.
(g)
(2) Failure to deliver a written request for a hearing within 45 days of the date of service of the notice of assessment shall be deemed a waiver of the right to a hearing.
(3) Any hearing conducted pursuant to this section shall be held in accordance with 5 U.S.C. 554. In any such hearing, the amount of civil penalty assessed shall be determined in accordance with this part, and shall not be limited by the amount assessed by the Federal land manager under paragraph (f) of this section or any offer of mitigation or remission made by the Federal land manager.
(h)
(2) Where the person served with a notice of assessment has not filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the notice of assessment shall constitute the final administrative decision;
(3) Where the person served with a notice of assessment has filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the decision resulting from the hearing or any applicable administrative appeal therefrom shall constitute the final administrative decision.
(i)
(2) Upon failure to pay the penalty, the Federal land manager may request the Attorney General to institute a civil action to collect the penalty in a U.S. District Court for any district in
(j)
(a)
(2) Where the person being assessed a civil penalty has committed any previous violation of any prohibition in § 229.4 or of any term or condition included in a permit issued pursuant to this part, the maximum amount of the penalty shall be double the cost of restoration and repair plus double the archaeological or commercial value of archaeological resources destroyed or not recovered.
(3) Violations limited to the removal of arrowheads located on the surface of the ground shall not be subject to the penalties prescribed in this section.
(b)
(1) Determination of the penalty amount and/or a proposal to mitigate or remit the penalty may be based upon any of the following factors:
(i) Agreement by the person being assessed a civil penalty to return to the Federal land manager archaeological resources removed from public lands or Indian lands;
(ii) Agreement by the person being assessed a civil penalty to assist the Federal land manager in activity to preserve, restore, or otherwise contribute to the protection and study of archaeological resources on public lands or Indian lands;
(iii) Agreement by the person being assessed a civil penalty to provide information which will assist in the detection, prevention, or prosecution of violations of the Act or this part;
(iv) Demonstration of hardship or inability to pay, provided that this factor shall only be considered when the person being assessed a civil penalty has not been found to have previously violated the regulations in this part;
(v) Determination that the person being assessed a civil penalty did not willfully commit the violation;
(vi) Determination that the proposed penalty would constitute excessive punishment under the circumstances;
(vii) Determination of other mitigating circumstances appropriate to consideration in reaching a fair and expeditious assessment.
(2) When the penalty is for a violation on Indian lands, the Federal land manager shall consult with and consider the interests of the Indian landowner and the Indian tribe having jurisdiction over the Indian lands prior to proposing to mitigate or remit the penalty.
(3) When the penalty is for a violation which may have had an effect on a known Indian tribal religious or cultural site on public lands, the Federal land manager should consult with and consider the interests of the affected tribe(s) prior to proposing to mitigate or remit the penalty.
(a) Section 6 of the Act contains criminal prohibitions and provisions for criminal penalties. Section 8(b) of the Act provides that archaeological resources, vehicles, or equipment involved in a violation may be subject to forfeiture.
(b) Section 8(a) of the Act provides for rewards to be made to persons who furnish information which leads to conviction for a criminal violation or to assessment of a civil penalty. The Federal lald manager may certify to the
(c) In cases involving Indian lands, all civil penalty monies and any item forfeited under the provisions of this section shall be transferred to the appropriate Indian or Indian tribe.
(a) The Federal land manager shall not make available to the public, under subchapter II of chapter 5 of title 5 of the U.S. Code or any other provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions:
(1) The Federal land manager may make information available, provided that the disclosure will further the purposes of the Act and this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), without risking harm to the archaeological resource or to the site in which it is located.
(2) The Federal land manager shall make information available, when the Governor of any State has submitted to the Federal land manager a written request for information, concerning the archaeological resources within the requesting Governor's State, provided that the request includes:
(i) The specific archaeological resource or area about which information is sought;
(ii) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the confidentiality of the information.
(a) Each Federal land manager, when requested by the Secretary of the Interior, will submit such information as is necessary to enable the Secretary to comply with section 13 of the Act and comprehensively report on activities carried out under provisions of the Act.
(b) The Secretary of the Interior will include in the annual comprehensive report, submitted to the Committee on Interior and Insular Affairs of the United States House of Representatives and to the Committee on Energy and Natural Resources of the United States Senate under section 13 of the Act, information on public awareness programs submitted by each Federal land manager under § 229.20(b). Such submittal will fulfill the Federal land manager's responsibility under section 10(c) of the Act to report on public awareness programs.
(c) The comprehensive report by the Secretary of the Interior also will include information on the activities carried out under section 14 of the Act. Each Federal land manager, when requested by the Secretary, will submit any available information on surveys and schedules and suspected violations in order to enable the Secretary to summarize in the comprehensive report actions taken pursuant to section 14 of the Act.
(a) Each Federal land manager will establish a program to increase public awareness of the need to protect important archaeological resources located on public and Indian lands. Educational activities required by section 10(c) of the Act should be incorporated into other current agency public education and interpretation programs where appropriate.
(b) Each Federal land manager annually will submit to the Secretary of the Interior the relevant information on public awareness activities required by section 10(c) of the Act for inclusion in the comprehensive report on activities required by section 13 of the Act.
(a) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority will develop plans for surveying lands under each
(b) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will prepare schedules for surveying lands under each agency's control that are likely to contain the most scientifically valuable archaeological resources pursuant to section 14(b) of the Act. Such schedules will be developed based on objectives and information identified in survey plans described in paragraph (a) of this section and implemented systematically to cover areas where the most scientifically valuable archaeological resources are likely to exist.
(c) Guidance for the activities undertaken as part of paragraphs (a) through (b) of this section is provided by the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation.
(d) Other Federal land managing agencies are encouraged to develop plans for surveying lands under their jurisdictions and prepare schedules for surveying to improve protection and management of archaeological resources.
(e) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will develop a system for documenting and reporting suspected violations of the various provisions of the Act. This system will reference a set of procedures for use by officers, employees, or agents of Federal agencies to assist them in recognizing violations, documenting relevant evidence, and reporting assembled information to the appropriate authorities. Methods employed to document and report such violations should be compatible with existing agency reporting systems for documenting violations of other appropriate Federal statutes and regulations. Summary information to be included in the Secretary's comprehensive report will be based upon the system developed by each Federal land manager for documenting suspected violations.
10 U.S.C. 136.
This part:
(a) Updates policies and responsibilities for financial institutions that serve Department of Defense (DoD) personnel on DoD installations worldwide. Associated procedures are contained in 32 CFR part 231.
(b) Prescribes consistent arrangements for the provision of services by financial institutions among the DoD Components, and requires that financial institutions operating on DoD installations provide, and are provided, support consistent with the policies stated in this part.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff (JCS), the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter collectively referred to as “the DoD Components”) and all nonappropriated fund instrumentalities including the Military Exchange Services and morale, welfare and recreation (MWR) activities.
Terms used in this part are set forth in 32 CFR part 231.
(a) The following pertains to financial institutions on DoD installations:
(1) Except where they already may exist as of May 1, 2000, no more than one banking institution and one credit union shall be permitted to operate on a DoD installation.
(2) Upon the request of an installation commander and with the approval of the Secretary of the Military Department concerned (or designee), duly chartered financial institutions may be authorized to provide financial services on DoD installations to enhance the morale and welfare of DoD personnel and facilitate the administration of public and quasi-public monies. Arrangement for the provision of such services shall be in accordance with this part and the applicable provisions of 32 CFR part 231.
(3) Financial institutions or branches thereof, shall be established on DoD installations only after approval by the Secretary of the Military Department concerned (or designee) and the appropriate regulatory agency.
(i) Except in limited situations overseas (see paragraph (b)(2)(iii) of this section), only banking institutions insured by the Federal Deposit Insurance Corporation and credit unions insured by the National Credit Union Share Insurance Fund or by another insurance organization specifically qualified by the Secretary of the Treasury, shall operate on DoD installations. These financial institutions may either be State or federally chartered; however, U.S. credit unions operated overseas shall be federally insured.
(ii) Military banking facilities (MBFs) shall be established on DoD installations only when a demonstrated and justified need cannot be met through other means. An MBF is a financial institution that is established by the Department of the Treasury under statutory authority that is separate from State or Federal laws that govern commercial banking. Section 265 of title 12, United States Code contains the provisions for the Department of the Treasury to establish MBFs. Normally, MBFs shall be authorized only at overseas locations. This form of financial institution may be considered for use at domestic DoD installations only when the cognizant DoD Component has been unable to obtain, through normal means, financial services from a State or federally chartered financial institution authorized to operate in the State in which the installation is located. In times of mobilization, it may become necessary to designate additional MBFs as an emergency measure. The Director, Defense Finance and Accounting Service (DFAS) may recommend the designation of MBFs to the Department of the Treasury.
(iii) Retail banking operations shall not be performed by any DoD Component. Solicitations for such services shall be issued, or proposals accepted, only in accordance with the policies identified in this part. The DoD Components shall rely on commercially available sources in accordance with DoD Directive 4100.15.
(4) Installation commanders shall not seek the provision of financial services from any entity other than the on-base banking office or credit union. The Director, DFAS, with the concurrence of the Under Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to this policy.
(5) Financial institutions authorized to locate on DoD installations shall be provided logistic support as set forth in 32 CFR part 231.
(6) Military disbursing offices, nonappropriated fund instrumentalities (including MWR activities and the Military Exchange Services) and other DoD Component activities requiring financial services shall use on-base financial institutions to the maximum extent feasible.
(7) The Department encourages the delivery of retail financial services on DoD installations via nationally networked automated teller machines (ATMs).
(i) ATMs are considered electronic banking services and, as such, shall be provided only by financial institutions that are chartered and insured in accordance with the provisions of paragraph (a)(3) of this section.
(ii) Proposals by the installation commander to install ATMs from other than on-base financial institutions
(8) Expansion of financial services (to include in-store banking) requiring the outgrant of additional space or logistical support shall be approved by the installation commander. Any DoD activity or financial institution seeking to expand financial services shall coordinate such requests with the installation bank/credit union liaison officer prior to the commander's consideration.
(9) The installation commander shall ensure, to the maximum extent feasible, that all financial institutions operating on that installation are given the opportunity to participate in pilot programs to demonstrate new financial-related technology or establish new business lines (e.g., in-store banking) where a determination has been made by the respective DoD Component that the offering of such services is warranted.
(10) The installation commander shall approve requests for termination of financial services that are substantiated by sufficient evidence and forwarded to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate such requests with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency.
(11) Additional guidance pertaining to financial services is set forth in 32 CFR part 231.
(b) The following additional provisions pertain only to financial institutions on overseas DoD installations:
(1) The extension of services by MBFs and credit unions overseas shall be consistent with the policies stated in this part and with the applicable status of forces agreements, other intergovernmental agreements, or host-country law.
(2) Financial services at overseas DoD installations may be provided by:
(i) Domestic on-base credit unions operating overseas under a geographic franchise and, where applicable, as authorized by the pertinent status of forces agreements, other intergovernmental agreements, or host-country law.
(ii) MBFs operated under and authorized by the pertinent status of forces agreement, other intergovernmental agreement, or host-country law.
(iii) Domestic and foreign banks located on overseas DoD installations that are:
(A) Chartered to provide financial services in that country, and
(B) A party to a formal operating agreement with the installation commander to provide such services, and
(C) Identified, where applicable, in the status of forces agreements, other intergovernmental agreements, or host-country law.
(3) In countries served by MBFs operated under contract, nonappropriated fund instrumentalities and on-base credit unions that desire, and are authorized, to provide accommodation exchange services shall acquire foreign currency from the MBF at the MBF accommodation rate; and shall sell such foreign currency at a rate of exchange that is no more favorable to the customer than the customer rate available at the MBF.
(a) The Under Secretary of Defense (Comptroller) (USD(C)) shall develop policies governing establishment, operation, and termination of financial institutions on DoD installations and take final action on requests for exceptions to this part.
(b) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(c) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) shall advise the USD(C) on all aspects of on-base financial institution services that affect the morale and welfare of DoD personnel.
(d) DoD Component responsibilities pertaining to this part are set forth in 32 CFR part 231.
10 U.S.C. 136.
(a)
(b)
The policy pertaining to financial institutions operating on DoD installations is contained in DoD Directive 1000.11 (32 CFR part 230) and in § 231.4.
(a) The Under Secretary of Defense (Comptroller) (USD(C)) shall develop and monitor policies governing establishment, operation, and termination of financial institutions on DoD installations and take final action on requests for exceptions to this part.
(b) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(c) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) shall advise the USD(C) on all aspects of on-base financial institution services that affect the morale and welfare of DoD personnel.
(d) The Director, Defense Finance and Accounting Service (DFAS) shall:
(1) Develop procedures governing banks and credit unions on DoD installations for promulgation in this part.
(2) For domestic DoD installations, coordinate with the Secretaries of the Military Departments (or designees) on requests from subordinate installation commanders to establish or terminate banking offices or on-base credit
(3) In coordination with affected DoD Components, authorize the specific types of banking services that will be provided by overseas military banking facilities (MBFs) and specify the charges or fees, or the basis for these, to be levied on users of these services.
(4) Coordinate with the Fiscal Assistant Secretary of the Treasury on the designation of domestic and overseas MBFs as depositaries and financial agents of the U.S. Government.
(5) Designate a technical representative to provide policy direction for the procuring and administrative contracting officer(s) responsible under the Federal Acquisition Regulation (FAR) for acquiring banking services required at overseas DoD installations.
(6) Serve as principal liaison with banking institutions having offices on overseas DoD installations. In this capacity, monitor MBF managerial and operational policies, procedures, and operating results and take action as appropriate.
(7) As necessary, assist in the formation of government-to-government agreements for the provision of banking services on overseas DoD installations, in accordance with DoD Directive 5530.3
(8) Provide procedural guidance to DoD Components, as required.
(9) Maintain liaison with financial institution trade associations, leagues, and councils in order to interpret DoD policies toward respective memberships and aid in resolving mutual concerns affecting the provision of financial services.
(10) Coordinate with the USD(P&R), through the USD(C), on all aspects of morale and welfare and with the USD(AT&L), through the USD(C), on all aspects of logistic support for on-base financial institutions.
(11) Monitor industry trends, conduct studies and surveys, and facilitate appropriate dialogues on banking and credit union arrangements and cost-benefit relationships, coordinate as necessary with DoD Components, financial institutions, and trade associations as appropriate.
(12) Maintain liaison, as appropriate, with financial institution regulatory agencies at federal and state levels.
(13) Ensure that recommendations of the Combatant Commands are considered before processing requests for overseas banking and credit union service or related actions.
(14) Maintain a listing of all geographic franchises assigned to credit unions serving DoD overseas installations.
(e) Secretaries of the Military Departments (or designees) shall:
(1) For domestic DoD installations, take action on requests from subordinate installation commanders to establish or terminate financial institution operations. For overseas DoD installations, take action in accordance with guidance contained herein on requests from subordinate installation commanders to establish or discontinue the provision of financial services from the DoD contracted banking institution, or to establish or terminate other financial institutions located on DoD installations.
(2) Provide for liaison to those financial institutions that operate banking offices on respective domestic DoD installations.
(3) Oversee the use of banking offices and credit unions on respective DoD installations within the guidance contained herein and in DoD Directive 1000.11 (32 CFR part 230).
(4) Evaluate the services provided and related charges and fees by respective on-base banking offices and credit unions to ensure that they fulfill the requirements upon which the establishment and retention of those services were justified.
(5) Monitor practices and procedures of respective banking offices and credit unions to ensure that the welfare and interests of DoD personnel as consumers are protected.
(6) Assist on-base banking offices and credit unions to develop and expand necessary services for DoD personnel consistent with this part.
(7) Encourage the conversion of existing domestic MBFs on respective installations to independent or branch bank status where feasible.
(8) Provide logistical support to overseas MBFs under terms and conditions identified in this part as well as with the applicable terms of DoD contracts with financial institutions responsible for the operations of overseas MBFs.
(9) Refer matters requiring policy decisions or proposed changes to this part or DoD Directive 1000.11 (32 CFR part 230) to the USD(C) through the Director, DFAS.
(10) Monitor and encourage the use of financial institutions on DoD installations to accomplish the following ends.
(i) Facilitate convenient, effective management of the appropriated, nonappropriated, and private funds of on-base activities.
(ii) Assist DoD personnel in managing their personal finances through participation in programs such as direct deposit and regular savings plans, including U.S. savings bonds. The use of on-base financial institutions shall be on a voluntary basis and should not be urged in preference to, or to the exclusion of, other financial institutions.
(11) Encourage and assist duly chartered financial institutions on domestic DoD installations to provide complete financial services to include, without charge, basic financial education and counseling services. Financial education and counseling services refer to basic personal and family finances such as budgeting, checkbook balancing and account reconciliation, benefits of savings, prudent use of credit, how to start a savings program, how to shop and apply for credit, and the consequences of excessive credit.
(12) Establish liaison, as appropriate, with federal and state regulatory agencies and financial institution trade associations, leagues, and councils.
(13) Make military locator services available to on-base financial institutions in accordance with the Privacy Act guidelines in subpart B of this part.
(14) Permit DoD personnel to serve on volunteer boards or committees of on-base financial institutions, without compensation, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 5500.7.
(15) Allow DoD personnel to attend conferences and meetings that bring together representatives of on-base financial institutions, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 1327.5,
(f) The Commanders of the Combatant Commands (or designees) shall:
(1) Ensure the appropriate coordination of the following types of requests affecting financial institutions overseas.
(i) Establish financial institutions in countries not presently served. Such requests will include a statement that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy and that the host country will permit the operation.
(ii) Eliminate any or all financial institutions on DoD installations within a foreign country. Such requests will include a statement that the U.S. Chief of Diplomatic Mission has been informed and that appropriate arrangements to coordinate local termination announcements and procedures have been made with the U.S. Embassy.
(2) Monitor and coordinate military banking operations within the command area. Personnel assigned to security assistance positions will not perform this function without the prior approval of the Director, Defense Security Cooperation Agency (DSCA).
(g) The Commanders of Major Commands and subordinate installation commanders shall:
(1) Monitor the banking and credit union program within their commands.
(2) Coordinate requests to establish or construct bank and credit union offices or terminate logistical support as specified in this part to banks and
(3) Assign, as appropriate, responsibility for paragraphs (g)(1) and (g)(2) of this section, to comptroller or resource management personnel.
(4) Cooperate with financial institution associations, leagues, and councils.
(5) Recognize the right of all DoD personnel to organize and join credit unions and promote the credit union movement in DoD worldwide.
(6) Permit DoD personnel to serve on volunteer boards or committees of on-base financial institutions, without compensation, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 5500.7.
(7) Allow DoD personnel to attend conferences and meetings that bring together representatives of on-base financial institutions, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 1327.5, Subchapter 630 of the DoD Civilian Personnel Manual (DoD 1400.25-M), and Comptroller General Decision B-212457.
(8) Seek the provision of financial services only from existing on-base financial institutions, proposing alternatives only where on-base financial institutions fail to respond favorably to a valid requirement.
(a)
(1) A written agreement shall be established outlining the security procedures that the financial institution will follow and the role that installation security authorities will play with regard to alarms, movement of cash, and procedures to be followed in response to criminal activity (e.g., armed robbery).
(2) Cash and other assets in on-base banking offices and credit unions are the property of those financial institutions. Maintenance of alarms and use of armored cars is the sole responsibility of the on-base financial institution. The on-base financial institution is also solely responsible for the guarding or escorting of cash unless the installation commander determines that providing such services is desirable or necessary.
(b)
(1) When appropriate, installations will process financial institution requests for central locator service to obtain military addresses of active duty personnel. This service will be used to locate persons for settling accounts, and recovering funds on checks that did not clear or loans that are delinquent or in default (see DoD Directive 1344.9
(2) The DoD Components shall assist financial institutions to locate DoD personnel whose whereabouts cannot be locally determined. The request should be on the financial institution's letterhead, include the Service member's name and social security number, and cite the cognizant Military Service regulation that authorizes the use of locator services. If a financial institution needs immediate service, the cognizant institution official should contact the bank or credit union liaison officer.
(i) For addresses of Department of the Army active, retired, separated and civilian personnel, financial institutions may telephone (703) 325-3732 or
(ii) For addresses of Navy active, retired, separated and civilian personnel, financial institutions may telephone (901) 874-3388 or write to: Navy Personnel Command, PERS-312F, 5720 Integrity Drive, Millington, TN 38055-3120.
(iii) For addresses of Department of the Air Force active, retired, separated and civilian personnel, financial institutions may telephone (210) 565-2660 or write to: Air Force Personnel Center, MSIMDL Suite 50, 550 C Street West, Randolph AFB, TX 78150-4752.
(iv) For addresses of United States Marine Corps active, retired, separated and civilian personnel, financial institutions may telephone (703) 784-3942 or write to:
(c)
(1) An on-base financial institution may use the unofficial section of that installation's daily bulletin, provided space is available, to inform DoD personnel of financial services and announce seminars, consumer information programs, and other matters of broad general interest. Announcements of free financial counseling services are encouraged. Such media may not be used for competitive or comparative advertising of, for example, specific interest rates on savings or loans.
(2) An on-base financial institution may use installation bulletin boards, newsletters or web pages to post general information that complements the installation's financial counseling programs and promotes financial responsibility and thrift. Message center services may distribute a reasonable number of announcements to units for use on bulletin boards so long as this does not impose an unreasonable workload.
(3) An on-base financial institution may include an insert in the installation's newcomers package (or equivalent). This insert should benefit newcomers by identifying the financial services that are available on the installation.
(4) DoD Directive 5120.20
(5) Off-base financial institutions are not permitted to distribute competitive literature or forms on the installation. These institutions, however, may use commercial advertising, mailings or telecommunications to reach their customers.
(6) Advertising in government-funded (official) installation papers is not permitted with the exception of insert advertising in the
(7) Installation activities, including Military Exchange Services and concessionaire outlets, shall not permit the distribution of literature from off-base financial institutions if there is an on-base financial institution. This does not prevent the Military Exchange Services from distributing literature on affinity credit card services that those Military Exchange Services may acquire centrally through competitive solicitation.
(d)
(1) Financial institutions that propose to install ATMs on DoD installations shall bear the cost of ATM installation, maintenance and operation. The installation commander may enter into an agreement with the on-base financial institution wherein the installation may acquire and provide ATMs to on-base financial institutions under certain circumstances, such as when it
(2) ATM approval authority is as shown:
(i) The installation commander has approval authority when an on-base financial institution wishes to place an ATM on the installation. This approval should be reflected as an amendment to the operating agreement.
(ii) Where there is no on-base financial institution, follow the solicitation procedures to obtain financial services set forth in §§ 231.5(c) and 231.7(b).
(3) The availability of ATM service shall not preclude the later establishment of a banking office should conditions change on an installation.
(4) Proposals by an installation commander to install ATMs on domestic installations from other than on-base financial institutions, including the Military Exchange Services, morale, welfare and recreational activities and/or other nonappropriated fund instrumentalities, shall be considered only when:
(i) ATM service is unavailable or existing service is inadequate, and
(ii) The on-base financial institution(s) either declines to provide the service, fails to improve existing service so that it is adequate, or does not formally respond to the request for such service within 30 days of the date of the request. Any ATM service from other than on-base financial institutions is considered an exception to policy. The procedures to establish an on-base financial institution set forth in §§ 231.5(c) and 231.7(b) shall be followed when soliciting for such ATM services. Proposals offering shared-access ATMs (e.g., ATMs operated by two or more financial institutions where their accountholders are not assessed any or all fees applicable to nonaccountholders) shall receive preference.
(5) ATM service from foreign banking institutions may be authorized on overseas installations with or without MBFs operated under contract where the installation or community commander determines that a bonafide need exists to support local national hires. On installations with MBFs operated under contract, the MBFs shall be the primary source of the ATM service except when a determination has been made by the cognizant contract program office that providing the service is either not cost effective or precluded by pertinent status of forces agreements, other intergovernmental agreements or host-country law. In those instances where ATM service from foreign banking institutions is authorized and provided by other than the on-base financial institution, ATM connectivity shall be limited to host country networks and the ATMs shall dispense only local currency (no U.S. dollars). The operating agreement covering ATM service shall be negotiated by the installation or community commander and submitted for approval by the appropriate Combatant Commander (or designee) prior to its execution. A copy of the operating agreement will be forwarded through DoD Component channels to the DFAS.
(e)
(f)
(2) All staffing shall comply fully with applicable equal employment opportunity laws and with the spirit of DoD equal employment opportunity policies as set forth in DoD Directive 1440.1.
(3) DoD personnel, excluding military retirees and their dependents, may not serve as directors of domestic or foreign banking institutions operating banking offices on those DoD installations where they currently are assigned. This does not preclude a member of a Reserve Component, who has been serving as a director of a domestic or foreign banking institution operating a banking office on a DoD installation, from retaining his or her directorship if called to active duty.
(4) DoD personnel may not be detailed to duty with an on-base financial institution located on a DoD installation. Off-duty personnel, however, may be employed by an on-base financial institution subject to approval by the installation commander (or designee). Such employment must not interfere with the performance of the individual's official duties and responsibilities.
(g)
(h)
(2) DoD personnel who tender uncollectable checks, overdraw their accounts or fail to meet their financial obligations in a proper and timely manner damage their credit reputation and adversely affect the public image of all government personnel. For uniformed personnel, military financial counselors and legal advisors shall recommend workable repayment plans that avoid further endangering credit ratings and counsel affected personnel to protect their credit standing and career. Counselors shall ensure that such personnel are aware of the stigma associated with bankruptcy and difficulties in obtaining future credit at reasonable rates and terms and shall recommend its use only when no other alternative will alleviate the situation.
(i)
(i) Identification of services to be rendered and the conditions for service. Full financial services shall be provided where feasible. Agreements, however, may not restrict either entity's right to renegotiate services and fees.
(ii) Agreement by both parties that they will comply with this part and DoD Directive 1000.11 (32 CFR part 230).
(iii) Agreement by the on-base financial institution that it will furnish copies of its financial reports and other local publications on an “as needed” basis in response to a formal request from the installation commander (or designee).
(iv) Agreement that the on-base financial institution will indemnify and hold harmless the U.S. Government from (and against) any loss, expense, claim, or demand to which the U.S. Government may be subjected as a result of death, loss, destruction, or damage in conjunction with the use and occupancy of the premises caused in whole or in part by agents or employees of the on-base financial institution.
(v) Agreement that neither the Department of Defense nor its representatives shall be responsible or liable for the financial operation of the on-base financial institution or for any loss (including criminal losses), expense, or claim for damages arising from operations.
(vi) Agreement by the on-base financial institution (or any successor) that it will provide no less than 180 days advance written notice to the installation commander before ceasing operations.
(vii) Specification of the security services to be provided for guarding cash shipments, at times of unusual risk to the financial institution and to avoid excessive insurance costs charged to that institution.
(viii) Statement that the physical security for cash and negotiable items will be in a manner consistent with the requirements of the on-base financial institution's insurer. A copy of those requirements will be provided to the installation commander on request.
(ix) Statement that the financial institution, whenever possible, will accommodate local command requests for lectures and printed materials for consumer credit education programs. Officials invited to participate in such programs shall not use the occasion to promote the exclusive services of a particular financial institution.
(x) Agreement that the financial institution will reimburse the installation for the provision of logistical support (such as custodial, janitorial, and other services provided by the government) at rates set forth in the lease or agreement between the installation and the financial institution.
(xi) Statement that on-base financial institution operations shall be terminated, when required, under provisions specified in this part.
(2) Approved expansion of services will be documented as an amendment to the existing operating agreement between the installation commander and the on-base financial institution. The amendment to the operating agreement and any required lease (to include a change to an existing lease) shall be in place prior to the initiation of new financial services or offices.
(j)
(2) Financial services provided on DoD installations will be as uniform as possible for all personnel. As separately negotiated, or based on a fee schedule, custodians of nonappropriated funds shall compensate on-base financial institutions for services received. Compensation may be made with compensating balances or paying fees based on the services provided or a combination of these payment mechanisms. Fees shall not exceed the charge customary for the financial institution less an offsetting credit on balances maintained. Banking offices shall classify nonappropriated fund accounts as commercial accounts.
(3) At a minimum, banking offices shall provide the same services to individuals and nonappropriated fund instrumentalities as are available in the surrounding geographic area.
(4) On-base financial institutions may conduct operations during normal duty hours provided they do not disrupt the performance of official duties. Operating hours shall be set, in consultation with the bank or credit union liaison officer, to meet the needs of all
(5) DoD personnel may use their allotment of pay privileges to establish sound credit and savings practices through on-base financial institutions.
(i) The on-base financial institution shall credit customer accounts not later than the deposit date of the allotment check or electronic funds transfer.
(ii) The initiation of an allotment is voluntary (See Volume 7a, Chapter 42, Section 4202 of The DoD Financial Management Regulation (7200.14-R)). Thus, DoD personnel generally cannot be required to initiate an allotment for the repayment of a loan. Allotments voluntarily established by DoD personnel for the purpose of repaying a loan or otherwise providing funds to an on-base financial institution shall continue in effect at the option of the allotter.
(6) In accordance with sound lending practice, policies on loans to individuals are expected to be as liberal as feasible while remaining consistent with the overall interests of the on-base financial institution. On-base financial institutions shall conform to the Standards of Fairness principles before executing loan or credit agreements. See DoD Directive 1344.9.
(7) On-base financial institutions shall make basic financial education and counseling services available without charge to individuals seeking these services. Financial education and counseling services refer to basic personal and family finances such as budgeting, checkbook balancing and account reconciliation, benefits of savings, prudent use of credit, how to start a savings program, how to shop and apply for credit, and the consequences of excessive credit. DoD personnel in junior enlisted or civilian grades, or newly married couples who apply for loans, shall be given special attention and counseling.
(8) On-base financial institutions must strive to provide the best service to all customers. On-base financial institutions that evidence a policy of discrimination in their services are in violation of this part. In resolving complaints of discrimination, use the procedures specified in § 231.5(h)(8).
(9) All correspondence regarding on-base financial institutions, and questions concerning their operation that cannot be resolved locally, shall be referred through command channels to the Secretary of the Military Department concerned (or designee) for consideration.
(a)
(b)
(i) The approximate number of DoD personnel at the installation, and other persons who may be authorized to use the banking office.
(ii) The distance between the installation and the financial institutions in the vicinity, and the names of those institutions.
(iii) Available transportation between the installation and the financial institutions listed in paragraph (b)(1)(ii) of this section.
(iv) The number of DoD personnel in duty assignments that confine them to the installation or who cannot obtain transportation (such as hospital patients).
(v) The name and location of the depositary used to make official deposits for credit to the TGA.
(vi) A list of organizational and nonappropriated fund accounts, the name and location of the financial institutions where deposited, and the average daily activity and balance of each account.
(vii) A written description and photographs of the space proposed for banking office use.
(viii) A statement listing the requirements of the proposed banking office for safes and a vault, alarm systems, and surveillance equipment, when necessary.
(ix) Reasons for use of space controlled by the General Services Administration (GSA). All the GSA assigned
(x) Any other information pertinent to the establishment of a banking office.
(2) The Secretary of the Military Departments (or designee) shall:
(i) Review each request for the establishment of banking offices.
(ii) Conduct a solicitation for the services when warranted.
(iii) Approve proposals for banking offices.
(iv) Notify the selected financial institution either directly or through the installation commander. The selected banking institution will, in turn, obtain operating authority from their regulating agencies.
(v) Forward proposals to establish TGAs to the DFAS for subsequent forwarding to the Fiscal Assistant Secretary of the Treasury in accordance with Volume 5, Chapter 5, paragraph 050102 of The DoD Financial Management Regulation (7000.14-R).
(c)
(1) Solicitations for banking services shall be accomplished in the following order:
(i) Solicitation letters will be sent to local banking institutions and a solicitation announcement will be published in the local newspaper(s) and forwarded to financial institution associations.
(ii) If the Secretary of the Military Department concerned (or designee) or, where delegated, the installation commander, determines that the geographic scope of the solicitation needs to be expanded, a prospectus will be forwarded to financial institutions in a larger geographic area, as well as financial institution associations and regulatory authorities in the state where the installation is located.
(iii) If the Secretary of the Military Department concerned (or designee) or, where delegated, the installation commander, determines that the geographic scope of the solicitation needs to be expanded further, the prospectus will be published in the Commerce Business Daily and financial institution trade journals.
(2) For solicitations conducted at the installation level, the installation commander shall review proposals to establish banking offices, select the banking institution making the best offer and forward a recommendation to the Secretary of the Military Department concerned (or designee) for final approval.
(3) Banking institutions shall not be coerced when banking arrangements are under consideration or after banking offices are established. If otherwise proper, this prohibition does not preclude:
(i) Discussions with banking institutions prior to submitting a proposal for a new banking office.
(ii) Helping banking offices extend their operations in support of an installation requirement.
(iii) Discussions with banking institutions to improve services or to create savings for the banking institution or DoD personnel.
(iv) Seeking proposals for banking service as directed by the Secretary of
(v) Negotiations preparatory to signing a banking agreement.
(4) When soliciting for banking services, proposals shall be evaluated on specific factors identified in the solicitation. These factors, at a minimum, shall be predicated on the services to be provided as outlined in appendix A, paragraph 3, of this part, the financial institution's schedule of service fees and charges, and the extent of logistical support required. Prior to issuance of the solicitation, the preparing office shall identify (for internal use during the subsequent evaluation period) the weights to be applied to the factors reflected in the solicitation. Proposals shall be evaluated and ultimate selection made based upon the factors and weights developed for the solicitation.
(5) The Secretary of the Military Department concerned (or designee), or the installation commander with advice from the cognizant Secretary of the Military Department (or designee), shall make the selection of the banking institution based on the provisions outlined in this section.
(d)
(i) The mission of the installation has changed, or is scheduled to be changed, thereby eliminating or substantially reducing the requirement for financial services.
(ii) Active military operations prevent continuation of on-base financial services.
(iii) Performance of the banking office in providing services is not satisfactory according to standards ordinarily associated with the financial services industry or is inconsistent with the operating agreements or the procedures prescribed herein.
(iv) When merger, acquisition, change of control or other action results in violation of the terms and conditions of the existing operating agreement, the Secretary of the Military Department (or designee) shall terminate the operating agreement with the existing banking institution. When the merger, acquisition, change of control or other action does not result in violation of the terms and conditions of the existing operating agreement, the Secretary of the Military Department (or designee) shall initiate a novation action of the operating agreement identifying the change in control.
(2) The installation commander shall forward requests for termination to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate all termination actions with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency. Subsequent to this coordination process:
(i) The Secretary of the Military Department (or designee) shall inform the regulatory agency of the action.
(ii) The installation commander shall revoke the authority of the financial institution to operate. The lease will be terminated.
(3) Any banking office that intends to terminate its operations should notify the installation commander at least 180 days before the closing date. This notification should precede any public announcement of the planned closure. When appropriate, the commander shall attempt to negotiate an agreement permitting the banking office to continue operations until the installation has made other arrangements. Immediately upon notification of a closing, the commander shall advise the DoD Component headquarters concerned. If it is determined that continuation of banking services is justified, action to establish another banking office shall be taken in accordance with the guidance prescribed herein.
(e)
(ii) The term of the lease shall not exceed 5 years except where the banking institution uses its own funds to improve existing government space as outlined in paragraph (e)(5) of this section. If space occupied is assigned by the GSA, charges to financial institutions for space and services shall be at the GSA standard level user rate.
(iii) Leases shall include the following provisions:
(A) The government has the right to terminate the lease due to national emergency; installation inactivation, closing, or other disposal action; or default by the lessee.
(B) The lessee shall provide written notice 180 days prior to voluntarily terminating the lease.
(C) Upon a lease termination, the government has the option to cause the title of all structures and other improvements to be conveyed to the United States without reimbursement, or require the lessee to remove the improvements and restore the land to its original condition.
(2)
(ii) Banking institutions shall perform all maintenance, repair, improvements, alterations, and construction on the banking premises.
(iii) Banking institutions shall pay for all utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating and air conditioning, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal) at rates set forth in the lease, operating agreement or other written agreement between the installation and the banking institution.
(3) Leases executed before the issuance of this part may not be altered solely as a result of the provisions of this part unless a lessee specifically requests a renegotiation under these provisions. No lease may be negotiated or renegotiated, nor may any rights be waived or surrendered without compensation to the government.
(4) When a banking institution participates in the construction of a shopping mall complex the lease shall cover only land where the banking office physically is located.
(5) When a banking institution uses its own funds to improve existing government space, leases, for a period not to exceed 25 years subject to periodic review every 5 years to assess changes in fair market value, may be negotiated for a period commensurate with the appraised value of the leasehold improvements divided by the annual lease fee.
(f)
(2) If determined to be in the government's interest, an existing lease of land may be extended prior to expiration of its term. Passage of title to facilities shall be deferred until all extensions have expired. Such extensions shall be for periods not to exceed 5 years with lease payments set at the appraised fair market rental of the land only as determined on the date of each such extension. Banking institution lessees shall continue to maintain the premises and pay for utilities and services furnished.
(3) When, under the terms of a lease, title to improvements passes to the government, arrangements normally will be made as follows:
(i) When the square footage involved exceeds that authorized in DoD 4270.1-M
(ii) The charge for continued occupancy of improved space by a banking office shall be at fair market rental value only for the associated land. The lessee shall continue to maintain the premises and pay the cost of utilities and services furnished.
(g)
(1) The building shall be solely for the use of the banking institution and may not provide for other commercial enterprises or government instrumentalities.
(2) Construction projects must meet the criteria in DoD 4270.1-M.
(3)
(ii) Projects costing less than $25,000, to include interior alterations and room or office additions to existing banking offices, shall be approved by installation commanders. Copies of approvals, including the identification of project cost, shall be furnished to the Secretary of the Military Department concerned (or designee).
(4) The Congress shall be notified of all construction projects, using other than appropriated funds and costing over $500,000, in accordance with DoD Instruction 7700.18
(5) Proposals for construction of structures on installations at a banking institution's expense shall be reviewed and reported in accordance with regulations of the Military Department concerned. The following information shall be listed to support each proposal:
(i) Number of DoD personnel at the installation plus others who may use the banking office.
(ii) Square footage of the proposed building.
(iii) Land area to be leased to the banking institution.
(iv) Term of the lease.
(v) Estimated cost of construction.
(vi) Estimated fair market value of the land to be leased.
(vii) Statement that the banking institution will be responsible for utility connections and other utility and maintenance costs.
(viii) Statement that the building will be used only for financial services.
(ix) A statement that financial institution officials understand the potential loss of the building in the event of installation closure or other delimiting condition.
(x) Justification for a waiver of space criteria if the building exceeds that specified in DoD 4270.1-M.
(6) Banks shall pay for interior alterations and maintenance as well as utilities, custodial, and other furnished services.
(7) Banks shall pay all construction costs.
(h)
(1) Ensure that the banking institution operating the banking office has the latest version of this part.
(2) Ensure that traveler's checks and money orders are not being sold by other on-base organizations when banking offices are open for business. Postal units and credit unions, however, are exempt from this restriction. Also, ensure that other financial services, to include vehicle financing on domestic installations, are offered only by the banking office.
(3) Attend financial workshops, conferences, and seminars as appropriate. These gatherings offer excellent opportunities for personnel of financial institutions and the Department to improve the military banking program. Free discussion among the attendees gives an excellent forum for planning, developing, and reviewing programs that improve financial services made available to DoD personnel and organizations.
(4) Assist, when requested by the banking office manager or the installation commander, in locating and collecting from individuals tendering uncollectable checks, overdrawing accounts, or defaulting on loans (within the guidelines of subpart C) if not otherwise prohibited by law.
(5) Maintain regular contact with the banking office manager to confer and discuss quantitative and qualitative improvements in the services provided. In executing this authority, the BLO shall not become involved in the internal operations of the financial institution.
(6) Review the schedule of service charges and fees annually, and ensure that the operating agreement is updated at least every 5 years. Renegotiate the financial services offered and related service charges and fees as necessary.
(7) Assist in resolving customer complaints about banking services.
(8) Assist in resolving complaints of discrimination with financial services by the banking institution. If a complaint cannot be resolved, a written request for investigation shall be forwarded to the appropriate regulatory agency. Any such request must document the problem and command efforts taken toward its resolution. Information copies of all related correspondence shall be sent through channels to the Secretary of the Military Department concerned (or designee) for transmittal to the DFAS.
(9) Assist the installation commander to report to the appropriate regulatory agency any evidence suggesting malpractice by banking office personnel.
(i)
(1) Provision of the requested services, and any associated stipulations, shall be documented as an amendment to the existing operating agreement between the installation commander and the on-base financial institution that will provide in-store services.
(2) The amendment to the operating agreement shall be drafted through close coordination between the requesting DoD Component representative, the on-base financial institution representative, the bank liaison officer, and the installation commander (or designee). The final amendment shall be signed by the installation commander and the on-base financial institution with the acknowledgement of the DoD Component that will host the in-store banking operation.
(3) The installation commander shall extend the opportunity to provide the requested in-store banking services to all financial institutions located on the installation. The selection process is outlined in Appendix B of this part.
(4) Space shall be granted by the installation commander through a lease to the banking institution that will provide in-store service.
(j)
(ii) Installation commanders shall send requests for an MBF with justification for its establishment through the Secretary of the Military Department concerned (or designee) to the Director, DFAS, for coordination with the Department of the Treasury. The Department of the Treasury may approve the designation of an MBF under provisions of 12 U.S.C. 265.
(iii) MBF operations may begin only after approval for MBF status is granted by the Department of the Treasury.
(2)
(ii) Proposals from the on-base banking institution to convert an existing MBF to an independent or branch bank shall be sent through command channels to the Secretary of the Military Department concerned (or designee) for approval. The Secretary of the Military Department (or designee) shall forward the request to the Director, DFAS, for coordination with the Department of the Treasury.
(iii) Unsolicited proposals from banking institutions to establish independent or branch banks where an MBF exists shall be forwarded through command channels to the Secretary of the Military Department concerned (or designee). Each proposal shall be evaluated on its own merits.
(A) The installation commander shall inform the banking institution operating the MBF that an unsolicited proposal for a banking office has been received and shall offer that incumbent institution the opportunity to submit its own proposal.
(B) Preference to operate an independent or branch bank shall be given to the banking institution that has operated the MBF, provided that the banking service previously rendered has been satisfactory and that the institution's proposal is adequate.
(3)
(a)
(1) MBFs operated under contract and authorized by the pertinent status of forces agreement, other intergovernmental agreements, or host-country law.
(2) Domestic and foreign banking institutions located on overseas DoD installations. Each such institution shall be:
(i) Chartered to provide financial services in that country.
(ii) A party to a formal operating agreement with the installation commander to provide such services.
(iii) Identified, where applicable, in the status of forces agreements, other intergovernmental agreements, or host-country law.
(b)
(i) Requests to establish MBFs shall include, but are not limited to, the following information:
(A) The approximate number of DoD personnel at the installation and in the community and any other persons who may be authorized to use the MBF.
(B) The distance between the installation and the nearest MBF and credit union office, the names; addresses, and telephone numbers of the operators of those institutions; and the installations and communities where they are located.
(C) The availability of official and public transportation between the installation or community and the nearest MBF and credit union office.
(D) The name and location of the depository used to make official deposits for credit to the TGA.
(E) A list of organizational and nonappropriated fund accounts, the name and location of the financial institutions where deposited, and the average daily activity and balance of each account.
(F) A written description and photographs or drawings of the space proposed for MBF use. The extent and approximate cost of required alterations, including the construction of counters and teller cages.
(G) A statement that recognizes the logistical support, including equipment, to be provided by the local command as detailed in paragraph (c) of this section. The statement will include the costs of such equipment and the manner in which it will be acquired.
(H) In countries where no MBFs currently are operated under contract, a statement from the cognizant Combatant Command that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy and that the host country will permit the operation in accordance with paragraph (c)(1)(i) of this section.
(I) Any other pertinent information to justify the establishment of an MBF.
(ii) As a general rule, MBFs may be established only when the installation or community population meets the following criteria:
(A)
(B)
(iii) If the population at a certain remote area is not sufficient to qualify under the criteria for full-time or part-time MBFs, the installation or community commander will explore all other alternatives for acquiring limited banking services before requesting establishment of an MBF as an exception to these provisions. Alternatives to limited banking services include installation of ATMs and check cashing and accommodation exchange service by disbursing officers and their agents.
(iv) Establishment of an overseas MBF is predicated on and requires:
(A) Designation of the MBF contractor as a depositary and financial agent of the U.S. Government by the Department of the Treasury.
(B) The availability of banking contractors interested in bidding for the operation of the facility and the viability of such proposals.
(C) The availability of appropriated funds to underwrite such banking services.
(D) Establishment of a U.S. dollar currency custody account to support banking operations.
(2)
(i) Installation or community commanders shall send requests for banking services or unsolicited proposals from foreign banking institutions to their Major Commands with supporting data as required in § 231.5(b)(1).
(ii) Major Commands shall forward installation or community commander requests to the Secretary of the Military Department concerned (or designee) for approval. The Secretary of the Military Department concerned (or designee) shall coordinate with the DFAS to seek the designation of the parent foreign banking institution as a depositary and financial agent of the U.S. Government by the Department of the Treasury.
(iii) Banking offices in this category cannot become operational until the foreign parent banking institution has been designated a depositary and financial agent of the U.S. Government. The institution also shall indicate a willingness and ability to provide collateral backing for any official and nonappropriated fund U.S. dollar deposits. Any collateral pledged shall be in a form acceptable to the DFAS and the Department of the Treasury.
(c)
(A) Adequate office space, including steel bars; grillwork; security doors; a vault, safes, or both; security alarm systems and camera surveillance equipment (where deemed necessary) that meet documented requirements of the MBF contractor's insurance carrier; construction of counters, teller cages, and customer and work areas; necessary modifications and alterations to existing buildings; and construction of new MBF premises, if necessary.
(
(
(B) Office space in a building that is accessible to most users and permits
(C) DoD housing on a rental basis to assigned MBF staff that are designated as key and essential MBF managerial personnel who are unable to find suitable, reasonably priced housing in the vicinity of the DoD installation, subject to the assignment procedures and other requirements of DoD 4165.63-M.
(D) Education, on a space-available, tuition-paying basis, provided by the Department of Defense Education Activity to minor dependents of assigned staff in accordance with DoD Directive 1342.13.
(E) Air conditioning, which is considered a normal utility for banking offices located at installations that qualify for air conditioning under applicable regulations. Banking space is classified as administrative space at military installations.
(F) Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal).
(G) Defense Switched Network (DSN) voice and data communication to include, where feasible, Internet access.
(H) Military guards, civilian guards (for use within the installation), military police, or other protective services to accompany shipments of money. This level of protective service also shall be provided at other times as required to include replenishment of ATM currency and receipts, alarm system failures, and to avoid undue risks or insurance costs on the part of the MBF.
(I) U.S. Military Postal Service access in accordance with DoD Directive 4525.6.
(J) Office equipment and furniture on memorandum receipt if available from local stock. If office equipment or furniture is unavailable, statements of nonavailability shall be issued.
(K) Vehicle registration and fuel sales from government-owned facilities for bank-operated vehicles, if not in conflict with host government agreements. Vehicle registration shall be subject to normal fees.
(L) Issuance by local commanders of invitational travel orders, at no expense to the U.S. Government when required for official onsite visits by U.S. based banking institution officials.
(ii) Suggestions for changes to the logistical support provisions of the MBF contract may be forwarded for consideration through command channels to the Director, DFAS.
(2)
(ii) Logistical support shall not exceed that provided to contract MBFs, as specified in paragraph (c)(1) of this section.
(d)
(ii) For MBFs operated by U.S. banking contractors, the agreement shall state operating details not set forth in
(2)
(ii)
(iii)
(iv)
(v)
(B) Any deficiency of banking services under DoD banking contracts shall be reported to the manager of the MBF within 7 calendar days of noting the deficiency. If the problem has not been corrected within 30 calendar days after being noted, the commander shall report the problem through DoD Component channels to the Director, DFAS (or designee).
(C) The MBF contractor and military disbursing officers shall establish cash management practices that minimize the cash required conducting business.
(D) Commanders shall assist MBF contractors to develop and update contingency plans for banking services in the event of hostilities or other emergencies.
(E) MBF provision of foreign currency shall be in accordance with Volume 5, Chapter 13 of The DoD Financial Management Regulation (DoD 7000.14-R).
(3)
(i)
(ii)
(iii)
(iv)
(4)
(ii) For all other relocations, prior approval from the Director, DFAS (or designee) shall be obtained through DoD Component channels.
(5)
(i) Major changes in installation population that would affect use of the MBF.
(ii) Opinion that the space assigned is not adequate for the efficient operation of the MBF including a statement concerning corrective action.
(iii) Suggestions that might improve the MBF operation, increase efficiency, or decrease costs.
(iv) Pending developments that may have a material impact on the MBF operation.
(6)
(e)
(1)
(i) The report shall state whether a part-time MBF should be established and specify the days each week that the MBF would be needed.
(ii) The Secretary of the Military Department (or designee) shall send this report with recommendations to the Director, DFAS (or designee).
(2)
(a)
(b)
(1) DoD personnel seeking to establish a new full-service credit union shall submit a proposal to the installation commander for review. In addition to the information identified in § 231.5(b)(1), the proposal shall include a request for the establishment of a field of membership that includes all personnel at the installation. Upon installation commander concurrence, the proposal shall be forwarded through DoD Component channels to the Secretary of the Military Department (or designee).
(2) The Secretary of the Military Department concerned (or designee) shall:
(i) Obtain a list of credit unions that could establish eligibility to serve the installation's military members and civilian employees from the National Credit Union Administration (NCUA)
(ii) Prepare and send formal solicitation letters to eligible credit unions informing them of an opportunity to establish a branch office at the installation.
(iii) In coordination with the installation commander, establish the criteria for selection of a specific credit union in accordance with § 231.5(c)(4). Proposals shall be evaluated, and a selection made, based upon the factors and weights developed for the solicitation.
(3) Upon approval by the Secretary of the Military Department (or designee), the NCUA or applicable state regulatory agency shall be notified and asked to establish or amend the selected credit union's charter to include the new location.
(4) No commitment may be made to a credit union regarding its proposal until the appropriate regulatory agency has approved the requested charter change.
(c)
(ii) The installation commander shall inform the Secretary of the Military Department concerned (or designee) immediately upon receiving notification of a closing. The report shall include a recommendation about continued credit union service on the installation. Paragraph (b) of this section applies if continued service is needed.
(2)
(3)
(4)
(5)
(d)
(ii) A credit union may be furnished space on a DoD installation at one or more locations for periods not exceeding 5 years except where the credit union uses its own funds to improve existing government space as outlined in paragraphs (d)(1)(ii)(C) and (d)(1)(ii)(D) of this section. The cumulative total of
(A) The furnishing of office space (including ATM placement) to on-base credit unions is governed by section 170 of the Federal Credit Union Act (12 U.S.C. 1770). The provision of no-cost office space for a period not to exceed 5 years is limited to credit unions if at least 95 percent of the membership to be served by the allotment of space is composed of individuals who are, or who were at the time of admission into the credit union, military personnel or federal employees, or members of their families. A written statement to the effect that the credit union meets the 95 percent criterion shall be required to justify and document the allotment of free government space. This statement shall be prepared on the credit union's letterhead and signed either by the chairman of the board of directors or the president. A certification also shall be required whenever there is a merger, takeover, or significant change in a field of membership. This certification shall serve as justification and documentation for the continued allocation of free government space including space renovated with credit union funds. The statement shall be updated every 5 years and on renewal of each no-cost permit or license. (See appendix C of this part for a sample format of the statement.)
(B) Credit unions that fail to meet the 95 percent criterion shall be charged fair market rental for space provided. Except where more than one credit union exists on an installation prior to June 9, 2000, credit unions giving less than full service or not serving all assigned DoD personnel are not authorized no-cost office space.
(C) When a credit union that meets the 95 percent criterion uses its own funds to expand, modify, or renovate government-owned space, it may be provided a no-cost permit or license for a period commensurate with the extent of the improvements not to exceed 25 years as determined by the DoD Component concerned. The permit or license shall be effective until the agreed date of expiration or until the credit union ceases to satisfy the 95 percent criterion. In this latter case, the no-cost permit shall be cancelled in favor of a lease immediately negotiated at fair market value under the provisions of paragraph (d)(1)(ii)(B) of this section. If the credit union desires, this permit or license may extend through the period identified in the original permit or license not to exceed 25 years.
(D) Similarly, a credit union not meeting the 95 percent criterion that uses its own funds to expand, modify, or renovate government-owned space, may be provided a lease at fair market value for a period not to exceed 25 years subject to periodic review every 5 years to assess changes in fair market value. Duration of this lease shall be commensurate with the extent of the improvements as determined by the DoD Component concerned.
(iii) All space assigned by the GSA, whether leased or in a federal office building, is reimbursable to the GSA at the standard level user charge. Consequently, the GSA shall charge the benefiting DoD Component for any space assigned for credit union operations. Such space is subject to the provisions of paragraph (d)(1)(i) and (ii) of this section.
(2)
(3) Leases executed before the issuance of this part may not be altered solely as a result of the provisions of this part unless a lessee specifically requests a renegotiation under these provisions. No lease may be negotiated or renegotiated, nor may any
(4) When a credit union participates in the construction of a shopping mall complex the lease shall cover only land where the branch or facility physically is located.
(5)
(e)
(f)
(g) Credit unions offering ATM service shall do so in accordance with § 231.4(d).
(h)
(i) An official authorized to act on loan applications.
(ii) An individual authorized to sign checks; and
(iii) A qualified financial counselor available to serve members during operating hours.
(2) Exceptions to paragraph (h)(1)(i) of this section may be approved by the installation commander with advice from the Secretary of the Military Department concerned (or designee) in the case of newly organized credit unions.
(3) When an on-base credit union can support only minimum staffing, one of the positions required in paragraph (h)(1)(i) of this section or paragraph (h)(1)(ii) of this section also may be subsumed under the counselor duties.
(4) Credit union remote service locations at the same installation may be staffed with one person alone, provided that a direct courier or an electronic or automated message service links each remote location to the credit union's main office.
(i)
(j)
(1) Credit unions interested in submitting proposals to provide requested in-store banking services shall provide a statement from the NCUA or applicable state regulatory agency certifying the credit union's authority to offer the requested financial services to the commissary, Military Exchange, or other on-base facilities.
(2) Space granted to a credit union selected to provide in-store banking services should be issued through a no-cost license in accordance with section 170 of the Federal Credit Union Act (12 U.S.C. 1770).
(a)
(2) The extension of credit union service overseas is encouraged consistent with the principles prescribed for domestic credit unions and with applicable status of forces agreements or other intergovernmental agreements, or host-country law.
(3) Where permitted by the status of forces agreements or other intergovernmental agreements, or host-country law, only federal credit unions or federally insured state chartered credit unions may operate on overseas DoD installations. The ultimate decision to provide services overseas rests with the credit union itself.
(b)
(i) Full information about available space and logistical support.
(ii) The name and location of the nearest credit union facility or branch.
(iii) The distance between the installation and the nearest credit union facility or branch.
(iv) The availability of any official or public transportation.
(v) The number of DoD personnel in duty assignments that confine them to the installation or who cannot obtain transportation (such as hospital patients).
(vi) In countries not presently served, a statement concurred in by the cognizant Combatant Command that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy. The statement shall include that the host country will permit credit union operations and will indicate any conditions imposed by the host country with respect to those operations.
(2) Subsequent to approval of the request from the installation or community commander to establish an overseas credit union facility, the Secretary of the Military Department concerned (or designee) shall solicit proposals for the provision of full credit union services under the following provisions.
(i) Where there is a DoD designated geographic franchise with a specific field of membership, the Secretary of the Military Department (or designee) shall direct the installation or community commander to contact the supporting credit union and request that a branch or facility be established. The basic decision concerning such extensions of service rests with the servicing credit union. The Director, DFAS (or designee) shall maintain a listing of all geographic franchises assigned to credit unions serving DoD overseas installations.
(ii) Where there is no DoD designated geographic franchise, the Secretary of the Military Department (or designee) shall:
(A) Coordinate requests, through the Director, DFAS (or designee), to obtain a geographic franchise. A geographic franchise is the authorization granted to a credit union by the Office of the Under Secretary of Defense (Comptroller) (OUSD(C)) to provide financial services in a specific geographic region located outside the United States, its territories and possessions.
(B) Solicit proposals from credit unions currently operating on DoD installations.
(C) Review proposals of interested credit unions.
(D) Coordinate with field commands, as needed.
(E) Recommend selection to the NCUA or applicable state regulatory agency with a copy to the DFAS and the OUSD(C), requesting that the appropriate field of membership adjustment be made. Such a recommendation shall identify the primary installations on which the credit union would operate and, if applicable, the contiguous geographic boundaries for future facilities and branches.
(3) Where there is an existing field of membership, the Secretary of the Military Department concerned (or designee) shall take the following actions:
(i) If a credit union on an installation terminates operation, afford any other credit union having a geographic franchise within that country an opportunity to assume the franchise being vacated. If all such institutions decline, the geographic franchise shall be offered to the federally insured credit union community. If, as a result of a credit union decision to decline service to an installation or a termination action, another credit union:
(A) Offers to provide service.
(B) Meets host country requirements (if any) and
(C) Is assigned the former geographic franchise or portion thereof, the NCUA or the applicable state regulatory agency shall be notified and requested to make appropriate field of membership adjustments.
(ii) When other credit union(s) having a geographic franchise within a country decline the opportunity, or there is
(4) No commitment may be made to a credit union regarding its proposal until the appropriate regulatory agency has announced a selection.
(c)
(1) Adequate office space, including steel bars; grillwork; security doors; a vault, safes or both; security alarm systems and camera surveillance equipment (where deemed necessary) that meet documented requirements of the credit union's insurance carrier; construction of counters, teller cages, and customer and work areas; necessary modifications and alterations to existing buildings. The size and arrangement of space should permit efficient operations. The credit union shall pay for all improvements to the space given. Space assigned may not exceed that prescribed in DoD 4270.1-M.
(2) DoD housing on a rental basis to key credit union personnel unable to find suitable, reasonably priced housing in the vicinity of the DoD installation, if available.
(3) Education, on a space-available, tuition-paying basis, provided by the Department of Defense Education Activity to minor dependents of assigned staff in accordance with DoD Directive 1342.13.
(4) Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating, intrastation telephone service, and custodial and janitorial services.
(5) DSN voice and data communication to include, where feasible, internet access.
(6) U.S. Military Postal Service support under DoD Directive 4525.6. The use of free intra-theater delivery system (IDS) is authorized for all routine mail sent and received between Army Post Offices (APOs) and Fleet Post Offices (FPOs) within a theater.
(7) Military guards, civilian guards (for use within the installation), military police, or other protective services to accompany shipments of money from the MBF to the credit union and return where it is impractical or not authorized to have a local armored car service or civilian police authorities entering a military installation to provide cash escort service or when the cost of obtaining such service is prohibitive. This level of protective service also shall be provided at other times as required to include replenishment of ATM currency and receipts, alarm system failures, and to avoid undue risks or insurance costs.
(d)
(e)
(2) The Department assigns overseas credit unions a prescribed geographic franchise. Any credit union, however, may continue to serve its members stationed overseas by mail or telecommunications, to include access to the Internet.
(3) A credit union proposing a new service to be offered by a branch office that is not authorized by the operating agreement shall coordinate the establishment of the new service through the cognizant Component command to the Combatant Command. The new service shall be offered only after the appropriate command's approval and coordination with the U.S. Chief of Diplomatic Mission or U.S. Embassy to ensure that the service does not conflict with the applicable status of forces agreement, other intergovernmental agreements, or host-country law.
(4) Credit unions that operate full service branches shall have U.S. currency and coin available for member transactions. In areas served by currency custody accounts, transactional U. S. currency and coins shall be made available from the servicing MBF with no direct or analysis charge to the
(5) In countries served by MBFs operated under contract, credit unions shall purchase foreign currency only from the servicing MBF.
(i) The bulk rate purchase price shall apply to currency used by the credit union to make payments to vendors or to make payroll payments.
(ii) Credit unions that desire and are authorized to provide accommodation exchange services to its members shall acquire foreign currency from the servicing MBF at the MBF wholesale rate and sell it at a rate of exchange no more favorable than that available to customers of the MBF.
(6) Credit unions operating under a geographic franchise on an overseas DoD installation shall not publicize, display or sell vehicles on the installation.
(7) The NCUA or applicable state regulatory agency may review operations of overseas credit union offices either when it examines the main credit union or at other times of its choosing. For federally insured, state chartered credit unions, the applicable state regulatory agency also may examine credit unions operations.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(1) Status of forces agreements, other intergovernmental agreements, or host-country law.
(2) Physical security requirements that cannot be resolved by the credit union or local command.
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(a)
(1) Updates policies and responsibilities for financial institutions that serve Department of Defense (DoD) personnel on DoD installations worldwide. Associated procedures are contained in subpart A of this part.
(2) Prescribes consistent arrangements for the provision of services by financial institutions among the DoD Components, and requires that financial institutions operating on DoD installations provide, and are provided, support consistent with the policies stated herein.
(b)
(c)
(d)
(i) Except where they already may exist as of May 1, 2000, no more than one banking institution and one credit union shall be permitted to operate on a DoD installation.
(ii) Upon the request of an installation commander and with the approval of the Secretary of the Military Department concerned (or designee), duly chartered financial institutions may be authorized to provide financial services on DoD installations to enhance the morale and welfare of DoD personnel and facilitate the administration of public and quasi-public monies. Arrangement for the provision of such services shall be in accordance with this subpart and the applicable provisions of subpart A of this part.
(iii) Financial institutions or branches thereof, shall be established on DoD installations only after approval by the Secretary of the Military Department concerned (or designee) and the appropriate regulatory agency.
(A) Except in limited situations overseas (see paragraph (d)(2)(ii)(C) of this section), only banking institutions insured by the Federal Deposit Insurance Corporation and credit unions insured by the National Credit Union Share Insurance Fund or by another insurance organization specifically qualified by the Secretary of the Treasury, shall operate on DoD installations. These financial institutions may either be State or federally chartered; however, U.S. credit unions operated overseas shall be federally insured.
(B) Military banking facilities (MBFs) shall be established on DoD installations only when a demonstrated and justified need cannot be met through other means. An MBF is a financial institution that is established by the Department of the Treasury under statutory authority that is separate from State or Federal laws that govern commercial banking. Section 265 of title 12, United States Code contains the provisions for the Department of the Treasury to establish MBFs. Normally, MBFs shall be authorized only at overseas locations. This form of financial institution may be considered for use at domestic DoD installations only when the cognizant DoD Component has been unable to obtain, through normal means, financial services from a State or federally chartered financial institution authorized to operate in the State in which the installation is located. In times of mobilization, it may become necessary to designate additional MBFs as an emergency measure. The Director, Defense Finance and Accounting Service (DFAS) may recommend the designation of MBFs to the Department of the Treasury.
(C) Retail banking operations shall not be performed by any DoD Component. Solicitations for such services shall be issued, or proposals accepted, only in accordance with the policies identified in this subpart. The DoD Components shall rely on commercially available sources in accordance with DoD Directive 4100.15.
(iv) Installation commanders shall not seek the provision of financial services from any entity other than the on-base banking office or credit union. The Director, DFAS, with the concurrence of the Under Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to this policy.
(v) Financial institutions authorized to locate on DoD installations shall be provided logistic support as set forth in subpart A of this part.
(vi) Military disbursing offices, nonappropriated fund instrumentalities (including MWR activities and the Military Exchange Services) and other DoD Component activities requiring financial services shall use on-base financial institutions to the maximum extent feasible.
(vii) The Department encourages the delivery of retail financial services on DoD installations via nationally networked automated teller machines (ATMs).
(A) ATMs are considered electronic banking services and, as such, shall be provided only by financial institutions that are chartered and insured in accordance with the provisions of paragraph (d)(1)(iii) of this section.
(B) Proposals by the installation commander to install ATMs from other than on-base financial institutions shall comply with the provisions of paragraph (d)(1)(iv) of this section.
(viii) Expansion of financial services (to include in-store banking) requiring the outgrant of additional space or logistical support shall be approved by the installation commander. Any DoD activity or financial institution seeking to expand financial services shall coordinate such requests with the installation bank/credit union liaison officer prior to the commander's consideration.
(ix) The installation commander shall ensure, to the maximum extent feasible, that all financial institutions operating on that installation are given the opportunity to participate in pilot programs to demonstrate new financial-related technology or establish
(x) The installation commander shall approve requests for termination of financial services that are substantiated by sufficient evidence and forwarded to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate such requests with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency.
(xi) Additional guidance pertaining to financial services is set forth in subpart A of this part.
(2) The following additional provisions pertain to only to financial institutions on overseas DoD installations:
(i) The extension of services by MBFs and credit unions overseas shall be consistent with the policies stated herein and with the applicable status of forces agreements, other intergovernmental agreements, or host-country law.
(ii) Financial services at overseas DoD installations may be provided by:
(A) Domestic on-base credit unions operating overseas under a geographic franchise and, where applicable, as authorized by the pertinent status of forces agreements, other intergovernmental agreements, or host-country law.
(B) MBFs operated under and authorized by the pertinent status of forces agreement, other intergovernmental agreement, or host-country law.
(C) Domestic and foreign banks located on overseas DoD installations that are:
(
(
(
(iii) In countries served by MBFs operated under contract, nonappropriated fund instrumentalities and on-base credit unions that desire, and are authorized, to provide accommodation exchange services shall acquire foreign currency from the MBF at the MBF accommodation rate; and shall sell such foreign currency at a rate of exchange that is no more favorable to the customer than the customer rate available at the MBF.
(e)
(2) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(3) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) shall advise the USD(C) on all aspects of on-base financial institution services that affect the morale and welfare of DoD personnel.
(4) DoD Component responsibilities pertaining to this subpart are set forth in subpart A of this part.
(a) The following guidelines govern the application of DoD Directive 5400.11
(1) Financial institutions and their branches and facilities operating on DoD military installations do not fall within the purview of 5 U.S.C. 552
(i) These financial institutions do not fit the definition of “agency” to which the Privacy Act applies, that is, any executive department, Military Department, government corporation, government-controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President),
(ii) These financial institutions are not “government contractors” within the meaning of 5 U.S.C. 552a(o), as they do not operate a system of records on behalf of an agency to accomplish an agency function. According to the Office of Management and Budget Privacy Act Guidelines, the provision relating to government contractors applies only to systems of records actually taking the place of a federal system which, but for the contract, would have been performed by an agency and covered by the Privacy Act. Clearly, the subject institutions do not meet these criteria.
(iii) Since the Act does not apply to them, these financial institutions are not required to comply with 5 U.S.C. 552a(e)(3) in obtaining and making use of personal information in their relationships with personnel authorized to use such institutions. Thus, these institutions are not required to inform individuals from whom information is requested of the authority for its solicitation, the principal purpose for which it is intended to be used, the routine uses that may be made of it, or the effects of not providing the information. There also is no requirement to post information of this nature within on-base banking and credit union offices.
(2) The financial institutions concerned hold the same position and relationship to their account holders, members, and to the government as they did before enactment of OMB Circular A-130. Within their usual business relationships, they still are responsible for safeguarding the information provided by their account holders or members and for obtaining only such information as is reasonable and necessary to conduct business. This includes credit information and proper identification, which may include social security number, as a precondition for the cashing of checks.
(3) Financial institutions may incorporate the following conditions of disclosure of personal identification in all contracts, including loan agreements, account signature cards, certificates of deposit agreements, and any other agreements signed by their account holders or members:
I hereby authorize the Department of Defense and its various Components to verify my social security number or other identifier and disclose my home address to authorized (name of financial institution) officials so that they may contact me in connection with my business with (name of financial institution). All information furnished will be used solely in connection with my financial relationship with (name of financial institution).
(ii) When the financial institution presents such signed authorizations, the receiving military command or installation shall provide the appropriate information.
(4) Even though an agreement described in paragraph (a)(3) of this section has not been obtained, the Department of Defense may provide these financial institutions with salary information and, when pertinent, the length or type of civilian or military appointment, consistent with DoD Directives 5400.11 and 5400.7.
(5) When DoD personnel with financial obligations are reassigned and fail to inform the financial institution of their whereabouts, they should be located by contacting the individual's last known commander or supervisor at the official position or duty station within that particular DoD Component. That commander or supervisor either shall furnish the individual's new official duty location address to the financial institution, or shall forward, through official channels, any correspondence received pertaining thereto to the individual's new commander or supervisor for appropriate assistance and response. Correspondence addressed to the individual concerned at his or her last official place
(b) Questions concerning this guidance should be forwarded through channels to the Deputy Chief Financial Officer, Office of the Under Secretary of Defense (Comptroller), The Pentagon, Washington, DC 20301-1100.
The following operating agreement template identifies general arrangement and content. Content of the actual operating agreement may vary according to the circumstances of each installation.
This Agreement is made and entered into this day by and between the installation commander of (name of installation) in his or her official capacity as installation commander, hereinafter referred to as the “commander” and the (name of financial institution), having its principal office at (location of home office) hereinafter referred to as the “financial institution,” together hereinafter referred to as “the parties.” Whereas the commander and the financial institution enter into this Operating Agreement upon the mutual consideration of the promises, covenants, and agreements hereinafter contained.
1. The parties understand and agree that this Agreement shall in no way modify, change, or alter the terms and conditions of Lease Number (number of lease) covering the use of real property described therein, and this Agreement shall continue, subject to the termination provisions herein-after set forth, during the terms of said lease and any extensions thereof. In the case of a banking institution operating a military banking facility (MBF) overseas, this agreement will not change the conditions of the contract between the banking institution and the Department of Defense.
2. The financial institution agrees to operate a (federally or state) chartered office on-base in accordance with the policies and procedures set forth in DoD Directive 1000.11, and Volume 5, Chapter 34, of the DoD 7000.14-R (as codified in the Code of Federal Regulations (CFR) at 32 CFR parts 230 and 231, respectively); and, in addition for the Overseas Military Banking Program (OMBP), the policies and procedures set forth in the applicable DoD contract. The hours of operations shall be between (hour office opens) and (hour office closes), and on the following days (weekdays office open), except on government holidays when the financial institution may be closed. The Program Office for the OMBP shall notify the commander of any changes to the DoD contract.
3. The financial institution shall provide the following services:
a.
(1) Demand (checking) account services.
(2) Cashing personal checks and government checks for accountholders.
(3) Maintaining savings accounts and (any other interestbearing accounts).
(4) Selling official checks, money orders, and traveler's checks.
(5) Selling and redeeming United States savings bonds.
(6) Providing direct deposit service.
(7) Loan services.
(8) Electronic banking (i.e., automated teller machines, internet banking).
b.
(1) Furnishing cash (if the financial institution's terms for doing so is consistent with sound management practices).
(2) Accepting deposits for credit to the Treasury General Account (where the financial institution has entered into an agreement with the Department of the Treasury).
c.
(1) Demand (checking) account services, including wire transfers.
(2) Savings accounts and nonnegotiable certificates of deposit or other interestbearing accounts offered by the banking institution.
(3) Currency and coin for change.
4. Service charges shall be as follows:
a.
(1) No fees shall be charged to individuals for the services listed in subparagraphs 3.a.(2), and 3.a.(5), above, except for subparagraph 3.a.(2), wherein checks drawn on other
(2) Checking and savings accounts. Fees for individual checking and savings accounts shall be the customary service charges of the financial institution or those negotiated for base personnel per the attached schedule.
(3) Sale of official checks, money orders, traveler's checks and other types of financial paper. Charges for these services shall be the customary charges of the financial institution operating the on-base office.
b.
c.
5. It is agreed that the financial institution shall:
a. Notify the commander or designated representative of any proposed changes to the attached schedule of fees and services at least 30 days prior to implementation.
b. Follow the requirements in Volume 5, Chapter 34, of DoD 7000.14-R, as codified in the
c. Comply with Department of the Treasury requirements for establishment and operation of a Treasury General Account where the financial institution agrees to act as a depository for government funds.
d. Absolve the (Military Service) and its representatives of responsibility or liability for the financial operation of the financial institution; and for any loss (including losses due to criminal activity), expenses, or claims for damages arising from financial institution operations.
e. Indemnify, and hold harmless the United States from (and against) any loss, expense, claim, or demand, including attorney fees, court costs, and costs of litigation, to which the government may be subjected as a result of death, loss, destruction, or damage in connection with the use and occupancy of (Military Service) premises occasioned in whole or in part by officers, agents or employees of the financial institution operating an office of the financial institution.
f. Favorably respond, whenever feasible, to reasonable local command requests for lectures and printed materials to support consumer credit education programs, financial management program and newcomer's briefings.
g. Prominently post in the lobby of the financial institution the name, duty telephone number of the (Bank or Credit Union) Liaison Officer.
h. Accept the government travel card in all on-base ATMs operated by the financial institution.
i. Abide by the installation fire protection program, including immediate correction of fire hazards noted by the installation fire inspector during periodic fire prevention inspections.
6. The commander shall provide the following space and support:
a. Space requirements for financial institution operations shall be administered in accordance with the existing outgrant (i.e., lease, permit or license). (Show Number of Outgrant).
b. Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating and air conditioning, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal) on a reimbursable basis.
c. DoD housing and minor dependent education in overseas locations for military banking facility (MBF) and credit union personnel in accordance with §§ 231.6(c)(1)(i)(C), 231.6(c)(1)(D), 231.8(c)(2) and 231.8(c)(3).
7. Termination of this Agreement shall be consistent with the termination provision of the real property lease and subpart A. The Secretary of the (Military Department) shall have the right to terminate this Agreement at any time. Any termination of the right of the financial institution to operate on the installation shall render this Agreement terminated without any applicable action by the commander.
8. Any provision of this Agreement that is contrary to or violates any laws, rules, or regulations of the United States, its agencies, or the state of (state in which the financial institution is located) that apply on federal installations shall be void and have no force or effect; however, both parties to this Agreement agree to notify the other party promptly of any known or suspected continuing violation of such laws, rules, or regulations.
9. So long as this Agreement remains in effect, it shall be reviewed jointly by the commander and the financial institution at least once every 5 years to ensure compatibility with current DoD issuances and to determine
A.
1. Consistent with DoD Component delegation, the final decision to solicit for an in-store banking office rests with the installation commander.
2. The DoD Component seeking in-store banking (e.g., in buildings operated by the Defense Commissary Agency, Military Exchange Services and MWR activities) shall draft the solicitation letter.
3. Close coordination among all cognizant DoD organizations is essential throughout the selection process.
B.
1. The need for in-store banking service may be identified from either:
a. An unsolicited proposal from an on-base financial institution,
b. A DoD Component's request, or
c. An installation commander's request.
2. The cognizant installation commander (or designee) is responsible for assessing the environment and authorizing the Bank/Credit Union Liaison Officer(s) to pursue the acquisition of in-store banking services. If no authorization is given, no further action is required.
3. The cognizant installation commander shall determine whether a solicitation is required. (A solicitation shall be required whenever there are two or more financial institutions on a DoD installation.) If no solicitation is required, then the Bank/Credit Union Liaison Officer shall work directly with the on-base financial institution to obtain the requested services. Where there is neither a banking office nor an on-base credit union, use the solicitation process outlined in §231.5(c) of this chapter, as supplemented by the provisions outlined in paragraph A, above.
4. The solicitation letter shall identify the financial services being requested and classify these services as either mandatory or optional. In addition, the solicitation letter shall highlight any services that will be weighed as more important than others during the evaluation of the proposals. Any space consideration and terms of the proposed agreement also shall be identified in the letter.
5. The installation commander (or designee) formally shall notify the selected financial institution and request that institution to coordinate with the proper activity to begin any construction, modifications or renovations necessary to open the in-store banking office. The cognizant facility management personnel shall begin the process of obtaining the necessary outgrant instruments. Concurrently, the requesting DoD Component representative and the financial institution representative shall draft the appropriate amendment to the operating agreement. The amendment should contain provisions regarding:
a. The roles and responsibilities of all parties involved.
b. The financial services to be provided, and
c. The logistical support arrangements to include custodial services and security provisions. The amendment should be coordinated with the Bank/Credit Union Liaison Officer(s) prior to forwarding that document to the installation commander for signature. The amendment shall be signed by the installation commander (or designee) and the appropriate financial institution official with a copy furnished to the Secretary of the Military Department concerned (or designee) and the Director, DFAS (or designee).
I, (name), Chairman of the Board of Directors or President of the (credit union), located at (place), certify that this credit union complies with the requirements of section 170 of the Federal Credit Union Act (12 U.S.C 1770), for the allotment of space in federal buildings without charge for rent or services. The provision of no-cost office space is limited to credit unions if at least 95 percent of the membership to be served by the allotment of space is composed of individuals who are, or who were at the time of admission into the credit union, military personnel or federal employees, or members of their families.
The Certificate of Compliance shall be written on credit union letterhead.
10 U.S.C. 131 and 2674(c).
As used in this part.
The provisions of this part apply to all areas, lands, and waters on or adjoining the Pentagon Reservation and under the jurisdiction of the United States, and to all persons entering in or on the property. They supplement those penal provisions of Title 18, United States Code, relating to crimes and criminal procedure and those provisions of State law that are federal criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 13.
(a) Access to the Pentagon Reservation or facilities thereon shall be restricted in accordance with Department of Defense Administrative Instruction Number 30
(b) All persons entering or upon the Pentagon Reservation shall, when required and/or requested, display identification to authorized persons.
(c) All packages, briefcases, and other containers brought into, on, or being removed from facilities or restricted areas on the Pentagon Reservation are subject to inspection and search by authorized persons. Persons entering on facilities or restricted areas who refuse to permit an inspection and search will be denied entry.
(d) Any person or organization desiring to conduct activities anywhere on the Pentagon Reservation shall file an application for permit with the applicable Building Management Office. Such application shall be made on a form provided by the Department of Defense and shall be submitted in the manner specified by the Department of Defense. Violation of the conditions of a permit issued in accordance with this section is prohibited and may result in the loss of access to the Pentagon Reservation.
(a) Trespassing, entering, or remaining in or upon property not open to the public, except with the express invitation or consent of the person or persons having lawful control of the property, is prohibited. Failure to obey an order to leave under paragraph (b) of this section, or reentry upon property after being ordered to leave or not reenter under paragraph (b) of this section, is also prohibited.
(b) Any person who violates a Department of Defense rule or regulation may be ordered to leave the Pentagon Reservation by an authorized person. A violator's reentry may also be prohibited.
Persons on the Pentagon Reservation shall at all times comply with official signs of a prohibitory, regulatory, or directory nature.
The following are prohibited:
(a)
(b)
(c)
(1) To an authorized person investigating an accident or violation of law or regulation, or
(2) On an application for a permit.
(d)
A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy, or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:
(a) Engages in fighting or threatening, or in violent behavior.
(b) Uses language, an utterance, or gesture, or engages in a display or act
(c) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(d) Creates or maintains a hazardous or physically offensive condition.
(e) Impedes or threatens the security of persons or property, or disrupts the performance of official duties by Department of Defense employees, or obstructs the use of areas such as entrances, foyers, lobbies, corridors, concourses, offices, elevators, stairways, roadways, driveways, walkways, or parking lots.
Willfully destroying or damaging private property is prohibited. The throwing of articles of any kind from or at buildings or persons, improper disposal of rubbish, and open fires are also prohibited.
(a) Using, possessing, storing, or transporting explosives, blasting agents or explosive materials is prohibited, except pursuant to the terms and conditions of a permit issued by the applicable Building Management Office. When permitted, the use, possession, storage and transportation shall be in accordance with applicable Federal and State law.
(b) Using or possessing fireworks or firecrackers is prohibited, except in designated areas under such conditions as may be established by the applicable Building Management Office or pursuant to the terms and conditions of a permit issued by the applicable Building Management Office, and in accordance with applicable State law.
(c) Violation of the conditions established by the applicable Building Management Office or of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the loss of access to the Pentagon Reservation.
(a) Except as otherwise authorized under this section, the following are prohibited:
(1) Possessing a weapon.
(2) Carrying a weapon.
(3) Using a weapon.
(b) This section does not apply to any agency or Department of Defense component that has received prior written approval from the Defense Protective Service to carry, transport, or use a weapon in support of a security, law enforcement, or other lawful purpose while on the Pentagon Reservation.
(a)
(b)
(1) The delivery of a controlled substance, except when distribution is made by a licensed physician or pharmacist in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted, or constructive transfer of a controlled substance.
(2) The possession of a controlled substance, unless such substance was obtained by the possessor directly from, or pursuant to a valid prescription or order by, a licensed physician or pharmacist, or as otherwise allowed by Federal or State law.
(c) Presence on the Pentagon Reservation when under the influence of alcohol, a drug, a controlled substance, or any combination thereof, to a degree that may endanger oneself or another person, or damage property, is prohibited.
Animals, except guide dogs for persons with disabilities, shall not be brought upon the Pentagon Reservation for other than official purposes.
Commercial or political soliciting, vending of all kinds, displaying or distributing commercial advertising, collecting private debts or soliciting alms upon the Pentagon Reservation is prohibited. This does not apply to:
(a) National or local drives for funds for welfare, health, or other purposes as authorized by 5 CFR parts 110 and 950, Solicitation of Federal Civilian and Uniformed Services Personnel for Contributions to Private Voluntary Organizations, issued by the U.S. Office of Personnel Management under Executive Order 12353, 3 CFR, 1982 Comp., p. 139, as amended.
(b) Personal notices posted on authorized bulletin boards, and in compliance with building rules governing the use of such authorized bulletin boards, advertising to sell or rent property of Pentagon Reservation employees or their immediate families.
(c) Solicitation of labor organization membership or dues authorized by the Department of Defense under the Civil Service Reform Act of 1978.
(d) Licensees, or their agents and employees, with respect to space licensed for their use.
(e) Solicitations conducted by organizations composed of civilian employees of the Department of Defense or members of the uniformed services among their own members for organizational support or for the benefit of welfare funds for their members, after compliance with the requirements of § 234.3(d).
Posting or affixing materials, such as pamphlets, handbills, or fliers on the Pentagon Reservation is prohibited except as provided by § 234.13(b) or when conducted as part of activities approved by the applicable Building Management Office under § 234.3(d).
The use of cameras or other visual recording devices in restricted areas or in internal offices must be approved by the Department of Defense component occupying the space. Photographs for advertising or commercial purposes may only be taken with the permission of the Office of the Assistant to the Secretary of Defense for Public Affairs.
Gambling in any form, or the operation of gambling devices, is prohibited. This prohibition shall not apply to the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a State law and authorized by the provisions of the Randolph-Sheppard Act (20 U.S.C. 107,
(a)
(b)
(2) Carrying or storing a bottle, can, or other receptacle containing an alcoholic beverage that is open or has been opened, or whose seal is broken, or the contents of which have been partially removed, within a vehicle on the Pentagon Reservation is prohibited.
(3) This section does not apply to:
(i) An open container stored in the trunk of a vehicle or, if a vehicle is not equipped with a trunk, an open container stored in some other portion of the vehicle designed for the storage of luggage and not normally occupied by
(ii) An open container stored in the living quarters of a motor home or camper.
(4) For the purpose of paragraph (a)(3)(i) of this section, a utility compartment or glove compartment is deemed to be readily accessible to the operator and passengers of a vehicle.
(c)
(i) Under the influence of alcohol, a drug or drugs, a controlled substance or controlled substances, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(ii) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided, however, that if State law that applies to operating a vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.
(2) The provisions of paragraph (c)(1) of this section shall also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(3)
(ii) Refusal by an operator to submit to a test is prohibited and may result in detention and citation by an authorized person. Proof of refusal may be admissible in any related judicial proceeding.
(iii) Any test or tests for the presence of alcohol, drugs, and controlled substances shall be determined by and administered at the direction of an authorized person.
(iv) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(4)
(ii) The provisions of paragraphs (c)(3) and (c)(4)(i) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, a drug or drugs, or a controlled substance or controlled substances, or any combination thereof.
Parking regulations for the Pentagon Reservation shall be enforced in accordance with Department of Defense Administrative Instruction Number 88
(a) Whoever shall be found guilty of willfully violating any rule or regulation enumerated in this part is subject to the penalties imposed by Federal law for the commission of a Class B misdemeanor offense.
(b) Whoever violates any rule or regulation enumerated in this part is liable to the United States for a civil penalty of not more than $1,000.
(c) Nothing in this part shall be construed to abrogate any other Federal laws.
10 U.S.C. 2489a.
This part implements 10 U.S.C. 2489a, consistent with DoD Directive 1330.9
This part: (a) Applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is operating as a Service in the Navy), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities.
(b) Shall not confer rights on any person.
In implementing 10 U.S.C. 2489a, it is DoD policy that: (a) No sexually explicit material may be offered for sale or rental on property under the jurisdiction of the Department of Defense, and no member of the Armed Forces, or DoD civilian officer or employee, acting in his or her official capacity, shall offer for sale or rental any sexually explicit material.
(b) Material shall not be deemed sexually explicit because of any message or point of view expressed therein.
(a) The Assistant Secretary of Defense for Force Management Policy, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Monitor and, as to DoD resale activities under the Assistant Secretary's authority, direction and control, ensure compliance with this part;
(2) Establish, and appoint a chair of, the Resale Activities Board of Review (the “Board”) and approve senior representatives from the Army and Air Force Exchange Service, the Navy Exchange Service, and the Marine Corps Exchange Service; and approve a senior representative from each of the Military Departments, if designated by the Military Department concerned, to serve as board members on the Resale Activities Board.
(3) Monitor the activities of the Resale Activities Board of Review and ensure that the Board discharges its responsibilities as set forth in § 235.6.
(b) The Secretaries of the Military Departments shall ensure that their respective component DoD resale activities comply with this part and may designate a senior representative to serve on the Board.
(c) The Secretary of the Army and the Secretary of the Air Force shall each appoint one senior representative from the Army and Air Force Exchange Service to serve on the Board.
(d) The Secretary of the Navy shall appoint a senior representative from the Navy Exchange Service Command and a senior representative from the Marine Corps Exchange Service to serve on the Board.
(a) The Board shall have the authority and responsibility periodically to review material offered or to be offered for sale or rental on property under DoD jurisdiction, and to determine whether any such material is sexually explicit in accordance with this part. Within 60 days of the issuance of this part, the Board shall undertake and complete an initial review of material that is offered for sale or rental on the date that this part becomes effective.
(b) If the Board determines that any material offered for sale or rental on property under DoD jurisdiction is sexually explicit, such material shall be withdrawn from all retail outlets where it is sold or rented and returned to distributors or suppliers, and shall not be purchased absent further action by the Board.
(c) Following its initial review under paragraph (a) of this section, the Board shall convene as necessary to determine whether any material offered or to be offered for sale or rental on property under DoD jurisdiction is sexually explicit. The Board members shall, to the extent practicable, maintain and update relevant information about material offered or to be offered for sale or rental on property under DoD jurisdiction.
(d) If any purchasing agent or manager of a retail outlet has reason to believe that material offered or to be offered for sale or rental on property under DoD jurisdiction may be sexually explicit as defined herein, and such material is not addressed by the Board's instructions issued under paragraph (e) of this section, he or she shall request a determination from the Board about such material.
(e) At the conclusion of its initial review under paragraph (a) of this section, and, thereafter, from time to time as necessary, the Board shall provide instructions to purchasing agents and managers of retail outlets about the withdrawal and return of sexually explicit material. The Board may also provide instructions to purchasing agents and managers of retail outlets about material that it has determined is not sexually explicit. Purchasing agents and managers of retail outlets shall continue to follow their usual purchasing and stocking practices unless instructed otherwise by the Board.
The Chair, Resale Activities Board of Review, shall submit to the Assistant Secretary of Defense for Force Management Policy an annual report documenting the activities, decisions, and membership of the Board. The annual report shall be due on October 1. The annual report required by this part is exempt from licensing in accordance with paragraph 5.4.3. of DoD 8910.1-M.
5 U.S.C. 301.
This part establishes (a) guidance for preparation of the Defense Industry Bulletin, and (b) includes guidance and procedures governing Department of Defense cooperation with industry on (1) public affairs matters in general, (2) industry-sponsored events, and (3) advertising defense themes and products.
The provisions of this part apply to all components of the DoD.
(a) It is important that American industry—particularly defense contractors—understand the plans, programs, and activities of the DoD. Such understanding can be achieved by (1) wide dissemination of information to the business community, consistent with national security, and (2) cooperation with industry in public relations activities which are not contrary to the national or DoD interests.
(b) As outlined in part 237 of this subchapter, DoD components shall cooperate with industry at local and regional levels. However, they will notify the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) promptly of any local or regional activity which has the potential of being escalated, or which has been escalated by unforeseen circumstances, to national or international interest.
(a)
(1) DoD components may submit any of the items listed below to the Editor, Defense Industry Bulletin, OASD(PA), by the 20th day of each month. If no significant information exists, a negative report will be submitted.
(i) Articles, preferably by-lined, with supporting photographs or illustrations. (Suggested length is 2,000-2,500 words, but may be shorter or longer as coverage of subject requires.)
(ii) Material covering subjects that are timely and of particular interest to those organizations oriented toward defense contracting, including, but not necessarily limited to:
(
(
(
(
(
(
(
(
(
(iii) Key personnel appointment and reassignment announcements, for the “About People” section.
(iv) New or revised official directives, instructions, regulations, and other publications, for the “Bibliography” section.
(v) Scheduled technical meetings and symposia sponsored by DoD organizations, projected at least forty-five (45) days, for the “Meeting and Symposia” section.
(vi) Announcements of meetings, conferences, briefings, demonstrations, exercises, etc., projected at least forty-five (45) days, for the “Calendar of Events.”
(2) Each DoD component will designate one action officer and one alternate to assist the Directorate for Community Relations, OASD(PA), in carrying out responsibilities defined in paragraph (a)(1) of this section.
(b)
(
(
(
(
(ii) Participation in events which benefit a particular firm (examples—open houses and ceremonies dedicating new facilities) will be limited, normally, to speaker participation (see part 238 of this subchapter).
(2)
(3)
(4)
(c)
(2)
(3)
(d)
(e)
(2) Defense contractors wanting to distribute items through official DoD channels should be advised to contact the headquarters of the DoD component concerned for guidance.
(f)
(2) Classified meetings are governed by DoD Directive 5200.12,
(g)
(2) When DoD Components desire to sponsor such visits by nationally known press representatives, approval will be obtained from both the contractor and the ASD(PA).
5 U.S.C. 22.
This part is reissued to supplement part 237 of this title and to provide procedural guidance for the planning and conduct of community relations activities of the Armed Forces.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments (including their National Guard and Reserve Components), the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”). (As used in this Instruction, the term “Military Services” refers to the Army, Navy, Air Force, and Marine Corps.)
(b) Its provisions encompass all DoD community relations programs regardless of name, program, or sponsorship.
(a) As used herein the following definitions apply:
(1)
(2)
(3)
(4)
(5)
(b) Other terms used in this part are defined in § 237.8 of this title, and §§ 238.10 and 238.12 of this part.
(a) The policy of the Secretary of Defense governing Armed Forces Community Relations programs is based on public law and executive orders and is set forth in part 237 of this title. Amplification of basic policy and supplemental guidelines for the planning and conduct of specific categories and types of community relations programs are contained in this part.
(b) The Assistant Secretary of Defense (Public Affairs) (ASD(PA)) been designated as the principal staff assistant to act for and in behalf of the Secretary of Defense in granting any exceptions to basic public affairs policy.
(1) Requests for exceptions to this policy shall be submitted to the ASD(PA) via command channels.
(2) Such requests shall contain, as a minimum:
(i) A description of the community relations program contemplated,
(ii) A justification for approval of the exception, and
(iii) Appropriate recommendations.
(3) Exceptions shall be granted on a case-by-case basis.
(c) Policy guidance concerning public affairs relations with business and non-Government organizations representing business is contained in part 237a of this title.
(d) Policy governing the use of military carriers for public affairs purposes is contained in DoD Instruction 5435.2,
(a) Within basic legal and policy limitations, commanders at all levels who plan or conduct a community relations program shall consider initially:
(1) The interests of the Department of Defense and the community as a whole.
(2) Pertinent operational requirements.
(3) The availability of adequate and appropriate resources.
(b) When a proposed community relations program exceeds local support capability or the scope of local public affairs responsibility, it shall be referred, via command channels, to the appropriate higher echelon. The proposal shall contain, as a minimum:
(1) A description of the program;
(2) A list of support requirements;
(3) A description of the anticipated scope of the program;
(4) Comments concerning expected community reactions; and
(5) Appropriate recommendations.
(c) All DoD Components shall use approved DoD request formats, appended as various enclosures to this part, in processing requests by civilian sponsors for Armed Forces support of community relations programs. These formats, which may be reproduced locally, provide sufficient information to permit the approving authority to:
(1) Evaluate the appropriate degree of Armed Forces support, and
(2) Determine compliance with the requirements of this part.
(d) To ensure that a proposed community relations program conforms to the limitations imposed by public law and by policy contained in part 237 of this title, the following aspects of the
(1) The objectives and purposes of the program (
(2) The interests and objectives of the sponsor or sponsoring group (
(3) The nature or character of the location of the program (
(4) The full particulars of DoD support (
(a) The Department of Defense authorizes and encourages support of community relations programs when at least one of the conditions listed in each of the following criteria categories (program, sponsor, site, and support) is met:
(1)
(i) Specifically authorized or directed by public law, executive order, or the Secretary of Defense.
(ii) An official Federal Government, military, or civil ceremony or function.
(iii) An event or occasion of general interest or benefit to a local, State, regional, or national community, and is available to the community.
(iv) In support of authorized recruiting or personnel procurement programs.
(v) In support of:
(A) United, federated or joint fund-raising campaigns authorized by DoD Directive 5035.1,
(B) Such fund-raising appeals as the President or the Director of the Office of Personnel Management may authorize; or
(C) The Military Service Aid societies.
DoD support for local fund-raising programs, other than those described above, is authorized only when the fund-raising program is local in nature, is of community-wide interest and benefit, and has the support of endorsement of the local united, federated, or joint campaign officials; or when, in the judgment of the local commander, support of a purely local charitable drive is part of the responsible role of the military installation in the local community. Volunteer fire department, rescue unit, or youth activity fund drives are examples of such local programs.
(vi) In support of fund-raising campaigns solely for the benefit of U.S. teams competing in the Pan American Games or the Olympic Games (see DoD Directive 1330.4,
(vii) Of a patriotic nature; or with the addition of military support, designed to include a patriotic acknowledgement; or the celebration of a Government-recognized local, State, regional, or national holiday.
(2)
(i) A local, State, or Federal Government.
(ii) A veteran's, Military Service-related, patriotic, or historical organization or auxiliary.
(iii) An organization (civic, service, youth, professional, educational, business, trade, or labor) whose interests are in support of the community.
(iv) A commercial enterprise
(A) DoD support is patriotic in nature, is incidental to the program, and does not benefit selectively nor appear to benefit selectively the commercial activity of the sponsor;
(B) The sponsor's role is clearly civic in nature; and
(C) The commercial interest is subordinate to the community interest, and benefit in the program.
(v) A public school, public college, or public university.
Support is authorized for programs sponsored by nonpublic schools, colleges, or universities only when the program is (A) of a community-wide nature of common interest and benefit, is open to all, and is broadly
(3)
(i) A military installation.
(ii) A local, State, or Federal Government property, facility or building.
(iii) A bona fide community center.
(iv) A private or commercial building
(v) A religious building or facility
(vi) A shopping mall or center
(A) The support is directly related to the recruiting activities taking place, and the type and amount of support are commensurate with the scope and nature of the recruiting activity.
(B) Community relations support is not advertised, promoted, or presented as an attraction for the center or mall (or for special business activities such as promotional sales).
(C) The support activities are in no way related, nor do they appear to be related, to a particular business or particular group of business establishments within the mall or center.
Because of the commercial nature of shopping malls and centers, special care must be exercised to avoid the selective benefit of specific business interests. Where two or more such centers or malls are part of a community, support of recruiting activities must be administered in an even-handed manner, with fairness and extreme care.
(4)
(i) Can be reasonably expected to bring credit to the individuals involved and to the Armed Forces and is at no additional cost to the Government; or
(ii) Is specifically authorized to be at Government expense by this part (§ 238.7), by public law, by executive order, or by the Secretary of Defense.
(b) The Department of Defense does
(1)
(i) Intended or appears to endorse, benefit selectively, or favor any private individual, group corporation, religion, sect, ideological movement, political organization candidate, or commercial venture.
(ii) For the purpose of solicitation of votes in a political election.
(iii) A commercially oriented program, such as a Christmas parade, a motion picture premiere, a fashion show, a beauty pageant, or any other event or activity conducted to stimulate sales or increase the flow of business traffic.
(iv) For the purpose of raising funds for causes other than those specified in paragraph (a)(1)(v) of this section.
(v) One in which public confrontation is planned or likely or where the real or apparent purpose is to stage controversy.
(2)
(i) A commercial enterprise (except as specified in paragraph (a)(2)(iv) of this section).
(ii) A religious group (except for a school, as specified in paragraph (a)(2)(v) of this section, sect, or partisan political organization, or ideological movement.
(iii) An organization whose constitution, bylaws, membership qualifications, or ritual is privately held and not available to the general public (e.g., many fraternal organizations).
(3)
(i) Admission, seating, and any other accommodation or facility connected with a public program are barred to any person because of race, creed, color, national origin, or sex.
(ii) The location of the program is a private, commercial, or religious facility, a shopping mall or center, or a nonpublic school, college, or university
(4)
(i) Has been determined, by a finding of fact, to interfere with the customary or regular employment of non-DoD persons in their art, trade, or profession.
(ii) Is or could be considered to be the primary or major attraction for which admission is charged, except for:
(A) Athletic events of the Military Service academies;
(B) Performances by aerial demonstration teams;
(C) Concerts by the U.S. Army Band, the U.S. Army Field Band, the U.S. Navy Band, the U.S. Marine Band and the U.S. Air Force Band while on authorized tours.
(iii) Consists wholly or in part of resources, facilities, or services which are otherwise reasonably available from commercial sources.
(iv) Involves the use of military personnel (including members of Guard/Reserve components and ROTC in uniform) outside military reservations as ushers, guards, parking lot attendants, runners, messengers, baggage handlers, for crowd control, or in any other inappropriate capacity.
(v) Interferes with military needs or operational requirements.
(a) The cost of DoD support of community relations programs authorized in § 238.7(b) shall be the responsibility of the DoD Component(s) involved. Funding requirements for these purposes shall be kept to the minimum necessary to accomplish DoD objectives.
(b) DoD Components shall absorb the costs of supporting those community relations programs that are specifically authorized by public law, executive order, or the Secretary of Defense, and the following types of programs when they are in the primary interest of the Department of Defense:
(1) Official Federal Government functions.
(2) DoD or civic-sponsored observances of United States or host country national holidays.
(3) Official civil ceremonies and functions.
(4) Speaking engagements.
(5) Events considered to be in the national interest or in the professional, scientific, or technical interests of a DoD Component or element, when approved by the Assistant Secretary of Defense (Public Affairs) or the Commander of an overseas Unified or Specified Command, as appropriate.
(6) Direct support of recruiting and personnel procurement activity, when the cost of such support is charged to recruiting or personnel procurement programs funds.
(c) DoD support of community relations programs that are not authorized in paragraph (b) of this section shall be at no additional cost to the Government.
(d) To adhere to congressional funding limitations, due care must be exercised in the identification of costs of community relations programs. Programming, budgeting, and financing policies are set forth in part 237 of this title. In general, for purposes of the limitations, the incremental cost of any resource incurred solely for community relations purposes must be identified as a public affairs cost; and costs incurred by a DoD Component in connection with its support of a community relations program, which would not be incurred but for their public affairs aspects, must be identified as public affairs costs. Effective management of a community relations program may require full costing (total direct and indirect costs) of the use of resources when their use benefits or is caused by the program. This information shall be provided to management officials and the OASD(PA) on an “as required” basis.
(e) When routine training flights are used as opportune airlift to transport military personnel, no reimbursement to the providing Component is required. When Military Airlift Command industrially funded transportation facilities are used, the industrial fund must be reimbursed, in accordance with DoD Directive 7410.4,
(a) Requests for DoD support of community relations programs shall, except as otherwise specified in this Instruction, be evaluated and approved or disapproved at the lowest practicable echelon or command (see § 238.5(a)(2)).
(b) The
(1) The ASD(PA) is the sole authority for approving all DoD support of community relations programs in the National Capital area (see § 238.11 and § 238.13), except speaking engagements (see § 238.12), and for DoD support of the following programs outside that area:
(2) National and international programs, including national conventions and meetings (except those programs taking place in overseas areas which are solely of internal concern to a Unified or Specified Commander); see §§ 238.11, 13, 14, 15, 16, and 18.
(3) Programs outside the 50 United States which are not within a Unified or Specified Command's area of responsibility.
(4) Programs where the officially designated flight and parachute demonstration teams (Golden Knights, Blue Angels, Thunderbirds) perform, in accordance with § 238.10.
(5) Programs held on a military installation involving an aerial review of more than one Military Service, and programs involving any aerial review, flyover, or aircraft demonstration held elsewhere within the United States or as outlined in paragraph (b)(2) of this section (except for flyovers for civic-sponsored observances of and official ceremonies for Armed Forces Day, Memorial Day, Independence Day and Veterans Day, authorized by the Secretaries of the Military Departments), in accordance with § 238.10.
(6) Programs that require acting as the sole point of official contact within the Department of Defense for liaison between the Department of Defense and the headquarters and Washington offices of national organizations and other national non-Government groups, except for those organizations representing a specific interest of a single Military Service, e.g., Association of the U.S. Army, Air Force Association, Navy League, Marine Corps League, etc. (see paragraph (d) of this section).
(7) Programs that provide information to national organizations, including business and industry groups, and call for approving support of the activities of such organizations and groups, in accordance with § 238.13. (See part 237a of this title.)
(c) The
(d) The
(1) Approve the unofficial use of the official insignia of their Departments, except where such use is prohibited by law.
(2) Conduct direct communication and liaison with organizations representing specific interests of their respective Military Departments. Military Departments which maintain liaison with such organizations are required to carry on their activities in accordance with the letter and the spirit of policies set forth in parts 237, 91, and 40 of this title, (respectively). ASD(PA) shall be responsible for monitoring the liaison activities between Military Departments and these organizations.
(3) Delegate to local major unit commanders authority to support local programs jointly planned and conducted by border communities in California, Arizona, New Mexico, and Texas, with their counterparts in Mexico.
(i) Local programs are defined as those which center on and are of primary interest in a U.S. or Mexican border community.
(ii) Favorable determinations shall be based on the significance of the program, defense interest, advance consultation, and approval of appropriate
(e) The
(f) The
(g) The
(a) Records will be maintained and required reports furnished in accordance with § 237.6 of this title.
(b) The additional reporting requirement specified in §238.11 has been assigned Report Control Symbol DDPA(M) 979.
(a)
(2) Attached to this enclosure is the approved DoD “Request for Aerial Demonstration” format.
(b)
(1)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(c)
(2) Any aerial demonstration will be entirely dependent upon the Military Services' capability to provide such resources at the time of an event.
(3) All pertinent safety regulations of the Department of Defense and the Department of Transportation (Federal Aviation Agency) will be rigidly observed, and will take precedence over any or all conditions or circumstances.
(4) Maximum advantage of Armed Forces recruiting will be taken at public events where Armed Forces aerial demonstrations have also been authorized.
(5) During the hours aircraft are actually on display or providing demonstrations before the public, qualified Armed Forces personnel will be available to explain the missions performed and answer spectators' questions.
(6) Armed Forces teams may not compete for prize monies. (See part 237 of this title.)
(7) Armed Forces aerial demonstrations are usually limited to 2 days in any one aerial event. However, parachute demonstrations may extend over a 3-day period. This provision may be waived when:
(i) Other requests for the time frame have not been authorized.
(ii) Extended participation does not compromise another event because of travel time.
(iii) It is determined that the audience will change each day.
(iv) The event is of national or international nature and participation would be in the best interests of the Department of Defense.
(8) No two aerial demonstration teams of the same type will be approved for a single event. Flyovers may be authorized at an event where a flight or parachute demonstration team will perform, provided they are scheduled on days other than those authorized for the demonstration teams' performance. Static displays and other aerial activities may be authorized in conjunction with any other aerial participation.
(9) Aircraft performance record demonstrations are restricted to aircraft which have been assigned to an operational unit of a Military Service for at least 6 months in demonstrations which imply no competition among the Military Services. They may be conducted periodically in the interest of keeping the public apprised of U.S. engineering-technical capabilities in the development of aircraft altitude, speed, endurance, and individual performance or record demonstrations.
(d)
(2) The Department of Defense (OASD(PA)) will host a scheduling conference in mid-December each year to prepare the official flight and parachute demonstration team's performance schedules for the following year.
(i) Nonmilitary sponsors desiring flight and/or parachute demonstration teams must submit an approved DoD request format (Enclosure 1) to ASD(PA) no later than September 30 to be considered for inclusion in the approved schedule for the following calendar year.
(ii) Military Departments desiring flight or parachute demonstration team performances will consolidate their requests and forward them to ASD(PA) no later than November 15 to be considered for inclusion in the approved schedule for the following calendar year.
(iii) Following the scheduling conference, a tentative schedule will be prepared by OASD(PA) and submitted to the Military Departments for review and concurrence prior to final approval by the ASD(PA). Precautions will be taken to ensure that sponsors are
(3) Nonmilitary sponsors desiring aerial demonstrations other than flight and parachute team demonstrations should be requested to submit an approved DoD request form (Enclosure 1) to OASD(PA) no later than 30 days, and preferably 60 days, prior to the scheduled event.
(4) DoD Components desiring to conduct aerial reviews involving more
(5) The Military Departments will forward requests for attempts to establish aircraft performance records and to release information relative thereto to the ASD(PA) at least 45 days prior to the date of the proposed attempt. Submissions will include a description of the specific aircraft to be used and full justification for the proposed record attempt, including supporting flight and information plans. ASD(PA) will coordinate the request within the Department of Defense and with other appropriate Government departments or agencies and the National Aeronautic Association of the United States of America.
(e)
(1)
(ii) Aerial demonstrations may be authorized for military installations, including those leased by Reserve Components, in accordance with the guidance and direction provided by the ASD(PA) and the Secretaries of the Military Departments. Appearances by the flight and parachute demonstration teams on a military installation will only be approved in support of an official “Open House” program.
(iii) To minimize interference with operations and training of Armed Forces aviation units, flyovers will be approved only for the following occasions.
(A) Those events outlined in paragraphs (e)(1) (i) and (ii), above.
(B) Civic-sponsored public observances of and official ceremonies for Armed Forces Day, Memorial Day, Independence Day, and Veterans Day.
(C) Memorial or funeral services for dignitaries of the Armed Forces and the Federal Government, and for rated/designated aviation personnel of the Armed Forces as determined by appropriate Military Department regulations.
(D) Ceremonies honoring foreign dignitaries, when directed by executive order or the Secretary of Defense.
(E) Occasions primarily designed to encourage the advancement of aviation.
(2)
(3)
(ii) Flight or parachute team demonstrations are restricted to appropriate events at airports, over open bodies of water, or over suitable open areas of land where crowd control can be ensured.
(iii) Flight demonstration team aircraft must operate from suitable airfields or the site of the event must be within a reasonable distance of a staging base. In the latter case, performances are seldom authorized since the recruiting potential is significantly reduced.
(iv) For any military aircraft to operate from an airport show site, all operational requirements concerning minimum usable runway lengths and load-bearing capacity must be met.
(v) Mass parachute jumps, aerial delivery of equipment, assault aircraft demonstrations, or tactical helicopter troop landings under simulated tactical conditions will be limited to military installations. These activities, except those scheduled as part of regular training programs, are not authorized for public events.
(4)
(ii) Civilian sponsors will be responsible for providing the following:
(A) The standard Military Services allowance for quarters and meals for Armed Forces participants, except for flyovers and other aerial activities not involving landing.
(B) If necessary, transportation, meals, and hotel accommodations for representatives of the requested unit to visit the site prior to the event.
(C) Transportation for Armed Forces participants between the site of the event and hotel and return. Additionally, if required, transportation from home station to the event and return.
(D) Telephone facilities for necessary official communications regarding the event.
(E) A recent aerial photograph, taken vertically from an altitude of 5,000 feet or higher, to the team giving the demonstration.
(F) Availability of suitable aircraft fuel at military contract prices. If fuel is not available at military contract prices, the sponsor must pay any costs over military contract prices, including transportation and handling.
(G) An ambulance and a doctor on the site during flight and parachute team demonstrations and certain other aerial activities, as determined in advance by the Military Services or the OASD(PA).
(H) Mobile firefighting, crash, and ground-to-air communications equipment at the demonstration site.
(I) Security for aircraft that land and are parked at the site during their entire stay.
(J) If necessary, aircraft for use as a jump platform by a parachute team at the location of the event.
(f)
(i) The sponsor is required to pay the standard per diem for quarters and meals, as prescribed in the Joint Travel Regulations, Volumes 1 and 2, and to provide adequate ground transportation between hotels and the site of the event and other necessary services, as determined by the participating Component and agreed to by the sponsor.
(ii) The sponsor should make the check for the required amount payable to the DoD organization which incurred reimbursable expenses. Usually, this will be the DoD organization to which the demonstration team is assigned. The Defense representative who makes the arrangements for the demonstration will provide the sponsor with the name or other identity of the organization to be cited as payee on the check. The sponsor will present the check to the appropriate demonstration team or aircraft commander upon arrival at the scheduled event. The commander, in turn, will transmit the check, expeditiously, to the accounting and finance office that supports the payee's operations.
(2) All costs are binding after a team or crew personnel have arrived at a show site, even though weather conditions or other unforeseen circumstances force the event to be canceled.
(g)
(i) All official flight team and parachute team demonstrations held on a military installation or elsewhere.
(ii) Flyovers held off a military installation (except as provided in paragraph (g)(2)(ii), of this section).
(iii) Aerial reviews involving more than one Military Service held on a military installation and all aerial reviews held elsewhere.
(iv) Aerial demonstrations held outside the United States which are not within a Unified or Specified Command area of responsibility.
(v) Other activities held off a military installation (except as provided in paragraph (g)(2)(v) of this section).
(2) The Secretaries of the Military Departments are authorized to approve aerial demonstrations in support of community relations programs by aircraft of their respective Services, as follows:
(i) Flyovers for events on military installations.
(ii) Flyovers at events off military installations for civic-sponsored observances of Armed Forces Day, Memorial Day, Independence Day and Veterans Day (except in the National Capital area).
(iii) Flyovers provided for military funerals for rated/designated aviation personnel of the Armed Forces.
(iv) Static display of aircraft held on military installations or elsewhere.
(v) Other aerial activities, as follows:
(A) Those held on military installations.
(B) Air-rescue demonstrations, team, or single parachute demonstrations (other than the U.S. Army Golden Knights), Navy Seal Team demonstrations, rappelling demonstrations, and air-to-air refueling demonstrations.
(a)
(b)
(c)
(2)
(3)
(4)
(d)
(i) Endorse or benefit selectively or favor any private individual, group, corporation (whether for profit or nonprofit), sect, quasi-religious or ideological movement, political organization, or commercial venture; or
(ii) Be associated with the solicitation of votes in a political election. (See § 238.6 (a) and (b).)
(2) Support by the Armed Forces of any program may be authorized only if admission, seating, and all other accommodations and facilities are available to all without regard to race, creed, color, national origin, or sex.
(i) Support of programs sponsored by certain organizations may be authorized when the program is oriented towards the community interests as opposed to the sectarian, fraternal, or national origin aspects or objectives of the organization.
(ii) Participation in nonpublic school events is authorized when the program is clearly patriotic or educational in nature or is in support of recruiting programs.
(iii) No admission charge may be levied on the public solely to see an Armed Forces demonstration, unit, or exhibit. When admission is charged, the Armed Forces activity must not be the sole or primary attraction. (Excludes Navy and Marine Corps Band Tours.)
(3) The term “fund-raising” identifies the avowed or announced purpose of a program which, by any means, seeks to acquire money or material in excess of actual costs for charitable, civic, or other purpose. Support by the Armed Forces in an official capacity in fund-raising programs is restricted to fund-raising activities in support of recognized united, federated, joint, or other authorized campaigns (see § 238.6(a)(1)(v)). A required condition of such support will be that the sponsor of an event certifies that all profits accrued will be donated to a united, federated, or joint campaign. In view of the national interest, the Armed Forces may support sports or other public programs held for the sole purpose of raising funds for the U.S. teams competing in the Pan-American and Olympic Games. DoD policies concerning Armed Forces support of fund-raising programs are detailed in part 237 of this title. Additional information may be found in DoD Directive 5035.1.
(4) When Armed Forces support of a public program is in the mutual interest of the Department of Defense and the sponsor, participation will be authorized at no additional cost to the Government. Additional costs to the Government—travel and transportation of military personnel, meals and quarters or the standard per diem allowance—must be borne by the sponsor.
(5) The duration of support by military units in any single program is limited in the interests of proper utilization and equitable distribution of Armed Forces manpower and resources. While an exhibit may be scheduled for the duration of a program, participation of a unit such as a military band is limited to 3 days.
(6) Armed Forces support of professional sports programs and all postseason bowl games will be authorized at no additional cost to the Government, will emphasize joint Service activity where praticable, and must support recruiting programs. Support of commercially oriented events, such as beauty pageants, Christmas parades, and motion picture premieres is not authorized.
(7) Armed Forces musical units may be authorized to provide certain specified musical presentations for public programs. The performance must not place military musicians in competition with the customary or regular employment of local nonmilitary musicians. Background, dinner, dance, or other social music is not authorized for public programs held away from a military installation. Programs which may be authorized usually include a short (15-20 minute) patriotic presentation. Musical selections consist of a medley of military or patriotic songs, appropriate honors, and music to accompany
(e)
(2) Most exhibits are displayed during programmed tours which are scheduled 6 to 8 months in advance. Requests for these exhibits should be initiated well in advance of the event.
(3) Requests for Armed Forces exhibits in support of public programs should be forwarded to one of the following addressees, using an approved DoD request format:
(4) The exhibits used in support of personnel procurement and recruiting are governed by policy established by the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics).
(f)
(ii) The use of military personnel as ushers, guards, parking lot attendants, runners, messengers, baggage handlers, crowd control, or other inappropriate capacities in support of public programs conducted off military installations is not authorized.
(2)
(ii) In public programs for which DoD support has been authorized and at which the display of colors is appropriate, a Joint Armed Forces Color Guard will be employed, when available, using the following composition: Two Army bearers with National and Army colors; one each Marine Corps, Navy, Air Force, and Coast Guard
(iii) When a Joint Armed Forces Color Guard, as specified above, cannot be formed, the senior member of the senior Service in the Color Guard will carry the national colors. DoD Components will be guided by the table of precedence prescribed in DoD Directive 1005.8,
(iv) United States military personnel may carry flags of foreign nations in official civil ceremonies when an official of the nation concerned is present in an official capacity and the official is one for whom honors normally would be rendered. In all other public programs or ceremonies, United States military personnel in uniform and in an official capacity are not authorized to carry flags of foreign nations, veterans groups, or other nonmilitary organizations.
(3)
(A) The equipment must be locally available in the command, and its use for public affairs purposes must not be permitted to interfere with the military mission of the command.
(B) The public affairs program for which loan support is requested must be one in which the command is actively participating and one within the scope of its community responsibilities.
(ii)
(g)
(2)
(ii) It is recognized that the State National Guard may be ordered to State duty by appropriate State authority, although Federal funds are not made available. Such service and expenses involved are paid for by other than Federal funds. The governor of a State has the authority to utilize, at no expense to the Federal Government, national guard troop units as required in support of the inaugural parade and ceremonies.
(iii) The duties to be performed by national guardsmen in uniform shall conform to the policies of the Secretary of Defense as set forth in part 237 of this title and this part. Use of military personnel as escorts, ushers, doormen, or drivers for nonmilitary guests or local dignitaries is not authorized.
(a)
(b)
(2)
(c)
(d)
(i) Participation must not interfere with assigned duties.
(ii) Speakers must address their remarks to subjects within their official cognizance.
(iii) Views expressed must not conflict with national policy.
(iv) Speakers may not be provided for partisan political gatherings (see DoD Directive 1344.10,
(v) A speaker's participation must not lend an air of sponsorship to the statements of others which may be partisan in nature or contrary to national policy.
(vi) Subject matter and text may require review and clearance (see DoD Directive 5230.9,
(vii) Situations where the real or apparent purpose is to stage controversy will be avoided. The ASD(PA) will be consulted before speakers are provided for events in which public confrontation or debate of national policy matters is planned or likely.
(viii) Department of Defense support is not authorized if the sponsor or sponsoring organization specifically excludes any person from its membership for reasons of race, creed, color, or national origin. However, DoD support is authorized for programs sponsored by organizations whose qualifications for membership is based on national origin or sex, but only when the program so supported is oriented to the community rather than to the national origin or objective of the organization itself, and admission, seating, and all other accommodations and facilities connected with the program are available to all without regard to race, creed, color, national origin, or sex.
(ix) Acceptance of press, radio, and television interviews in conjunction with speaking engagements is encouraged, subject to the provisions of this Instruction and other pertinent public affairs Directives.
(x) Advance distribution of copies of speech texts (embargoed when necessary) may be used to gain wider dissemination of DoD information beyond an intended local audience when media coverage is anticipated. Distribution of speech texts should be made in cooperation with the host organization.
(2)
(3)
(e)
(2) Acceptance of a gratuity as defined in part 40 of this title, a fee, or an honorarium is prohibited. Reimbursement for necessary travel and living costs may be accepted from the sponsoring organization in lieu of reimbursement by the Government, in accordance with Joint Travel Regulations (Volumes 1 and 2). Consult the local finance or disbursing officer for specifics.
(f)
(i) Name, rank, and title of speakers
(ii) Date of speaking engagement
(iii) Place of speaking engagement
(iv) Host organization
(2) This reporting requirement has been assigned Report Control Symbol DD-PA(M)979.
(3) From the above information, the Directorate for Community Relations, Office of the Assistant Secretary of Defense (Public Affairs), will publish a monthly speakers' schedule.
(a)
(b)
(i) Requests for information emanating from an organization and bearing directly on an individual DoD Component.
(ii) Requests for speakers.
(iii) Those matters involving contractual or consulting relationships.
(iv) Matters pertaining to scientific and technical information. Scientific and technical information services are administered by the Defense Logistics Agency.
(2) Except in the National Capital area, local and regional chapters of national organizations may deal directly with local commanders as delegated by appropriate authority. In the National Capital area, local and regional chapters shall be referred to OASD(PA) when they request support from the Department of Defense or any of its elements. When appropriate, OASD(PA) will refer the matter to whatever DoD Component can best fulfill the organization's request.
(3) Authority for direct communication and liaison with organizations directly associated with specific interests of a single DoD Component is delegated (see § 238.8(d)(2) of this part) to that Component. Individual Components which maintain liaison with such organizations are required to carry on their activities in accordance with the letter and the spirit of policies set forth in parts 237, 91, and 40 of this title, respectively).
(4) OASD(PA) periodically provides to national organizations information concerning policies, programs, budg- -ets, and other activities of the Department of Defense. DoD Components are encouraged to provide informative material to OASD(PA) for inclusion in these periodic mailings. Examples of Component-related material which would be proper for distribution to organizations through OASD(PA) include posture statements, significant congressional testimony, internal publications outlining important programs which will have a wide-ranging impact, and other major policy pronouncements such as speeches.
(5) Policies regarding liaison and communication with the support for organizations representing business or commercial interests are outlined in part 237a of this title which also covers relationships with businesses, industries, and other commercial enterprises.
(a)
(b)
(2) In keeping with the spirit of unification as set forth in the National Security Act of 1947, as amended, participation by military units in the observance of the birthdays of individual DoD Components or any other day or days of significance to a single Component, its subordinate elements, or auxiliaries will not be undertaken away from military installations without the specific authorization of the Assistant Secretary of Defense (Public Affairs).
(3) The United States Coast Guard is included, where feasible, in observances of Armed Forces Day, pursuant to agreement with the Secretary of Transporation.
(c)
(2) Cooperation with communities and organizations planning observances of Armed Forces Day is encouraged.
(3) DoD Components shall extend hospitality to the general public by hosting “Open House” or similar activities on military installations and ships.
(4) In localities and situations where two or more Military Services are represented, joint participation in community sponsored programs is encouraged.
(5) Armed Forces Day will be treated as a national holiday for purposes of determining support authorized by part 237 of this title and this part.
(6) Armed Forces Day will be observed in overseas areas in the manner determined most suitable by the Commander-in-Chief of the Unified or Specified Command concerned. The observance may be held on military installations for U.S. personnel and dependents and may be open to the general public or conducted elsewhere in the host nation. These observances will not be combined with other U.S. or foreign holidays or observances.
(d)
(a)
(1) Veterans Day observances at communities designated as regional sites by the Veterans Day National Committee of the U.S. Veterans Administration;
(2) Smaller local observances held in communities not so designated; and
(3) National conventions of national veterans organizations.
(b)
(ii) Regional sites are designated to ensure that proper priority and an appropriate level of support are available for these major observances.
(2)
(a)
(b)
(2) Enclosure 5 also contains a list of Military Departments responsible for providing a representative of the President to place each wreath.
(3) The minimum appropriate military grade for this program is general or flag rank, unless overriding considerations preclude the availability of a general or flag officer.
(c)
(2) Secretaries of the Military Departments will designate appropriate Presidential representatives, in accordance with the listing contained in enclosure 5, to place wreaths in honor of former Presidents. The name, rank, title, address, and telephone number of each designated representative will be forwarded to the ASD(PA) at least 60 days in advance of the month of wreath placement.
(3) The Military Assistant to the President will make necessary arrangements to provide each wreath.
(4) Names of designated Presidential representatives will be forwarded, via the Special Assistant to the Secretary of Defense, to the Military Assistant to the President, who will coordinate final details of each ceremony.
(d)
(a)
(2) Athletic activities of the Military Service academies that are conducted away from military installations shall be governed by the general policy contained in part 237 of this title and this part.
(b)
(1) Act for the Department of Defense on matters pertaining to sports involving more than one Military Service.
(2) Plan and conduct all interservice sports championships, and establish and monitor all joint Military Service efforts in support of national and international sports activities.
(3) Coordinate with Department of State, as required by part 347 of this title, and other Government agencies and national sports organizations on sports tours and clinics in foreign countries which propose to utilize U.S. military personnel.
(4) Provide representation for the Department of Defense on related Government committees.
(5) Coordinate and maintain liaison with national sports governing bodies in matters of mutual interest to the Military Departments.
(6) Secure Department of State approval for military participation in international sports competition, and monitor military sports programs to ensure compliance with the provisions of part 237 of this title.
(7) Serve as a contact point for the entire Defense establishment on questions pertaining to sports.
(a)
(b)
(2) After being nominated, the officer will be designated as the DoD Coordinator by OASD(PA). The DoD Coordinator will be responsible for coordinating all military support, including support by National Guard/Reserve components, within the limitations set forth in part 237 of this title, this part, and other specific guidelines prepared by OASD(PA) and provided to him/her upon designation as DoD Coordinator. The DoD Coordinator is authorized direct liaison with OASD(PA).
(3) Also, OASD(PA) will request appointment of project officers, normally located within the area of the event, from the Military Departments providing support for the program. These
(c)
This part contains a list of Public Affairs-related activities conducted by certain DoD Components under authority other than that delegated to the ASD(PA).
(a)
(2) The Secretary of the Army is designated as the DoD Executive Agent for military support in disasters.
(3) The ASD(PA) is responsible for associated public affairs activities.
(b)
(2) The ASD(ISA) is responsible for overall coordination of DoD support.
(3) The ASD(PA) is responsible for public affairs plans and activities. He is the single point of contact with the Department of State/AID or the International Communications Agency (ICA) on associated public affairs matters.
(c)
(2) Policies and procedures governing the use of DoD facilities or resources for other than public affairs purposes are the responsibility of the ASD(MRA&L), the Secretaries of the Military Departments, or the Directors/Commanders of other DoD Components.
(d)
(2) Travel or transportation for public affairs purposes is defined as any travel or transportation of individuals, groups, or materiel undertaken as a result of a request to or an invitation from and authorized by competent authority in the Department of Defense in the interest of adding to the public understanding of DoD activities. It includes travel or transportation involving individuals or things, military or civilian, Government or non-Government, U.S. or foreign requests. It may be reimbursable.
(3) All other uses of military carriers are governed by policies promulgated by the ASD(MRA&L).
(e)
(1)
(2)
(3)
(ii) Where authorized, priorities for travel on military carriers—ASD(MRA&L)—DoD Regulation 4515.13-R,
(iii) Use of military transportation and facilities to include support for International and National Jamborees—ASD(MRA&L).
(4)
(5)
(ii) Donation of Surplus Equipment—ASD(MRA&L) DoD Manual 4160.21-M,
This format is used to request Armed Forces aerial demonstrations at public events. The information is required to evaluate the event for appropriateness and compliance with DoD policies and for coordination with units involved. Please complete
Each year, in December, the Department of Defense hosts a flight and parachute demonstration team scheduling conference to prepare the annual schedule for the following calendar year for the U.S. Navy Blue Angels, the U.S. Air Force Thunderbirds, and the U.S. Army Golden Knights. All requests for these demonstration teams must arrive at the Office of the Assistant Secretary of Defense, Public Affairs (OASD/PA), no later than September 30, to be considered at the scheduling conference. Requests for other aerial demonstrations (flyovers, static displays, etc.) must arrive at OASD(PA) a minimum of 30 days in advance of the event and preferably 60 days.
DoD policies require that aerial demonstrations at public events will be provided at no additional cost to the Government. The sponsor is required to pay the standard Military Services allowance for quarters and meals for Armed Forces participants and for certain other services determined in advance by the Military Services and agreed to by the sponsor. All costs are binding after a team or crew personnel have arrived at a show site, even though weather conditions or other unforeseen circumstances force the event to be canceled.
1. Title of event:
2. Town or city: ____ State: ____
3. Place (airport, fairgrounds, etc.):
4. Inclusive dates of event:
5. Sponsoring organization:
6. This request is for: (please circle the appropriate event):
a. U.S. Navy Blue Angels
OR
U.S. Air Force Thunderbirds
(The standard Military Services allowance for quarters and meals for either team will cost $2,100.00 for each day a team is scheduled at your event.)
b. U.S. Army Golden Knights
(The cost will vary dependent upon travel time to and from the demonstration site, and the number of participants.
c. Aircraft Flyovers
(No cost to sponsor)
d. Static Display
(The standard Military Services allowance for quarters and meals is $35.00 per day per crewmember.)
U.S. Army Golden Knights: Under normal conditions, the team is composed of nine jumpers, three aircraft crewmen, a ground controller, a narrator and information specialist. They are reimbursed by the Government at an average cost of $30.00 per individual per 24-hour day, for each performance day required to support your event (average team cost per performance day: 15 personnel × $30 = $450.00). Travel day reimbursement required to support your event is normally an average of $15.00 per individual per day, for each day of travel to and from Fort Bragg, North Carolina (average team cost per travel day: 15 personnel × $15 = $225.00). The sponsor will be advised by the Golden Knights, in advance, of the exact cost which the Government must be reimbursed.
1. Purpose of this event:
2. Expected attendance: _____
3. Admission charge: $___
Charge for seating (if not included in admission charge): $___
a. Will prize monies be given for any purpose at this event? ___
b. Source of prize monies: _____
c. Is this event used to promote funds for any purpose? _____
d. Disposition of profits which may accrue: _____
4. Will admission, seating and all other accommodations and facilities connected with this event be available to all persons without regard to race, creed, color, sex, or national origin?____
5. Will sponsor consult with local Military Service recruiters and support, at no charge, military recruiting activities at the site of the event? ____
6. This event (is) (is not) a civic occasion and (does) (does not) have the official backing of the Mayor.
7. Has a demonstration team ever performed at your event before? ____
1. Flight or parachute team demonstrations are restricted to appropriate events at airports, over open bodies of water, or over suitable open areas of land.
a. Specific location of event:
b. Length of active runway:
2. Flight and parachute team demonstrations must adhere to FAA regulations which specify that spectators are not to be permitted within 1,500 feet of an area over which flight demonstrations take place, or within 250 feet of a jump area over which parachutists are performing.
a. What type of crowd control is planned?
3. Flyovers and flight and parachute team demonstrations require that sponsors secure FAA clearance or waiver.
a. Does the FAA representative in your area agree that your aviation event is feasible for the type of Armed Forces aerial demonstrations requested? _____
b. Will sponsor secure FAA clearance or waiver at least 60 days prior to event? _____
4. Sponsor agrees to provide to the demonstration flight or parachute team commander, upon request, a recent aerial photograph, taken vertically from an altitude of at least 5,000 feet.
Indicate that the sponsor understands and will provide the following:
1. Team costs as outlined in section A:
2. The standard Military Services allowance for quarters and meals for Armed Forces participants (if not included in team costs):
3. If required, transportation, meals, and hotel accommodation cost for representatives of the requested unit to visit the site prior to the event:
4. If required, transportation costs from home station to the event and return for all participants:
5. Transportation costs for all participants between site of the event and hotel:
6. Telephone facilities for necessary official communications at the site of the event:
7. Security for aircraft that land and are parked at the site during their entire stay:
8. Mobile firefighting, crash, and ground-to/air communications equipment at the demonstration site for flight and parachute demonstrations and static display aircraft:
9. Suitable aircraft fuel at military contract prices. (Sponsor must pay all costs, including transportation and handling, if necessary, over military contract prices if fuel is not available at such prices):
10. An ambulance and doctor on the site during flight and parachute demonstrations and during certain other types of aerial activities as determined in advance by the Military Services or OASD(PA):
1. Sponsor (is) (is not) a civic organization.
2. The sponsoring organization (does) (does not) specifically exclude any person from its membership based on race, creed, color, or national origin.
3.
Position with sponsoring organization:
4. Name and address of any Armed Forces representative or Government official with whom you have discussed possible participation:
I certify that the information provided in sections A. through E. is complete and correct to the best of my knowledge and belief. I understand that representatives of the Military Services will contact me to discuss arrangements and costs involved prior to final commitments.
Mail to: Directorate for Community Relations, OASD(PA), Room 1E 776, The Pentagon, Washington, DC 20301.
This format is used to request all Armed Forces Band, Troop, and Exhibit participation in public events. The information is required to evaluate the event for appropriateness and compliance with DoD policies and for coordination with the units involved.
Date: ___ Time_—from: __ to: __
Place: (Auditorium, convention hall, etc.)
3. The sponsor (is) (is not) a civic organization and the event (has) (does not have) the official backing of the mayor.
4. The sponsoring organization (does) (does not) exclude any person from its membership or practice any form of discrimination in its functions based on race, creed, color, or national origin.
5. Sponsor's representative authorized to complete arrangements for Armed Forces participation:
City, State: _____ Zip: __
Telephone: (Office) () ___ (Home) () ___
6. Purpose of this event (explain fully):
8. Is this event being used to raise funds for any purpose?
10. Disposition of profits which may accrue:
11. Will admission, seating, and all other accommodations and facilities connected with the event be available to all persons without regard to race, creed, color, sex, or national origin?
12. Will the standard Military Services allowance for
13. Will transportation at sponsor's expense be provided for Armed Forces participants between the site of the event and hotel?
14. Will telephone facilities, at sponsor's expense, be made available for necessary official communications regarding the event?
15. It may be necessary for representatives of the requested unit to visit the site prior to the event. Will transportation, meals, and hotel accommodations be provided by the sponsor?
1. This request is for (check appropriate line(s)):
2. If you desire a certain musical unit, troop unit, or type of equipment, please specify:
Standard Military Service allowances for quarters and meals—$35.00 per day per person. Bands will have approximately 50 members as a minimum.
3. If a musical unit is requested and an outdoor concert is planned, will there be a bandshell or bandstand?
4. Type of electric current available:
1. Specify type of exhibit(s) desired:
2. If the event is indoors:
Area available for exhibit is __ feet long and __ feet wide; Ceiling height: __; Type of floor (wood, concrete) __; Floor loading capacity: __; Electric current 110V __ 220V __ Amps __; Size of doorway through which exhibit can be brought into building: __ feet high; __ feet wide. Size and load limits of freight elevators if event is on other than ground floor: __ feet wide; __ feet high; __ feet deep; load limit: __.
3. If the event is outdoors:
Area available for exhibit is __ feet long and __ feet wide; Type of surface (sod, paved, gravel) __; Type of electric current available: 110V __ 220V __ Amps __; Obstructions to hinder unloading (high curbs, wires, trees):
4. Can forklift, C-2 wrecker or crane be made available for handling exhibits at no additional cost to the Government?
5. Will electric power, necessary services for connections, and other required utilities be provided by the sponsor?
6. Will police escorts through congested areas be required?
7. Will guards be provided for equipment and displays?
8. Is parking space available for tractors and trailers?
9. Name and address of any Armed Forces representative or Government official with whom you have discussed possible participation:
I certify that the information I have provided here is complete and correct to the best of my knowledge and belief. I understand that representatives of the Military Services will contact me to discuss arrangements and costs involved prior to final commitments.
Return this request to:
1. The Department of Defense encourages qualified civilian and military officials at all levels to accept speaking invitations as an effective means of informing the public about Defense matters by developing understanding and stimulating patriotic spirit.
2. DoD personnel may accept speaking invitations provided they adhere to the following guidelines:
a. Participation must not interfere with assigned duties.
b. Speakers must address their remarks to subjects within their official cognizance.
c. Views expressed reflect national policy.
This requirement exists so that Government employees, when discussing Government business, may accurately explain official policy.
d. Speakers may not participate in partisan political gatherings.
e. DoD speaker participation in fund-raising efforts will be limited to the programs of the Combined Federal Campaign, to such appeals as the President may authorize, and to the Military Service aid societies. Note: Support for local fund-raising programs other than those described above is authorized only when the fund-raising program, is, in fact,
f. Their participation must not lend an air of sponsorship to the statements of others which may be partisan in nature and/or contrary to national policy.
g. Situations where the real or apparent purpose is to stage controversy will be avoided.
h. Speakers may not accept invitations when the sponsor or sponsoring organization specifically excludes any person from its membership for reasons of race, creed, color, or national origin. However, DoD support is authorized for programs sponsored by organizations whose qualifications for membership is based on national origin or sex when the program so supported is oriented to the community rather than to the national origin or sex-oriented aspects or objectives of the organization itself; and when admission, seating, and all other accommodations and facilities connected with the program are available to all without regard to race, creed, color, national origin, or sex.
i. Speakers may not accept gratuities, fees, or honoraria. Reimbursement for necessary travel and living costs may be accepted in lieu of reimbursement by the Government.
3. Speaking invitations should be directed to the Public Affairs Officer of the nearest military installation. The Public Affairs Officer would appreciate information of the type outlined on the enclosed speaker request form.
4. Inquiries may also be addressed to Director for Community Relations, Office of the Assistant Secretary of Defense (Public Affairs), The Pentagon, Washington, D.C. 20301.
Time:
Place:
Other Speakers (Please list in order of appearance)
Would acceptance of this invitation place the DoD speaker in violation of any of the guidelines contained in paragraphs 2.a. through i. of the accompanying Fact Sheet?
Give any other significant information which may be helpful in the selection of an appropriate speaker. If more space is needed use continuation sheets.
Sec. 1013(f), 80 Stat. 1255, 1292; 42 U.S.C. 3301, 3302, 12 U.S.C. 1715n.
This part establishes policy and procedures for (a) providing information on eligibility requirements and on benefits available under the Homeowners
The provisions of this part apply to all Department of Defense components. The programs encompasses DoD military and civilian personnel as well as affected personnel of other Federal agencies.
(a) It is the objective of the DoD to assure that all applications for assistance under the program are given full consideration and that benefits under the program are extended to all homeowners who are determined to be entitled to assistance in accordance with applicable policies and procedures.
(b) Information on the program will be disseminated on the broadest possible basis by making full use of military and public news media and by distributing a fact sheet,
(c) All possible assistance will be given to prospective applicants by explaining the program as described in the fact sheet, verifying employment or military service records, and advising in the preparation of the application form.
(a) Pursuant to the provisions of DoD Directive 5100.54, “Homeowners Assistance Program,” December 29, 1967
(1) Determination that a specific installation meets the requirements of Pub. L. 89-754, Demonstration Cities and Metropolitan Development Act of 1966 (80 Stat. 1255, 1290);
(2) Determination as to the eligibility of each applicant;
(3) Determine and advise as to the most appropriate type of assistance for each applicant;
(4) Determine amounts to be paid and make such payments or, when appropriate, authorize and arrange for Federal acquisition of the applicant's property; and
(5) Maintain such records and prepare such reports as may be necessary and/or required by ASD (I&L) and ASD (Comp). Field offices will be established at convenient locations throughout the United States to execute various functions of the central office as may be designated.
(b) Pursuant to the provisions of DoD Directive 5100.54, “Homeowners Assistance Program,” December 29, 1967
(c) Each Military Department and Defense Agency will appoint at least one representative at headquarters level to work with the central office and the Offices of ASD (I&L) and ASD (Comp) in order to insure that the operation of the program is effective insofar as that Department or Agency is concerned. Each military installation will establish liaison with the nearest field office to obtain any further guidance or assistance desired.
(d) Each Department of Defense component will be furnished an initial supply of the application form and related fact sheet for distribution on a worldwide basis. An appropriate supply thereof will be distributed to each installation having a military or civilian personnel officer and also to such other activities and establishments as recruiting offices, reserve training centers, procurement offices, radar and missile sites, quality control offices, communications stations, etc., so that each may serve as a source of information on the program. Subsequent supplies of the application form and fact
(e) Each installation or establishment not having a military or civilian personnel officer will be prepared to discuss the information contained in the fact sheet with each prospective applicant and to direct him to the nearest installation having a personnel or industrial relations officer for a more detailed explanation of the eligibility requirements and for initial processing of his application.
(f) Each installation or establishment having a military or civilian personnel officer will insure that such officers, or other appropriate officers or officials, are designated to:
(1) Provide information on the program in response to all inquiries, whether from prospective applicants or other interested parties. This will include explaining the purpose of the program, discussing eligibility requirements and benefits, providing copies of the fact sheet and application forms, and referring applicants to legal assistance officers for answers to questions of a legal nature.
(2) Advise applicants in filling out Parts I and II of DD Form 1607
(i) Evidence of homeownership may include contract of sale or deed to the applicant, receipts for mortgage and tax payments, etc. as well as contract of sale or deed of conveyance from the applicant, record of foreclosure, etc. if the home has been disposed of.
(ii) Evidence of occupancy of the home by the applicant may include receipted utility bills, appointment affidavit (Standard Form 61), official correspondence or other Government forms showing the officially recognized residence address.
(iii) Documents submitted in evidence of homeownership and occupancy should be notarized or certified true copies which are complete, accurate, and legible. Certification by the applicant will be acceptable. Note that generally original copies should not be submitted because DoD cannot be responsible for the safekeeping or return of original documents.
(3) Upon receipt of a DD Form 1607
(i) If the review verifies that the applicant was serving or employed after November 1, 1964, or meets prescribed exceptions to that date, the personnel officer or other appropriate official will forward to the appropriate field office the completed DD Form 1607
(ii) If the review does not verify the applicant's statement of service or employment as prescribed in paragraph (f)(3)(i) of this section, the personnel officer will enter a statement to that effect in Part III of the DD Form 1607
(iii) At the time of action under paragraph (f)(3) (i) or (ii) of this section the applicant will be informed that all future inquiries regarding his application must be directed to the field office.
(4) Each installation or establishment which is designated to perform the actions required under this paragraph (f) will maintain a chronological record of each inquiry regarding the program with appropriate notation as to disposition for submission of periodic reports as required to the nearest field office.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(a) Avoid further depression of local real estate market conditions in areas where the housing market is depressed, and
(b) Consistent with item (a) above and with the desirability of disposing of the properties as rapidly as feasible, seek to obtain the best possible financial return to the Fund. During the period properties are held by FHA, and when it is feasible and in the best interest of the Government, consistent with HUD/FHA policy as to Secretary, HUD-owned property in the areas acquired in the course of FHA mortgage insurance operations, properties will be rented to third parties at rates generally obtainable for comparable properties in the area.
(a) HUD/FHA will accept custody of a property occupied under a lease which cannot be terminated and has an unexpired portion of less than 1 year provided all payments due under the lease are current, and provided, further, that the lessee will waive any right to exclusive extension of the lessee, other than month-to-month occupancy.
(b) Owners or tenants, on a month-to-month basis, of acquired properties may be permitted a 30-day period following acquisition of title in the name of the United States to vacate the property.
(c) Upon agreement with the Director of the FHA insuring office, HUD/FHA will accept custody of properties occupied under leases in excess of a year's duration.
1. Sale of the property for cash or through the use of a conventional uninsured mortgage.
2. Sale of the property providing for assumption of the existing mortgage indebtedness by the buyer or sale of the property subject to the existing mortgage indebtedness.
3. Sale of the property by use of FHA's insured private financing program or FHA's instant FNMA closing program if available.
4. Sale of the property by use of a purchase money mortgage taken by the Secretary, Department of Housing and Urban Development. In those cases where an existing mortgage is assumed and the assumptor subsequently defaults, the Fund will be responsible for all costs, expenses or losses sustained by HUD/FHA in satisfying the Government's liability on the mortgage. In the event it is advantageous to the Government to sell by assumption and the sales price is less than the outstanding mortgage balance, the Fund shall be responsible for the money which is required to reduce the outstanding principal balance of the mortgage. When, in order to facilitate the sale of acquired properties, FHA insures the mortgage, the Fund will be responsible for all expenses incurred by FHA on the first sale, including losses in connection therewith, as computed by the FHA Assistant Commissioner-Comptroller.
On August 1 of each year HUD/FHA will submit a budget estimate to the Corps setting forth the estimated financial requirements for the activities that FHA is to perform for the Secretary of Defense pursuant to the terms of this agreement covering the then current fiscal year and the following budget year. The estimate, in terms of obligations/expenditures, should be by FHA insuring office jurisdiction and in the same cost categories as maintained in the automatic tape record as set forth in Article V, section 2, for each acquired property and as included in the monthly reimbursement request set forth in Article V, section 3, for all other expenses. On May 1 of each year FHA
Based on the estimated financial requirements, in consonance with budgetary and appropriation actions, the Corps will issue to FHA on July 1 of each year a reimbursable order including an obligation/expenditure limitation as to the amount which the FHA may, on a net basis, obligate/expend in anticipation of reimbursement from the Fund for that fiscal year. FHA will promptly advise the Corps whenever it determines that the performance of its responsibility under this Agreement requires any adjustment, together with an estimate and explanation of the changes needed so as to permit the continued effective operation of the program as contemplated under this agreement. The Corps of Engineers will arrange to provide for the necessary adjustment within its authority. Where this is unfeasible the Corps of Engineers will submit the requirement promptly to the Secretary of Defense. The Secretary of Defense will either provide the additional resources required or will directly advise FHA as to the course of action necessary to be taken pending the availability of additional resources.
(a) The FHA identification number, which will be assigned by the FHA insuring office. The Corps will be advised of the FHA identification number on the copy of the FHA Form 1174 returned to the Corps per Article III, section 2.
(b) Property address, entered by the Corps on the FHA Form 1174 within the space allotted in ADP records.
(c) Outstanding mortgage balance at acquisition.
(d) Property acquired. Contra to (c) above, this will be established in the same amount and will offset the outstanding mortgage balance. In the event a property is sold with the purchaser assuming the mortgage or with FHA taking a purchase money mortgage the outstanding balance assumed by the purchaser or the amount of the purchase money mortgage accepted will be recorded as a reduction of the amount originally established.
(e) Principal payments including prepayments of the entire balance when necessary by FHA on the mortgage.
(f) Interest payments by FHA on the mortgage.
(g) Payments in lieu of taxes and insurance payments by FHA. The Corps will notify FHA on the FHA Form 1174 of Escrow Accounts retained by the mortgagee.
(h) Maintenance and operating expenses paid by FHA including any special payments for evictions and removal of title impediments. Direct expense transactions of $100 or more will be a direct charge to the affected property account. All other expenses, generally derived from net settlements with brokers, made pursuant to FHA 2570 Accounting Manual for Acquired Properties, as may be amended from time to time, will be prorated monthly to all home properties in FHA's inventory, including those acquired pursuant to this agreement. Net settlement means expenses paid by brokers less rental collections.
(i) Sales expenses paid by FHA which will be for sales, closing costs, and discount on notes.
(j) Net FHA incurred expense, which will be the net total of amounts recorded in items (e) through (j) of this section.
(k) Gross Sales Price agreed to by FHA. This is not the same as cash proceeds which will be reported separately by FHA.
(l) Net Expense or Collection on Sold Properties, which will be the gross sales price less adjustments to item (d) of this section less item (j) of this section.
(m) A Corps' furnished base identification and homeowner classification code consisting of 7 digits (2 digits for State code and 4 digits for installation number plus the number “2” for civilian or the number “1” for military homeowner).
(a) Monthly, no later than 30 working days after the end of each calendar month the FHA Form 1131, “Acquired Home Property, Maintenance Phase Trial Balance,” showing separate totals to date for items (c) through (l) of Article V, section 2, for each FHA identification number.
(b) Monthly, no later than 30 working days after the end of each calendar month a statement supporting an SF 1080 billing setting forth the following:
(1) Net change in FHA expenses for acquired properties as reported on the current and prior month, Article V, section 3, item (a) reports, separately for “on hand” and for “sold” properties.
(2) Sales proceeds, which will be detailed by the gross sales price agreed to by FHA less amount of mortgages assumed by buyers less purchase money mortgages accepted by FHA.
(3) Principal and interest collections separately on purchase money mortgages.
(4) FHA insuring office expenses directly related to this agreement, developed on basis of reports received in accordance with FHA Manual, Field Expense and Performance Handbook, as may be amended from time to time. This item will be supported by a schedule showing total expenses incurred by each FHA insuring office.
(5) FHA Headquarters expenses directly related to this agreement developed on basis of
(6) HUD departmental level expenses directly related to this program which will include Automatic Data Processing (ADP) services, printing and some other minor expenses, which in the judgment of FHA are appropriately chargeable under this Agreement. ADP services will include the cost of magnetic tapes furnished the Corps under Article V, section 3, item (c) and Article V, section 4, and personal service costs.
Personal service costs included in items (4), (5), and (6) will be limited to those directly related to this program on the basis of time worked and will consist of salary cost plus FICA and the Government contribution for health benefits, life insurance, and retirement funds. An additional 15.9 percent of this total will be added to cover the cost of earned annual leave, sick leave taken, and holiday leave.
(7) Amount due FHA from the Fund or amount due the Fund from FHA.
(c) Quarterly, not later than 30 working days after the end of each calendar quarter a duplicate of the FHA automated tape record for all acquired properties.
(a) FHA 2750, Accounting Manual for Acquired Properties;
(b) FHA Manual, Field Expense and Performance Handbook;
(c) FHA Manual, Departmental Expense and Performance Handbook.
Department of Defense Appropriations Act, 1991, Title II (Pub. L. 101-511, 104 Stat. 1860); 10 U.S.C. 113(d).
This part establishes policy, assigns responsibilities, and prescribes procedures under Title II of Pub. L. 101-511 for the Department of Defense to provide financial assistance to the LEAs that are heavily impacted by the military presence.
This part applies to:
(a) The Office of the Secretary of Defense (OSD).
(b) The schools operated by the LEAs providing free public education to dependent children of Armed Forces members or DoD civilian personnel who reside on Federal property.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
It is DoD policy that:
(a) During fiscal year (FY) 1991, the Department of Defense shall obligate 10 million dollars to assist the LEAs that meet criteria in paragraph (c) of this section. Of this 10 million dollars:
(1) Eight hundred and eighty-six thousand dollars shall be provided to the Killen, Texas, Independent School District.
(2) One hundred and sixty-seven thousand dollars shall be provided to the Copperas Cove, Texas, Independent School District.
(3) The remaining 8,947,000 dollars shall be used only to assist the eligible LEAs operating schools that provide free public education to dependent children of Armed Forces members of DoD civilian personnel who:
(i) While attending those schools, reside on Federal property.
(ii) Without such additional assistance, are unable to provide a level of education for such dependents equal to the comparable level of education provided in the State where such dependents reside.
(b) The OSD shall consult with the Office of the Secretary of Education before providing financial assistance to the LEAs.
(c) To be eligible for financial assistance:
(1) The LEA must be unable, without such additional assistance, to provide a level of education for such students equal to the comparable level of education provided in the State where such students reside (as determined by comparable student data).
(2) The LEA has in school year (SY) 1990-1991 an average daily attendance (ADA) of military section 3(a) or 3(b) students (see § 240.3 (g) and (h)) or a combination of military section 3(a) and 3(b) students that is not less than 35 percent of the LEA's total ADA. At least two students attending the LEA must be the dependents of Armed Forces members or of DoD civilian personnel. (For the purposes of this section, the Department of Defense shall rely on ADA data from the U.S. Department of Education (DoED)).
(3) For the prior and current FYs, the LEA has applied for and received, or shall receive, financial assistance from all regular Federal and State educational aid programs available to it, including the Impact Aid Program (Pub. L. No. 81-874, Section 3).
(4) The eligibility of the LEA under State law for State aid for free public education, and the amount of that aid, is no different than the eligibility and amounts received by the LEAs without military dependent students.
(5) The LEA files the following with the Assistant Secretary of Defense (Force Management and Personnel (ASD (FM&P)):
(i) A letter of application (see appendix A to this part).
(ii) One original and two copies of table 8-3 and table 9, which are published by the DoED, from the following forms:
(A) ED Form 4019 (Revised 8/90 Page 8), “Fiscal Report For Sections 2, 3(d)(2)(B), and 3(d)(3)(B)(ii) Payment Purposes.”
(B) ED Form 4019 (Revised 8/90 Page 9), “Financial Burden and Effort Data.”
(iii) A copy of an independently audited financial report of the applicant LEA for the second preceding FY.
(d) The eligible LEAs shall receive financial assistance only for those students who are dependent children of military personnel residing on Federal property while attending a school of the applicant LEA.
(e) Applications for financial assistance, under paragraphs (a)(1) through (a)(3)(iii) of this section must be received no later than June 30, 1991.
(f) The amount of assistance (the DoD contribution) for the eligible LEAs may not exceed the amount derived from the following formula:
(1) Of the 10 million dollars available:
(i) Eight hundred and eighty-six thousand dollars shall be provided to the Killeen, Texas, Independent School District.
(ii) One hundred and sixty-seven thousand dollars will be provided to the Copperas Cove, Texas, Independent School District.
(iii) Of the 8,947,000 dollars remaining:
(A) Amounts of 6,531,310 dollars shall be obligated to those eligible LEAs, whose per-pupil expenditure (PPE) for the second preceding FY was less than the average PPE in the State for the second preceding FY.
(B) Amounts of 2,415,690 dollars shall be obligated to those eligible LEAs, whose PPE for the second preceding FY was equal to, or greater than, the average PPE in the State for the second preceding FY. (For the purposes of this section, the Department of Defense will rely on PPE data from the DoED.)
(2) For those eligible LEAs, whose average PPE for the second preceding FY was less than the average PPE in the State for the second preceding FY, the LEA shall receive an amount, as follows:
(i) Equal to the LEA's military section 3(a) ADA for SY 1990-1991.
(ii) Multiplied by the quotient of the funds available to those LEAs, whose PPE for the second preceding FY was less than the average PPE in the State for the second preceding FY (6,531,310 dollars).
(iii) Divided by the sum of the ADAs for SY 1990-1991 of military section 3(a) students of those same eligible LEAs.
(3) For those eligible LEAs, whose average PPE for the second preceding FY was equal to, or greater than the average PPE in the State for the second preceding FY, the LEA shall receive an amount, as follows:
(i) Equal to the LEA's military section 3(a) ADA for SY 1990-1991.
(ii) Multiplied by the quotient of the funds available to those LEAs, whose PPE for the second preceding FY was equal to, or greater than, the average PPE in the State for the second preceding FY (2,415,690 dollars).
(iii) Divided by the sum of the ADAs for SY 1990-1991 of military section 3(a) students of those same eligible LEAs.
(4) The sum of the ADAs for SY 1990-1991 for the military section 3(a) students in Killeen, Texas, Independent School District, and the Copperas, Texas, Independent School District, shall:
(i) Be deducted from the sum of the ADAs for SY 1990-1991 for the military section 3(a) students of all the eligible LEAs.
(ii) Not be used in calculating the DoD contribution.
(5) The LEAs that have been identified in Public Law No. 101-511, title II, shall receive the specified amount, but shall not be eligible for additional funding under paragraphs (f)(1)(i) through (iii) of this section.
(6) The ASD (FM&P) shall calculate the proposed contribution.
(g) The contribution may be used for all students in the LEA, at the discretion of the appropriate officials in the LEA.
(a) The
(1) Ensure the implementation of those policies and procedures.
(2) Provide assistance, as required, to the potentially eligible LEAs to meet the requirements in § 240.4(c)(5)(i) through (iii) of this part.
(b) The
(a) An applicant requesting assistance under those criteria for FY 1991 in § 240.4(c) (1) through (4) of this part, shall submit the following:
(1) A letter of application (see sample in appendix A to this part).
(2) One original and two copies of table 8-3 and table 9, which are published by the DoED, from the following forms:
(i) ED Form 4019 (Revised 8/90 Page 8), “Fiscal Report For Sections 2, 3(d)(2)(B), and 3(d)(3)(B)(ii) Payment Purposes.”
(ii) ED Form 4019 (Revised 8/90 Page 9), “Financial Burden and Effort Data.”
(3) A copy of an independently audited financial report of the applicant LEA for the second preceding FY, requesting a contribution and ensuring the ADS(FM&P) that the LEA has applied for, has received, or shall receive all financial assistance from other sources for which it is qualified.
(4) The letter of application to the following address:
(b) The applicant shall file a copy of the letter of application for financial assistance and required supportive information with the State educational agency (SEA). The SEA may submit comments on the LEA's application to the Department of Defense (at the address in § 240.6(a) of this part), by July 15, 1991. Such comments shall be considered, when applications are reviewed by the OSD.
(c) The application and all required supporting information must reach the
Dear Mr. Assistant Secretary:
Pursuant to title II of Public Law 101-511, “Department of Defense Appropriations Act,” November 5, 1991, the (name of the local educational agencies (LEA)) requests financial assistance for the LEA for school year 1990-1991.
We certify that the LEA has applied for financial assistance from all sources, including the State of (name). We understand that funds available for that purpose shall be paid on a per-pupil basis for military section 3(a) students only. Enclosed find an original, and two copies, of tables 8-3 and 9 from the “Application For School Assistance in Federally Affected Areas,” published by the U.S. Department of Education, and a copy of our independent audit “(title)” prepared by (name of firm or agency). We have submitted a complete and timely application for section 3 impact aid assistance to the Secretary of Education. A copy of this letter, with the above supporting information, is being submitted to the State educational agency.
Sincerely,
10 U.S.C. 2112, et seq. Pub. L. 92-426.
This part establishes policies and procedures and assigns responsibilities for the selection of entrants to the School of Medicine of the Uniformed Services University of the Health Sciences (DoD Directive 5105.45, “Uniformed Services University of the Health Sciences,” April 16, 1974).
This part applies to the Office of the Secretary of Defense, the Military Departments, the Uniformed Services University of the Health Sciences (USUHS), and the Department of Defense Medical Examination Review Board (DoD MERB).
As used herein, the following definitions apply:
(a)
(b)
(1) Individuals currently on (or on orders for) active duty for a period of 90 days or more in any of the three Military Departments.
(2) Reserve component personnel enrolled in the Armed Forces Health Professions Scholarship Program.
(3) Persons enrolled in scholarship ROTC or advanced (junior-senior level) nonscholarship ROTC.
(4) Individuals in attendance at any of the three Military Department Service Academies.
(c)
(d)
(e)
(f)
(g)
(a) The School of Medicine, USUHS, shall consider applications for admission from persons who:
(1) Are citizens of the United States;
(2) Are at least 18 years old at the time of matriculation, but have not become 28 years old as of June 30 in the year of admission. However, any student who has served on active duty in the Armed Forces may exceed the age limitation by a period equal to the time served on active duty provided that student has not become 34 years old by June 30 in the year of admission.
(3) Are not under 18 years of age at time of entry to the first-year class;
(4) Are of good moral character;
(5) Meet the physical qualifications and security requirements for a Regular commission in the Uniformed Services.
(i) Standards of medical fitness for commissioning in the Uniformed Services shall be chapter 5, AR 40-501
(ii) Security requirements for commissioning in the Military Departments are prescribed in DoD Directive 5200.2.
(6) Meet the academic, intellectual, and personal qualifications specified in §§ 242.8 and 242.9.
(7) Are motivated to pursue a medical career in the Uniformed Services;
(8) Are not otherwise obligated or committed for service in the Army, Navy, Air Force or Marine Corps as a result of current or prior participation in programs of study or training sponsored by these Military Services. (Unless specifically prohibited by law or Department of Defense policy, individuals may be permitted to interrupt sponsored training programs and/or associated service commitments for the purpose of entering the School of Medicine, at the discretion of the appropriate Military Department sponsor. See also paragraph (e) of this section on obligated service requirements.)
(b) In making admissions decisions, the School will adhere to the principle of equal educational opportunity for all. Sex, race, religion, national origin, marital status, and State of residence shall not be factors influencing the selection process. Aspirants seeking entrance shall be judged strictly on merit, in terms of demonstrated aptitude, motivation, and potential for succeeding in medicine, both academically and professionally. Only the most promising and best qualified of the applicants shall be accepted for admission.
(c) While enrolled in School, students shall serve on active duty as Reserve commissioned officers (Medical Officer Candidates), pay grade O-1, in one of the Uniformed Services, the Uniformed Service of assignment to be determined under procedures established by the Secretaries of the Military Departments and the Assistant Secretary of Defense Health Affairs in coordination with the President of the University. Applicants' preferences shall be honored to the extent possible in making Service assignments. However, to insure that the makeup of each entering class is equitably constituted, students shall be assigned proportionally to the three Military Departments, based on
(d) Upon satisfactory completion of the medical school program, graduates shall, if qualified, be tendered Regular Medical Corps appointments, unless otherwise covered under 10 U.S.C. 2115.
(e) Graduates of the School shall incur a Federal active-duty obligation of 21 months for each year or portion thereof spent in medical training, except that in no case will the minimum obligation be less than 27 months. Except as law or Department of Defense policy otherwise prescribes, this obligation shall be served consecutively with any other active-duty obligation.
(f) If dropped from the School for deficiencies in conduct or studies, or for other reasons, the student shall immediately be referred for disposition to the appropriate Military Department, which shall have the prerogative of either:
(1) Requiring the individual to fulfill his incurred service obligation, as stated in the Uniformed Services Health Professions Revitalization Act of 1972 (10 U.S.C., 2101 et seq.), by performing duty in some appropriate capacity, as determined by the Secretary of the Military Department concerned. (In no case shall any such member be required to serve on active duty for any period in excess of a period equal to the period he participated in the program, except that in no case may any such member be required to serve on active duty less than one year.); or
(2) Waiving the individual's incurred service obligation, if that action would be in the best interests of that Service. (Such relief, though, shall not relieve the individual from any other active-duty obligation imposed by established law.) Individuals whose service obligation is waived may, at the discretion of the Secretary of the Military Department concerned, be required to reimburse the Government for all or a part of the tuition and other educational costs incurred. However, a member of the program may not be relieved of his Service obligation solely because he is willing and able to reimburse the Government for all educational expenses.
(g) Periods of time spent in sponsored graduate medical education shall not count toward satisfying the medical school Federal-duty obligation.
(a)
(2)
(b)
(1)
(2)
(c)
(d)
(2) The Secretaries, or their designees, shall initiate necessary actions (records checks, physical examinations, and National Agency Checks, as required, consistent with § 242.4(a)(5)) to determine whether or not the selected candidates are acceptable for commissioning. (Physical examinations for military personnel, if required, shall be performed at the individual's supporting military medical facility and reviewed by the Department of Defense Medical Examination Review Board (DoDMERB). Physical examinations for civilians shall be scheduled and reviewed by the DoDMERB, in accordance with the procedures and policies that agency establishes.) Secretaries of the Military Departments, or their designees, shall advise the School of Medicine as to the acceptability for commissioning of candidates within 45 days of receipt of referral lists, furnishing reasons for those found nonacceptable.
(e)
The Assistant Dean for Academic Support, USUHS, is designated as the central point of contact for matters pertaining to the admission procedures outlined in § 242.5.
(a) The President of the University shall:
(1) Develop and prescribe formal application procedures for admission to the School, consistent with the provisions of this part.
(2) Select candidates for admission to the School of Medicine in accordance with the policies and procedures prescribed in this part.
(3) Coordinate, as required, with the Military Department Secretaries or their designees to ensure the proper administration of the admissions process.
(4) Monitor, review, and evaluate the admissions process to assure its effectiveness and efficiency operationally, and make recommendations as required for the revision of the policies and procedures herein set forth.
(b) Secretaries of the Military Departments shall:
(1) Approve/disapprove requests of military personnel who want to apply to the School of Medicine, as prescribed herein.
(2) Carry out confirmatory requirements and ensure that the suspense for accomplishing these actions is met.
(3) Designate a representative in their respective areas to be responsible for overseeing and coordinating confirmatory action requirements. (Names of designees and any changes in designations shall be furnished to the President of USUHS.)
(4) Ensure coordination of proposed implementing regulations with the President, USUHS.
(c) Assistant Secretary of Defense Health Affairs shall determine, in coordination with the Secretaries of the Military Departments and the President, USUHS, the number of spaces in each entering class to be allocated to the respective components.
(d) Director, DoDMERB, shall:
(1) Establish necessary policies and procedures, in coordination with the Military Departments, for scheduling and reviewing physical examinations for civilian selectees, and reviewing examinations for military selectees.
(2) Review and take final action on any requests for waiver of physical standards for admission to the School.
Admission to the School of Medicine of the Uniformed Services University of the Health Sciences is on a competitive basis, with selection predicated on:
(a) Evidence of sound character and high motivation for a career in the Medical Corps of the Uniformed Services, and
(b) Evidence of sufficient intellectual ability and preparation to undertake successfully the study of medicine.
(1)
(i)
(ii)
(
(
(
(
(
(2)
(3)
(a) Selection of students to advanced standing will be competitive, based on both cognitive and noncognitive factors. Demonstrated aptitude and motivation for a career in medicine in the Uniformed Services will be prime considerations in making admissions decisions. Only the most promising of candidates will be accepted, as judged by scholastic records, letters of recommendation, interviews, and such
(b) To be eligible academically for admission to advanced-standing, applicants must have successfully completed the year of medical studies preceding the year in which they desire advanced placement. Only students from fully accredited medical schools will be eligible for transfer.
(c) Individuals who have received the D.D.S., D.M.D., Ph.D., D.O., or D.V.M. degrees, or candidates for these degrees will not be eligible for advanced placement in the School of Medicine at this time. They will only be considered for admission to the Freshman class. Advanced standing applicants are required to have taken the Medical College Admission Test.
This part will become effective immediately. Three copies of proposed implementing regulations shall be forwarded to the Assistant Secretary of Defense Health Affairs within 30 days.
5 U.S.C. 552b (g); Pub. L. 94-409.
These procedures apply to meetings of the Board of Regents, Uniformed Services University of the Health Sciences (USUHS), including committees of the Board of Regents.
(a)
(1) Nine persons outstanding in the fields of health and health education appointed from civilian life by the President, by and with the advice and consent of the Senate;
(2) The Secretary of Defense, or his designee, an ex officio member;
(3) The surgeons general of the uniformed services, ex officio members; and
(4) The Dean (President) of the University, an ex officio non-voting member.
(b)
(c)
(d)
(e)
(1) Deliberations to open or close a meeting, or to release or withhold information, required or permitted by § 242a.5 or § 242a.6;
(2) Notation voting or similar consideration of matters whether by circulation of material to members individually in writing, or polling of members individually by telephone or telegram; and
(3) Instances where individual members, authorized to conduct business on behalf of the Board or to take action on behalf of the Board, meet with members of the public or staff. Conference telephone calls that involve the requisite number of members, and otherwise come within the definition, are included.
(f)
(g)
(h)
(a) Members shall not jointly conduct or dispose of business of the Board of Regents other than in accordance with these procedures. Every portion of every meeting of the Board of Regents or any committee of the Board shall be open to public observation subject to the exceptions provided in § 242a.4.
(b) Open meetings will be attended by members of the Board, certain staff, and any other individual or group desiring to observe the meeting. The public will be invited to observe and listen to the meeting but not to record any of the discussions by means of electronic or other devices or cameras unless approval in advance is obtained from the Executive Secretary. The public will not participate in the meeting unless public participation is invited by the Board.
(c) The Executive Secretary shall be responsible for making physical arrangements that provide ample space, sufficient visibility, and adequate acoustics for public observation of meetings.
Except in a case where the Board or a committee finds that the public interest requires otherwise, the open meeting requirement set forth in the second sentence of § 242a.3(a) shall not apply to any portion of a Board or committee meeting, and the informational disclosure requirements of §§ 242a.5 and 242a.6 shall not apply to any information pertaining to such meeting otherwise required by this part to be disclosed to the public, where the Board or committee as applicable, properly determines that such portion or portions of its meetings or the disclosure of such information is likely to:
(a) Disclose matters that are:
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy; and
(2) Properly classified pursuant to such executive order;
(b) Relate solely to the internal personnel rules and practices of the USUHS;
(c) Disclose matters specifically exempted from disclosure by statute (other than Title 5, U.S. Code 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Disclose trade secrets and commercial or financial information obtained from a person, privileged or confidential;
(e) Involve accusing any person of a crime or formally censuring any person;
(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsibile for the regulation or supervision of financial institutions;
(i) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action, except that this subsection shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or
(j) Specifically concern the issuance of a subpoena, or USUHS participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the USUHS of a particular case of formal adjudication pursuant to the procedures in Title 5, United States Code, section 554 or otherwise involving a determination on the record after opportunity for a hearing.
(a) Except to the extent such such information is exempt from disclosure under the provisions of § 242a.4, in the case of each Board or committee meeting, the Board representative, shall make public announcement, at least 7 days before the meeting, of the following:
(1) Time of the meeting;
(2) Place of the meeting;
(3) Subject matter of the meeting;
(4) Whether the meeting or parts thereof are to be open or closed to the public; and
(5) The name and telephone number of the person designated by the Board or committee to respond to requests for information about the meeting.
(b) The 7 day period for the public announcement required by paragraph (a) of this section may be reduced if a majority of the members of the Board or committee, as applicable, determine by a recorded vote that Board or committee business requires that such expedited meeting be called at an earlier date. The Board or committee shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time.
(c) The time or place of a meeting or deletion of subject matter may be changed following the public announcement required by paragraph (a) of this section only if the Board representative publicly announces such change at the earliest practicable time. Such change need not be voted on by the members.
(d) The subject matter of a meeting or the determination of the Board or committee, as applicable, to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by paragraph (a) of this section only if:
(1) A majority of the entire voting membership of the Board of a majority of the entire voting membership of a committee, determines by a recorded vote that Board or committee business so requires and that no earlier announcement of the change was possible; and
(2) The Board or committee publicly announces such change and the vote of each member upon such change at the earliest practicable time.
(e) The
(f) Immediately following each public announcement required by this section, notice of the time, place and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and telephone number of the person designated by the Board or committee to respond to requests for information about the meeting, shall also be submitted for publication in the
(a) Action to close a meeting or portion thereof, pursuant to the exemptions set forth in § 242a.4 shall be taken only when a majority of the entire voting membership of the Board or a majority of the entire voting membership of a committee, as applicable, vote to take such action.
(b) A separate vote of the Board or committee members shall be taken with respect to each Board or committee meeting a portion or portions of which are proposed to be closed to the public pursuant to § 242a.4 or with respect to any information which is proposed to be withheld under § 242a.4.
(c) A single vote of the Board or committee may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than 30 days after the initial meeting in such series.
(d) The vote of each member shall be recorded, and may be by notation voting, telephone polling or similar consideration.
(e) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the Board or a committee close such portion to the public under any of the exemptions relating to personal privacy, criminal accusation, or law enforcement information referred to in § 242a.4 (e), (f), and (g), the Board or committee, as applicable, upon request of any one of its members, shall vote by recorded vote whether to close such meeting. Where the Board receives such a request prior to a meeting, the Board's representative may ascertain by notation voting, or similar consideration, the vote of each member of the Board, or committee, as applicable, as to the following:
(1) Whether the business of the Board or committee permits consideration of the request at the next meeting, and delay of the matter in issue until the meeting following, or
(2) Whether the members wish to close such meeting.
(f) Within 1 day following any vote taken pursuant to paragraphs (a), (b), (c), or (e), of this section, the Board or committee shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the Board or committee shall, within 1 day of the vote taken pursuant to paragraphs (a), (b), (c), or (e) of this section, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation. The information required by this paragraph shall be disclosed except to the extent it is exempt from disclosure under the provisions of § 242a.4.
(g) For every meeting closed pursuant to paragraphs (a) through (j) of § 242a.4, the General Counsel or chief legal officer of the USUHS shall publicly certify before the meeting that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the Board as part of the transcript, recording or minutes required by § 242a.7.
(a) The Board of Regents shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, closed to the public pursuant to § 242a.4(j), the Board shall maintain
(b) Where minutes are maintained they shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any action taken, and the reasons for such actions, including a description of each of the views expressed on any item and the record of any roll call vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
(c) The Board shall maintain a complete, verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting or portion of a meeting, closed to the public, for a period of at least 2 years after such meeting, or until 1 year after the conclusion of any Board proceeding with respect to which the meeting or portion was held, whichever occurs later.
(d) Public availability of records shall be as follows:
(1) Within 10 days of receipt of a request for information (excluding Saturdays, Sundays, and legal public holidays), the Board shall make available to the public, in the offices of the Board of Regents, USUHS, Bethesda, Maryland, the transcript, electronic recording, or minutes of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the Executive Secretary determines to contain information which may be withheld under § 242a.4.
(2) Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be available at the actual cost of duplication or transcription.
(3) The determination of the Executive Secretary to withhold information pursuant to paragraph (d)(1) of this section may be appealed to the Board. The appeal shall be circulated to individual board members. The Board shall make a determination to withhold or release the requested information within 20 days from the date of receipt of a written request for review (excluding Saturdays, Sundays, and legal public holidays).
(4) A written request for review shall be deemed received by the Board when it has arrived at the offices of the Board in a form that describes in reasonable detail the material sought.
This part shall become effective on March 12, 1977.
Uniformed Services Health Professions Revitalization Act, 10 U.S.C. 2112-17.
(a)
(b)
(1) The number of Regents on the Board;
(2) The manner of selection of the Regents;
(3) The terms of office of the Regents;
(4) The powers and duties of the Regents;
(5) The manner of selection of a Chairman of the Board;
(6) The compensation of the Regents.
(c)
(2)
(ii) The Chairman of the Board shall have the power to execute on behalf of the Board all instruments in writing which have been authorized by the Board and shall exercise such other powers as may be conferred upon him or her from time to time by the Board.
(3)
(ii) The Vice Chairman shall serve for a term of one year or until a successor is elected.
(iii) The term of office of the Vice Chairman shall commence immediately upon election.
(iv) If the Chairman is absent or unable to act, the Vice Chairman shall exercise the powers and perform the duties of the Chairman.
(v) The Vice Chairman shall perform such other duties as may be directed from time to time by the Chairman and the Board.
(vi) If both the Chairman and Vice Chairman are absent or unable to act, the Board shall elect a member Acting Chairman.
(4)
(ii) The Secretary shall have the power to perform such duties as generally pertain to the office and as may be conferred from time to time by the Board.
(iii) The Secretary shall notify the Regents of the time and place of all meetings of the Board, in accordnce with these Procedures, and shall keep a complete record of its proceedings.
(iv) The Secretary shall furnish to every Regent prior to each meeting of the Board a copy of the Minutes of the preceding meeting.
(v) The Secretary shall give notice of the time and place of committee meetings, and if desired by the commitee or its chairman, the Secretary or an assistant shall attend the meeting and keep a record of the meeting.
(vi) The Secretary shall prepare and distribute expeditiously the minutes of all meetings of standing committees to all Regents.
(vii) The Secretary shall keep at the office of the University a copy of these General Procedures and Delegations, and the Public Meeting Procedures of the Board of Regents as periodically amended.
(viii) During the Secretary's absence or inability to act, an Assistant Secretary, appointed by the Chairman, shall act in the Secretary's place.
(a)
(2) Unless otherwise determined by the Board, meetings shall be held at the offices of the University, 4301 Jones Bridge Road, Bethesda, Md. 20014.
(b)
(2) Additional meetings of the Board shall be held at such times and places as shall be specified in the notice of meeting.
(a) Notice of all meetings of the Board shall be sent by the Secretary to each Regent by mail, telegraph, or telephone.
(b) Mailing a notice not less than 7 days before any meeting, or sending a telegram not less than twenty-four hours before a meeting, addressed to each Regent at his or her residence or place of business; or actual notice by telephone to such person not less than twenty-four hours before the meeting, shall be sufficient notice of any meeting. The recital by the Secretary in the minutes that notice was given shall be sufficient evidence of the fact.
(c) A Regent may waive in writing notice of any meeting either prior to or subsequent to the holding of the meeting.
(d) Public announcement of meetings shall conform to the Public Meeting Procedures of the Board of Regents, 32 CFR 242a.5.
A majority of all Regents in being shall constitute a quorum of the Board.
(a) The concurrence of a majority of the Regents present at a meeting shall be necessary for the transaction of business.
(b) Unless a written ballot is required by a Regent, no actions taken by the Board need be by written ballot.
(c) The Chairman of the Board and of each Committee is entitled to move, second, vote, and participate fully in any session to the same extent as if not a presiding officer.
(d) At the direction of the Chairman, action may be taken by a majority of the Regents by notation voting, by voting on material circulated to Regents individually or serially, or by polling of Regents individually or collectively by telephone or by telegram, or by similar procedure. Such action shall be reported by the Secretary at the next Board meeting.
(a) The Executive Committee shall be the one regular standing committee of the Board.
(b) The Executive Committee will be composed of:
(1) The Chairperson of the Board;
(2) The Vice Chairperson of the Board;
(3) The Secretary of Defense or his designee;
(4) The Dean of the University (President); and
(5) A member of the Board appointed by the Chairperson. The Dean of the University will be a non-voting member whose presence will not be counted for the purpose of determining a quorum at any Executive Committee meeting.
(c) The Executive Committee will possess all powers of the Board of Regents except the power:
(1) To change the General Procedures and Delegations;
(2) To appoint or remove the Dean of the University (President), Dean of the School of Medicine, Dean of the Military Medical Education Institute, Chairpersons of Departments and tenured faculty;
(3) To amend the tenure policy of the University;
(4) To establish post doctoral, post graduate and technological institutes;
(5) To establish programs in continuing medical education;
(6) To agree to utilize Federal medical resources on a reimbursable basis;
(7) To affiliate with other universities.
(a)
(2) The President will be appointed or removed only by an affirmative vote of a majority of the Regents.
(3) At meetings of the Board of Regents, the President will be counted for the purpose of determining the presence of a quorum but will not vote.
(4) The President will be responsible for the management of the University and all its departments.
(5) The President will report to the Board at each regular meeting on the progress of the University, and will make recommendations for action.
(6) To assist in the performance of his or her duties, the President with the approval of the Board, will appoint, to act under the President's authority and direction, officers as follows:
(i) Vice President of the University.
(ii) Vice President for Operations of the University.
(iii) Commandant of the University.
(iv) Dean of the School of Medicine.
(v) Associate Dean for Academic Affairs of the School of Medicine.
(vi) Associate Dean for Operations of the School of Medicine.
(vii) Associate Dean for Continuing Education of the School of Medicine.
(viii) Associate Dean for Clinical and Academic Affairs.
(ix) Dean of the Military Medical Education Institute.
(7) The President, with the approval of the Board, may appoint and prescribe the powers and duties of other officers, as he or she may deem proper.
(8) If there is no one holding the office of President, the Board of Regents may appoint an Acting President to perform the duties of the President for such period of time as the Board may determine. If the Acting President is also a Regent, he or she will retain the powers and duties of a Regent while so acting.
(b)
(ii) In the absence of the President, the Vice President will act for the President.
(2)
(A) Financial Management;
(B) Building Services and Materiel Acquisition;
(C) Military Personnel;
(D) Civilian Personnel;
(E) Computer Operations; and
(F) Contracting.
(ii) He or she will be responsible for the preparation of the University budget estimates and program submission presentations for the approval of the Board.
(iii) He or she will recommend to the President persons for appointment as the Assistant Vice President for Administration and such other administrative positions as he or she deems proper.
(iv) For reporting purposes, Financial Management and Computer Operations will report directly to the Vice President for Operations; the Civilian Personnel Office, Military Personnel Office, Building Services and Material Acquisition, and Contracting will report to the Assistant Vice President for Administration, who in turn shall report to the Vice President for Operations.
(v) Serves as Acting President in absence of President and Vice President.
(3)
(ii) In the absence of the President; Vice President; Vice President for Operations; Dean, School of Medicine; and the Dean, MMEI, he or she will act for the President.
(4)
(ii) He or she will recommend to the President and to the Board, personnel for faculty appointments and will perform such duties as may be directed from time to time by the Board or the President.
(iii) He or she will recommend to the President persons for appointment as the Associate Dean for Operations, Associate Dean for Academic Affairs, Associate Dean for Continuing Education, Associate Deans for Clinical and Academic Affairs, and such other administrative positions as he or she deems proper.
(iv) For reporting purposes, the Associate Dean for Operations, Associate Dean for Academic Affairs, Associate Dean for Continuing Education, Associate Deans for Clinical and Academic Affairs, Assistant Dean for Clinical Sciences, Assistant Dean for Graduate Medical Education Liaison, and Assistant Dean for Student Affairs will report directly to the Dean, School of Medicine.
(5)
(ii) In the absence of the Dean, he or she will act for the Dean.
(6)
(A) Grants Management;
(B) Teaching and Research Support;
(C) Learning Resource Center; and
(D) Laser Biophysics Center.
(ii) He or she will be responsible for the preparation of the School of Medicine budget estimates and program submission presentations for the approval of the Board.
(iii) In the absence of the Dean and Associate Dean for Academic Affairs, he or she will act for the Dean.
(7)
(ii) The Associate Dean for Continuing Education will report to the Dean, School of Medicine, or to the individual acting on behalf of the Dean.
(8)
(ii) The respective Associate Dean for Clinical and Academic Affairs for each designated Center will exercise the authority and responsibilities of that position subject to respective Command regulations and policies. The incumbents will serve in a co-equal administrative status to each other within the School of Medicine's scope of authority and responsibility. Military medical officers will be appointed ex-officio and will serve in additional duty status in the Associate Dean for Clinical and Academic Affairs position in addition to their regular assignment.
(iii) Each Associate Dean for Clinical and Academic Affairs will be responsible to the Dean, School of Medicine, for central coordination, supervision, and implementation of School of Medicine/Uniformed Services University of the Health Sciences academic and investigative/research activities performed within his/her respective Military Medical Center Command. Additionally, each Associate Dean for Clinical and Academic Affairs will represent the interests of his/her affiliated Medical Center Command within the School of Medicine and serve as principal advisor to the Dean, School of Medicine, for all professional and military matters within that command which are relevant to the School of Medicine or the Uniformed Services University of the Health Sciences.
(9)
(ii) He or she will recommend to the President and to the Board, personnel for faculty appointments and will perform such duties as may be directed from time to time by the Board or the President.
(iii) He or she will recommend to the President persons for appointment to such administrative positions as he or she deems proper.
(a)
(b)
(c)
E.O. 12372 (July 14, 1982; 47 FR 30959); section 401(b), Intergovernmental Cooperation Act of 1968 (31 U.S.C. 6506(b)).
Appendixes A through D are not included in Part 243, below. For the texts of the appendixes, see 48 FR 29142, June 24, 1983.
This rule under E.O. 12372 and 31 U.S.C. 6506 et seq., updates policies, assigns responsibilities, and prescribes procedures for an intergovernmental process to assist coordination of appropriate DoD Federal development programs and activities in the United States with State and local governments and Federal agencies, and to encourage state and local governments and Federal agencies to coordinate their programs and activities with the Department of Defense.
(a) This rule applies to the Office of the Secretary of Defense, the Military Departments (excluding the civil works function of the U.S. Army Corps of Engineers) and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) Neither E.O. 12372 nor this rule are intended to create any right or benefit enforceable at law by a party against the Department of Defense or its officials.
(c) This rule covers all programs and activities developed by DoD Components for military construction (as defined in DoD Instruction 7040.4), acquisition of real property, substantial changes in existing use of military installations and real property, and disposal of real property that may affect state and local government or other Federal agency community development programs and activities, and state, local, and other Federal agency programs and activities that may affect DoD activities.
(d) A list of the DoD programs and activities subject to E.O. 12372 is at appendix A. An illustrative list of other Federal programs and activities that may affect the Department of Defense is at appendix B.
It is the policy of the Department of Defense to promote an intergovernmental partnership and a strengthened Federalism by relying on state processes and on state, areawide, regional, and local coordination for review of proposed DoD Federal development; and to encourage the opportunity to review other agency programs and activities that may affect the Department of Defense.
(a) The
(b) The
(1) Have overall management responsibility for intergovernmental coordination of DoD Federal development programs and activities,
(2) Monitor the implementation of E.O. 12372 within the Department of Defense.
(c) The
(1) Establish and maintain an intergovernmental coordination management process concerning DoD Federal
(2) Monitor the application of policies, responsibilities, and procedures contained in this rule within their subordinate elements.
(3) Designate an official to be the point of contact for intergovernmental coordination and review matters covered by this rule and report his or her name, position, and office to the ASD(MRA&L).
(4) Develop procedures that will ensure that a record of state comments, reviews, determinations, recommendations, and the status of programs and activities are maintained.
(5) Designate an official, in accordance with appendix C, who shall serve as a DoD liaison representative to the states in the respective Federal regions for all DoD intergovernmental coordination matters. The identification of the liaison representatives shall be provided to the ASD(MRA&L) who shall publish a directory of liaison representatives in the
(a) DoD Components shall establish and maintain an intergovernmental coordination management process, reflected in a cooperative agreement when feasible, to achieve full consultation with state, regional, and local entities for those programs and activities covered by this rule. DoD Components shall encourage reciprocal actions with regard to the State, regional, and local programs and activities.
(b) DoD Components shall establish and maintain an inter-agency coordination management process to ensure their development programs and activities are consistent and compatible with the development actions of Federal agencies operating at the local levels. DoD Components shall encourage reciprocal actions by other Federal agencies with regard to their programs and activities. Unresolved conflicts shall be brought to the attention of the ASD(MRA&L).
(c) DoD Components that conduct activities or operate installations that may be affected by the programs and activities of Federal agencies shall take part in the community planning process by providing information, policy, and position statements on those programs and activities to the agencies concerned.
(d) The degree of public interest in a proposed program or activity shall be considered when deciding whether the Congress and the public shall be notified before offering information for comment as prescribed in this rule.
(e) In an emergency, provisions of this rule may be waived by the Secretary of the Military Department concerned. Such instances will be reported to the ASD(MRA&L).
(f) This rule does not affect normal cooperative community planning or coordination relationships between DoD installations and surrounding communities.
(g) Further procedures for DoD Federal development programs are prescribed at appendix D.
5 U.S.C. 301, 552.
(a) This part is promulgated in furtherance of the Federal Aviation Act of 1958, as amended, the Communications Act of 1934, as amended, and Executive Order 11490, and supersedes: Plan for the Security Control of Air Traffic and Air Navigation Aids—June 1971.
(b) This part defines the responsibilities of the Federal Aviation Administration (FAA), the Federal Communications Commission (FCC) and the appropriate military authorities for the security control of civil and military air traffic, and control of federal and non-federal air navigation aids.
For the purpose of this part and supporting documents, the following explanations apply:
(a)
(b)
(c)
(2) Non-Federal NAVAIDS. VOR, VORTAC and TACAN stations licensed by the FCC.
(d)
(e)
(f)
(1) A major attack is made upon U.S. forces overseas, or allied forces in any area, and is confirmed either by the commander of a unified or specified command or higher authority.
(2) An overt attack of any type is made upon the United States and is confirmed either by the commander of a command established by the Secretary of Defense or higher authority.
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(a)
(b)
(2) Federal Aviation Act of 1958, as amended.
(3) Communications Act of 1934, as amended.
(4) Executive Order 11490.
(5) The National Security Act of 1947, as amended.
(c)
(1) For the NORAD area of responsibility, NORAD region commanders have been designated as appropriate military authority by CINCNORAD.
(2) Outside the NORAD area, the commander, or his designated representative, of the unified-specified command exercising operational control over the area.
(d)
(1) In the first situation, an emergency may develop which does not meet the criteria for the declaration of a Defense Emergency or Air Defense Emergency, but in the interests of hemispheric and national security requires identification and control of all aircraft operating in the defense area, its coastal approaches or any parts of these areas. Under such conditions, the following actions, which are described in more detail in § 245.3, will be taken:
(i) The appropriate military authority will direct the FAA Air Route Traffic Control Center (ARTCC) concerned to apply Emergency Security Control
(ii) The ARTCC will advise all aircraft operating under its control and relay ESCAT implementation instructions to appropriate aeronautical facilities within its area that ESCAT rules have been applied and will then issue any special security instructions which are required to identify, locate and ensure immediate control of all air traffic.
(iii) When ESCAT is applied, all aircraft must file IFR or DVFR flight plans and comply with the special security instructions issued. These instructions may require diverting or rerouting airborne flights and, using a system of security control authorizations, restrictions to proposed flights not already airborne.
(2) In the second situation, an emergency will have arisen which has resulted in the declaration of Defense Emergency outside the NORAD area, Air Defense Emergency within the NORAD area, or both of these. Under such conditions the following actions, described in detail in § 245.5, will be taken:
(i) The appropriate military authority will direct the FAA ARTCC concerned to implement Security Control of Air Traffic and Air Navigation Aids (SCATANA).
(ii) The ARTCC will relay SCATANA implementation to appropriate aeronautical facilities, will direct all VFR traffic under its control to land and file an IFR/ DVFR flight plan, and will implement other directions specified by the appropriate military authority. These may include grounding, diversion and other restrictions to flight, plus the control of navigation aids.
(iii) Aircraft movements will be controlled by the use of the WATPL except for specific exceptions which will be controlled by using a Security Control Authorization.
(iv) The NORAD Region in its transmission of SCATANA air traffic control instructions to the ARTCC will clearly state which WATPL Numbers are authorized to operate. This information will also include any special authorizations for operations under Security Control Authorizations procedures (see § 245.8).
(e)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(f)
(i) Establish the military requirements for the Security Control of Air Traffic and Air Navigation Aids.
(ii) Coordinate with the Administrator, FAA, and the Defense Commissioner, FCC, as appropriate, regarding the establishment of procedures for implementation.
(2) The Administrator, FAA will:
(i) Promulgate the necessary FAA directives/plans, including special ATC procedures to implement this plan.
(ii) Coordinate with appropriate military authorities prior to the establishment of procedures for this plan.
(iii) Maintain liaison with appropriate NORAD region commanders through appropriate FAA offices.
(iv) Administer this plan in accordance with requirements established by the Commander in Chief, North American Air Defense Command.
(v) Collaborate with the FCC in establishing procedures for control of non-Federal NAVAIDS as defined in this plan.
(3) Federal Communications Commission will:
(i) Engage in rule making or other actions as appropriate in support of this plan.
(ii) Collaborate with the FAA in establishing procedures for control on non-Federal NAVAIDS as defined in this plan.
(4) Appropriate Military Authorities will:
(i) Direct the control of NAVAIDS (VOR, VORTAC, TACAN and LORAN) in their areas, as required.
(ii) Issue security control instructions to appropriate FAA region/ARTCC as necessary to insure performance of their air defense mission.
(iii) Maintain liaison with appropriate FAA regional directors and FCC Regional Liaison Officers.
(iv) Conduct tests of this plan in coordination with the FAA and FCC.
(v) Collaborate with the FAA regional director and FCC Regional Liaison Officer in making supplemental agreements to this plan.
(5) The FAA Regional Directors will:
(i) Assure FAA participation with the NORAD region commanders in the testing of this plan in the NORAD region areas.
(ii) Ensure dissemination of information and instructions concerning this plan within their areas of responsibility to civil and military aeronautical facilities and civil pilots.
(iii) Place in effect procedures outlined in this plan in accordance with
(iv) Assist appropriate military authorities in making supplemental agreements to this plan as may be required.
(6) The FCC Regional Liaison Officers will:
(i) Maintain liaison with the NORAD region commanders and FAA regional directors with regard to participation of FCC licensed aeronautical navigational aids in this plan.
(ii) Disseminate information and instructions concerning this plan to FCC licensed navigational aids affected by this plan.
(iii) Assist the NORAD region commanders in making such supplemental agreements to this plan as may be required.
(7) Commanders of Responsible Major Commands will:
(i) Ensure that the air traffic movement sections of the Emergency War Plans are coordinated with appropriate military authorities.
(ii) Ensure that flight plans in support of their coordinated Emergency War Plans are prepositioned with appropriate military authorities and the FAA. (See § 245.6).
(iii) Identify specific NAVAIDS (VOR, VORTAC, TACAN and LORAN) which are essential to support contingency operations of assigned forces during implementation of SCATANA. The appropriate military authority will, except under actual emergency air defense situations, ensure that such air NAVAIDS within their area of responsibility remain in operation. Control of LORAN C will be in accordance with the JCS Master Navigation Plan (SM 525-XX). If actual emergency air defense situations require shutdown of these air NAVAIDS, the appropriate military authority will immediately notify the respective commander of the affected major command of the shutdown.
(a)
(b)
(1) Ensuring that the position of all friendly air traffic is known and can be contacted by radio, if necessary.
(2) Controlling the density of air traffic operating in airspace critical to the conduct of air defense operations.
(c)
(i) Direct the affected ARTCCs to apply ESCAT.
(ii) Specifically define the affected area.
(iii) Define the types of restrictions to be placed in effect. These may require the diverting and rerouting of traffic, the restricting of traffic to certain areas or corridors, and the initiating of a requirement to obtain a Security Control Authorization prior to take-off.
(iv) Within NORAD, the region commander will advise CINCNORAD who will then advise the Administrator, FAA and the Defense Commissioner, FCC, that ESCAT has been applied. Outside NORAD the appropriate military authority will advise the Administrator, FAA and the Defense Commissioner, FCC directly. When time is vital notification may occur after ESCAT has been implemented.
(v) Direct the appropriate ARTCCs to relax or terminate restrictions as the tactical situation allows.
(2) ARTCCs will take the following actions when directed to apply ESCAT:
(i) Disseminate ESCAT instructions and restrictions received to air traffic, civil and military air traffic control facilities, flight service stations and other appropriate aeronautical facilities.
(ii) Impose the restrictions on air traffic as directed by the appropriate military authority. The restrictions will automatically include instructions for all VFR traffic to land at the nearest suitable airport and file an IFR/DVFR flight plan.
(iii) Civil and military air traffic control facilities, and other aeronautical facilities will disseminate to air traffic and aircraft operators, and will implement, those instructions and restrictions received from the ARTCCs. When
(iv) The pilot in command will take the following actions when ESCAT is applied:
(
(
(
(a)
(1) In the first of these, an emergency has arisen which has resulted in the declaration of an Air Defense Emergency within the NORAD area. Under this condition SCATANA will be automatically implemented.
(2) In the second situation, which applies only to NORAD, a NORAD region commander may direct implementation of SCATANA for his region when his region or an adjacent region is under attack and Air Defense Emergency has not yet been declared.
(3) In the third situation, an emergency has arisen which has resulted in the declaration of a Defense Emergency outside the NORAD area. Under this condition, SCATANA may be considered for implementation.
(b)
(1) Exercising security control of civil and military aircraft entering, departing or moving within the U.S. areas and their coastal approaches.
(2) Selectively limiting air traffic, consistent with air defense requirements.
(3) Exercising control over the following air navigation systems: VOR, VORTAC, TACAN and LORAN.
(c)
(i) Direct the appropriate ARTCC to implement SCATANA.
(ii) Specify what restrictions are to be implemented, such as:
(
(
(
(
(
(iii) Revise or remove restrictions to the movement of air traffic and control of air navigation aids as the tactical situation permits.
(2) ARTCCs will take the following actions when directed to implement SCATANA:
(i) Disseminate SCATANA implementation instructions to civil and military air traffic control facilities and other appropriate aeronautical facilities.
(ii) Impose the restrictions on air traffic as directed by the appropriate military authority. The restrictions will automatically include instructions for all VFR traffic to land at the nearest suitable airport and file an IFR or DVFR flight plan. Landing, diversion or dispersal of traffic, when ordered,
(iii) As directed by the appropriate military authority, implement the control of VOR, VORTAC, TACAN, and LORAN as follows:
(
(
(
(iv) When directed to reduce or remove SCATANA restrictions, authorize resumption of air traffic and operation of air navigation aids as specified by the appropriate military authority.
(3) Civil and military air traffic control facilities, and other appropriate aeronautical facilities will:
(i) Maintain the current SCATANA ACTION Form for that facility at appropriate operating positions.
(ii) When SCATANA is implemented or terminated, take the actions indicated on the facility's SCATANA ACTION Form.
(iii) Maintain current information on the status of restrictions imposed on air traffic.
(iv) Approve or disapprove filed flight plans in accordance with current instructions received from the ARTCCs. Approval will indicate that the flight is permitted under the WATPL priority currently in effect or that the flight has been granted a Security Control Authorization.
(v) Forward flight plans and approval requests to the ARTCC as required.
(vi) Disseminate instructions and restrictions to air traffic as directed by the ARTCCs.
(4) The pilot in command will conform to security control instructions as follows:
(i) IFR flights—comply with instructions received from the appropriate aeronautical facility.
(ii) VFR flights—land at the nearest suitable airport when so directed.
(iii) Aircraft on the ground—file an IFR or DVFR flight plan with the proper FAA facility and receive approval prior to departure.
(a)
(b)
(c)
(i) The air traffic movement sections of their Emergency War Plans (including dispersal, evacuation and other related contingency plans) and the specific air NAVAIDS essential to support
(ii) Subsequent to the coordination required in the paragraph (c)(1)(i) of this section, extracts of the air traffic movement section of their plans are to be passed to the appropriate military authorities. The extracts are to be prepared according to the format shown in § 245.7. In the NORAD area of responsibility the extracts are to be sent to the Commander of the NORAD region in which the flights originate.
(2) Responsible military authorities will:
(i) During the coordination phase, ensure that proposed aircraft movements do not conflict in time, altitude, route or any other respect with other planned movements. Potential conflicts are to be resolved through negotiations with the commands involved.
(ii) On receipt of the tactical air movement plan extracts, review again their impact on the overall air situation, incorporate the extracts into the unit SCATANA plan, as supplements, and distribute the extracts to appropriate military agencies, FAA regions and ARTCCs.
Project officer name and phone number
(NORAD region of flight plan origination)
(g)_________KT.
(a)
(b)
(c)
(ii) Retaliatory aircraft, including their direct support aircraft, executing EWO.
(iii) Airborne command elements which provide backup to command and control systems for the combat forces.
(iv) The President of the United States and Prime Minister of Canada and respective cabinet members essential to national security.
(2)
(ii) SAC aircraft in direct and immediate support of EWO not included in priority one.
(iii) Search and rescue aircraft operating in support of these activities.
(3)
(ii) Continental Air Reconnaissance for Damage Assessment (CARDA) missions for the support of immediate combat operations.
(iii) Search and rescue aircraft not included in priority two.
(iv) Flight inspection aircraft flights in connection with emergency restoration of airway and airport facilities in support of immediate combat operations.
(4)
(i) Tactical military aircraft.
(ii) U.S. air carrier aircraft assigned to the War Air Service Program (WASP).
(iii) U.S. civil air carrier aircraft allocated to the CRAF Program.
(iv) FAA flight inspection aircraft.
(v) Foreign civil air carrier aircraft in the U.S. in accordance with specific international agreements.
(vi) Public aircraft assigned to FAA and other Federal agencies.
(5)
(ii) Dispersal of nontactical military aircraft for their protection.
(iii) Public aircraft assigned to FAA and other Federal agencies.
(6)
(ii) Other essential CARDA missions not included in paragraph (c)(3)(ii) of this section.
(iii) Flight inspection activity in connection with airway and airport facilities.
(7)
(8)
(d)
(2) Priority will be solely dependent on the nature of the aircraft's mission. Operational test flights will take the priority of the mission aircraft tested.
(3) The originator of a request for aircraft movement will be responsible for determining and verifying the appropriate priority in accordance with the list described above.
(4) The individual filing the flight plan will be responsible for including the priority number as determined by the originator of the request.
(5) During general war conditions, situations may occur which cannot be related to the WATPL. Aircraft emergencies and inbound international flights which have reached the point of no return, including foreign air carrier flights enroute to safe haven airports in accordance with specific international agreements are examples of such situations. These incidents must be treated individually through coordination between ATC and appropriate military agencies in consideration of the urgency of the inflight situation and existing tactical military conditions.
(6) During periods other than general war, aircraft movements are handled as follows:
(i) Involvement in limited war or execution of contingency plans, to include JCS directed actions, immediately
(ii) Assignment of reserved airspace to accommodate military air operations which, because of their objectives, cannot be conducted in accordance with routine ATC procedures will be based upon an order of precedence for the purpose of resolving mission conflicts in planning altitude reservations. This order of precedence is published in appropriate Joint Service Regulations and FAA documents.
(7) Priorities for air traffic clearances required under the SCATANA plan are not to be confused with civil priorities assigned to civil air carrier aircraft under the WASP priorities system, or to general aviation civil aircraft under the SARDA plan. WASP and SARDA priorities are designed to provide for controlled use of civil aircraft capability and capacity, and they have secondary significance when the WATPL for the movement of aircraft is in effect.
(a)
(b)
(c)
(2) Air traffic assigned a WATPL number other than 1 or 2 may be delayed, diverted, rerouted, or landed by the NORAD region commander to prevent degradation of the air defense system.
(3) Aircraft being “recovered” will be expedited to home or alternate base, and “search and rescue” aircraft expedited on their missions; but such aircraft may be diverted to avoid battle areas or take off may be delayed to prevent saturation of airspace.
(4) Tactical air traffic will file IFR flight plans and comply with IFR procedures regardless of weather. The appropriate WATPL number will be entered in the Remarks section in the Aircraft Clearance Form DD 175. The WATPL number will be posted on ARTCC flight strips passed from one ARTCC to the next, and to the appropriate air defense control facilities.
(5) For mass military operations a single clearance form will be filed and ALTRAV procedures will be applied.
(6) Compliance with approved flight plan and position report requirements is of utmost importance for identification. Aircraft aborting or deviating from an approved flight plan will air-file a revised flight plan as soon as the necessity for such deviation is evident. Unauthorized deviations may preclude identification and result in engagement by defensive weapons.
(d)
(2) The following flights may require the granting of a Security Control Authorization prior to take off:
(i) Organized civil defense missions.
(ii) Disaster relief flights.
(iii) Agricultural and forest fire flights.
(iv) Border patrol flights.
(v) SARDA flights prior to WATPL Six.
(a)
(b)
(2) All Federal facilities responsible for SCATANA actions will participate in SCATANA tests, except where such participation will involve the safety of aircraft. Non-federal civil aeronautical facilities may be requested to participate.
(c)
(i) Aircraft will not be grounded or diverted.
(ii) Air navigation aids will not be shut down.
(iii) Test messages will not be transmitted over air/ground/air radio frequencies.
(iv) Radio communications will not be interrupted.
(2) For NORAD Exercises.
(i) If ESCAT is applied by CINC NORAD, this fact will be passed to the Region SCATANA Officer in plain language. Region SCATANA officers may call or simulate calling the appropriate ARTCC using the following statement:
This is a NORAD exercise. Apply ESCAT. ARTCC acknowledge and take no further action.
(ii) If ESCAT is applied or SCATANA is implemented by the Region Commander, the Region SCATANA Officer may simulate the call or may make an actual call using the format shown in paragraph (c)(2)(i) of this section, and inserting ESCAT or SCATANA as appropriate.
(3) SCATANA Test. This is a test conducted by ARTCC's in which SCATANA participants conduct simulated notification actions required by the plan. Timing of the test will be at the discretion of the ARTCC. A narrative summary of each test is to be prepared by the ARTCC MLO and copies sent to appropriate NORAD Region SCATANA Officer, FAA Region MLO, FAA NORAD RDLO and FAA NORAD Hq LO. FAA NORAD Hq LO will be responsible for reviewing the SCATANA tests reports and recommending changes to the testing procedures to Hq NORAD as deemed appropriate. The SCATANA tests will be conducted at least quarterly.
(4) SCATANA Diversion Simulation. This is a test designed to exercise ARTCC personnel in making decisions on aircraft diversion which would be required under actual implementation of the plan. The timing of the simulation will be pre-coordinated between the ARTCCs and the NORAD Region SCATANA Officer. The guideline timeframe for the area recovery of all non-essential air traffic in actual operations has been fixed at an optimum of twenty minutes; diversion simulation exercises should operate on a similar timeframe. Tests will be conducted at least semi-annually.
(i) The NORAD region will provide charts to the ARTCC for the recording of simulated aircraft diversions. The completed charts will be passed to the NORAD Region SCATANA Officer for analysis. The NORAD Region SCATANA Officer will brief region staffs on the results of the exercise and FAA representation will be invited.
(ii) The charts will record the position of all live aircraft on IFR clearances in the ARTCC's area at the time ESCAT was simulated, the position of
Authentication is not required between NORAD Region Control Centers and ARTCCs for the implementation of SCATANA.
10 U.S.C. 136.
This part:
(a) Establishes policy, assigns responsibilities, and prescribes procedures for the S&S organizations owned by designated Unified Commands consistent with 32 CFR part 372.
(b) Supersedes policies and procedures in 32 CFR part 247 about the S&S newspapers.
(c) Authorizes the establishment, management, operation, and oversight of the Stars and Stripes, including the resale of commercial publications necessary to support the overall S&S mission, production, distribution authority, and business operations as mission-essential activities of the Department of Defense and the designated Unified Commands.
(d) Designates the Secretary of the Army as the DoD Executive Agent for providing administrative and logistical support to the American Forces Information Service (AFIS), designated Unified Commands, and the S&S.
(e) Authorizes the Commander in Chief, U.S. European Command, and the Commander in Chief (CINC), U.S. Pacific Command, to establish and maintain a S&S board of directors to address S&S business operations in their Unified Commands.
This part applies to the Office of the Secretary of Defense, the Military Departments (including their National Guard and Reserve components), the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “the Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
It is DoD policy that:
(a) The U.S. European Command and the U.S. Pacific Command are authorized to publish the Stars and Stripes and provide support to the S&S. The Unified Command component commanders and their public affairs staffs shall provide the Stars and Stripes editorial staffs the same help provided to commercial newspapers, in compliance with the principles governing the release of information to media in 32 CFR part 375.
(b) Editorial policies and practices of the Stars and Stripes shall be in accordance with journalistic standards governing U.S. daily commercial newspapers of the highest quality, with emphasis on matters of interest to the Stars and Stripes readership. Except as provided in paragraph (e) of this section, the DoD policy for the Stars and Stripes is that there shall be a free flow of news and information to its readership without news management or censorship. The calculated withholding of unfavorable news is prohibited.
(c) The S&S are basically self-sustaining operations. Each S&S shall be administered in accordance with DoD Directive 1015.1
(d) The Stars and Stripes personnel procedures shall differ from commercial newspapers only because the S&S are U.S. Government organizations that are required to operate in accordance with the following:
(1) 32 CFR part 40, other Federal laws and DoD Directives that affect all DoD employees, and the Manual for Courts Martial (MCM), 1984
(2) National security constraints prescribed by E.O. 12356 (47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166).
(3) Overseas status of forces agreements (SOFAs), where applicable.
(e)(1) The only circumstances under which news or information that is not in the public domain may be directed to be withheld from publication in the Stars and Stripes by a Unified Command CINC are when such publication:
(i) Involves disclosure of classified national security information.
(ii) Would adversely affect national security.
(iii) Clearly endangers the lives of U.S. personnel.
(2) Those circumstances in paragraphs (e)(1)(i) through (e)(1)(iii) may not be construed to permit the calculated withholding of news unfavorable to the Department of Defense, the Military Services, or the U.S. Government. Only the Unified Command CINC may authorize withholding of news or information from the Stars and Stripes. When the CINC directs withholding of publication, the Unified Command shall immediately inform the ASD(PA) by telephone and then forward an immediate precedence, appropriately classified, message to the following: SECDEF Washington DC//OATSD-PA, with information copies to the Director, AFIS, and the Special Assistant for Public Affairs to the Chairman of the Joint Chiefs of Staff. The CINC may include the appropriate “AMEMBASSY” as an information addressee.
(f) Sensitivities of host-nations shall not be a reason to withhold any story from publication in the Stars and Stripes. The Unified Command theater host-nation sensitivity lists prepared for the Armed Forces Radio and Television Service (AFRTS) shall not be used to restrict the content of the Stars and Stripes. If representatives of other governments show an interest in, or concern about, the content of the Stars and Stripes, they shall be informed that:
(1) The Stars and Stripes does not represent the official position of the U.S. Government, including the Department of Defense or the Unified Command.
(2) The Stars and Stripes is an unofficial, abstracted collection of commercial news and opinion available to commercial newspapers in the United States, along with Stars and Stripes editorial staff-generated DoD, command, and local news and information. The Stars and Stripes provides this information to the members of the Department of Defense and their family members serving overseas, as do commercial daily newspapers that are published and sold throughout the United States in keeping with the principles of the First Amendment to the U.S. Constitution.
(g) The Department of the Army shall be the DoD Executive Agency to provide APF and NAF support to the S&S. APFs shall be provided, when required by adverse conditions or special circumstances as defined in § 246.3, by the Military Services, as agreed on through a memorandum of agreement (MOA) detailing the shared responsibilities, and approved by the OSD and the Unified Commands.
(a) The Assistant to the Secretary of Defense (Public Affairs), under 32 CFR part 375, as the principal staff assistant to the Secretary of Defense for internal information policy and programs, including S&S matters, shall:
(1) Provide policy and broad operational guidance to the Director of the AFIS.
(2) Monitor and evaluate the overall effectiveness of the policies in § 246.4, and procedures in § 246.6.
(b) The Director, American Forces Information Service, under 32 CFR part 372 shall:
(1) Develop, issue, and oversee the implementation of policies and procedures for the Unified Commands and the Military Departments for the operation of the S&S.
(2) Provide business and policy counsel on the mission performance and financial operations of the S&S.
(3) Serve as the DoD point of contact with the Congressional Joint Committee on Printing (JCP) for S&S matters.
(4) In coordination with the Chairman of the Joint Chiefs of Staff and the ATSD(PA), provide broad and overall planning guidelines to the Unified Commands for S&S wartime operations that involve more than one area of responsibility.
(5) Chair, as required, at the Deputy Assistant to the Secretary of Defense level, or above, the steering committee providing guidance to the S&S MAG.
(6) Select and employ the S&S Ombudsman.
(c) The Secretaries of the Military Departments shall:
(1) Nominate the most highly-qualfied military personnel for positions in the S&S in acordance with appendix C to this part.
(2) Enter into appropriate MOAs, as provided by the Unified Commanders and, as required by the Office of the Secretary of Defense (OSD), to provide APF and/or NAF support when required by adverse conditions as defined in § 246.3(a).
(d) The Secretary of the Army shall:
(1) Provide administrative and logistic support, as the DoD Executive Agent, to the S&S organizations.
(2) Support NAF and APF accounting and reporting procuedures required by DoD Instruction 7000.12
(3) Designate the successor-in-interest to the S&S, as agreed upon by the applicable Unified Command and the Director of the AFIS.
(e) The Commander in Chief, U.S. European Command, and the Commander in Chief, U.S. Pacific Command, shall:
(1) Authorize a Stars and Stripes newspaper, provide operational direction to the S&S commander publisher, and support the S&S throughout the Unified Command area of responsibility, consistent with each organization's status as a category B NAFI.
(2) Provide Unified Command regulations and guidance, as needed, to carry out this part.
(3) Establish procedures to resolve situations wherein a U.S. Ambassador (or, if so designated, the chief of mission) believes a specific issue in his or her nation of responsibility, not already in the public domain through other news sources, would violate national security or endanger the safety of American citizens, or other persons under their jurisdiction, if it were to be published in the Stars and Stripes.
(4) Select the S&S commander/publisher and other military officers in S&S positions.
(5) Aid the S&S commander/publisher to educate the Stars and Stripes editorial staff about the missions of their Unified Command and Military Service component commands.
(6) Approve the selection of the Stars and Stripes editor.
(7) Establish and maintain a S&S board of directors to address S&S business operations. (See appendix E to this part)
(8) Establish and maintain Stars and Stripes readership forums, which may take many forms, to address Stars and Stripes matters of interest and S&S bookstore operations. Those forums are to provide community feedback to the S&S. This will enable the S&S commander/publisher and the Stars and Stripes editor to better understand and, thereby, better serve the interests and needs of the readers and bookstore customers.
(9) At the discretion of the Unified Command CINC, provide for meetings between the S&S commander/publisher and the Stars and Stripes editor, the Unified Command public affairs office, and the Unified Command component commands, represented by their directors of public affairs, to discuss the performance of the Stars and Stripes and the performance of related public affairs operations. The Unified Commands, their component commands, and the S&S may invite any attendees they choose. Representatives from the AFIS may attend. Those meetings may not serve as editorial advisory boards. The Unified Command and component commands represent the principal source, and a prominent subject, of Stars and Stripes staff-generated news coverage. Consequently, any involvement or appearance of involvement by component command staffs in the Stars and Stripes editorial policy creates an unacceptable conflict of interest damaging to the editorial integrity and credibility of the Stars and Stripes.
(10) Ensure that the S&S Commander/Publisher:
(i) Assumes the duties and responsibilities of command, leadership, management, and training for the S&S.
(ii) Executes DoD and Unified Command policy.
(iii) Is responsible to the Unified Command CINC for S&S operations to include the newspaper publication and timely circulation, the operation of the S&S resale and job printing activities, and associated distribution systems in the relevant Unified Command area of responsibility.
(iv) Provides planning and execution of initiatives to ensure support of U.S.
(v) Selects the Stars and Stripes editor.
(vi) Approves, in coordination with the Stars and Stripes editor, military personnel selectees for the Stars and Stripes editorial staff. (See appendix C to this part)
(vii) Provides a current status briefing and 2-year financial forecast to the Director of the AFIS at the annual AFIS S&S meeting. Provides support to the S&S board of directors as required in appendix E to this part.
(viii) Conducts frequent independent readership surveys, in accordance with DoD Instruction 1100.13
(f) The Other Unified Commanders in Chief shall ensure that their deployment exercise, contingency, and war-time planning documents reflect the S&S transportation, funding or reimbursement, and in-theater distribution requirements, as applicable. Information copies of such planning documents or annexes shall be furnished to the following:
(1) U.S. European Command (ATTN: Director, Public Affairs).
(2) U.S. Pacific Command (ATTN: Director, Public Affairs).
(3) The AFIS (ATTN: Assistant Director for Plans and Policy).
(a)
(2) Classified information shall be protected in accordance with 32 CFR parts 159 and 159a.
(3) The Stars and Stripes and the S&S business operations shall conform to applicable regulations and laws involving libel, copyright, U.S. Government printing and postal regulations, and DoD personnel policies and procedures.
(4) With the concurrence of the Unified Command, the S&S is authorized direct communication with the Military Services on S&S personnel matters and with the Department of the Army on S&S financial matters. The S&S shall keep the Unified Command and the AFIS informed of all actions.
(b)
(2) The Director of the AFIS shall be assisted by a S&S MAG composed of senior representatives from the AFIS, the OASD(FM&P), and the other DoD offices with the authority and expertise to aid in solving S&S problems. As needed, the Director of the AFIS may organize a DoD steering committee to oversee and aid the S&S MAG to address specific concerns identified by the Director of the AFIS and the Unified Command CINCs.
(3) In accordance with DoD Instruction 7600.6
The reporting requirements in § 246.6, and appendix B to this part shall be submitted in accordance with DoD Instruction 7000.12, and 7600.6, unless specifically excepted by this part.
A.
B.
C.
D.
E.
A.
a. The S&S shall be authorized nonappropriated fund (NAF) and appropriated fund (APF) support as category B NAFIs as provided under DoD Instruction 1015.6.
b. The S&S shall be funded to the maximum extent possible through the sale and distribution of the newspaper, news magazines, books, periodicals, and similar products; job printing; authorized advertising revenues; and other authorized sources of revenue, as approved by the Department of Defense and the Congress.
c. APF support shall be kept to a minimum, consistent with the S&S mission.
2. The Secretary of the Army shall be the DoD Executive Agent for APF and NAF support to the S&S. If adverse conditions occur, the other Military Services shall provide proportionate funding support through a memorandum of agreement (MOA) containing funding procedures coordinated with the affected Unified Commands and the AFIS. Copies of the agreement shall be provided to all concerned parties.
3. The Stars and Stripes and other S&S commercial resale publications may be made available within the Unified Command to other U.S. Government Agency members, and U.S. Government contractors, as approved by the Unified Command.
4. The S&S system of accounting and internal control shall conform with the requirements of DoD Instruction 7000.12, Army regulations on Morale, Welfare and Recreation (MWR) activities and NAFIs, and NAF accounting policies and procedures, except as authorized by the S&S Comptroller's Manual to meet business and consolidation requirements. The S&S shall ensure that quarterly reports are furnished to the Unified Commands, the S&S Board of Directors, and the Director of the AFIS.
B.
1. As provided by the U.S. Army for direct funding support when adverse conditions make such funding necessary to ensure the survival of the newspaper without impairment of mission capability. The Secretary of the Army shall provide such funding when requested by the affected Unified Command Commander-in-Chief (CINC), through the Director of the AFIS.
2. For regional air transportation of the newspaper, overseas “transportation of things” as authorized to joint-Service NAFIs; and electronic, optical, or satellite transmission of the newspaper when long distances require these modes to ensure timely and economical delivery.
3. As required, to transport Stars and Stripes to officially designated “remote and isolated” locations. The Unified Commands may authorize DoD official postage to remote and isolated locations, if that action is required to ensure timely delivery. Each S&S shall annually review its mailing support to minimize APF expenditures. The U.S. postal regulations apply to the S&S.
a. The S&S shall use in-house or other non-postal means of transportation to distribute the newspaper to areas that are not designated as remote and isolated.
b. The S&S are authorized to use official managerial and administrative mail related exclusively to the business of the U.S. Government in accordance with DoD 4525.8-M,
4. For transportation of military personnel incident to mission-essential travel, required military training, participation in contingency operations, in military field exercises, such as “REFORGER” or “TEAM SPIRIT,” or to areas of armed conflict.
5. In times of armed conflict or national contingency deployment, as directed by the Chairman of the Joint Chiefs of Staff for production and free distribution of the Stars
6. In other agreements as made with the Unified Commands, the Department of Defense, and the U.S. Army as the DoD Executive Agency.
C.
2. Excess NAFs belonging to the S&S may be declared excess by the Unified Command CINC, upon the recommendation of the S&S board of directors, under the guidelines in section C.3. of this appendix. Disposition of excess NAFs shall be as directed by the Unified Command CINC. The S&S NAFs declared in excess in one theater may be allocated or loaned to the other Unified Command for S&S-related activities.
3. The S&S NAFs may be declared in excess only if the following conditions are met:
a. The S&S working capital is at a level to continue prudent operations.
b. The local national S&S employee retirement and severance accounts are fully funded. The other S&S employment agreements required by applicable NAF regulations must also be fully funded.
c. Sufficient capital is available from an investment and/or contingency fund to complete all planned and projected capital expenditure projects, and to fulfill the other legitimate S&S business obligations.
d. Additional sinking funds are available to sustain the S&S through foreseeable periods of financial crisis created by adverse conditions. The sinking fund level shall be determined by the S&S board of directors and recommended to the Unified Command CINC for approval.
e. The retail price of the Stars and Stripes is at, or below, the most prevalent charge for similar U.S. newspapers. That shall be determined by the S&S board of directors and recommended to the Unified Command CINC for approval. The Director of the AFIS will be informed of any decision to raise the retail sales price of Stars and Stripes and will provide the Unified Command CINC an assessment of average commercial newspaper sales prices throughout the United States. The availability of the Stars and Stripes at reasonable cost to overseas personnel, commensurate with the retail sales price of comparable commercial newspapers throughout the United States, is a major quality-of-life consideration. A reasonable retail sales price is critical to ensure the greatest access for all overseas personnel and their family members to current print news and information so that they may remain informed U.S. citizens.
f. The S&S books, periodicals, magazines, and similar products are to be sold at no more than cover price and should be discounted to an appropriate level that still sustains full S&S operations, as determined by the S&S board of directors and recommended to the Unified Command CINC for approval.
4. Under adverse conditions, the S&S commander/publisher may apply for NAF support through the Unified Commands to the Director of the AFIS. Following approval by the Unified Command, the Director of the AFIS shall forward the request to the Secretary of the Army for appropriate action. Such NAF requests must first be recommended by the S&S board of directors and approved by the Unified Command CINC. In these cases, the S&S NAFs in either Unified Command may be considered as the first source before forwarding a request to the Department of the Army. The Unified Commands may lend NAFs from one S&S to the other through an MOA.
D.
2. The Unified Command CINC shall adjudicate publications resale issues within the
3. Both S&S shall consolidate their wholesale purchases of commercial publications to the maximum extent, consistent with Unified Command distribution criteria, actual economies of scale, and cost-efficiencies. Consolidation initiatives shall be worked in concert with the Unified Commands, the AFIS, and the S&S board of directors. As recommended by the S&S board of directors and approved by the Unified Command CINC, the S&S bookstores shall offer discounts similar to commercial United States bookstore franchises. The offering of discounts should not endanger the financial viability of the S&S.
4. The S&S bookstores shall be audited by the S&S management at least annually. Where bookstores are operating at a consistent financial loss, the S&S may consider servicing readers through arrangements with exchanges, other military outlets, or consider consolidation at central points.
a. Bookstore inventory levels shall be verified internally on a semiannual basis. Inventory levels shall be held to cost-effective levels that still consider the servicing needs of overseas customers.
b. The S&S shall establish affidavit-return procedures to vendors and/or publishers, where possible, to return damaged merchandise, overstock, or out-of-date publications to reduce APF expenditures necessary for “over-the-water” transportation.
5. The S&S shall conduct local “market-penetration” surveys. The S&S shall also operate a “customer-complaint” feedback system to monitor its service and provide the best possible service to its customers. The results of those surveys shall be provided to the Unified Command with recommendations to the S&S board of directors, as required.
E.
2. The Stars and Stripes may sell, through commercial advertising agencies, run-of-the-paper advertising of DoD recruiting and retention programs or activities.
3. The S&S has the right to refuse any advertising.
4. The Stars and Stripes may publish news stories on special DoD-affiliated tours or entertainment opportunities for DoD personnel and their dependents in accordance with DoD Instructions 1015.2
5. The S&S may promote the Stars and Stripes, books, periodicals, magazines and similar products; authorized advertising; and job printing services (except APF) in the Stars and Stripes. Books, periodicals, magazines, and similar product promotions may include publications by name, title, author, and price. The Stars and Stripes also may promote literacy, health, safety, and other community service issues.
6. The S&S may promote AFRTS schedules, programs, and services in their newspapers and bookstores. The S&S shall cooperate with AFRTS outlets to promote each others' programs and services as authorized by DoD Directive 5120.20
7. As a newspaper operated by the Department of Defense, the Stars and Stripes may not:
a. Contain any material that implies that the DoD Components or their subordinate levels endorse or favor a specific commercial and/or individually-owned product, commodity, or service.
b. Subscribe, even at no cost, to a commercial, feature wire, or other service whose primary purpose is the advertisement or promotion of commercial products, commodities, or services.
c. Carry any advertisement that implies discrimination as to race, age, origin, gender, politics, religion, or physical characteristics that include health.
F.
A.
2. As DoD employees, the S&S civilian personnel shall abide by 32 CFR part 40, the Department of Defense, the Unified Command, and the U.S. Army regulations, U.S. laws governing Government employees, the applicable host-nation laws, and the applicable status of forces agreements (SOFA) requirements. The S&S commander/publisher shall ensure that the S&S employees are made aware of those provisions before being hired and that employees receive adequate personnel training.
3. The S&S shall endeavor to recruit civilian personnel with solid experience, education, and performance credentials in the required business, publishing, or editorial disciplines. The S&S, as part of its hiring practices, shall specify terms of Government employment and include responsibilities, such as those in 32 CFR part 40, so that the S&S civilian employees are fully aware of their obligations as DoD employees.
B.
C.
a. The S&S commander/publisher should have military public affairs and joint-Service experience, and a journalism degree.
b. The S&S officers supervising business operations should have experience in DoD Comptroller functions and be familiar with laws and regulations applicable to DoD and NAFI business operations. A master's degree in business administration is desirable, but not mandatory.
c. Instead of an advanced degree or military public affairs experience, nominees may be authorized, by the Unified Command CINC and the AFIS, to substitute a DoD-funded “training-with-industry” program with comparable newspaper operations in the United States.
d. The Unified Commands shall forecast military vacancies in the S&S to allow time for the Military Services' nomination processes to be completed and provide for education before the S&S assignment.
e. The Military Services shall provide highly qualified officers for all S&S assignments at the required grade levels.
2. Military officers selected for duty as S&S commander/publisher shall undergo a “training-with-industry” program to provide real-world training with a commercial newspaper. That program shall be administered by the Director of the AFIS, in coordination with the Military Services and the Unified Commands.
D.
2. The S&S commander/publisher shall coordinate with the Unified Commands to ensure that there is an appropriate mixture of Military Service billets and/or assignments represented in the S&S to preserve the tradition of the Stars and Stripes as joint-Service newspapers.
A.
2. The Stars and Stripes editor, with the concurrence of the S&S commander/publisher, and the Unified Command Commander-in-Chief (CINC), as the owner of the newspaper, may establish a standard code of personal and professional ethics and general editorial principles similar to those developed at major metropolitan newspapers or by professional journalists in organizations such as the Society of Professional Journalists. Those codes usually stress the following:
a. Responsibility of the newspaper to fully inform its readership.
b. Freedom of the press.
c. Commitment to personal and professional ethics.
d. Emphasis on content accuracy, objectivity, and fair representation of all sides of an issue.
When developed, copies of the code and style guides shall be provided to the Unified Command CINC and the Director of the American Forces Information Service (AFIS).
3. The Stars and Stripes editor shall be responsible for developing editorial procedures and, if required, a style guide that mirrors daily U.S. commercial newspapers.
4. The editorial content of the Stars and Stripes shall be governed by the general principles applicable to quality commercial press as follows:
a.
b.
c.
d.
(2) The Stars and Stripes shall support the Federal Voting Assistance Program by carrying factual information about registration and voting laws.
e. The Stars and Stripes shall provide balance in commercial syndicated columns. Since the Stars and Stripes may not take an independent editorial position, a balanced selection of syndicated opinion columns shall be published over a reasonable time period. The presentation of syndicated editorial cartoons should reflect the full spectrum of topical editorial cartoons being published throughout the United States. The S&S commander/publisher shall provide the Unified Commands annual assurance that the required balance for syndicated opinion columns has been met.
B.
2. The Stars and Stripes shall have the following disclaimer placed in the masthead or at the extreme bottom of one of the prominent pages, segregated from copy in a box:
This newspaper is authorized for publication by the Department of Defense for members of the Military Services overseas. However, the contents of the Stars and Stripes are unofficial, and are not to be considered as the official views of, or endorsed by, the U.S. Government, including the Department of Defense or the (name of the appropriate Unified Command). As a DoD newspaper, the Stars and Stripes may be distributed through official channels and use appropriated funds for distribution to remote and isolated locations where overseas DoD personnel are located.
The appearance of advertising in this publication, including inserts or supplements, does not constitute endorsement by the Department of Defense or the Stars and Stripes of the products or services advertised.
Products or services advertised in this publication shall be made available for purchase, use, or patronage without regard to race, color, religion, sex, national origin, age, marital status, physical handicap, political affiliation or any other nonmerit factor of the purchaser, user, or patron.
C.
a. Since most journalistic reporting is investigative by nature, “investigative reporting,” as such, is not banned. The Stars and Stripes reporters have the same need to ask questions of sources, and expect responses, as do commercial newspaper journalists. While the Stars and Stripes staff cannot conduct independent investigations that fall under the jurisdiction of various military law enforcement or designated investigative agencies, the Stars and Stripes may report on open or completed investigations by agencies authorized to perform investigative functions. If the Stars and Stripes employees note unlawful or criminal actions in their performance of duty, they must report such incidents immediately to the S&S commander/publisher or to their immediate supervisor, in accordance with 32 CFR part 40, who shall also comply with 32 CFR part 40 and, as applicable, DoD Directive 7050.1
b. The Stars and Stripes staff may not knowingly place classified information in Stars and Stripes staff-generated material. That does not apply to public domain information attributed to commercially contracted news, features, or opinion columns.
2. The Stars and Stripes editorial staffs shall receive the same treatment as commercial media.
a. The Stars and Stripes reporters shall have the same right to ask questions, to gain help, to have access, and to attend gatherings available to reporters from the commercial media. Commanders or public affairs staffs may not use the U.S. Government status of Stars and Stripes reporters to block the release of, or access to, otherwise releasable news, information, or events. Under the same circumstances, the Stars and Stripes reporters may not use their U.S. Government status or credentials to gain special treatment, access to restricted areas or gatherings, or other advantages that are not given equally to civilian media.
b. In keeping with the “Principles of Information” in 32 CFR part 375 governing release of information to commercial media, the DoD Components are expected to make available timely and accurate information so that the Stars and Stripes news staffs and readers may assess and understand the facts about their military organizations, the national defense, and defense strategy. Consistent with statutory requirements, information shall be made fully and readily available under the principles for the release of information to the media issued by the Secretary of Defense. A Government organization may not file a request for information against another Government organization under 32 CFR part 285, which implements the
3. To meet organizational responsibilities, the Stars and Stripes editor, the S&S commander/publisher, and the Stars and Stripes staff members they select, should meet frequently with area commanders and public affairs officers and staffs to confer, as their counterparts in U.S. commercial daily newspapers do with local government and community interest representatives.
4. When matters of interest to the Stars and Stripes readership cut across the Unified Command component command responsibilities, the Stars and Stripes editor may use “special project reporting teams” to examine such concerns. Whether the areas of Stars and Stripes interest are military exercises, fast-breaking news affecting the entire Unified Command community, or policies that require a greater-than-individual-reporter effort, the Stars and Stripes editor, through the S&S commander/publisher, can gain help by keeping the Unified Command and its component command public affairs offices informed of the need for theater-wide assistance. Such aid could help dispel morale-damaging rumors.
5. The Stars and Stripes shall conduct readership surveys at least once every 3 years in the Unified Commands where the Stars and Stripes are distributed. Such formal surveys shall be conducted in accordance with DoD Instruction 1100.13. The S&S may make shorter market surveys through its bookstore operations to determine changing readership interests. The Stars and Stripes is also encouraged to make frequent use of readership focus groups throughout the Unified Command.
6. The Stars and Stripes may review commercial entertainment where relevant and where it supports readership interest.
7. All bureau personnel and field reporters shall have Stars and Stripes newsroom experience before being given independent assignments. The Stars and Stripes military reporters may wear military or civilian clothes at the discretion of the S&S commander/publisher. If authorized by the S&S commander/publisher, Stars and Stripes military members may be authorized a clothing allowance in accordance with individual Service directives.
8. The Stars and Stripes are both authorized to maintain a Washington, DC, bureau located with other correspondent bureaus in the OASD (PA) Correspondents' Corridor. A desk will be provided for each Stars and Stripes. The S&S shall select the most qualified reporters possible for assignment to the bureau. A joint memorandum of understanding on personnel support shall be established between the two newspapers and approved by the Unified Commands, with a copy provided to the Director of the AFIS.
A.
2. Each Unified Command CINC shall designate the chairman of its S&S board of directors.
3. Each S&S board of directors shall include a member from the Unified Command Offices of Public Affairs and the Comptroller, and at least one member from each of the Unified Command Service components. Members shall be appointed by the Unified Command CINC for 2 years to ensure continuity. They shall be the best qualified personnel available in business-related disciplines. Members should be at the grade of 0-5, GS-12, or higher. Other than the Unified Command and the S&S senior representatives, the S&S board members should not be members of any other S&S forums or councils. Representatives from the American Forces Information Service (AFIS) and one S&S may attend the meetings of the other S&S board of directors and have their observations included in the minutes, but they are not voting members. Recommendations approved by the S&S board of directors may be incorporated by the Unified Command CINC into the Unified Command S&S instruction or directive, as applicable.
4. The S&S board of directors should meet at least three times each year. The minutes of each meeting shall be approved by the Unified Command CINC. The approved S&S board recommendations shall be incorporated, as permanent policy, into the Unified Command S&S implementing instructions or directives. Where such recommendations affect DoD policy, the Unified Commands shall ask the Director of the AFIS for resolution. The S&S commander/publisher shall provide sufficient documentation to the S&S board members between meetings to inform them of on-going business operations and the execution of financial actions.
B.
2. The S&S board of directors shall aid the S&S commander/publisher with evaluation of external factors that impact the S&S, such as adverse conditions, as recommended by the S&S commander/publisher, the S&S board of directors, or the Unified Command CINC.
3. Annually, the S&S commander/publisher shall provide a financial plan that shall include a capital expenditure budget and a 2-year forecast for the S&S board of directors' evaluation and recommendation to the Unified Command CINC. The S&S shall also forecast and get approval for building and/or construction projects through the S&S board of directors.
4. The S&S shall maintain a 5-year business strategic and corporate plan that shall be forwarded to the S&S board of directors. The Unified Commands shall forward the on-going strategic and corporate plan to the Director of the AFIS for overall DoD strategic goals.
10 U.S.C. 121 and 133.
This part implements DoD Directive 5122.10
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and includes the Coast Guard when operating as a Military Service in the Navy. The term Commander, as used herein, also means Heads of the DoD Components.
(b) Does not apply to the
(c) The term Commander, as used in this part, also means Heads of the DoD Components.
(1)
(2)
(1)
(2)
(3)
(4)
(2)
(3)
(4)
(5)
It is DoD policy that:
(a) A free flow of news and information shall be provided to all DoD personnel without censorship or news management. The calculated withholding of news unfavorable to the Department of Defense is prohibited.
(b) News coverage and other editorial content in DoD publications shall be factual and objective. News and headlines shall be selected using the dictates of good taste. Morbid, sensational, or alarming details not essential to factual reporting shall be avoided.
(c) DoD publications shall distinguish between fact and opinion, both of which may be part of a news story. When an opinion is expressed, the person or source shall be identified. Accuracy and balance in coverage are paramount.
(d) DoD publications shall distinguish between editorials (command position) and commentaries (personal opinion) by clearly identifying them as such.
(e) News content in DoD publications shall be based on releases, reports, and materials provided by the DoD Components and their subordinate levels, DoD newspaper staff members, and other government agencies. DoD publications shall credit sources of all material other than local, internal sources. This includes, but is not limited to, Military Department news sources, American Forces Information Service, and command news releases.
(f) DoD publications may contain articles of local interest to installation personnel produced outside official channels (e.g., stringers, local organizations), provided that the author's permission has been obtained, the source is credited, and they do not otherwise violate this part.
(g) DoD publications normally shall not be authorized the use of commercial news and opinion sources, such as Associated Press (AP), United Press International (UPI), New York Times, etc., except as stated in this paragraph and the following paragraph. The use of such sources is beyond the scope of the mission of command or installation publications and puts them in direct competition with commercial publications. The use of such sources may be authorized for a specific DoD newspaper by the cognizant DoD Component only when other sources of national and international news and opinion are not available.
(h) Overseas Combatant Command newspapers published outside the United States may purchase or contract for and carry news stories, features, syndicated columns, and editorial cartoons from commercial services or sources. A balanced selection of commercial news or opinion shall appear in the same issue and same page, whenever possible, but in any case, over a reasonable time period. Selection of commercial news sources, syndicated columns, and editorial cartoons to be purchased or contracted for shall be approved by the Commanders. Overseas Combatant Command newspapers, news bulletins, and news summaries authorized to carry national and world news may include coverage of U.S. political campaign news from commercial news sources. Presentation of such political campaign news shall be made on
(i) The masthead of all DoD publications shall contain the following disclaimer printed in type no smaller than 6-point: “This (DoD newspaper, magazine, guide or installation map) is an authorized publication for members of the Department of Defense. Contents of (name of the DoD newspaper/magazine/this guide/this installation map) are not necessarily the official views of, or endorsed by, the U.S. Government, the Department of Defense, or (the name of the publishing DoD Component).”
(j) The masthead of DoD CE publications shall contain the following statements in addition to that contained in paragraph (i) of this section:
(1) “Published by (name), a private firm in no way connected with the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/the U.S. Marine Corps) under exclusive written contract with (DoD Component or subordinate level).”
(2) “The appearance of advertising in this publication, including inserts or supplements, does not constitute endorsement by the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/the U.S. Marine Corps), or (name of commercial publisher) of the products or services advertised.”
(3) “Everything advertised in this publication shall be made available for purchase, use, or patronage without regard to race, color, religion, sex, national origin, age, marital status, physical handicap, political affiliation, or any other nonmerit factor of the purchaser, user, or patron.” If a violation or rejection of this equal opportunity policy by an advertiser is confirmed, the publisher shall refuse to print advertising from that source until the violation is corrected.
(k) DoD publications shall not contain campaign news, partisan discussions, cartoons, editorials, or commentaries dealing with political campaigns, candidates, issues, or which advocate lobbying elected officials on specific issues. DoD CE publications shall not carry paid political advertisements for a candidate, party, which advocate a particular position on a political issue, or which advocate lobbying elected officials on a specific issue. This includes those advertisements advocating a position on any proposed DoD policy or policy under review.
(l) DoD newspapers shall support the Federal Voting Assistance Program by carrying factual information about registration and voting laws, especially those on absentee voting requirements of the various States, the District of Columbia, Puerto Rico, and U.S. territories and possessions. DoD newspapers shall use voting materials provided by the Director, Federal Voting Assistance Program; the OSD; and the Military Departments. Such information is designed to encourage DoD personnel to register as voters and to exercise their right to vote as outlined in DoD Directive 1000.4.
(m) DoD publications shall comply with DoD Instruction 1100.13
(1) The DoD Components and subordinate levels may authorize polls on matters of local interest, such as soldier of the week, and favorite athlete.
(2) A DoD publication shall not conduct a poll, a survey, or a straw vote relating to a political campaign or issue.
(3) Opinion surveys must be in compliance with Military Service regulations.
(n) DoD newspapers will support officially authorized fund-raising campaigns (e.g., Combined Federal Campaign (CFC)) within the Department of Defense in accordance with DoD Directive 5035.1.
(o) DoD publications shall not:
(1) Contain any material that implies that the DoD Components or their subordinate levels endorse or favor a specific commercial product, commodity, or service.
(2) Subscribe, even at no cost, to a commercial or feature wire or other service whose primary purpose is the advertisement or promotion of commercial products, commodities, or services.
(3) Carry any advertisement that violates or rejects DoD equal opportunity policy. (See paragraph (j)(3) of this section).
(p) All commercial advertising, including advertising supplements, shall be clearly identifiable as such. Paid advertorials and advertising supplements may be included but must be clearly labeled as advertising and readily distinguishable from editorial content.
(q) Alteration of official photographic and video imagery will comply with DoD Directive 5040.5.
(r) Commercial sponsors of Armed Forces Professional Entertainment Program events and morale, welfare and recreation events may be mentioned routinely with other pertinent facts in news stories and announcements in DoD newspapers. (See DoD Instructions 1330.13
(s) Book, radio, television, movie, travel, and other entertainment reviews may be carried if written objectively and if there is no implication of endorsement by the Department of Defense or any of its Components or their subordinate levels.
(t) All printing using appropriated funds will be obtained in accordance with DoD Directive 5330.3.
(u) Although DoD internet web sites are normally discouraged from linking to commercial activities, the commander may authorize an installation web site to be linked to the web site carrying the authorized civilian enterprise publication.
(a) The Assistant Secretary of Defense for Public Affairs, consistent with DoD Directive 5122.5,
(1) Develop policies and provide guidance on the administration of the DoD Internal Information Program.
(2) Provide policy and operational direction to the Director, AFIS.
(3) Monitor and evaluate overall mission effectiveness within the Department of Defense for matters under this part.
(b) The Director, American Forces Information Service, shall:
(1) Develop and oversee the implementation of policies and procedures pertaining to the management, content, and publication of DoD publications encompassed by this part.
(2) Serve as DoD point of contact with the Joint Committee on Printing, Congress of the United States, for matters under this part.
(3) Serve as the DoD point of contact in the United States for Combatant Command newspaper matters.
(4) Provide guidance to the Combatant Commands, Military Departments, and other DoD Components pertaining to DoD publications.
(5) Monitor effectiveness of business and financial operations of DoD publications and provide business counsel and assistance, as appropriate.
(6) Sponsor a DoD Interservice Newspaper Committee and a Flagship Magazine Committee composed of representatives of the Military Departments to coordinate matters on publications encompassed by this part and flagship magazine matters, respectively.
(7) Provide a press service for joint-Service news and information for use by authorized DoD publication editors.
(c) The Secretaries of the Military Departments shall:
(1) Provide policy guidance and assistance to the Department's publications.
(2) Encourage the use of CE publications when they are the most cost-effective means of fulfilling the command communication requirement.
(3) Ensure that adequate resources are available to support authorized internal information products under this part.
(4) Designate a member of their public affairs staff to serve on the DoD Interservice Newspaper Committee.
(5) Ensure all printing obtained with appropriated funds complies with DoD Directive 5330.3.
(d) The Commanders of Combatant Commands shall:
(1) Publish Combatant Command newspapers, if authorized. In discharging this responsibility, the Commander shall ensure that policy, direction, resources, and administrative support are provided, as required, to produce a professional quality newspaper to support the command mission.
(2) Ensure that the newspaper is prepared to support U.S. forces in the command area during contingencies and armed conflict.
(a)
(2) Specific items of internal information of interest to DoD personnel and their family members prepared for publication in DoD publications may be made available to requesters if the information can be released as provided in DoD Directive 5400.7
(3) Editorial policies of DoD publications shall be designed to improve the ability of DoD personnel to execute the missions of the Department of Defense.
(4) DoD editors of publications covered under this part shall conform to applicable policies, regulations, and laws involving the collection, processing, storage, use, publication and distribution of information by DoD Components (e.g., libel, photographic image alteration, copyright, sexually explicit materials, classification of information, protection of sensitive information and U.S. Government printing and postal regulations).
(5) DoD publications shall comply with DoD Directive 5400.11
(b)
(i) A valid internal information mission requirement exists.
(A) Command or installation newspapers provide the commander a primary means of communicating mission-essential information to members of the command. They provide feedback through such forums as letters to the editor columns. This alerts the commander to the emotional status and state of DoD knowledge of the command. The newspaper is used as a return conduit for command information to improve attitudes and increase knowledge.
(B) News reports and feature stories on individuals and organizational elements of the command provides a crossfeed of DoD information, which improves internal cooperation and mission performance. Recognition of excellence in individual or organizational performance motivates and sets forth expected norms for mission accomplishment.
(C) The newspaper improves morale by quelling rumors and keeping members informed on DoD information that will affect their futures. It provides information and assistance to family members, which improve their spirits and thereby the effectiveness of their military service and/or civilian member. The newspaper encourages participation in various positive leisure-time activities to improve morale and deter alcohol abuse and other pursuits that impair their ability to perform.
(D) The newspaper provides information to make command members aware of the hazards of the abuse of drugs and other substances, and of the negative impact that substance abuse has on readiness.
(E) CE newspapers provide advertisements that guide command members to outlets where they may fulfill their purchasing needs. A by-product of this
(F) The newspaper increases organizational cohesiveness and effectiveness by providing a visual representation of the essence of the command itself.
(G) Good journalistic practices are vital, but are not an end unto themselves. They are the primary means to enhance receptivity of command communication through the newspaper.
(H) The newspaper exists to facilitate accomplishment of the command or installation mission. That is the only basis for the expenditure of DoD resources to produce them.
(ii) A newspaper is determined by the commander and the next higher level of command to be the most cost-effective means of fulfilling the command internal communication requirement.
(2) The use of appropriated funds is authorized to establish a Funded newspaper if a CE newspaper is not feasible. The process of establishing a newspaper must include an investigation of the feasibility of publishing under the CE concept. This investigation must include careful consideration of the potential for real or apparent conflict of interest. If publishing under the CE concept is determined to be feasible, commanders must ensure that they have obtained approval to establish the newspaper before authorizing their representatives to negotiate a contract with a CE publisher.
(3) DoD newspapers are mission activities. The use of nonappropriated funds for any aspect of their operations is not authorized.
(4) Appropriated funds shall not be used to pay any part of the commercial publisher's costs incurred in publishing a CE publication.
(5) Only one DoD newspaper or magazine is authorized for each command or installation.
(i) If a newspaper is required at an installation where more than one command or headquarters is collocated, the host commander shall be responsible for publication of one funded or CE newspaper for all. The host command shall provide balanced and sufficient coverage of the other commands, their personnel, and activities in that locality. These commands, or headquarters, shall assist the staff of the host newspaper with coverage. If required by unusual circumstance, a commander other than the host may publish the single authorized newspaper when the majority of affected organizations concur.
(ii) This provision is not intended to prohibit the headquarters of a geographically dispersed command that receives its local coverage in the host installation newspaper from publishing a command-wide newspaper; nor is it intended to prohibit a command that has information needs that are significantly different from the majority of the host installation audience from publishing a separate newspaper, when authorized by the designated approving authority. (See appendix E to this part).
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(6) When, in the opinion of the Assistant Secretary of Defense for Public Affairs, or the Combatant Command Commander, a Combatant Command newspaper is needed, establishment
(7)
(i) Serve a clearly defined purpose in support of the mission of the publishing DoD Component, and the purpose must justify the cost.
(ii) Not duplicate equivalent magazines serving the same, or substantially the same purpose.
(iii) Be published and distributed efficiently and economically.
(iv) Be reviewed every two years by the publishing DoD Component to ensure they are in compliance with this part, are mission essential, and are economically achieving their desired objective.
The biennial reporting requirement contained in this part has been assigned Report Control Symbol DD-PA(BI) 1638.
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
A.
B.
C.
D.
E.
F.
1. A funded newspaper shall not be distributed as an insert to a CE newspaper, unless provided for in the CE contract, nor shall a CE newspaper be distributed as an insert to a funded newspaper.
2. Supplements, clearly labeled as such, and advertising inserts, may be inserted into and distributed with a CE newspaper.
3. The commercial publisher of a CE publication shall make as much of the distribution to the intended readership as possible. CE publications may be distributed through official channels.
4. Except as authorized by the next higher headquarters for special situations or occasions (such as an installation open house), CE publications shall not be distributed outside the intended DoD audience and retirees, which includes family members. Electronic publication on the internet/world wide web is not considered distribution outside the intended DoD audience. The CE publisher may provide complete copies of each specific issue of a CE publication to an advertiser whose advertisement is carried therein.
5. The CE publisher of a CE newspaper will provide the appropriate number of news racks determined by the installation commander for publication distribution.
CE publishers are responsible for maintenance of these racks.
6. CE guides, magazines, and installation maps may be delivered in bulk quantities to the appropriate installation offices to distribute these publications through official channels as necessary.
G.
1. Only the CE publisher shall use the space agreed upon for advertising. While the editorial content of the publication is completely controlled by the installation, the advertising section, including its content, is the responsibility of the CE publisher. The public affairs staff, however, retains the responsibility to review advertisements before they are printed.
2. Any decision by a CE publisher to accept or reject an advertisement is final. The PAO may discuss with a publisher their decision not to run an advertisement, but cannot substitute his judgment for that of the publisher.
3. Before each issue of a CE publication is printed, the public affairs staff shall review advertisements to identify any that are contrary to law or to DoD or Military Service regulations, including this part, or that may pose a danger or detriment to DoD personnel or their family members, or that interfere with the command or installation missions. It is in the command's best interest to carefully apply DoD and Service regulations and request exclusion of only those advertisements that are clearly in violation of this part. If any such advertisements are identified, the public affairs office shall obtain a legal coordination of the proposed exclusion. After coordination, the public affairs office shall request, in writing if necessary, that the commercial publisher delete any such advertisements. If the publisher prints the issue containing the objectionable advertisement(s), the commander may prohibit distribution in accordance with DoD Directive 1325.6.
4. DoD Directive 1325.6 gives the commander authority to prohibit distribution on the installation of a CE publication containing advertising he or she determines likely to promote a situation leading to potential riots or other disturbances, or when the circulation of such advertising may present a danger to loyalty, discipline, or morale of personnel. Each commander shall determine whether particular advertisements to be placed by the publisher in a CE publication serving the command or installation may interfere with successful mission performance. Some considerations in this decision are the local situation, the content of the proposed advertisement, and the past performance of the advertiser. Prior to making a determination to prohibit distribution of a CE publication, the commander shall obtain a legal coordination.
5. CE publications may carry paid and nonpaid advertising of the products and services of nonappropriated fund activities and commissaries, if allowed by DoD and Military Service regulations. (See DoD Instruction 1015.2
6. The Military Departments will coordinate a standard set or ratios of advertising-to-editorial copy for multiples of pages for run of the publication advertising in CE publications that will be included in all DoD Component regulations supplementing this part. The recommended annual average is a ratio of 60/40. Inserts and advertising supplements will not count in the total ad-to-copy ratio; However, the commander may prohibit the distribution of supplemental advertising deemed excessive.
7. Bingo games and lotteries conducted by a commercial organization whose primary business is conducting lotteries may not be advertised in CE publications. Non-lottery activities (such as dining at a restaurant or
H.
1. The name of the publication may include the name and emblem of the command or installation.
2. At the discretion of the commander, an installation telephone directory may be included as a section of a CE guide. The telephone section shall be part of the guide contract specifications. Separate contracts for CE telephone directories are not authorized. Over-run printing of the telephone directory/yellow pages section of the installation guide is authorized. The number of guides with integral telephone directories and the number of over-run copies of the telephone directory/yellow pages will be clearly specified in the single guide contract. Required communication security information shall be printed on the first page of the telephone section and not on the cover of the guide. The cover of the guide may notify users that the publication contains the telephone directory.
3. CE contracts for guides and maps shall establish firm delivery dates and shall contain provisions to ensure distribution is controlled by the command. Delivery dates may vary for guides and maps to make them more attractive to advertisers. The contract provisions shall specify delivery dates.
I.
J.
1.
2.
3.
a. A general description of the scope of the proposed contract including the name and nature of the publication involved; for example, weekly newspaper, monthly magazine, annual guide and installation map. Normally, guides and installation maps are included in the same contract.
b. A description of editorial content to be carried; e.g., news, features, supplements, and factual information, along with provisions addressing the possible inclusion of contractor-furnished advertising supplements for newspapers, provided any such supplement shall have the prior approval of the commander.
c. A description of the rules for the inclusion of advertising in the publication, substantially as follows: “The contractor agrees not to include in the publication any advertising of the following types: (1) paid political advertisements for a candidate, party, or which advocate a particular position on a political issue, including advertisements advocating a position on any proposed DoD policy or policy under review, or which advocate lobbying elected officials on a specific issue; (2) advertisements for any establishment declared “off limits” by the command; (3) advertisements that are contrary to law or to DoD or Military Service regulations or that in the government's opinion pose a danger or detriment to DoD personnel or their family members, or that interfere with the command or installation missions; (4) advertisements for bingo games or lotteries conducted by a commercial organization whose primary business is conducting lotteries; (5) (other restrictions deemed appropriate by the Service/command, if any.)” Additionally, the contract will contain provisions which: (1) specify the annual average advertising-to-editorial ratio for newspapers and magazines; (2) state that the commander's representative shall have the authority to specify newspaper advertising layout when required to enhance communication's effectiveness of the publication; and (3) which requires the contractor to notify advertisers of the requirements in § 247.4(i) and § 247.4(j).
d. A provision substantially as follows: “The contractor agrees not to enter into any exclusive advertising agreement with any firm, broker, or individual for the purpose of selling advertising associated with this contract.”
e. A description of the CE contractor's responsibilities for distribution of the publication. This provision should address such matters as contractor furnishing of news racks along with contractor responsibility for maintenance of these racks.
f. A description of contractor-owned and/or contractor-furnished equipment such as text editing, copy terminals, and modems determined to be required to coordinate layout and ensure that the preparation of editorial material is performed in such a way as to enhance the efficiency and effectiveness of the publication process.
g. A description of contractor-furnished editorial support services determined to be required. Such description must be in terms of the end product required; e.g., photography service and/or writer/reporter services, and not as a requirement to make available certain contractor personnel. In day-to-day performance and administration of the CE contract, contractor personnel performing such support services shall not be treated in any way as though they are Government employees.
h. A provision that the use, where economically feasible, of recycled paper for internal products will be a consideration for awarding the contract, as stated in § 247.6 (e).
i. SOW's and RFP's for CE newspapers shall specify standard newsprint, recyclable, subject to requirements of applicable laws and regulations.
j. For CE magazines, a provision requiring the contractor to provide a bulk number of copies of each printing to the Government Printing Office (GPO) for distribution to Federal Depository Libraries. The number of copies to be provided will be determined on the number of libraries desiring to subscribe to the publication. The number could be a maximum of 1,400, but has historically averaged approximately 500 to 600 copies for military magazines. The contractor would be required to contact GPO to initiate this procedure at (202)512-1071.
4.
a.
“The (name of DoD installation/unit/organization) is an element of the United States Government. This agreement is a United
b.
(1) “The Government may extend the term of this contract by written notice to the contractor within [insert in the clause the period of time in which the contracting officer has to exercise the option]; provided that the Government shall give the contractor a preliminary written notice of its intent to exercise the option at least 60 days before the contract expires. The preliminary notice does not commit the government to exercise the option.” In the case of base closure or realignment the publisher has the right to request a renegotiation of the contract.
(2) “If the Government exercises this option, the extended contract shall be considered to include this option provision.”
(3) “The total duration of this contract, including the exercise of any options under this clause, shall not exceed 6 years.”
c.
(1) “The Government may, by written notice of default to the contractor, terminate this contract in whole or in part if the contractor fails to:
(a) Deliver the CE publications in the quantities required or to perform the services within the time specified in this contract or any extension;
(b) Make progress, so as to endanger performance of this contract;
(c) Perform any of the other provisions of this contract.”
(2) “If the Government terminates this contract in whole or in part, it may acquire, under the terms and in the manner the contracting officer considers appropriate, supplies or services similar to those terminated. However, the contractor shall continue the work not terminated.”
(3) “The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.”
d.
“The contracting officer, by written notice, may terminate this contract, in whole or in part if the services contracted for are no longer required by the Government, or when it is in the Government's interest, such as with installation closures. Any such termination shall be at no cost to the Government.” The Government will use its best efforts to mitigate financial hardship on the publisher.
5.
6.
7.
8.
a. The SSAC shall consist of a minimum of five voting members: a chairperson, who shall be a senior member of the command; senior representatives from public affairs and printing; and a minimum of two other functional specialists with skills relevant to the selection process. Each SSAC shall have non-voting legal and contracting advisors to assist in the selection process.
b. In arriving at its recommendations, the SSAC shall follow the SSP and avail itself of all relevant information, including the proposals submitted, independently derived data regarding offerors' performance records, the results of on-site surveys of offerors' facilities, where feasible, and in appropriate cases, personal presentations by offerors.
c. The work of the SSAC must be coordinated with the contracting officer to ensure that the process is objective and fair. All communications between the offerors and the Government shall be through the contracting officer. No member of the SSAC or the selecting official shall communicate directly with any offeror regarding the source selection.
d. In cases where a losing competitor requests a debriefing from the contracting officer, members of the SSAC may be called upon to participate so as to give the losing competitor the most thorough explanation
9.
10.
a.
b.
1. The objectives of this plan are:
a. To ensure an impartial, equitable, and thorough evaluation of all offerors' proposals in accordance with the evaluation criteria presented in the request for proposals (RFP).
b. To ensure that the contracting officer is provided technical evaluation findings of the SSAC in such a manner that selection of the offer most advantageous to the Government is ensured.
c. To document clearly and thoroughly all aspects of the evaluation and decision process to provide effective debriefings to unsuccessful offerors, to respond to legal challenges to the selection, and to ensure adherence to evaluation criteria.
2. This plan will be used to select a CE contractor for publication of the __________ newspaper (CE guide, magazine, or installation map) and will:
a. Give each SSAC member a clear understanding of his or her responsibilities as well as a complete overview of the evaluation process.
b. Establish a well-balanced evaluation structure, equitable and uniform scoring procedures, and a thorough and accurate appraisal of all considerations pertinent to the negotiated contracting process.
c. Provide the selecting official with meaningful findings that are clearly presented and founded on the collective, independent judgment of technical and managerial experts.
d. Ensure identification and selection of a contractor whose final proposal offers optimum satisfaction of the Government's technical and managerial requirements as expressed in the RFP.
e. Serve as part of the official record for the evaluation process.
1. The SSAC will consist of the Chairperson and a minimum of four other voting committee members plus the non-voting advisors to the SSAC.
2. The SSAC committee members are:
1. Selecting Official:
a. Approves the SSP.
b. Reviews the evaluation and findings of the SSAC.
c. Considers the SSAC's recommendation of award.
d. Selects the successful offeror.
2. Chairperson of the Source Selection Advisory Committee (C/SSAC):
a. Reviews the SSP.
b. Approves membership of the SSAC.
c. Analyzes the evaluation and findings of the SSAC and applies weights to the evaluation results.
d. Approves the SSAC report for submission to the selecting official.
3. Contracting Officer:
a. Is responsible for the proper and efficient conduct of the entire source selection process encompassing solicitation, evaluation, selection, and contract award.
b. Provides SSAC and the selecting official with guidance and instructions to conduct the evaluation and selection process.
c. Receives proposals submitted and makes them available to the SSAC, taking necessary precautions to ensure against premature or unauthorized disclosure of source selection information.
4. SSAC members shall:
a. Familiarize themselves with the RFP and SSP.
b. Provide a fair and impartial review and evaluation of each proposal against the solicitation requirements and evaluation criteria.
c. Provide written documentation substantiating their evaluations to include strengths, weaknesses, and any deficiencies of each proposal.
5. Legal advisor:
a. Reviews RFP and SSP for form and legality.
b. Advises the SSAC members of their duties and responsibilities, regarding procurement integrity issues and confidentiality requirements.
c. Participate in SSAC meetings and provide legal advice as required.
d. Provides legal review of all documents supporting the selection decision to ensure legal sufficiency and consistency with the evaluation criteria in the RFP and SSP.
e. Advises the selecting official on the legality of the selection decision.
1.
2.
a. Numerical scoring is merely reflective of the composite findings of the SSAC. The evaluation scoring system is used as a tool to assist the Chairperson of the SSAC in determining the proposal most advantageous to the Government.
b. The most important documents supporting the contract award will be the findings, conclusions, and reports of the SSAC.
3.
a. Inadvertent release of information could be a source of considerable misunderstanding and embarrassment to the Government. It is imperative, therefore, for all members of the SSAC to avoid any unauthorized disclosures of information pertaining to this evaluation. Evaluation participants will observe the following rules:
(1) All offeror and evaluation materials will be secured when not in use (i.e., during breaks, lunch, and at the end of the day).
(2) All attempted communications by offeror's representatives shall be directed to the contracting officer. No communications between members of the SSAC or the selecting official and offerors regarding the contract award or evaluation is permitted except when called upon under the provisions of paragraph J.8.d, of appendix B to this part.
(3) Neither SSAC members or the selecting official shall disclose anything pertaining to the source selection process to any offeror except as authorized by the contracting officer.
(4) Neither SSAC members or the selecting official shall discuss the substantive issues of the evaluation with any unauthorized individual, even after award of the contract.
1.
2.
a.
b.
c.
d.
(1) Interfacing with the PAO staff.
(2) Controlling the quality and timeliness of the finished product.
(3) Sale of ads of the type that enhance the publication's image in the community and with the readership at large.
(4) Ensuring that contractor's personnel are properly supervised and managed.
3.
4.
(
1. All proposals received in response to subject RFP have been evaluated by the Source Selection Advisory Committee (SSAC). The results and comments are listed below.
a. Offeror's proposals were rated as follows:
b. Summary Narrative Comments.
2. Recommendation.
A.
B.
C.
1. DoD appropriated fund postage shall be used only for:
a. Mailing copies to satisfy mandatory distribution requirements.
b. Mailing copies to other public affairs offices for administrative purposes.
c. Mailing copies to headquarters in the chain of command.
d. Bulk mailings of DoD newspapers and magazines to subordinate units for distribution to members of the units.
e. Mailing information copies to other U.S. Government Agencies, Members of Congress, libraries, hospitals, schools, and depositories.
f. Mailing of an individual copy of a DoD newspaper, magazine, or CE publication in response to an unsolicited request from a private person, firm, or organization, if such response is in the best interest of the DoD Component or its subordinate levels of command.
g. Mailing copies of DoD newspapers, magazines, guides, or installation maps to incoming DoD personnel and their families to orient them to their new command, installation, and community.
2. DoD appropriated fund postage shall not be used for mailing:
a. To the general readership of DoD newspapers, magazines, guides, and installation maps, unless specifically excepted in this part.
b. By a CE publisher.
c. CE publications other than newspapers and magazines in bulk. (See paragraph C.1.d. of this section).
3. Generally, DoD newspapers, magazines, and CE publications shall be mailed as second class Requester Publication Rate, third-class bulk, or third- or fourth-class mail.
D.
1. Prize (whatever items of value are offered in the particular game).
2. Chance (random selection of numbers to produce a winning combination).
3. Consideration (requirement to pay a fee to play).
E.
1. Mailing and distribution lists shall be reviewed annually to determine distribution effectiveness and continuing need of each recipient to receive the publication.
2. Distribution techniques, target audiences, readers-per-copy ratios, and use of the U.S. Postal Service to ensure the most economical use of mail services consistent with timeliness shall be revalidated annually.
F.
A.
1.
2.
3.
4. Pamphlets, booklets, and other posters covering a variety of joint interest information topics.
5. PMD posts the
6. Additional information may be obtained on the internet using the AFIS Uniform Resource Locator:
B.
C.
1. All authorized DoD newspapers and magazines.
2. Headquarters of the DoD Components and their subordinate commands.
3. Proponent offices of DoD periodicals published by the DoD Components.
4. Armed Forces Radio and Television Service networks and outlets.
5. Isolated commands and detachments at which DoD newspapers are not readily available.
A.
B.
C.
D. Reporting requirements.
1. The DoD Components (less the Military Departments) shall forward, by January 31 of each even numbered year, the information indicated at attachment 1 to this appendix for each newspaper published to: Director, American Forces Information Service, ATTN: Print Media Plans and Policy, 601 North Fairfax Street, Alexandria, VA 22314-2007.
2. No later than April 15 of each even-numbered year, the Secretary (or designee) of each Military Department shall forward to the address above a report of the Military Department's review of newspapers and magazines. This report shall include summary data on total number of newspapers and magazines, along with a listing of the information indicated at attachment 1 to this appendix.
3. One information copy of each issue of all DoD newspapers and magazines shall be forwarded on publication date to the address in paragraph H.1. of this appendix.
4. Information copies of CE contracts shall be forwarded to the address in paragraph H.1. of this appendix, upon request.
5. Administrative Instructions shall be issued by the Director, AFIS, for the annual review and reporting of newspapers and magazines.
As required by section H. of this appendix, the following information shall be provided biennially regarding newspapers and magazines:
A. Name of newspaper or magazine.
B. Publishing command and mailing address.
C. Printing arrangement:
1. Government equipment.
2. Government contract with commercial printer.
3. CE contract with commercial publisher (provide name, mailing address, and phone number of commercial publisher).
D. Frequency and number of issues per year.
E. Number of copies printed and estimated readership.
F. Paper size (metro, tabloid, or magazine format).
5 U.S.C. 301.
This part established Department of Defense policies, criteria, and controls that govern the publication of DoD periodicals.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies, hereafter referred to as “DoD Components.”
(b) This Directive does not encompass Armed Forces newspapers and civilian enterprise publications as defined in 32 CFR part 202; manuals, pamphlets, directives, instructions, regulations, opinions, decisions, official notices, circulars, reports, internal information bulletins issued by a DoD Component headquarters; and primarily (75 percent or more) statistical materials.
(a) Periodicals within the purview of this part are: Any classified or unclassified DoD magazine or newsletter-type publication published at regular intervals, at least semiannually, for the purpose of disseminating information and material necessary to the issuing activity, with a continuing policy as to format, content, and purpose. Periodicals are nondirective in nature and are usually published to inform and motivate DoD personnel, increase their knowledge, or improve their performance.
(b) Classes of periodicals are:
(1) Class I: Total annual cost is $20,000, or more.
(2) Class II: Total annual cost is less than $20,000, but more than $5,000.
(3) Class III: Total annual cost is $5,000, or less.
(c) The term “DoD personnel” refers to military and civilian members of the DoD Components.
(a)
(i) The periodical must serve a clearly defined purpose in support of the mission of the publishing DoD Component.
(ii) The purpose to be served must justify the cost.
(iii) High standards of editorial quality, accuracy, and good taste must be maintained.
(iv) A periodical is the necessary medium of communication between the publishing activity and its intended readership.
(v) Equivalent periodicals serving the same, or substantially the same, purpose do not exist.
(vi) The potential readership can be specified clearly.
(vii) The periodical can be distributed efficiently and economically to the intended readerdship.
(viii) The nature, amount, and assured sources of information to be disseminated justify the foremat, production, specifications, and frequency of issue.
(ix) Adequate resources are available to produce the periodical.
(x) The periodical has current applicability and is consonant with existing law and DoD policies.
(2) All personnel responsible for publishing DoD periodicals shall comply with the provisions of the current edition of the Government Printing and Binding Regulations
(3) DoD periodicals shall not carry partisan political compaign articles, editorials, or advertisement.
(4) No appropriated or nonappropriated funds may be used to defray publishing costs of a non-DoD periodical published by a private firm, corporation, individual, or organization.
(5) DoD personnel may not be assigned to serve on the editorial, production, or business staffs of a non-DoD periodical that is published by a private firm, corporation, individual, or organization.
(6) Editors of DoD periodicals will conform to applicable regulations, laws involving libel and copyright, and postal regulations.
(7) Dissemination of DoD statistical information in any periodical shall comply with the provisions of DoD Directive 5000.20.
(b)
(2) No DoD Component shall be required to contribute to a consolidated common-use periodical more of its resources than it expends in publishing a related single-Component periodical.
(a)
(1) Establish, and ensure compliance with, supplemental policies, standards, and controls governing the publication of DoD periodicals.
(2) Evaluate the effectiveness of DoD Component policies, standards, and controls that relate to DoD periodicals, and effect such changes as may be warranted.
(3) Institute programs, in conjunction with the DoD Components, for the purpose of increasing the proficiency of editorial personnel in editorial writing, periodical production, management, and cost effectiveness.
(4) Establish a research resource to:
(i) Provide professional guidance to DoD Components in the conduct of mass communications research.
(ii) Evaluate completed research.
(iii) Coordinate periodical research within the DoD Components.
(5) In coordination with the DoD Components concerned, examine the
(b)
(1) Conduct a coordinated review of its standards for publication, distribution, evaluation, review and approval;
(2) Maintain a current inventory of its periodicals; and
(3) Submit such reports as may be required by the ASD(PA).
DoD periodicals will be financed within available appropriated or nonappropriated funds and will be produced as economically as possible, consistent with the need for efficient communication (See DoD Instruction 7041.3.
10 U.S.C. 130.
This part amplifies policy set forth in DoD Directive 3200.12,
This part applies to the Office of the Secretary of Defense (OSD) DoD Field Activities, the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Defense Agencies, and the Unified and Specified Commands (hereafter referred to collectively as “DoD Components”).
It is DoD policy to:
(a) Encourage the presentation of scientific and technical information generated by or for the Department of Defense at technical meetings consistent with United States laws and the requirements of national security.
(b) Permit DoD Components to conduct scientific and technical conferences, and to permit DoD Component personnel to attend and participate in scientific and technical conferences that are of demonstrable value to the Department of Defense, and consult with professional societies and associations in organizing meetings of the societies and associations that are mutually beneficial.
(c) Allow the publication and public presentation of unclassified contracted fundamental research results. The mechanism for control of information generated by DoD-funded contracted fundamental research in science, technology, and engineering performed under contract or grant at colleges, universities, and non-government laboratories is security classification. No other type of control is authorized unless required by law.
(d) Release information at meetings in a manner consistent with statutory and regulatory requirements for protecting the information. Such requirements include, but are not limited to, protection of classified, unclassified export-controlled, proprietary, privacy, and foreign government provided information.
(e) Provide timely review of DoD employee and contractor papers intended for presentation at scientific and technical conferences and meetings, and if warranted and authorized by contract in the case of contractor employees, prescribe limitations on these presentations. Dissemination restrictions shall be used only when appropriate authority exists.
(f) Assist DoD contractors and, when practical, others in determining the sensitivity of or the applicability of export controls to technical data proposed for public disclosure.
(g) Approve release of classified or controlled unclassified DoD information to foreign representatives when such release promotes mutual security or advances the interests of an international military agreement or understanding in accordance with foreign disclosure policies of the Department of Defense. Presentation of such information at technical meetings attended by foreign representatives is appropriate when the release is made under the terms of existing security arrangements and when the Department of Defense and receiving government have established an understanding or agreement in that specific scientific or technical area.
(h) Refrain from interfering with the planning and organizing of meetings sponsored and conducted by non-government organizations. The type and level of DoD participation in such meetings will be determined taking account of such factors as benefit to the Department of Defense and how the meetings are being conducted.
(a)
(b)
(1) Classified information may be presented only at meetings organized in accordance with DoD Directive 5200.12.
(2) Unclassified export-controlled DoD technical data may be presented only in sessions where recipients are eligible to receive such data as established by 32 CFR part 250.
(3) Presentation of proprietary information, privacy data, and foreign government-provided data requires approval of the party controlling that information.
(c)
(1) Papers which have been cleared for public release may be presented at any location and before any audience.
(2) Criteria established by 32 CFR part 250 for releasing unclassified documents containing unclassified export-controlled DoD technical data also are applicable to presentations containing such data. Unclassified export-controlled DoD technical data may be released to:
(i) United States and Canadian government officials, with the understanding that the information is to be used for official government purposes only. Technical data that falls outside the exemptions for export to Canada in United States export regulations may not be transferred under this and the following provision.
(ii) United States and Canadian citizens and resident aliens when disclosure is subject to the terms of a current (DD Form 2345) “Militarily Critical Technical Data Agreement.”
(iii) Foreign nationals and United States citizens acting as representatives of foreign interests where disclosure is made in accordance with a license, approval, or exemption under the International Traffic in Arms Regulations or the Export Administration Regulations.
(3) Non-government organizations who organize meetings in the United States at which unclassified export-controlled DoD technical data is to be presented will be required to ensure that physical access to the presentations is limited to those eligible to receive such data (as described in paragraph (c)(2) of this section) before being permitted to present such data.
(4) Meetings sponsored by a United States Government agency at which unclassified export-controlled DoD technical data is to be presented may be held in any location in the United States when control of physical access to the sessions is provided by a United States Government employee or a contractor specifically tasked by Department of Defense for that duty.
(5) Presentation of unclassified export-controlled DoD technical data in meetings held outside the United States may be permitted on a case-by-case basis after review of the situation by officials authorized to do so by the Director of Defense Research and Engineering, Office of the Under Secretary of Defense (Acquisition) or heads of DoD Components.
(6) When it is necessary to limit access to presentations of DoD-related scientific and technical papers, and private or professional organizations are unwilling or unable to provide required controls, DoD Components may, at their discretion, conduct meetings which correlate in place and topic with open meetings of such societies to take advantage of the fact that interested parties are already gathered.
(7) Classified information may be presented only at meetings held in a secure government or cleared contractor facility, unless a waiver has been granted in accordance with DoD Directive 5200.12. Personnel access controls for classified meetings also are specified in DoD Directive 5200.12.
(d)
(2) For unclassified meetings sponsored and conducted by organizations other than the Department of Defense, the sole responsibility of determining whether foreign access is appropriate rests with the sponsor. The level and type of DoD participation in the meeting shall take into account the presence of foreign representatives, if any.
(3) In order to advance the interests of an international military agreement or understanding, the Department of Defense may wish to release to certain foreign nationals unclassified export-controlled DoD technical data being presented at unclassified, restricted access meetings sponsored and conducted by non-government societies and associations. Release in such cases by Department of Defense shall be pursuant to appropriate exemptions to the International Traffic in Arms Regulations (22 CFR part 126), which relieves the society or association from responsibility to obtain export approvals for these presentations. DoD sponsorship is for the sole purpose of granting access to DoD-sponsored technical information. When societies or associations agree to DoD sponsorship of foreign attendance under these circumstances, the visit request procedures established in DoD Instruction 5230.20 shall be used to obtain and process requests from foreign representatives for sponsorship, and to inform the requestor and the meeting sponsor of the decision to release the information and conditions pertaining to such release.
(e)
(1) Proposed presentations shall be reviewed to:
(i) Determine what information, if any, in the submitted paper and/or abstract is subject to security classification, is subject to withholding from public disclosure under 32 CFR part 250 or is otherwise restricted by statute, regulation or DoD policy.
(ii) Recommend specific changes, if any, to allow the paper to be presented as requested.
(iii) Indicate on the document its releasibility in original and amended versions.
(iv) Provide information on appeal procedures to be followed if requested clearance is denied.
(2) Reviews shall be completed as speedily as possible after receipt of the document by an appropriate public clearance authority. If a review cannot be completed in a timely manner, an explanation shall be provided. Every effort shall be made to complete the review in:
(i) Ten working days for all abstracts.
(ii) Twenty working days for papers submitted for presentation at sessions that will have unlimited access.
(iii) Thirty working days for papers submitted for presentation at unclassified sessions that will have limited access.
(iv) Thirty working days for papers submitted for presentation at sessions that will be classified.
(f)
(1) Inform the author that the Department of Defense has no objection to public presentation or
(2) Inform the author that the Department of Defense advises that presentation in a public forum would not be in the interest of national security, and provide appropriate reasons for the determination. The clearance for public presentation, paragraph (f)(1) of this section, satisfies an exemption from requirements for government review under the International Traffic in
(g)
(2) Papers shall be submitted for public and/or foreign disclosure clearance in sufficient time to allow adequate review and possible revision. Authors should allow adequate time for their presentation to reach the appropriate review authority in addition to the review targets set in paragraph (e)(2) of this section.
(3) At time of submission of the full text of the presentation to the Conference Program Committee, authors should state that their papers have been approved for presentation at the meeting and specify the security level of degree of access control required. When submitting abstracts that have been cleared for release, authors should indicate when and what kind of approval is expected on the presentation in its final form.
(h) In accordance with DoD Directive 3200.12, copies of proceedings and/or reprints of papers sponsored by the Department of Defense for all scientific and technical meetings will be provided to the Defense Technical Information Center, Defense Logistics Agency, Cameron Station, Alexandria, VA 22304 for secondary distribution.
(a) The
(b) The
(1) Administer and monitor compliance with this part.
(2) Provide, when necessary, technical assistance to DoD Components in determining sufficiency of protection of unclassified technical information that is to be presented at meetings.
(3) Provide, upon request, information and advice regarding controls on unclassified DoD information to scientific and engineering societies and professional associations.
(c) The
(d) The
(e) The
(1) Promulgate this part within 180 days.
(2) Designate an individual who will be responsible for reviewing and approving requests for export-controlled meetings outside the United States, and for ensuring compliance with this part.
Sec. 1217, Pub. L. 98-94, (10 U.S.C. 140c).
This part establishes policy, prescribes procedures, and assigns responsibilities for the dissemination and withholding of technical data.
(a) This part applies to:
(1) All unclassified technical data with military or space application in the possession of, or under the control of, a DoD Component which may not be exported lawfully without an approval, authorization, or license under E.O. 12470 or the Arms Export Control Act. However, the application of this part is limited only to such technical data that disclose critical technology with military or space application. The release of other technical data shall be accomplished in accordance with DoD Instruction 5200.21 and DoD 5400.7-R.
(2) The Office of the Secretary of Defense (OSD) and activities support adminstratively by OSD, the Military Departments, the Organization of the Joint Chiefs of Staff, the Defense Agencies, and the Unified and Specified Commands (hereafter referred to collectively as “DoD Components”).
(b) This part does not:
(1) Modify or supplant the regulations promulgated under E.O. 12470 or the Arms Export Control Act governing the export of technical data, that is, 15 CFR part 379 of the Export Administration Regulations (EAR) and 22 CFR part 125 of the International Traffic in Arms Regulations (ITAR).
(2) Introduce any additional controls on the dissemination of technical data by private enterprises or individuals beyond those specified by export control laws and regulations or in contracts or other mutual agreements, including certifications made pursuant to § 250.3(a). Accordingly, the mere fact that the Department of Defense may possess such data does not in itself provide a basis for control of such data pursuant to this part.
(3) Introduce any controls on the dissemination of scientific, educational, or other data that qualify for General License GTDA under 15 CFR 379.3 of the EAR (see § 250.7) or for general exemptions under 22 CFR 125.11 of the ITAR (see § 250.8).
(4) Alter the responsibilities of DoD Components to protect proprietary data of a private party in which the Department of Defense has “limited rights” or “restricted rights” (as defined in 32 CFR 9-201(c) and 9-601(j) of the DoD Acquisition Regulation, or which are authorized to be withheld from public disclosure under 5 U.S.C. 552(b)(4).
(5) Pertain to, or affect, the release of technical data by DoD Components to foreign governments, international organizations, or their respective representatives or contractors, pursuant to official agreements or formal arrangements with the U.S. Government, or pursuant to U.S. Government-licensed transactions involving such entities or individuals. In the absence of such U.S. Government-sanctioned relationships, however, this part does apply.
(6) Apply to classified technical data. After declassification, however, dissemination of such data that are within the scope of § 250.2(a)(1) is governed by this part.
(a)
(1) The individual who will act as recipient of the export-controlled technical data on behalf of the U.S. contractor is a U.S. citizen or a person admitted lawfully into the United States for permanent residence and is located in the United States.
(2) Such data are needed to bid or perform on a contract with the Department of Defense, or other U.S. Government agency, or for other legitimate business purposes
(3) The U.S. contractor acknowledges its responsibilities under U.S. export control laws and regulations (including the obligation, under certain circumstances, to obtain an export license prior to the release of technical data within the United States) and agrees that it will not disseminate any export-controlled technical data subject to this part in a manner that would violate applicable export control laws and regulations.
(4) The U.S. contractor also agrees that, unless dissemination is permitted by § 250.5(h), it will not provide access to export-controlled technical data subject to this part to persons other than its employees or persons acting on its behalf, without the permission of the DoD Component that provided the technical data.
(5) To the best of its knowledge and belief, the U.S. contractor knows of no person employed by it, or acting on its behalf, who will have access to such data, who is debarred, suspended, or otherwise ineligible from performing on U.S. Government contracts; or has violated U.S. export control laws or a certification previously made to the Department of Defense under the provisions of this part.
(6) The U.S. contractor itself is not debarred, suspended, or otherwise determined ineligible by any agency of the U.S. Government to perform on U.S. Government contracts, has not been convicted of export control law violations, and has not been disqualified under the provisions of this part. When the certifications required by paragraphs (a) (5) and (6) of this section, cannot be made truthfully, the U.S. contractor may request the certification be accepted based on its description of extenuating circumstances.
(b)
(c)
(d)
(1) Providing or seeking to provide equipment or technology to a foreign government with the approval of the U.S. Government (for example, through a licensed direct foreign military sale).
(2) Bidding, or preparing to bid, on a sale of surplus property.
(3) Selling or producing products for the commercial domestic marketplace or for the commercial foreign marketplace, providing that any required export license is obtained.
(4) Engaging in scientific research in a professional capacity.
(5) Acting as a subcontractor to a concern described in paragraphs (d) (1) through (4) of this section; or
(6) Selling technical data subject to this part in support of DoD contractors or in supporting of the competitive process for DoD contracts, provided
(e)
(1) The Department of the Army Qualitative Requirements Information Program.
(2) The Department of the Navy Industry Cooperative Research and Development Program.
(3) The Department of the Air Force Potential Contractor Program.
(4) The DoD Scientific and Technical Program; or
(5) Any similar program in use by other DoD Components.
(f)
(g)
(h)
(a) In accordance with 10 U.S.C. 140c, the Secretary of Defense may withhold from public disclosure, notwithstanding any other provision of law, any technical data with military or space application in the possession of, or under the control of, the Department of Defense, if such data may not be exported lawfully without an approval, authorization, or license under E.O. 12470 or the Arms Export Control Act. However, technical data may not be withheld under this section if regulations promulgated under either the Order or Act authorize the export of such data pursuant to a general, unrestricted license or exemption in such regulations. (Pertinent portions of such regulations are set forth in §§ 250.7 and 250.8).
(b) Because public disclosure of technical data subject to this part is tantamount to providing uncontrolled foreign access, withholding such data from public disclosure, unless approved, authorized, or licensed in accordance with export control laws, is necessary and in the national interest. Unclassified technical data that are not governed by this part, unless otherwise restricted, shall continue to be made available to the public as well as to state and local governments.
(c) Nothwithstanding the authority provided in paragraph (a), of this section, it is DoD policy to provide technical data governed by this part to individuals and enterprises that are determined to be currently qualified U.S. contractors, when such data relate to a legitimate business purpose for which the contractor is certified. However, when such data are for a purpose other than to permit the requester to bid or perform on a contract with the Department of Defense, or other U.S. Government agency, and the significance of such data for military purposes is such that release for purposes other than direct support of DoD activities may jeopardize an important U.S. technological or operational advantage, those data shall be withheld in such cases.
(d) This part may not be used by DoD Components as authority to deny access to technical data to the Congress, or to any Federal, State, or local governmental agency that requires such data for regulatory or other official governmental purposes. Any such dissemination will include a statement that the technical data are controlled by the Department of Defense in accordance with this part.
(e) The authority provided herein may not be used to withhold from public disclosure unclassified information
(f) This part may not be used as a basis for the release of “limited rights” or “restricted rights” data as defined in 32 CFR 9-201(c) and 9-601(j) of the DoD Acquisition Regulation or that are authorized to be withheld from public disclosure under the Freedom of Information Act (FOIA).
(g) This part may not be used to provide protection for technical data that should be classified in accordance with E.O. 12356 and DoD 5200.1-R.
(h) This part provides immediate authority to cite 5 U.S.C. 552(b)(3) as the basis for denials under the FOIA of technical data currently determined to be subject to the provisions of this part.
All determinations to disseminate or withhold technical data subject to this part shall be consistent both with the policies set forth in § 250.4 of this part, and with the following procedures:
(a) Requests for technical data shall be processed in accordance with DoD Directive 5230.24 and DoD Instruction 5200.21. FOIA requests for technical data subject to this part shall be handled in accordance with the procedures established in DoD 5400.7-R. Such FOIA requests for technical data currently determined to be subject to the withholding authority effected by this part shall be denied under citing the third exemption to mandatory disclosure, and the requester shall be referred to the provisions of this part permitting access by qualified U.S. contractors.
(b) Upon receipt of a request for technical data in the possession of, or under the control of, the Department of Defense, the controlling DoD office shall determine whether such data are governed by this part. The determination shall be based on the following:
(1) The office's finding
(2) The office's judgment that the technical data under consideration disclose critical technology with military or space application. For purposes of making this determination, the Militarily Critical Technologies List (MCTL) shall be used as general guidance. The controlling DoD office may request assistance in making such a determination from the Office of the Under Secretary of Defense for Research and Engineering (OUSDR&E) in accordance with procedures established by that office.
(c) The controlling DoD office shall ensure that technical data determined to be governed by this part are marked in accordance with DoD Directive 5230.24.
(d) The controlling DoD office shall authorize release of technical data governed by this part to currently qualified U.S. contractors only, as defined in § 250.3(a) of this part, unless one of the following apply:
(1) The qualification of the U.S. contractor concerned has been temporarily revoked in accordance with § 250.5(e) of this part; or
(2) The requested data are judged to be unrelated to the purpose for which the qualified U.S. contractor is certified. When release of technical data is denied in accordance with this section, the controlling DoD office shall request additional information sufficient to explain the intended use of the requested data and, if appropriate, request a new certification (see § 250.3(a) above) describing the intended use of the requested data; or
(3) The technical data are being requested for a purpose other than to permit the requester to bid or perform on a contract with the Department of Defense or other U.S. Government
(e) Upon receipt of credible and sufficient information that a qualified U.S. contractor has (1) violated U.S. export control law, (2) violated its certification, (3) made a certification in bad faith, or (4) made an omission or misstatement of material fact, the DoD Component shall revoke temporarily the U.S. contractor's qualification. Such revocations having the potential for compromising a U.S. Government investigation may be delayed. Immediately upon such revocation, the DoD Component shall notify the contractor and the OUSDR&E. Such contractor shall be given an opportunity to respond in writing to the information upon which the temporary revocation is based before being disqualified. Any U.S. contractor whose qualification has been revoked temporarily may be reinstated upon presentation of sufficient information showing that the basis for such revocation was in error or has been remedied.
(f) When the basis for a contractor's temporary revocation cannot be removed within 20 working days, the DoD Component shall recommend to the OUSDR&E that the contractor be disqualified.
(g) Charges for copying, certifying, and searching records rendered to requesters shall be levied in accordance with DoD Instruction 7230.7. Normally, only one copy of the same record or document will be provided to each requester. Any release to qualified U.S. contractors of technical data controlled by this part shall be accompanied by a notice to the recipient as set forth in § 250.9.
(h) Qualified U.S. contractors who receive technical data governed by this part may disseminate such data for purposes consistent with their certification without prior permission of the controlling DoD office or when such dissemination is:
(1) To any foreign recipient for which the data are approved, authorized, or licensed under E.O. 12470 or the Arms Export Control Act.
(2) To another currently qualified U.S. contractor (as defined in § 250.3(a) above, including existing or potential subcontractors, but only within the scope of the certified legitimate business purpose of such recipient.
(3) To the Departments of State and Commerce, for purposes of applying for appropriate approvals, authorizations, or licenses for export under the Arms Export Control Act or E.O. 12470. Any such application shall include a statement that the technical data for which such approval, authorization, or license is sought are controlled by the Department of Defense in accordance with this part.
(4) To Congress or any Federal, State, or local governmental agency for regulatory purposes, or otherwise as may be required by law or court order. Any such dissemination shall include a statement that the technical data are controlled by the Department of Defense in accordance with this part.
(i) A qualified U.S. contractor desiring to disseminate technical data subject to this part in a manner not permitted expressly by the terms of this part shall seek authority to do so from the controlling DoD office.
(j) Any requester denied technical data, or any qualified U.S. contractor denied permission to redisseminate such data, pursuant to this part, shall be provided promptly a written statement of reasons for that action, and advised of the right to make a written appeal of such determination to a specifically identified appellate authority within the DoD Component. Appeals of denials made under DoD 5400.7-R (reference (e)) shall be handled in accordance with procedures established therein. Other appeals shall be processed as directed by the OUSDR&E.
(k) Denials shall cite 10 U.S.C. 140c as implemented by this part, and, in the case of FOIA denials made in reliance on this statutory authority, 5 U.S.C. 552(b)(3). Implementing procedures
(a) The Under Secretary of Defense for Research and Engineering (USDR&E) shall have overall responsibility for the implementation of this Directive and shall designate an office to:
(1) Administer and monitor compliance with this Directive.
(2) Receive and disseminate notifications of temporary revocation in accordance with § 250.5(e) of this part.
(3) Receive recommendations for disqualification made in accordance with § 250.5(f) of this part, and act as initial disqualification authority.
(4) Provide, when necessary, technical assistance to DoD Components in assessing the significance of the military or space application of technical data that may be withheld from public disclosure under this Directive.
(5) Establish procedures to develop, collect, and disseminate certification statements and ensure their sufficiency, accuracy, and periodic renewal, and to make final determinations of qualification.
(6) Ensure that the requirements of this Directive are incorporated into the DoD Federal Acquisition Regulation Supplement for optional application to contracts involving technical data governed by this Directive.
(7) Develop, in conjunction with the General Counsel, Department of Defense, guidelines for responding to appeals.
(8) Develop procedures to ensure that DoD Components apply consistent criteria in authorizing exceptions under § 250.5(i) of this part.
(9) Establish procedures and appropriate mechanisms for the certification of qualified U.S. contractors, pursuant to § 250.6(a)(5) of this part, within 60 days of the effective date of this Directive. During this 60-day period, requests for technical data governed by this Directive shall be processed in accordance with procedures in effect before the promulgation of this Directive.
(10) Take such other actions that may be required to ensure consistent and appropriate implementation of this Directive within the Department of Defense.
(b) The Under Secretary of Defense for Policy shall:
(1) Develop and promulgate, as required, policy guidance to DoD Components for implementing this Directive.
(2) Develop procedures with the Departments of State and Commerce to ensure referral of export cases involving technical data governed by this Directive to the Department of Defense.
(c) The Assistant Secretary of Defense (Public Affairs) shall:
(1) Monitor the implementation of provisions of this Directive that pertain to DoD 5400.7-R.
(2) Provide such other assistance as may be necessary to ensure compliance with this Directive.
(d) The General Counsel, Department of Defense, shall:
(1) Assist in carrying out the provisions of this Directive by advising DoD Components with respect to the statutory and regulatory requirements governing the export of technical data.
(2) Advise the USDR&E regarding consistent and appropriate implementation of this Directive.
(e) The Heads of DoD Components shall:
(1) As the delegated authority, have the option to redelegate the authority to withhold technical data in accordance with this Directive.
(2) Disseminate and withhold from public disclosure technical data subject to this Directive in a manner consistent with the policies and procedures set forth herein.
(3) Designate a focal point to
(i) Ensure implementation of this Directive;
(ii) Identify classes of technical data the release of which is governed by § 250.5(d)(3) of this part;
(iii) Act on appeals relating to case-by-case denials of technical data;
(iv) Suspend a contractor's qualification pursuant to § 250.(e) of this part;
(v) Receive and evaluate requests for reinstatement of a contractor's qualification; and, when appropriate,
(vi) Recommend disqualification to the OUSDR&E.
(4) Promulgate and effect regulations to implement this Directive within 180 days.
(5) Disseminate technical data governed by this Directive in the manner prescribed herein, to the extent feasible, during the period after which certification procedures have been established under § 250.6(a)(9) of this part, but before DoD Components have issued implementing regulations under paragraph (e)(4) of this section. However, if such dissemination is not feasible, the DoD Component may process requests for such data in accordance with procedures in effect before the promulgation of this Directive.
The following pertinent section of the EAR is provided for the guidance of DoD personnel in determining the releasability technical data under the authority of this part.
A General License designated GTDA is hereby established authorizing the export to all destinations of technical data described in § 379.3(a), (b), or (c), below:
(a)
Data that have been made generally available to the public in any form, including
(1) Data released orally or visually at open conferences, lectures, trade show, or other media open to the public; and
(2) Publications that may be purchased without restrictions at a nominal cost, or obtained without costs, or are readily available at libraries open to the public.
The term “nominal cost” as used in § 379.3(a)(2), is intended to reflect realistically only the cost of preparing and distributing the publication and not the intrinsic value of the technical data. If the cost is as much as to prevent the technical data from being generally available to the public, General License GTDA would not be applicable.
(b)
(1) Dissemination of information not directly and significantly related to design, production, or utilization in industrial processes, including such dissemination by correspondence, attendance at, or participation in, meetings; or
(2) Instruction in academic institutions and academic laboratories, excluding information that involves research under contract related directly and significantly to design, production, or utilization in industrial processes.
(c)
Data contained in a patent application, prepared wholly from foreign-origin technical data where such application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark Office. (No validated export license from the Office of Export Administration is required for data contained in a patent application, or an amendment, modification, supplement, or division thereof for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office 37 CFR part 5. See § 370.10(j).)
The following pertinent section of the ITAR is provided for the guidance of DoD personnel in determining the releasibility of technical data under the authority of this part.
(a) Except as provided in § 26.01, district directors of customs and postal authorities are authorized to permit the export without a license of unclassified technical data as follows:
(1) If it is in published
(i) Sold at newsstands and bookstores;
(ii) Available by subscription or purchase without restrictions to any person or available without cost to any person;
(iii) Granted second class mailing privileges by the U.S. Government; or
(iv) Freely available at public libraries.
(2) If it has been approved for public release by any U.S. Government department or agency having authority to classify information or material under Executive Order [12356], as amended, and other applicable Executive Orders, and does not disclose the details of design, production, or manufacturing of any arms, ammunition, or implements of war on the U.S. Munitions List.
(3) If the export is in furtherance of a manufacturing license or technical assistance agreement approved by the Department of State in accordance with part 124 of this chapter.
(4) If the export is in furtherance of a contract with an agency of the U.S. Government or a contract between an agency of the U.S. Govenment and foreign persons, provided the contract calls for the export of relevant unclassified technical data, and such data are being exported only by the prime contractor. Such data shall not disclose the details of development, engineering, design, production, or manufacture of any arms, ammunition, or implements of war on the U.S. Munitions List. (This exemption does not permit the prime contractor to enter into subsidiary technical assistance or manufacturing license agreements, or any arrangement which calls for the exportation of technical data without compliance with part 124 of this subchapter.)
(5) If it relates to firearms not in excess of caliber .50 and ammunition for such weapons, except technical data containing advanced designs, processes, and munufacturing techniques.
(6) If it consists of technical data, other than design, development, or production information relating to equipment, the export of which has been previously authorized to the same recipient.
(7) If it consists of operations, maintenance and training manuals, and aids relating to equipment, the export of which has been authorized to the same recipient.
(8) If it consists of additional copies of technical data previously approved for export to the same recipient; or if it consists of revised copies of technical data, provided it pertains to the identical Munitions List article, and the revisions are solely editorial and do not add to the content of technology previously approved for export to the same recipient.
(9) If it consists solely of technical data being reexported to the original source of import.
(10) If the export is by the prime contractor in direct support and within the technical and/or product limitations of a “U.S. Government approved project” and the prime contractor so certifies. The Office of Munitions Control, Department of State, will verify, upon request, those projects which are “U.S. Government approved,” and accord an exemption to the applicant who applies for such verification and exemption, where appropriate, under this subparagraph.
(11) If the export is solely for the use of American citizen employees of U.S. firms provided the U.S. firm certifies its overseas employee is a U.S. citizen and has a “need to know.”
(12) If the export is directly related to classified information, the export of which has been previously authorized to the same recipient, and does not disclose the details of design, production, or manufacture of any arms, ammunition, or implements of war on the U.S. Munitions List.
(b)
(1) No license shall be required for the oral and visual disclosure of unclassified technical data during the course of a plant visit by foreign nationals provided the data [are] disclosed in connection with a classified plant visit or the visit has the approval of a U.S. Government agency having authority for the classification of information or material under Executive Order [12356], as amended, and other applicable Executive Orders, and the requirements of section V, paragraph [41(d)] of the Industrial Security Manual are met.
(2) No license shall be required for the documentary disclosure of unclassified technical data during the course of a plant visit by foreign nationals provided the document does not contain technical data as defined in § 125.01 in excess of that released orally or visually during the visit, is within the terms of the approved visit request, and the person in the United States assures that the technical data will not be used, adopted for use, or disclosed to others for the purpose of manufacture or production without the prior approval of the Department of State in accordance with part 124 of this subchapter.
(3) No Department of State approval is required for the disclosure of oral and visual classified information during the course of a plant visit by foreign nationals provided the visit has been approved by the cognizant U.S. Defense agency and the requirements of
(a) Export of information contained herein, which includes, in some circumstances, release to foreign nationals within the United States, without first obtaining approval or license from the Department of State for items controlled by the International Traffic in Arms Regulations (ITAR), or the Department of Commerce for items controlled by the Export Administration Regulations (EAR), may constitute a violation of law.
(b) Under 22 U.S.C. 2778 the penalty for unlawful export of items or information controlled under the ITAR is up to 2 years imprisonment, or a fine of $100,000, or both. Under 50 U.S.C., appendix 2410, the penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,000,000, or five times the value of the exports, whichever is greater; or for an individual, imprisonment of up to 10 years, or a fine of up to $250,000, or both.
(c) In accordance with your certification that establishes you as a “qualified U.S. contractor,” unauthorized dissemination of this information is prohibited and may result in disqualification as a qualified U.S. contractor, and may be considered in determining your eligibility for future contracts with the Department of Defense.
(d) The U.S. Government assumes no liability for direct patent infringement, or contributory patent infringement or misuse of technical data.
(e) The U.S. Government does not warrant the adequacy, accuracy, currency, or completeness of the technical data.
(f) The U.S. Government assumes no liability for loss, damage, or injury resulting from manufacture or use for any purpose of any product, article, system, or material involving reliance upon any or all technical data furnished in response to the request for technical data.
(g) If the technical data furnished by the Government will be used for commercial manufacturing or other profit potential, a license for such use may be necessary. Any payments made in support of the request for data do not include or involve any license rights.
(h) A copy of this notice shall be provided with any partial or complete reproduction of these data that are provided to qualified U.S. contractors.
5 U.S.C. 301.
This part reissues 32 CFR part 252 to update policies and procedures for the use of offshore areas by the Department of Defense. It shall serve as the basis for a comprehensive Offshore Military Activities Program.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Organization of the Joint Chiefs of Staff (OJCS), and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) Concerns the use of offshore areas for military purposes. It does not limit the responsibilities of the Secretary of the Navy assigned under 33 U.S.C. 1101
(a) lt is DoD policy to support the principle that lands composing the Outer Continental Shelf and state-owned offshore areas shall be used in the best interest of the United States. Therefore, it is DoD policy for the use of offshore areas to be shared with nonmilitary interests whenever they can be accommodated.
(b) The Secretaries of Defense and the Interior have agreed on procedures for resolving conflicts over joint use of offshore areas for military and mineral exploration or developmental purposes. In carrying out negotiations with elements of the Department of the Interior (DoI), the Department of Defense shall be guided by this agreement when appropriate.
(c) If a coastal state determines that the mineral potential of off-shore areas being used or proposed to be used for military purposes must be explored or developed, DoD shall endeavor to accommodate joint military and commercial use of those areas. If compatible joint use is not economically or militarily feasible, DoD shall seek agreement with the coastal state to exclude conflict areas from its leasing program.
(a) The
(b) The
(c) The
(1) Act as DoD Executive Agent for outer continental shelf matters and carry out responsibilities assigned to the Executive Agent in the Agreement.
(2) Conduct continuing liaison with DoI, appropriate coastal states, and the ASD(P&L) to ensure compatibility between the DoD Offshore Military Activities Program and the related plans and programs of DoI and coastal states.
(3) lnform concerned DoD Components of new developments in the DOI's, states', and industry's mineral leasing plans that may affect present or potential military interests in offshore areas.
(4) Represent the Department of Defense on the Secretary of the Interior's Outer Continental Shelf Advisory Board.
(d) The
(e)
(1) Review proposed DoI's and states' mineral leasing plans and inform the Executive Agent of proposed activities that could be incompatible with military missions. When joint use is feasible, the Heads shall recommend conditions and stipulations that should be imposed in leases to ensure the integrity of military missions and otherwise protect the interests of the United States against claims arising out of damage to property or personal injury.
(2) Establish and maintain lines of communication and coordination to ensure that the ASD(P&L) and the Executive Agent are fully aware of plans and programs involving offshore areas.
(3) Review notices referred to in § 252.5(b) and notify the Army Chief of Engineers if proposed actions are incompatible with offshore military activities.
(4) Inform the Army Chief of Engineers and the Executive Agent of any significant change in the status of offshore ranges, restricted areas, or operating areas.
(5) Comply with the provisions of the Coastal Zone Management Act.
(6) Conduct other activities related to offshore areas as requested by the ASD(A&L).
Pub. L. 83-131, 5 U.S.C. 301.
This rule reissues this part to update policy and procedures governing the investigation of American National Red Cross (hereafter “Red Cross”) employees and United Service Organizations, Inc. (USO), staff for the purpose of determining the security acceptability of such personnel for assignment to duty with the Military Services.
(a) This rule applies to the Office of the Secretary of Defense, the Military Departments, the Unified and Specified Commands, and the Defense Investigative Service (hereafter referred to as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(b) This rule does not apply to U.S. citizens or foreign nationals who are available locally at overseas locations for temporary or part-time employment with the Red Cross or the USO. Policy and procedures governing investigation and security acceptability of locally hired employees shall be determined by the Military Department concerned.
(a) It is the policy of the Department of Defense that an employee shall be accepted for assignment to duty with the Military Services overseas only after it first has been determined, based upon an appropriate personnel security investigation, that such acceptance for assignment is clearly consistent with the national interest.
(b) The standard and criteria for determining the security acceptability of an employee for assignment or continuation of assignment with the Military Services overseas shall be identical to those established for making security clearance determinations for personnel employed in private industry under §§ 155.4 and 155.5 of this title.
(a) The
(b)
(a) Employees who are U.S. citizens shall have been the subject of a national agency check (NAC), completed with favorable results, before being nominated for assignment with the Military Services overseas.
(b) Employees who are not U.S. citizens shall have been the subject of a background investigation (BI), completed with favorable results, before
(c) An employee will not be assigned for duty with the Military Services overseas or continued in such an assignment when it has been determined that assignment or continuation of assignment is not clearly consistent with the national interest.
(d) Completed security forms (DD Form 398, Personnel Security Questionnaire (BI/SBI), or 398-2, Personnel Security Questionnaire (National Agency Check)) shall be forwarded to the Defense Industrial Security Clearance Office (DISCO), Defense Investigative Service, for initiation of the NAC or BI, as appropriate.
(e) Upon completion of the appropriate investigation, the results shall be returned to the DISCO where a determination shall be made concerning security acceptability of the employee. If the determination is favorable, the DISCO shall provide a statement to that effect to the Red Cross or the USO. If the DISCO is unable to make a favorable security acceptability determination, the procedures described in paragraph (f)(3), of this section, shall apply.
(f) Whenever any DoD Component or the Red Cross or the USO receives information indicating that an employee's assignment or continuation of assignment with the Military Services overseas may not clearly be consistent with the national interest, the information shall be furnished to the DISCO for appropriate review. In such cases, the following actions shall be taken:
(1) The DISCO shall arrange for the conduct of any investigation warranted to resolve the adverse or questionable information.
(2) In cases arising after the initial security acceptability determination has been made, the DISCO shall review the information or report of investigation to determine whether the security acceptability determination is to continue in effect. If such adjudication is favorable, no further action is required. The Red Cross or the USO will not be notified in such cases in order to preclude the possibility of any adverse inference being drawn.
(3) If, after reviewing the information or report of investigation, the DISCO is unable to make a favorable security acceptability determination, the case shall be referred for further processing in accordance with part 155 of this title.
National Security Act of 1947, as amended, 61 Stat. 495.
This part:
(a) Sets forth Department of Defense policy on achieving compatible use of public and private lands in the vicinity of military airfields;
(b) Defines (1) required restrictions on the uses and heights of natural and man-made objects in the vicinity of air installations to provide for safety of flight and to assure that people and facilities are not concentrated in areas susceptible to aircraft accidents; and
(2) Desirable restrictions on land use to assure its compatibility with the characteristics, including noise, of air installations operations;
(c) Describes the procedures by which Air Installations Compatible Use Zones (AICUZ) may be defined; and
(d) Provides policy on the extent of Government interest in real property within these zones which may be retained or acquired to protect the operational capability of active military airfields (subject in each case to the availability of required authorizations and appropriations).
This part applies to air installations of the Military Departments located within the United States, its territories, trusts, and possessions.
(a)
(b)
(c)
(ii) DoD fixed wing runways are separated into two types for the purpose of defining accident potential areas. Class A runways are those restricted to light aircraft (See § 256.6) and which do not have the potential for development for heavy or high performance aircraft use or for which no foreseeable requirement for such use exists. Typically these runways have less than 10% of their operations involving Class B aircraft (§ 256.6) and are less than 8000 feet long. Class B runways are all other fixed wing runways.
(iii) The following descriptions of Accident Potential Zones are guidelines only. Their strict application would result in increasing the safety of the general public but would not provide complete protection against the effects of aircraft accidents. Such a degree of protection is probably impossible to achieve. Local situations may differ significantly from the assumptions and data upon which these guidelines are based and require individual study. Where it is desirable to restrict the density of development of an area, it is not usually possible to state that one density is safe and another is not. Safety is a relative term and the objective should be the realization of the greatest degree of safety that can be reasonably attained.
(2)
(ii) Accident Potential Zone I (APZ I) is the area beyond the clear zone which possesses a significant potential for accidents.
(iii) Accident Potential Zone II (APZ II) is an area beyond APZ I having a measurable potential for accidents.
(iv) Modifications to APZs I and II will be considered if:
(A) The runway is infrequently used.
(B) The prevailing wind conditions are such that a large percentage (i.e., over 80 percent) of the operations are in one direction.
(C) Most aircraft do not overfly the APZs as defined herein during normal flight operations (modifications may be made to alter these zones and adjust them to conform to the line of flight).
(D) Local accident history indicates consideration of different areas.
(E) Other unusual conditions exist.
(v) The takeoff safety zone for VFR rotary-wing facilities will be used for the clear zone; the remainder of the approach-departure zone will be used as APZ I.
(vi) Land use compatibility with clear zones and APZs is shown in § 256.8.
(d)
(2)
(ii) See § 256.10 for a further discussion of Ldn use and conversion to Ldn from previously used systems.
(a)
(b)
(ii) Land use compatibility guidelines will be specified for each Clear Zone, Accident Potential Zone, Noise Zone and combination of these as appropriate.
(iii) The method of control and regulation of land usage within each zone will vary according to local conditions. In all instances the primary objective will be to identify planning areas and reasonable land use guidelines which will be recommended to appropriate agencies who are in control of the planning functions for the affected areas.
(2)
(ii)
(B) Outside the clear zone, program for the acquisition of interests, first in Accident Potential Zones and secondly in high noise areas only when all possibilities of achieving compatible use zoning, or similar protection, have been exhausted and the operational integrity of the air installation is manifestly threatened. If programming actions are considered necessary, complete records of all discussions, negotiations, testimony, etc., with or before all local officials, boards, etc., must be maintained. This will ensure that documentation is available to indicate that all reasonable and prudent efforts were made to preclude incompatible land use through cooperation with local governmental officials and that all recourse to such action has been exhausted. Such records shall accompany programming actions and/or apportionment requests for items programmed prior to the date of this part. In addition, a complete economic analysis and assessment of the future of the installation must be included.
(
(
(iii)
(A) Necessary rights to land within the defined compatible use area may be obtained by purchase, exchange, or donation, in accordance with all applicable laws and regulations.
(B) If fee title is currently held or subsequently acquired in an area where compatible uses could be developed and no requirement for a fee interest in the land exists except to prevent incompatible use, disposal actions shall normally be instituted. Only those rights and interests necessary to establish and maintain compatible uses shall be retained. Where proceeds from disposal would be inconsequential, consideration may be given to retaining title.
(C) If the cost of acquiring a required interest approaches closely the cost of fee title, consideration shall be given to whether acquisition of fee title would be to the advantage of the Government.
(c)
(d)
(2) All such environmental impact statements must be forwarded to appropriate Federal and local agencies for review in accordance with DoD Directive 6050.1 (32 CFR part 214).
(3) Coordination with local agencies will be in accordance with OMB Circular A-95.
(a) The Secretaries of the Military Departments will develop, implement and maintain a program to investigate and study all air installations in necessary order of priority to develop an Air Installation Compatible Use Zone (AICUZ) program for each air installation consistent wth § 256.4. AICUZ studies which contain an analysis of land use compatibility problems and potential solutions shall be developed and updated as necessary. As a minimum, each Study shall include the following:
(1) Determination by detailed study of flight operations, actual noise and safety surveys if necessary, and best available projections of future flying activities, desirable restrictions on land use due to noise characteristics and safety of flight;
(2) Identification of present incompatible land uses;
(3) Identification of land that if inappropriately developed would be incompatible;
(4) Indication of types of desirable development for various land tracts;
(5) Land value estimates for the zones in question.
(6) Review of the airfield master plans to ensure that existing and future facilities siting is consistent with the policies in this part.
(7) Full consideration of joint use of air installations by activities of separate Military Departments whenever such use will result in maintaining
(8) Recommendations for work with local zoning boards, necessary minimum programs of acquisition, relocations, or such other actions as are indicated by the results of the Study.
(b)
(1) Follow the review and comment procedures established under OMB Circular A-95;
(2) Ensure that appropriate environmental factors are considered; and
(3) Ensure that other local, State or Federal agencies engaged in land use planning or land regulation for a particular area have an opportunity to review and comment upon any proposed plan or significant modification thereof.
(c)
(d)
(e)
(1) The Secretaries of the Military Departments or their designated representatives will review and approve the AICUZ Studies establishing the individual air installation AICUZ program.
(2) When relocation or abandonment of a mission or an installation is apparently required, the Secretaries of the Military Departments will submit the proposed plan for the installation, with appropriate recommendations, to the Secretary of Defense for approval.
(3) A time-phased fiscal year plan for implementation of the AICUZ program in priority order, consistent with budgetary considerations, will be developed for approval by the Secretaries of the Military Departments, or their designated representatives. These plans will serve as the basis for all AICUZ actions at the individual installations.
(f)
(1) As the first priority action in developing an AICUZ program, full attention is given to safety and noise problems.
(2) In all planning, acquisition and siting of noise generating items, such as engine test stands, full advantage is taken of available alleviating measures, such as remote sites or sound suppression equipment.
(3) The noise exposure of on-installation facilities and personnel are considered together with that off the installation.
(4) There is development or continuation with renewed emphasis, of programs to inform local governments, citizens groups, and the general public of the requirements of flying activities, the reasons therefore, the efforts which may have been made or may be taken to reduce noise exposure, and similar matters which will promote and develop a public awareness of the complexities of air installation operations, the problems associated therewith, and the willingness of the Department of Defense to take all measures possible to alleviate undesirable external effects.
(g) Responsibilities for the acquisition, management and disposal of real property are defined in DoD Directive 4165.6, “Real Property; Acquisition,
(h) The Deputy Assistant Secretary of Defense (Installations and Housing) will examine the program developed pursuant to this part, and from time to time review the progress thereunder to assure conformance with policy.
(a) The right to make low and frequent flights over said land and to generate noises associated with:
(1) Aircraft in flight, whether or not while directly over said land,
(2) Aircraft and aircraft engines operating on the ground at said base, and,
(3) Aircraft engine test/stand/cell operations at said base.
(b) The right to regulate or prohibit the release into the air of any substance which would impair the visibility or otherwise interfere with the operations of aircraft, such as, but not limited to, steam, dust and smoke.
(c) The right to regulate or prohibit light emissions, either direct or indirect (reflective), which might interfere with pilot vision.
(d) The right to prohibit electrical emissions which would interfere with aircraft and aircraft communications systems or aircraft navigational equipment.
(e) The right to prohibit any use of the land which would unnecessarily attract birds or waterfowl, such as, but not limited to, operation of sanitary landfills, maintenance of feeding stations or the growing of certain types of vegetation attractive to birds or waterfowl.
(f) The right to prohibit and remove any buildings or other non-frangible structures.
(g) The right to top, cut to ground level, and to remove trees, shrubs, brush or other forms of obstruction which the installation commander determines might interfere with the operation of aircraft, including emergency landings.
(h) The right of ingress and egress upon, over and across said land for the purpose of exercising the rights set forth herein.
(i) The right to post signs on said land indicating the nature and extent of the Government's control over said land.
(j) The right to prohibit land uses other than the following:
(1) Agriculture.
(2) Livestock grazing.
(3) Permanent open space.
(4) Existing water areas.
(5) Rights of way for fenced two lane highways, without sidewalks or bicycle trails and single track railroads.
(6) Communications and utilities rights of way, provided all facilities are at or below grade.
(k) The right to prohibit entry of persons onto the land except in connection with activities authorized under paragraphs (a), (b), (c), and (f) of this section.
(l) The right to disapprove land uses not in accordance with § 256.8.
(m) The right to control the height of structures to insure that they do not become a hazard to flight.
(n) The right to install airfield lighting and navigational aids.
(a) Composite Noise Rating (CNR) and Noise Exposure Forecast (NEF) values as previously required by Sections III., IV., and V. of DoD Instruction 4165.57, “Air Installations Compatible Use Zones,” July 30, 1973
(b) Where CNR 100 (or the quietest boundary of CNR Zone 2 if otherwise computed) or NEF 30 would previously have been used, data shall be collected sufficient to permit computation of Ldn 65 noise contours and these noise contours shall be plotted on maps accompanying AICUZ studies.
(c) Where CNR 115 (or the boundary of CNR Zone 3 if otherwise computed) or NEF 40 would previously have been used, data shall be collected sufficient to permit computation of Ldn 75 noise contours and these noise contours shall
(d) Where previous studies have used CNR or NEF, for meters of policy, noise planning and decisionmaking, areas quieter than Ldn 65 shall be considered approximately equivalent to the previously used CNR Zone 1 and to areas quieter than NEF 30. The area between Ldn 65 and Ldn 75 shall be considered approximately equivalent to the previously used CNR Zone 2 and to the area between NEF 30 and NEF 40. The area of higher noise than Ldn 75 shall be considered approximately equivalent to the previously used CNR Zone 3 and to noise higher the NEF 40. The procedures shall remain in effect only until sufficient data to compute land values can be obtained.
(e) When computing helicopter noise levels using data collected from meters, a correction of +7db shall be added to meter readings obtained under conditions where blade slap was present until and unless matters are developed which more accurately reflect true conditions.
(f) Noise contours less than Ldn 65 or more than Ldn 80 need not be plotted for AICUZ studies.
(g) Since CNR noise levels are not normally directly convertible to Ldn values without introducing significant error, care should be exercised to assure that personnel do not revise previous studies by erroneously relabeling CNR contours to the approximately equivalent Ldn values.
(h) Where intermittent impulse noises are such as are associated with bombing and gunnery ranges are of importance such noises will be measured using standard “C” weighing of the various frequencies to insure a description most representative of actual human response.
This part is effective immediately. Two copies of implementing regulations shall be forwarded to the Assistant Secretary of Defense (Installations and Logistics) within 90 days after publication of final rules.
5 U.S.C. 301, 133.
This rule updates DoD policy governing acceptance of service of process served on the Secretary of Defense and the Secretaries of the Military Departments.
This rule applies to the Office of the Secretary of Defense (OSD) and the Military Departments.
It is DoD policy to accept service of process directed to the Secretary of Defense or a Secretary of a Military Department in his official capacity. Acceptance of service of process will not constitute an admission or waiver with respect to the jurisdiction or to the propriety of service.
The following responsibilities may not be redelegated:
(a) The
(b) The
(c) The
(d) The
5 U.S.C. 301.
It is the purpose of this part to specify Defense Department policy for strengthening cooperation with Allies in research and development and to assign responsibilities for implementing it. This policy calls for maximum coordination of technical objectives and programs with those of our allies. It complements DoD Directive 3100.4, Harmonization of Qualitative Requirements for Defense Equipment of United States and Allies.
Cooperation in defense research and development between the United States and its Allies since World War II has been aimed primarily at assisting them, financially as well as technically, in developing indigenous capabilities. The economic status of certain of these Allies has now evolved beyond the point of warranting further financial assistance. However, the evolution of modern weapons of increasing cost and complexity makes the effective utilization of the aggregate of available technical resources a matter of concern to each nation.
(a) The United States will cooperate with its Allies to the greatest degree possible in the development of defense equipment, where such cooperation is in the overall best interests of the United States. The objectives of such cooperation will be:
(1) To make the best equipment available to the United States and its Allies in the most timely manner.
(2) To increase the effectiveness of the scientific and technical resources of the United States and its Allies, especially by eliminating unnecessary and wasteful duplication of effort.
(3) To achieve the maximum practicable degree of standardization of equipment.
(4) To create closer military ties among the Alliance.
(b) The United States will seek to enter in bilateral and multilateral agreements with its allies that will minimize waste resulting from purely duplicative R&D programs and, within the criteria stated in § 258.4, encourage the establishment of a mutually acceptable free, fully competitive market for defense R&D. To this effect, the DoD will:
(1) Continue to encourage the mutual development of technical capabilities, in particular through exchanges of significant information.
(2) Coordinate exploratory, advanced and engineering development plans to minimize wasteful duplication.
(3) Participate in joint development programs for major systems meeting harmonized requirements, whenever such programs meet the objectives and criteria listed in this part.
(4) Consistent with OSD guidance, consider promising foreign as well as U.S. R&D resources prior to placing research and development contracts.
(5) Facilitate availability of U.S. R&D resources to foreign procurement agencies, on terms similar to those governing availability of these resources to U.S. agencies.
(c) Necessary release of classified information will be in accordance with the provisions of the National Disclosure Policies.
(a) The general criteria for such cooperation will be:
(1) Except for MAP “grant-aid countries,” no appropriations available to the DoD will be used to finance the foreign research and development effort unless the program is aimed at satisfying a United States military need.
(2) Except for MAP “grant-aid countries,” cooperative R&D programs will be funded by Service RDT&E funds.
(3) U.S. participation in jointly funded development programs will not be approved unless the United States receives design and production rights equivalent to those secured from domestic sources.
(b) International balance-of-payments considerations have resulted in the establishment of certain specific restrictions pertinent to DoD overseas activities, including those relating to foreign R&D. The screening and selection of proposed R&D projects must be consistent with these restrictions. In this connection, preference should be given to the following types of joint R&D undertakings:
(1) Projects that provide for the investment of foreign funds in U.S. R&D activities under mutually acceptable terms and conditions.
(2) Projects that offer the U.S. good prospects for the ultimate sale of the end item or associated components to second and third foreign parties.
(3) Projects that capitalize on the unique technical state-of-the-art capabilities existing in a foreign country and offer prospects of saving the U.S. time and money in the R&D and production field.
(4) Projects that enable the United States to assist and/or accommodate a foreign second party to accomplish joint R&D objectives without jeopardizing U.S. aspirations to promote future U.S. sales to third countries.
Procedures for accomplishing and administering the cooperative programs and projects will be integrated into DoD management systems so that decisions concerning national and international programs will be made by the same individuals.
(a) The Military Departments are charged with the primary responsibility for implementing this part.
(b) The Director of Defense Research and Engineering will be responsible for monitoring the implementation of this part. He will:
(1) Negotiate basic policy agreements with foreign Ministries of Defense as appropriate.
(2) Consult with the Joint Chiefs of Staff on the interaction of research and development and strategic doctrines.
(3) Seek formal statements of military operational requirements from the Military Departments or the JCS, as appropriate, for research and development projects and equipment areas which require such statements.
(4) Recommend to the Secretary of Defense policy guidance and appropriate instructions for the Military Departments to assure consistency of their actions and conformity with National Policy.
(5) Continually review progress made towards the objectives of this part.
(6) Request policy guidance and support from Assistance Secretaries of Defense (ISA) (I&L) (Comp), and the General Counsel on matters within their respective fields of responsibility.
(c) The Defense Advisor U.S. Mission to the North Atlantic Treaty Organization will assist the Director of Defense Research and Engineering, as directed, in supervising the implementation of this part.
(d) Military Assistance Advisory Groups and Missions will provide advice and assistance to the Military Departments as requested and within the limits of availability of assigned resources. Those MAAGs and Missions within the North Atlantic Treaty Organization areas will provide advice and assistance to the Defense Advisor U.S. NATO when requested.
Section 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894, (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601 note).
Regulations and procedures for complying with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Title IV of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24.
50 U.S.C. Appendix, Section 473, section 6.
This part incorporates DoD Directive 1330.15, “Alcoholic Beverage Control,” May 4, 1964, (which is hereby cancelled), provides policy and assigns responsibilities for the operation of military clubs and package stores of the Army, Navy, Air Force, and the Marine Corps; and authorizes the development, publication, and maintenance of DoD 1015.3-R, “Armed Services and Military Club and Package Store Regulations.”
The provisions of this part apply to the Office of the Secretary of Defense and the Military Departments, including DoD activities with clubs and package stores designated as a service (executive agent) responsibility, and Defense Agencies (hereinafter referred to as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
It is the policy of the Department of Defense that Armed Services military clubs and package stores be established as an essential part of the DoD Morale, Welfare and Recreation (MWR) program. In addition, the Department of Defense shall establish controls and procedures governing the sale of alcoholic beverages in these clubs and package stores. Affirmative measures shall be taken to provide character guidance, emphasizing the harmful effects of the immoderate use of alcohol. Chaplains and local community and national organizations shall assist in this effort. Military clubs shall provide dining, essential feeding (where required), and social programs, services, and facilities to eligible patrons. Package stores shall provide the sale of alcoholic beverages purchased for off-premise consumption by authorized patrons, and also provide a resale source of alcoholic beverages for all other authorized activities under 50 U.S.C., Appendix, Section 473. The establishment, management, and control of club and package store nonappropriated fund instrumentalities (NAFIs) shall be in accordance with DoD Directive 1015.1, “Establishment, Management, and Control of Nonappropriated Fund Instrumentalities (NAFIs),” August 19, 1981.
Procedures and guidance are prescribed in DoD 1015.3-R, “Armed Services Military Club and Package Store Regulations.” Chapter 4, section C., of this guidance reads as follows:
“C.
(a) The
(1) Provide guidance and direction in carrying out the provisions of this part; and shall establish, maintain, and disestablish clubs and package stores in accordance with DoD Directive 1015.1.
(2) Delegate executive agent responsibilities consistent with DoD Directive 1015.1.
(3) Develop, publish, and maintain DoD 1015.3-R, consistent with DoD 5025.1-M.
(b) The
(1) Act as executive agents for the administration of clubs and package stores, consistent with DoD Directive 1015.1.
(2) Establish a Fund Council whose composition and membership are provided at Chapter 1 of DoD 1015.3-R.
(c) The
(a) This part establishes a reporting requirement that is prescribed in Chapter 4 of DoD 1015.3-R for a triennial review of each package store.
(b) Report Control Symbol DD-M(TRI)1593 has been assigned to this information requirement.
63 Stat. 377 as amended, 18 U.S.C. 13, 40 U.S.C. 318 a through d, 50 U.S.C. 797, Delegations, 43 FR 56895, 46 FR 58306.
As used in this part:
(a)
(b)
The provisions of this regulation apply to all areas in the Brookmont site and to all persons on or within the site. They supplement those penal provisions of Title 18, U.S. Code, relating to crimes and criminal procedures, which apply without regard to the place of the offense and those provisions of state law which are made federal criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 13.
(a) All persons entering the site shall comply with this regulation; with all official signs; and with the lawful directions or orders of a uniformed guard
(b) At the request of a uniformed guard, a person must provide identification by exhibiting satisfactory credentials (such as driver's license).
(c) No person shall knowingly give any false or fictitious report concerning an accident or violation of this regulation to any person properly investigating an accident or alleged violation.
(d) All incidents resulting in injury to persons or damage to property must be reported to the Security Office immediately.
(e) No person involved in an accident shall leave the scene of that accident without first giving aid or assistance to the injured and making his or her identity known.
(a) Newly assigned or employed individuals who intend to operate a privately-owned vehicle at the site shall register it with the Security Police Division within 24 hours after entry on duty.
(b) Temporary registration for a specified period of time will be permitted for temporarily hired, detailed, or assigned personnel; consultants; contractors; visiting dignitaries, etc.
No person may operate any motor vehicle on the site without a valid, current operator's license, nor may any person, if operating a motor vehicle on the site, refuse to exhibit for inspection, upon request of a uniformed guard, his operator's license or proof of registration of the vehicle under his control at time of operation.
(a) No person shall drive a motor vehicle on the site at a speed greater than or in a manner other that what is reasonable and prudent for the particular location, given the conditions of traffic, weather, and road surface and having regard to the actual and potential hazards existing.
(b) Except when a special hazard exists that requires lower speed, the speed limit on the site is 15 m.p.h., unless another speed limit has been duly posted, and no person shall drive a motor vehicle on the site in excess of the speed limit.
No person shall fail or refuse to yield the right-of-way to an emergency vehicle when operating with siren or flashing lights.
Every driver shall comply with all posted traffic signs.
No person shall fail or refuse to yield the right-of-way to a pedestrian or bicyclist crossing a street in the marked crosswalk.
(a) No person, unless otherwise authorized by a posted traffic sign or directed by a uniformed guard, shall stand or park a motor vehicle:
(1) On a sidewalk, lawn, plants or shrubs.
(2) Within an intersection or within a crosswalk.
(3) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 feet of a stop sign or traffic control device.
(4) At any place which would result in the vehicle being double parked.
(5) At curbs painted yellow.
(6) In a direction facing on-coming traffic.
(7) In a manner which would obstruct traffic.
(8) In a parking space marked as not intended for his or her use.
(9) Where directed not to do so by a uniformed guard.
(10) Except in an area specifically designated for parking or standing.
(11) Except within a single space marked for such purposes, when parking or standing in an area with marked spaces.
(12) At any place in violation of any posted sign.
(13) In excess of 24 hours, unless permission has been granted by the Security Office.
(b) No person shall park bicycles, motorbikes or similar vehicles in areas not designated for that purpose.
(c) Visitors shall park in areas identified for that purpose by posted signs and shall register their vehicles at the front desk of Erskine Hall, Ruth Building or Fremont Building.
(d) No person, except visitors, shall park a motor vehicle on the Brookmont site without having a valid parking permit displayed on such motor vehicle in compliance with the instructions of the issuing authority.
(a) Except with respect to the laws of the State of Maryland assimilated under 18 U.S.C. 13, whoever shall be found guilty of violating these regulations is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both in accordance with 40 U.S.C. 318c. Except as expressly provided in this part, nothing contained in these regulations shall be construed to abrogate any other Federal laws or regulations, or any State and local laws and regulations applicable to the area in which the site is situated.
(b) In addition to the penalties described in subsection (a) of this section, parking privileges may be revoked by the issuing authority for violations of any of the provisions of this regulation.
(c) Any motor vehicle that is parked in violation of this regulation may be towed away or otherwise moved if a determination is made by a uniformed guard that it is a nuisance or hazard. A fee for the moving service and for the storage of the vehicle, if any, may be charged, and the vehicle is subject to a lien for that charge.
Secs. 601, 606, 75 Stat. 438, 440; 22 U.S.C. 2351, 2356.
The purpose of this part is to restate Department of Defense policy concerning the international interchange for defense purposes of patent rights and technical information. DoD Directive 2000.3, “Technical Property Interchange Agreements”, dated April 15, 1954, is hereby superseded and cancelled. Delegation published at 19 FR 2523 is cancelled.
This part applies to the activities of all Department of Defense personnel involved in the international interchange for defense purposes of patent rights and technical information. The policy prescribed herein applies to unclassified as well as classified information, owned by the United States Government or privately owned, but does not apply to patents, patent applications, and technical information in the field of atomic energy.
(a) Pursuant to the provisions of the Mutual Security Act of 1954, as amended, and of predecessor legislation superseded by that Act, the United States has entered into agreements for the Interchange of Patent Rights and Technical Information for Defense Purposes with Australia, Belgium, Denmark, France, the Federal Republic of Germany, Greece, Italy, Japan, The Netherlands, Norway, Portugal, Spain, Turkey, and the United Kingdom. The agreements, which are published in the Treaties and Other International Act Series, are basically similar in substance but are not identical. Under the agreements:
(1) Each government undertakes to facilitate the interchange of privately owned patent rights and of technical information through the medium of commercial relationships, to the extent permitted by the laws and security requirements of the contracting governments.
(2) When technical information is supplied by one government to the other for information only, the recipient government undertakes to treat the information as disclosed in confidence and to use its best endeavors to ensure that the information is not
(3) When technical information supplied by one government to the other discloses an invention which is the subject of a patent or patent application held in secrecy in the country of origin, the recipient government undertakes to accord similar treatment to a corresponding patent application filed in that country.
(4) When privately owned technical information is released by one government to the other and the recipient government uses or disclosed the information, the owner shall, subject to the extent that the owner may be entitled thereto under the applicable law and subject to arrangements between the contracting governments regarding the assumption as between them of liability for compensation, receive prompt, just and effective compensation for such use and for any damages resulting from such use or disclosure.
(5) Each government is entitled to use for defense purposes without cost any invention which the other government (including government corporations) owns or to which it has the right to grant a license to use, except to the extent that there may be liability to any private owner of an interest in the invention.
(b) Each of these agreements establishes a Technical Property Committee consisting of a representative of each contracting government, whose function it is to consider and make recommendations to the contracting governments on all matters relating to the subject of the agreement and to assist where appropriate in the negotiation of commercial or other agreements for the use of patent rights and technical information in the military assistance program.
(1) The Patent Advisor assigned to the Defense Staff of the U.S. Mission to the North Atlantic Treaty Organization and European Regional Organizations (USRO), Paris, France, is the United States representative to the Technical Property Committees in Europe. The J-4, Hq. United States Forces Japan, Tokyo, Japan is the United States representative to the United States-Japanese Technical Property Committee. A member of the Office of Assistant General Counsel, International Affairs, Office of the Secretary of Defense, is the United States representative to the United States-Australian Technical Property Committee. The appropriate representative should be consulted on all problems dealing with patent rights, technical information and related matters under the agreements.
(2) These representatives receive policy guidance from the Department of Defense. The Assistant Secretary of Defense for International Security Affairs is responsible within the Department of Defense for transmitting such policy guidance through appropriate channels. Guidance transmitted for the United States representative in Europe shall be forwarded to the Defense Advisor, USRO; guidance transmitted for the United States representative in Japan shall be transmitted to the Commanding General, United States Forces Japan.
(c) Department of Defense problems arising in the United States in connection with the interchange of patent rights and privately owned technical information should be referred to the patent activity of the appropriate Military Department.
It is the policy of the Department of Defense to encourage and facilitate international interchanges of patent rights and technical information to further the common defense of the United States and friendly nations. In achieving this purpose, the following principles shall be observed.
(a) Classified military information shall be released only through Government channels and only when consistent with the National Disclosure Policy, or when approved as an exception to that policy.
(b) In accordance with the Congressional policy prescribed by section 413(a) of the Mutual Security Act of 1954, as amended (22 U.S.C. 1933(a)), and pursuant to the bilateral agreements
(c) In accordance with section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934), the utilization of commercial channels for the exportation of unclassified privately owned technical information relating to articles designated as arms, ammunition, and implements of war in the United States Munitions List shall be subject to the regulations issued by the Secretary of State pursuant to section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934) (Title 22 CFR, chapter I, subchapter M). (The term “technical data” is used in those regulations to describe technical information relating to such articles).
(d) Technical information which might be privately owned may be released under paragraph (e) (1) or (2) of this section by Department of Defense Agencies to foreign governments if any one of the following conditions are met:
(1) The owner expressly consents to the proposed release;
(2) The United States, by contract or otherwise, has acquired or is entitled to acquire, the information under circumstances which permit the proposed release; or
(3) The Secretary of the Military Department concerned, or his designee, determines, under the authority of the Mutual Security Act of 1954, as amended, that:
(i) The exigencies of the requirement for release to further the common defense do not allow sufficient time to obtain the consent of the owner; or
(ii) The owner refuses consent and the best interests of the United States would be served by the release.
(e) In accordance with the provisions of the agreements referred to in § 264.3, the release to foreign governments by Department of Defense agencies of technical information which might be privately owned shall normally be in accord with the following two step procedure:
(1) Release for information only.
(2) Permission for manufacture, or use, for defense purposes.
(f)(1) All technical information, whether privately owned or government owned, released to a foreign government by Department of Defense Agencies shall be marked with the following restrictions:
1. This information is accepted for defense purposes only.
2. This information shall be accorded substantially the same degree of security protection as such information has in the United States.
3. This information shall not be disclosed to another country without the consent of the United States.
(2) When technical information which might be privately owned is released for information only, the restrictive marking shall also contain these additional notations:
4. This information is accepted upon the understanding that it might be privately owned.
5. This information is accepted solely for the purpose of information and shall accordingly be treated as disclosed in confidence. The recipient Government shall use its best endeavors to ensure that the information is not dealt with in any manner likely to prejudice the rights of the private owner thereof to obtain patent or other like statutory protection therefor.
6. The recipient Government shall obtain the consent of the United States if it desires that this information be made available for manufacture, or use, for defense purposes.
(g) When technical information which might be privately owned is released under the procedures set forth herein, the owner, if known, shall be furnished:
(1) Notice of the release;
(2) The identity of the recipient, if not contrary to security regulations;
(3) Notice that the recipient has been advised that the information might be privately owned; and
(4) Notice of the restrictions to which the release is subject.
(a) With respect to interchanges in furtherance of the purposes of the Mutual Security Act of 1954, as amended, section 506 of the Mutual Security Act
(b) The Secretaries of the Military Departments are hereby authorized to exercise the power and authority conferred by section 506 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758) to enter into agreements with claimants in full settlement and compromise of any claim against the United States thereunder, subject to such rules and regulations, if any, as the Secretary of Defense may promulgate from time to time. The Secretaries of the Military Departments are authorized to make successive redelegations in writing of this power and authority to any officer, employee, board or agent of their respective departments.
(c) Funds appropriated for military assistance pursuant to the Mutual Security Act of 1954, as amended, which have been made available to a Military Department may be used to settle claims under section 506 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758). In addition, in those cases where the provisions of 10 U.S.C. 2386 are applicable, funds appropriated for a Military Department available for making or procuring supplies may be used to settle such claims.
10 U.S.C. 140.
This part:
(a) Updates policy, responsibilities, and procedures.
(b) Implements Public Law 98-502 (31 U.S.C. 7501-7507 and 3512) and Office of Management and Budget (OMB) Circulars A-128
(c) Assigns responsibilities within the Department of Defense for monitoring compliance with those requirements.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”) that provide Federal financial assistance to State and local governments, institutions of higher education, and other nonprofit institutions.
Terms used in this part are defined in OMB Circulars A-128 and A-133 with the following deviation. Funds paid by the National Guard Bureau to States under facilities' operation and maintenance agreements do not constitute “Federal financial assistance” for purposes of Public Law 98-502 and OMB Circular A-128.
The DoD Components shall rely on and use financial and performance audits performed by non-Federal auditors under OMB Circular A-128 and independent auditors under OMB Circular A-133 in the oversight of Federal financial assistance provided to State and local governments, institutions of higher education, and other nonprofit
(a) The Inspector General of the Department of Defense shall:
(1) Serve as the DoD senior official under OMB Circulars A-128 and A-133 for policy guidance, direction, and coordination with DoD Components and other Federal Agencies on audit matters related to State and local governments, institutions of higher education and other nonprofit institutions.
(2) For State and local governments, institutions of higher education, and other nonprofit institutions for which the OMB has assigned the DoD cognizance, do the following:
(i) Ensure that audits are made and reports are received in a timely manner and in accordance with the requirements of OMB Circulars A-128 and A-133.
(ii) Provide technical advice and liaison through the DoD Components to State and local governments, institutions of higher education, other nonprofit institutions, and independent auditors.
(iii) Make desk reviews of all reports received, and also make quality control reviews of selected audits made by non-Federal audit organizations and provide the results, when appropriate, to other interested organizations.
(iv) Promptly inform other affected Federal Agencies and appropriate law enforcement officials of any reported illegal acts or irregularities in accordance with requirements of OMB Circulars A-128 and A-133.
(v) Advise the recipient of audits that have been found not to have met the requirements in OMB Circulars A-128 and A-133. In such instances, the recipient will work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency shall notify the recipient and Federal awarding agencies of the facts and make recommendations for followup action. Major inadequacies or repetitive sub-standard performance of independent auditors shall be referred to appropriate professional bodies for disciplinary action.
(vi) Coordinate, to the extent practicable, audits requested by other Federal Agencies, in addition to those required by OMB Circulars A-128 and A-133.
(vii) Ensure the resolution of audit findings and recommendations that affect DoD programs and those findings affecting programs of more than one Federal Agency. Ensure that a management decision affecting audit resolution shall be made within 6 months after receipt of the audit report.
(3) For local governments, institutions of higher education, and other nonprofit institutions for which the Department of Defense has assumed oversight responsibility, do the following:
(i) Provide technical advice and counsel through DoD Components to institutions and independent auditors when requested.
(ii) Assume all or some of the cognizant agency responsibilities (see paragraph (a)(2) of this section), as deemed necessary.
(4) For other State and local governments, institutions of higher education, and other nonprofit institutions, receive and distribute copies of single audit reports to appropriate DoD Components for appropriate action and followup by designated program officials.
(5) For audit reports that contain conditions affecting DoD programs, institute followup efforts to ensure that corrective actions have been taken by DoD organizations responsible for managing associated programs or funds.
(b) The Heads of the DoD Components shall:
(1) Designate an official to coordinate with the IG, DoD, on matters
(2) Ensure input of accurate award data for Federal financial assistance to the appropriate DoD management information system.
(3) Ensure that the State or local government, institution of higher education, or other nonprofit institution takes appropriate actions to correct audit deficiencies involving financial assistance provided by the DoD Component.
(4) For State and local governments, institutions of higher education, and other nonprofit institutions for which the OMB has assigned DoD cognizance, do the following:
(i) Coordinate with the IG, DoD, on requests from other Federal Agencies for audits of State and local governments, institutions of higher education, and other nonprofit institutions, in addition to those required by OMB Circulars A-128 and A-133.
(ii) Seek the views of other interested agencies when a coordinated audit approach is to be used and before completing a coordinated program.
(iii) Help coordinate the audit work and reporting responsibilities among independent public accountants, State auditors, and both resident and non-resident Federal auditors to achieve the most cost-effective audit.
The costs of audits made by non-Federal auditors under OMB Circulars A-128 and A-133 are allowable charges to Federal financial assistance programs. The charges may be considered as a direct cost or an allocated indirect cost in accordance with OMB Circulars A-87, A-122 and A-21
Federal Claims Collection Act of 1966 (31 U.S.C. 951-953); Arms Export Control Act, sec. 23.
This part establishes standard procedures to be used for the collecting and reporting of foreign indebtedness. Such indebtedness may arise through the (a) sale of Defense articles and services pursuant to the Arms Export Control Act; (b) operation of military missions; and (c) logistical support provided under country-to-country agreements.
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, and the Defense Agencies (hereafter referred to as “DoD Components”).
It is the policy of the Department of Defense that timely and aggressive collection efforts will be conducted to assure that foreign arrearages to DoD Components are held to the absolute minimum. Foreign indebtedness will be uniformly and accurately reported to the Department of the Treasury on
(a) The assistant Secretary of Defense (Comptroller) is the DoD point of contact for matters concerning foreign indebtedness requirements imposed on DoD from outside the Department, such as by the Congress, Treasury Department, and NAC.
(b) The Defense Security Assistance Agency (DSAA) is responsible for consolidation of feeder arrearage reports and submission of a single consolidated DoD arrearage report to the Treasury Department. The DSAA shall (1) monitor collection actions; (2) follow up when initial collection actions have been unsuccessful; and (3) serve as the focal point within DoD for responding to NAC information requests.
(c) Unless otherwise directed, the DoD Component which makes the sale, or is otherwise assigned responsibility, is responsible for taking initial collection action, accounting for indebtedness, preparation of feeder arrearage reports, and providing copies of arrearage reports to the DSAA.
Each DoD Component is responsible for taking timely and aggressive billing and followup collection actions for each category of indebtedness incurred by official and private obligors pursuant to authorized programs.
(a)
(2) Sales made by DoD Components under existing cases which provide for 120-day payment terms shall be classified as short-term credit sales. Similarly, those sales made after September 30, 1976, under special emergency appropriations which provide for payments 120 days after delivery of articles or services will also be classified as short-term credit sales. DoD Components shall submit reports to the DSAA of these short-term credit sales.
(3) Foreign indebtedness to DoD Components for logistical support, mission support costs, and other programs is payable upon presentation of the appropriate billing documents. Reports of foreign indebtedness related to these programs will be submitted to the DSAA.
(b)
The DSAA is responsible for administering FMS long-term loans and credit programs authorized by Section 23 of the Arms Export Control Act, and likewise is responsible for determining foreign indebtedness against these programs. Debts remaining uncollected 90 days after the due date will be referred to the State Department for diplomatic assistance to effect settlement.
Major foreign debt arrearages are monitored by the NAC. Therefore, periodically DSAA will request flash reports from the DoD Components to satisfy NAC requirements for information on major foreign debt arrearages. For this purpose, a “major” foreign debt arrearage is any country program arrearage which involves the sum of $250,000 or more. Flash reports will be submitted directly to DSAA by the local command in message form with information copies to the next higher command. The report will reflect any significant changes in major foreign debt arrearages from the quarterly foreign indebtedness reports submitted in
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(e)
(1) Any individual, including a citizen of the United States (excluding U.S. military members and U.S. Government employees) domiciled outside the United States.
(2) Any partnership, association, corporation, or other organization created or organized under the laws of a foreign country, excepting branches or agencies thereof located in the United States.
(3) Any branch, subsidiary, or allied organization within a foreign country of a partnership, association, corporation, or other organization created or organized under the laws of a foreign country or the United States.
(4) Any government of a foreign country and any subdivision, agency, or instrumentality thereof, including all foreign “Official” institutions, even though located in the United States.
(5) Any private relief, philanthropic, or other organization of a multinational or regional character with headquarters abroad.
(6) Any official multinational organization, defined as any international or regional organization (or affiliated agency thereof) created by treaty or convention between sovereign states.
(f)
(1) The disbursements of cash to be repaid at a future time (with or without interest),
(2) The extension of credit (by formal agreement or an open book account) in connection with the sale of products, property, or services,
(3) The formal deferral of interest collection,
(4) The purchase or repurchase of obligations that have been insured or guaranteed by the U.S. Government, and
(5) Payments by the U.S. Government in cases of default on insured or guaranteed loans and other investments when the U.S. Government acquires a debt instrument from the insured.
(g)
(h)
(1) Central governments or their departments (ministries) or components, whether administrative or commercial.
(2) Political subdivisions such as states, provinces, departments, and municipalities.
(3) Foreign central banks.
(4) Other institutions (such as corporations, development banks, railways, and utilities) when (i) the budget of the institution is subject to the approval of the government, or (ii) the government owns more than 50 percent of the voting stock or more than half of the members of the board of directors are government representatives, or (iii) in the case of default the government or central bank would become liable for the debt of the institution.
(5) Any official multinational organization.
(i)
(j)
(k)
(l)
28 U.S.C. 2461.
The purpose of this part is to establish a mechanism for the regular adjustment for inflation of civil monetary penalties and to adjust such penalties in conformity with the Federal Civil Penalties Inflation Adjustment
(a)
(b)
(1)(i) Is for a specific monetary amount as provided by Federal law; or
(ii) Has a maximum amount provided by Federal law;
(2) Is assessed or enforced by the Department pursuant to Federal law; and
(3) Is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal Courts.
(c)
The Department shall, not later than 180 days after the enactment of the Debt Collection Improvement Act on April 23, 1996, and at least once every 4 years thereafter—
(a) By regulation adjustment each civil monetary penalty provided by law within the jurisdiction of the Department of Defense by the inflation adjustment described in § 269.4; and
(b) Publish each such update in the
(a) The inflation adjustment under § 269.3 shall be determined by increasing the maximum civil monetary penalty for each civil monetary penalty by the cost-of-living adjustment. Any increase determined under this paragraph shall be rounded to the nearest:
(1) Multiple of $10 in the case of penalties less than or equal to $100;
(2) Multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;
(3) Multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;
(4) Multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than $200,000.
(b) For purposes of paragraph (a) of this section, the term “cost-of-living adjustment” means the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.
(c)
(d)
Any increase in a civil monetary penalty under this part shall apply only to violations which occur after the date the increase takes effect.
Sec. 657, Pub. L. 104-201, 110 Stat. 2422.
The purpose of this part is to implement section 657 of the National Defense Authorization Act for Fiscal Year 1997 (Pub. L. 104-201), which authorizes the Secretary of Defense to make payments to persons who demonstrate to the satisfaction of the Secretary of Defense that the persons were captured and incarcerated by the Democratic Republic of Vietnam as a result of the participation by the persons in certain operations conducted by the Republic of Vietnam.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
This part is effective on May 15, 1997.
The Secretary shall establish within OSD a Commission that is composed of the following voting members: one representative from the Office of the Under Secretary of Defense for Personnel and Readiness, who shall be the chairman of the Commission, one representative from the Office of the Under Secretary of Defense for Policy, and one representative from each of the military departments. Members of the Commission may be either military or civilian and all members must possess, at a minimum, a Secret clearance.
(a) The Commission will have a support staff, which will include staff members sufficient to expeditiously and efficiently process the applications for payments under this part. All members of the staff will possess, as a minimum, a Top Secret clearance because of the sensitive nature of the information that may require review in determining eligibility of claimants.
(b) The Secretary will ensure that the Commission has all administrative support, including space, office and automated equipment and translation services, needed for the efficient and expeditious review and payment of claims. The Secretary may task appropriate Department of Defense elements to provide such support, either through assignment of personnel or the hiring of independent contractors.
(a) A person is eligible for payments under this part if such person:
(1) Was captured and incarcerated by North Vietnam as a result of his participation in operations conducted under OPLAN 34A or its predecessor operation; or
(2) Served as a Vietnamese operative under OP 35, and was captured and incarcerated by North Vietnamese forces as a result of the participation by the person in operations in Laos or along the Lao-Vietnamese border pursuant to OP 35, and
(i) Was captured and incarcerated by the North Vietnamese, and remained in captivity after 1973 (or died in captivity) after participation in OP 35, and
(ii) Has not previously received payment for the United States Government after 1972 from the period spent in captivity.
(b) In the case of a decedent who would have been eligible for a payment
(1) To the surviving spouse of an eligible person; or
(2) If there is no surviving spouse of an eligible person, to the surviving children of an eligible person, in equal shares; or
(3) If there is no surviving spouse of an eligible person and no surviving children of an eligible person, to the surviving parents of an eligible person, in equal shares (step parents take equal shares the same as natural parents); or
(4) If there is no surviving spouse of an eligible person, no surviving children of an eligible person, and no surviving parents of an eligible person, to the surviving siblings of an eligible person, in equal shares. (Half siblings take equal shares in the same manner as full siblings.)
(c) A payment may not be made under this part to, or with respect to, a person who the Commission determines, based on the available evidence, served in the People's Army of North Vietnam or provided active assistance to the Government of North Vietnam or forces opposed to the Government of South Vietnam or the United States during any period from 1958 through 1975.
(d) The Commission will make reasonable efforts to publicize the availability of payments involved in this procedure, using existing public affairs channels.
(a) All persons applying for payment under this part shall first submit a properly completed, signed and notarized Application for Compensation of Vietnamese Commandos as set out in appendix A to this part, along will all corroborating documents and information required, to the Commission on Compensation, Office of the Secretary of Defense, 4000 Defense Pentagon, Washington, D.C. 20301-4000. Submission of an Application for Compensation of Vietnamese Commandos without properly signed and notarized declarations will automatically render the application ineligible for consideration by the Commission for payment. All applicants must sign and have notarized the declarations in Part C of the Application for Compensation of Vietnamese Commandos. In addition, all applicants must sign and have notarized the declaration in either Part A or Part B of the Application for Compensation of Vietnamese Commandos. If portions of the Application for Compensation of Vietnamese Commandos are not completed, the Commission may draw adverse inferences from the portions left incomplete.
(b) Staff Functions in the Verification of Eligibility Process. The Staff Director shall:
(1) Establish a database for logging and tracking Applications for Compensation of Vietnamese Commandos throughout the claims process, including appellate actions and final payment or denial of claims.
(2) Maintain a liaison with on-site personnel at the National Archives Center, College Park, Maryland, to organize and translate finance records for review.
(3) Upon receipt of each Application for Compensation of Vietnamese Commandos, research cases to verify eligibility of claimant to include reviewing and analyzing existing records.
(4) Forward applications (including support documentation) to other U.S. Government agencies as required (e.g., CIA, INS) for review of their records, as needed to acquire documentation that may aid in determining the eligibility of claimants to receive payments.
(5) Present any information or comments resulting from the research and review of cases, plus any reasonably available and probative information, to the Commission with a recommendation on the eligibility of applicants.
(6) If eligibility is favorably approved by the Commission, forward written requests to DFAS to effectuate payments.
(7) Prepare notification letters, on behalf of the Commission, for forwarding to claimants notifying them of the final determination concerning approval or disapproval of their applications.
(8) In coordination with the Army Budget Office and OSD, determine appropriate fund cite that will be used for payments.
(9) Assist in the preparation of required Reports to Congress.
(10) Determine administrative budgetary support requirements and submit funding request to OSD.
(11) Provide clerical and administrative support to the Commission.
(12) Create and maintain a system of records to manage all information generated by the processing of Applications for Compensation of Vietnamese Commandos under this part and to create an administrative record of actions by the Commission. All information received or originated from other Departments and agencies of the U.S. government will be retained, stored, and further disseminated only in accordance with pertinent law (e.g., 5 U.S.C. section 552(FOIA) and 5 U.S.C. section 552a (Privacy Act)) and conditions set by those originating Departments and agencies.
(c) Claims will be processed expeditiously. Within 18 months of actual receipt by the Commission of an Application for Compensation of Vietnamese Commandos, the Commission will determine the eligibility of the applicant. The standard for finding eligibility is whether the information reasonably available to the Commission indicates that the applicant is more likely than not to be eligible for a payment under this part. The burden of making a showing of eligibility shall be on the applicant. Upon determination of eligibility, the payment should be promptly accomplished.
(d) Applicants may request to appear in person before the Commission, which will retain discretion whether to grant such requests. The Commission may request the personal appearance or interview of any applicant as a condition of further consideration of his or her application if such appearance would significantly aid the Commission in its determination. All appearances shall be at the expense of the applicant.
Subject to the availability of appropriated funds, upon determination by the Commission of the eligibility of a person for payment, the Commission will authorize the Defense Finance and Accounting Service (DFAS) to make payments out of the funds appropriated for this purpose. Any payment authorized to a person under a legal disability, may, in the discretion of the Commission, be paid for the use of the person, to the natural or legal guardian, committee, conservator, or curator, or, if there is no such natural or legal guardian, committee, conservator, or curator, to any other person, including the spouse, children, parents, or siblings of such person, who the Commission determines is charged with the care of the person. The Commission will notify eligible persons of the process for disbursements.
The amount payable to, or with respect to, an eligible person under this part is $40,000. If an eligible person can demonstrate to the satisfaction of the Commission that confinement or incarceration exceeded 20 years, the Commission may authorize payment of an additional $2,000 for each full year in excess of 20 (and a proportionate amount for a partial year), but the total amount paid to, or with respect to, an eligible person under this part may not exceed $50,000.
To be eligible for payments under this part, applicants must file Applications for Compensation of Vietnamese Commandos with the Commission within 18 months of the effective date of these regulations, May 15, 1997.
Notwithstanding any agreement (including a power of attorney) to the contrary, the Commission must disburse a payment under this part only to the person who is eligible for the
The acceptance of payment by, or with respect to, an eligible person under this part shall constitute full satisfaction of all claims by or on behalf of that person against the United States arising from the person's participation in operations under OPLAN 34A or OP35.
Subject to subpart E of this part, all determinations by the Commission pursuant to this part are final and conclusive, notwithstanding any other regulation. Applicants under this part have no right to judicial review, and such review is specifically precluded. This part does not create or acknowledge any legal right or obligation whatsoever.
Notwithstanding any contract or agreement, the representative of a person authorized to receive payment under this part may not receive, for services rendered in connection with the claim of, or with respect to, a person under this part, more than 10 percent of a payment made under this part on such claim.
In exceptional circumstances (e.g., overseas claimant) the requirement for notarizations may be waived at the discretion of the Commission.
Applicants whose claims for payment are denied in whole or in part by the Commission will be notified in writing of the determination. Applicants may petition the Assistant Secretary of Defense, Force Management Policy (or his designee) for a reconsideration of the Commission's determinations, and may submit any documentation in support of such petitions.
A request for reconsideration must be made to the Secretary, care of the Staff Director of the Commission at the address of the Commission set out in § 270.7, within 45 days of receipt of the notice from the Commission of ineligibility. The Commission may waive that time limit for good cause shown.
(a) The Assistant Secretary of Defense, Force Management Policy (or his designee) will:
(1) Review the Commission's administrative record of the original determination.
(2) Review additional information or documentation submitted by the applicant to support his or her petition for reconsideration.
(3) Determine whether the decision of the Commission should be affirmed, modified, or reversed.
(b) When there is a decision affirming the Commission's determinations, the Staff Director will notify the applicant in writing and include a statement of the reason for the affirmance.
(c) A decision of affirmance shall constitute the final action of the Department of Defense. The Secretary (or his designee) may decline to consider any subsequent petitions for reconsideration.
(d) When there is a decision modifying or reversing the Commission's determination, the notification should be immediately made to the Staff Director so as to implement the final action.
Not later than September 23, 1998, the Commission will prepare and the Secretary will submit to Congress a report on the payment of claims under this part. Subsequent to that initial report, the Commission will prepare and the Secretary will submit to Congress annual reports on the status of payment of claims.
All persons applying for payment shall submit a properly completed, signed and notarized Application for Compensation of Vietnamese Commandos, along with corroborating documents and information, to: Commission on Compensation, Office of the Secretary of Defense, 4000 Defense Pentagon, Washington, D.C. 20301-4000.
All applicants must sign and have notarized the declaration in Part C of the application. In addition, all applicants must sign and have notarized the declaration in either Part A or Part B of the application (as applicable).
Applicants must file applications within 18 months of the effective date of this part (15 May 1997): that is,
Privacy Act Statement:
National Defense Authorization Act for Fiscal Year 1997, Public Law 104-201, Section 657.
Principal Purpose: To evaluate applications for cash payments for those individuals, or their surviving spouse, children, parents, or siblings, who were captured and incarcerated by North Vietnam as a result of participating in specified joint United States-South Vietnamese operations.
Routine Uses: To the Immigration and Naturalization Service and the Central Intelligence Agency for purposes of verifying information relating to the claimant's eligibility for payment. To the Department of Justice for purposes of representing the Department of Defense in
Disclosure: Voluntary. However, if portions are not completed the Commission may draw adverse inferences from the incomplete portions.
Social Security Number: Providing a social security number is voluntary. If one is not provided, the application for payment will still be processed.
This application shall be executed by the person applying for eligibility, or his surviving spouse, children, parents, or siblings, or designated representatives of such persons.
Part A—Complete the following information on the person whose status as a former operative is the basis for applying for payment:
I served pursuant to OPLAN 34A or its predecessor operation and was captured and imprisoned by North Vietnam as a result of those activities. I did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). I did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
I served as a Vietnamese operative pursuant to OP 35, and was captured and imprisoned by North Vietnam as a result of my participation in operations in Laos or along the Lao-Vietnamese border under the direction of OP 35. I did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). I did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I have not previously received payment from the United States Government as compensation for the period of captivity. I remained in captivity after 1973. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Part B—In addition to PART A, above, any applicant who is a surviving spouse, child, parent, or sibling by blood of a deceased commando must complete Part B, below, with information on themselves.
To the best of my information, knowledge, and belief, my deceased family member served pursuant to OPLAN 34A or its predecessor operation and was captured and imprisoned by North Vietnam as a result of those activities. He did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). He did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
To the best of my information, knowledge, and belief, my deceased family member served as a Vietnamese operative pursuant to OP 35, and was captured and imprisoned by North Vietnam as a result of his participation in operations in Laos or along the Lao-Vietnamese border under the direction of OP 35. He did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). He did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. He did not previously receive payment from the United States Government as compensation for the period of captivity. He remained in captivity after 1973. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Part C—Required Documents:
All documents submitted in support of an application for payment should be originals when possible, or copies of the originals certified by the official custodian of the documents. If certified copies cannot be obtained, uncertified copies should be submitted. If
(1) Identification. A document with his current legal name and address (or legal name and address at death if deceased).
(2) Two or more sworn affidavits from individuals having personal knowledge of the person's identity (these should be submitted in addition to the document with current name and address).
(3) One document of date of birth. A birth certificate, or if unavailable, other proof of birth (e.g., passport).
(4) One document of name change,
(5) One document of evidence of guardianship. This is only required if you are executing this document as the guardian of the person identified in Part A. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the person and the extent to which you are responsible for the care of the person, or your position as an officer of the institution in which the person is institutionalized.
(6) One document of evidence of imprisonment. This should be a document issued by the government of North Vietnam showing the dates of the person's imprisonment.
(7) Any documents of evidence of participation in covered operations. These documents should be contracts, orders, or other operational documentation corroborating participation in clandestine operations under OPLAN 34A (or its predecessor) or OP 35.
In addition to documents (1) through (7) above concerning the deceased person described in Part A, submit the following:
(8) One of the following documents as evidence of the Commando's death:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of the commando/operative's death, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(g) If you are submitting an application as a surviving spouse, submit another document of the same type as evidence of the Commando's spouse's death.
In addition to documents described in Part C items (1) through (8), above, each surviving spouse should submit the following:
(9) One of the following documents as evidence of your marriage to the deceased person:
(a) A copy of the public records of marriage, certified or attested, or an abstract of the public records, containing sufficient information to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage;
(b) An official report from a public agency as to a marriage which occurred while the deceased person was employed by such agency;
(c) An affidavit of the clergyman or magistrate who officiated;
(d) The certified copy of a certificate of marriage attested to by the custodian of the records;
(e) The affidavits of two or more eyewitnesses to the ceremony; or
(f) In jurisdictions where “common law” marriages are recognized, an affidavit by the surviving spouse setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived.
(g) If you cannot obtain any of the above evidence of your marriage, you must submit
(10) In addition, submit the following documents about ourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A birth certificate, or if unavailable, other proof of birth (e.g. passport).
(c) One document of name change. If your current legal name is the same as that during the marriage, this section does not apply. Spouses whose current legal name is different than that used when married should submit a document or affidavits to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the spouse, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the spouse and the extent to which you are responsible for the care of the spouse or your position as an officer of the institution in which the spouse is institutionalized.
In addition to documents described in Part C items (1) through (8), above, each surviving child should submit the following:
(11) One document as evidence of your relationship to your parent (the deceased person described in Part A, above), as follows:
If A Natural Child:
(a) Birth certificate showing that the deceased person was your parent.
(b) If the birth certificate does not show the deceased person as your parent, a certified copy of:
(i) An acknowledgment in writing signed by the deceased person;
(ii) A judicial decree ordering the deceased person to contribute to your support;
(iii) The public record of birth or a religious record showing that the deceased person was named as your parent;
(iv) Affidavit of a person who knows that the deceased person accepted you as his child; or
(v) Public records, such as records of school or welfare agencies, which show that with the deceased person's knowledge, the deceased individual was named as your parent.
If An Adopted Child:
An adopted child must submit a certified copy of the decree of adoption.
If a Step-Child:
Submit all three of the following documents as evidence of the step-child relationship:
(a) One document as evidence of birth to the spouse of the deceased person, or other evidence that reasonably supports the existence of a parent-child relationship between you and the spouse of the deceased person;
(b) One document as evidence that you were either living with or in a parent-child relationship with the deceased person at the time of his death; and
(c) One document as evidence of the marriage of the deceased person and the spouse, such as a certified copy of the record of marriage, or an abstract of the public records containing sufficient information to identify the parties and the date and place of marriage issued by the officer having custody of the record, or a certified copy of a religious record of marriage.
(12) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identify (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose current legal name is different than that used on such documents should submit a document or affidavit to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving child of a deceased person, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the child and the extent to which you are responsible for the care of the child, or your position as an officer of the institution in which the child is institutionalized.
Read the following statement carefully before signing this document. A false statement may be grounds for punishment by fine or imprisonment or both. This sworn declaration must accompany all documents submitted to the Commission, whether with or separate from the application.
In addition to documents described in Part C items (1) through (8), above, each surviving parent should submit the following:
(13) An affidavit certifying that the deceased individual described in Part A, above, has no surviving spouse.
(a) In addition to the above affidavit, if the individual described in Part A, above, was divorced at the time of his death, a copy of the divorce decree from his spouse shall be submitted as additional proof that he has no surviving spouse.
(b) In addition to the above affidavit, if the individual described in Part A, above, had been married at some point prior to his death, and his spouse pre-deceased him, one of the following documents as evidence of the death of the spouse of the individual described in Part A, above, shall be submitted as additional proof that he has no surviving spouse:
(i) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(ii) A certificate by the custodian of the public record of death;
(iii) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(iv) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(v) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(vi) If you cannot obtain any of the above evidence of death of the spouse of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(14) One of the following documents as evidence of the death of all of the children (if any), of the deceased individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director are attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred o8tside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of death of all of the children of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(15) One document as evidence of your relationship to your child (the deceased person described in Part A, above), as follows:
If a Natural Parent:
(a) Birth certificate showing that the deceased person was your child.
(b) If the birth certificate does not show the deceased person as your child, a certified copy of:
(i) An acknowledgement in writing signed by the deceased person;
(ii) The public record of birth or a religious record showing that the deceased person was named as your child.
(iii) Public records, such as records of school or welfare agencies, which show that the deceased individual was named as your child; or
(iv) Other convincing evidence, such as signed, sworn statements of two or more persons who know that the deceased person was your child.
If An Adoptive Parent:
An adoptive parent must submit a certified copy of the decree of adoption. If the adoption took place outside of the United States and there is no decree of adoption, other convincing evidence must be submitted, such as signed, sworn statements of two or more persons with personal knowledge of the adoptive relationship, or a government official who can attest to the adoptive relationship.
If a Step-Parent:
Submit all three of the following documents as evidence of the step-parent relationship:
(a) One document as evidence of birth of the deceased person to the natural parent, or other convincing evidence that reasonably supports the existence of a parent-child relationship between the deceased person and the natural parent (see “If a Natural Parent,” above).
(b) One document as evidence that you had established a parent-child relationship with the deceased person; and
(c) One of the following documents as evidence that you were married to the natural parent of the deceased person:
(i) A copy of the public records of marriage, certified or attested, or an abstract of the public records, containing sufficient information to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage;
(ii) An official report from a public agency as to a marriage which occurred while either parent was employed by such agency;
(iii) An affidavit of the clergyman or magistrate who officiated;
(iv) The certified copy of a certificate of marriage attested to by the custodian of the records;
(v) The affidavits of two or more eyewitnesses to the ceremony; or
(vi) In jurisdictions where “common law” marriages are recognized, an affidavit by the parent setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits from two or more persons who know as a result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived.
(vii) If you cannot obtain any of the above evidence of your marriage to the natural parent, you must submit any other evidence that would reasonably support a belief that a valid marriage actually existed.
(16) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose current legal name is different than that used on such documents should submit a document or affidavit to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving parent of the deceased person described in Part A, above, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the parent and the extent to which you are responsible for the care of the parent, or your position as an officer of the institution in which the parent is institutionalized.
In addition to documents described in Part C items (1) through (8), above, each surviving sibling by blood should submit the following:
(17) An affidavit certifying that the deceased individual described in Part A, above, has no surviving spouse.
(a) In addition to the above affidavit, If the individual described in Part A, above, was divorced at the time of his death, a copy of the divorce decree from his spouse shall be submitted as additional proof that he has no surviving spouse.
(b) In addition to the above affidavit, If the individual described in Part A, above, had been married at some point prior to his death, and his spouse pre-deceased him, one of the following documents as evidence of the death of the spouse of the deceased individual described in Part A, above, shall be submitted as additional proof that he has no surviving spouse:
(i) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(ii) A certificate by the custodian of the public record of death;
(iii) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(iv) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(v) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(vi) If you cannot obtain any of the above evidence of death of the spouse of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(18) One of the following documents as evidence of the death of all of the children (if any), of the deceased individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of
(f) If you cannot obtain any of the above evidence of death of the children of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(19) One of the following documents as evidence of the death of the parents of the deceased in individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of death of the parents of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
Each surviving sibling should submit the following:
(20) One document as evidence of your relationship to your sibling (the deceased individual described in Part A, above), as follows:
(a) Birth certificate showing that at least one of your deceased parents was also the natural parent of the deceased person described in Part A, above;
(b) If the birth certificate does not show the deceased individual described in Part A, above, as your sibling, a certified copy of:
(i) An acknowledgement in writing signed by the deceased person;
(ii) The public record of birth or a religious record showing that the deceased person was named as your sibling.
(iii) Affidavit of a person who knows that the deceased person was your sibling; or
(iv) Public records, such as records of school or welfare agencies, which show that the deceased individual was named as your sibling.
(v) If you cannot obtain any of the above evidence of your sibling relationship to the deceased individual described in Part A, above, you must submit any other evidence that would reasonably support a belief that a valid sibling relationship actually existed.
(21) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose current legal name is different than that used on such documents should submit a document or affidavit to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving sibling by blood of the deceased individual described in Part A, above, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the sibling and the extent to which you are responsible for the care of the sibling, or your position as an officer of the institution in which the sibling is institutionalized.
I declare under penalty of perjury under the laws of the United States of America that the foregoing documents provided in Part C are true and correct.
12 U.S.C. 3401 et seq.
(a) This part establishes procedures for the National Security Agency/Central Security Service (NSA/CSS) to obtain records from financial institutions and implements 12 U.S.C. 3401-3422, 92 Stat. 3697 (Pub. L. 95-630).
(b) The provisions of this part apply only to financial records maintained by any office of a bank, savings bank, credit card issuer, industrial loan company, trust company, savings and loan, building and loan, homestead association (including cooperative banks), credit union, or consumer finance institution that is located in any district, state or territory of the United States.
(c) All NSA/CSS elements are subject to the provisions of this part.
(a) Financial records shall be sought regarding any individual who is an applicant for employment with the NSA/CSS or who has a current security clearance and/or access granted by the NSA/CSS, and regarding any other individual assigned or detailed to the NSA/CSS when such records are relevant to a final determination with respect to employment, continued assignment or detail, clearance, access or other related actions.
(b) The NSA/CSS shall seek the consent of an individual when obtaining that individual's financial records from a financial institution. Refusal of an individual to provide such consent may be grounds for denying access to all Sensitive Compartmented Information (SCI) and to other classified information in NSA/CSS custody if the circumstances of such refusal or the nature of the records sought prevent the NSA/CSS from determining that such access is or would be clearly consistent with the national security.
(c) Any actions relative to obtaining financial records without an individual's consent shall be conducted in accordance with the provisions of DoD Directive 5400.12, found in 32 CFR part 275, as appropriate.
(a) Representatives of NSA/CSS Security shall use a consent form as set out in Enclosure 2 of 32 CFR part 275, relative to obtaining financial records. A copy of the consent form shall be made a part of the individual's NSA/CSS security file, and an additional record copy of the form kept be security for the purpose of an annual report. A certification form as set out in Enclosure 4 of 32 CFR part 275 shall be provided to financial institutions by security representatives along with the consent form certifying compliance with 12 U.S.C. 3401
(b) Procedures used by security regarding matters referenced in paragraph (a) of this section, shall be established on a case-by-case basis and shall be in consonance with the appropriate provisions of 32 CFR part 275.
(c) Financial records obtained under 12 U.S.C. 3401
(d) Unless alternate procedures are involved as referenced in paragraph (b) of this section, when financial rec-ords have been transferred to another agency, a security representative shall, within 14 days, personally serve or mail to the individual whose records have been transferred, at his or her last known address, a copy of the certificate required by paragraph (c) of this
(e) In cases where another federal agency authorized to conduct foreign intelligence or foreign counterintelligence activities requests a financial record held by the NSA/CSS, and makes such a request for the purpose of conducting that Agency's protective functions, the NSA/CSS may release the information without notifying the individual to whom the financial record pertains.
Security shall compile an annual report setting forth the data required in the Right to Financial Privacy Act of 1978. The report shall be submitted to the Defense Privacy Board, Office of the Deputy Assistant Secretary of Defense (Administration), by 15 February annually, and shall be assigned the Report Control Symbol DD-COMP(A) of 1538.
Secs. 2202, 2301-2314, 70A Stat. 127-133; secs. 1-3, 72 Stat. 1793; 5 U.S.C. 301; 10 U.S.C. 2202, 2301-2314, 42 U.S.C. 1891-1893; E.O. 10521 (19 FR 1499, as amended by sec. 6(b), E.O. 10807, 24 FR 1899.
This part states the policy of the Department of Defense on the administration and support of basic research.
Basic research is that type of research which is directed toward increase of knowledge in science. It is research where the primary aim of the investigator is a fuller understanding of the subject under study.
(a) E.O. 10521, as amended, “Administration of Scientific Research by Agencies of the Federal Government,” (19 FR 1499) provides broad guidelines for administration of basic scientific research by Federal agencies. These guidelines state that while the National Science Foundation shall be increasingly responsible for providing Federal support for general purpose basic research, the conduct and support by other Federal agencies of basic research in areas which are closely related to their missions is recognized as important and desirable and shall continue.
(b) The Director of Defense Research and Engineering is responsible to the Secretary of Defense for the review and direction of the basic research program of the military departments and other agencies of the Department of Defense authorized to conduct or support basic research, and shall ensure that this program is executed according to the provisions of E.O. 10521. This review will be of maximum effectiveness if all elements of the Department adhere to the same fundamental principles in their conduct and support of basic research.
(a) Basic research is essential to the development of military power.
(b) Continuity is essential to successful basic research. Therefore, long-term planning and funding of basic research will be employed to the maximum possible extent.
(c) Basic research may be conducted by competent scientists in universities and non-profit institutions, industry, military laboratories, or elsewhere.
(d) Sustained support of basic research will result in increased effectiveness and economies in military programs.
(e) Free and effective communication among scientists is important to basic research.
(a) It is the policy of the Department of Defense:
(1) To conduct and support a broad and continuing basic research program to provide fundamental knowledge, with emphasis on that related to the needs of the Department of Defense; and
(2) To assure full utilization of our scientific resources and to extend those resources in those areas of science relevant to the mission of the Department of Defense; and
(3) To maintain, through such a program, effective communication among the scientists of the Department of Defense and the scientists of the universities and industry; and
(4) To coordinate this program of basic research with the National Science Foundation; and
(5) To encourage the support of basic research by other government and private agencies.
(a) It is the responsibility of the Director of Defense Research and Engineering to produce, on a continuing basis, a sound basic research program through the coordination and integration of the elements of the program among the military departments and other agencies of the Department of Defense authorized to conduct or support basic research.
(b) The Department of Defense provides support of basic research by:
(1)
(2)
(3)
(c) The military departments and other agencies of the Department of Defense authorized to conduct or support basic research will provide the Director of Defense Research and Engineering with such information as he may require in order to carry out his responsibilities under this part, including annual reports through established administrative and fiscal channels of the following, by contract or grant and dollar value:
(1) Basic research performed in government laboratories.
(2) Basic research grants to educational and nonprofit institutions.
(3) Basic research contracts to educational and nonprofit institutions.
(4) Basic research contracts to industrial contractors, including small business.
(5) Independent basic research recognized as an allowable cost in an advance agreement under the provisions of part 15 of this chapter. Such costs shall be reported via the Assistant Secretary of Defense (Installations and Logistics).
Sec. 24, Foreign Military Sales Act (22 U.S.C. 2764) and Executive Order 11501 (34 FR 20169).
The purpose of this memorandum is to prescribe regulations under which the Secretary of Defense or his designee may, from time to time, by public notice, offer financial institutions the opportunity to bid on the interest rates for the subject agreements. The bids made will be subject to the terms, conditions, and procedures herein set forth, except as they may be supplemented in the public notice or notices issued by the Secretary of Defense or his designee in connection with particular offerings.
(a) The terms
(b) The term
(a) Bids hereunder will be invited through a public notice issued by the Secretary of Defense or his designee which will prescribe the amount of the loan for which bids are invited, the repayment schedule, the conditions under which bidders may specify the rate of interest, and the date and closing hour for receipt of bids.
(b) Accompanying the notice will be the form of the Loan Agreement which the successful bidder must execute with the borrower, except for those terms which will be subject to bidding.
Under section 24 of the Foreign Military Sales Act (22 U.S.C. 2764), any individual, corporation, partnership, or other juridical entity (excluding U.S. Government agencies) will be guaranteed against political and credit risks of nonpayment arising out of their financing of credit sales of defense articles and defense services to friendly countries and international organizations. Section 24 explicitly provides that guarantees thereunder are backed by the full faith and credit of the United States. Fees in the amount of one-fourth of 1 percent of the amount of credits agreed upon shall be charged for such guaranties.
Any individual or organization, syndicates, or other group which intends to submit a bid, must, when required by the notice, give written notice of such intent on the appropriate form at the place and within the time specified in the public notice. Such notice, which shall be given to the Federal Reserve Bank of New York, 33 Liberty Street, New York, NY 10045, will not constitute a commitment to bid.
(a)
(b)
(c)
(a)
(b)
The Secretary of Defense or his designee in his discretion, may (a) revoke the public notice of invitation to bid at any time before opening bids, (b) return all bids unopened either at or prior to the time specified for their opening, (c) reject any or all bids, (d) postpone the time for presentation and opening of bids, and (e) waive any immaterial or obvious defect in any bid. Any action the Secretary of Defense or his designee may take in these respects shall be final. In the event of a postponement, known bidders will be advised thereof and their bids returned unopened.
There is hereby delegated to the Secretary or Acting Secretary of the Treasury the authority, in the name of and title of the Secretary of the Treasury, to invite bids under this memorandum, to issue, modify and revoke public notices, notices, and announcements concerning such bids, to prescribe additional terms and conditions with respect thereto, consistent with this memorandum, to receive, return, open, reject, and accept bids, and to take such other actions as may be necessary and proper to execute this delegation of authority to implement this memorandum, excluding, however, the issuance of guaranties under § 274.4.
The Secretary of Defense reserves the right, at any time, or from time to time, to amend, repeal, supplement, revise or withdraw all or any of the provisions of this memorandum.
92 Stat. 3697 et seq. (12 U.S.C. 3401, et seq.)
This part implements Title 12, U.S.C. section 3401, et seq., Pub. L. 95-630, “Right to Financial Privacy Act of 1978,” and prescribes the procedures for the Department of Defense to use to gain access to financial records maintained by financial institutions.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Defense Investigative Service, and the National Security Agency (hereafter referred to as the “DoD Components”).
(b) Its provisions apply only to financial records maintained by financial institutions as defined in § 275.6(a).
(a) It is the policy of the Department of Defense when obtaining financial records from a financial institution to seek the consent of the customer to whom the record pertains, unless doing so compromises or harmfully delays a legitimate law enforcement inquiry. If the person declines to consent to disclosure, the alternative means of obtaining the records authorized by this part shall be utilized.
(b) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining access to financial records maintained by military banking contractors located outside of the United States, the District of Columbia, Guam, American Samoa, or the Virgin Islands. The procedures outlined in enclosure 5 may be followed in obtaining financial information from these facilities.
The report required by § 275.14 of this part is assigned Report Control Symbol DD-COMP(A)1538.
(a)
(1) Follow the procedures outlined in this part when seeking access to financial records.
(2) Establish procedures for implementing this part within the Component.
(3) Established procedures to ensure that the report required by § 275.14 is forwarded to the Defense Privacy Board, Office of the Deputy Assistant Secretary of Defense (Administration).
(b) The
(1) Prepare a consolidated DoD annual report required by 12 U.S.C. 3421(b) and § 275.14.
(2) Provide policy guidance to DoD Components to implement this part.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) A DoD law enforcement office may issue a formal written request for basic identifying account information to a financial institution relevant to a legitimate law enforcement inquiry. A request may be issued to a financial institution for any or all of the following identifying data:
(1) Name.
(2) Address.
(3) Account Number.
(4) Type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions.
(b) A request for disclosure of the above specified basic identifying information concerning a customer's account shall not require any customer notice (§§ 275.9, 275.11, and 275.13), challenge (§ 275.9) or transfer (§ 275.13) procedures. However, this partial exception for basic identifying data shall not alter the mandatory access requirements set forth in §§ 275.8 and 275.9 to obtain the actual financial record itself.
(c) A format for requesting basic identifying account data is set forth in enclosure 1 of this part.
(a) A DoD law enforcement office or personnel security element seeking access to a person's financial records shall, when feasible, obtain the customer's consent.
(b) Any consent obtained under § 275.8(a) shall:
(1) Be in writing, signed, and dated.
(2) Identify the particular financial records that are being disclosed.
(3) State that the customer may revoke the consent at any time before disclosure.
(4) Specify the purpose for disclosure and to which agency the records may be disclosed.
(5) Authorize the disclosure for a period not in excess of 3 months.
(6) Contain a Privacy Act advisory statement required by part 286a of this title for a personnel security investigation.
(7) Contain a “Statement of Customer Rights Under the Right to Financial Privacy Act of 1978” (enclosure 2).
(c) Any customer's consent not containing all of the elements listed in § 275.8(b), shall be void. A customer consent form, in a format set forth in enclosure 2, shall be used for this purpose.
(d) A copy of the customer's consent shall be made a part of the law enforcement inquiry or personnel security investigation file.
(e) A certification of compliance with 12 U.S.C. 3401 et seq., in writing (enclosure 4), along with the customer's consent, shall be provided to the financial institution as a prerequisite to obtaining access to financial rec-ords.
(f) The annual reporting requirements of § 275.14 shall apply to any request for access under § 275.8(a).
(a)
(ii) The Inspector General, DoD, shall issue administrative procedures for access to financial records in accordance with established procedures.
(2)
(ii) Unless a delay of notice has been obtained under provisions of § 275.12,
Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this [agency or department] on [date] for the following purpose: [state purpose]. you may have rights under the Right to Financial Privacy Act of 1978.
(iii) In any state or territory of the United States, or in the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands, search warrants signed by installation commanders or military judges shall not be used to gain access to financial -records.
(3)
(b)
(2) A formal written request shall be in a format set forth in enclosure 3 and shall:
(i) State that the request is issued under the Right to Financial Privacy Act of 1978 and the Component's implementation of this part.
(ii) Describe the specific records to be examined.
(iii) State that access is sought in connection with a legitimate law enforcement inquiry.
(iv) Describe the nature of the inquiry.
(v) Be signed by the head of the law enforcement office or a designee.
(3) When a formal written request is issued to a financial institution, a copy of the request shall, at the same time or before, be personally served upon, or mailed to the customer's last known address unless a delay of customer notice has been obtained under § 275.12. The notice to the customer shall be in a format similar to enclosure shall be personally served at least 14 days or mailed at least 18 days prior to the date on which access is sought.
(4) The official who signs the customer notice shall be designated to receive any challenge from the customer.
(5) The customer shall have 14 days to challenge a notice request when personal service is made and 18 days when service is by mail.
(6) Components shall establish procedures to ensure that no access to financial records is attempted before the expiration of the pertinent time period while awaiting receipt of a potential customer challenge, or prior to the adjudication, prescribed by 12 U.S.C. 3410, of any challenge made.
(7) When a customer fails to file a challenge to access to financial records within the pertinent above time periods, or after a challenge is adjudicated in favor of the law enforcement office, the head of the office, or a designee, shall certify in writing to the financial institution that such office has complied with the requirements of 12 U.S.C. 3401 et seq. No access to any financial records shall be made before such certification is given.
(c)
(d)
(a) Except as specified in paragraph (b) of this section, nothing in this part shall apply to requests for financial records in connection with authorized foreign intelligence and foreign counterintelligence activities as defined in E.O. 12036, January 24, 1978.
(b) When a request for financial rec-ords is made under paragraph (a) of this section, a Component official designated by the Secretary of Defense, the Secretary of a Military Department, or the Head of the DoD Component authorized to conduct foreign intelligence and foreign counterintelligence activities shall certify to the financial institution that the requesting Component has complied with the provisions of 12 U.S.C. 3401 et seq. Such certification, in a format similar to enclosure 4 of this part, shall be made before obtaining any records.
(c) A Component requesting financial records under paragraph (a) of this section, may notify the financial institution from which records are sought that section 3414(3) of 12 U.S.C., prohibits disclosure to any person by the institution, its agents, or employees that financial records have been sought or obtained.
(d) The annual reporting requirements of § 275.14 shall apply to any request for access under paragraph (a) of this section.
(a) Except as provided in paragraph (b) and (c) of this section, nothing in this part shall apply to a request for financial records from a financial institution when the law enforcement office making such request determines that a delay in obtaining access to such records would create an imminent danger of:
(1) Physical injury to any person.
(2) Serious property damage.
(3) Flight to avoid prosecution.
(b) When access is made to financial records under paragraph (a) of this section, Component official designated by the Secretary of Defense or the Secretary of a Military Department shall:
(1) Certify in writing, in a format set forth in Enclosure 4 of this part, to the financial institution that the Component has complied with the provisions of 12 U.S.C. 3401 et seq., as a prerequisite to obtaining access.
(2) Submit for filing with the appropriate court a signed sworn statement setting forth the grounds for the emergency access within 5 days of obtaining access to financial records.
(c) After filing of the signed sworn statement required by paragraph (b)(2) of this section, the Component that has obtained access to financial records under paragraph (a) of this section, shall personally serve or mail to the customer a copy of the request to the financial institution and the following notice, unless a delay of notice has been obtained under § 275.12.
Records concerning your transactions held by the financial institution named in the attached request were obtained by [agency or department] under the Right to Financial Privacy Act of 1978 on [date] for the following purpose: [state with reasonable specificity the nature of the law enforcement inquiry]. Emergency access to such records was obtained on the grounds that [state grounds].
Mailings under this paragraph shall be by certified or registered mail to the last known address of the customer.
(d) The annual reporting requirements of § 275.14 shall apply to any access pursuant to paragraph (a) of this section.
(a) The customer notice required by § 275.9(b)(3), § 275.11(c), or § 275.13(c) may be delayed for successive periods of 90 days. The notice required by paragraph (a)(2)(ii) of this section may be delayed for one period of 180 days and successive periods of 90 days. A delay of notice may only be granted by a court of competent jurisdiction and only when not serving the notice would result in:
(1) Endangering the life or physical safety of any person.
(2) Flight from prosecution.
(3) Destruction of or tampering with evidence.
(4) Intimidation of potential witnesses.
(5) Otherwise seriously jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the same degree as the circumstances in paragraphs (a)(1) through (4) of this section.
(b) When a delay of notice is appropriate, legal counsel shall be consulted to obtain such a delay. Application for delays of notice shall be made with reasonable specificity.
(c) Upon the expiration of a delay obtained under paragraph (a) of this section, of a notice required by:
(1) Section 275.9(a)(2)(ii), the law enforcement office obtaining such records shall mail to the customer a copy of the search warrant and the following notice:
Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this [agency or department] on [date]. Notification was delayed beyond the statutory 90-day delay period pursuant to a determination by the court that such notice would seriously jeopardize an investigation concerning [state with reasonable specificity]. You may have rights under the Right to Financial Privacy Act of 1978.
(2) Section 275.9(b)(3), the law enforcement office obtaining such records shall serve personally or mail to the customer a copy of the process or request and the following notice:
Records of information concerning your transactions which are held by the financial institution named in the attached process or request were supplied to or requested by the Government authority named in the process or request on [date]. Notification was withheld pursuant to a determination by the [title of the court so ordering] under the Right to Financial Privacy Act of 1978 that such notice might [state reason]. The purpose of the investigation or official proceeding was [state purpose with reasonable specificity].
(3) Section 275.11(c), the law enforcement office obtaining financial records shall serve personally or mail to the customer a copy of the request and the notice required by § 275.11(c).
(4) Section 275.13(c), the law enforcement office or personnel security element transferring such records shall serve personally or mail to the customer the notice required by § 275.13(c).
(d) The annual reporting requirements of § 275.14 shall apply to any request for access under the delay of notice.
(a) Financial records obtained under 12 U.S.C. 3401 et seq., shall be marked:
This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to another federal agency or department without prior compliance with the transferring requirements of 12 U.S.C. 3412.
(b) Financial records obtained under the provisions of 12 U.S.C. 3401 et seq., shall not be transferred to another agency or department outside the Department of Defense unless the head of the transferring law enforcement office, personnel security element, or delegate certifies in writing that there is reason to believe that the records are relevant to a legitimate law enforcement inquiry within the jurisdiction of the receiving agency or department. Such certificates shall be maintained with the DoD Component copy of the released records.
(c) Unless a delay of customer notice has been obtained under § 275.12, when financial information is transferred under paragraph (b) of this section the law enforcement office or personnel security element shall within 14 days, personally serve or mail to the customer, at his or her last known address, a copy of the certificate required by paragraph (b) of this section, and the following notice:
Copies of or information contained in your financial records lawfully in possession of (name of Component) have been furnished to (name of agency) pursuant to the Right to Financial Privacy Act of 1978 for the following purposes: [state the nature of the law enforcement inquiry with reasonable specificity]. If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Financial Privacy Act of 1978 or the Privacy Act of 1974.
(d) If a request for release of information is from a federal agency authorized to conduct foreign intelligence or
(e) Whenever financial data obtained under this part is incorporated into a report of investigation or other correspondence, precautions must be taken to ensure that:
(1) The reports or correspondence are not distributed outside the Department of Defense except in compliance with paragraphs (b) and (c) of this section; and
(2) The report or correspondence contains an appropriate warning restriction on the first page or cover.
(f) A suggested restrictive legend for use on the first page or cover sheet of reports or other correspondence follows:
Some of the information contained herein (cite specific paragraph) is financial record information which was obtained pursuant to the Right to Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not be released to another federal agency or department outside the Department of Defense without compliance with the specific requirements of 12 U.S.C. 3412.
(a) Each affected DoD Component shall compile an annual report setting forth the following for the preceding calendar year:
(1) The number of requests for access to financial institutions specifying the types of access and any other information deemed relevant or useful.
(2) The number of customer challenges to access and whether they were successful.
(3) The number of transfers to agencies outside of the Department of Defense of information obtained under this part.
(4) The number of customers challenges to the transfer of information and whether they were successful.
(5) The number of applications for delay of notice, the number granted, and the names of the officials requesting such delays.
(6) The number of delay of notice extensions sought and the number granted.
(7) The number of refusals by financial institutions to grant access by category of authorization, such as, customer consent or formal written request.
(b) This report shall be submitted to the Defense Privacy Board, Office of the Deputy Assistant Secretary of Defense (Administration), by February 15 annually.
Dear Mr./Mrs. ______. In connection with a legitimate law enforcement inquiry and pursuant to section 3413(g) of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., you are requested to provide the following account information: [Name, address, account number, and type of account of any customer or ascertainable group of customers associated with a certain class of financial transactions as set forth in § 275.7.]
I hereby certify, pursuant to section 3403(b) of the Right of Financial Privacy Act of 1978, that the provisions of the Act have been complied with as to this request for account information.
Under section 3417(c) of the Act, good faith reliance upon this certification relieves your institution and its employees and agents of any possible liability to the subject in connection with the disclosure of the requested financial records.
Pursuant to section 3404(a) of the Right to Financial Privacy Act of 1978, I, [Name of customer], having read the explanation of my rights on the reverse side, hereby authorize the [Name and address of financial institution] to disclose these financial rec-ords: [List the particular financial records] to [DoD Component] for the following purpose(s): [Specify the purpose(s)].
I understand that this authorization may be revoked by me in writing at any time before my records, as described above, are disclosed, and that this authorization is valid for no more than three months from the date of my signature.
Federal law protects the privacy of your financial records. Before banks, savings and loan associations, credit unions, credit card issuers, or other financial institutions may give financial information about you to a federal agency, certain procedures must be followed.
You may be asked to consent to the financial institution making your financial rec-ords available to the Government. You may withhold your consent, and your consent is not required as a condition of doing business with any financial institution. If you give your consent, it can be revoked in writing at any time before your records are disclosed. Furthermore, any consent you give is effective for only three months, and your financial institution must keep a record of the instances in which it discloses your financial information.
Without your consent, a federal agency that wants to see your financial records may do so ordinarily only by means of a lawful subpoena, summons, formal written request, or search warrant for that purpose. Generally, the federal agency must give you advance notice of its request for your records explaining why the information is being sought and telling you how to object in court. The federal agency must also send you copies of court documents to be prepared by you with instructions for filling them out. While these procedures will be kept as simple as possible, you may want to consult an attorney before making a challenge to a federal agency's request.
In some circumstances, a federal agency may obtain financial information about you without advance notice or your consent. In most of these cases, the federal agency will be required to go to court for permission to obtain your records without giving you notice beforehand. In these instances, the court will make the Government show that its investigation and request for your rec-ords are proper.
When the reason for the delay of notice no longer exists, you will usually be notified that your records were obtained.
Generally, a federal agency that obtains your financial records is prohibited from transferring them to another federal agency unless it certifies in writing that the transfer is proper and sends a notice to you that your records have been sent to another agency.
If the federal agency or financial institution violates the Right to Financial Privacy Act, you may sue for damages or seek compliance with the law. If you win, you may be repaid your attorney's fee and costs.
If you have any questions about your rights under this law, or about how to consent to release your financial records, please call the official whose name and telephone number appears below:
Dear Mr./Mrs. ______. In connection with a legitimate law enforcement inquiry and pursuant to section 3402(5) and section 3408 of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and [cite Component's implementation of this part], you are requested to provide the following account information pertaining to the subject:
The [DoD Component] is without authority to issue an administrative summons or subpoena for access to these financial rec-ords which are required for [Describe the nature or purpose of the inquiry].
A copy of this request was [personally served upon or mailed] to the subject on [Date] who has [10 or 14] days in which to challenge this request by filing an application in an appropriate United States district court if the subject desires to do so.
Upon the expiration of the above mentioned time period and absent any filing or
Dear Mr./Mrs. ______. I certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., that the applicable provisions of that statute have been complied with as to the [Customer's consent, search warrant or judicial subpoena, formal written request, emergency access, as applicable] presented on [Date], for the following financial records of [Customer's name]:
Pursuant to section 3417(c) of the Right to Financial Privacy Act of 1978, good faith reliance upon this certificate relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of these financial records.
(a) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining access to financial records maintained by military banking contractors in overseas or other financial institutions in offices located on DoD installations outside the United States, the District of Columbia, Guam, American Samoa, or the Virgin Islands. The purpose of this part is to describe a uniform procedure for access to the financial records of these institutions.
(b) Access to financial records maintained by military banking contractors in overseas areas or other financial institutions located on DoD installations outside the United States, the District of Columbia, Guam, American Samoa or the Virgin Islands is preferably obtained by customer consent. However, in those cases where it would not be appropriate to obtain this consent or where such consent is refused and the financial institution is not otherwise willing to provide access to its records the law enforcement activity may seek access by the use of a search authorization issued by the appropriate military official. This search authorization shall be issued in accordance with established Component procedures and the Military Rules of Evidence.
(c) Information obtained under this enclosure shall be properly identified as financial information and transferred only where an official need-to-know exists. Failure to identify or limit access in accordance with this paragraph does not render the information inadmissible in courts-martial or other proceedings.
(d) Access to financial records maintained by all other financial institutions overseas by law enforcement activities shall be in accordance with the local foreign statutes or procedures governing such access.
31 U.S.C. 3807.
This part establishes uniform policies, assigns responsibilities, and prescribes procedures for implementation of Pub. L. 99-509.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments; the Office of the Inspector General, Department of Defense (OIG, DoD); the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
It is DoD policy to redress fraud in DoD programs and operations through
(a) The
(b) The
(1) Establish procedures for carrying out the duties and responsibilities of the authority head, Department of Defense, which have been delegated to the GC, DoD, as set forth in appendix of this part.
(2) Establish procedures for carrying out the duties and responsibilities for appointment and support of presiding officers, as set forth in appendix of this part; and
(3) Review and approve the regulations and instructions required by this section to be submitted for approval by the GC, DoD.
(c) The
(1) Establish procedures for carrying out the duties and responsibilities of the “authority head” and of the “reviewing officials” for their respective Departments, and for obtaining and supporting presiding officers from other Agencies as specified in Office of Personnel Management (OPM) regulations; (see appendix of this part).
(2) Make all regulations or instructions promulgated subject to the approval of the GC, DoD; and
(3) Delegate duties as appropriate.
(d) The
1. The Department of Defense has the authority to impose civil penalties and assessments against persons who make, submit or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents.
2. This appendix:
a. Establishes administrative policies and procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents;
b. Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
3. The uniform policies and procedures established by this enclosure are binding on the authorities and authority heads in the Department of Defense and Military Departments. Additional administrative regulations necessary to carry out the requirements of the PFCRA and this part may be written by the authority heads. Any such regulations shall be consistent with the provisions of this appendix.
Information sufficient to support the reasonable belief that a particular act or omission has occurred.
a. The Department of Defense, which includes OSD, Organization of the Joint Chiefs of Staff (OJCS), Unified and Specified Commands, Defense Agencies, and DoD Field Activities.
b. The Department of the Army.
c. The Department of the Navy.
d. The Department of the Air Force.
a. For the Department of Defense, the Deputy Secretary of the Department of Defense or an official or employee of the Department of Defense or the Military Departments designated in writing by the Deputy Secretary of Defense.
b. For the respective Military Departments, the Secretary of the Military Department or an official or employee of the Military Department designated in regulations
In the context of statements, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling status, or loan guarantee.
Any request, demand, or submission made as follows:
a. To the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
b. To a recipient of property, services, or money from the authority or to a party to a contract with the authority:
(1) For property or services if the United States:
(a) Provided such property or services;
(b) Provided any portion of the funds for the purchase of such property or services; or
(c) Will reimburse such recipient or party for the purchase of such property or services; or
(2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States:
(a) Provided any portion of the money requested or demanded; or
(b) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
(3) Made to the authority that has the effect of decreasing an obligation to pay or account for property, services, or money.
The administrative complaint served by the reviewing official on the defendant under section G., below.
Any person alleged in a complaint under section G., below, to be liable for a civil penalty or assessment under Section C., below.
The U.S. Army Criminal Investigative Command, Naval Security and Investigative Command, U.S. Air Force Office of Special Investigations, and the Defense Criminal Investigative Service.
The U.S. Government.
A natural person.
The Written decision of the presiding officer required by section J. or KK., below. This includes a revised initial decision issued following a remand or a motion of reconsideration.
a. The IG, DoD; or
b. An officer or employee of the OIG designated by the IG;
c. Who, if a member of the Armed Forces of the United States on active duty, is serving in Grade 0-7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for Grade GS-16 under the General Schedule.
A person who, with respect to a claim or statement:
a. Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
b. Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
c. Acts in reckless disregard of the truth or falsity of the claim or statement.
Includes the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made shall likewise include the corresponding forms of such terms.
Any individual, partnership, corporation, association or private organization, and includes the plural of that term.
The evidence necessary to support a presiding officer's decision that a violation of the PFCRA has occurred. Evidence that leads to the belief that what is sought to be proved is more likely true than not true.
An officer or employee of the Department of Defense or an employee detailed to the Department of Defense from another agency who:
a. Is selected under 5 U.S.C., chapter 33, pursuant to the competitive examination process applicable to administrative law judges;
b. Is appointed by the authority head of DoD to conduct hearings under this part for cases arising in the Department of Defense or the Military Departments;
c. Is assigned to cases in rotation so far as practicable;
d. May not perform duties inconsistent with the duties and responsibilities of a presiding officer;
e. Is entitled to pay prescribed by the Office of Personnel Management (OPM) independently of ratings and recommendations made by the authority and in accordance with 5 U.S.C., chapters 51 and 53, subchapter III;
f. Is not subject to a performance appraisal pursuant to 5 U.S.C., chapter 43; and
g. May be removed, suspended, furloughed, or reduced in grade or pay only for good cause established and determined by the Merit Systems Protection Board (MSPB) on the record after opportunity for hearing by such Board.
An Attorney-at-law duly licensed in any State, commonwealth, territory, the District of Columbia, or foreign country, who enters his or her appearance in writing to represent a party in a proceeding under this part, or an officer, director, or employee of a defendant or of its affiliate.
a. In all cases arising in the Department of Defense and any of the Military Departments, the reviewing official shall be an officer or employee of an authority as follows:
(1) Who is designated by the authority head to make the determination required under section E., below, of this enclosure;
(2) Who, if a member of the Armed Forces of the United States on active duty, is serving in Grade 0-7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for Grade GS-16 under the General Schedule; and
(3) Who is as follows:
(a) Not subject to supervision by, or required to report to, the investigating official;
(b) Not employed in the organizational unit of the authority in which the investigating official is employed; and
(c) Not an official designated to make suspension or debarment decisions.
b. The General Counsel, Defense Logistics Agency (GC, DLA), shall be the reviewing official for all cases involving a claim or statement made to the DLA or any other part of the Department of Defense other than a Military Department or the National Security Agency (NSA). The General Counsel, National Security Agency (GC, NSA), shall be the reviewing official for all cases involving claims or statements made to that Agency. The General Counsel, Defense Logistics Agency (GC, DLA), and GC, NSA, may redelegate their authority to act as reviewing officials to any individual(s) meeting the criteria set out in subparagraph (1) of this section.
c. The authority head of each Military Department shall select a reviewing official, who shall review all cases involving a claim or statement that was made to their Department.
Any written repesentation, certification, affirmation, document, record, accounting, or bookkeeping entry made:
a. With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
b. With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from the authority, or any State, political subdivision of a State, or other party; if the U.S. Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the U.S. Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
a. Any person who makes a claim that the person knows or has reason to know:
(1) Is false, fictitious, or fraudulent;
(2) Includes or is supported by a written statement that asserts a material fact that is false, fictitious, or fraudulent;
(3) Includes or is supported by any written statement that:
(a) Omits a material fact;
(b) Is false, fictitious, or fraudulent as a result of such omission; and
(c) Is a statement in which the person making such statement has a duty to include such material fact; or
(4) Is for payment for the provision of property or services that the person had not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such claim.
b. Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
c. A claim shall be considered made to an authority, recipient, or party when such claim is received by an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of such authority, recipient, or party.
d. Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, service, or money is actually delivered or paid.
e. If the Government has made any payment (including transferred property or provided services) on a claim, a person subject
a. Any person who makes a written statement that:
(1) The person knows or has reason to know the following:
(a) Asserts a material fact that is false, fictitious, or fraudulent; or
(b) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in such statement; and
(2) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each statement.
b. Each written representation, certification, or affirmation constitutes a separate statement.
c. A statement shall be considered made to an authority when such statement is received by an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of such authority.
3. No proof of specific intent to defraud is required to establish liability under this section.
4. In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held jointly and severally liable for a civil penalty with respect to such claims or statements.
5. In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services) an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
1. If the investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted, then:
a. The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought;
b. The investigating official may designate a person to act on his or her behalf to receive the documents sought; and
c. The person receiving such subpoena shall be required to tender to the investigating official, or to the person designated to receive the documents, a certification that the documents sought have been produced, or that such documents are not available and the reasons therefor, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
2. If the investigating official concludes that an action under the PFCRA may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the appropriate reviewing official(s). In instances where the false claim or false statement involves more than one authority within the Department of Defense, or where the investigating official finds that more than one case has arisen from the same set of facts, the investigating official may, at his or her sole discretion, refer the case(s) to the reviewing official of one of the affected authorities. That reviewing official shall consolidate the claims and statements and act for all. Nothing in this subection confers any right in any party to the consolidation or severance of any case(s), although presiding officers may, at their sole discretion, entertain motions to consolidate or sever.
3. Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations directly to the Department of Justice for suit under 18 U.S.C. 287 or 31 U.S.C. 3729 and 3730, False Claims Act, or other civil relief, or to preclude or limit such official's discretion to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
4. Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.
5. Nothing in this section shall preclude or limit the investigating official's authority to obtain the assistance of any investigative units of the Department of Defense, including those of the Military Departments. In this regard, appropriate investigation may be conducted by the Defense criminal investigative organizations and other investigative elements of the Military Departments and Defense Agencies.
1. If, based on the report of the investigating official under subsection D.2., above, the reviewing official determines that there is adequate evidence to believe that a person is liable under section C., above, the reviewing official shall transmit to the Attorney
2. Such notice shall include the following:
a. A statement of the reviewing official's reasons for issuing a complaint;
b. A statement specifying the evidence that supports the allegations of liability;
c. A description of the claims or statements upon which the allegations of liability are based;
d. An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of section C., above.
e. A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
f. A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
1. The reviewing official may issue a complaint under section G., below, only if:
a. The Attorney General or an Assistant Attorney General designated by the Attorney General approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1); and
b. In the case of allegations of liability under subsection C.1., above, with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in subsection 2. of this section), the amount of money or the value of property or services demanded or requested in violation of subsection C.1., above, does not exceed $150,000.00;
2. For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission.
3. Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person's claims that are unrelated or were not submitted simultaneously, regardless of the amount of money or the value of property or services demanded or requested.
4. In any case that involves claims or statements made to more than one entity within the Department of Defense or the Military Departments, or the reviewing officials having responsibility for each such entity, as stated in subsection D.2., above, shall have concurrent jurisdiction to make the required determinations under this section. In any such case, the responsible reviewing officials shall coordinate with each other prior to making any determination under this section. Where more than one case arises from the same set of facts, such cases shall be consolidated to the degree practicable, although the reviewing official shall have absolute discretion to make such determination. The requirements of this paragraph do not confer any procedural or substantive rights upon individuals, associations, corporations, or other persons or entities who might become defendants under the PFCRA.
1. On or after the date the Attorney General or an Assistant Attorney General designated by the Attorney General approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in section H., below.
2. The complaint shall state the following:
a. The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
b. The maximum amount of penalties and assessments for which the defendant may be held liable;
c. Instructions for filing an answer to a request including a specific statement of the defendant's right to request a hearing, by filing an answer and to be represented by a representative; and
d. That failure to file an answer within 30 days of service of the complaint shall result in the imposition of penalties and assessments without right to appeal, consistent with the provisions of section J., below.
3. At the same time the reviewing official serves the complaint, he or she shall notify the defendant with a copy of this part and any applicable implementing regulations.
1. Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
2. Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service may be made by the following:
a. Affidavit of the individual serving the complaint by delivery;
b. A United States Postal Service return receipt card acknowledging receipt; or
c. Written acknowledgement of receipt by the defendant or his or her representative.
1. The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.
2. In the answer, the defendant:
a. Shall admit or deny each of the allegations of liability made in the complaint;
b. Shall state any defense on which the defendant intends to rely;
c. May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
d. Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
3. If the defendant is unable to file an answer meeting the requirements of paragraph 2.b of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of subsection 2. of this section. The reviewing official shall, in such event, file promptly with the presiding officer the complaint, the general answer denying liability, and the request for an extension of time as provided in section K., below. For good cause shown, the presiding officer may grant the defendant additional time within which to file an answer meeting the requirements of subsection 2. of this section.
4. The 30-day limitation for filing an answer may be tolled for a reasonable period of time by written agreement of the parties and approval of the authority head to allow time for settlement.
1. If the defendant does not file an answer within the time prescribed in subsection I.1., above, and there is no approved written agreement as in subsection I.4, above, tolling the time prescribed, the reviewing official may then refer the complaint to the presiding officer.
2. Upon referral of the complaint pursuant to this section, the presiding officer shall promptly serve on defendant, in the manner prescribed in section H., above, a notice that an initial decision will be issued under this section.
3. Upon referral of the complaint pursuant to this section, the presiding officer shall assume the facts alleged in the complaint to be true and, if such facts establish liability under section C., above, the presiding officer shall issue an initial decision imposing penalties and assessments under the statute.
4. Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under subsection 3. of this section, and the initial decision shall become final and binding upon the parties 30 days after it is issued.
5. If, before such an initial decision becomes final, the defendant files a motion with the presiding officer seeking to reopen on the grounds that good cause prevented the defendant from filing an answer, the initial decision shall be stayed pending the presiding officer's decision on the motion.
6. If, on a motion brought under subsection J.5., above, the defendant can demonstrate good cause excusing the failure to file a timely answer, the presiding officer shall withdraw the initial decision in subsection 3. of this section if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
7. A decision of the presiding officer denying a defendant's motion under subsections 5. and 6. of this section is not subject to reconsideration under section LL., below.
8. The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the presiding officer denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
9. If the defendant files a timely notice of appeal with the authority head, the presiding officer shall forward the record of the proceeding to the authority head.
10. The authority head shall decide expeditiously whether good cause excused the defendant's failure to file a timely answer based solely on the record before the presiding officer.
11. If the authority head decides that good cause excused the defendant's failure to file a timely answer, the authority head shall remand the case to the presiding officer with instructions to grant the defendant an opportunity to answer.
12. If the authority head decides that the defendant's failure to file a timely answer is not excused, the authority head shall approve the initial decision of the presiding officer, which shall become final and binding upon the parties 30 days after the authority head issues such decision.
1. Upon receipt of an answer, the reviewing official shall file the complaint and answer with the presiding officer.
2. To allow time for settlement, referral of complaint and answer to the presiding officer may be delayed for a reasonable period of time if there is a written agreement of the
1. When the presiding officer receives the complaint and answer, the presiding officer shall promptly serve a notice of hearing upon the defendant in the manner prescribed by section H., above. At the same time, the presiding officer shall send a copy of such notice to the representative for the Government.
2. Such notice shall include:
a. The tentative time and place, and the nature of the hearing;
b. The legal authority and jurisdiction under which the hearing is to be held;
c. The matters of fact and law to be asserted;
d. A description of the procedures for the conduct of the hearing;
e. The name, address, and telephone number of the representative of the Government, the defendant, and other parties, if any; and
f. Such other matters as the presiding officer deems appropriate.
The parties to the hearing shall be the defendant and the authority. The reviewing official of each authority shall, with the concurrence of the DoD Component head, designate attorneys within that authority to represent the authority in hearings conducted under this part. Attorneys appointed as authority representatives shall remain under the supervision of their DoD Component.
1. The investigating official and the reviewing official, for any particular case or factually related case, may not do the following:
a. Participate in the hearing as the presiding officer;
b. Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in a public proceeding; or
c. Make the collecting of penalties and assessments under 31 U.S.C. 3806.
2. The presiding officer shall not be responsible to, or subject to the supervision or direction of, the investigating official or the reviewing official.
3. Except as provided in subsection 1. of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
No party or person (except employees of the presiding officer's office) shall communicate in any way with the presiding officer on any matter at issue in a case unless on notice and there is an opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
1. A reviewing official or presiding officer in a particular case may disqualify himself or herself at any time.
2. A party may file a motion for disqualification of the presiding officer or the reviewing official. Such motion, to be filed with the presiding officer, shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
3. Such motion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification or such objections shall be deemed waived.
4. Such affidavit shall state specific facts that support the party's belief that personal bias or other reason for disqualification exists and the time and circumstances of the party's discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.
5. Upon the filing of such a motion and affidavit, the presiding officer shall proceed no further in the case until he or she resolves the matter of disqualification by taking one of the following actions:
a. If the presiding officer determines that a reviewing official is disqualified, the presiding officer shall dismiss the complaint without prejudice;
b. If the presiding officer disqualifies himself or herself, the case shall be reassigned promptly to another presiding officer;
c. The presiding officer may deny a motion to disqualify. In such event, the authority head may determine the matter only as part of his or her review of the initial decision upon appeal, if any.
Except as otherwise limited by this enclosure, all parties may:
1. Be accompanied, represented, and advised by a representative;
2. Participate in any conference held by the presiding officer;
3. Conduct discovery;
4. Agree to stipulations of fact or law, which shall be made part of the record;
5. Present evidence relevant to the issues at the hearing;
6. Present and cross-examine witnesses;
7. Present oral arguments at the hearing, as permitted by the presiding officer; and
8. Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
1. The presiding officer shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
2. The presiding officer has the authority to do the following:
a. Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
b. Continue or recess the hearing in whole or in part for a reasonable period of time;
c. Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
d. Administer oaths and affirmations;
e. Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
f. Rule on motions and other procedural matters;
g. Regulate the scope and timing of discovery;
h. Regulate the course of the hearing and the conduct of representatives and parties;
i. Examine witnesses;
j. Receive, rule on, exclude, or limit evidence;
k. Upon motion of a party, take official notice of facts;
l. Upon motion of a party, decide cases, in whole or in part by summary judgment where there is no disputed issue of material fact;
m. Conduct any conference, argument, or hearing on motions in person or by telephone; and
n. Exercise such other authority as is necessary to carry out the responsibilities of the presiding officer under this Directive.
3. The presiding officer does not have the authority to find Federal statutes or regulations invalid.
1. The presiding officer may schedule prehearing conferences as appropriate.
2. Upon the motion of any party, the presiding officer shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
3. The presiding officer may use prehearing conferences to discuss the following:
a. Simplification of the issues;
b. The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
c. Stipulations and admissions of fact or as to the contents and authenticity of documents;
d. Whether the parties can agree to submission of the case on a stipulated record;
e. Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objections of other parties) and written argument;
f. Limitation of the number of witnesses;
g. Scheduling dates for the exchange of witness lists and of proposed exhibits;
h. Discovery;
i. The time and place for the hearing; and
j. Such other matters as may tend to expedite the fair and just disposition of the proceedings.
4. The presiding officer may issue an order containing all matters agreed upon by the parties or ordered by the presiding officer at a prehearing conference.
1. Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under subsection D.2., above, are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
2. Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed, except if disclosure would violate Rule 6(e) of the Federal Rules of Criminal Procedure.
3. The notice sent to the Attorney General from the reviewing official as described in section E., above, is not discoverable under any circumstances.
4. The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section at any time after service of the complaint.
1. The following types of discovery are authorized:
a. Requests for production of documents for inspection and copying;
b. Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
c. Written interrogatories; and
d. Depositions.
2. For the purpose of this section and sections V. and W., below, the term “documents” includes information, documents, reports, answers, records, accounts, papers,
3. Unless mutually agreed to by the parties, discovery is available only as ordered by the presiding officer. The presiding officer shall regulate the timing of discovery.
4. Motions for discovery may be filed with the presiding officer by the party seeking discovery.
a. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
b. Within 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in section X., below.
c. The presiding officer may grant a motion of discovery only if he finds that the discovery sought:
(1) Is necessary for the expeditious, fair, and reasonable consideration of the issue;
(2) Is not unduly costly or burdensome;
(3) Will not unduly delay the proceeding; and
(4) Does not seek privileged information.
d. The burden of showing that discovery should be allowed is on the party seeking discovery.
e. The presiding officer may grant discovery subject to a protective order under section X., below.
5. Depositions
a. If a motion for deposition is granted, the presiding officer shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held. The presiding officer may order that parties produce deponents and/or documents without the need for subpoena.
b. The party seeking to depose shall serve the subpoena in the manner prescribed in section H., above.
c. The deponent may file with the presiding officer a motion to quash the subpoena or a motion for a protective order within 10 days of service.
d. The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all parties for inspection and copying.
6. Each party shall bear its own costs of discovery.
1. At least 15 days before the hearing or at such other time as may be ordered by the presiding officer, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with subsection GG.2., below. At the time the above documents are exchanged, any party that intends to rely upon the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the presiding officer, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
2. If a party objects, the presiding officer shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the presiding officer finds good cause for the failure or that there is no prejudice to the objecting party.
3. Unless another party objects within the time set by the presiding officer, documents exchanged in accordance with subsection 1. of this section shall be admitted into evidence at the hearing. Later challenges to admissibility at the hearing shall be permitted only upon a showing of good cause for the lateness.
1. A party wishing to procure the appearance and testimony of any individual at the hearing may request that the presiding officer issue a subpoena.
2. A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
3. A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing, unless otherwise allowed by the presiding officer for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
4. The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
5. The party seeking the subpoena shall serve it in the manner prescribed in section H., above. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
6. A party or a representative of the individual to whom the subpoena is directed may file with the presiding officer a motion to quash the subpoena with 10 days after service or on or before the time specified in the subpoena for compliance if it is less than 10 days after service.
1. A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
2. In issuing a protective order, the presiding officer may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense including one or more of the following:
a. That the discovery not be had;
b. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
c. That the discovery may be had only through a method of discovery other than that requested;
d. That classified information not be released unless prior notice and arrangements reasonably acceptable to the representative of the authority are made in coordination with the Defense Investigative Service, and the presiding officer agrees to the use;
e. That certain matters not be inquired into or that the scope of discovery be limited to certain matters;
f. That discovery be conducted with no person except persons designated by the presiding officer;
g. That the contents of discovery or evidence be sealed;
h. That the defendant comply with 32 CFR part 97 concerning official witnesses;
i. That a deposition after being sealed be opened only upon order of the presiding officer;
j. That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
k. That the parties simultaneously file specified documents of information enclosed in sealed envelopes to be opened as directed by the presiding officer.
The party requesting a subpoena shall pay the cost of the witness fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in the United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority a check for witness fees and mileage need not accompany the subpoena.
1. Form
a. Documents filed with the presiding officer shall include an original and two copies.
b. Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the presiding officer, and a designation of the paper (e.g., motion to quash subpoena).
c. Every pleading and paper shall be signed by, and shall contain the address and telephone number of, the party or the person on whose behalf the paper was filed, or his or her representative.
d. Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
2.
3.
1. In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which event it includes the next business day.
2. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal Government shall be excluded from the computation.
3. Where a document has been served or issued by placing it in the mail, an additional 5 days will be added to the time permitted for any response.
1. Any application to the presiding officer for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, the facts alleged, and shall be filed with the presiding officer and served on all other parties.
2. Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The presiding officer may require the oral motions be put in writing.
3. Within 15 days after a written motion is served, or such other time as may be fixed by the presiding officer, any party may file a response to such motion.
4. The presiding officer may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
5. The presiding officer shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.
6. Failure by a party to raise defenses or objections or to make requests that must be made prior to the beginning of the hearing shall constitute waiver thereof, but the presiding officer may grant relief from the waiver for good cause shown.
1. The presiding officer may sanction a person, including any party or representative, for the following:
a. Failing to comply with an order, rule, or procedure governing the proceeding;
b. Failing to prosecute or defend an action; or
c. Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
2. Any such sanction, including but not limited to those listed in subsections 3., 4., and 5. of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
3. When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the presiding officer may:
a. Draw an inference in favor of the requesting party with regard to the information sought;
b. In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
c. Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
d. Strike any part of the pleadings or other submission of the party failing to comply with such request.
4. If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the presiding officer may dismiss the action or may issue an initial decision imposing penalties and assessments.
5. The presiding officer may refuse to consider any motion, request, response, brief, or other document that is not filed in a timely fashion.
1. The presiding officer shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under section C., above, and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
2. The authority shall prove defendant's liability and any aggravating factors by a preponderance of the evidence.
3. The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
4. The hearing shall be open to the public unless otherwise ordered by the presiding officer for good cause shown.
In determining an appropriate amount of civil penalties and assessments, the presiding officer and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose.
1. The hearing may be held as follows:
a. In any judicial district of the United States in which the defendant resides or transacts business;
b. In any judicial district of the United States in which the claim or statement at issue was made; or
c. In such other place, including foreign countries, as may be agreed upon by the defendant and the presiding officer.
2. Each party shall have the opportunity to petition the presiding officer with respect to the location of the hearing.
3. The hearing shall be held at the place and at the time ordered by the presiding officer.
1. Except as provided in subsection 2. of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
2. At the discretion of the presiding officer, testimony may be admitted in the form of a written or videotaped statement or deposition. Any such written or videotaped statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for deposition or cross-examination at the hearing. Prior written or videotaped statements of witnesses proposed to testify at the hearings and deposition transcripts shall be exchanged as provided in subsection V.1., above.
3. The presiding officer shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
a. Make the interrogation and presentation effective for the ascertainment of the truth;
b. Avoid needless consumption of time; and
c. Protect witnesses from harassment or undue embarrassment.
4. The presiding officer shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
5. At the discretion of the presiding officer, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination.
6. Upon motion of any party, the presiding officer shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of the following:
a. A party who is an individual;
b. In the case of a party that is not an individual, an officer or employee of the party appearing for the party as its representative, or designated by the party's representative; or
c. An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
1. The presiding officer shall determine the admissibility of evidence.
2. Except as provided herein, the presiding officer shall not be bound by the Federal Rules of Evidence. However, the presiding officer may apply the Federal Rules of Evidence where appropriate; e.g., to exclude unreliable evidence.
3. The presiding officer shall exclude irrelevant and immaterial evidence.
4. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by consideration of undue delay or needless presentation of cumulative evidence.
5. Evidence shall be excluded if it is privileged under Federal law and the holder of the privilege asserts it.
6. Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
7. The presiding officer shall permit the parties to introduce rebuttal witnesses and evidence.
8. All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the presiding officer pursuant to section X., above.
1. The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the presiding officer at a cost not to exceed the actual cost of duplication.
2. The transcript of testimony, exhibits, and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the presiding officer and the authority head.
3. The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the presiding officer.
4. Funding for the hearing and record, except for the cost of the presiding officer, shall be the responsibility of the authority in which the case arose.
The presiding officer may require or permit the parties to file post-hearing briefs. The presiding officer shall fix the time for filing any such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The presiding officer may permit the parties to file reply briefs.
1. The presiding officer shall issue an initial decision based only on the record that shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
2. The findings of fact shall include a finding on each of the following issues:
a. Whether the claims or statements identified in the complaint, or any portions thereof, violate section C., above; and
b. If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments.
3. The presiding officer shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The presiding officer shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the presiding officer or a notice of appeal with the authority head. If the presiding officer fails to meet the deadline contained in this subsection, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
4. Unless the initial decision of the presiding officer is timely appealed to the authority head, or a motion for reconsideration
1. Except as provided in subsection 4. of this section, any party may file a motion for reconsideration of the initial decision within 20 days of service of the initial decision in the manner set forth in section H., above, for service of the complaint. Service shall be proved in the manner provided in subsection H.2., above.
2. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
3. Responses to such motions shall be allowed only upon request of the presiding officer; however, the presiding officer shall not issue a revised initial determination without affording both parties an opportunity to be heard on the motion for reconsideration.
4. No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
5. The presiding officer may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
6. If the presiding officer denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the presiding officer denies the motion, unless the initial decision is timely appealed to the authority head in accordance with section MM., below.
7. If the presiding officer issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with section MM., below.
1. Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
2. A notice of appeal:
a. May be filed at any time within 30 days after the presiding officer issues an initial or a revised initial decision. If another party files a motion for reconsideration under section LL., above, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration, until the time period for filing a motion for reconsideration under section LL., above, has expired or the motion is resolved;
b. If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the presiding officer denies the motion or issues a revised initial decision, whichever applies;
c. The authority head may extend the initial 30-day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30-day period and shows good cause.
3. If the defendant files a timely notice of appeal with the authority head, the presiding officer shall forward the record of the proceeding to the authority head when:
a. The time for filing a motion for reconsideration expires without the filing of such a motion, or
b. The motion for reconsideration is denied. Issuance of a revised initial decision upon motion for reconsideration shall require filing of a new notice of appeal.
4. A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
5. The representative for the Government may file a brief in opposition to the exceptions within 30 days of receiving the notice of appeal and accompanying brief.
6. There is no right to appear personally before the authority head, although the authority head may at his or her discretion require the parties to appear for an oral hearing on appeal.
7. There is no right to appeal any interlocutory ruling by the presiding officer.
8. In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the presiding officer, unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
9. If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the presiding officer for consideration of such additional evidence.
10. The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment determined by the presiding officer in any initial decision.
11. The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review.
12. Unless a petition for review is filed as provided in 32 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the
13. The authority heads (or their designees) may designate an officer or employee of the authority, who is serving in the grade of GS-17 or above under the General Schedule, or in the Senior Executive Service, to carry out these appellate responsibilities; however, the authority to compromise, settle, or otherwise discretionarily dispose of the case on appeal provided pursuant to subsection MM.10, hereof, may not be so redelegated pursuant to this subsection.
If at any time, the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this Directive with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.
1. An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
2. No administrative stay is available following a final decision of the authority head.
31 U.S.C. 3805 authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessment under this part and specifies the procedures for such review.
31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
The amount of any penalty or assessment that has become final, or for which a judgment has been entered under section QQ., above, or any amount agreed upon in a compromise or settlement under section TT., below, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this section against a refund of an overpayment of Federal taxes then or later owing by the United States to the defendant.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
1. Parties may make offers of compromise or settlement at any time.
2. The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the presiding officer issues an initial decision.
3. The authority head has exclusive authority to compromise or settle a case under this Directive at any time after the date on which the presiding officer issues an initial decision, except during the pendency of any review under section PP., above, or during the pendency of any action to collect penalties as assessments under section QQ., above.
4. The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under section PP., above, of any action to recover penalties and assessments under 31 U.S.C. 3806.
5. The investigating official may recommend settlement terms to the reviewing official or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the Attorney General, as appropriate.
6. Any compromise or settlement must be in writing.
1. The notice of hearing with respect to a claim or settlement must be served in the manner specified in section H., above, within 6 years after the date on which such claim or statement is made.
2. If the defendant fails to file a timely answer, service of a notice under subsection J.2., above, shall be deemed a notice of hearing for purposes of this section.
3. If at any time during the course of proceedings brought pursuant to this section, the authority head receives or discovers any specific information concerning bribery, gratuities, conflict of interest, or other corruption or similar activity in relation to a false claim or statement, the authority head shall immediately report such information to the Attorney General and to the Inspector General, Department of Defense.
The General Counsel for the Department of Defense is designated to carry out the reponsibilities of the authority head of the Department of Defense for the issuance of additional implementing regulations that are necessary to implement PFCRA and this part to decide cases upon appeal, and to hire or designate employees of the Department of Defense to decide cases on appeal. The General Counsel, Department of Defense, is also designated to appoint presiding officers for the Department of Defense, and may assist in the appointment of presiding officers on detail from other Agencies for all authorities within the Department of Defense.
5 U.S.C. 552; 10 U.S.C. 2575; 10 U.S.C. 2771; 10 U.S.C. 4712; 10 U.S.C. 9712; 24 U.S.C. 420; 31 U.S.C. 3529; 31 U.S.C. 3702; 32 U.S.C. 714; and 37 U.S.C. 554.
This part implements policy under 32 CFR part 281 and prescribes procedures for processing and settling personnel and general claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, 32 U.S.C. 714 and for processing requests for an advance decision under 31 U.S.C. 3529.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as “the DoD Components”).
(b) The Coast Guard, when it is not operating as a Service in the Navy under agreement with the Department of Homeland Security, and the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA), under agreements with the Departments of Health and Human Services and Commerce (hereafter referred to collectively as “the non-DoD Components”).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
It is DoD policy that:
(a) Claims shall be settled and advance decisions rendered in accordance with all pertinent statutes and regulations, and after consideration of other relevant authorities.
(b) This part applies to certain claim settlement and advance decision functions that, by statute or delegation, are vested in the Department of Defense or the Secretary of Defense. Appendix B to this part describes the claims included under these functional authorities.
(a) The
(1) Upon the request of the Director, Defense Office of Hearings and Appeals (DOHA), consult on, or render legal opinions concerning, questions of law that arise in the course of the performance of the Director's responsibilities under paragraph (b) of this section.
(2) Render advance decisions under 31 U.S.C. 3529 and oversee the submission of requests for an advance decision arising from the activity of a DoD Component that are addressed to the Director of the Office of Personnel Management or the Administrator General Services in accordance with this part.
(b) The
(1) Consider, and grant or deny, a request by the Secretary concerned under 31 U.S.C. 3702(e) to waive the time limit for submitting certain claims in accordance with 32 CFR part 281 and this part.
(2) Consider appeals from an initial determination, and affirm, modify, reverse, or remand the initial determination in accordance with 32 CFR part 281, this part, and relevant DoD Office of General Counsel opinions.
(c) The
(1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714 in accordance with this part.
(2) Ensure that requests for an advance decision that originate in their organizations are prepared and submitted in accordance with this part.
(3) Pay claims as provided in a final action in accordance with this part.
(d) The
(1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, or 37 U.S.C. 554 in accordance with this part.
(2) Ensure that requests for an advance decision that originate in their organizations are prepared and submitted in accordance with this part.
(3) Pay claims as provided in a final action in accordance with this part.
(a)
(b)
(c)
(d)
(1) The appropriate official for the Component concerned shall pay a claim in accordance with the final action concerning the claim.
(2) Where state law requires, a committee must be appointed for a minor or incompetent person in accordance with State law before payment may be made.
(e)
(f)
The Secretary of Defense is authorized to perform the claims settlement and advance decision functions for claims under the following statutes:
(a) 31 U.S.C. 3702 concerning claims in general when there is no other settlement authority specifically provided for by law.
(b) 10 U.S.C. 2575 concerning the disposition of unclaimed personal property on a military installation.
(c) 10 U.S.C. 2771 concerning the final settlement of accounts of deceased members of the Armed Forces (but not the National Guard).
(d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712 concerning the disposition of the effects of a deceased person who was subject to military law at a place or Command under the jurisdiction of the Army or the Air Force or of a deceased resident of the Armed Forces Retirement Home.
(e) 37 U.S.C. 554 concerning the sale of personal property of members of the Uniformed Services who are in a missing status.
(f) 32 U.S.C. 714 concerning the final settlement of accounts of deceased members of the National Guard.
(a)
(b)
(c)
(1) Provide the claimant's mailing address.
(2) Provide the claimant's telephone number.
(3) State the amount claimed.
(4) State the reasons why the Government owes the claimant that amount.
(5) Have attached copies of documents referred to in the claim.
(6) Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) of the claimant or other persons in support of the claim.
(d)
(e)
(1) If a guardian or committee has not been appointed, a claim submitted on behalf of a minor or incompetent person must:
(i) State the claimant's relationship to the minor or incompetent person.
(ii) Provide the name and address of the person having care and custody of the minor or incompetent person.
(iii) Include an affirmation that any moneys received shall be applied to the use and benefit of the minor or incompetent person, and that the appointment of a guardian or committee is not contemplated.
(2) If a guardian or committee has been appointed, a claim on behalf of a minor or incompetent person must include or have attached a certificate of the court showing the appointment and qualification of the guardian or committee.
(f)
(1) Claimants must submit claims within these statutory time limits:
(i) Claims on account of Treasury checks under 31 U.S.C. 3702(c) must be received within 1 year after the date of issuance.
(ii) Claims under 31 U.S.C. 3702 (b), 10 U.S.C. 2771 and 32 U.S.C. 714 must be received within 6 years of the date the claim accrued. (A claim accrues on the date when everything necessary to give rise to the claim has occurred.) The time limit for claims of members of the Armed Forces that accrue during war or within 5 years before war begins, is 6 years from the date the claim accrued or 5 years after peace is established, whichever is later.
(iii) Claims under 10 U.S.C. 2575(d)(3) must be received within 5 years after the date of the disposal of the property to which the claim relates.
(iv) Claims under 24 U.S.C. 420(d)(1), 10 U.S.C. 4712, and 10 U.S.C. 9712 must be received within 6 years after the death of the deceased resident.
(v) Claims under 37 U.S.C. 554(h) must be received before the end of the 5-year period from the date the net proceeds from the sale of the missing person's personal property are covered into the Treasury.
(2) The time limits set by statute may not be extended or waived.
(g)
(a)
(1) Date stamp the claim on the date received.
(2) Determine whether the claim was received within the required time limit (time limits are summarized at Appendix C to this part, paragraph (f)) and follow the procedures in paragraph (b) of this Appendix if the claim was not timely.
(3) Investigate the claim.
(4) Decide whether the claimant provided clear and convincing evidence that proves all or part of the claim.
(5) Issue an initial determination that grants the claim to the extent proved or denies the claim, as appropriate. The initial determination must state how much of the claim is granted and how much is denied, and must explain the reasons for the determination.
(6) Notify the claimant of the initial determination. The Component must send the claimant a copy of the initial determination and a notice that explains:
(i) The action the Component shall take on the claim, if the initial determination is or becomes a final action (the finality of an initial determination is explained at paragraph (c) of this Appendix); and
(ii) The procedures the claimant must follow to appeal an initial determination that denies all or part of the claim (those appeal procedures are explained at Appendix E to this part), if applicable.
(b)
(1) The initial determination must cite the applicable statute and explain the reasons for the finding of untimely receipt. The Component must send the initial determination to the claimant with a notice that:
(i) States the claim was not received within the statutory time limit and, therefore, may not be considered, unless that finding is reversed on appeal, and explains how the claimant may appeal the finding (those appeal procedures are explained at Appendix E to this part); and either
(ii) If the claim does not qualify under 31 U.S.C. 3702(e), states that the statutory time limit may not be extended or waived; or
(iii) If the claim does qualify under 31 U.S.C. 3702(e), states that the claim may be further considered only if the time limit is waived, and explains how the claimant may apply for a waiver. (Paragraph (d) of this Appendix explains which claims qualify and the procedures for applying for a waiver).
(2) Except in cases where a claimant has applied under paragraph (d) of this Appendix to request a waiver of the time limit, the Component must return the claim to the claimant when the initial determination becomes a final action with a notice that the finding in the initial determination is final and, therefore, the claim may not be considered. If the claim qualifies under 31 U.S.C. 3702(e), the notice must also state that the claimant may resubmit the claim with an application under paragraph (d) of this Appendix.
(c)
(d)
(1) The claim must contain the information and documents that are generally required for claims (those requirements are explained at Appendix C to this part, paragraph (c)).
(2) The Component concerned must investigate the claim and make an initial determination concerning the merits of the claim.
(3) If the initial determination grants all or part of the claim, and if the Secretary concerned agrees with the determination, the Secretary may request or recommend that the time limit be waived.
(i) The Secretary concerned shall forward the request or recommendation to the following address: Defense Office of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-1995.
(ii) The entire record concerning the claim, including the initial determination, must be attached to the request.
(4) The Director, DOHA, must review the request and the written record and must:
(i) Grant the request and waive the statutory time limit, if the Director finds that all or part of the claim has been proven. The Director may also modify the finding concerning the amount of the claim that has been proven.
(ii) Deny the request, if the Director finds that no part of the claim has been proven.
(iii) Notify the Secretary concerned and the claimant of the decision and the reasons for the findings.
(5) In the event the Director, DOHA, denies the request, or grants the request but modifies the finding concerning the amount of the claim proven, the Secretary concerned or the claimant may request reconsideration (the procedures are explained at Appendix E to this part). The Director's decision is a final action if the Director does not receive a request for reconsideration within 30 days of the date of the Director's decision (plus any extension of up to 30 additional days granted by the Director for good cause shown).
(a)
(b)
(c)
(1) Provide the claimant's mailing address;
(2) Provide the claimant's telephone number;
(3) State the amount claimed on appeal, or that the appeal is from a finding of untimely receipt, whichever applies;
(4) Identify specific:
(i) Errors or omissions of material and relevant fact;
(ii) Legal considerations that were overlooked or misapplied; and
(iii) Conclusions that were arbitrary, capricious, or an abuse of discretion;
(5) Present evidence of the correct or additional facts alleged;
(6) Explain the reasons the findings or conclusions should be reversed or modified;
(7) Have attached copies of documents referred to in the appeal; and
(8) Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the claimant or other persons in support of the appeal.
(d)
(1) If the appeal concerns the denial of all or part of the claim and the Component grants the entire claim, or grants the claim to the extent requested in the appeal, the Component must notify the claimant in writing and explain the action the Component shall take on the claim. This is a final action.
(2) If the appeal concerns the untimely receipt of the claim and the Component determines that the claim was received within the time limit required by statute, the Component must notify the claimant in writing and process the claim on the merits.
(3) In all other cases, the Component must forward the appeal to the DOHA in accordance with paragraph (e) of this Appendix. If the appeal concerns an initial determination of untimely receipt, the Component should not investigate, or issue an initial determination concerning, the merits of the claim before forwarding the appeal. The Component must prepare a recommendation and administrative report (as explained in paragraph (f) of this Appendix). The Component must send a copy of the administrative report to the claimant, with a notice that the claimant may submit a rebuttal to the Component (as explained in paragraph (g) of this Appendix).
(e)
The record sent to the DOHA shall include specific identification of any major policy issue(s) and a statement as to whether the amount in controversy exceeds $100,000 either in the instant claim or in the aggregate for directly related claims. If the amount in controversy exceeds $100,000, a full description of the financial impact shall be provided.
(f)
(1) The name of the claimant;
(2) The Component's file reference number;
(3) The Component's recommendation (and the reasons for it) for the disposition of the claim;
(4) Relevant and material documents (such as correspondence, business records, and witness statements), as attachments; and
(5) Complete copies of regulations, instructions, memorandums of understanding, tariffs and/or tenders, solicitations, contracts, or rules cited by the claimant or the Component, if a copy has not been previously provided, or is not available readily via electronic means.
(g)
(1) An explanation of the points and reasons for disagreeing with the report;
(2) The Component's file reference number;
(3) Any documents referred to in the rebuttal; and
(4) Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the claimant or other persons in support of the rebuttal.
(h)
(1) Date stamp the claimant's rebuttal on the date it is received;
(2) Send the entire record to the DOHA, but no earlier than 31 days after the date of the report, or the day after the claimant's rebuttal period, as extended, expires (as explained in paragraph (e) of this Appendix).
(i)
(1) Major policy issues;
(2) Involves a claim that is quasi-contractual in nature and arises from the activity of a DoD Component, but the claim was not settled under usual acquisition procedures; or
(3) When the amounts in controversy exceed $100,000, either for the instant claim or in the aggregate for directly related claims. The written decision must:
(i) Affirm, modify, reverse, or remand the Component's determination (and, if the issue is untimely receipt and there is a finding that the claim was timely received, may either consider and decide the claim on the merits or return the claim to the Component concerned for investigation and initial determination on the merits);
(ii) State the amount of the claim that is granted and the amount that is denied and/or state that the claim was or was not received within the statutory time limit, as appropriate; and
(iii) Explain the reasons for the decision.
(j)
(1) Send the claimant the decision and notify the claimant of:
(i) The appropriate Component action on the claim as a consequence of the decision, if it is or becomes a final action (as explained in paragraph (k) of this Appendix); and
(ii) The procedures under this appendix to request reconsideration (as explained in paragraphs (l) through (n) of this Appendix), if the decision does not grant the claim to the extent requested, or does not contain a finding of timely receipt, as the case may be.
(2) Notify the Component concerned of the decision, and of the appropriate Component action on the claim as a consequence of the decision.
(k)
(l)
(m)
(n)
(o)
(1) No earlier than 31 days after the date of the appeal decision, or the day after the last period for submitting a request, as extended, expires, the DOHA must:
(i) Consider a request or requests for reconsideration;
(ii) Affirm, modify, reverse, or remand the appeal decision (and, if the issue is untimely receipt and there is a finding that the claim was timely received, may either consider and decide the claim on the merits or return the claim to the Component concerned for investigation and initial determination on the merits);
(iii) Prepare a response that explains the reasons for the finding; and
(iv) Send the response to the claimant and the Component concerned and notify both of the appropriate action on the claim.
(2) The response is a final action. It is precedent in the consideration of all claims
(p)
(1) Take administrative notice of matters that are generally known or are capable of confirmation by resort to sources whose accuracy cannot reasonably be questioned.
(2) Remand a matter to the Component with instructions to provide additional information.
(a)
(1) A payment the disbursing official or Head of the Component shall make; or
(2) A voucher presented to a certifying official for certification.
(b)
(1) The Secretary of Defense for requests involving claims under:
(i) 31 U.S.C. 3702 for Uniformed Services members' pay, allowances, travel, transportation, retired pay, and survivor benefits, and by carriers for amounts collected from them for loss or damage to property they transported at Government expense.
(ii) 31 U.S.C. 3702 that are not described in paragraph (b)(1)(i) of this Appendix and that arise from the activity of a DoD Component, when there is no other settlement authority specifically provided by law.
(iii) 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714. Appendix B to this part describes these claims.
(2) The Director of the Office of Personnel Management for requests involving claims for civilian employees' compensation and leave.
(3) The Administrator of General Services for requests involving claims for civilian employees' travel, transportation, and relocation expenses.
(c)
(d)
(1) Specifically request an advance decision pursuant to 31 U.S.C. 3529;
(2) Describe all the relevant facts;
(3) Explain the reasons (both factual and legal) the requester considers the proposed payment to be questionable;
(4) Have attached vouchers, if any, and copies of all other relevant documents relating to the proposed payment;
(5) Have attached a legal memorandum from the General Counsel of the Component concerned that discusses the legality of the proposed payment under the circumstances presented in the request; and
(6) Comply with any other requirements established by the Director of the Office of Personnel Management or the Administrator of General Services.
(e)
(1) If the request is described in paragraph (b)(1) of this Appendix, the GC, DoD must review the request and issue an advance decision, unless the GC, DoD elects to proceed under paragraph (e)(3) of this Appendix.
(i) The GC, DoD must send the decision, through the General Counsel of the Component concerned, to the requester, and must send a copy of the decision to the Director, DOHA for publication according to Appendix A to this part, paragraph (f).
(ii) The decision is controlling in the case; the reliance of certifying and disbursing officials on it in their disposition of the case is evidence that those officials have exercised due diligence in the performance of their duties.
(iii) An advance decision is precedent in similar claims under this part unless otherwise stated in the decision.
(2) If the request is not described in paragraph (b)(1) of this Appendix, the GC, DoD must review the request and either:
(i) Forward the request to the appropriate advance decision authority and notify the requester of that action; or
(ii) Return the request, through the General Counsel of the Component concerned, to the requester, with a memorandum explaining that under existing legal authorities a request for an advance decision is not necessary. After considering the memorandum, the requester may resubmit the request, through the General Counsel of the Component concerned, to the GC, DoD. The GC, DoD must forward the request to the appropriate advance decision authority, and notify the requester of that action.
(3) If the request is described in paragraph (b)(1) of this Appendix, and the claim is for not more than $250, the GC, DoD may refer the request to the General Counsel, Defense Finance and Accounting Service (DFAS). The General Counsel, DFAS, shall review the request and issue an advance decision.
(i) The General Counsel, DFAS, must send the decision, through the General Counsel of the Component concerned, to the requester, and must send a copy of the decision to the GC, DoD.
(ii) The decision is controlling in the case; the reliance of certifying and disbursing officials on it in their disposition of the case is evidence that those officials have exercised due diligence in the performance of their duties.
(iii) An advance decision issued by the General Counsel, DFAS, under this paragraph is not precedent in similar claims under this part.
5 U.S.C. 552.
This part:
(a) Reissues 32 CFR part 285 to update policies and responsibilities for the implementation of the DOD FOIA Program under 5 U.S.C. 552.
(b) Continues to authorize, consistent with 5 U.S.C. 552, the publication of 32 CFR part 286, the single DOD Regulation on the FOIA Program.
(c) Continues to delegate authorities and responsibilities for the effective administration of the FOIA Program.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(b) National Security Agency/Central Security Service records are subject to this part unless the records are exempt under section 6 of Pub. L. 86-36 (1959), codified at 50 U.S.C. 402 note. The records of the Defense Intelligence Agency, National Reconnaissance Office, and the National Imagery and Mapping Agency are also subject to this part unless the records are exempt under 10 U.S.C. 424.
It is DoD policy to:
(a) Promote public trust by making the maximum amount of information available to the public, in both hard copy and electronic formats, on the operation and activities of the Department of Defense, consistent with DoD responsibility to ensure national security.
(b) Allow a requester to obtain agency records from the Department of Defense that are available through other public information services without invoking the FOIA.
(c) Make available, under the procedures established by 32 CFR part 286, those agency records that are requested by a member of the general public who explicitly or implicitly cites the FOIA.
(d) Answer promptly all other requests for information, agency records, objects, and articles under established procedures and practices.
(e) Release Agency records to the public unless those records are exempt from mandatory disclosure as outlined in 5 U.S.C. 552.
(f) Process requests by individuals for access to records about themselves contained in a Privacy Act system of records under procedures set forth in DoD 5400.11-R,
(a) The Director, Washington Headquarters Service shall:
(1) Direct and administer the DoD FOIA Program to ensure compliance with policies and procedures that govern the administration of the program.
(2) Issue a DoD FOIA regulation and other discretionary instructions and guidance to ensure timely and reasonably uniform implementation of the FOIA in the Department of Defense.
(3) Internally administer the FOIA Program for OSD, the Chairman of the Joint Chiefs of Staff and, as an exception to DoD Directive 5100.3,
(b) The Director, Administration and Management shall, as the designee of the Secretary of Defense, serve as the sole appellate authority for appeals to decisions of respective Initial Denial Authorities within OSD, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, and the DOD Field Activities.
(c) The General Counsel of the Department of Defense shall provide uniformity in the legal interpretation of this part.
(d) The Heads of the DOD Components shall:
(1) Publish in the
(2) Conduct training on the provisions of this part, 5 U.S.C. 552, and 32 CFR part 286 for officials and employees who implement the FOIA.
(3) Submit the report prescribed in subpart G of 32 CFR part 286.
(4) Make available for public inspection and copying in an appropriate facility or facilities, in accordance with rules published in the
(5) Maintain and make available for public inspection and copying current indices of all (a)(2) records as required by 10 U.S.C. 552(a)(2).
The reporting requirements in subpart G of 32 CFR part 286 have been assigned Report Control Symbol DD-DA&M(a) 1365.
5 U.S.C. 552.
(a)
(b)
(a)
(2) Within the OSD, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence, as Chief Information Officer, in conjunction with the Assistant Secretary of Defense for Public Affairs, is responsible for ensuring preparation of reference material or a guide for requesting records or information from the Department of Defense, subject to the nine exemptions of the FOIA. This publication shall also include an index of all major information systems, and a description of major information and record locator systems, as defined by the Office of the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence. DoD FOIA Components shall coordinate with the appropriate office(s) to insure that this is also accomplished within their department or organization.
(3) DoD Components shall also prepare, in addition to normal FOIA regulations, a handbook for the use of the public in obtaining information from their organization. This handbook should be a short, simple explanation to the public of what the FOIA is designed to do, and how a member of the
(b)
As used in this part, the following terms and meanings shall be applicable:
(2) The following age not included within the definition of the word “record”.
(i) Objects or articles, such as structures, furniture, vehicles and equipment, whatever their historical value, or value as evidence.
(ii) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(iii) 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. Personal papers fall into three categories: those created before entering Government service; private materials brought into, created, or received in the office that were not created or received in the course of transacting Government business; and work-related personal papers that are not used in the transaction of Government business (see “Personal Papers of
(3) A record must exist and be in the possession and control of the Department of Defense at the time of the request to be considered subject to this part and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy a FOIA request. See § 286.4(g)(2) on creating a record in the electronic environment.
(4) Hard copy or electronic records, that are subject to FOIA requests under 5 U.S.C. 552(a)(3), and that are available to the public through an established distribution system, or through the
(a)
(b)
(c)
(d)
(2)
(3)
(i) Compelling need means that the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
(ii) Compelling need also means that the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity. An individual primarily engaged in disseminating information means a person whose primary activity involves publishing or otherwise disseminating information to the public. Representatives of the news media (see § 286.28(e)) would normally qualify as individuals primarily engaged in disseminating information. Other persons must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public.
(A) Urgently needed means that the information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. However, information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media publication or broadcast deadline unrelated to the news breaking nature of the information.
(B) [Reserved]
(iii) A demonstration of compelling need by a requester shall be made by a statement certified by the requester to be true and correct to the best of their knowledge. This statement must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access.
(iv)
(v) These same procedures also apply to requests for expedited processing of administrative appeals.
(e)
(f)
(g)
(2) About 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, Components 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. As used in this sense, a significant expenditure of resources in both time and manpower, that would cause a significant interference with the operation of the Component's automated information system would not be a business as usual approach.
(h)
(2) The following guidelines are provided to deal with generalized 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
(3) Generally, a record is not reasonably described unless the description contains sufficient Category I information to permit the conduct of an organized, non-random search based on the DoD Component'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.
(4) The following guidelines deal with requests for personal records: Ordinarily, when personal identifiers are provided only in connection with a request for records concerning the requester, only records in a Privacy Act System of records that can be retrieved by personal identifiers need be searched. However, if a DoD Component has reason to believe that records on the requester may exist in a record system other than a Privacy Act system, the DoD Component shall search that system under the provisions of the FOIA. In either case, DoD Components may request a reasonable description of the records desired before searching for such records under the provisions of the FOIA and the Privacy Act. If the record is required to be released under the FOIA, the Privacy Act does not bar its disclosure. See paragraph (m) of this section for the relationship between the FOIA and the Privacy Act.
(5) The previous guidelines notwithstanding, the decision of the DoD Component concerning reasonableness of description must be based on knowledge of its files. If the description enables DoD Component personnel to locate the record with reasonable effort, the description is adequate. The fact that a FOIA request is broad or burdensome in its magnitude does not, in and of itself, entitle a DoD Component to deny the request on the ground that it does not reasonably describe the records sought. The key factor is the ability of the DoD Component's staff to reasonably ascertain and locate which records are being requested.
(i)
(2) A DoD Component shall refer for response directly to the requester, a FOIA request for a record that it holds to another DoD Component or agency outside the DoD, if the record originated in the other DoD Component or outside agency. Whenever a record or a
(3) A DoD Component may refer a request for a record that it originated to another DoD Component or agency when the other DoD Component or agency has a valid interest in the record, or the record was created for the use of the other DoD Component or agency. In such situations, provide the record and a release recommendation on the record with the referral action. Ensure you include a point of contact with the telephone number. An example of such a situation is a request for audit reports prepared by the Defense Contract Audit Agency. These advisory reports are prepared for the use of contracting officers and their release to the audited contractor shall be at the discretion of the contracting officer. A FOIA request shall be referred to the appropriate DoD Component and the requester shall be notified of the referral, unless exempt information would be revealed. Another example is a record originated by a DoD Component or agency that involves foreign relations, and could affect a DoD Component or organization in a host foreign country. Such a request and any responsive records may be referred to the affected DoD Component or organization for consultation prior to a final release determination within the Department of Defense. See also § 286.22(e) of this part.
(4) Within the Department of Defense, a DoD Component shall ordinarily refer a FOIA request and a copy of the records it holds, but that was originated by other DoD Component or that contains substantial information obtained from another DoD Component, to that Component for direct response, after direct coordination and obtaining concurrence from the Component. The requester then shall be notified by such referral. DoD Components shall not, in any case, release or deny such records without prior consultation with the other DoD Component, except as provided in § 286.22(e) of this part.
(5) DoD Components that receive referred requests shall answer them in accordance with the time limits established by the FOIA, this part, and their multitrack processing queues, based upon the date of initial receipt of the request at the referring component or agency.
(6) Agencies outside the Department of Defense that are subject to the FOIA.
(i) A DoD Component may refer a FOIA request for any record that originated in an agency outside the Department of Defense 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 DoD Component must respond to the request.
(ii) A DoD Component 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 the Department of Defense 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 DoD Component may only respond directly to the requester after coordination with the outside agency.
(7) DoD Components that receive requests for records of the National Security Council (NSC), the White House, or the White House Military Office (WHMO) shall process the requests. DoD records in which the NSC or White House has a concurrent reviewing interest, and NSC, White House, or WHMO records discovered in DoD Components' files shall be forwarded to the Directorate for Freedom of Information and Security Review (DFOISR). The DFOISR shall coordinate with the NSC, White House, or WHMO and return the records to the originating agency after coordination.
(8) To the extent referrals are consistent with the policies expressed by this section, referrals between offices of the same DoD Component are authorized.
(9) On occasion, the Department of Defense receives FOIA requests for General Accounting Office (GAO) records containing DoD information. Even though the GAO is outside the executive Branch, and not subject to the FOIA, all FOIA requests for GAO documents containing DoD information received either from the public, or on referral from the GAO, shall be processed under the provisions of the FOIA.
(j)
(k)
(2) Combatant Commands shall maintain an electronic reading room for FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with subpart B of this part. Records qualifying for this means of public access also shall be maintained in hard copy for public access at Combatant Commands' respective locations.
(l)
(m)
(1) If the record is required to be released under the FOIA, the Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy Act applies only to U.S. citizens and aliens admitted for permanent residence.
(2) Requesters who seek records about themselves contained in a Privacy Act system of records and who cite or imply only the Privacy Act, will have their requests processed under the provisions of both the Privacy Act and the FOIA. If the Privacy Act system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1) and if the records, or any portion thereof, are exempt under the FOIA, the requester shall be so advised with the appropriate Privacy Act and FOIA exemption. Appeals shall be processed under both Acts.
(3) Requesters who seek records about themselves that 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 the Privacy Act does not apply to these records. Appeals shall be processed under the FOIA.
(4) Requesters who seek records about themselves that 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 provisions of both the Privacy Act and the FOIA. If the Privacy Act system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1) and if the records or any portion thereof, are exempt under the FOIA, the requester shall be so advised with the appropriate Privacy Act and FOIA exemption. Appeals shall be processed under both Acts.
(5) Requesters who seek access to agency records that are not part of a Privacy Act system of records, and who cite or imply the Privacy Act and FOIA, will have their requests processed under the FOIA since the Privacy Act does not apply to these records. Appeals shall be processed under the FOIA.
(6) Requesters who seek access to agency records and who cite or imply the FOIA will have their requests an appeals processed under the FOIA.
(7) Requesters shall be advised in the final response letter which Act(s) was (were) used, inclusive of appeal rights as outlined in paragraphs (m)(1) through (m)(6) of this section.
(n)
(1) Consult with the requester, and ask if the requester views the information as responsive, and if not, seek the requester's concurrence to deletion of non-responsive information without a FOIA exemption. Reflect this concurrence in the response letter.
(2) If the responsive record is unclassified, and the requester does not agree to deletion of non-responsive information without a FOIA exemption, release all non-responsive and responsive information which is not exempt. For non-responsive information that is exempt, notify the requester that even if the information were determined responsive, it would likely be exempt under (state appropriate exemption(s)). Advise the requester of the right to request this information under a separate FOIA request. The separate request shall be placed in the same location within the processing queue as the original request.
(3) If the responsive record is classified, and the requester does not agree to deletion of non-responsive information without a FOIA exemption, release all unclassified responsive and non-responsive information which is not exempt. If the non-responsive information is exempt, follow the procedures in paragraph (n)(2) of this section. The classified, non-responsive information need not be reviewed for declassification at this point. Advise the requester that even if the classified information were determined responsive, it would likely be exempt under 5 U.S.C. 552(b)(1), and other exemptions if appropriate. Advise the requester of the right to request this information under a separate FOIA request. The separate request shall be placed in the same location within the processing queue as the original request.
(o)
(a)
(b)
(1)
(2)
(3)
(i) Those issued for audit, investigation, and inspection purposes, or those that prescribe operational tactics, standards of performance, or criterial for defense, prosecution, or settlement of cases.
(ii) Operations and maintenance manuals and technical information concerning munitions, equipment, systems, and intelligence activities.
(4)
(i) DoD Components shall decide on a case by case basis whether records fall into this category, based on the following factors:
(A) Previous experience of the DoD Component with simular records.
(B) Particular circumstances of the records involved, including their nature and the type of information contained in them.
(C) The identify and number of requesters and whether there is widespread press, historic, or commercial interest in the records.
(ii) This provision is intended for situations where public access in a timely manner is important, and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DoD Components may remove the records from this access medium when the appropriate officials determine that access is no longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed (a)(2) records, and insist that the request be processed, DoD Components shall process the FOIA request. However, DoD Components have no obligation to process a FOIA request for 5 U.S.C.
(a)
(2) Each DoD Component shall promptly publish quarterly or more frequently, and distribute, by sale or otherwise, copies of each index of “(a)(2)” materials or supplements thereto unless it publishes in the
(3) Each index of “(a)(2)” materials or supplement thereto shall be arranged topical 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 DoD Component convenience.
(4) A general index of FOIA-processed (a)(2) records referred to in § 286.7(b)(4), shall be made available to the public, both in hard copy and electronically by December 31, 1999.
(b)
(2) Although not required to be made available in response to FOIA requests or made available in FOIA Reading Rooms, “(a)(1)” materials shall, when feasible, be made available to the public in FOIA reading rooms for inspection and copying, and by electronic means. Examples of “(a)(1)” materials are: descriptions of any agency's central and field organization, and to the extent they affect the public, rules of procedures, descriptions of forms available, instruction as to the scope and contents of papers, reports, or examinations, and any amendment, revision, or report of the aforementioned.
Records that meet the exemption criteria of the FOIA may be withheld from public disclosure and need not be published in the
The following types of records may be withheld in whole or in part from public disclosure under the FOIA, unless otherwise prescribed by law: A discretionary release of a record (see also § 286.4(e)) to one requester shall prevent the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else. However, a FOIA exemption may be invoked to withhold information that is similar or related that has been the subject of a discretionary release. In applying exemptions, the identity of the requester and the purpose for which the record is sought are irrelevant with the exception that an exemption may not be invoked where the particular interest to be protected is the requester's interest. However, if the subject of the record is the requester for the record and the record is contained in a Privacy Act system of records, it may only be denied to the
(a)
(1) The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, Components shall neither confirm nor deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist will itself disclose national security information.
(2) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals additional association or relationship that meets the standard for classification under an existing executive order for classification and DoD 5200.R-1, and is not otherwise revealed in the individual items of information.
(b)
(1) Records qualifying under high (b)(2) are those containing or constituting statues, rules, regulations, orders, manuals, directives, instructions, and security classification guides, the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the Department of Defense. Examples include:
(i) Those operating rules, guidelines, and manuals for DoD investigators, inspectors, auditors, and examiners that must remain privileged in order for the DoD Component to fulfill a legal requirement.
(ii) Personnel and other administrative matters, such as examination questions and answers used in training courses or in the determination of the qualifications of candidates for employment, entrance on duty, advancement, or promotion.
(iii) Computer software, the release of which would allow circumvention of a statute or DoD rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be closely examined to ensure a circumvention possibility exists.
(2) Records qualifying under the low (b)(2) profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose the records. Examples include rules of personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings. DoD Components shall not invoke the low (b)(2) profile.
(c)
(1)
(2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(3) Communication Intelligence, 18 U.S.C. 798.
(4) Authority to Withhold From Public Disclosure Certain Technical Data, 10 U.S.C. 130 and DoD Directive 5230.25.
(5) Confidentiality of Medical Quality Assurance Records: Qualified Immunity for Participants, 10 U.S.C. 1102f.
(6) Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information, 10 U.S.C. 128.
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-3(c)(6).
(8) Protection of Contractor Submitted Proposals, 10 U.S.C. 2305(g).
(9) Procurement Integrity, 41 U.S.C. 423.
(d)
(1) Commercial or financial information received in confidence in connection with loans, bids, contracts, or proposals set forth in or incorporated by reference in a contract entered into between the DoD Component and the offeror that submitted the proposal, as well as other information received in confidence or privileged, such as trade secrets, inventions, discoveries, or other proprietary data. See also § 286.23(h)(2) of this part. Additionally, when the provisions of 10 U.S.C. 2305(g), and 41 U.S.C. 423 are met, certain proprietary and source selection information may be withheld under exemption 3.
(2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor.
(3) Personal statements given in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.
(4) Financial data provided in confidence by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.
(5) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.
(6) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, and technical or scientific data developed in part with Federal funds and in part at private expense, wherein the contractor or subcontractor has retained legitimate proprietary interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement (DFARS), Chapter 2 of 48 CFR, Subpart 227.71-227.72. Technical data developed exclusively with Federal funds may be withheld under Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and DoD Directive 5230.25 (see paragraph (c)(4) of this section).
(7) Computer software which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.
(8) Proprietary information submitted strictly on a voluntary basis, absent any exercised authority prescribing criteria for submission. Examples of exercised authorities prescribing criteria for submission are statutes, Executive Orders, regulations, invitations for bids, requests for proposals, and contracts. Submission of information under these authorities is not voluntary. (See also §286.23(h)(3).)
(e)
(1) Examples of the deliberative process include:
(i) The non factual portions of staff papers, to include after-action reports, lessons learned, and situation reports containing staff evaluations, advice, opinions, or suggestions.
(ii) Advice, suggestions, or evaluations prepared on behalf of the Department of Defense by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.
(iii) Those non factual portions of evaluations by DoD Component personnel of contractors and their products.
(iv) Information of a speculative, tentative, or evaluative nature or such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate government functions.
(v) Trade secret or other confidential research development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interest.
(vi) Those portions of official reports of inspection, reports of the Inspector General, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of one or more DoD Components, when these records have traditionally been treated by the courts as privileged against disclosure in litigation.
(vii) Planning, programming, and budgetary information that is involved in the defense planning and resource allocation process.
(2) If any such intra- or inter-agency record or reasonably segregable portion of such record hypothetically would be made available routinely through the discovery process in the course of litigation with the Agency, then it should not be withheld under the FOIA. If,
(3) Intra- or inter-agency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely made available through discovery, and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though contained in an internal communication, generally cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that subsequently has been made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or incorporately by reference in the record containing the decision.
(f)
(1) Examples of other files containing personal information similar to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.
(ii) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken.
(2) Home addresses, including private e-mail addresses, are normally not releasable without the consent of the individuals concerned. This includes lists of home addresses and military quarters' addresses without the occupant's name. Additionally, the names and duty addresses (postal and/or e-mail) of DoD military and civilian personnel who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.
(i)
(ii) Names and duty addresses (postal and/or e-mail) published in telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the privacy of
(4) A clearly unwarranted invasion of the privacy of third parties identified in a personnel, medical or similar record constitutes a basis for deleting those reasonably segregable portions of that record. When withholding third party personal information from the subject of the record and the record is contained in a Privacy Act system of records, consult with legal counsel.
(5) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, DoD Components shall neither confirm nor deny the existence or nonexistence of the record being requested. This is a Glomar response, and exemption 6 must be cited in the response. Additionally, in order to insure personal privacy is not violated during referrals, DoD Components shall coordinate with other DoD Components or Federal Agencies before referring a record that is exempt under the Glomar concept.
(i) A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.
(ii) Refusal to confirm or deny should not be used when:
(A) The person whose personal privacy is in jeopardy has provided the requester a waiver of his or her privacy rights.
(B) The person initiated or directly participated in an investigation that lead to the creation of any agency record seeks access to that record.
(C) The person whose personal privacy is in jeopardy is deceased, the Agency is aware of that fact, and disclosure would not invade the privacy of the deceased's family. See paragraph (f)(3) of this section.
(g)
(1) This exemption applies, however, only to the extent that production of such law enforcement records or information could result in the following:
(i) Could reasonably be expected to interfere with enforcement proceedings (5 U.S.C. 552(b)(7)(A)).
(ii) Would deprive a person of the right to a fair trial or to an impartial adjudication (5 U.S.C. 552(b)(7)(B)).
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record (5 U.S.C. 552(b)(7)(C)).
(A) this exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, Components shall neither confirm nor deny the existence or nonexistence of the record being requested. This a Glomar response, and exemption (7)(C) must be
(B) A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.
(C) Refusal to confirm or deny should not be used when:
(
(
(D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the Department of Defense; a State, local, or foreign agency or authority; or any private institution that furnishes the information on a confidential basis; and could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation (5 U.S.C. 552(b)(7)(D)).
(E) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law (5 U.S.C. 552(b)(7)(E)).
(F) Could reasonably be expected to endanger the life or physical safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(i) Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related Government litigation or adjudicative proceedings.
(ii) The identify of firms or individuals being investigated for alleged irregularities involving contracting with the Department of Defense when no indictment has been obtained nor any civil action filed against them by the United States.
(iii) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within a DoD Component, or a lawful national security intelligence investigation conducted by an authorized agency or office with a DoD Component. National security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.
(3) The right of individual litigants to investigative records currently available by law (such as, the Jencks Act, 18 U.S.C. 3500)) is not diminished.
(4)
(i) Whenever a request is made that involves access to records or information compiled for law enforcement purposes, and the investigation or proceeding involves a possible violation of criminal law where there is reason to believe that the subject of the investigation or proceeding is unaware of its pendency, and the disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, Components may, during only such times as that circumstances continues, treat the records of information as not subject to the FOIA. In such situation, the response to the requester will state that no records were found.
(ii) Whenever informant records maintained by a criminal law enforcement organization within a DoD Component under the informant's name or personal identifier are requested by a third party using the informant's name or personal identifier, the Component may treat the records as not subject to
(h)
(i)
(a)
(b)
(c)
(d)
(e)
(a)
(2) Within a classified document, an individual page that contains both FOUO and classified information shall be marked at the top and bottom with the highest security classification of information appearing on the page. Individual paragraphs shall be marked at the appropriate classification level, as well as unclassified or FOUO, as appropriate.
(3) Within a classified document, an individual page that contains FOUO information but no classified information shall be marked “For Official Use Only” at the top and bottom of the page, as well as each paragraph that contains FOUO information.
(4) Other records, such as photographs, films, tapes, or slides, shall be marked “For Official Use Only” or “FOUO” in a manner that ensures that a recipient or viewer is aware of the status of the information therein.
(5) FOUO material transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the FOUO marking. This may be accomplished by typing or stamping the following statement on the record prior to transfer:
(b) [Reserved]
(a)
(1) FOUO information may be disseminated within DoD Components and between officials of DoD Components and DoD contractors, consultants, and grantees to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means that preclude unauthorized public disclosure. Transmittal documents shall call attention to the presence of FOUO attachments.
(2) DoD holders of FOUO information are authorized to convey such information to officials in other Departments and Agencies of the Executive and Judicial Branches to fulfill a government function, except to the extent prohibited by the Privacy Act. Records thus transmitted shall be marked “For Official Use Only,” and the recipient shall be advised that the information may qualify for exemption from public disclosure, pursuant to the FOIA, and that special handling instructions do or do not apply.
(3) Release of FOUO information to Members of Congress is governed by DoD Directive 5400.4.
(b)
(c)
(a)
(b)
(a)
(b)
(2) Record copies of FOUO documents shall be disposed of in accordance with the disposal standards established under 44 U.S.C. 3301-3314, as implemented by DoD Component instructions concerning records disposal.
(c)
(a)
(i) Disclosure would result in a foreseeable harm to an interest protected by a FOIA exemption, and the record is subject to one or more of the exemptions of FOIA.
(ii) The record has not been described well enough to enable the DoD Component to locate it with a reasonable amount of effort by an employee familiar with the files.
(iii) The requester has failed to comply with the procedural requirements, including the written agreement to pay or payment of any required fee imposed by the instructions of the DoD Component concerned. When personally identifiable information in a record is requested by the subject of the record or the subject's attorney, notarization of the request, or a statement certifying under the penalty of perjury that their identity is true and correct may be required. Additionally, written consent of the subject of the record is required for disclosure from a Privacy Act System of records, even to the subject's attorney.
(2) Individuals seeking DoD information should address their FOIA requests to one of the addresses listed in appendix B of this part.
(b)
(c)
(d)
(i) In response to a request of a Committee or Subcommittee of Congress, or to either House sitting as a whole in accordance with DoD Directive 5400.4.
(ii) To other Federal Agencies, both executive and administrative, as determined by the head of a DoD Component or designee.
(iii) In response to an order of a Federal court, DoD Components shall release information along with a description of the restrictions on its release to the public.
(2) DoD Components shall inform officials receiving records under the provisions of this paragraph that those records are exempt from public release under the FOIA. DoD Components also shall advise officials of any special handling instructions. Classified information is subject to the provisions of DoD 5200.1-R, and information contained in Privacy Act systems of records is subject to DoD 5400.11-R.
(e)
(2) The affected DoD Component shall review the circumstances of the request for host-nation relations, and provide, where appropriate, FOIA processing assistance to the responding DoD Component regarding release of information. Responding DoD Components shall provide copies of responsive records to the affected DoD Component when requested by the affected DoD Component. The affected DoD Component shall receive a courtesy copy of all releases in such circumstances.
(3) Nothing in paragraphs (e)(1) and (e)(2) of this section shall impede the processing of the FOIA request initially received by a DoD Component.
(a)
(2) The initial determination whether to make a record available upon request may be made by any suitable official designated by the DoD Component in published regulations. The presence of the marking “For Official Use Only” does not relieve the designated official of the responsibility to review the requested record for the purpose of determining whether an exemption under the FOIA is applicable.
(3) The officials designated by DoD Components to make initial determinations should consult with public affairs officers (PAOs) to become familiar with subject matter that is considered to be newsworthy, and advise PAOs of all requests from news media representatives. In addition, the officials should inform PAOs in advance when they intend to withhold or partially withhold a record, if it appears that the withholding action may be challenged in the media.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(c)
(d)
(e)
(2) When a decision is made to release a record, a copy should be made available promptly to the requester once he has complied with preliminary procedural requirements.
(3) When a request for a record is denied in whole or in part, the official designated to respond shall inform the requester in writing of the name and title or position of the official who made the determination, and shall explain to the requester the basis for the determination in sufficient detail to permit the requester to make a decision concerning appeal. The requester specifically shall be informed of the exemptions on which the denial is based, inclusive of a brief statement describing what the exemption(s) cover. When the initial denial is based in whole or in part on a security classification, the explanation should include a summary of the applicable Executive Order criteria for classification, as well as an explanation, to the extent reasonably feasible, of how those criteria apply to the particular record in question. The requester shall also be advised of the opportunity and procedures for appealing an unfavorable determination to a higher final authority within the DoD Component.
(4) The final response to the requester should contain information concerning the fee status of the request, consistent with the provisions of subpart F of this part. When a requester is assessed fees for processing a request, the requester's fee category shall be specified in the response letter. Components also shall provide the requester with a complete cost breakdown (e.g., 15 pages of office 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, etc.) in the response letter.
(5) The explanation of the substantive basis for a denial shall include specific citation of the statutory exemption applied under provisions of this part; e.g., 5 U.S.C. 552(b)(1). Merely referring to a classification; to a “For Official Use Only” marking on the requested record; or to this part or a DoD Component's regulation does not constitute a proper citation or explanation of the basis for invoking an exemption.
(6) When the time for response becomes an issue, the official responsible for replying shall acknowledge to the requester the date of the receipt of the request.
(7) When denying a request for records, in whole or in a part, a DoD Component shall make a reasonable effort to 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 in some other reasonable form of estimation, unless the volume is otherwise indicated through deletions on records disclosed in part.
(8) When denying a request for records in accordance with a statute qualifying as a FOIA exemption 3 statute, DoD Components shall, in addition to sitting the particular statute relied upon to deny the information, also state whether a court has upheld the decision to withhold the information under the particular statute, and a concise description of the scope of the information being withheld.
(f)
(2) With respect to a request for which a written notice has extended the time limits by 10 additional working days, and the Component determines that it cannot make a response determination within that additional
(3) Unusual circumstances that may justify delay are:
(i) The need to search for and collect the requested records from other facilities that are separate from the office determined responsible for a release or denial decision on the requested information.
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are requested in a single request.
(iii) The need for consultation, which shall be conducted with all practicable speed, with other agencies having a substantial interest in the determination of the request, or among two or more DoD Components having a substantial subject-matter interest in the request.
(4) DoD Components may aggregate certain requests by the same requester, or by a group of requesters acting in concert, if the DoD Component reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances set forth in paragraph (f)(3) of this section, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. If the requests are aggregated under these conditions, the requester or requesters shall be so notified.
(5) In cases where the statutory time limits cannot be met and no informal extension of time has been agreed to, the inability to process any part of the request within the specified time should be explained to the requester with a request that he agree to await a substantive response by an anticipated date. If should be made clear that any such agreement does not prejudice the right of the requester to appeal the initial decision after it is made. DoD Components are reminded that the requester still retains the right to treat this delay as a de facto denial with full administrative remedies.
(6) As an alternative to the taking of formal extensions of time as described in § 286.23(f), the negotiation by the cognizant FOIA coordinating office of informal extensions in time with requesters is encouraged where appropriate.
(g)
(h)
(2) If the submitted information is a proposal in response to a solicitation for a competitive proposal, and the proposal is in the possession and control of DoD, and meets the requirements of 10 U.S.C. 2305(g), the proposal shall not be disclosed, and no submitter notification and subsequent analysis is required. The proposal shall be withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and exemption (b)(3) of 5 U.S.C. 552. This statute does not apply to bids, unsolicited proposals, or any proposal that is set forth or incorporated by reference in a contract between a DoD Component and the offeror that submitted the proposal. In such situations, normal submitter notice shall be conducted in accordance with paragraph (h)(1) of this section, except for sealed bids that are opened and read to the public. The term proposal means information contained in or originating from any proposal, including a technical, management, or cost proposal submitted by an offeror in response to solicitation for a competitive proposal, but does not include an offeror's name or total price or unit prices when set forth in a record other than the proposal itself. Submitter notice, and analysis as appropriate, are required for exemption (b)(4) matters that are not specifically incorporated in 10 U.S.C. 2305(g).
(3) If the record or information was submitted on a strictly voluntary basis, absent any exercised authority that prescribes criteria for submission, and after consultation with the submitter, it is absolutely clear that the record or information would customarily not be released to the public, the submitter need not be notified. Examples of exercised authorities prescribing criteria for submission are statutes, Executive Orders, regulations, invitations for bids, requests for proposals, and contracts. Records or information submitted under these authorities are not voluntary in nature. When it is not clear whether the information was submitted on a voluntary basis, absent any exercised authority, and whether it would customarily be released to the public by the submitter, notify the submitter and ask that it describe its treatment of the information, and render an objective evaluation. If the decision is made to release the information over the objection of the submitter, notify the submitter and afford the necessary time to allow the submitter to seek a restraining order, or take court action to prevent release of the record or information.
(4) The coordination provisions of this paragraph also apply to any non-U.S. Government record in the possession and control of the DoD from multi-national organizations, such as the North Atlantic Treaty Organization (NATO), United Nations Commands, the North American Aerospace Defense Command (NORAD), the Inter-American Defense Board, or foreign governments. Coordination with foreign governments under the provisions of this paragraph may be made through Department of State, or the specific foreign embassy.
(i)
(j)
(k)
(1)
(2)
(a)
(b)
(c)
(2) Final determinations on appeals normally shall be made within 20 working days after receipt. When a DoD Component has a significant number of appeals preventing a response determination within 20 working days, the appeals shall be processed in a multitrack processing system, based at a minimum, on the three processing tracks established for initial requests. See § 286.4(d) of this part. All of the provisions of § 286.4(d) apply also to appeals of initial determinations, to include establishing additional processing queues as needed.
(d)
(2) If a determination cannot be made and the requester notified within 20 working days, the appellate authority shall acknowledge to the requester, in writing, the date of receipt of the appeal, the circumstances surrounding the delay, and the anticipated date for substantive response. Requesters shall be advised that, if the delay exceeds the statutory extension provision or is for reasons other than the unusual circumstances identified in § 286.23(f), they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantiative response. The DoD component shall continue to process the case expeditiously.
(e)
(2) Final refusal of an appeal must be made in writing by the appellate authority or by a designated representative. The response, at a minimum, shall include the following:
(i) The basis for the refusal shall be explained to the requester in writing, both with regard to the applicable statutory exemption or exemptions invoked under provisions of the FOIA, and with respect to other appeal matters as set forth in paragraph (a) of this section.
(ii) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review, with the explanation of how that review confirmed the continuing validity of the security classification.
(iii) The final denial shall include the name and title or position of the official responsible for the denial.
(iv) In the case of appeals for total denial of records, the response shall advise the requester that the information being denied does not contain meaningful portions that are reasonably segregable.
(v) When the denial is based upon an exemption 3 statute (subpart C of this part), the response, in addition to citing the statute relied upon to deny the information, shall state whether a court has upheld the decision to withhold the information under the statute, and shall contain a concise description of the scope of the information withheld.
(vi) The response shall advise the requester of the right to judicial review.
(f)
(2) Tentative decisions to deny records that raise new or significant legal issues of potential significance to other Agencies of the Government shall be provided to the DoD Office of the General Counsel.
(a)
(2) A requester may seek an order from a U.S. District Court to compel release of a record after administrative remedies have been exhausted; i.e., when refused a record by the head of a Component or an appellate designee or when the DoD Component has failed to respond with the time limits prescribed by the FOIA and in this part.
(b)
(c)
(d)
(2) If the court determines that the requester's complaint is substantially correct, it may require the United States to pay reasonable attorney fees and other litigation costs.
(3) When the court orders the release of denied records, it may also issue a written finding that the circumstances surrounding the witholding raise questions whether DoD Component personnel acted arbitrarily and capriciously. In these cases, the special counsel of the Merit System Protection Board shall conduct an investigation to determine whether or not disciplinary action is warranted. The DoD Component is obligated to take the action recommended by the special counsel.
(4) The court may punish the responsible official for contempt when a DoD Component fails to comply with the court order to produce records that it determines have been withheld improperly.
(e)
(f)
(a)
(b)
(2) The term “direct costs” means those expenditures a Component actually makes in searching for, reviewing (in the case of commercial requesters), and duplicating documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), and the costs of operating duplicating machinery. These factors have been included in the fee rates prescribed at § 286.29 of this subpart. Not included in direct costs are overhead expenses such as costs of space, heating or lighting the facility in which the records are stored.
(3) The term “search” includes all time spent looking, both manually and electronically, for material that is responsive to a request. Search also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions thereof are responsive to the request. Components should ensure that searches are done in the most efficient and least expensive manner so as to minimize costs for both the Component and the requester. For example, Components should not engage in line-by-line searches when duplicating an entire document known to contain responsive information would prove to be the less expensive and quicker method of complying with the request. Time spent reviewing documents in order to determine whether to apply one or more of the statutory exemptions is not search time, but review time. See paragraph (b)(5) of this section, for the definition of review, and paragraph (c)(5) of this section and § 286.29(b)(2), for information pertaining to computer searches.
(4) The term “duplication” refers to the process of making a copy of a document in response to a FOIA request. Such copies can take the form of paper copy, microfiche, audiovisual, or machine readable documentation (e.g., magnetic tape or disc), among others. Every effort will be made to ensure that the copy provided is in a form that is reasonably usable, the requester shall be notified that the copy provided is the best available and that the Agency's master copy shall be made available for review upon appointment. For duplication of computer tapes and audiovisual, the actual cost, including the operator's time, shall be charged. In practice, if a Component estimates that assessable duplication charges are likely to exceed $25.00, it shall notify the requester of the estimate, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with Component personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(5) The term “review” refers to the process of examining documents located in response to a FOIA request to determine whether one or more of the statutory exemptions permit withholding. It also includes processing the documents for disclosure, such as excising them for release. Review does not include the time spent resolving general legal or policy issues regarding the application of exemptions. It should be noted that charges for commercial requesters may be assessed
(c)
(2) Requesters receiving the first two hours of search and the first one hundred pages of duplication without charge are entitled to such only once per request. Consequently, if a Component, after completing its portion of a request, finds it necessary to refer the request to a subordinate office, another DoD Component, or another Federal Agency to action their portion of the request, the referring Component shall inform the recipient of the referral of the expended amount of search time and duplication cost to date.
(3) The elements to be considered in determining the “cost of collecting a fee” are the administrative costs to the Component of receiving and recording a remittance, and processing the fee for deposit in the Department of Treasury's special account. The cost to the Department of Treasury to handle such remittance is negligible and shall not be considered in Components' determinations.
(4) For the purposes of these restrictions, the word “pages” refers to paper copies of a standard size, which will normally be 8
(5) In the case of computer searches, the first two free hours will be determined against the salary scale of the individual operating the computer for the purposes of the search. As an example, when the direct costs of the computer central processing unit, input-output devices, and memory capacity equal $24.00 (two hours of equivalent search at the clerical level), amounts of computer costs in excess of that amount are chargeable as computer search time. In the event the direct operating cost of the hardware configuration cannot be determined, computer search shall be based on the salary scale of the operator executing the computer search. See § 286.29, this subpart, for further details regarding fees for computer searches.
(d)
(2) When assessable costs for a FOIA request total $15.00 or less, fees shall be waived automatically for all requesters, regardless of category.
(3) Decisions to waive or reduce fees that exceed the automatic waiver threshold shall be made on a case-by-case basis, consistent with the following factors:
(i) Disclosure of the information “is in the public interest because it is likely to contribute significantly to public
(A)
(B)
(C)
(D)
(ii) Disclosure of the information “is not primarily in the commercial interest of the requester.”
(A)
(B)
(4) Components are reminded that the factors and examples used in this subsection are not all inclusive. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each request. When the element of doubt as to whether to charge or waive the fee cannot be clearly resolved, Components should rule in favor of the requester.
(5) In addition, the following circumstances describe situations where waiver or reduction of fees are most likely to be warranted:
(i) A record is voluntarily created to prevent an otherwise burdensome effort to provide voluminous amounts of available records, including additional information not requested.
(ii) A previous denial of records is reversed in total, or in part, and the assessable costs are not substantial (e.g. $15.00-$30.00).
(e)
(2) In order to be as responsive as possible to FOIA requests while minimizing unwarranted costs to the taxpayer, Components shall adhere to the following procedures:
(i) Analyze each request to determine the category of the requester. If the Component determination regarding the category of the requester is different than that claimed by the requester, the Component shall:
(A) Notify the requester to provide additional justification to warrant the category claimed, and that a search for responsive records will not be initiated
(B) Advise the requester that, notwithstanding any appeal, a search for responsive records will not be initiated until the requester indicates a willingness to pay assessable costs appropriate for the category determined by the Component.
(ii) Requesters should submit a fee declaration appropriate for the following categories.
(A)
(B)
(C)
(iii) If the above conditions are not met, then the request need not be processed and the requester shall be so informed.
(iv) In the situations described by paragraphs (e)(2)(i) and (e)(2)(ii) of this section, Components must be prepared to provide an estimate of assessable fees if desired by the requester. While it is recognized that search situations will vary among Components, and that an estimate is often difficult to obtain prior to an actual search, requesters who desire estimates are entitled to such before committing to a willingness to pay. Should Components' actual costs exceed the amount of the estimate or the amount agreed to by the requester, the amount in excess of the estimate or the requester's agreed amount shall not be charged without the requester's agreement.
(v) No DoD Component may require advance payment of any fee; i.e., payment before work is commenced or continued on a request, unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.00. As used in this sense, a timely fashion is 30 calendar days from the date of billing (the fees have been assessed in writing) by the Component.
(vi) Where a Component estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the Component shall notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payments, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment.
(vii) Where a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days from the date of the billing), the Component may require the requester to pay the full amount owed, plus any applicable interest, or demonstrate that he or she has paid the fee, and to make an advance payment of the full amount of the estimated fee before the Component begins to process a new or pending request from the requester. Interest will be at the rate prescribed in 31 U.S.C. 3717, and confirmed with respective Finance and Accounting Offices.
(viii) After all work is completed on a request, and the documents are ready for release, Components may request payment before forwarding the documents, particularly for those requesters who have no payment history, or for those requesters who have failed previously to pay a fee in a timely fashion (i.e., within 30 calendar days from the date of the billing). In the case of the latter, the previsions of paragraph (e)(2)(vii) of this section, apply.
(ix) When Components act under paragraphs (e)(2)(i) through (e)(2)(vii) of this section, the administrative time limits of the FOIA will begin only after the Component has received a willingness to pay fees and satisfaction as to category determination, or fee payments (if appropriate).
(x) Components may charge for time spent searching for records, even if
(3)
(i) The term “commercial use” request refers to a request from, or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category. Components must determine the use to which a requester will put the documents requested. Moreover, where a Component has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, Components should seek additional clarification before assigning the request to a specific category.
(ii) When Components receive a request for documents for commercial use, they should assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commerical requesters (unlike other requesters) are not entitled to two hours of free search time, nor 100 free pages of reproduction of documents. Moreover, commerical requesters are not normally entitled to a waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. However, because use is the exclusive determining criteria, it is possible to envision a commerical enterprise making a request that is not for commercial use. It is also possible that a non-profit organization could make a request that is for commerical use. Such situations must be addressed on a case-by-case basis.
(4)
(5)
(6) Components shall provide documents to requesters in paragraphs (e)(4) and (e)(5) of this section for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible for inclusion in these categories, requesters must show that the request
(7)
(i) The term “representative of the news media” refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not meant to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of “freelance” journalists they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but Components may also look to the past publication record of a requester in making this determination.
(ii) To be eligible for inclusion in this category, a requester must meet the criteria in paragraph (e)(7)(i) of this section, and his or her request must not be made for commercial use. A request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. For example, a document request by a newspaper for records relating to the investigation of a defendant in a current criminal trial of public interest could be presumed to be a request from an entity eligible for inclusion in this category, and entitled to records at the cost of reproduction alone (excluding charges for the first 100 pages).
(iii) “Representative of the news media” does not include private libraries, private repositories of Government records, information vendors, data brokers or similar marketers of information whether to industries and businesses, or other entities.
(8)
(f)
(g)
(h)
(i)
(a)
(b)
(2)
(i)
(ii)
(c)
(d)
(e)
(f)
(g)
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail, etc.
(a)
(b)
(1) The request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable it to submit an offer, or determine whether it is capable of submitting an offer to provide the product to which the
(2) The release of technical data is requested in order to comply with the terms of an international agreement; or
(3) The Component determines in accordance with § 286.28(d)(1), that such a waiver is in the interest of the United States.
(c)
(ii)
(2) Computer search is based on the total cost of the central processing unit, input-output devices, and memory capacity of the actual computer configuration. The wage (based upon the scale in paragraph (c)(1)(i) of this section) for the computer operator and/or programmer determining how to conduct, and subsequently executing the search will be recorded as part of the computer search. See § 286.29(b)(2) for further details regarding computer search.
(3)
(4)
(ii)
(d)
(a)
(2) Existing DoD standards and registered data elements are to be utilized to the greatest extent possible in accordance with the provisions of DoD Manual 8320.1-M,
(3) The reporting requirement outlined in this subpart is assigned Report
(b)
(1)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(2)
(A) Interfere with enforcement;
(B) Fair trial right;
(C) Invasion of privacy;
(D) Protect confidential source;
(E) Disclose techniques; and
(F) Endanger life or safety.
(ii)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(J)
(iii)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4)
(A) Interfere with enforcement;
(B) Fair trial right;
(C) Invasion of privacy;
(D) Protect confidential source;
(E) Disclose techniques; and
(F) Endanger life or safety.
(ii)
(iii)
(5)
(ii)
(iii)
(iv)
(B) If given six pending cases, aged 10, 20, 30, 50, 120, and 200 days from date of receipt, as of the previous September 30th, the total requests pending is six (6). The median age (days) of open requests 40 days (the mean [average] of the two middle numbers in the set, in this case the average of middle values 30 and 50).
(v)
(vi)
(6)
(7)
(i)
(ii)
(iii)
(8)
(9)
(ii)
(iii)
(iv)
(A) Before the close of each fiscal year, the Directorate for Freedom of Information and Security Review (DFOISR) will dispatch the latest OSD Composite Rate Chart for military personnel to DoD Components. This information may be used in computing military personnel costs.
(B) DoD Components should compute their civilian personnel costs using rates from local Office of Personnel Management (OPM) Salary Tables and shall add 16% for benefits.
(C) Data captured on DD Form 2086, Record of Freedom of Information (FOI) Processing Cost and DD Form 2086-1, Record of Freedom of Information (FOI) Processing Cost for Technical Data, shall be summarized and used in computing total costs.
(D) An overhead rate of 25% shall be added to all calculated costs for supervision, space, and administrative support.
(10)
(c)
(a)
(b)
(c)
(1) Familiarize personnel with the requirements of the FOIA and its implementation by this part.
(2) Instruct personnel, who act in FOIA matters, concerning the provisions of this part, advising them of the legal hazards involved and the strict prohibition against arbitrary and capricious withholding of information.
(3) Provide for the procedural and legal guidance and instruction, as may be required, in the discharge of the responsibilities of initial denial and appellate authorities.
(4) Advise personnel of the penalties for noncompliance with the FOIA.
(d)
(e)
AP1.1.1. In accordance with DoD Directive 5400.7
AP1.1.2. The policy change in AP1.1.1. of this appendix authorizes and requires the Combatant Commands to process FOIA requests in accordance with DoD Directive 5400.7 and DoD Instruction 5400.10
Combatant Commanders in Chief shall:
AP1.2.1. Designate the officials authorized to deny initial FOIA requests for records.
AP1.2.2. Designate an office as the point-of-contact for FOIA matters.
AP1.2.3. Refer FOIA cases to the Director, Freedom of Information and Security Review, for review and evaluation when the issues raised are of unusual significance, precedent setting, or otherwise require special attention or guidance.
AP1.2.4. Consult with other OSD and DoD Components that may have a significant interest in the requested record prior to a final determination. Coordination with Agencies outside of the Department of Defense, if required, is authorized.
AP1.2.5. Coordinate proposed denials of records with the appropriate Combatant Command's Office of the Staff Judge Advocate.
AP1.2.6. Answer any request for a record within 20 working days of receipt. The requesters shall be notified that his request has been granted or denied. In unusual circumstances, such notification may state that additional time, not to exceed 10 working days, is required to make a determination.
AP1.2.7. Provide to the Director, Freedom of Information and Security Review when the request for a record is denied in whole or in part, a copy of the response to the requester or the requester's representative, and any internal memoranda that provide background information or rationale for the denial.
AP1.2.8. State in the response that the decision to deny the release of the requested information, in whole or in part, may be appealed to the Director, Administration and Management and Washington Headquarters Services, Directorate for Freedom of Information and Security Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.
AP1.2.9. Upon request, submit to Director, Administration and Management and Washington Headquarters Services a copy of the records that were denied. The Director, Administration and Management and Washington Headquarters Services shall make such requests when adjudicating appeals.
The fees charged for requested records shall be in accordance with subpart F of this part.
Excellent communication capabilities currently exist between the Director, Freedom of Information and Security Review and the Freedom of Information Act Offices of the Combatant Commands. This communication capability shall be used for FOIA cases that are time sensitive.
AP1.5.1. The Combatant Commands shall submit to the Director, Freedom of Information and Security Review, an annual report. The instructions for the report are outlined in subpart G of this part.
AP1.5.2. The annual reporting requirement contained in this part shall be submitted in duplicate to the Director, Freedom of Information and Security Review not later than each November 30. This reporting requirement has been assigned Report Control Symbol DD-DA&M(A) 1365 in accordance with DoD 8910.1-M.
AP2.1.1. The Department of Defense includes the Office of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Military Departments, the Combatant Commands, the Inspector General, the Defense Agencies, and the DoD Field Activities.
AP2.1.2. The Department of Defense does not have a central repository for DoD records. FOIA requests, therefore, should be addressed to the DoD Component that has custody of the record desired. In answering inquiries regarding FOIA requests, DoD personnel shall assist requesters in determining the correct DoD Component to address their requests. If there is uncertainty as to the ownership of the record desired, the requester shall be referred to the DoD Component that is most likely to have the record.
AP2.2.1.
AP2.2.2.
AP2.2.3.
AP2.2.4.
AP2.2.5.
AP2.2.6.
AP2.2.7.
AP2.2.8.
AP2.2.9.
AP2.2.10.
AP2.2.11.
AP2.2.12.
AP2.2.13.
AP2.2.14.
AP2.2.15.
AP2.3.
AP2.3.1.
AP2.3.2.
AP2.3.3.
AP2.3.4.
AP2.3.5.
AP2.3.6.
AP2.3.7.
AP2.3.8.
AP2.3.9.
AP2.3.10.
AP2.3.11.
FOIA requests for National Guard Bureau records may be sent to the Chief, National Guard Bureau, ATTN: NGB-ADM, Room 2C363, 2500 Army Pentagon, Washington, DC 20310-2500.
If there is uncertainty as to which DoD Component may have the DoD record sought, the requester may address a Freedom of Information request to the Directorate for Freedom of Information and Security Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.
Pub. L. 101-189.
This part sets forth Department of Defense (DoD) policy for the release of acquisition-related information.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman, Joint Chiefs of Staff and Joint Staff (CJCS), the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) This part is issued pursuant to section 822 of Public Law 101-189, which requires the Department of Defense to prescribe a single uniform regulation for dissemination of, and access to, acquisition information.
(a)
(b)
(1)
(2)
(ii) Release, access, and dissemination of classified information shall be made through existing security channels in accordance with DoD 5220.22-R;
(3)
(ii)(A)
(
(
(4)
(A) Bid prices submitted in response to a Government solicitation for sealed bids or lists of such bid prices (applicable prior to bid opening only);
(B) Proposed costs or prices submitted in response to a Government solicitation prior to award of the contract, a list of proposed costs or prices;
(C) Source selection plans;
(D) Technical evaluation plans;
(E) Technical evaluations of competing proposals;
(F) Cost or price evaluations of competing proposals;
(G) Competitive range determinations;
(H) Rankings of competitors;
(I) The reports and evaluations or source selection boards, advisory councils, or the source selection authority (SSA); and
(J) Any other information which:
(
(
(ii)
(B)
(
(5)
(ii)(A) Requests for exceptions to this limitation may be granted on a case-by-case basis to meet compelling needs, after coordination with the Office of General Counsel, by the Head of the OSD office responsible for the PPBS phase to which the document or data base pertains; the Under Secretary of Defense (Policy) for the planning phase; the Assistant Secretary of Defense (Program Analysis and Evaluation) for programming; and the Comptroller, DoD for budgeting. A list of the current major documents and data bases for each PPBS phase is in paragraph (B)(5)(11)(C) of this section; all other PPBS materials are also controlled under this policy.
(B) Disclosure of PPBS information to Congress and the General Accounting Office (GAO) is covered by statute and other procedures.
(C) Major PPBS Documents and Data Bases by Phase.
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(iii) Contractor requests for information contained in the National Military Strategy Document (including annexes) and the Chairman's Program Assessment Document (including annexes and comments) shall be forwarded to the CJCS who shall determine on a case-by-case basis what information, if any, is releasable to the contractor.
(6)
(7)
(c)
(a) The Under Secretary of Defense (Acquisition) shall be responsible for establishing uniform policies and procedures for the release of acquisition-related information.
(b) The Under Secretary of Defense (Policy), Assistant Secretary of Defense (Program Analysis and Evaluation) and Comptroller, DoD are responsible for adjudicating requests for access to Planning, Programming and Budgeting information pertaining to their respective phases of the PPB system.
(c) The Head of each DoD Component shall assure that procedures for the release of acquisition-related information are consistent with the policy contained in this Directive and shall not impose any additional restrictions on release of such information. These procedures shall specifically identify the individuals authorized to release and transmit acquisition-related information.
5 U.S.C. 552.
This part assigns responsibilities for the Freedom of Information Act (FOIA) Program for DISA.
This part applies to DISA and the Office of the Manager, National Communications System (OMNCS).
This part is published in accordance with (IAW) the authority contained in 32 CFR part 286. It supplements 32 CFR part 286 to accommodate specific requirements of the DISA FOIA Program. However, 32 CFR part 286 takes precedence and shall be used for all issues not covered by this part.
The DISA FOIA Officer, located at DISA Headquarters, 701 S. Courthouse Road, Arlington, Virginia, is vested with the authority, within DISA, to release documentation for all requests of Agency records received by DISA directorates and field activities. The DISA FOIA Officer will:
(a) Make the materials described in 32 CFR 286.7 available for public inspection and reproduction. (A current index of this material will be maintained in accordance with 32 CFR 286.8).
(b) Establish education and training programs for all DISA employees who contribute to the DISA FOIA Program.
(c) Respond to all requests for records from private persons IAW 32 CFR part 286 whether the requests are received directly by DISA Headquarters or by DISA field activities. Coordinate proposed releases with the General Counsel in any case in which the release is, or may be, controversial. Coordinate all proposed denials with the General Counsel.
(d) Be the DISA principal point of contact for coordination with the Directorate for Freedom of Information and Security Review (DFOISR) Washington Headquarters Services, reference FOIA issues.
(e) Ensure the cooperation of DISA with DFOISR in fulfilling the responsibilities of monitoring the FOIA Program.
(f) Coordinate cases of significance with DFOISR, after coordination with the General Counsel and with the approval of the Chief of Staff, when the issues raised are unusual, precedent setting, or otherwise require special attention or guidance.
(g) Advise DFOISR prior to the denial of a request or prior to an appeal when two or more DoD components are affected by the request for a particular record or when circumstances suggest a potential public controversy.
(h) Ensure completion of the annual reporting requirement contained in 32 CFR part 286.
(a)
(b)
(c)
(1) Make the decision to deny a record in whole or in part; to deny a fee category claim; to deny a request for waiver or reduction in fees; to deny a request to review an initial fee estimate; to deny a request for expedited processing; or to confirm that no records were located during the initial search IAW 5 U.S.C. 552, as supplemented by the guidance provided in 32 CFR part 286
(2) Inform the person denied the basis for the denial of the request and of his or her right to appeal the decision to the Director, DISA, via written correspondence.
(3) Review any appeal the public may consider adverse in nature and ensure that the basis for the determination by the Director, DISA, be in writing, state the reasons for the denial, and inform the requester of his or her right to a judicial review in the appropriate U.S. District Court.
(4) Arrange for the publication of this part in the
(d) Chief, Legal Counsel, Defense Information Technology Contracting Organization (DITCO). The Chief Legal Counsel, DITCO, or, in his or her absence, the Deputy Legal Counsel, DITCO, is vested with same authority and responsibilities, for DITCO, as stated in paragraph (c) of this section.
(e) Administrator, Defense Technical Information Center (DTIC). The Administrator, DTIC, is vested with the same authority and responsibilities, for DTIC, as stated in paragraph (c) of this section.
(a)
(b)
Fees charged to the requester are contained in 32 CFR part 286.
All appeals should be addressed to the Director, DISA, and be postmarked no later than 60 days after the date of the initial denial letter.
An annual report will be furnished to the FOIA Officer by the field activities by 15 October IAW 32 CFR part 286.
Questions on both the substance and procedures of the FOIA and the DISA implementation thereof should be addressed to the FOIA Officer by the most expeditious means possible, including telephone calls, faxes, and electronic mail. FOIA requests should be addressed as follows: Defense Information Systems Agency, 701 S. Courthouse Road, Arlington, VA 22204-2199, Attn: RGC. Calls should be made to (703) 607-6515. Faxed requests should be addressed to the FOIA Officer at (703) 607-4344. Electronic mail requests should be addressed to
The designation “For Official Use Only” will be applied to documents and other material only as authorized by 32 CFR part 286 and DoD 5200.1-R.
5 U.S.C. 552.
This part assigns responsibilities and establishes policies and procedures for a uniform DCAA Freedom of Information Act (FOIA) program pursuant to the provisions of the Freedom of Information Act, 5 U.S.C. 552, as implemented by DoD Directive 5400.7
DCAA Regulation 5410.8, DCAA Freedom of Information Act (FOIA) Program, dated 17 May 1989; DCAAR 5200.1, Control and Protection of “For Official Use Only” Information, dated 12 November 1985; and DCAA HQ Instruction 5200.9, Physical Security of “For Official Use Only” Information within Headquarters, DCAA, dated 20 November 1974, are superseded.
This rule applies to all DCAA organizational elements, and is to govern written responses by DCAA officials for requests from members of the public for permission to examine, or to be provided with copies of DCAA records.
Agency policy and procedures are those cited in DoD 5400.7-R. In addition, DCAA will:
(a) Promote public trust by making the maximum amount of information available to the public, upon request, pertaining to the operation and activities of the Agency.
(b) Allow a requester to obtain records from the Agency that are available through other public information services without invoking the FOIA.
(c) Make available, under the procedures established by DCAAP 5410.14,
(d) Answer promptly all other requests for information and records under established procedures and practices.
The terms used in this rule with the exception of the following are defined in DCAAP 5410.14.
(a)
(b)
(c)
(d)
(e)
(a)
(i) The overall Agency-wide administration of the DCAA FOIA Program through the Chief, Administrative Management Division, Information and Privacy Advisor, to ensure compliance with the policies and procedures that govern the program.
(ii) Acting as the designee for the Director, DCAA, serving as the sole appellate authority for appeals to decisions of respective IDAs.
(iii) Advising the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) of cases of public interest, particularly those on appeal, when the issues raised are unusual or precedent setting, matters of disagreement among DoD components, are of concern to agencies outside the Department of Defense, or may otherwise require special attention or guidance.
(iv) Advising the ASD(PA) and the Executive Officer, DCAA, concurrent with the denial of a request or an appeal, when circumstances suggest a news media interest.
(v) Conferring with the General Counsel; the Assistant Director, Operations; and the Assistant Director, Policy and Plans, on the desirability of reconsidering a final decision to deny a record, if that decision becomes a matter of special concern because it involves either an issue of public concern or DoD-wide consequences.
(vi) Accomplishing program overview, in cooperation with the General Counsel, to ensure coordinated guidance to components, and to provide the means of assessing the overall conduct of the Agency's FOIA Program.
(vii) Responding to corrective action recommended by the Special Counsel of the Merit Systems Protection Board for arbitrary or capricious withholding of records by designated employees of the Agency.
(2) The Chief, Administrative Management Division (CM) is responsible for:
(i) Establishing, issuing, and updating policies for the DCAA FOIA Program; monitoring compliance with this rule; and providing policy guidance for the FOIA program.
(ii) Resolving conflicts that may arise regarding implementation of DCAA FOIA policy.
(iii) Designating an Agency FOIA Advisor, as a single point of contact, to coordinate on matters concerning Freedom of Information Act policy.
(3) The DCAA Information and Privacy Advisor, under the supervision and guidance of the Chief, Administrative Management Division is responsible for:
(i) Managing the DCAA FOIA Program in accordance with this rule, DCAAP 5410.14, applicable DCAA policies as well as DoD and Federal regulations.
(ii) Providing guidelines for managing, administering, and implementing the DCAA FOIA program. This would include issuing the DCAA FOIA rule, developing and conducting training for those individuals who implement the FOIA, and publishing in the
(iii) Maintaining and publishing DCAA Pamphlet 5410.14, “DCAA Freedom of Information Act Processing Guide”.
(iv) Preparing the Annual Freedom of Information Report to Congress as required by DoD 5400.7-R.
(v) Establishing and maintaining a control system for assigning FOIA case numbers to FOIA requests received by Headquarters and regional offices.
(vi) Maintaining a record of FOIA requests received by Headquarters. This record is to contain the requester's identification, the date of the request, type of information requested, and type of information furnished. This record will be maintained and disposed of in accordance with DCAA records maintenance and disposition regulations and schedules.
(vii) Making available for public inspection and copying in an appropriate facility or facilities, in accordance with rules published in the
(4) Heads of Principal Staff Elements are responsible for:
(i) Reviewing all regulations or other policy and guidance issuances for which they are the proponent to ensure consistency with the provisions of this rule.
(ii) Ensuring that the provisions of DCAAP 5410.14 and this rule are followed in processing requests for records.
(iii) Forwarding to the DCAA Information and Privacy Advisor, any FOIA requests received directly from a member of the public so that the request may be administratively controlled and processed.
(iv) Ensuring the prompt review of all FOIA requests, and when required, coordinating those requests with other organizational elements.
(v) Providing recommendations regarding the releasability of DCAA records to members of the public, along with the responsive documents.
(vi) Providing the appropriate documents, along with a written justification for any denial, in whole or in part, of a request for records. Those portions to be excised should be bracketed in red pencil, and the specific exemption or exemptions cited which provide the basis for denying the requested records.
(vii) Ensuring that documents are marked FOUO at the time of their creation if information contained within is considered exempt from disclosure.
(5) The General Counsel is responsible for:
(i) Ensuring uniformity is maintained in the legal position, and the interpretation of the Freedom of Information Act, DoD 5400.7-R, and this rule.
(ii) Consulting with General Counsel, DoD on final denials that are inconsistent with decisions of other DoD components, involving issues not previously resolved, or raise new or significant legal issues of potential significance to other Government agencies.
(iii) Providing advice and assistance to the Assistant Director, Resources; Regional Directors; and the Regional FOIA Coordinators, through the DCAA Information and Privacy Advisor, as required, in the discharge of their responsibilities.
(iv) Coordinating Freedom of Information Act litigation with the Department of Justice.
(v) Coordinating on Headquarters denials of initial requests and administrative appeals.
(vi) Ensuring that documents are marked FOUO at the time of their creation if information contained within is considered exempt from disclosure.
(6) The Executive Officer shall serve as the coordinator for the release of information to the news media.
(b) Each Regional Director is responsible for the overall management of the Freedom of Information Act program within his respective region. Under his direction, the Regional Resources Manager is responsible for the management and staff supervision of the program and for designating a regional FOIA Coordinator.
(1) Regional Directors are responsible for:
(i) Implementing and administering the Freedom of Information Act program throughout the region.
(ii) Making the initial determination pertaining to the releasability of DCAA records to members of the public. This authority cannot be delegated.
(iii) Delegating signature authority for FOIA correspondence which is considered only to be routine in nature, e.g., referrals and the release of information.
(iv) Ensuring that documents are marked FOUO at the time of their creation if information contained within is considered exempt from disclosure.
(2) FOIA Coordinators are responsible for:
(i) Issuing regional instructions that are consistent with the policies and procedures defined in DCAAP 5410.14 and this rule.
(ii) Conducting training on the FOIA program to the FAOs.
(iii) Submitting a DCAA Form 5410-4, “Freedom of Information Case Summary”, to the DCAA Information and Privacy Advisor at the completion of each FOIA case to facilitate the preparation of the annual FOIA report to Congress. All case summaries must be submitted no later than October 10th for cases completed during the previous fiscal year.
(iv) Establishing and maintaining a control system to ensure proper accountability and processing of FOIA requests.
(v) Contacting the DCAA Information and Privacy Act Advisor for a FOIA case number upon receipt of a FOIA request.
(c) Managers, Field Audit Offices (FAOs) are responsible for:
(1) Overall management and administration of the FOIA program within organizations under their cognizance.
(2) Ensuring that the regional FOIA Coordinator promptly receives all incoming FOIA requests. Use of facsimile transmission is appropriate for all requests received directly by the FAO.
(3) Ensuring that documents are marked FOUO at the time of their creation if information contained within is considered exempt from disclosure.
(a) Procedures for processing material in accordance with the FOIA are outlined in DCAAP 5410.14. General provisions are outlined in the following paragraphs.
(b)
Although DCAA can make a release determination on audit reports produced for non-DoD agencies, administrative procedure routinely dictates coordination with that agency prior to responding to the request. Requesters seeking expeditious processing should forward their requests directly to the cognizant contracting officer for processing.
(c)
(d)
(e)
(2) When submitting requests, requesters should:
(i) Identify each record sought with sufficient detail to facilitate the location and easy access to the record requested. Information as to where the record originated, subject, date, number, or any other identifying particulars should be provided whenever possible. DCAA organizational elements receiving requests which do not reasonably describe the record requested will advise the requester accordingly. Generally, a record is not reasonably described unless the requester provides information permitting an organized, nonrandom search of DCAA files and/or information systems. In providing descriptions based on events, the requester must provide information which permits DCAA organizational elements to, at least, infer the specific record sought.
(ii) Identify all other Federal agencies subject to the provisions of the FOIA to which the request has been sent. This will reduce both processing and coordination time between agencies and redundant referrals.
(iii) Provide a statement of their willingness to pay assessable charges. The statement must include a specific monetary amount if the assessable fees are likely to exceed the fee waiver threshold of $15.00 or a specific justification for any waiver or reduction of fees sought based on public interest
(3) When a DCAA organizational element has no records responsive to a request, the requester will be notified promptly that should he or she determine such request to be adverse in nature, he or she may exercise their appeal rights. In cases where the request has been misdirected and the DCAA organizational element is aware of the appropriate FOIA respondent, they shall refer the request to the appropriate DCAA organizational element or other Federal agency through FOIA channels, and notify the requester of the referral. The 20 working day period allowed for responding to requests will not begin until the DCAA organizational element having the responsive records receives a request complying with procedural requirements of this rule, including statements on the payment of fees.
(4) The provisions of the FOIA are intended for parties with private interests. Officials seeking documents or information on behalf of foreign governments, other Federal agencies, and state or local agencies should be encouraged to employ official channels. The release of records to individuals under the FOIA is a public release of information. DCAA organizational elements will consider FOIA requests from such officials as made in a private, rather than official capacity, and will make disclosure and fee determinations accordingly.
(f)
(2) Referral of audit reports. Audit reports prepared by DCAA are the property of and are prepared for the use of the DoD contracting officers. Their release is at the discretion of the DoD contracting activity. Therefore any FOIA request for audit reports prepared for DoD components should be referred to the cognizant DoD contracting activity and the requester notified of the referral. To avoid the delay associated with the referral process, requesters should be advised to send requests for audit reports directly to the cognizant DoD contracting activity. Requests for audit reports prepared for non-DoD agencies should be treated as requests for DCAA records.
(3) Referral of work papers. When a requester seeks workpapers, the cognizant contracting officer must furnish a notice of disposition to the appropriate activity pertaining to the releasability of the audit report. The notice of disposition will then be used to determine releasability of the workpapers. Details concerning the appropriate processing procedures may be found in DCAAP 5410.14.
(4) All other requests should be directed to the appropriate Regional Director, if known. When the location of the record is not known, the request should be directed to the DCAA Information and Privacy Advisor.
(5) Time limits. DCAA organizational elements are to respond promptly to requesters complying with the procedural requirements outlined in this rule. When a significant number of requests are being processed, e.g. 10 or more, the requests shall be completed in order of receipt. However, this does not preclude completing action on a request which can be easily answered, regardless of its ranking within the order of receipt. Action may be expedited 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
(i) Upon receipt of a properly submitted FOIA request, DCAA organizational elements should contact the DCAA Information and Privacy Advisor for a FOIA case number. IDAs should:
(A) Locate and assemble responsive records.
(B) Determine releasability under the provisions of this rule.
(C) Determine the appropriate fees to be charged and
(D) Advise the requester accordingly. Initial determinations on either the release or denial of records, and notice to requesters, must be provided within 20 working days following receipt of the request by the cognizant DCAA organizational element.
(ii) In certain cases, IDAs may need to exercise an extension to the normal 20 working day period cited above. IDAs are to notify the requester, within the initial 20 working day period, of the extension, the circumstances necessitating it, and the anticipated date of a determination. Approved extensions are not to exceed 10 working days, and all extensions should be indicated on DCAA Form 5410-4, section 6. Circumstances where such extensions may be approved include:
(A) The record(s) sought are geographically located at places other than the DC+AA organizational element processing the request.
(B) The request requires the collection and review of a substantial number of records.
(C) The disclosure determination requires consultation with another DCAA organizational element or other Federal agency with a substantial interest.
(iii) As an alternative to the previously mentioned, DCAA organizational elements may seek informal agreements with requesters for extensions in unusual circumstances when time limits become an issue in the response to the request.
(iv) Misdirected requests should be referred within 20 working days to the proper Federal agency or DCAA organizational elment through FOIA channels, and the requester notified of the referral. The 20 working day period allowed for responding to requests will not begin until the DCAA organizational element having the responsive records receives the request.
(6) Initial disclosure determinations. (i) Initial determinations to make records available may only be made by those IDAs designated in this rule.
Requests for audit reports should be directed to the cognizant contracting officer for release determination. (See § 290.7(b)).
(ii) IDAs should consult the Executive Officer, prior to releasing records on matters considered newsworthy or when releasing records to media representatives. Copies of all media requests should be submitted to the Executive Officer.
(iii) The following reasons, other than the statutory exemptions cited in the FOIA, are provided for not releasing a record in response to a FOIA request.
(A) The request is transferred to another DoD component, or to another Federal agency.
(B) The Agency determines through knowledge of its files and reasonable search efforts that it neither controls nor otherwise possesses the requested record.
(C) A record has not been described with sufficient particularity to enable the Agency to locate it by conducting a reasonable search.
(D) The requester has failed unreasonably to comply with procedural requirements, including payment of fees, imposed by this rule.
(E) The request is withdrawn by the requester.
(F) The information requested is not a record within the meaning of the FOIA and this rule.
(7) Denials. (i) A record in the possession and control of DCAA may be withheld
(ii) Although exempt portions of records may be denied, nonexempt portions must be released to the requester when it can reasonably be assumed that the excised information could not be reconstructed. When a record is denied in whole, based on distortion or reconstruction potential, the IDA will prepare a response advising the requester of the determination, and the response will specifically state that it is not possible to reasonably segregate meaningful portions for release.
(iii) When a request for a record is denied in whole or in part, the IDA will inform the requester in writing of the specific exemption(s) on which the denial is based and explain the determination in sufficient detail to permit the requester to make a decision concerning appeal. The determination will also inform the requester of his/her appeal rights. All appeals should be made within 60 calendar days from the date of the initial denial, contain the reasons for the requester's disagreement with the determination, and be addressed to the Assistant Director, Resources, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
(iv) Records or portions of records which have been previously released become part of the public domain, and cannot be denied thereafter.
(8) Administrative Appeals of Denials. (i) If the IDA declines to provide a record because he/she considers it exempt, that decision may be appealed by the requester, in writing, to the Assistant Director, Resources, DCAA.
Normally, IDAs would not issue denials for requests for audit reports. The denial authority for such records generally rests with the cognizant DoD contracting activity. (See § 290.7(b)). The appeal should be accompanied by a copy of the letter denying the initial request. Such appeals should contain the basis for disagreement with the initial refusal. Appeal procedures also apply to the disapproval of a request for waiver or reduction of fees. A “no record” finding may be appealed which allows the requester to challenge the adequacy of the Agency's search. Records which are denied should be retained during the time permitted for appeal.
(ii) IDAs shall advise the requester that an appeal should be filed so that it reaches the designated appellate authority no later than 60 calendar days after the date of the initial denial letter. At the conclusion of this period, except for good cause shown as to why the appeal was not timely, the case may be considered closed; however, such closure does not preclude the requester from filing litigation for denial of his appeal. If the requester has been provided a series of determinations for a single request, the time for appeal will begin on the date of the last determination of the series. Records which are denied shall be retained for a period of six years to meet the statute of limitations of claims requirement.
(iii) Final determinations normally shall be made within 20 working days of receipt of an appropriately submitted appeal.
(9) Delay in responding to an appeal. (i) When additional time is required to respond to the appeal, the final determination may be delayed for the number of working days (not to exceed 10 days) that were not utilized as additional time for responding to the initial request. Requesters shall be advised that, if the delay exceeds the statutory extension provision or is for reasons other than the unusual circumstances previously described, they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantive response. DCAA shall continue to process the case expeditiously, whether or not the requester seeks a court order for release of the records, but a copy of any response provided subsequent to filing a complaint shall be forwarded to
(ii) When the Assistant Director, Resources, DCAA, makes a determination to release all or a portion of the records on appeal, the records shall be made available promptly to the requester after compliance with procedural requirements. The final denial of a request will be made in writing, explain the exemption(s) invoked, advise that the material being denied does not contain meaningful portions that are reasonably segregable, and also advise the requester of the right of judicial review.
(10) Judicial action. A requester will be deemed to have exhausted his administrative remedies after he has been denied the requested record by the Assistant Director, Resources, or when the Agency fails to respond to his request within the time limits prescribed by the FOIA and this rule. The requester may then seek an order from a U.S. District Court in the district in which he resides or has his principal place of business; the district in which the record is situated; or in the U.S. District Court for the District of Columbia, enjoining the Agency from withholding the record and ordering its production.
(a) Fees shall be determined in accordance with the DoD fee schedule, which is detailed in DCAAP 5410.14. Fees reflect direct costs for search, review (in the case of commercial requesters), and duplication of documents, collection of which is permitted by the FOIA. Fees are subject to limitations on the nature of assessable fees based on the category of the requester; statutory and automatic waivers based on the category determination and cost of routine collection; and either the waiver or reduction of fees when disclosure serves the public interest.
(b) Fees will not be charged when direct costs for a FOIA request are $15.00 or less, the automatic fee waiver threshold, regardless of category.
(c)
(1) Evaluate each request to determine the requester category and adequacy of the fee declaration. An adequate fee declaration requires a willingness by the requester to pay fees in an amount equal to, or greater than, the assessable charges for the request.
(2) Provide requesters an opportunity to amend inadequate fee declarations and provide estimates of prospective charges when required. When a requester fails to provide an adequate fee declaration within 30 days after notification of a deficiency, the request for information will be considered withdrawn.
(3) A requester's claims for assessment of fees under a specific category will be carefully considered. The IDA may require a requester to substantiate a claim for assessment under a claimed category. In the absence of requester claims, the IDA will determine the category into which a requester falls, basing its determination on all available information.
(4) When a DCAA organizational element disagrees with a requester claim for fee assessment under a specific category, the IDA will provide the requester with written determination indicating the following:
(i) The requester should furnish additional justification to warrant the category claimed.
(ii) A search for responsive records will not be initiated until agreement has been attained relative to the category of the requester.
(iii) If further category information has not been received within a reasonable period of time, the component will render a final category determination; and
(iv) The determination may be appealed to the Assistant Director, Resources, within 60 calendar days of the date of the determination.
(d) When a DCAA organizational element estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, they shall notify the requester
(e) Where a requester has previously failed to pay a fee charged within 30 calendar days from the date of billing, DCAA organizational elements may require the requester to pay the full amount due, plus any applicable interest or demonstrate satisfaction of the debt, and to make an advance payment of the full amount of estimated fees, before processing begins on a new or pending request.
(f) After all work is completed on a request, and the documents are ready for release, DCAA organizational elements may request payment before forwarding the documents if there is no payment history on the requester, or if the requester has previously failed to pay a fee in a timely fashion (i.e., within 30 calendar days from the date of billing). Documents may not be held for release pending payment from requesters with a history of prompt payment.
(g) The administrative time limits for responding to a request will begin only after the DCAA organizational element has received an adequate declaration from the requester stating a willingness to pay fees, and satisfaction that all outstanding debts have been paid.
(h) DCAA organizational elements can bill requesters for services provided in responding to a request. Payment of fees may be made by personal check, bank draft drawn on a U.S. bank, or by U.S. Postal money order. All payments of this type are to be made payable to the U.S. Treasurer.
(i)
(j)
(2) Documents will be furnished without charge, or at a charge reduced below fees assessed to the categories of requesters, when the IDA determines that a waiver or reduction of fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations of DCAA, and is not primarily in the commercial interest of the requester. DCAA organizational elements should refer to DCAAP 5410.14 for factors to consider in applying fee waivers due to public interest. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each request. When the question of whether to charge or waive the fee cannot be clearly resolved, DCAA organizational elements should rule in favor of the requester.
(a) Purpose. This section implements 5 U.S.C. 552 by describing the central and field organizations of DCAA.
(b) Origin and Authority. DCAA was established by the Secretary of Defense under Department of Defense (DoD) Directive 5105.36
(c) Objective. Assist in achieving the objective of prudent contracting by providing DoD officials responsible for procurement and contract administration with financial information and advice on proposed or existing contracts and contractors, as appropriate.
(d) Mission. (1) DCAA performs all necessary contract audits for the Department of
(2) DCAA audits contractors' and subcontractors' accounts, records, documents, and other evidence; systems of internal control, accounting, costing, estimating, and general business practices and procedures to give advice and recommendations to procurement and contract administration personnel on: acceptability of costs incurred under cost, redetermination, incentive, and similar type contracts; acceptability of estimates of costs to be incurred as represented by contractors incident to the award, negotiation, and modification of contracts; and adequacy of contractors' accounting and financial management systems and estimating procedures. DCAA also performs post-award audits of contracts for compliance with the provisions of Public Law 87-653 (Truth in Negotiations), and reviews contractor compliance with the Cost Accounting Standards.
(3) DCAA assists responsible procurement or contract administration activities in their surveys of the purchasing-procurement systems of major contractors; and cooperates with other DoD components on reviews, audits, analyses, or inquiries involving contractors' financial positions or financial and accounting policies, procedures, or practices. DCAA also maintains liaison auditors at major procuring and contract administration offices and provides assistance in the development of procurement policies and regulations.
(e) Composition. (1) DCAA consists of five major organizational elements: A Headquarters and five regions. The five regional offices manage over 400 field audit offices (FAOs) and suboffices located throughout the United States and overseas. An FAO is identified as either a branch office or a resident office. Suboffices are established by regional directors as extensions of FAOs when required to furnish contract audit service more economically. A suboffice is dependent on its parent FAO for release of audit reports and other administrative support.
(2) The Headquarters located at Fort Belvoir, Virginia consists of:
(i) The Director who exercises worldwide direction and control of DCAA.
(ii) The Deputy Director who serves as principal assistant to the Director and acts for the Director in his absence.
(iii) The Assistant Director, Operations, authorized to act for the Director and Deputy Director in their absence, is responsible for staff functions related to audit management, and technical audit programs, supervises the Defense Contract Audit Institute and the Technical Services Center in Memphis, Tennessee and the procurement/contract administration liaison offices.
(iv) The Assistant Director, Policy and Plans, is responsible for audit policy and procedures and related liaison functions.
(v) The Assistant Director, Resources, is responsible for the programs and procedures related to the management and administration of resources required to support the audit mission.
(vi) The General Counsel provides legal and legislative advice to the Director and all members of the Agency staff.
(vii) The Executive Officer performs a variety of special projects and assignments for the Director and Deputy Director.
(viii) The Special Assistant for Quality reviews the Agency's compliance with established audit quality control standards, policies, and procedures and other internal control requirements.
(3) Regional offices are located in Smyrna, GA; Lowell, MA; Irving, TX; La Mirada, CA; and Philadelphia, PA. Regional directors direct and administer the DCAA audit mission, and manage personnel and other resources assigned to the regions; manage the contract audit program; and direct the operation of FAOs within their region. Principal elements of regional offices are the Regional Director, Deputy Regional Director, Regional Audit Managers, Regional Special Programs Manager, and Regional Resources Manager.
(4) A resident office is established at a contractor's location when the amount of audit workload justifies the assignment of a permanent staff of auditors and support staff. A resident office may also perform procurement or contract administration liaison functions.
(5) A branch office is established at a strategically situated location within the region, responsible for performing all contract audit service within the assigned geographical area, exclusive of contract audit service performed by a resident or liaison office within the area. A branch office may also perform procurement or contract administration liaison functions.
(6) If requested, a DCAA liaison office is established at a DoD procurement or contract administration office when required on a full-time basis to provide effective communication and coordination among procurement, contract administration, and contract audit elements. Liaison offices assist in effective utilization of contract audit services.
Geographical Area of Responsibility: Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Pacific Ocean and Asian Islands.
Asia except the Middle East.
Australia.
Geographical Area of Responsibility: Alabama, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, North Carolina, Ohio, Tennessee, Virginia, West Virginia, Central America, South America, Bermuda, Puerto Rico and nearby Islands, and Mexico.
Geographical Area of Responsibility: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, Michigan (excluding the Upper Peninsula), all New York Counties except Steuben, Schuyler, Cheming, Tompkins, Tioga, Broome, Chenango, Otsego, Delaware, and Sullivan.
Africa and Adjacent Islands.
Europe and Adjacent Islands.
Middle East and Adjacent Islands.
Greenland.
Iceland.
Geographical Area of Responsibility: Delaware, District of Columbia, Maryland, and New Jersey.
New York Counties of Steuben, Schuyler, Chemung, Tompkins, Tioga, Broome, Chenango, Otsego, Delaware, and Sullivan. The IBM Suboffice located at Tarrytown, New York.
Pennsylvania Counties East of and including Tioga, Lycoming, Union, Mifflin, Juniata, and Franklin.
Virginia Counties East and North of and including Stafford, Culpeper, Rappahannock, Page, Shenandoah, and Frederick.
Geographical Area of Responsibility: Arizona, Arkansas, Colorado, Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, Wisconsin, Wyoming and Louisiana Parishes North of and including Vernon, Rapides, and Avoyelles.
(a) Miscellaneous.
(1) The following publications may be obtained from the Defense Contract Audit Agency, ATTN: CMO, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219, (703) 767-1066. Many of these items, among others, may be obtained from the DCAA Web site. Since these materials are publicly available, requesters need not invoke the Freedom of Information Act to obtain copies of the publications selected.
(i) DCAAI 5025.2, Index of Numbered Publications, lists Agency publications.
(ii) DCAAP 1421.3, Catalog of Training Courses, lists training courses available from the Defense Contract Audit Institute, Specific training courses are also available.
(2) Although the following publication is publicly available, the memorandums listed may or may not be subject to withholding under the Freedom of Information Act. Those memorandums marked with an “(R)”, denoting releasable (e.g. 94-PFD-063R)), are available from the above address. However, Memorandums for Regional Directors (MRDs) marked “(NR)”, meaning not releasable, cannot be obtained from this source. Requests for (NR) MRDs should be sought under the auspices of the Freedom of Information Act from the Defense Contract Audit Agency, ATTN: CM, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219;.
(i) DCAAI 5025.13, Index of DCAA Memorandums for Regional Directors (MRDs), lists numbered memorandums pertaining to Agency policy, procedure, and informational topics.
(3) Requesters should plainly display the words “Freedom of Information Act Request” on the lower left hand corner of the envelope to ensure prompt handling.
(b) [Reserved]
(a) General. Information that has not been given a security classification pursuant to the criteria of an Executive Order, but which may be withheld from the public for one or more of the reasons cited in FOIA Exemptions 2 through 9 shall be considered as being for official use only. No other material shall be considered or marked “For Official Use Only” (FOUO). FOUO is not authorized as an anemic form of classification to protect national security interests.
(b) Prior FOUO Application. The prior application of FOUO markings is not a conclusive basis for withholding a record that is requested under the FOIA. When such a record is requested, the information in it shall be evaluated to determine whether, under current circumstances, FOIA exemptions apply in withholding the record or portions of it. If any exemption or exemptions apply or applies, it may nonetheless be released when it is determined that no governmental interest will be jeopardized by its release. (1) Historical Papers. Records such as notes, working papers, and drafts retained as historical evidence of Agency actions enjoy no special status apart from the exemptions under the FOIA.
(2) Time to Mark Records. The marking of records at the time of their creation provides notice of FOUO content and facilitates review when a record is requested under the FOIA. Records requested under the FOIA that do not bear such markings, shall not be assumed to be releasable without examination for the presence of information that requires continued protection and qualifies as exempt from public release.
(3) Distribution Statement. Information in a technical document that requires a distribution statement pursuant to DoD Directive 5230.24
(c) Markings. (1) Location of Markings. (i) An unclassified document containing FOUO information shall be marked “For Official Use Only” at the bottom on the outside of the front cover (if any), on each page containing FOUO information, and on the outside of the back cover (if any).
(ii) Within a classified document, an individual page that contains both FOUO and classified information shall be marked at the top and bottom with the highest security classification of information appearing on the page.
(iii) Within a classified document, an individual page that contains FOUO information but no classified information shall be marked “For Official Use Only” at the bottom of the page.
(iv) Other records, such as, photographs, films, tapes, or slides, shall be marked “For Official Use only” or “FOUO” in a manner that ensures that a recipient or viewer is aware of the status of the information therein.
(v) FOUO material transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the FOUO marking. This may be accomplished by typing or stamping the following statement on the record prior to transfer:
(2) Instructions for marking DCAA audit reports are contained in Chapter 10 of the Contract Audit Manual (CAM)
(3) DCAA Label 4, FOUO Cover Sheet. This form may be used to further identify FOUO information.
(d) Dissemination and Transmission. (1) Release and Transmission Procedures. Until FOUO status is terminated, the release and transmission instructions that follow apply:
(i) FOUO information may be disseminated within the Agency and between officials of DoD Components and DoD contractors, consultants, and grantees to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means that preclude unauthorized public disclosure. Transmittal documents shall call attention to the presence of FOUO attachments.
(ii) Agency and DoD holders of FOUO information are authorized to convey such information to officials in other departments and agencies of the executive and judicial branches to fulfill a government function, except to the extent prohibited by the Privacy Act. Records thus transmitted shall be marked “For Official Use Only”, and the recipient shall be advised that the information has been exempted from public disclosure, pursuant to the FOIA, and that special handling instructions do or do not apply.
(iii) Release of FOUO information to Members of Congress is governed by DoD Directive 5400.4
(iv) Records or documents containing FOUO information will be transported between offices in such a manner as to preclude disclosure of the contents. First-class mail and ordinary parcel post may be used for transmission of FOUO information. The double envelope system required for classified material may be used when it is considered desirable to exclude examination by mail handling personnel. In such cases, the inner envelope should be addressed to the intended recipient by title or name and contain a statement that the envelope is to be opened by the addressee only.
(v) FOUO material prepared on personal computers or other data processing equipment should be password protected at origination.
(vi) Requests for Field Detachment sensitive information must be coordinated with the Director, Field Detachment, through Headquarters, DCAA.
(2) Transporting FOUO Information. Records containing FOUO information shall be transported in a manner that precludes disclosure of the contents. When not commingled with classified information, FOUO information may be sent via first-class mail or parcel post. Bulky shipments, such as distributions of FOUO Directives or testing materials, that otherwise qualify under postal regulations may be sent by fourth-class mail.
(3) Electrically Transmitted Messages. Each part of electrically transmitted messages containing FOUO information shall be marked appropriately. Unclassified messages containing FOUO information shall contain the abbreviation “FOUO” before the beginning of the text. Such messages shall be transmitted in accordance with communications security procedures in Allied Communication Publication 121 (U.S. Supp 1) for FOUO information.
(e) Safeguarding FOUO Information. (1) During Duty Hours. During normal working hours, records determined to be FOUO shall be placed in an out-of-sight location if the work area is accessible to nongovernmental personnel.
(2) During Nonduty Hours. At the close of business, FOUO records shall be stored so as to preclude unauthorized access. Filing such material with other unclassified records in unlocked files or desks, etc., is adequate when normal U.S. Government or Government-contractor internal building security is provided during nonduty hours. When such internal security control is not exercised, locked buildings or rooms normally provide adequate after hours protection. If such protection is not considered adequate, FOUO material shall be stored in locked receptacles such as file cabinets, desks, or bookcases. FOUO records that are subject to the provisions of Public Law 86-36 shall meet the safeguards outlined for that group of records.
(3) Field audit offices located in contractor owned facilities will ensure that material marked FOUO is stored in a locked receptacle to which the contractor does not have access during nonduty hours.
(f) Termination, Disposal and Unauthorized Disclosures. (1) Termination. The originator or other competent authority, e.g., initial denial and appellate authorities, shall terminate “For Official Use Only” markings or status when circumstances indicate that the information no longer requires protection from public disclosure. When FOUO status is terminated, all known holders shall be notified, to the extent practical. Upon notification, holders shall efface or remove the “For Official Use Only” markings, but records in file or storage need not be retrieved solely for that purpose.
(2) Disposal. (i) Nonrecord copies of FOUO materials may be destroyed by tearing each copy into pieces to preclude reconstructing, and placing them in regular trash containers. When local circumstances or experience indicates that this destruction method is not sufficiently protective of FOUO information, local authorities may direct other methods but must give due consideration to the additional expense balanced against the degree of sensitivity of the type of FOUO information contained in the records.
(ii) Record copies of FOUO documents shall be disposed of in accordance with the disposal standards established under 44 U.S.C. chapter 33, as implemented by DCAAM 5015.1
(3) Unauthorized Disclosure. The unauthorized disclosure of FOUO records does not constitute an unauthorized disclosure of DoD information classified for security purposes. Appropriate administrative action shall be taken, however, to fix responsibility for unauthorized disclosure whenever feasible, and appropriate disciplinary action shall be
(g) Protection of Field Detachment Sensitive Information. (1) Definition. All communication, which qualifies for withholding under Exemptions (2) through (9), between regular DCAA organizational elements and Field Detachment offices is sensitive information and, as a minimum, shall be marked: FOR OFFICIAL USE ONLY (FOUO).
(2) Markings. (i) Communications, which qualify for withholding under Exemptions (2) through (9) initiated by a Field Detachment office, will bear the following marking:
(ii) All correspondence specifically exempt under Exemptions (2) through (9), including assist audit requests, generated by a regular (non-FD) DCAA office, which is addressed to the Field Detachment, either Headquarters or a field audit office, will be marked FOR OFFICIAL USE ONLY and will be limited within the FAO to one protected office copy.
(3) Storage. (i) All Field Detachment sensitive information in the possession of a regular DCAA office will be stored in a classified container, if available. If a classified container is not available, the sensitive information shall be stored in a locked container controlled by the FAO manager.
(ii) Permanent files currently maintained by regular DCAA offices, which are available to all FAO personnel, should not contain any detailed information on Field Detachment audit interest. That information shall be protected as sensitive information and stored in accordance with paragraph (g)(3)(i) of this appendix.
(4) Dissemination. (i) Access to Field Detachment sensitive information by other DCAA audit and administrative personnel within the office shall be on a strict need-to-know basis as determined by the FAO manager.
(ii) Requests by non-DCAA personnel for access to Field Detachment sensitive information must be coordinated with the Director, Field Detachment, through Headquarters, DCAA.
(a)
(1) Audit working papers contain information from accounting and statistical records, personal observations, the results of interviews and inquiries, and other available sources. Audit working papers may also include contract briefs, copies of correspondence, excerpts from corporate minutes, organization charts, copies of written policies and procedures, and other substantiating documentation. The extent and arrangement of working paper files will depend to a large measure on the nature of the audit assignment.
(2) Working papers are generally classified in two categories: the permanent file and the current file.
(i) Permanent file.
(A) The permanent file on each contractor is a central repository of information gathered during the course of an audit which has continuing value and use to subsequent audits expected to be performed at the same contractor. Permanent files are useful in preparing the audit program and in determining the appropriate scope of subsequent audits. They also provide ready means for auditors to become familiar with the contractor's operations and any existing audit problems or contractor system weaknesses. While summary information on the contractor's organization, financial structure and policies may sometimes be included in permanent files for smaller contractors, such information on large contractors with continuing audit activity is generally maintained in the field audit office at the central reference library.
(B) Items which would logically be included in the permanent file as having continuing value in future audit assignments include:
(
(
(
(
(
(
(ii) Current File. The current file usually consists of working papers which have limited use on future assignments. DCAA Forms 7640-19 a, b, and c are the Agencywide Working Paper Indexes and provide a concise summary of items generally found in audit working papers.
(b)
(1) The preparation of working papers assists the auditor in accomplishing the objectives of an audit assignment. Working papers serve as the basis for the conclusions in the
(2) Audit working papers are generally prepared at the time audit work is performed and are maintained on a current basis. Working papers normally reflect the progress of the audit and are designed to ensure continuity of the audit effort.
(3) Working papers should be relevant to the audit assignment and not include extraneous pages. Superseded working papers should be clearly marked as such and retained as part of the working paper package.
(4) The nature of audit working papers requires that proper control and adequate safeguards be maintained at all times. Working papers frequently reflect information considered confidential by the contractor and are marked “For Official Use Only” or are classified for government security purposes.
5 U.S.C. 552.
This part establishes policies and procedures for the DNA FOIA program.
This part applies to Headquarters, Defense Nuclear Agency (HQ, DNA), Field Command, Defense Nuclear Agency (FCDNA), and the Armed Forces Radiobiology Research Institute (AFRRI).
(a)
(b)
(2) The following are not included within the definition of the word
(i) Objects or articles, such as structures, furniture, vehicles and equipment, whatever their historical value, or value as evidence.
(ii) Administrative tools by which records are created, stored, and retrieved, if not created or used as sources of information about organizations, policies, functions, decisions, or procedures of a DNA organization. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of medium are not agency records. (This does not include the underlying data which is processed and produced by such software and which may in some instances be stored with the software.) Exceptions to this position are outlined in paragraph (b)(3) of this section.
(iii) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(iv) 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.
(v) Information stored within a computer for which there is no existing computer program for retrieval of the requested information.
(3) In some instances, computer software may have to be treated as an
(i) When the data is embedded within the software and cannot be extracted without the software. In this situation, both the data and the software must be reviewed for release or denial under the FOIA.
(ii) Where the software itself reveals information about organizations, policies, functions, decisions, or procedures of a DNA office, such as computer models used to forecast budget outlays, calculate retirement system costs, or optimization models on travel costs.
(iii) Refer to § 291.8(b) exemptions 2, 4 and 5 for guidance on release determinations of computer software.
(4) If unaltered publications and processed documents, such as regulations, manuals, maps, charts, and related geophysical materials are available to the public through an established distribution system with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do not apply and they need not be processed under the FOIA. Normally, documents disclosed to the public by publication in the
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(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, offices 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.
(h)
(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 DNA'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.
(4) The following guidelines deal with requests for personal records. Ordinarily, when personal identifiers are provided only in connection with a request for records concerning the requester, only records retrievable by personal identifiers need be searched. Search for such records may be conducted under Privacy Act procedures. No record may be denied that is releaseable under the FOIA.
(5) The above guidelines notwithstanding, the decision of an office concerning reasonableness of description must be based on knowledge of its files. If the description enables office personnel to locate the record with reasonable effort, the description is adequate.
(i)
(2) The request is withdrawn by the requester.
(3) The information requested is not a record within the meaning of the FOIA and 32 CFR part 286.
(4) A record has not been described with sufficient particularity to enable DNA to locate it by conducting a reasonable search.
(5) The requester has failed reasonably to comply with procedural requirements, including payment of fees, imposed by 32 CFR part 286 or this part.
(6) The DNA determines, through knowledge of its files and reasonable search efforts, that it neither controls nor otherwise possesses the requested record.
(7) The record is subject to one or more of the nine exemptions set forth in § 291.8, and a significant and legitimate government purpose is served by withholding.
(a) The Director, DNA, as appellate authority, is responsible for reviewing and making the final decision on FOIA appeals.
(b) The DDIR, as IDA, is responsible for reviewing all initial denials to FOIA requests and has sole responsibility for withholding that information.
(c) The DNA FOIA Officer, who is also the Public Affairs Officer, manages and implements the DNA FOIA program. In this regard, the Public Affairs Officer serves as the FOIA point-of-contact and liaison between DNA and the Office of the Assistant Secretary of Defense (Public Affairs) (OASD(PA)), Directorate for Freedom of Information and Security Review (DFOI/SR). The Public Affairs Officer is responsible for:
(1) Advising OASD(PA), DFOI/SR, of any DNA denial of a request for records or appeals that may affect another DoD component.
(2) Ensuring publication of this part in the
(3) Ensuring that the Command Services Directorate publishes in the
(4) Ensuring that the Command Services Directorate, publishes an index of DNA instructions in the
(5) Coordinating all FOIA actions, except routine, interim replies indicating
(6) Forwarding all fees collected under the FOIA to the HQ, DNA, Finance and Accounting Officer for further processing.
(7) Coordinating action on FOIA requests that involve other government organizations (e.g., when DNA is not the original classifier for a classified document) with those organizations.
(8) Ensuring FOIA briefings are presented annually for DNA personnel.
(9) Submitting an annual report to OASD(PA), DFOI/SR, in accordance with the requirements of DoD Directive 5400.11.
(d) The Commander, FCDNA, is responsible for determining, based on current directives and instruction, what information in FCDNA custody may be released to FOIA requesters. (This responsibility may be delegated.) The Commander, FCDNA, is responsible for designating a representative to process FOIA requests. The Commander has the authority to release documents in response to the FOIA. When FCDNA releases information under the FOIA, it will forward a copy of the request, the response and the appropriate cost sheet to HQ, DNA, ATTN: PAO (FOIA). FCDNA will not deny requests for information under the FOIA; instead, it will forward to HQ, DNA, PAO a recommendation and justification for denying the FOIA request.
(e) The Director, AFRRI, is responsible for designating a representative to process FOIA requests and to forward them to HQ, DNA, (PAO) for coordination and preparation of a final response.
(f) The DNA GC shall coordinate on all DNA FOIA response except routine interim letters which acknowledge receipt of the FOIA request. That office shall also ensure uniformity in the legal position and interpretation by DNA of the FOIA, and coordinate with the DoD GC, as necessary.
(g) The HQ, DNA, Finance and Accounting Officer will ensure that fees collected under the FOIA are forwarded to the Finance and Accounting Office, U.S. Army, to be submitted to the Treasury of the United States.
(h) HQ, DNA, Assistant Director for Intelligence and Security, Classification Management Division (ISCM), will conduct security reviews of classified documents requested under the FOIA. ISCM will determine whether the document.
(1) Contains information that meets requirements for withholding under Exemption 1 Executive Order 12356.
(2) Has information that meets requirements for withholding under Exemption 3, to include Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(3) Has information that may be declassified or sanitized. ISCM is also responsible for sanitizing DNA classified information from documents requested under the FOIA (refer to § 291.6(b)(5)). In addition, ISCM is responsible for advising the Assistant Director for Technical Information (CSTI) to notify the appropriate authorities when information has been reclassified as a result of a DNA FOIA review.
(i) HQ, DNA, CSLE will, upon request, ensure that photocopies are made of 50-page or larger documents being processed under the FOIA. (Copies are required only when documents are not available from other sources.)
(j) CSTI, Technical Library Division (TITL), will, upon notification from PAO that a document has been cleared for public release under the FOIA, retain the marked up document in its files, annotate the FOIA case number in the computerized data base and ensure that the document is made available to the public through the National Technical Information Service (NTIS).
(k) Commander, FCDNA; Director, AFRRI; and directors and chiefs of staff elements at HQ, DNA, will ensure that personnel are familiar with the procedures and contents of this part prior to acting on FOIA requests. They will also make sure that FOIA actions forwarded to their offices for processing are closely monitored to ensure accountability and that their input to PAO is provided in a timely manner and in accordance with this part. (Refer to § 291.7(b)(2)). If the office(s)
(a) If HQ, DNA personnel receive a FOIA request that has not been logged and processed through PAO, they will immediately handcarry the request to PAO. TDNM and AFRRI personnel will forward all FOIA requests to HQ, DNA, Attn: PAO. FCDNA will adhere to paragraph 6d and FCDNA Supplement to DNA Instruction 5400.7C.
(b) When a FOIA request is received by PAO, HQ, DNA, the following procedures apply:
(1) The request will be date stamped, reviewed to determine if it meets the requirements of 5 U.S.C. 552, logged in, assigned an action number, suspensed, and attached to a FOIA cover sheet with instructions for forwarding to the appropriate office. A copy of DD Form 2086 or DD Form 2086-1 will also be attached to the FOIA request.
(2) A copy of the request will be handcarried by PAO to the designated HQ, DNA, action office(s) or forwarded to AFRRI or FCDNA, as appropriate. The office or component providing input for the FOIA request must keep track of the request and meet the PAO suspense. The HQ, DNA input, or negative response, if there are no records available, will be handcarried to PAO. AFRRI will send the recommended response in daily distribution. FCDNA will telefax the proposed response in addition to mailing the original. All FOIA actions must include a completed DD Form 2086 or 2086-1. Each office acting on FOIA requests will indicate on the form the search, review/excise and coordination time spent processing the FOIA action, and provide the number of pages copied.
(3) The DNA PAO will prepare the response to the requester and coordinate it with the offices that provided input, the GC, and if appropriate, ISCM, the IDA, the Director, DNA, OASD(PA), and outside agencies, if involved. The PAO will maintain files of all FOIA actions per DNA Instruction 5015.4B.
(4) If a request is received by a DNA office which does not have records responsive but office personnel believe another office would have the records requested, they must contact the other office to confirm the existence of the documents, forward the FOIA action to that office and notify PAO.
(5)
(6)
(a) FOIA requesters shall clearly mark their requests as such, both on the envelope and in the body of the letter. Identification of the record desired is the responsibility of the FOIA requester. The requester must provide a description of the desired record that enables DNA to locate it with a reasonable amount of effort. The Act does not authorize “fishing expeditions.” FOIA requests should be sent to the following address: Public Affairs Officer, Defense Nuclear Agency, Attention: FOIA, 6801 Telegraph Road, Alexandria, VA 22310-3398. Requester failure to comply with this section shall not be sole grounds of denial for requested information.
(b) FOIA appeals must be clearly marked as such, both on the envelope and in the body of the letter. Persons appealing DNA denial letters should include a copy of the denial letter, the case number, a statement of the relief sought and the grounds upon which it is brought. Appeals should be sent to the following address: Director, Defense Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310-3398.
(c) The time limitations for responding to legitimate FOIA requests are:
(1) Determinations to release, deny or transfer a record shall be made and the decision reported to the requester within 10 working days after the request is received in PAO.
(2) If additional time is needed to respond to a request, the requester will be notified within the 10-day period. When PAO 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 PAO from completing action on a request which can be easily answered, regardless of its ranking within the order of receipt. PAO 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 Public Affairs Officer.
(3) If a request for a record is denied and the requester appeals the decision of the IDA, the requester should file the appeal so that it reaches DNA no later than 60 calendar days after the date of the initial denial letter. At the conclusion of this period, the case may be considered closed; however, such closure does not preclude the requester from filing litigation. In cases where the requester is provided several incremental determinations for a single request, the time for the appeal shall not
(d) If DNA denies the requested document in whole or in part, the response must include detailed rationale for withholding information and the specific exemption that applies so the requester can make a decision concerning appeal. When the initial denial is based in whole or in part on a security classification, the explanation should include a summary of the applicable criteria for classification, as well as an explanation, to the extent reasonably feasible, of how those criteria apply to the particular record in question. Denial letters must also include the name and title of the IDA, and cite the name and address of the Director, DNA, as the appellate authority.
(e) All final responses will address the status of fees collectible under the FOIA. Fees of $15 or less will be waived, regardless of category of requester.
(f) A formal reading room for the public, as defined in 32 CFR part 286, does not exist at DNA (HQ, FCDNA or AFRRI) because of security requirements. However, the PAO will arrange for a suitable location and escort, if required, for members of the public to review DNA documents released under the FOIA. In addition, most reports released under the FOIA are sent to the National Technical Information Service (NTIS).
(a)
(b)
(1)
(i) The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, DNA shall neither confirm nor deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist will itself disclose national security information.
(ii) Information that concerns one or more of the classification categories established by executive order and DoD 5200.1-R shall be classified if its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
(2)
(i) Records qualifying under high b2 are those containing or constituting statutes, rules, regulations, orders, manuals, directives, and instructions, the release of which would allow circumvention of these records, thereby substantially hindering the effective performance of a significant function of the DNA. Examples include:
(A) Those operating rules, guidelines and manuals for DNA investigators, inspectors, auditors, or examiners that must remain privileged in order for the DNA office to fulfill a legal requirement.
(B) Personnel and other administration matters, such as examination questions and answers used in training courses or in the determination of the qualifications of candidates for employment, entrance on duty, advancement, or promotion.
(C) Computer software meeting the standards of paragraph 291.3(b)(2)(iii), the release of which would allow circumvention of a statute or DoD rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be clearly examined to ensure a circumvention possibility exists.
(ii) Records qualifying under the low b2 profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose the records. Examples include: Rules of personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings.
(3)
(i) National Security Agency Information Exemption, Public Law 86-36, section 6.
(ii) Patent Secrecy, 35 U.S.C. 181-188. Any records containing information relating to inventions that are the subject of patent applications on which Patent Secrecy Orders have been issued.
(iii) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(iv) Communication Intelligence, 18 U.S.C. 798.
(v) Authority to Withhold from Public Disclosure Certain Technical Data, 10 U.S.C. 130 and DoD Directive 5230.25.
(vi) Confidentiality of Medical Quality Records: Qualified Immunity Participants, 10 U.S.C. 1102.
(vii) Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information, 10 U.S.C. 128.
(viii) Protection of Intelligence Sources and Methods, 50 U.S.C. 403 (d)(3).
(4)
(i) Commercial or financial information received in confidence in connection 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. See 32 CFR part 286h, “Release of Acquisition-Related Information.”
(ii) Statistical data and commercial or financial information concerning contract performance, income, profits, losses and expenditures, if offered and received in confidence from a contractor or potential contractor.
(iii) Personal statements given in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.
(iv) Financial data provided in confidence by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.
(v) Scientific and manufacturing processes or developments concerning technical or scientific data or other information, submitted with an application for a research grant, or with a report, while research is in progress.
(vi) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, and technical or scientific data developed in part with Federal funds and in part at private expense, wherein the contractor or subcontractor has retained legitimate proprietary interests in such data in accordance with title 10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement (DFARS), subpart 27.4. Technical data developed exclusively with Federal funds may be withheld under Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and DoD Directive 5230.25 (refer to paragraph (b)(3)(v)).
(vii) Computer software meeting the conditions of section 4 (b)(3), which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.
(5)
(i) Examples include:
(A) The nonfactual portions of staff papers, to include after-action reports and situation reports containing staff evaluations, advice, opinions or suggestions.
(B) Advice, suggestions, or evaluations prepared on behalf of the DNA by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.
(C) Those nonfactual portions of evaluations by DNA personnel of contractors and their products.
(D) Information of a speculative, tentative, or evaluative nature or such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate government functions.
(E) Trade secret or other confidential research, development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interests.
(F) Records that are exchanged among agency personnel as part of the preparation for anticipated administrative proceedings by DNA, or litigation before any federal, state, or military court, as well as records that qualify for the attorney-client privilege.
(G) Those portions of official reports of inspection, reports of the Inspector General, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of DNA when these records have traditionally been treated by the courts as privileged against disclosure in litigation.
(H) Computer software meeting the standards of paragraph 291.3(b)(2)(iii), which is deliberative in nature, the disclosure of which would inhibit or chill
(I) Planning, programming, and budgetary information which is involved in the defense planning and resource allocation process.
(ii) If any such intra- or inter-agency record or reasonably segregable portion of such record hypothetically would be made available routinely through the “discovery process” in the course of litigation with DNA, i.e., the process by which litigants obtain information from each other that is relevant to the issues in trial or hearing, then it should not be withheld from the general public even though “discovery” has not been sought in actual litigation. If, however, the information hypothetically would only be made available through the discovery process by special order of the court based on the particular needs of a litigant, balanced against the interests of the agency in maintaining its confidentiality, then the record or document need not be made available under this part. Consult with legal counsel to determine whether exemption 5 material would be routinely made available through the “discovery process”.
(iii) Intra- or inter-agency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely made available through “discovery,” and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.
(iv) A direction or order from a superior to a subordinate, though contained in an internal communication, generally cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.
(v) An internal communication concerning a decision that subsequently has been made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or incorporated by reference in the record containing the decision.
(6)
(i) Examples of other files containing personal information similar to that contained in personnel and medical files include:
(A) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.
(B) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken.
(ii) Home addresses are normally not releasable without the consent of the individuals concerned. In addition, lists of DoD military and civilian personnel's names and duty addresses who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.
(A) Privacy interest. A privacy interest may exist in personal information even though the information has been disclosed at some place and time. If personal information is not freely available from sources other than the Federal Government, a privacy interest exists in its nondisclosure. The fact that the Federal Government expended funds to prepare, index and maintain records on personal information, and the fact that a requester invokes FOIA
(B) Published telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under this exemption.
(iii) This exemption shall not be used in an attempt to protect the privacy of a deceased person, but it may be used to protect the privacy of the deceased person's family.
(iv) Individuals' personnel, medical, or similar file may be withheld from them or their designated legal representative only to the extent consistent with DoD Directive 5400.11.
(v) A clearly unwarranted invasion of the privacy of the persons identified in a personnel, medical or similar record may constitute a basis for deleting those reasonably segregable portions of that record, even when providing it to the subject of the record. When withholding personal information from the subject of the record, legal counsel should first be consulted.
(7)
(i) This exemption applies, however, only to the extent that production of such law enforcement records or information could result in the following:
(A) Could reasonably be expected to interfere with enforcement proceedings.
(B) Would deprive a person of the right to a fair trial or to an impartial adjudication.
(C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record.
(
(
(
(D) Could reasonably be expected to disclose the identity of a confidential source including a source within DNA, a state, local or foreign agency or authority, or any private institution which furnishes the information on a confidential basis.
(E) Could disclose confidential information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation.
(F) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
(G) Could reasonably be expected to endanger the life, or the physical safety of any individual.
(ii) Examples include:
(A) Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related government litigation or adjudicative proceedings.
(B) The identity of firms or individuals being investigated for alleged irregularities involving contracting
(C) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within DNA, or a lawful national security intelligence investigation conducted by an authorized agency or office within DNA. National security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.
(iii) The right of individual litigants to investigative records currently available by law (such as, the Jencks Act, 18 U.S.C. 3500 is not diminished.
(iv) When the subject of an investigative record is the requester of the record, it may be withheld only as authorized by DoD Directive 5400.11.
(v)
(A) Whenever a request is made which involves access to records or information compiled for law enforcement purposes and the investigation or proceedings involves a possible violation or criminal law where there is reason to believe that the subject of the investigation or proceedings is unaware of its pendency, and the disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings. Components may, during only such times as that circumstance continues, treat the records or information as not subject to the FOIA. In such situation, the response to the requester will state that no records were found.
(B) Whenever informant records maintained by a criminal law enforcement organization within a DoD component under the informant's name or personal identifier are requested by a third party using the informant's name or personal identifier, the Component may treat the records as not subject to the FOIA, unless the informant's status as an informant has been officially confirmed. If it is determined that the records are not subject to exemption 7, the response to the requester will state that no records were found.
(8)
(9)
Information that has not been given a security classification pursuant to the criteria of an Executive Order, but which may be withheld from the public for one or more of the reasons cited in FOIA exemptions 2 through 9 shall be considered as being for official use only. No other material shall be considered or marked “For Official Use Only” (FOUO) and FOUO is not authorized as an anemic form of classification to protect national security interests. See DNA Instruction 5230.2A
(a)
(b)
(c)
(d)
(e)
(f)
(2) Record copies of FOUO documents shall be disposed of in accordance with the disposal standards established under 44 U.S.C. chapter 33, as implemented by DNA instructions concerning records disposal.
(g)
Please conduct a search within your organization to determine if there is information/documents responsive to the attached FOIA request.
If you recommend withholding information from the documents requested, please refer to the FOIA exemptions listed on the reverse.
If this request is for a technical proposal, please provide the name and address for the contact person at the company which was awarded the contract and the name and office symbol to the TM.
Record time spent on this request and the number of pages copied on the enclosed DD Form 2086.
If you believe other DNA offices should be involved in processing this request, please advise PAO ASAP.
If you have any questions call PAO, 57095 or 57306. Do not place this FOIA action in distribution.
Enclosures:
DNA Form 524 (28 June 90) Previous Editions Obsolete.
(b)(1) Applies to information which is currently and properly classified pursuant to an Executive Order in the interest of national defense or foreign policy. (See Executive Order 12356, DoD Regulation 5200.1-R and DNA Instruction 5400-7C.)
(b)(2) Applies to information which pertains solely to the internal rules and practices of the Agency; this exemption has two profiles, “high” and “low.” The “high” profile permits withholding of a document which, if released, would allow circumvention of an agency rule, policy, or statute, thereby impeding the agency in the conduct of its mission. The “low” profile permits
(b)(3) Applies to information specifically exempted by a statute establishing particular criteria for withholding. The language of the statute must clearly state that the information will not be disclosed.
(b)(4) Applies to information such as trade secrets and commercial or financial information obtained from a company on a privileged or confidential basis which, if released, would result in competitive harm to the company.
(b)(5) Applies to inter- and intra-agency memoranda which are deliberative in nature; this exemption is appropriate for internal documents which are part of the decision making process, and contain subjective evaluations, opinions and recommendations.
(b)(6) Applies to information release of which could reasonably be expected to constitute a clearly unwarranted invasion of the personal privacy of individuals; and
(b)(7) Applies to records or information compiled for law enforcement purposes that (A) could reasonably be expected to interfere with law enforcement proceedings, (B) would deprive a person of a right to a fair trial or impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of others, (D) disclose the identity of a confidential source, (E) disclose investigative techniques and procedures, or (F) could reasonably be expected to endanger the life or physical safety or any individual.
(b)(8) Permits the withholding of matters contained in, or related to, examination, operating or conditions reports prepared by, on behalf of, or for the use of, an agency responsible for the regulation and supervision of financial institutions.
(b)(9) Permits the withholding of geological information and data including maps, concerning wells.
5 U.S.C. 552.
This document implements the “Freedom of Information Act (FOIA),” 5 U.S.C., as amended, with the Defense Intelligence Agency (DIA) and outlines policy governing release of records to the public.
This part applies to all DIA elements, and governs the public release of records of these elements.
(a) Upon receipt of a written request, the DIA will release to the public, records concerning its operations and activities which are rightfully public information. Generally, information, other than that exempt in § 292.6, will be provided to the public. The following policy will be followed in the conduct of this program.
(1) The provisions of the FOIA, as implemented by 32 CFR part 286 and this part, will be supported in both letter and spirit.
(2) Requested records will be withheld only when a significant and legitimate governmental purpose is served by withholding them. Records which require protection against unauthorized release in the interest of the national defense or foreign relations of the United States will not be provided.
(3) Official requests from Members of Congress, acting in their official capacity, will be governed by DoD Directive 5400.4,
(4) Records will not be withheld solely because their release might result in
(5) The applicability of the FOIA depends on the existence of an “identifiable record” (5 U.S.C. 552(a)(3)). Accordingly, if the DIA has no record containing information requested by a member of the public, it is under no obligation to compile information to create or obtain such a record.
(6) The mission of the DIA does not encompass regulatory or decision-making matters in the sense of a public use agency; therefore, extensive reading room material for the general public is not available.
(7) Pursuant to 5 U.S.C. 552 (a)(4)(A) fees may apply with regard to services rendered the public under the Freedom of Information Act (See appendix A to this part). With regard to fees, the specific guidance of DoD, as set forth in DoD 5400.7-R will be followed.
(b) This basic policy is subject to the exemptions recognized in 5 U.S.C. 552 (b) and discussed in section 292.6.
(a)
(b) The following are not included within the definition of the word “record:”
(1) Objects or articles, such as structures, furniture, paintings, sculptures, three-dimensional models, vehicles and equipment, whatever their historical value or value as evidence.
(2) Administrative tools by which records are created, stored, and retrieved, if not created or used as sources of information about organizations, policies, functions, decisions, or procedures of a DoD Component. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of medium are not agency records. (This does not include the underlying data which is processed and produced by such software and which may in some instances be stored with the software.) Exceptions to this position are outlined in paragraph (b)(2)(i) of this section.
(i) In some instances, computer software may have to be treated as an agency record and processed under the FOIA. These situations are rare, and shall be treated on a case-by-case basis. Examples of when computer software may have to be treated as an agency record are:
(A) When the data are embedded within the software and cannot be extracted without the software. In this situation, both the data and the software must be reviewed for release or denial under the FOIA.
(B) When the software itself reveals information about organizations, policies, functions, decisions, or procedures of the Agency, such as computer models used to forecast budget outlays, calculate system costs, or optimization models on travel costs.
(3) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(4) Personal notes 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.
(5) Information stored within a computer for which there is no existing computer program or printout for retrieval of the requested information.
(c) The prior application of FOR OFFICIAL USE ONLY (FOUO) markings is not a conclusive basis for withholding a record that is requested under the FOIA. When such a record is requested, the information in it will be evaluated to determine whether, under current circumstances, FOIA exemptions apply and whether a significant and legitimate Governmental purpose is served by withholding the record or portions of it.
(d) A record must exist and be in the possession or control of the DIA at the time of the request to be considered subject to this regulation. There is no obligation to create, compile, or obtain a record to satisfy an FOIA request.
(e)
(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, non-random search based on the DIA's filing arrangements and existing retrieval systems, or unless the record contains enough Category II information to permit inference of the Category I elements needed to conduct such a search.
(f) Requests for records may be denied only when the official designated in § 292.8 determines that such denial is authorized by the FOIA.
(g) When an initial request is denied, the requester will be apprised of the following:
(1) The basis for the refusal shall be explained to the requester, in writing, identifying the applicable statutory exemption or exemptions invoked under provisions of this part.
(2) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review.
(3) The final denial shall include the name and title or position of the official responsible for the denial.
(4) The response shall advise the requester with regard to denied information whether or not any reasonably segregable portions were found.
(5) The response shall advise the requester of the right to appeal within 60 days of the date of the initial denial letter.
(h)(1) Initial availability, releasability, and cost determinations will normally be made within 10 working days of the date on which a written request for an identifiable record is received by the DIA. If, due to unusual circumstances, additional time is needed, a written notification of the delay will be forwarded to the requester within the 10 working day period. This notification will briefly explain the circumstances for the delay and indicate the anticipated date for a substantive response. The period of delay, by law, may not exceed 10 additional working days.
(2) Requests shall be processed in order of receipt. However, this does not preclude DIA from completing action on a request which can easily be answered, regardless of its ranking within the order of receipt. DIA 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 DIA.
(a) Requests to obtain copies of records must be made in writing. The requests should contain at least the following information:
(1) Reasonable identification of the desired record as specified in § 292.4(e), including (if known) title or description, date, and the issuing office.
(2) With respect to matters of official records concerning civilian or military personnel, the first name, middle name or initial, surname, date of birth, and social security number of the individual concerned, if known.
(b) Persons desiring records should direct inquiry to: Defense Intelligence Agency, ATTN: DSP-1A (FOIA), Washington, DC 20340-3299.
The following type of records may be withheld in whole or in part from public disclosure unless otherwise prescribed by law.
(a)
(1) The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, DIA shall neither confirm or deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist will itself disclose national security information.
(2) Information that concerns one or more of the classification categories established by Executive Order and DoD 5200.1-R shall be classified if its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
(b)
(1) Records qualifying under high (b)(2) are those containing or constituting, rules, regulations, orders, manuals, directives, and instructions the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the Department of Defense.
(2) Records qualifying under the low (b)(2) profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose the records.
(c)
(d)
(2) When a request is received for a record that was obtained or provided by a non-U.S. Government source, the source of the record or information (also known as “the submitter” for matters pertaining to proprietary data) shall be notified promptly of that request and afforded reasonable time (e.g. 30 calendar days) to present any objections concerning the release, unless it is clear that there can be no valid basis for objection. This practice is required for those FOIA requests for data not deemed clearly exempt from disclosure under Exemption (b)(4). For further guidance, see DoD 5400.7-R, paragraph 5-207.
(e)
(f)
(g)
(1) Could reasonably be expected to interfere with enforcement proceedings.
(2) Would deprive a person of a right to a fair trial or an impartial adjudication.
(3) Could constitute an unwarranted invasion of the personal privacy of others (also see DoD 5400.7-R, paragraph 3-200, Number 7 a. 3. (a)-(c)).
(4) Could disclose the identity of a confidential source.
(5) Would disclose investigative techniques and procedures, or
(6) Could endanger the life or physical safety of law enforcement personnel. This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for, law enforcement purposes.
(a) A requester may appeal an initial decision to withhold a record. Further, if a requester determines a “no record” response in answer to a request to be adverse, this determination may also be appealed. Appeals should be addressed to: Defense Intelligence Agency, ATTN: DSP-1A (FOIA), Washington, DC 20340-3299.
(b) The requester shall be advised that the appellate authority must receive an appeal no later than 60 calendar days after the date of the initial denial letter.
(c) Final determination on appeals normally will be made within 20 working days of receipt of the appeal at the above address. If additional time is needed to decide the appeal because of unusual circumstances, the final determination may be delayed for the number of working days, not to exceed 10, which were not utilized as additional time for responding to the initial request. Appeals shall be processed in order of receipt. However, this does not preclude DIA from completing action on an appeal request which can easily be answered, regardless of its ranking within the order of receipt. DIA may expedite action on an appeal 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 DIA.
(d) When an appeal is denied, the requester will be apprised of the following:
(1) The basis for the refusal shall be explained to the requester, in writing, identifying the applicable statutory exemption or exemptions invoked under provisions of this part.
(2) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review.
(3) The final denial shall include the name and title or position of the official responsible for the denial.
(4) The response shall advise the requester with regard to denied information whether or not any reasonably segregable portions were found.
(5) The response shall advise the requester of the right to judicial review.
When a request for information or records is received, the following will apply:
(a)
(2) Maintains appropriate suspenses and authorizes all extensions of response time.
(3) Acts as the responsible operating office for all Agency actions related to the FOIA.
(4) Drafts and transmits responses on:
(i) The release of records and/or information.
(ii) Obtaining supplemental information from the requester.
(iii) Informing the requester of any fees required.
(iv) The transfer to another element or agency of the initial request.
(5) Fulfills the annual reporting requirement and maintains appropriate records.
(6) Acts as the responsible official for all initial denials of access to the public.
(b) All DIA elements:
(1) When identified by DSP-1A as the Office of Primary Responsibility (OPR) will:
(i) Search files for any relevant records, and/or
(ii) Review records for possible public release within the time constraints assigned, and
(iii) Prepare a documented response in any case of nonrelease.
(2) All employees are required to read this part to ensure familiarity with the requirements of the FOIA as implemented.
(c)
(2) Secures coordination when necessary with the General Counsel, DoD, on denials of public requests.
(3) Acts as the focal point in all judicial actions.
(4) Reviews all final denials.
(d) The Director, and on his behalf, the Chief of Staff:
(1) Exercises overall staff supervision of the FOIA activities of the Agency.
(2) Acts as the responsible official for all denials of appeals.
a. Manual search or review—
b. Computer search is based on direct cost of the central processing unit, input-output devices, and memory capacity of the actual computer configuration. The salary scale (equating to paragraph a. above) for the computer/operator/programmer determining how to conduct and subsequently executing the search will be recorded as part of the computer search.
c. Actual time spent travelling to a search site, conducting the search and return may be charged as FOIA search costs.
d. See Chapter VI of DoD 5400.7-R for further guidance on fees.
5 U.S.C. 552a.
This part implementations the Freedom of Information Act (FOIA) and 32 CFR part 286 to establish a uniform process in responding to FOIA requests received by the National Imagery Mapping Agency (NIMA).
It is NIMA policy that:
(a) Agency records that, if disclosed, would cause no foreseeable harm to an interest protected by a FOIA exemption, will be made readily accessible to the public.
(b) NIMA organizations will ensure that internal procedural matters do not unnecessarily impede a FOIA requester from promptly obtaining NIMA records.
This part applies to all NIMA organizations and is intended as a brief overview of the FOIA process within NIMA. To obtain complete guidance, this instruction must be used in conjunction with 32 CFR part 286. Additional assistance is also available from the Office of General Counsel (GC).
(1) A product of data compilation (such as all books, papers, maps, photographs, and machine-readable materials including those in electronic form or format) or other documentary materials (such as letters, memos, or notes) regardless of physical form or characteristics that is made or received by NIMA in connection with the transaction of public business, and is in NIMA's possession and control at the time the FOIA request is made.
(2) The following are not considered Agency records:
(i) Objects or articles, such as structures, furniture, vehicles, and equipment.
(ii) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(iii) Personal records of an individual not subject to agency creation or retention requirements, that have been created and maintained primarily for the convenience of the Agency employee, and that are not distributed to other Agency employees for their official use. Personal records fall into three categories: those created before entering Government service; private materials brought into, created, or received in the Office that were not created or received in the course of transacting Government business; and work-related personal papers that are not used in the transaction of Government business.
(3) Agency records available to the public through an established public distribution system, the
(4) To be subject to the FOIA, the Agency record being requested must actually exist and be in the possession and control of the Agency at the time a FOIA request is made. There is no obligation to create, compile, or obtain a record to satisfy a FOIA request.
(1) Information that is currently and properly classified pursuant to an Executive Order in the interest of national defense or foreign policy.
(2) Information that pertains solely to the internal rules and practices of the Agency. This exemption has two profiles, high and low. The high profile permits withholding of a document that, if released, would allow circumvention of an Agency rule, policy, or statute, thereby impeding the Agency in the conduct of its mission. The low profile permits withholding of the record if there is no public interest in the record, and it would be an administrative burden to process the request. Activities should not rely on the low profile exemption because the Department of Justice may not defend its use.
(3) Information specifically exempted from disclosure by a statute that establishes particular criteria for withholding the record. The language of the statute must clearly state that the information will not be disclosed.
(4) Information such as trade secrets and commercial or financial information obtained from a company on a privileged or confidential basis that, if released, would result in competitive harm to the company.
(5) Inter- and intra-agency momoranda that are deliberative in nature. This exemption is appropriate for internal documents that are part of the decision-making process, and contain subjective evaluations, opinions, and recommendations. A document must be both deliberative and part of a decision-making process to qualify for this exemption.
(6) Information from personnel and medical files that would result in a clearly unwarranted invasion of personal privacy if disclosed or released.
(7) Records or information compiled for law enforcement purposes that:
(i) Could reasonably be expected to interfere with law enforcement proceedings.
(ii) Would deprive a person of a right to a fair trial or impartial adjudication.
(iii) Could reasonably be expected to constitute an unwarranted invasion of the personal privacy of others.
(iv) Would disclose the identity of a confidential source; would disclose investigative techniques and procedures; and
(v) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) The examination, operation, or condition reports prepared by, on behalf of, or for the use of any Agency responsible for the regulation or supervision of financial institutions.
(9) Geological and geophysical information and data (including maps) concerning wells.
(1)
(2) Any person, including a member of the public (U.S. or foreign citizen or entity), an organization, or a business can make FOIA requests. Requests from officials of State or local Governments for NIMA records are considered the same as requests from any other requester. Requests from members of Congress not seeking records on behalf of a congressional committee or subcommittee, and requests from either House sitting as a whole or made on behalf of constituents are considered the same as requests from any other requester. Requests from foreign governments that do not invoke the FOA are referred to appropriate foreign disclosure channels and the requester is so notified by GC.
(1) As of September 22, 1996 were maintained by National Photographic Interpretations Center (NPIC) or
(2) Concern the activities of the Agency as of that date that were performed by NPIC. Questions on operational files created after 22 September 1996 should be directed to GC.
(a)
(1) Designates the Agency initial denial authority (IDA) and appellate authority (AA).
(2) Appoints substitutes for the current IDA or AA if necessary.
(b)
(c)
(d)
(1) Administers NIMA's FOIA program for processing FOIA requests received by NIMA.
(2) Processes all requests for mandatory declassification review in response to requests for declassificaton that meet the requirements of Executive Order 12958.
(3) Submits this part to the Department of Defense to publish in the Code of Federal Regulations and the
(e) Office Directors in the functional Directorates and the Office Directors who are aligned with D/NMA (for example, Office of General Counsel, Office of Inspector General, Chief of Staff, International and Policy Office, or Mission Support Office) with regard to search for records.
(1) Appoint an Office point of contact (POC) to whom FOIA requests can be directed from GC and who serves as a direct liaison with GC.
(2) Forward, through the POC, the FOIA request from GC to the organization most likely to hold or maintain the records being requested.
(3) Direct, through the POC, a search for the records be completed in a timely manner and respond directly to GC on the outcome of the search.
(f)
(1) Appoint an employee to act as the POC for the Office.
(2) Oversee and coordinate, through the POC, declassification reviews for FOIA.
(3) Make, through the POC, recommendations to the mandatory declassification officer (MDO) on the declassification of Agency records.
(g)
(1) Conducts declassification reviews for FOIA.
(2) Advises GC whether Agency records are properly classified in accordance with Executive Order 12958 and should be withheld from public release or disclosure.
(a)
(1) Assesses and collects fees for costs associated with processing FOIA requests, and approves or denies requests for fee waivers. Fees collected are forwarded through the Financial Management Directorate (CFO) to the U.S. Treasury.
(2) Approves or denies requests for expedited processing.
(3) Sends a “no records” response to FOIA requesters after a records search reveals that no Agency records exist that are responsive to the FOIA request.
(4) Provides training with NIMA on the FOIA law and Agency processing procedures.
(5) Conducts periodic reviews of NIMA's FOIA program.
(6) Maintains a public reading room for inspecting and copying Agency records and arranges appointments for access to reading room records.
(7) Maintains an “electronic” reading room for Agency records, an index for frequently requested records, a FOIA handbook, and other material as required by the FOIA on a public Internet website.
(8) Coordinates with other DoD Components, other members of the Intelligence Community, or the Department of Justice, as needed, on FOIA requests referred to NIMA.
(9) Coordinates with other DoD Components, other members of the Intelligence Community, or the Department of Justice, as needed, prior to releasing any records under the FOIA that may also be pertinent to litigation pending against the United States.
(10) Prepares the Annual Report—Freedom of Information Act (DD Form 2564) and forwards the report to the Directorate for Freedom of Information and Security Review, Washington Headquarters Services.
(11) Coordinates responses to all news media requests with the Public Affairs Office (PA) and congressional inquiries with CA.
(12) Coordinates denials of access to Agency records with NIMA's IDA and AA and prepares a legal synopsis and recommendation for release or denial of the record.
(13) Maintains FOIA case files in accordance with the NIMA records management schedules in NI 8040.1.
(b) Searching for responsive NIMA records.
(1) GC forwards a copy of the FOIA request to the appropriate Agency POC. The POC fowards the request to the Office most likely to hold or maintain the records being requested.
(2) The Office conducts a search for records responsive to the FOIA request. all NIMA offices must promptly conduct searches to locate records responsive to a FOIA request, even if the search is likely to reveal classified, sensitive, or for official use only (FOUO) records. A reasonable search includes the search of all activities and locations most likely to have the records that have not been transferred to the National Archives and Records Administration (NARA).
(3) If a reasonable search does not identify or locate records responsive to the request, the Office must provide GC with a “no records” response and provide a recommendation of other Offices in which to conduct the search.
(4) If a reasonable search identifies or locates records responsive to the request, the Office must send two copies of the responsive record to GC and provide a recommendation regarding releasability of the record. Any objection to release of the record must be based on one or more of the FOIA exemptions. The office must also complete and forward DD Form 2086 or DD Form 2086-1, as appropriate, detailing the time and cost incurred in the search, review, and copying of the responsive records.
(5)
(6) All Offices promptly forward or return any misaddressed FOIA requests to GC.
(c)
(d) Withholding Agency records from public release. If the requested record is not releasable because it is either currently and properly classified or falls within another FOIA exemption, GC prepares an analysis on the rationale for denying the record, prepares the initial denial letter to be sent to the FOIA requester, and forwards the materials to the Agency IDA. The Agency IDA reviews the FOIA request and rationale for withholding the record and, if he or she concurs, signs the letter prepared by GC. The letter signed by the Agency IDA advises the FOIA requester that the records requested are being withheld from release, states the amount of material withheld from release, states the FOIA exemptions supporting the denial, and provides information on appealing the decision to the Agency AA. A copy of all initial denial letters is forwarded to GC and maintained in the individual FOIA file.
(e)
(1) If a FOIA requester appeal the initial denial decision of the agency IDA, GC processes the appeal for review by the agency AA. The AA reviews the initial FOIA request, GC's analysis, and the denial decision made by the IDA. The AA has the authority to either uphold the decision made by the IDA, and withhold the requested records from release, or reverse the decision made by the IDA and release all or a portion of the records requested. GC prepares the written response to the FOIA requester for the AA's signature. If the AA makes a final determination to uphold the decision made by the agency IDA, the final Agency response includes the basis for the decision and advises the FOIA requester of the right to seek judicial review.
(2) In addition to denials of information, a FOIA requester also has a right to appeal initial assessments made by GC regarding fee categories, fee waivers, fee estimates, requests for expedited processing, no record determinations, failure to meet the statutory time limits, or any determination found to be adverse by the requester. The authority to uphold or reverse initial assessments made by GC in these areas is the agency AA. The decision of the AA is final.
(f)
(1) Both the FOIA and the Privacy Act give the right to request access to records held by Federal Agencies. Access rights under the FOIA are given to any individual, business, or organization, but the Privacy Act gives access rights only to those individuals who are the subject of the records being requested.
(2) When responding to a request for records under the Privacy Act, detailed guidance on which act to apply may be found in 32 CFR part 286 and 32 CFR part 310. Additional assistance is also available from GC.
5 U.S.C. 552.
This part establishes the policy and sets forth the procedures by which the public may obtain information and
The provisions of this part are applicable to all components of the Office of the Inspector General (OIG) and govern the procedures by which FOIA requests for information will be processed and records may be released under the FOIA.
(a) The products of data compilation, such as books, papers, maps, and photographs, machine readable materials or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law in connection with the transaction of public business and in the OIG's possession and control at the time the FOIA request is made.
(b) The following are not included within the definition of the word “record”:
(1) Objects or articles, such as structures, furniture, vehicles and equipment, whatever their historical value, or value as evidence.
(2) Administrative tools by which records are created, stored, and retrieved, if not created or used as sources of information about organizations, policies, functions, decisions, or procedures of the OIG. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of medium are not agency records. (This does not include the underlying data which is processed and produced by such software and which may in some instances be stored with the software.) Exceptions to this position are outlined in § 295.4(c).
(3) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(4) Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an OIG employee, and not distributed to any other OIG employee for their official use, or otherwise disseminated for official use.
(5) Information stored within a computer for which there is no existing computer program for retrieval of the requested information.
(c) In some instances, computer software may have to be treated as an agency record and processed under the FOIA. These situations are rare, and shall be treated on a case-by-case basis. Examples of when computer software may have to be treated as an agency record are:
(1) When the data is embedded within the software and can not be extracted without the software. In this situation, both the data and the software must be reviewed for release or denial under the FOIA.
(2) Where the software itself reveals information about organizations, policies, functions, decisions, or procedures of the OIG, such as computer models used to forecase budget outlays, calculate retirement system costs, or optimization models on travel costs.
(3) See appendix B to this part for further information on release determinations of computer software.
(d) If unaltered publications and processed documents, such as regulations, manuals, maps, charts, and related geophysical materials are available to the public through an established distribution system with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do not apply and they need not be processed under the FOIA. Normally, documents disclosed to the public by publication in the
(a)
(b)
(c)
(d)
(e)
(a)
(2) Records not specifically exempt from disclosure under the FOIA or prohibited by statutory or other regulatory requirements will, upon request, be made readily accessible to the public.
(3) Records that are specifically exempt from disclosure under the FOIA or prohibited by statutory or other regulatory requirements will be withheld from the public only upon the determination of the initial Denial Authorities identified in § 295.6 of this part, or the designated Appellate Authority.
(b)
(2) Requests from news media representatives for records that are exempt from release under the FOIA, or prohibited from release under other statutory or regulatory authority will be provided to the Freedom of Information Act and Privacy Act (FOIA/PA) Division, Office of the Assistant Inspector General for Investigations, along with the requested records, for review and a release determination and the news media representatives will be so advised.
(3) Extracts of the nonexempt portions of such records may be prepared in response to a specific request from a news media representative but shall be coordinated for release with the FOIA/PA Division. Extracts shall be prepared in accordance with the sample at appendix to § 295.5.
(c)
(2) Any request for OIG records that either explicitly or implicitly cites the FOIA will be processed under the provisions set forth in this part, unless otherwise required by § 295.5(m) of this part. All such requests shall be forwarded to the FOIA/PA Division.
(d)
(2) Receipt of the request will be acknowledged and the requester will be promptly advised of any additional information needed to assure compliance with procedures established in this part. In the event there are a significant number of requests, e.g., 10 or more, the requests will be processed in order of date of receipt. This does not
(3) These provisions also apply to a request received on referral from another DoD Component or government agency and time limits will begin on the date of receipt in the OIG FOIA/PA Division.
(e)
(f)
(g)
(h)
(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, the OIG will 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 will be processed. However, the request will not be processed where the capability to respond does not exist without a significant expenditure of resources, thus not be a normal business as usual approach.
(i)
(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.
(2) When the OIG receives a request that does not “reasonably describe” the requested record with sufficient Category I information to permit the conduct of an organized nonrandom search, or sufficient Category II information to permit inference of the Category I elements needed to conduct such a search, the requester will be notified in writing of the defect and of the need for more specific identification of the records sought. The specificity letter will provide guidance in identifying the records sought and in reformulating the request to reduce the burden on the OIG in complying with the FOIA. The OIG is not obligated to act on requests until an adequate description is provided by the requester.
(3) When the OIG receives a request in which only personal identifiers, e.g., name and Social Security Account Number, are provided in connection with the request for records concerning the requester, only records retrievable by personal identifiers will be searched. The search for such records may be conducted under Privacy Act procedures. No record will be denied that is releasable under the FOIA.
(j)
(2) The OIG will refer a FOIA request to another DoD Component or to a Government agency outside the DoD when the OIG has no records responsive to the request, but believes the other DoD Component or outside agency may have, and the other DoD Component or outside agency has confirmed that it holds the record. When the other DoD Component or outside agency agrees to the referral, the requester will be advised of the referral and that the OIG has no responsive records, with the following exceptions:
(i) If it is determined by the other DoD Component or outside agency that the existence or nonexistence of the record itself is classified, the OIG will inform the requester only that the OIG has no responsive record and no referral will take place.
(ii) If the record falls under one or more of the “Exclusions” under the FOIA (see appendix B of this part), as determined by the other DoD Component or outside agency, the OIG will advise the requester only that the OIG has no responsive record and no referral will take place.
(3) The OIG will refer a record, or portions of a record that holds but that was originated by another DoD Component or outside agency, or for a record that contains substantial information that originated with another DoD Component or outside agency, to that Component or agency (unless the agency is not subject to the FOIA) for a release determination and/or direct response to the requester. In any such case, direct coordination will be effected and concurrence obtained from the other Component or agency prior to the referral. A copy of the record will be provided to
(4) The OIG will refer a FOIA request for a classified record that it holds, but did not originate, to the originating DoD Component or outside agency (unless the agency is not subject to the FOIA). If the record originated with the OIG but the classification is derivative, i.e., contains classified information that originated elsewhere and was incorporated in the OIG record, the record will be referred to the originating authority with a recommendation for release; or, after consultation with the originating authority, with a request for a declassification review and/or release determination and return of the record. If the requester is the “Whistleblower”, the record will be provided to the originating authority with a request for a release determination and return of the record to the OIG for response to the requester.
(5) The OIG may also refer a request for a record that was originated by the OIG for the use of another DoD Component or outside agency, to that Component or agency with a recommendation for release, after any necessary coordination. The requester will be notified of such action consistent with any security requirements or “Exclusion” provisions of the FOIA.
(6) A FOIA request for investigative, intelligence, or any other type of record on loan from another DoD Component or outside agency to the OIG for a specific purpose will be referred to the DoD Component or outside agency that provided the records, if the records are restricted from further release and so marked. However, if for investigative or intelligence purposes, the outside Component or agency desires anonymity as determined through coordination, the OIG will respond directly to the requester.
(7) A FOIA request for a record, or portions of a record, held by the OIG, that originated with a non-U.S. government agency that is not subject to the FOIA, will be responded to by the OIG.
(8) Notwithstanding anything to the contrary in this section, all requesters seeking National Security Council (NSC) or White House documents will be advised that they should write directly to the NSC or White House for such documents. Should the requester insist upon an OIG search for these records, the OIG will conduct an appropriate search pursuant to the FOIA. OIG/DoD documents in which the NSC or White House has a concurrent reviewing interest will be forwarded by the FOIA/PA Division to the Director, Freedom of Information and Security Review (DFOISR), Office of the Assistant Secretary of Defense (Public Affairs) (OASD(PA)), which shall effect coordination with the NSC or White House, and return the documents to the originating agency after NSC review and determination. The FOIA/PA Division will forward any documents found in OIG files that are responsive to the FOIA request to DFOISR, OASD(PA) for their coordination with the NSC or White House, and return to the OIG with a release determination for final processing of the request.
(9) On occasion, the OIG receives FOIA requests for General Accounting Office (GAO) documents containing OIG information. Even though the GAO is outside of the Executive Branch, and not subject to the FOIA, all FOIA requests for GAO documents containing DoD information received directly from the public, or on referral from the GAO, will be processed under the provisions of the FOIA.
(k)
(l)
(m)
(1) Where requesters seek records about themselves which are contained in a PA system of records and cite or imply the PA, the OIG will process their requests under the provisions of the PA.
(2) Where requesters seek records about themselves which are not contained in a PA system of records and cite or imply the PA, the requests will be processed under the provisions of the FOIA, since they have no access under the PA.
(3) Where requesters seek records about themselves that are contained in a PA system of records and cite or imply the FOIA or both Acts, the requests will be processed under the time limits of the FOIA and the exemptions and fees of the PA. This is appropriate since greater access will generally be received under the PA.
(4) Where requesters seek agency records (as opposed to personal records) and cite or imply the PA and FOIA, or where requesters cite or imply only the FOIA, the requests will be processed under the FOIA.
(5) Requesters will be advised in the final responses to their requests why a particular Act was used in processing their requests.
(n)
(i) Final opinions, including concurring and dissenting opinions, and orders made in the adjudication of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied upon as precedents in future adjudications.
(ii) Statements of policy and interpretations that have been adopted by the agency and are not published in the
(iii) Administrative staff manuals and instructions, or portions thereof, that establish OIG policy or interpretations of policy that affect a member of the public. This provision does not apply to instructions for employees on tactics and techniques to be used in performing their duties, or to instructions relating only to the internal management of the OIG. Examples of manuals and instructions not normally made available are:
(A) Those issued for audit, investigation, and inspection purposes, or those that prescribe operational tactics, standards of performance, or criteria for defense, prosecution, or settlement of cases.
(B) Operations and maintenance manuals and technical information concerning munitions, equipment, systems, and foreign intelligence operations.
(2) Thus, materials considered to meet the preceding definition of the FOIA “(a)(2)” requirements will be made available for public inspection and copying upon written request to the address indicated in § 295.7(b)(1) of this part, unless such materials have been published and are offered for sale or subscription. Upon receipt of the request, arrangements will be made at a time convenient to both the requester and the OIG, for the review and copying. If the publishing activity is out of stock of the published, for sale material and does not intend to reprint, then the preceding procedure will apply to the published material as well.
(3) When appropriate, the cost of copying any “(a)(2)” materials will be
(4) The OIG will prepare an index of “(a)(2)” materials, or supplement thereto, arranged topically or by descriptive words rather than by case name or numbering system so that members of the public can readily locate material. Separate case name and numbering arrangements may be added for OIG convenience.
(5) The IG has determined that it is not practical nor feasible to prepare an index of the “(a)(2)” materials on a quarterly basis, nor to publish the annual “IG Publications Index” in the
(o)
(2) Requesters must indicate their willingness to pay fees in their initial FOIA request. If a waiver of fees is requested, a statement regarding their willingness to pay fees in the event a waiver or reduction of fees is denied is still required. Any requests not containing a statement regarding a willingness to pay assessed fees will not be processed and the requester will be so advised.
(3) Fees will not be required to be paid in advance of processing the request for release of the records requested except:
(i) When the requester is known to be in default of payment of fees incurred in connection with a previous request.
(ii) When the total amount of estimated fees assessable to the requester exceeds $250.00 and waiver is not appropriate, a “good faith” deposit of half of the amount of the estimated fees may be required before completing the processing of the request, or providing the requested records, in the case of a requester with no history of payment. Where the requester has a history of prompt payment, the OIG will notify the requester of the likely cost and obtain satisfactory assurance of full payment.
(4) When the OIG has completed all work on a request and the documents are ready for release, advance payment may be requested before forwarding the documents if there is no payment history on the requester. Where there is a history of prompt payment by the requester, the OIG will not hold documents ready for release pending payment.
(5) Fee waivers will be granted on a case-by-case basis when the OIG determines that waiver or reduction of the fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the OIG and the Department of Defense and is not primarily in the commercial interest of the requester. In any request for waiver of fees, the requester must provide sufficient information to enable the IDA to make a proper determination of whether or not the fees should be waived.
(6) In cases where the requester fails to provide sufficient persuasive information upon which to make a determination for waiver of the fees, the requester shall be so informed and given the opportunity to submit additional justification. Absent such justification, the requester may be required to pay fees appropriate to his/her category, if provision of the information is determined not to be in the public interest or benefit.
(7) Payments of fees must be by check or U.S. Postal money order made payable to the Treasurer of the United States. Cash payments cannot be accepted.
(p)
(2) A “no record” finding may be considered to be adverse, and if so interpreted by the requester, may be appealed using the normal OIG appeal procedures. The OIG will conduct an additional search of files, based on the receipt of an appeal to a “no record” response, as a part of the appellate process.
(3) All final decisions rendered on appeals will be made to the requesters in writing by the Appellate Authority, after consultation with the Office of General Counsel (OGC) representative to the OIG, and other appropriate OIG elements.
(4) Final determinations on appeals normally shall be made within 20 working days after receipt. The appeal will be deemed to have been received when it reaches the FOIA/PA Division, for administrative processing on behalf of the Appellate Authority. Misdirected appeals are to be referred expeditiously to the FOIA/PA Division.
(5) A requester will be deemed to have exhausted his/her administrative remedies after he/she has been denied the requested record or waiver/reduction of fees, by the designated Appellate Authority, or when the OIG FOIA/PA Division fails to respond to the request within the time limits prescribed by the FOIA, DoD 5400.7-R (32 CFR part 286) and this part. The requester may then seek judicial action from a U.S. Distrist Court in the district in which the requester resides, has a principal place of business, in the district in which the record is located, or in the District of Columbia.
(6) Records that are denied on appeal shall be retained for a period of six years, in accordance with IGDM 5015.2,
The material contained herein is an Extract of information from (Name of Original Document), which has been determined to be in the public domain. The remaining material not provided herein may be requested under the provisions of the Freedom of Information Act.
(a) The Assistant Inspector General (AIG) for Investigations is responsible for the overall implementation and administration of the FOIA program in the OIG, and for the designation of the IDAs.
(b) The Director, Investigative Support is designated as an IDA and is responsible for the overall operation of the FOIA program in the OIG.
(c) The Assistant Director, FOIA/PA Division, Investigative Support Directorate is designated as an IDA and will:
(1) Serve as the point of contact on all FOIA matters for the OIG.
(2) Coordinate and respond to all requests received from the public for records in accordance with the policy established and procedures set forth in this part, and in all applicable DoD directives, regulations and instructions.
(3) Coordinate requests received from the public for records to the extent considered necessary, with the DFOISR, OASD(PA), other DoD Components, other Federal agencies, and other OIG elements.
(4) Arrange for the collection of fees are prescribed by the policy as established in this part.
(5) Maintain the FOIA case files in accordance with IGD Manual (IGDM) 5015.2,
(6) Recommend action to be taken on all appeals of fees, appeals of fee waiver denials, and appeals of denials to access of records requested, to the Appellate Authority.
(7) Review OIG publications to assure that those which meet the FOIA “(a)(1)” and “(a)(2)” requirements for publication in the
(8) Maintain copies of material required to be made available under the “(a)(2)” provisions of the FOIA for examination and copying by the public,
(9) Establish a training program for OIG personnel who are involved in preparing responsive records for release to the public under the FOIA.
(10) Prepare the Annual Report on the FOIA for forwarding to DFOISR, OASD(PA) as required by 32 CFR part 286.
(d) The AIGs and the Director, IG Regional Office-Europe will:
(1) Comply with, and assure compliance by all of their subcomponents with, the policy established and the procedures set forth in this part.
(2) Appoint a Point of Contact (POC) to interact with the FOIA/PA Division on all FOIA matters, and notify the FOIA/PA Division of any changes in the appointment.
(3) Provide all records responsive to a request as directed by the FOIA/PA Division.
(4) Recommend release/denial action to be taken, indicate applicable exemptions, and provide appropriate rationales.
(e) The Freedom of Information Act Appellate Authority is designated by the Inspector General and will:
(1) Determine the action to be taken on all appeals made by the public of fees, fee waiver/reduction denials, and access denials in accordance with chapter V, section 3, of DoD 5400.7-R (32 CFR part 286).
(2) Coordinate all appellate decisions with the Office of General Counsel, Assistant General Counsel (Fiscal and Inspector General).
(f) The AIG for Administration and Information Management will:
(1) Prepare annually an index of IG publications, statements and documents pertaining to any matter issued, adopted, or promulgated and required to be made available to the public by publication or sale.
(2) Establish and implement any necessary procedures to effect disciplinary action recommended by the Special Counsel of the Merit Systems Protection Board in cases involving the arbitrary and capricious withholding of information and records requested under the FOIA as required by chapter V, section 4, of DoD 5400.7-R (32 CFR part 286).
(a)
(b)
(2) Requests must identify each record sought with sufficient specificity to enable the custodian to locate the record with a reasonable amount of effort. Requesters should provide such information as where the record originated and by whom, its subject matter, its approximate date or timeframe, which element of the OIG is likely to have custodianship, or any other similar information that would assist in locating the record. Requests must also contain a statement regarding willingness to pay fees.
(3) A request from an individual who made an allegation of wrongdoing to the IG, or any protected disclosure under the “Whistleblower Protection Acts,” and who is seeking the results of any investigation or inquiry conducted into the allegation, should identify him/herself as the “Whistleblower” in the request. The request should indicate whether he/she wishes to continue anonymity, should be notarized to avoid the risk of losing the anonymity, and should contain a statement regarding willingness to pay fees.
(4) A request for a personal record or investigative record pertaining to the individual making the request, that is in a system of records whether nonexempt or exempted from mandatory release under the Privacy Act, must be notarized to avoid the risk of invasion of personal privacy. In any such request, the individual may designate another individual to act as his/her representative in making the request and in receiving the records on his/her behalf; however, the authorization must
(5) A request for a record that was obtained from a non-U.S. Government source, and that is subject to exemption (b)(4) under the FOIA, will be released to the individual or firm making the request without further exception, if:
(i) The individual or firm is clearly the submitter of the information and/or is clearly acting on behalf of the submitter in making the request.
(ii) The request contains a statement from a company official or other representative of the submitter clearly capable of certifying that the requester is acting on behalf of the submitter of the information in making the request; i.e., a Vice-President certifies on his/her company letterhead that XYZ Law Firm is acting on behalf of the company in requesting copies of documents submitted to the government by the company. A mere assertion by the requester that the requester is acting on behalf of the submitter in making the request will not be honored, if it cannot be readily verified through records available to the OIG.
(c)
(2) Requests from members of Congress, or their staffs, not seeking records on behalf of a Congressional Committee, Subcommittee, or either House sitting as a whole, will be considered the same as any other requester. Requests from members of Congress, or their staffs, made on behalf of their constituents will also be considered the same as any other requester.
(3) Requests from officials of foreign governments shall be considered the same as any other requester. Requests from officials of foreign governments that do not invoke the FOIA shall be referred to appropriate foreign disclosure channels and the requester so notified.
(d)
(e)
(i) To a Committee or Subcommittee of Congress, or to either House sitting as a whole in accordance with DoD Directive 5400.4,
(ii) To the Federal courts whenever ordered by officers of the court as necessary for the proper administration of justice
(iii) To other Federal agencies both executive and administrative as determined by the IG or the IG's designee.
(2) On all such releases, the officials receiving records under the above provisions will be informed in writing that the records are exempt from public release under the FOIA and are privileged. The OIG components will also advise the receiving officials of any special handling instructions.
(f)
(2) If the request does not meet the adequacy of description test, contain a statement regarding fees, or contain a notarized signature/authorization or a certification of submitter representation, if applicable; the request will be acknowledged as having been received and the requester will be notified of the defect and advised of the means necessary to correct the defect and comply with the procedures. If the requester does not correct the defect within the time allowed (generally 30 calendar days) in the defect notice, the following actions will be taken:
(i) Where the request does not meet the adequacy of description test, the request will be administratively closed and the requester so advised.
(ii) Where the request meets the adequacy of description test but fails to comply with the remaining procedural requirements, and the time allowed in the defect notice for compliance by the requester has elapsed, the request will be processed to the extent possible consistent with DoD 5400.7-R (32 CFR part 286) and this part.
(3) When it is determined that a request complies with all applicable procedures, the necessary search and collection of responsive records will be initiated through the Component(s) of the OIG likely to have custodianship of the sought records.
(4) Where the appropriate OIG Component has determined that no record responsive to the request exists, the POC for the OIG Component will so advise the FOIA/PA Division within the due date assigned to the POC. The requester will be notified in writing by the IDA, within 10 working days from the date of receipt of the request, that no responsive records exist; and, of the right and means by which to appeal the no record response as an adverse determination.
(5) When it is determined that the records sought are part of an ongoing audit, inspection, or investigation, the requester will be advised of such (subject to the “Exclusions” under the FOIA identified in appendix B, of this part). The requester will be informed of the estimated timeframe for completion of the ongoing audit, inspection, or investigation and asked if he/she wishes to withdraw the request and resubmit it upon completion of the ongoing process. If the requester chooses not to withdraw the request, the processing will be continued and an appropriate release determination will be made, consistent with the statutory provisions of the FOIA.
(6) When responsive records have been located, the POC for the OIG element having the records will forward the records to the FOIA/PA Division with a recommendation for release on SD Form 472, “Request Information Sheet,” along with a completed DD Form 2086. “Record of Freedom of Information (FOI) Processing Cost.” The records will be reviewed and an initial determination to release or deny will be made.
(g)
(2) Other than statutory denials, there are six other reasons for not complying with a request for a record:
(i) The request is transferred to another DoD Component or Federal agency.
(ii) The request is withdrawn by the requester.
(iii) The information requested is not a record within the meaning of the FOIA and § 295.3(a) of this part.
(iv) A record has not been described with sufficient particularity to enable those that OIG to locate it by conducting a reasonable search.
(v) The requester has failed unreasonably to comply with the procedural requirements, including the payment of fees, imposed by 32 CFR part 286 and this part.
(vi) The OIG has determined through knowledge of its files and reasonable search efforts that it neither controls nor possesses the requested record.
(3) Initial determinations to release or deny a record normally will be made and the decision reported to the requester within 10 working days, provided that the requester has complied with the preliminary procedural requirements.
(4) When requests are denied in whole in part, the requester will be informed in writing of the reasons for the denial, the identity of the official making the denial, the right of appeal of the decision, and the identity and address of the official to whom an appeal may be made.
(5) The explanation of the substantive basis for a denial will include specific citation of the statutory exemption applied under provisions of the FOIA. Mere reference to a classification or to a “For Official Use Only” marking will not constitute a basis for invoking an exemption. When the initial denial is based in whole or in part on a security classification, the explanation will include a summary of the applicable criteria for the classification.
(h)
(2) Although portions of some records may be denied, the remaining reasonably segregable portions will be released to the requester when it can be assumed that a skillful and knowledgeable person could not reconstruct the excised information. When a record is denied in whole, the IDA will advise the requester of that determination.
(i)
(i) The requested record is located in whole or in part at another geographic location than that of the FOIA/PA Division.
(ii) The request requires the collection and/or evaluation of a substantial number of records.
(iii) Consultation is required with other DoD Components or agencies having substantial interest in the subject matter to determine whether the records requested are exempt from disclosure in whole or in part under provisions of the FOIA and this part or should be released as a matter of discretion.
(2) In any such event, efforts will be made to negotiate an informal extension in time with the requester by the FOIA/PA Division. If the requester chooses not to agree informally to an extension in time, a written explanation of the reasons for delay will be provided to the requester and the requester will be asked to await a substantive response by an anticipated date.
(j)
(2) If a “good faith” deposit is required, the requester will be allowed a reasonable time (generally 30 calendar days) in which to provide payment. If the requester fails to provide the “good faith” deposit within the time allowed, the request will be closed and the requester so notified.
(3) In all other cases, the requester will be notified of any fees due at the time the requested records are provided to the requester, and allowed a reasonable time (generally 30 calendar days) in which to pay the fees.
(4) If the requester fails to pay the fees in the time allowed, a notice of nonpayment will be placed in the formal control system and no further FOIA requests from the requester will
(k)
(2) This procedure is required for those FOIA requests for data not deemed clearly exempt from disclosure under exemption (b)(4). If, for example, the record or data was submitted by the non-U.S. Government source with the actual or presumptive knowledge of the source, and established that it would be made available to the public upon request, there is no requirement to notify the source.
(3) All objections will be evaluated. When a substantial issue has been raised, the OIG may seek additional information and afford the source and requester reasonable opportunities to present their arguments on the legal and substantive issues involved prior to making a determination.
(4) The OIG will not ordinarily exercise its discretionary authority to release information clearly meeting the exemption (b)(4) criteria. Further, the final decision to disclose information not deemed to clearly meet exemption (b)(4) criteria will be made by an official equivalent in rank or greater to the official who would make the decision to withhold that data under a FOIA appeal.
(5) When the source or submitter advises of the intent to seek a restraining order or to take court action to prevent release of the data, the requester will be notified and action will not be taken on the request until after the outcome of the court action is known. When the requester brings court action to compel disclosure, the source shall be promptly notified of this action.
(6) These procedures also apply to any non-U.S. Government record in the possession and control of the OIG from multi-national organizations, such as the North Atlantic Treaty Organization (NATO) and the North American Aerospace Defense Command (NORAD), or foreign governments. Coordination of such FOIA requests with foreign governments will be made through the Department of State by the FOIA/PA Division.
(l)
(2) The OGC representative shall effect all necessary coordination with the United States Attorney and/or Department of Justice prior to any release of such records.
(m)
(2) All appeals should provide sufficient information and justification upon which a determination may be made by the Appellate Authority as to whether to grant or deny the appeal; or, in the event of a “no record determination” sufficient information and/or justification upon which additional record searches may be based. A copy of the initial request and initial denial, and “no record” or fee advisement letter should be included.
(3) The FOIA/PA Division administers the appeals for the Appellate Authority. All appeals should be addressed to the Assistant Director, FOIA/PA Division, OAIG for investigations, 400 Army Navy Drive, Arlington, VA 22202-2884.
(4) Upon receipt in the FOIA/PA Division, the appeal will be assigned a control number, logged, and prepared for provision to the Appellate Authority for a final determination. Receipt will be acknowledged in writing within 10 working days and the requester advised of any additional time needed due to the unusual circumstances described in § 295.7(i) of this part.
(5) If additional time is required, the final decision may be delayed for the number of working days (not to exceed 10) that were not used as additional time for responding to the initial request. If no additional time is required, the requester will be advised in writing of the final decision within 20 working days.
(6) If the appeal is approved in part or in whole, or responsive records located upon additional search, the requester will be informed and promptly provided any records determined to be releasable.
(7) If “no records” can be located in response to the appeal, the requester will be informed that no records were located, of the identity of the official making the final determination, and of the right to judicial review.
(8) If the appeal of the initial denial of responsive records is denied in part or in whole, the requester will be advised of the applicable statutory exemption or exemptions invoked under the provisions of the FOIA for the denial, the identity of the official making the final determination, that meaningful portions of any denied records were not reasonably segregable, and of the right to judicial review.
(9) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review, with an explanation of how that review confirmed the continuing validity of the security classification.
(10) Final refusal involving issues not previously resolved or that the OIG knows to be inconsistent with rulings of other DoD components ordinarily will not be made before consultation with the Assistant General Counsel (Fiscal and Inspector General), OGC, DoD.
(11) Tentative decisions to deny records that raise new or significant legal issues of potential significance to other agencies of the Government shall be provided to the Department of Justice, Attn: Office of Legal Policy, Office of Information and Policy, Washington, DC 20530 after coordination with the Assistant General Counsel (Fiscal and Inspector General), OGC, DoD.
The FOIA Annual Report, assigned Report Control System DD-PA (A) 1365, will be prepared by the FOIA/PA Division for the preceding calendar year and submitted to the Assistant Secretary of Defense (PA) on or before February 1 of each year. The report will be compiled and formatted in accordance with chapter VII, DoD 5400.7-R (32 CFR part 286).
(a) The organization of the OIG includes the Headquarters located in Arlington, Virginia, consisting of the Inspector General, Deputy Inspector General, the Offices of the Assistant Inspector General (AIG) for Analysis and Followup, the AIG for Audit Policy and Oversight, the AIG for Auditing with its subordinate field elements located throughout the Continental United States (CONUS), the AIG for investigations with its field elements located throughout the CONUS and Europe, the AIG for Administration and Information Management, the AIG for Departmental Inquiries, the AIG for Inspections, and the Director, IG Regional Office-Europe (IGROE) located in Wiesbaden, Germany. The IGROE has representatives assigned from the Offices of the AIG for Investigations, the AIG for Inspections, the AIG for Auditing and the AIG for Departmental Inquiries, who fulfill the missions of their respective components.
(b) The “Organization and Staff Listing” (Inspector General, Defense List (IGDL) 1400.7),
(c) As an independent and objective office in the Department of Defense (DoD) the mission of the OIG is to:
(1) Conduct, supervise, monitor, and initiate audits, inspections and investigations relating to programs and operations of the DoD.
(2) Provide leadership and coordination and recommend policies for activities designed to promote economy, efficiency, and effectiveness in the administration of, and to prevent and detect fraud and abuse in, such programs and operations.
(3) Provide a means for keeping the Secretary of Defense and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action.
(4) Further information regarding the responsibilities and functions of the IG is encompassed in Public Law 95-452, the “Inspector General Act of 1978,” as amended and 32 CFR part 373.
Information that has not been given a security classification pursuant to the criteria of an Executive Order, but which may be withheld from the public for one or more of the reasons cited in FOIA exemptions (b)(2) through (b)(9) shall be considered as being for official use only. No other material shall be considered or marked “For Official Use Only” (FOUO), and FOUO is not authorized as an anemic form of classification to protect national security interests.
The prior application of FOUO markings is not a conclusive basis for withholding a record that is requested under the FOIA. When such a record is requested, the information in it shall be evaluated to determine whether, under current circumstances, FOIA exemptions apply in withholding the record or portions of it. If any exemption or exemptions apply or applies, it may nonetheless be released when it is determined that no governmental interest will be jeopardized by its release.
Records such as notes, working papers, and drafts retained as historical evidence of actions enjoy no special status apart from the exemptions under the FOIA.
The marking of records at the time of their creation provides notice of FOUO content and facilitates review when a record is requested under the FOIA. Records requested under the FOIA that do not bear such markings, shall not be assumed to be releasable without examination for the presence of information that requires continued protection and qualifies as exempt from public release.
Information in a technical document that requires a distribution statement pursuant to DoD Directive 5230.24,
(1) An unclassified document containing FOUO information shall be marked “For Official Use Only” at the bottom on the outside of the front cover (if any), on each page continuing FOUO information, and on the outside of the back cover (if any).
(2) Within a classified document, an individual page that contains both FOUO and classified information shall be marked at the top and bottom with the highest security classification of information appearing on the page.
(3) Within a classified document, an individual page that contains FOUO information but no classified information shall be marked “For Official Use Only” at the bottom of the page.
(4) Other records, such as, photographs, films, tapes, or slides, shall be marked “For Official Use Only” or “FOUO” in a manner that ensures that a recipient or viewer is aware of the status of the information therein.
(5) The FOUO material transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the FOUO marking. This may be accomplished by typing or stamping the following statement on the record prior to transfer:
Until FOUO status is terminated, the release and transmission instructions that follow apply:
(1) The FOUO information may be disseminated within DoD Components and between officials of DoD Components and DoD contractors, consultants, and grantees to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means that preclude unauthorized public disclosure. Transmittal documents shall call attention to the presence of FOUO attachments.
(2) The DoD holders of FOUO information are authorized to convey such information to officials in other departments and agencies of the executive and judicial branches to fulfill a Government function, except to the extent prohibited by the Privacy Act. Records thus transmitted shall be marked “For Official Use Only”, and the recipient shall be advised that the information has been exempted from public disclosure, pursuant to the FOIA, and that special handling instructions do or do not apply.
(3) Release of FOUO information to Members of Congress is governed by DoD Directive 5400.4,
Records containing FOUO information shall be transported in a manner that precludes disclosure of the contents. When not commingled with classified information, FOUO information may be sent via first-class mail or parcel post. Bulky shipments, such as distributions of FOUO Directives or testing materials, that otherwise qualify under postal regulations may be sent by fourth-class mail.
Each part of electrically transmitted messages containing FOUO information shall be marked appropriately. Unclassified messages containing FOUO information shall contain the abbreviated “FOUO” before the beginning of the text. Such messages shall be transmitted in accordance with communications security procedures in ACP-121 (United States Supplement 1) for FOUO information.
During normal working hours, records determined to be FOUO shall be placed in an out-of-sight location if the work area is accessible to non-governmental personnel.
At the close of business, FOUO records shall be stored so as to preclude unauthorized access. Filing such material with other unclassified records in unlocked files or desks, etc., is adequate when normal U.S. Government or government-contractor internal building security is provided during nonduty hours. When such internal security control is not exercised, locked buildings or rooms normally provide adequate after-hours protection. If such protection is not considered adequate, FOUO material shall be stored in locked receptacles such as file cabinets, desks, or bookcases. FOUO records that are subject to the provisions of Public Law 86-36, National Security Agency Act shall meet the safeguards outlined for that group of records.
The originator or other component authority, e.g., initial denial and appellate authorities, shall terminate “For Official Use Only” markings or status when circumstances indicate that the information no longer requires protection from public disclosure. When FOUO status is terminated, all known holders shall be notified, to the extent practical. Upon notification, holders shall efface or remove the “For Official Use Only” markings, but records in file or storage need not be retrieved solely for that purpose.
(1) Nonrecord copies of FOUO materials may be destroyed by tearing each copy into pieces to preclude reconstructing, and placing them in regular trash containers. When local circumstances or experience indicates that this destruction method is not sufficiently protective of FOUO information, local authorities may direct other methods but give due consideration to the additional
(2) Record copies of FOUO documents shall be disposed of in accordance with the disposal standards established under 44 U.S.C. chapter 33, as implemented by Inspector General Defense Manual (IGDM) 5015.2,
The unauthorized disclosure of FOUO records does not constitute an unauthorized disclosure of DoD information classified for security purposes. Appropriate administrative action shall be taken, however, to fix responsibility for unauthorized disclosure whenever feasible, and appropriate disciplinary action shall be taken against those responsible. Unauthorized disclosure of FOUO information that is protected by the Privacy Act may also result in civil and criminal sanctions against responsible persons. The DoD Component that originated the FOUO information shall be informed of its unauthorized disclosure.
The exemptions listed apply to categories of records that may be withheld in whole or in part from public disclosure, unless otherwise prescribed by law. A discretionary release (see also § 295.5(e) of this part) to one requester may preclude the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else. In applying the exemptions, the identity of the requester and the purpose for which the record is sought are irrelevant with the exception that an exemption may not be invoked where the particular interest to be protected is the requester's interest. The examples provided of the types of records that may be exempted from release are not at all inclusive.
Those properly and currently classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by executive order and implemented by regulations, such as DoD 5200.1-R
(1) The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, the OIG shall neither confirm nor deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response will be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist will itself disclose national security information.
(2) Information that concerns one or more of the classification categories established by executive order and DoD 5200.1-R (32 CFR part 159a) shall be classified if its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
Those related solely to the internal personnel rules and practices of DoD or the OIG. This exemption has two profiles,
(1) Records qualifying under high (b)(2) are those containing or constituting statutes, rules, regulations, orders, manuals, directives, and instructions the release of which would allow circumvention of these records, thereby substantially hindering the effective performance of a significant function of the DoD or OIG. Examples include:
(a) Those operating rules, guidelines, and manuals, for DoD and OIG investigators, inspectors, auditors, or examiners that must remain privileged in order for the OIG to fulfill a legal requirement.
(b) Personnel and other administrative matters, such as examination questions and answers used in training courses or in the determination of the qualification of candidates for employment, entrance on duty, advancement, or promotion.
(c) Computer software meeting the standards of § 295.3(c) of this part, the release of which would allow circumvention of a statute or DoD rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be closely examined to ensure a circumvention possibility exists.
(2) Records qualifying under the low (b)(2) profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request
Those concerning matters that a statute specifically exempts from disclosure by terms that permit no discretion on the issue, or in accordance with criteria established by that statute for withholding or referring to particular types of matters to be withheld. Examples of statutes are:
(1) National Security Agency Act information exemption, Public Law 86-36, section 6.
(2) Patent Secrecy, 35 U.S.C. 181-188. Any records containing information relating to inventions that are the subject of patent applications on which Patent Secrecy Orders have been issued.
(3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(4) Communication intelligence, 18 U.S.C. 798.
(5) Authority to Withhold from Public Disclosure Certain Technical Data, 10 U.S.C. 130, and 32 CFR part 250.
(6) Confidentiality of Medical Quality Records: Qualified Immunity Participants, 10 U.S.C. 1102.
(7) Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information, 10 U.S.C. 128.
(8) Protection of Intelligence Sources and Methods, 50 U.S.C. 403(d)(3).
Those containing trade secrets or commercial or financial information that the OIG receives from a person or organization outside the Government with the understanding that the information or record will be retained on a privileged or confidential basis in accordance with the customary handling of such records. Records within the exemption must contain trade secrets, or commercial or financial records, the disclosure of which is likely to cause substantial harm to the competitive position of the source providing the information; impair the Government's ability to obtain necessary information in the future; or impair some other legitimate Government interest. Examples include:
(1) Commercial or financial information received in confidence in connection 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. See also 32 CFR part 286h, “Release of Acquisition-Related Information”.
(2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor.
(3) Personal statements given in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.
(4) Financial data provided in confidence by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.
(5) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.
(6) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, and technical or scientific data developed in part with Federal funds and in part at private expense, wherein the contractor or subcontractor has retained legitimate proprietary interest in such data in accordance with title 10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement (DFARS), subpart 27.4 (see section C.(5) of this appendix).
(7) Computer software meeting the conditions of § 295.3(c), which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.
Except as provided in subsections (2) through (5), below, internal advice, recommendations, and subjective evaluations, as contrasted with factual matters, that are reflected in records pertaining to the decision-making process of an agency, whether within or among agencies (as defined in 5 U.S.C. 552(e)), DoD Components or OIG components. Also exempted are records pertaining to attorney-client privilege and the attorney work-product privilege.
(1) Examples include:
(a) The nonfactual portions of staff papers, to include after-action reports and situation reports containing staff evaluations, advice, opinions, or suggestions.
(b) Advice, suggestions, or evaluations prepared on behalf of the Department of Defense by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.
(c) Those non-factual portions or evaluations by DoD or OIG Components personnel of contractors and their products.
(d) Information of a speculative, tentative, or evaluative nature of such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate Government functions.
(e) Trade secret or other confidential research development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interests.
(f) Records that are exchanged among agency personnel and within and among DoD Components or agencies as part of the preparation for anticipated administrative proceeding by an agency or litigation before any Federal, state, or military court, as well as records that qualify for the attorney-client privilege.
(g) Those portions of official reports of inspection, reports of the Inspector General, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of one or more DoD Components, when these records have traditionally been treated by the courts as privileged against disclosure in litigation.
(h) Computer software meeting the standards of § 295.3(c), which is deliberative in nature, the disclosure of which would inhibit or chill the decision-making process. In this situation, the use of software must be closely examined to ensure its deliberative nature.
(i) Planning, programming, and budgetary information which is involved in the defense planning and resource allocation process.
(2) If any such intra or interagency record or reasonably segregable portion of such record hypothetically would be made available routinely through the “discovery process” in the course of litigation with the agency, i.e., the process by which litigants obtain information from each other that is relevant to the issues in a trial or hearing, then it should not be withheld from the general public even though discovery has not been sought in actual litigation. If, however, the information hypothetically would only be made available through the discovery process by special order of the court based on the particular needs of a litigant, balanced against the interests of the agency in maintaining its confidentiality, then the record or document need not be made available under this part. Consult with legal counsel to determine whether exemption 5 material would be routinely made available through the discovery process.
(3) Intra or interagency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely made available through “discovery,” and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though contained in an internal communication, generally cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that subsequently has been made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or incorporated by reference in the record containing the decision.
Information in personnel and medical files, as well as similar personal information in other files, that, if disclosed to the requester would result in a clearly unwarranted invasion of personal privacy. Release of information about an individual contained in a Privacy Act System of records would constitute a clearly unwarranted invasion of privacy is prohibited, and could subject the releaser to civil and criminal penalties.
(1) Examples of other files containing personal information similar to that contained in personnel and medical files include:
(a) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.
(b) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken.
(2) Home addresses are normally not releasable without the consent of the individuals concerned. In addition, the release of lists of DoD military and civilian personnel's names and duty addresses who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.
(a) Privacy interest. A privacy interest may exist in personal information even though the information has been disclosed at
(b) Published telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the privacy of a deceased person, but it may be used to protect the privacy of the deceased person's family.
(4) Individuals' personnel, medical, or similar file may be withheld from them or their designated legal representative only to the extent consistent with DoD Directive 5400.11 (32 CFR part 286a).
(5) A clearly unwarranted invasion of the privacy of the persons identified in a personnel, medical or similar record may constitute a basis for deleting those reasonably segregable portions of that record, even when providing it to the subject of the record. When withholding personal information from the subject of the record, legal counsel should first be consulted.
Records or information compiled for law enforcement purposes; i.e., civil, criminal, or military law, including the implementation of executive orders or regulations issued pursuant to law. This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for law enforcement purposes.
(1) This exemption applies, however, only to the extent that production of such law enforcement records or information could result in the following:
(a) Could reasonably be expected to interfere with enforcement proceedings.
(b) Would deprive a person of the right to a fair trial or to an impartial adjudication.
(c) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record.
(i) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, the OIG shall neither confirm nor deny the existence or nonexistence of the record being requested.
(ii) A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.
(iii) Refusal to confirm or deny should not be used when (1) the person whose personal privacy is in jeopardy has provided the requester with a waiver of his or her privacy rights; or (2) the person whose personal privacy is in jeopardy is deceased, and the OIG is aware of that fact.
(d) Could reasonably be expected to disclose the identity of a confidential source, including a source within the Department of Defense, a State, local, or foreign agency or authority, or any private institution which furnishes the information on a confidential basis.
(e) Could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation.
(f) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
(g) Could reasonably be expected to endanger the life or physical safety of any individual.
(2) Examples include:
(a) Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related government litigation or adjudicative proceedings.
(b) The identity of firms or individuals being investigated for alleged irregularities involving contracting with Department of Defense when no indictment has been obtained nor any civil action filed against them by the United States.
(c) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within a DoD Component, or a lawful national security intelligence investigation conducted by an authorized agency or office within a DoD Component. National security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.
(3) The right of individual litigants to investigative records currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is not diminished.
(4) When the subject of an investigative record is the requester of the record, it may
(5) Exclusions. Excluded from the above exemptions are the following two situations as applicable to the Department of Defense and the OIG:
(a) Whenever a request is made which involves access to records or information compiled for law enforcement purposes, and the investigation or proceeding involves possible violation of criminal law where there is reason to believe that the subject of the investigation or proceeding is unaware of its pendency, and the disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the OIG may, during only such times as that circumstance continues, treat the records or information as not subject to the FOIA. In such situation, the response to the requesters will state that no records were found.
(b) Whenever informant records maintained by a criminal law enforcement organization within the OIG under the informant's name or personal identifier are requested by a third party using the informant's name or personal identifier, the OIG may treat the records as not subject to the FOIA, unless the informant's status as an informant has been officially confirmed. If it is determined that the records are subject to exemption (b)(7), the response to the requester will state that no records were found.
Those contained in or related to examination, operation or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.
Those containing geological and geophysical information and data (including maps) concerning wells.
5 U.S.C. 552, as amended.
The purpose of this part is to provide policies and procedures for the National Reconnaissance Office (NRO) implementation of the Freedom of Information Act (5 U.S.C. 552 as amended) (FOIA), and to promote uniformity in the NRO FOIA program.
The terms used in this part, with the exception of the following, are defined in 32 CFR part 286:
(a)
(b)
(a) The NRO does not originate final orders, opinions, statements of policy, interpretations, staff manuals or instructions that affect a member of the public of the type covered by the indexing requirement of 5 U.S.C. 552(a)(2). The Director, NRO, has therefore determined, pursuant to pertinent statutory and executive order requirements, that it is unnecessary and impracticable to publish an index of the type required by 5 U.S.C. 552(a)(2), except the index noted in paragraph (b) of this section.
(b) A general index of FOIA-processed (a)(2) records shall be made available to the public, both in hard copy and electronically by December 31, 1999.
(a)
(b)
(c)
(d)
(See subparagraph C1.5.4.2. of DoD 5400.7-R
(1)
(2)
(3)
(e)
(f)
(1)
(2)
(ii) For all other requests, advance payment, i.e., a payment made before work is commenced, will not be required. Payment for work already completed is not an advance payment. Responses will not be held pending receipt of fees from requestors with a history of prompt payment. Fees should be paid by certified check or postal money order forwarded to the Chief, Information Access and Release Center (IARC) and made payable to the Treasurer of the United States.
Any person denied access to records, denied a fee waiver, involved in a dispute regarding fee estimates, or who considers a no record determination, or any determination to be adverse in nature, may, within 60 days after notification of such denial, file an appeal to the Freedom of Information Act Appellate Authority, National Reconnaissance Office. Such an appeal shall be in
(a) The NRO shall provide a reading room equipped with hard copy and electronic records as required in the “Electronic Freedom of Information Act Amendments of 1996”. The NRO Reading Room is located at 14675 Lee Road, Chantilly VA, 20151-1715 and is open weekdays only from 8:00 am until 4:00 p.m. Requestors must call for an appointment twenty-four (24) hours in advance so that optimum customer service can be provided. (703) 808-5029. Fees will be charged for duplication of hard copy records at $.15 per page after the first 100 pages. Softcopy media provided to visitors is assessed as follows:
(1) 5.25″ Floppy diskette $0.50
(2) 3.5″ Floppy diskette $0.50
(3) CD-R Media $3.75
(4) Video Tape $4.00.
(b) The NRO FOIA Electronic Reading Room is located on the NRO Home Page:
5 U.S.C. 552.
This part states the intent of the agency regarding policy and procedures for the public to obtain information from the Defense Investigative Service (DIS) under the Freedom of Information Act (FOIA).
(a) The DIS organization includes a Headquarters located in Alexandria, Virginia; four Regions and one operational area with subordinate operating locations throughout the Continental United States (CONUS), Alaska, Hawaii, and Puerto Rico; the Defense Industrial Security Clearance Office (DISCO), Columbus, Ohio; the Personnel Investigations Center (PIC) and National Computer Center (NCC) in Baltimore, Maryland; Office of Industrial Security International Europe (OISI-E), located in Brussels, Belgium with a subordinate office in Mannheim, Germany; Office of Industrial Security International Far East (OISI-FE) located at Camp Zama, Japan; and the Department of Defense Security Institute, located in Richmond, Virginia.
(b) A copy of the DIS Directory showing the addresses of all offices, is available to the public upon request and may be obtained by following the procedures outlined in § 298.4. The names and duty addresses of DIS personnel serving overseas are not released.
It is the policy of DIS to make publicly available all information which may be released under the Freedom of information Act (FOIA), consistent with its other responsibilities. In implementing this policy, DIS follows the procedures set forth in 32 CFR part 286. DIS maintains the following records which may be of interest to the public:
(a) The Defense Clearance and Investigations Index (DCII), which contains references to investigative records created and held by DoD Components. The records indexed are primarily those prepared by the investigative agencies of the DoD, covering criminal, fraud, counterintelligence, and personnel security information. This index also includes security clearance determinations made by the various components of the Department of Defense. Information in the DCII is not usually available to the general public, since general release would violate the privacy of individuals whose names are indexed therein.
(b) Records created as required by DoD Directive 5105.42, “Defense Investigative Service (DA&M),” (32 CFR
(c) Publications referenced in “DIS Directives Listing” (DIS 00-1-L). A copy of DIS 00-1-L may be obtained upon request from the DIS Office of Information and Public Affairs (V0020), 1340 Braddock Place, Alexandria, VA 22314-1651. While this document will be provided for the convenience of possible users of the materials, such release does not constitute a determination that all or any of the publications listed affect the public or have been cleared for public release.
(a)(1) All requests will be submitted in writing to: Defense Investigative Service, Office of Information and Public Affairs (V0020), 1340 Braddock Place, Alexandria, Virginia 22314-1651.
(2) Requests directed to any agency activity (headquarters or field elements) will be forwarded to the Office of Information and Public Affairs.
(b) All requests shall contain the following information:
(1) As complete an identification as possible of the desired material including to the extent known, the title description, and date. 32 CFR part 286 does not authorize “fishing expeditions.” In the event a request is not reasonably described as defined in 32 CFR part 286, the requester will be notified by DIS of the defect.
(2) The request must contain the first name, middle name or initial, surname, date and place of birth, social security number, and, if applicable, military service number of the individual concerned, with respect to material concerning investigations of an individual.
(3) A statement as to whether the requester wishes to inspect the record or obtain a copy of it.
(4) A statement that all costs for search (in the case of “other” and “commercial” requesters), duplication (in case of all categories of requesters), and review (in the case of “commercial requesters”) will be borne by the requester even if no records, or no releasable records, are found, if appropriate. See 32 CFR part 286 for information on fees and fee waivers.
(5) The full address (including ZIP code) of the requester.
(c) A notarized request by an individual requesting investigative or other personnel records may be required to avoid the risk of invasion of privacy. Requesters will be notified and furnished appropriate forms if this requirement is deemed necessary. In lieu of a notarized statement, an unsworn declaration in accordance with 28 U.S.C. 1746 may be required.
(d) When a request is incomplete or fails to include all of the information required, the requester will be contacted for additional information prior to beginning release procedures.
(e) DIS shall normally respond to request within 10 working days after receipt by the Office of Information and Public Affairs, unless an extension is required and the requester is notified in writing. If a significant number of requests prevents responding in 10 working days, requests, will be processed on a first-come, first-served basis to ensure equitable treatment to all requesters.
(f) When the release of information has been approved, a statement of costs computed in accordance with the DoD Fee Schedule (32 CFR part 286), or a statement waiving the fee, will be included in the notification of approval. Records approved for release will generally be mailed immediately following the receipt of fees. Fees may be waived or reduced in accordance with 32 CFR part 286. Remittances must be in the form of a personal check, bank draft, or postal money order. Remittances are to be made payable to the Treasurer of the United States. Certified documents may be requested for an official government or legal function, and will be provided at a rate established by 32 CFR part 286 for each authentication.
(g) When requests are denied in whole or in part in accordance with 32 CFR part 286, the requester will be advised of the identity of the official making the denial, the reason for the denial, the right of appeal of the decision, and the identity of the person to whom an appeal may be addressed.
(h) Facilities for the review or reproduction of records following approval of the request or appeal are available
(i)
(2) All appeals will contain at least the same identification of the records requested as the original request, and a copy of the letter denying the request, if available. Requesters will be given appeal rights when a search has been conducted and no records are located.
(3) All appeals will be reviewed by the Director, DIS, or the Special Assistant to the Director, DIS. Responses to appeals normally shall be made within 20 working days after receipt, unless an extension is required and the appellant is notified. When a request is approved on appeal, the procedures set forth in paragraph (f) of this section will be followed.
The DIS Office of Information and Public Affairs is responsible for preparation of the annual “Freedom of Information Act Report.” This report has been assigned control symbol PA (TRA&AN) 1365. No forms or publications are required by this part.
5 U.S.C. 552.
(a) This part implements 5 U.S.C. 552, as amended, and DoD 5400.7-R,
(b) This part applies to all NSA/CSS elements, field activities and personnel, and governs the release or denial of any information under the terms of the Freedom of Information Act (FOIA).
Terms used in this part, with the exception of the terms in § 299.4, are defined in DoD 5400.7-R. For ease of reference, however, some terms are defined in this section.
(a)
(2) An FOIA request may be submitted by U.S. mail or its equivalent, by facsimile or electronically through the NSA FOIA Home Page on the Internet. The mailing address is FOIA/PA Services (DC321), National Security Agency, 9800 Savage Road STE 6248, Ft. George G. Meade, MD 20755-6248. The Web-based system contains a form to be completed by the requester, requiring name and postal mailing address. The URL is
(3) When a request meeting the requirements stated in this section is received by the FOIA office and there is no remaining question about fees, that request is considered perfected.
(b)
(c)
(i) Objects or articles such as structures, furniture, vehicles and equipment, whatever their historical value or value as evidence;
(ii) Intangible records such as an individual's memory or oral communication; and
(iii) 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.
(2) A record must exist and be in the possession and control of the NSA/CSS at the time of the request to be subject to this part. There is no obligation to create or compile a record or obtain a record not in the possession of the NSA/CSS to satisfy an FOIA request. The NSA/CSS may compile or create a new record when doing so would be less burdensome to the Agency than providing existing records and the requester does not object.
(3) Hard copy or electronic records that are subject to FOIA requests under 5 U.S.C. 552(a)(3) and are available through an established distribution system on the Internet, normally need not be processed under the FOIA. The Agency shall provide guidance to the requester on how to obtain the material outside of the FOIA process. If the requester insists that the request be processed under the FOIA, then it shall be so processed.
(a) Pursuant to written requests submitted in accordance with the FOIA, the NSA/CSS shall make records available to the public consistent with the Act and the need to protect government interests pursuant to subsection (b) of the Act. Oral requests for information shall not be accepted. Before the Agency responds to a request, the request must comply with the provisions of this part. In order that members of the public have timely access to unclassified information regarding NSA activities, requests for information that would not be withheld if requested under the FOIA or the Privacy Act (PA) may be honored through appropriate means without requiring the requester to invoke the FOIA or the PA. Although a record may require minimal redaction before its release, this fact alone shall not require the Agency to direct the requester to submit a formal FOIA or PA request for the record.
(b) Requests for electronic records shall be processed, and the records retrieved whenever retrieval can be achieved through reasonable efforts (in terms of both time and manpower) and these efforts would not significantly interfere with the operation of an automated information system. Reasonable efforts shall be undertaken to maintain records in forms of formats that render electronic records readily reproducible.
(c) The NSA/CSS does not originate final orders, opinions, statements of policy, interpretations, staff manuals, or instructions that affect members of
(a) The Director's Chief of Staff (DC) is responsible for overseeing the administration of the FOIA, which includes responding to FOIA requests and for collecting fees from FOIA requesters.
(b) The Director of Policy (DC3), or the Deputy Director of Policy (D/DC3), if so designated, is the initial denial authority (IDA) and is responsible for:
(1) Receiving and staffing all initial, written requests for the release of information;
(2) Conducting the necessary reviews to determine the releasability of information pursuant to DoD 5200.1-R;
(3) Providing the requester with releasable material;
(4) Notifying the requester of any adverse determination, including informing the requester of his/her right to appeal an adverse determination to the appeal authority (
(5) Assuring the timeliness of responses;
(6) Negotiating with the requester regarding satisfying his request (
(7) Authorizing extensions of time within Agency components (
(8) Assisting the Office of General Counsel (OGC) in judicial actions filed under 5 U.S.C. 552;
(9) Maintaining the FOIA reading room and the Internet home page; and
(10) Compiling the annual FOIA report.
(c) The Chief, Accounting and Financial Services (DF22) is responsible for:
(1) Sending initial and follow-up bills to FOIA requesters as instructed by the FOIA office, with a copy of all bills going to the FOIA office. In cases where an estimate of fees is provided to the requester prior to the processing of his/her request, no bill shall be sent. Although the FOIA office asks FOIA requesters to send payment to the FOIA office, for subsequent forwarding to Accounting and Financial Services, payment may be received directly in Accounting and Financial Services. Such payment may be identified by the payee as payment for a Freedom of Information Act request, by the letters “FOIA,” or as payment for XXXXX. (FOIA requesters are provided a case number to refer to in correspondence with NSA);
(2) Receiving and handling all checks or money orders remitted in payment for FOIA requests, crediting them to the proper account and notifying the FOIA office promptly of all payments received;
(3) Notifying the FOIA office promptly of any payments received directly from requesters even if no bill was initiated by Accounting and Financial Services; and
(4) Issuing a prompt reimbursement of overpaid fees to the requester upon being notified of such overpayment by the FOIA office.
(d) The Deputy Director, NSA/CSS, is the FOIA Appeal Authority required by 5 U.S.C. 552 for considering appeals of adverse determinations by the Director of Policy. In the absence of the Deputy Director, the Director's Chief of Staff serves as the Appeal Authority.
(e) The General Counsel (GC) or his designee is responsible for:
(1) Reviewing responses to FOIA requests to determine the legal sufficiency of actions taken by the Director of Policy, as required on a case-by-case basis;
(2) Reviewing the appeals of adverse determinations made by the Director of Policy. The GC will prepare an appropriate reply to such appeals and submit that reply to the NSA/CSS FOIA Appeal Authority for final decision; and
(3) Representing the Agency in all judicial actions relating to 5 U.S.C. 552 and providing support to the Department of Justice.
(f) The Chief of Installation and Logistics (I&L) shall establish procedures to ensure that:
(1) All inquiries for information pursuant to 5 U.S.C. 552 are delivered promptly to the Director of Policy; and
(2) Any appeal of an adverse determination is delivered promptly and directly to the NSA/CSS Appeal Authority staff.
(g) The Directorates, Associate Directorates, and Field Elements shall:
(1) Establish procedures to ensure that any inquiries for information pursuant to 5 U.S.C. 552 are referred immediately and directly to the Director of Policy. Field Elements should forward, electronically, any requests received to the DIRNSA/CHCSS, ATTN: DC3; and
(2) Designate a senior official and an alternate to act as a focal point to assist the Director of Policy in determining estimated and actual cost data, in conducting searches reasonably calculated to retrieve responsive records and assessing whether information can be released or should be withheld.
(h) Military and civilian personnel assigned or attached to or employed by the NSA/CSS who receive a Freedom of Information Act request shall deliver it immediately to the Director of Policy. Individuals who are contacted by personnel at other government agencies and asked to assist in reviewing material for release under the FOIA must direct the other agency employee to the NSA/CSS FOIA office promptly.
(a) Requests for copies of records of the NSA/CSS shall be delivered to the Director of Policy immediately upon receipt once the request is identified as a Freedom of Information Act or Privacy Act requestor appears to be intended as such a request.
(b) The Director of Policy, or Deputy Director of Policy, if so designated, shall endeavor to respond to a direct request to NSA/CSS within 20 working days of receipt. If the request fails to meet the minimum requirements of a perfected FOIA request, the FOIA office shall advise the requester of how to perfect the request. The 20 working day time limit applies upon receipt of the perfected request. In the event the Director of Policy cannot respond within 20 working days due to unusual circumstances, the chief of the FOIA office shall advise the requester of the reason for the delay and negotiate a completion date with the requester.
(c) Direct requests to NSA/CSS shall be processed in the order in which they are received. Requests referred to NSA/CSS by other government agencies shall be placed in the processing queue according to the date the requester's letter was received by the referring agency if that date is known, in accordance with Department of Justice Guidelines. If it is not known when the referring agency received the request, it shall be placed in the queue according to the date of the requester's letter.
(d) The FOIA office shall maintain six queues (“super easy,” “sensitive/personal easy,” “non-personal easy,” “sensitive/personal voluminous,” “non-personal complex,” and “expedite”) for the processing of records in chronological order. The processing queues are defined as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(e) Requesters shall be informed immediately if no responsive records are located. Following a search for and retrieval of responsive material, the initial processing team shall determine which queue in which to place the material, based on the criteria in paragraph (d)(1) through (6) of this section and shall so advise the requester. If the material requires minimal specialized review (super easy), the initial processing team shall review, redact if required, and provide the non-exempt responsive material to the requester immediately. All other material shall be processed by the appropriate specialized processing team on a first-in, first-out basis within its queue. These procedures are followed so that a requester shall not be required to wait a long period of time to learn that the Agency has no records responsive to his request or to obtain records that require minimal review. For statistical reporting purposes for the Annual Report, super easy, sensitive/personal easy, and non-personal easy cases shall be counted as “Easy” cases, and sensitive/personal voluminous and non-personal complex cases shall be counted as “Hard” cases.
(f) Expedited processing shall be granted to a requester if he/she requests such treatment and demonstrates a compelling need for the information. A demonstration of compelling need by a requester shall be made by a statement certified by the requester to be true and correct to the best of his/her knowledge. A compelling need is defined as follows:
(1) The failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
(2) The information is urgently needed by an individual primarily engaged in disseminating information to inform the public about actual or alleged Federal Government activity. Urgently needed means that the information has a particular value that will be lost if not disseminated quickly.
(3) A request may also be expedited, upon receipt of a statement certified by the requester to be true and correct to the best of his/her knowledge, for the following reasons:
(i) There would be an imminent loss of substantial due process rights.
(ii) There is a humanitarian need for the material. Humanitarian need means that disclosing the information will promote the welfare and interests of mankind.
(4) Requests which meet the criteria for expedited treatment as defined in paragraph (f)(3) of this section will be placed in the expedite queue behind requests which are expedited because of a compelling need (
(5) A decision on whether to grant expedited treatment shall be made within
(g) If the Director of Policy, in consultation with the GC, determines that the fact of the existence or non-existence of requested material is a matter that is exempt from disclosure, the requester shall be so advised.
(h) If the FOIA office determines that NSA/CSS may have information of the type requested, the office shall contact each Directorate or Associate Directorate reasonably expected to hold responsive records.
(i) The FOIA office shall assign the requester to the appropriate fee category under 5 U.S.C. 552, as amended, and DoD 5400.7-R, and, if a requester seeks a waiver of fees, the FOIA office shall, after determining the applicable fee category, determine whether to waive fees pursuant to DoD 5400.7-R. (See also § 299.6.) If fees are to be assessed in accordance with the provisions of 5 U.S.C. 552 and DoD 5400.7-R, the Directorate or Associate Directorate shall prepare an estimate of the cost required to locate, retrieve and, in the case of commercial requesters, review the records. Cost estimates shall include only direct search, duplication costs and review time (for commercial requesters) as defined in DoD 5400.7-R.
(1) If the cost estimate does not exceed $25.00, the component shall search for and forward to the FOIA office the documents responsive to the request. Fees $25.00 and under shall be waived.
(2) If the costs are estimated to exceed $25.00, the component shall provide an estimate to the FOIA office without conducting the search. The chief of the FOIA office shall advise the requester of the costs to determine a willingness to pay the fees. A requester's willingness to pay fees shall be satisfactory when the estimated fee does not exceed $250.00 and the requester has a history of prompt payment. A history of prompt payment means payment within 30 calendar days of the date of billing. If fees are expected to exceed $250.00, the requester shall be required to submit payment before processing is continued if the requester does not have a history of prompt payment. All payments shall be made by certified check or money order made payable to the Treasurer of the United States.
(3) When a requester has previously failed to pay a fee charged within a timely fashion (
(4) If a requester has failed to pay fees after three bills have been sent, additional requests from that requester and/or the organization or company he/she represents will not be honored until all costs and interest are paid.
(j) Upon receipt of a statement of willingness to pay assessable fees or the payment from the requester, the FOIA office shall notify the NSA/CSS component to search for the appropriate documents.
(1) The component conducting the search shall advise the FOIA office of the types of files searched (
(2) If the search does not locate the requested records, the Director of Policy shall so advise the requester and offer appeal rights.
(3) If the search locates the requested records, the holding organization shall furnish copies of these records immediately to the FOIA office. The Director of Policy shall make a determination as to the releasability of the
(i) All exempt records or portions thereof shall be withheld and the requester so advised along with the statutory basis for the denial; the volume of material being denied, unless advising of the volume would harm an interest protected by exemption (see 5 U.S.C. 552); and the procedure for filing an appeal of the denial.
(ii) All segregable, non-exempt records or portions thereof shall be forwarded promptly to the requester.
(k) Records or portions thereof originated by other agencies or information of primary interest to other agencies found in NSA/CSS records shall be handled as follows:
(1) The originating agency's FOIA Authority shall be provided with a copy of the request and the stated records.
(2) The requester shall be advised of the referral, except when notification would reveal exempt information.
(l) Records of portions thereof originated by a commercial or business submitter and containing information that is arguably confidential commercial or financial information as defined in Executive Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235) shall be handled as follows:
(1) The commercial or business submitter shall be provided with a copy of the records as NSA/CSS proposes to release them, and the submitter shall be given an opportunity to inform the FOIA office about its objections to disclosure in writing.
(2) The Director of Policy or his/her designee shall review the submitter's objections to disclosure and, if DC3 decides to release records or portions thereof to the requester, provide the submitter with an opportunity to enjoin the release of such information.
(m) Records may be located responsive to an FOIA request which contain portions not responsive to the subject of the request. The non-responsive portions shall be processed as follows:
(1) If the information is easily identified as releasable, the non-responsive portions shall be provided to the requester.
(2) If additional review or coordination with other NSA/CSS elements or other government agencies or entities is required to determine the releasability of the information, and the processing of the material would be facilitated by excluding those portions from review, the requester should be consulted regarding the need to process those portions. If the requester states that he is interested in the document in its entirety, including those portions not responsive to the subject of his request, the entire document shall be considered responsive and reviewed accordingly.
(3) If the conditions as stated in paragraph (m)(2) of this section pertain, but it is not a simple matter to contact and/or reach an agreement with the requester, the non-responsive portions shall be marked to differentiate the removal of non-responsive material from the removal of exempt portions. The requester shall be advised that portions were removed as non-responsive. In addition, he/she shall be given an indication of the manner in which those portions would be treated if responsive (
(4) If the requester states in his initial request that he/she wants all non-responsive portions contained within documents containing responsive information, then the documents shall be processed in their entirety.
(n) Any person advised of an adverse determination shall be notified of the right to submit an appeal postmarked
(1) Denial of records or portions of records;
(2) Inability of NSA/CSS to locate records;
(3) Denial of a request for the waiver or reduction of fees;
(4) Placement of requester in a specific fee category;
(5) Amount of estimate of processing costs;
(6) Determination that the subject of a request is not within the purview of NSA/CSS and that a search for records shall not be conducted;
(7) Denial of a requester for expeditious treatment; and
(8) Non-agreement regarding completion date of request.
(o) The GC or his designee shall process appeals and make a recommendation to the Appeal Authority.
(1) Upon receipt of an appeal regarding the denial of information or the inability of the Agency to locate records, the GC or his designee shall provide a legal review of the denial and/or the adequacy of the search for responsive material, and make other recommendations as appropriate.
(2) If the Appeal Authority determines that additional information may be released, the information shall be made available to the requester within 20 working days from receipt of the appeal. The conditions for responding to an appeal for which expedited treatment is sought by the requester are the same as those for expedited treatment on the initial processing of a request. (
(3) If the Appeal Authority determines that the denial was proper, the requester must be advised within 20 days after receipt of the appeal that the appeal is denied. The requester likewise shall be advised of the basis for the denial and the provisions for judicial review of the Agency's appellate determination.
(4) If a new search for records is conducted and produces additional material, the additional records shall be forwarded to the Director of Policy, as the IDA, for review. Following his/her review, the Director of Policy shall return the material to the GC with his/her recommendation for release or withholding. The GC shall provide a legal review of the material, and the Appeal Authority shall make the release determination. Upon denial or release of additional information, the Appeal Authority shall advise the requester that more material was located and that the IDA and the Appeal Authority each conducted an independent review of the documents. In the case of denial, the requester shall be advised of the basis of the denial and the right to seek judicial review of the Agency's action.
(5) When a requester appeals the absence of a response to a request within the statutory time limits, the GC shall process the absence of a response as it would denial of access to records. The Appeal Authority shall advise the requester of the right to seek judicial review.
(6) Appeals shall be processed using the same multi-track system as initial requests. If an appeal cannot be responded to within 20 working days, the requirement to obtain an extension from the requester is the same as with initial requests. The time to respond to an appeal, however, may be extended by the number of working days (not to exceed 10) that were not used as additional time for responding to the initial request. That is, if the initial request is processed within 20 working days so that the extra 10 days of processing which an agency can negotiate with the requester are not used, the response to the appeal may be delayed for that 10 days (or any unused portion of the 10 days).
(a) Upon receipt of a request, DC3 shall evaluate the request to determine the fee category or status of the requester, as well as the appropriateness of a waiver or reduction of fees if requested. There are no fees associated with a Privacy Act request, except as stated in NSA/CSS Regulation 10-35, Implementation of the Privacy Act of 1974. If fees are assessable, a search
(b) Fees shall reflect only direct search, review (in the case of commercial requesters) and duplication costs, recovery of which are permitted by 5 U.S.C. 552. Fees shall not be used to discourage requesters.
(c) No minimum fee may be charged. Fees under $25.00 shall be waived.
(d) Fees shall be based on estimates provided by appropriate organizational focal points. Upon completion of the processing of the request and computation of all assessable fees, the request shall be handled as follows:
(1) If the earlier cost estimate was under $250.00 and the requester has not yet paid and has no payment history, the requester shall be notified of the actual cost and shall be sent a bill under separate cover. Upon receipt of payment, processing results and non-exempt information shall be provided to the requester.
(2) In cases where the requester paid prior to processing, if the actual costs exceed the estimated costs, the requester shall be notified of the remaining fees due. Processing results and non-exempt information shall be provided to the requester upon payment of the amount in excess or, if less than $250.00, receipt of the requester's agreement to pay. If the requester refuses to pay the amount in excess, processing of the request will be terminated with notice to the requester.
(3) In cases where the requester paid prior to processing, if the actual costs are less than estimated fees which have been collected from the requester, processing results and the non-exempt information shall be provided to the requester, and the FOIA office shall advise Accounting and Financial Services of the need to refund funds to the requester.
(e) Fees for manual searches, review time and personnel costs associated with computer searches shall be computed according to the following schedule:
(f) Fees for machine time involved in computer searches shall be based on the direct cost of retrieving information from the computer, including associated input/output costs.
(g) Search costs for audiovisual documentary material shall be computed as for any other record. Duplication costs shall be the actual, direct cost of reproducing the material, including the wage of the person doing the work. Audiovisual materials provided to a requester need not be in reproducible format or quality.
(h) Duplication fees shall be assessed according to the following schedule:
(a) Records meeting the exemption criteria of 5 U.S.C. 552 need not be published in the
(b) The first seven of the following nine FOIA exemptions may be used by the NSA/CSS to withhold information in whole or in part from public disclosure when there is a sound legal basis for protecting the information. Discretionary releases shall be made following careful Agency consideration of the interests involved.
(1) Records specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified pursuant to such Executive Order.
(2) Records relating solely to the internal personnel rules and practices of an agency.
(3) Records which concern matters that a statute specifically exempts from disclosure, so long as the statutory exemptions permit no discretion on what matters are exempt; or matters which meet criteria established for withholding by the statute, or which are particularly referred to by the statute as being matters to be withheld. Examples of such statutes are:
(i) The National Security Agency Act of 1959 (Public Law 86-36 Section 6);
(ii) 18 U.S.C. 798;
(iii) 50 U.S.C. 403-3(c)(6);
(iv) 10 U.S.C. 130; and
(v) 10 U.S.C. 2305(g).
(4) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential.
(5) Interagency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency.
(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of the right to a fair trial or to an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record;
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a source within NSA/CSS, state, local, or foreign agency or authority, or any private institution which furnishes the information on a confidential basis, or could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; and
(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Records contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
(9) Geological and geophysical information and data, including maps, concerning wells.
(c) Information which has not been given a security classification pursuant to the criteria of an Executive Order, but which may be withheld from the public for one or more of FOIA exemptions 2 through 9 cited in paragraphs (b)(2) through (b)(9) of this section, shall be considered “UNCLASSIFIED//FOR OFFICIAL USE ONLY” (U//FOUO). No other material shall be considered or marked U//FOUO. The marking of appropriate records with the U//FOUO designation at the time of their creation provides notice of U//FOUO content and shall facilitate review when a record is requested under the FOIA. However, records requested under the FOIA which do not bear the
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
This part is reissued to consolidate into a single document (32 CFR part 310) Department of Defense (DoD) policies and procedures for implementing the Privacy Act of 1974, as amended (5 U.S.C. 522a) by authorizing the development, publication and maintenance of the DoD Privacy Program set forth by DoD Directive 5400.11,
This part:
(a) Updates policies and responsibilities of the DoD Privacy Program under 5 U.S.C. 552a, and under OMB Circular A-130.
(b) Authorizes the Defense Privacy Board, the Defense Privacy Board Legal Committee and the Defense Data Integrity Board.
(c) Continues to authorize the publication of DoD 5400.11-R.
(d) Continues to delegate authorities and responsibilities for the effective administration of the DoD Privacy Program.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense (IG, DoD), the Uniformed Services University of the Health Sciences, the Defense agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). This part is mandatory for use by all DoD Components. Heads of DoD Components may issue supplementary instructions only when necessary to provide for unique requirements within their Components. Such instructions will not conflict with the provisions of this part.
(b) Shall be made applicable to DoD contractors who are operating a system of records on behalf of a DoD Component, to include any of the activities, such as collecting and disseminating records, associated with maintaining a system of records.
(c) This part does not apply to:
(1) Requests for information from systems of records controlled by the Office of Personnel Management (OPM), although maintained by a DoD Component. These are processed in accordance with OPM's `Privacy Procedures for Personnel Records' (5 CFR part 297).
(2) Requests for personal information from the General Accounting Office (GAO). These are processed in accordance with DoD Directive 7650.1,
(3) Requests for personal information from Congress. These are processed in accordance with DoD Directive 5400.4,
(4) Requests for information made under the Freedom of Information Act (5 U.S.C. 552). These are processed in accordance with “DoD Freedom of Information Act Program Regulation” (32 CFR part 286).
It is DoD policy that:
(a) The personal privacy of an individual shall be respected and protected.
(b) Personal information shall be collected, maintained, used or disclosed to ensure that:
(1) It shall be relevant and necessary to accomplish a lawful DoD purpose required to be accomplished by statute or Executive Order.
(2) It shall be collected to the greatest extent practicable directly from the individual.
(3) The individual shall be informed as to why the information is being collected, the authority for collection, what uses will be made of it, whether disclosure is mandatory or voluntary, and the consequences of not providing that information.
(4) It shall be relevant, timely, complete and accurate for its intended use; and
(5) Appropriate administrative, technical, and physical safeguards shall be established, based on the media (
(c) No record shall be maintained on how an individual exercises rights guaranteed by the First Amendment to the Constitution, except as follows:
(1) Specifically authorized by statute.
(2) Expressly authorized by the individual on whom the record is maintained; or
(3) When the record is pertinent to and within the scope of an authorized law enforcement activity.
(d) Notices shall be published in the
(e) Individuals shall be permitted, to the extent authorized by 5 U.S.C. 552a and DoD 5400.11-R, to:
(1) Determine what records pertaining to them are contained in a system of records.
(2) Gain access to such records and to obtain a copy of those records or a part thereof.
(3) Correct or amend such records on a showing that the records are not accurate, relevant, timely or complete.
(4) Appeal a denial of access or a request for amendment.
(f) Disclosure of records pertaining to an individual from a system of records shall be prohibited except with the consent of the individual or as otherwise authorized by 5 U.S.C. 552a, DoD 5400.11-R, and DoD 5400.7-R.
(g) Disclosure of records pertaining to personnel of the National Security Agency, the Defense Intelligence Agency, the National Reconnaissance Office, and the National Imagery and Mapping Agency shall be prohibited to the extent authorized by Pub. L. 86-36 (1959) and 10 U.S.C. 424.
(h) Computer matching programs between the DoD Components and the
(i) DoD personnel and system managers shall conduct themselves, consistent with § 310.8 so that personal information to be stored in a system of records only shall be collected, maintained, used, and disseminated as is authorized by this part, 5 U.S.C. 552a, and DoD 5400.11-R.
(a) The Director of Administration and Management, Office of the Secretary of Defense, shall:
(1) Serve as the Senior Privacy Official for the Department of Defense.
(2) Provide policy guidance for, and coordinate and oversee administration of, the DoD Privacy Program to ensure compliance with policies and procedures in 5 U.S.C. 552a and OMB A-130.
(3) Publish DoD 5400.11-R and other guidance, to include Defense Privacy Board Advisory Opinions, to ensure timely and uniform implementation of the DoD Privacy Program.
(4) Serve as the Chair to the Defense Privacy Board and the Defense Data Integrity Board (§ 310.7).
(b) The Director of Washington Headquarters Services shall supervise and oversee the activities of the Defense Privacy Office (§ 310.7).
(c) The General Counsel of the Department of Defense shall:
(1) Provide advice and assistance on all legal matters arising out of, or incident to, the administration of the DoD Privacy Program.
(2) Review and be the final approval authority on all advisory opinions issued by the Defense Privacy Board or the Defense Privacy Board Legal Committee.
(3) Serve as a member of the Defense Privacy Board, the Defense Data Integrity Board, and the Defense Privacy Board Legal Committee (§ 310.7).
(d) The Secretaries of the Military Departments and the Heads of the Other DoD Components shall:
(1) Provide adequate funding and personnel to establish and support an effective DoD Privacy Program, to include the appointment of a senior official to serve as the principal point of contact (POC) for DoD Privacy Program matters.
(2) Establish procedures, as well as rules of conduct, necessary to implement this part and DoD 5400.11-R so as to ensure compliance with the requirements of 5 U.S.C. 552a and OMB Circular A-130.
(3) Conduct training, consistent with the requirements of DoD 5400.11-R, on the provisions of this part, 5 U.S.C. 552a, and OMB Circular A-130, and DoD 5400.11-R, for assigned and employed personnel and for those individuals having primary responsibility for implementing the DoD Privacy Program.
(4) Ensure that the DoD Privacy Program periodically shall be reviewed by the Inspectors General or other officials, who shall have specialized knowledge of the DoD Privacy Program.
(5) Submit reports, consistent with the requirements of DoD 5400.11-R, as mandated by 5 U.S.C. 552a and Chapter 8, OMB Circular A-130, and 32 CFR part 275, and as otherwise directed by the Defense Privacy Office.
(e) The Secretaries of the Military Departments shall provide support to the Combatant Commands, as identified in DoD Directive 5100.3,
The reporting requirements in § 310.6(d)(5) are assigned Report Control Symbol DD-DA&M(A)1379.
(a) DoD personnel shall:
(1) Take such actions, as considered appropriate, to ensure that personal information contained in a system of records, to which they have access to or are using incident to the conduct of official business, shall be protected so that the security and confidentiality of the information shall be preserved.
(2) Not disclose any personal information contained in any system of records except as authorized by DoD 5400.11-R or other applicable law or regulation. Personnel willfully making such a disclosure when knowing that disclosure is prohibited are subject to
(3) Report any unauthorized disclosures of personal information from a system of records or the maintenance of any system of records that are not authorized by this part to the applicable Privacy POC for his or her DoD Component.
(b) DoD system managers for each system of records shall:
(1) Ensure that all personnel who either shall have access to the system of records or who shall develop or supervise procedures for handling records in the system of records shall be aware of their responsibilities for protecting personal information being collected and maintained under the DoD Privacy Program.
(2) Prepare promptly any required new, amended, or altered system notices for the system of records and submit them through their DoD Component Privacy POC to the Defense Privacy Office for publication in the
(3) Not maintain any official files on individuals that are retrieved by name or other personal identifier without first ensuring that a notice for the system of records shall have been published in the
(a)
(2)
(ii) The Board shall serve as the primary DoD policy forum for matters involving the DoD Privacy Program, meeting as necessary, to address issues of common concern so as to ensure that uniform and consistent policy shall be adopted and followed by the DoD Components. The Board shall issue advisory opinions as necessary on the DoD Privacy Program so as to promote uniform and consistent application of 5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R.
(iii) Perform such other duties as determined by the Chair or the Board.
(b)
(2)
(ii) The Board shall review and approve all computer matching agreements between the Department of Defense and the other Federal, State or local governmental agencies, as well as memoranda of understanding when the match is internal to the Department of Defense, to ensure that, under 5 U.S.C. 552a, and OMB Circular A-130 and DoD 5400.11-R, appropriate procedural and due process requirements shall have been established before engaging in computer matching activities.
(c)
(2)
(ii) The Committee shall consider legal questions regarding the applicability of 5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R and questions arising out of or as a result of other statutory and regulatory authority, to include the impact of judicial decisions, on the DoD Privacy Program. The Committee shall provide advisory opinions to the Defense Privacy Board and, on request, to the DoD Components.
(c)
(2)
(ii) Provide operational and administrative support to the Defense Privacy Board, the Defense Data Integrity Board, and the Defense Privacy Board Legal Committee.
(iii) Direct the day-to-day activities of the DoD Privacy Program.
(iv) Provide guidance and assistance to the DoD Components in their implementation and execution of the DoD Privacy Program.
(v) Review proposed new, altered, and amended systems of records, to include submission of required notices for publication in the
(vi) Review proposed DoD Component privacy rulemaking, to include submission of the rule to the Office of the Federal Register for publication and providing to the OMB and the Congress reports, consistent with 5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R, and to the Office of the Comptroller General of the United States, consistent with 5 U.S.C. Chapter 8.
(vii) Develop, coordinate, and maintain all DoD computer matching agreements, to include submission of required match notices for publication in the
(viii) Provide advice and support to the DoD Components to ensure that:
(A) All information requirements developed to collect or maintain personal data conform to DoD Privacy Program standards.
(B) Appropriate procedures and safeguards shall be developed, implemented, and maintained to protect personal information when it is stored in
(C) Specific procedures and safeguards shall be developed and implemented when personal data is collected and maintained for research purposes.
(ix) Serve as the principal POC for coordination of privacy and related matters with the OMB and other Federal, State, and local governmental agencies.
(x) Compile and submit the “Biennial `Privacy Act' Report” and the “Biennial Matching Activity Report” to the OMB as required by OMB Circular A-130 and DoD 5400.11-R
(xi) Update and maintain this part and DoD 5400.11-R.
(a)
(1) Consist of “records” (as defined in § 310.3(n)) that are retrieved by the name of an individual or some other personal identifier, and
(2) Be under the control of a DoD Component.
(b)
(2) If files that are not retrieved by name or personal identifier are rearranged in such manner that they are retrieved by name or personal identifier, a new systems notice must be submitted in accordance with §310.63(c) of subpart G.
(3) If records in a system of records are rearranged so that retrieval is no longer by name or other personal identifier, the records are no longer subject to this part and the system notice for the records shall be deleted in accordance with § 310.64(c) of subpart G.
(c)
(d)
(e)
(i) Expressly authorized by federal statute;
(ii) Expressly authorized by the individual; or
(iii) Maintenance of the information is pertinent to and within the scope of an authorized law enforcement activity.
(2) First Amendment rights include, but are not limited to, freedom of religion, freedom of political beliefs, freedom of speech, freedom of the press, the right to assemble, and the right to petition.
(f)
(2) Consider the following:
(i) The relationship of each item of information retained and collected to the purpose for which the system is maintained;
(ii) The specific impact on the purpose or mission of not collecting each category of information contained in the system;
(iii) The possibility of meeting the information requirements through use of information not individually identifiable or through other techniques, such as sampling;
(iv) The length of time each item of personal information must be retained;
(v) The cost of maintaining the information; and
(vi) The necessity and relevancy of the information to the purpose for which it was collected.
(g)
(2) Do not destroy any records that must be retained in accordance with disposal authorizations established under 44 U.S.C. 303a, “Examination by the Administrator of General Services of Lists and Schedules of Records Lacking Preservation Value, Disposal of Records.”
(a)
(b)
(a)
(2) If the contractor must use or have access to individually identifiable information subject to this part to perform any part of a contract, and the information would have been collected and maintained by the DoD Component but for the award of the contract, these contractor activities are subject to this Regulation.
(3) The restriction in paragraphs (a) (1) and (2) of § 310.12 do not apply to records:
(i) Established and maintained to assist in making internal contractor management decisions, such as records maintained by the contractor for use in managing the contract;
(ii) Maintained as internal contractor employee records even when used in conjunction with providing goods and services to the Department of Defense; or
(iii) Maintained as training records by an educational organization contracted by a DoD Component to provide training when the records of the contract students are similar to and comingled with training records of other students (for example, admission forms, transcripts, academic counselling and similar records);
(iv) Maintained by a consumer reporting agency to which records have been disclosed under contract in accordance with the Federal Claims Collection Act of 1966, 31 U.S.C. 952(d).
(4) DoD Components must publish instruction that:
(i) Furnish DoD Privacy Program guidance to their personnel who solicit, award, or administer government contracts;
(ii) Inform prospective contractors of their responsibilities regarding the DoD Privary Program; and
(iii) Establish an internal system of contractor performance review to ensure compliance with the DoD Privacy Program.
(b)
(c)
(d)
(a)
(b)
(2) Treat all unclassified records that contain personal information that normally would be withheld from the public under Exemption Numbers 6 and 7, of § 286.31, subpart D of 32 CFR part 286 (DoD Freedom of Information Act Program) as if they were designated “For Official Use Only” and safeguard them in accordance with the standards established by subpart E of 32 CFR part 286 (DoD FOIA Program) even if they are not actually marked “For Official Use Only.”
(3) Afford personal information that does not meet the criteria discussed in paragraph (c)(3) of this section that degree of security which provides protection commensurate with the nature and type of information involved.
(4) Special administrative, physical, and technical procedures are required to protect data that is stored or being processed temporarily in an automated data processing (ADP) system or in a word processing activity to protect it against threats unique to those environments (see Appendices A and B).
(5) Tailor safeguards specifically to the vulnerabilities of the system.
(c)
(2) The transfer of large quantities of records containing personal data (for example, computer cards and printouts) in bulk to a disposal activity, such as the Defense Property Disposal Office, is not a release of personal information under this part. The sheer volume of such transfers make it difficult or impossible to identify readily specific individual records.
(3) When disposing of or destroying large quantities of records containing personal information, care must be exercised to ensure that the bulk of the records is maintained so as to prevent specific records from being readily identified. If bulk is maintained, no special procedures are required. If bulk
(a)
(b)
(2) When an individual is requested to provide his or her SSN, he or she must be advised:
(i) The uses that will be made of the SSN;
(ii) The statute, regulation, or rule authorizing the solicitation of the SSN; and
(iii) Whether providing the SSN is voluntary or mandatory.
(3) Include in any systems notice for any system of records that contains SSNs a statement indicating the authority for maintaining the SSN and the sources of the SSNs in the system. If the SSN is obtained directly from the individual indicate whether this is voluntary or mandatory.
(4) Executive Order 9397, “Numbering System For Federal Accounts Relating to Individual Persons,” November 30, 1943, authorizes solicitation and use of SSNs as numerical identifier for individuals in most Federal records systems. However, it does not provide
(5) Upon entrance into military service or civilian employment with the Department of Defense, individuals are asked to provide their SSNs. The SSN becomes the service or employment number for the individual and is used to establish personnel, financial, medical, and other official records. Provide the notification in paragraph (b)(2) of this section to the individual when originally soliciting his or her SSN. After an individual has provided his or her SSN for the purpose of establishing a record, the notification in paragraph (b)(2) is not required if the individual is only requested to furnish or verify the SSNs for identification purposes in connection with the normal use of his or her records. However, if the SSN is to be written down and retained for any purpose by the requesting official, the individual must be provided the notification required by paragraph (b)(2) of this section.
(6) Consult the Office of Personnel Management, Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) when soliciting SSNs for use in OPM records systems.
(c)
(1) Verification of information through third party sources for security or employment suitability determinations;
(2) Seeking third party opinions such as supervisory comments as to job knowledge, duty performance, or other opinion-type evaluations;
(3) When obtaining the needed information directly from the individual is exceptionally difficult or may result in unreasonable costs; or
(4) Contacting a third party at the request of the individual to furnish certain information such as exact periods of employment, termination dates, copies of records, or similar information.
(d)
(2) The Privacy Act Statement shall include:
(i) The specific federal statute or Executive Order that authorizes collection of the requested information (see paragraph (d) of § 310.10).
(ii) The principal purpose or purposes for which the information is to be used;
(iii) The routine uses that will be made of the information (see § 310.41(e), subpart E);
(iv) Whether providing the information is voluntary or mandatory (see paragraph (e) of this section); and
(v) The effects on the individual if he or she chooses not to provide the requested information.
(3) The Privacy Act Statement shall be concise, current, and easily understood.
(4) The Privacy Act statement may appear as a public notice (sign or poster), conspicuously displayed in the area where the information is collected, such as at check-cashing facilities or identification photograph facilities.
(5) The individual normally is not required to sign the Privacy Act Statement.
(6) Provide the individual a written copy of the Privacy Act Statement upon request. This must be done regardless of the method chosen to furnish the initial advisement.
(e)
(a)
(2) When forms are used to collect personal information, the Privacy Act Statement shall appear as follows (listed in the order of preference):
(i) In the body of the form, preferably just below the title so that the reader will be advised of the contents of the statement
(ii) On the reverse side of the form with an appropriate annotation under the title giving its location;
(iii) On a tear-off sheet attached to the form; or
(iv) As a separate supplement to the form.
(b)
(2) Forms issued by agencies not subject to the Privacy Act (state, municipal, and other local agencies) do not contain Privacy Act Statements. Before using a form prepared by such agencies to collect personal data subject to this part, an appropriate Privacy Act Statement must be added.
(a)
(2) Make available to the individual to whom the record pertains all of the personal information that can be released consistent with DoD responsibilities.
(b)
(c)
(2) Identity verification procedures shall not:
(i) Be so complicated as to discourage unnecessarily individuals from seeking access to information about themselves; or
(ii) Be required of an individual seeking access to records which normally would be available under the “DoD Freedom of Information Act Program” (32 CFR part 286).
(3) Normally, when individuals seek personal access to records pertaining to themselves, identification is made from documents that normally are readily available, such as employee and military identification cards, driver's license, other licenses, permits or passes used for routine identification purposes.
(4) When access is requested by mail, identity verification may consist of the individual providing certain minimum identifying data, such as full name, date and place of birth, or such other personal information necessary to locate the record sought. If the information sought is of a sensitive nature, additional identifying data may be required. If notarization of requests is required, procedures shall be established for an alternate method of verification for individuals who do not have access to notary services, such as military members overseas.
(5) If an individual wishes to be accompanied by a third party when seeking access to his or her records or to have the records released directly to a third party, the individual may be required to furnish a signed access authorization granting the third party access.
(6) An individual shall not be refused access to his or her record solely because he or she refuses to divulge his or her SSN unless the SSN is the only method by which retrieval can be made. (See § 310.20(b)).
(7) The individual is not required to explain or justify his or her need for access to any record under this part.
(8) Only a denial authority may deny access and the denial must be in writing and contain the information required by paragraph (b) of § 310.31.
(d)
(2) Provide exact copies of the record when furnishing the individual copies of records under this part.
(3) Explain in terms understood by the requestor any record or portion of a record that is not clear.
(e)
(2) If a portion of the record contains information that is exempt from access, an extract or summary containing all of the information in the record that is releasable shall be prepared.
(3) When the physical condition of the record or its state makes it necessary to prepare an extract for release, ensure that the extract can be understood by the requester.
(4) Explain to the requester all deletions or changes to the records.
(f)
(2) If it is determined that the release of the medical information may be harmful to the mental or physical health of the individual:
(i) Send the record to a physician named by the individual; and
(ii) In the transmittal letter to the physician explain why access by the individual without proper professional supervision could be harmful (unless it is obvious from the record).
(3) Do not require the physician to request the records for the individual.
(4) If the individual refuses or fails to designate a physician, the record shall not be provided. Such refusal of access is not considered a denial for Privacy Act reporting purposes. (See paragraph (a) of § 310.31).
(5) Access to a minor's medical records may be granted to his or her parents or legal guardians. However, observe the following procedures:
(i) In the United States, the laws of the particular state in which the records are located may afford special protection to certain types of medical records (for example, records dealing with treatment for drug or alcohol abuse and certain psychiatric records). Even if the records are maintained by a military medical facilities these statutes may apply.
(ii) For the purposes of parental access to the medical records and medical determinations regarding minors at overseas installation the age of majority is 18 years except when:
(A) A minor at the time he or she sought or consented to the treatment was between 15 and 17 years of age;
(B) The treatment was sought in a program which was authorized by regulation or statute to offer confidentiality of treatment records as a part of the program;
(C) The minor specifically requested or indicated that he or she wished the treatment record to be handled with confidence and not released to a parent or guardian; and
(D) The parent or guardian seeking access does not have the written authorization of the minor or a valid court order granting access.
(iii) If all four of the above conditions are met, the parent or guardian shall be denied access to the medical records of the minor. Do not use these procedures to deny the minor access to his or her own records under this part or any other statutes.
(6) All members of the Military Services and all married persons are not considered minors regardless of age, and the parents of these individuals do not have access to their medical records without written consent of the individual.
(g)
(2) The term “civil proceeding” is intended to include quasi-judicial and pretrial judicial proceedings that are the necessary preliminary steps to formal litigation.
(3) Attorney work products prepared in conjunction with quasi-judicial pretrial, and trial proceedings, to include those prepared to advise DoD Component officials of the possible legal consequences of a given course of action, are protected.
(h)
(2) Process requests by individuals for access to investigatory record pertaining to themselves compiled for law enforcement purposes and in the custody of law enforcement activities that have been incorporated into systems of records exempted from the access provisions of this part in accordance with section B of chapter 5 under reference (f). Do not deny an individual access to the record solely because it is in the exempt system, but give him or her automatically the same access he or she would receive under the Freedom of Information Act (5 U.S.C. 552). (See also paragraph (h) of this section.)
(3) Process requests by individuals for access to investigatory records pertaining to themselves that are in records systems exempted from access provisions under paragraph (a) of § 310.52, subpart F, under this part, or the DoD Freedom of Information Act Program (32 CFR part 286) depending upon which regulation gives the greatest degree of access (see also paragraph (j) of this section).
(4) Refer individual requests for access to investigatory records exempted from access under a general exemption temporarily in the hands of a noninvestigatory element for adjudicative or personnel actions to the originating investigating agency. Inform the requester in writing of these referrals.
(i)
(2) The personal uncirculated handwritten notes of unit leaders, office supervisors, or military supervisory personnel concerning subordinates are not systems of records within the meaning of this part. Such notes are an extension of the individual's memory. These notes, however, must be maintained and discarded at the discretion of the individual supervisor and not circulated to others. Any established requirement to maintain such notes (such as, written or oral directives, regulations, or command policy) make these notes “agency records” and they then must be made a part of a system of records. If the notes are circulated, they must be made a part of a system of records. Any action that gives personal notes the appearance of official agency records is prohibited, unless the notes have been incorporated into a system of records.
(j)
(i) Requests by individuals for access to records pertaining to themselves made under the Freedom of Information Act (5 U.S.C. 552) or the DoD Freedom of Information Act Program (32 CFR part 286) or DoD Component instuctions implementing the DoD Freedom of Information Act Program are processed under the provisions of that reference.
(ii) Requests by individuals for access to records pertaining to themselves made under the Privacy Act of 1971 (5 U.S.C. 552a), this part, or the DoD Component instructions implementing this part are processed under this part.
(iii) Requests by individuals for access to records about themselves that cite both Acts or the implementing regulations and instructions for both Acts are processed under this part except:
(A) When the access provisions of the DoD Freedom of Information Act Program (32 CFR part 286) provide a greater degree of access; or
(B) When access to the information sought is controlled by another federal statute.
(C) If the former applies, follow the provisions of 32 CFR part 286; and if the
(iv) Requests by individuals for access to information about themselves in systems of records that do not cite either Act or the implementing regulations or instructions for either Act are processed under the procedures established by this part. However, there is no requirement to cite the specific provisions of this part or the Privacy Act (5 U.S.C. 552a) when responding to such requests. Do not count these requests as Privacy Act request for reporting purposes (see subpart I).
(2) Do not deny individuals access to personal information concerning themselves that would otherwise be releasable to them under either Act solely because they fail to cite either Act or cite the wrong Act, regulation, or instruction.
(3) Explain to the requester which Act or procedures have been used when granting or denying access under either Act (see also paragraph (j)(1)(iv) of this section).
(k)
(l)
(a)
(i) Was compiled in reasonable anticipation of civil action (see paragraph (g) of § 310.30)
(ii) Is in a system of records that has been exempted from the access provisions of this regulation under one of the permitted exemptions (see subpart F).
(iii) Contains classified information that has been exempted from the access provision of this part under blanket exemption for such material claimed for all DoD records system (see §310.50(c) of subpart F).
(iv) Is contained in a system of records for which access may be denied under some other federal statute.
(2) Only deny the individual access to those portions of the records from which the denial of access serves some legitimate governmental purpose.
(b)
(i) The record is not described well enough to enable it to be located with a reasonable amount of effort on the part of an employee familiar with the file; or
(ii) Access is sought by an individual who fails or refuses to comply with the established procedural requirements, including refusing to name a physician to receive medical records when required (see paragraph (f) of §310.30) or to pay fees (see §310.33 of this subpart).
(2) Always explain to the individual the specific reason access has been refused and how he or she may obtain access.
(c)
(1) The name, title or position, and signature of a designated Component denial authority;
(2) The date of the denial;
(3) The specific reason for the denial, including specific citation to the appropriate sections of the Privacy Act (5 U.S.C. 552a) or other statutes, this part, DoD Component instructions or Code of Federal Regulations (CFR) authorizing the denial;
(4) Notice to the individual of his or her right to appeal the denial through the Component appeal procedure within 60 calendar days; and
(5) The title or position and address of the Privacy Act appeals official for the Component.
(d)
(1) Review by the head of the Component or his or her designee of any appeal by an individual from a denial of access to Component records.
(2) Formal written notification to the individual by the appeal authority that shall:
(i) If the denial is sustained totally or in part, include as a minimum:
(A) The exact reason for denying the appeal to include specific citation to the provisions of the Act or other statute, this part, Component instructions or the CFR upon which the determination is based;
(B) The date of the appeal determination;
(C) The name, title, and signature of the appeal authority;
(D) A statement informing the applicant of his or her right to seek judicial relief.
(ii) If the appeal is granted, notify the individual and provide access to the material to which access has been granted.
(3) The written appeal notification granting or denying access is the final Component action as regards access.
(4) The individual shall file any appeals from denial of access within no less than 60 calendar days of receipt of the denial notification.
(5) Process all appeals within 30 days of receipt unless the appeal authority determines that a fair and equitable review cannot be made within that period. Notify the applicant in writing if additional time is required for the appellate review. The notification must include the reasons for the delay and state when the individual may expect an answer to the appeal.
(e)
(1) To act on the appeal within 30 days;
(2) To provide the requester with a notice of extension within 30 days; or
(3) To act within the time limits established in the Component's notice of extension (see paragraph (d)(5) of this section).
(f)
(2) All requests for access to these records must be processed in accordance with the Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) as well as the applicable Component procedures.
(3) When a DoD Component refuses to grant access to a record in an OPM system, the Component shall instruct the individual to direct his or her appeal to the appropriate Component appeal authority, not the Office of Personnel Management.
(4) The Component is responsible for the administrative review of its denial of access to such records.
(a)
(b)
(2) While a Component may require that the request for amendment be in writing, this requirement shall not be used to discourage individuals from requesting valid amendments or to burden needlessly the amendment process.
(3) A request for amendment must include:
(i) A description of the item or items to be amended;
(ii) The specific reason for the amendment;
(iii) The type of amendment action sought (deletion, correction, or addition); and
(iv) Copies of available documentary evidence supporting the request.
(c)
(d)
(2) The indentification procedures shall not be used to discourage legitimate requests or to burden needlessly or delay the amendment process. (See paragraph (c) of § 310.30).
(e)
(2) Nothing in the amendment process is intended or designed to permit a collateral attack upon what has already been the subject of a judicial or quasi-judicial determination. However, while the individual may not attack the accuracy of the judicial or quasi-judicial determination under this part, he or she may challenge the accuracy of the recording of that action.
(f)
(1) The accuracy of the information itself; and
(2) The relevancy, timeliness, completeness, and necessity of the recorded information for accomplishing an assigned mission or purpose.
(g)
(2) The letter of acknowledgement shall clearly identify the request and advise the individual when he or she may expect to be notified of the completed action.
(3) Only under the most exceptional circumstances shall more than 30 days be required to reach a decision on a request to amend. Document fully and explain in the Privacy Act case file (see paragraph (p) of this section) any such decision that takes more than 30 days to resolve.
(h)
(i)
(2) Honor all requests by the requester to notify specific federal agencies of the amendment action.
(j)
(1) The specific reason and authority for not amending;
(2) Notification that he or she may seek further independent review of the decision by the head of the Component or his or her designee;
(3) The procedures for appealing the decision citing the position and address of the official to whom the appeal shall be addressed; and
(4) Where he or she can receive assistance in filing the appeal.
(k)
(1) The appeal with all supporting materials both that furnished the individual and that contained in Component records is provided to the reviewing official, and
(2) If the appeal is denied completely or in part, the individual is notified in writing by the reviewing official that:
(i) The appeal has been denied and the specific reason and authority for the denial;
(ii) The individual may file a statement of disagreement with the appropriate authority and the procedures for filing this statement;
(iii) If filed properly, the statement of disagreement shall be included in the records, furnished to all future recipients of the records, and provided to all prior recipients of the disputed records who are known to hold the record; and
(iv) The individual may seek a judicial review of the decision not to amend.
(3) If the record is amended, ensure that:
(i) The requester is notified promptly of the decision;
(ii) All prior known recipients of the records who are known to be retaining the record are notified of the decision and the specific nature of the amendment (see paragraph (i) of this section); and
(iii) The requester is notified as to which DoD Components and federal agencies have been told of the amendment.
(4) Process all appeals within 30 days unless the appeal authority determines that a fair review cannot be made within this time limit. If additional time is required for the appeal, notify the requester, in writing, of the delay, the reason for the delay, and when he or she may expect a final decision on the appeal. Document fully all requirements for additional time in the Privacy Case File. (See paragraph (p) of this section)
(l)
(2) All requests for amendment of these records must be processed in accordance with the OPM Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735). The Component denial authority may deny a request. However, the appeal process for all such denials must include a review by the Assistant Director for Agency Compliance and Evaluation, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415.
(3) When an appeal is received from a Component's denial of amendment of the OPM controlled record, process the appeal in accordance with the OPM Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) and notify the OPM appeal authority listed above.
(4) The individual may appeal any Component decision not to amend the OPM records directly to OPM.
(5) OPM is the final review authority for any appeals from a denial to amend the OPM records.
(m)
(2) If an individual chooses to file a statement of disagreement, annotate the record to indicate that the statement has been filed (see paragraph (n) of this section).
(3) Furnish copies of the statement of disagreement to all DoD Components and federal agencies that have been provided copies of the disputed information and who may be maintaining the information.
(n)
(2) If the statement cannot be made a part of the record, establish procedures to ensure that it is apparent from the records that a statement of disagreement has been filed and maintain the statement so that it can be obtained readily when the disputed information is used or disclosed.
(3) Automated record systems that are not programed to accept statements of disagreement shall be annotated or coded so that they clearly indicate that a statement of disagreement is on file, and clearly identify the statement with the disputed information in the system.
(4) Provide a copy of the statement of disagreement whenever the disputed information is disclosed for any purpose.
(o)
(2) Include in this summary only the reasons furnished to the individual for not amending the record. Do not include comments on the statement of disagreement. Normally, the summary and statement of disagreement are filed together.
(3) When disclosing information for which a summary has been filed, a copy of the summary may be included in the release, if the Component desires.
(p)
(2) The Privacy Case File shall contain as a minimum:
(i) The request for amendment or access;
(ii) Copies of the DoD Component's reply granting or denying the request;
(iii) Any appeals from the individual;
(iv) Copies of the action regarding the appeal with supporting documentation which is not in the basic file; and
(v) Any other correspondence generated in processing the appeal, to include coordination documentation.
(3) Only the items listed in paragraphs (p)(4) and (s) of this section may be included in the system of records challenged for amendment or for which access is sought. Do
(4) The following items relating to an amendment request may be included in the disputed record system:
(i) Copies of the amended record.
(ii) Copies of the individual's statement of disagreement (see paragraph (m) of this section).
(iii) Copies of Component summaries (see paragraph (o) of this section).
(iv) Supporting documentation submitted by the individual.
(5) The following items relating to an access request may be included in the basic records system:
(i) Copies of the request;
(ii) Copies of the Component's action granting total access.
A separate Privacy case file need not be created in such cases.
(iii) Copies of the Component's action denying access;
(iv) Copies of any appeals filed;
(v) Copies of the reply to the appeal.
(6) There is no need to establish a Privacy case file if the individual has not cited the Privacy Act (reference (b)), this part, or the Component implementing instruction for this part.
(7) Privacy case files shall not be furnished or disclosed to anyone for use in making any determination about the individual other than determinations made under this part.
(a)
(2) Do not charge reproduction fees if copying is:
(i) The only means to make the record available to the individual (for example, a copy of the record must be made to delete classified information); or
(ii) For the convenience of the DoD Component (for example, the Component has no reading room where an individual may review the record, or reproduction is done to keep the original in the Component's file).
(3) No fees shall be charged when the record may be obtained without charge under any other regulation, directive, or statute.
(4) Do not use fees to discourage requests.
(b)
(c)
(1) Search and retrieval of records;
(2) Review of records to determine releasability;
(3) Copying records for DoD Component convenience or when the individual has not specifically requested a copy;
(4) Transportation of records and personnel; or
(5) Normal postage.
(d)
(2) Decisions to waiver or reduce fees that exceed the automatic waiver threshold shall be made on a case-by-case basis.
(e)
(f)
(a)
(2) All requests by individual for personal information about other individuals (third parties) shall be processed under the DoD Freedom of Information Program (32 CFR part 286), except for requests by the parents of a minor, or legal guardians of an individual, for access to the records pertaining to the minor or individual.
(b)
(c)
(1) The record has been requested by the individual to whom it pertains.
(2) The written consent of the individual to whom the record pertains has been obtained for release of the record to the requesting agency, activity, or individual, or
(3) The release is for one of the specific nonconsensual purposes set forth in § 310.41 of this part.
(d)
(1) Ensure that the records are accurate, timely, complete, and relevant for agency purposes;
(2) Contact the individual, if reasonably available, to verify the accuracy, timeliness, completeness, and relevancy of the information, if the cannot be determined from the record; or
(3) If the information is not current and the individual is not reasonably available, advise the recipient that the information is believed accurate as of a specific date and any other known factors bearing on its accuracy and relevancy.
(a)
(2) Rank, position, or title alone do not authorize access to personal information about others. An official need for the information must exist before disclosure.
(b)
(2) The standard for exempting most personal records, such as personnel records, medical records, and similar records, is found in Exemption Number 6 of 32 CFR 286.31. Under that exemption, release of personal information can only be denied when its release would be a “clearly unwarranted invasion of personal privacy.”
(3) Release of personal information in investigatory records including personnel security investigation records is controlled by the broader standard of an “unwarranted invasion of personal privacy” found in Exemption Number 7 of 32 CFR 286.31. This broader standard applies only to investigatory records.
(4) See 32 CFR part 286 for the standards to use in applying these exemptions.
(c)
(A) Name.
(B) Present and past postion titles.
(C) Present and past grades.
(D) Present and past salaries.
(E) Present and past duty stations.
(F) Office or duty telephone numbers.
(ii) All disclosures of personal information regarding federal civilian employees shall be made in accordance with the Federal Personnel Manual (FPM) 5 CFR parts 293, 294, 297 and 735.
(2)
(A) Full name.
(B) Rank.
(C) Date of rank.
(D) Gross salary.
(E) Past duty assignments.
(F) Present duty assignment.
(G) Future assignments that are officially established.
(H) Office of duty telephone numbers.
(I) Source of commission.
(J) Promotion sequence number.
(K) Awards and decorations.
(L) Attendance at professional military schools.
(M) Duty status at any given time.
(ii) All releases of personal information regarding military members shall be made in accordance with the standards established by 32 CFR part 286.
(3)
(A) Full name.
(B) Grade or position.
(C) Date of grade.
(D) Gross salary.
(E) Present and past assignments.
(F) Future assignments, if officially established.
(G) Office or duty telephone numbers.
(ii) All releases of personal information regarding civilian personnel in this category shall be made in accordance with the standards established by 32 CFR part 286, the DoD Freedom of Information Program.
(d)
(i) The individual has indicated previously that he or she interposes no objection to their release (see paragraphs (d) (3) and (4) of this section);
(ii) The source of the information to be released is a public document such as commercial telephone directory or other public listing;
(iii) The release is required by federal statute (for example, pursuant to federally-funded state programs to locate parents who have defaulted on child support payments (42 U.S.C. 653); or
(iv) The releasing official releases the information under the provisions of the DoD Freedom of Information Act Program (32 CFR part 286).
(2) A request for a home address or telephone number may be referred to the last known address of the individual for a direct reply by him or her to the requester. In such cases the requester shall be notified of the referral.
(3) When collecting lists of home addresses and telephone numbers, the individual may be offered the option of authorizing the information pertaining to him or her to be disseminated without further permission for specific purposes, such as locator services. In these cases, the information may be disseminated for the stated purpose without further consent. However, if the information is to be disseminated for any other purpose, a new consent is required. Normally such consent for release is in writing and signed by the individual.
(4) Before listing home addresses and home telephone numbers in DoD telephone directories, give the individuals the opportunity to refuse such a listing. Excuse the individual from paying any additional cost that may be associated with maintaining an unlisted number for government-owned telephone services if the individual requests his or her number not be listed in the directory under this part.
(5) Do not sell or rent lists of individual names and addresses unless such action is specifically authorized.
(e)
(2) A routine use shall:
(i) Be compatible with and related to the purpose for which the record was compiled;
(ii) Identify the persons or organizations to whom the record may be released;
(iii) Identify specifically the uses to which the information may be put by the receiving agency; and
(iv) Have been published previously in the
(3) Establish a routine use for each user of the information outside the Department of Defense who need official access to the records.
(4) Routine uses may be established, discontinued, or amended without the consent of the individuals involved. However, new or changed routine uses must be published in the
(5) In addition to the routine uses established by the individual system notices, common blanket routine uses for all DoD-maintained systems of records have been established (see appendix C). These blanket routine uses are published only at the beginning of the listing of system notices for each Component in the
(6) If the recipient has not been identified in the
(f)
(g)
(i) The records will be used as statistical research or reporting records;
(ii) The records will only be transferred in a form that is not individually identifiable; and
(iii) The records will not be used, in whole or in part, to make any determination about the rights, benefits, or entitlements of specific individuals.
(2) A disclosure accounting (see paragraph (a) of § 310.44) is not required when information that is not identifiable individually is released for statistical research or reporting.
(h)
(i) Have historical or other value to warrant continued preservation; or
(ii) For evaluation by the NARA to determine if a record has such historical or other value.
(2) Records transferred to a Federal Records Center (FRC) for safekeeping and storage do not fall within this category. These remain under the control of the transferring Component, and the FRC personnel are considered agents of the Component which retains control over the records. No disclosure accounting is required for the transfer of records to the FRCs.
(i)
(i) The civil or criminal law enforcement activity is authorized by law;
(ii) The head of the law enforcement activity or a designee has made a written request specifying the particular records desired and the law enforcement purpose (such as criminal investigations, enforcement of a civil law, or a similar purpose) for which the record is sought; and
(iii) There is no federal statute that prohibits the disclosure of the records.
(2) Normally, blanket requests for access to any and all records pertaining to an individual are not honored.
(3) When a record is released to a law enforcement activity under paragraph (i)(1) of this section, maintain a disclosure accounting. This disclosure accounting shall not be made available to the individual to whom the record pertains if the law enforcement activity requests that the disclosure not be released.
(4) The blanket routine use for Law Enforcement (appendix C, section A.) applies to all DoD Component systems notices (see paragraph (e)(5) of this section). Only by including this routine use can a Component, on its own initiative, report indications of violations of law found in a system of records to a law enforcement activity without the consent of the individual to whom the record pertains (see paragraph (i)(1) of this section when responding to requests from law enforcement activities).
(j)
(2) When such a disclosure is made, notify the individual who is the subject of the record. Notification sent to the last known address of the individual as reflected in the records is sufficient.
(3) The specific data to be disclosed is at the discretion of releasing authority.
(4) Emergency medical information may be released by telephone.
(k)
(2) The blanket routine use for “Congressional Inquiries” (see appendix C, section D.) applies to all systems; therefore, there is no need to verify that the individual has authorized the release of his or her record to a congressional member when responding to a congressional constituent inquiry.
(3) If necessary, accept constituent letters requesting a member of Congress to investigate a matter pertaining to the individual as written authorization to provide access to the records to the congressional member or his or her staff.
(4) The verbal statement by a congressional staff member is acceptable to establish that a request has been received from the person to whom the records pertain.
(5) If the constituent inquiry is being made on behalf of someone other than the individual to whom the record pertains, provide the congressional member only that information releasable under the Freedom of Information Act (5 U.S.C. 552). Advise the congressional member that the written consent of the individual to whom the record pertains is required before any additional information may be released. Do not contact individuals to obtain their consents for release to congressional members unless a congressional office specifically requests that this be done.
(6) Nothing in paragraph (k)(2) of this section prohibits a Component, when appropriate, from providing the record directly to the individual and notifying the congressional office that this has been done without providing the record to the congressional member.
(7) See paragraph (e) of § 310.33 for the policy on assessing fees for Members of Congress.
(8) Make a disclosure accounting each time a record is disclosed to either House of Congress, to any committee, joint committee, or subcommittee of Congress, to any congressional member, or GAO.
(l)
(2) When a record is disclosed under this provision, make reasonable efforts to notify the individual to whom the record pertains, if the legal process is a matter of public record.
(3) If the process is not a matter of public record at the time it is issued, seek to be advised when the process is made public and make reasonable efforts to notify the individual at that time.
(4) Notification sent to the last known address of the individual as reflected in the records is considered reasonable effort to notify.
(5) Make a disclosure accounting each time a record is disclosed under a court order or compulsory legal process.
(m)
(2) Under the provisions of paragraph (m)(1) of this section, the following information may be disclosed to a consumer reporting agency:
(i) Name, address, taxpayer identification number (SSN), and other information necessary to establish the identity of the individual.
(ii) The amount, status, and history of the claim.
(iii) The agency or program under which the claim arose.
(3) The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 952(d)) specifically requires that the system notice for the system of records from which the information will be disclosed indicates that the information may be disclosed to a “consumer reporting agency.”
(a)
(2) The relationship of commercial enterprises to their clients or customers and to the Department of Defense are not changed by this part.
(3) The DoD policy on personal indebtedness for military personnel is contained in 32 CFR part 43a and for civilian employees in the Office of Personnel Management, Federal Personnel Manual (5 CFR part 550).
(b)
(2) Commercial enterprises may present a signed consent statement setting forth specific conditions for release of personal information. Statements such as the following, if signed by the individual, are considered valid:
I hereby authorize the Department of Defense to verify my Social Security Number or other identifying information and to disclose my home address and telephone number to authorized representatives of (name of commercial enterprise) so that they may use this information in connection with my commercial dealings with that enterprise. All information furnished will be used in connection with my financial relationship with (name of commercial enterprise).
(3) When a statement of consent as outlined in paragraph (b)(2) of this section is presented, provide the requested information if its release is not prohibited by some other regulation or statute.
(4) Blanket statements of consent that do not identify specifically the Department of Defense or any of its Components, or that do not specify exactly the type of information to be released, may be honored if it is clear that the individual in signing the consent statement intended to obtain a personal benefit (for example, a loan to buy a house) and was aware of the type information that would be sought. Care should be exercised in these situations to release only the minimum amount of personal information essential to obtain the benefit sought.
(5) Do not honor request from commercial enterprises for official evaluation of personal characteristics, such as evaluation of personal financial habits.
(a)
(b)
(1) Personal information concerning the patient. See 32 CFR part 286, The DoD Freedom of Information Act Program and paragraph (c) of § 310.41.
(2) Medical condition:
(i) Date of admission or disposition;
(ii) The present medical assessment of the individual's condition in the following terms if the medical doctor has volunteered the information:
(A) The individual's condition is presently (stable) (good) (fair) (serious) or (critical), and
(B) Whether the patient is conscious, semiconscious, or unconscious.
(c)
(2) If the patient is not conscious or competent, no personal information except that required by the Freedom of Information Act (5 U.S.C. 552) shall be released until there has been enough improvement in the patient to ensure he or she can give informed consent or a guardian has been appointed legally for the patient and the guardian has given consent on behalf of the patient.
(3) The consent described in paragraph (c)(1) of this section regarding patients who are minors must be given by the parent of legal guardian.
(d)
(2) Releasing medical information about patients shall be done with discretion, so as not to embarrass the patient, his or her family, or the Department of Defense, needlessly.
(e)
(a)
(i) To DoD personnel for use in the performance of their official duties; or
(ii) Under 32 CFR part 286, The DoD Freedom of Information Program.
(2) In all other cases a disclosure accounting is required even if the individual has consented to the disclosure of the information pertaining to him or her.
(3) Disclosure accountings:
(i) Permit individuals to determine to whom information has been disclosed;
(ii) Enable the activity to notify past recipients of disputed or corrected information (§ 310.32(i)(1), subpart D); and
(iii) Provide a method of determining compliance with paragraph (c) of § 310.40.
(b)
(1) The date of the disclosure.
(2) A description of the information released.
(3) The purpose of the disclosure.
(4) The name and address of the person or agency to whom the disclosure was made.
(c)
(d)
(e)
(f)
(i) The disclosure has been made to a law enforcement activity under paragraph (i) of § 310.41 and the law enforcement activity has requested that disclosure not be made; or
(ii) The system of records has been exempted from the requirement to furnish the disclosure accounting under the provisions of § 310.50(b), subpart F.
(2) If disclosure accountings are not maintained with the record and the individual requests access to the accounting, prepare a listing of all disclosures (see paragraph (b) of this section) and provide this to the individual upon request.
(a)
(i) General exemptions that authorize the exemption of a system of records from all but certain specifically identified provisions of the Act.
(ii) Specific exemptions that allow a system of records to be exempted only from certain designated provisions of the Act.
(2) Nothing in the Act permits exemption of any system of records from all provisions of the Act (see appendix D).
(b)
(2) Only the head of the DoD Component or an authorized designee may claim an exemption for a system of records.
(3) A system of records is considered exempt only from those provisions of the Privacy Act (5 U.S.C. 552a) which are identified specifically in the Component exemption rule for the system and which are authorized by the Privacy Act.
(4) To establish an exemption rule, see § 310.61 of subpart G.
(c)
(2) Do not claim specifically an exemption under section 552a(k)(1) of the Privacy Act for any system of records. The blanket exemption affords protection to all classified material in all systems of records maintained.
(d)
(2) Notify the Defense Privacy Office ODASD(A) before claiming an exemption for any system of records from the following:
(i) The exemption rule publication requirement (5 U.S.C. 552a(j)) of the Privacy Act.
(ii) The requirement to report new systems of records (5 U.S.C. 552a(o)); or
(iii) The annual report requirement (5 U.S.C. 552a(p)).
(e)
(2) Use exemptions only when they are in the best interest of the government and limit them to the specific portions of the records requiring protection.
(3) Do not use an exemption to deny an individual access to any record to which he or she would have access under the Freedom of Information Act (5 U.S.C. 552).
(f)
(2) Records that are actually incorporated into a system of records may be exempted only to the extent the system of records into which they are incorporated has been granted an exemption, regardless of their original status or the system of records for which they were created.
(3) If a record is accidentally misfiled into a system of records, the system notice and rules for the system in which it should actually be filed will govern.
(a)
(2) The general exemption established by 5 U.S.C. 552a(j)(2) of the Privacy Act may be claimed to protect investigative records created and maintained by law-enforcement activities of a DoD Component.
(3) To qualify for the (j)(2) exemption, the system of records must be
(4) Information that may be protected under the (j)(2) exemption include:
(i) Records compiled for the purpose of identifying criminal offenders and alleged offenders consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, parole, and probation status (so-called criminal history records);
(ii) Reports and other records compiled during criminal investigations, to include supporting documentation.
(iii) Other records compiled at any stage of the criminal law enforcement process from arrest or indictment through the final release from parole supervision, such as presentence and parole reports.
(5) The (j)(2) exemption does not apply to:
(i) Investigative records prepared or maintained by activities without primary law-enforcement missions. It may not be claimed by any activity that does not have law enforcement as its principal function.
(ii) Investigative records compiled by any activity concerning employee suitability, eligibility, qualification, or for individual access to classified material regardless of the principal mission of the compiling DoD Component.
(6) The (j)(2) exemption claimed by the law-enforcement activity will not protect investigative records that are incorporated into the record system of a nonlaw enforcement activity or into nonexempt systems of records (see paragraph (f)(2) of § 310.50). Therefore, all system managers are cautioned to comply with the various regulations prohibiting or limiting the incorporation of investigatory records into system of records other than those maintained by law-enforcement activities.
(b)
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(b)
(2) Ensure that promises of confidentiality are used on a limited basis in day-to-day operations. Establish appropriate procedures and identify fully those categories of individuals who may make such promises. Promises of confidentiality shall be made only when they are essential to obtain the information sought.
(c)
(a)
(i) DoD Component Privacy Program rules;
(ii) Component exemption rules; and
(iii) System notices.
(2) See DoD 5025.1-M, “Directives Systems Procedures,” and DoD Directive 5400.9, (32 CFR part 296) “Publication of Proposed and Adopted Regulations Affecting the Public” for information pertaining to the preparation of documents for publication in the
(b)
(c)
(2) System notices are not subject to formal rulemaking and are published in the
(3) Privacy procedural and exemption rules are incorporated automatically into the Code of Federal Regulations (CFR). System notices are not published in the CFR.
(d)
(2) This part has been published as a final rule in the
(3) DoD Component rules that simply implement this part need only be published as final rules in the
(4) Amendments to Component rules are submitted like the basic rules.
(5) The Defense Privacy Office ODASD(A) submits the rules and amendments thereto to the
(e)
(2) Submit exemption rules in proper format to the Defense Privacy Office ODASD(A). After review, the Defense Privacy Office will submit the rules to the
(3) Exemption rules require publication both as proposed rules and final rules (see DoD Directive 5400.9, 32 CFR part 296).
(4) Section 310.61 of this subpart discusses the content of an exemption rule.
(5) Submit amendments to exemption rules in the same manner used for establishing these rules.
(f)
(i) The system notice describes the contents of the record system and the routine uses for which the information in the system may be released.
(ii) The public be given 30 days to comment on any proposed routine uses before implementation; and
(iii) The notice contain the data on which the system will become effective.
(2) Submit system notices to the Defense Privacy Office in the Federal Register format (see appendix E). The Defense Privacy Office transmits the notices to the
(3) Section 310.62 of this subpart discusses the specific elements required in a system notice.
(a)
(b)
(i) The record system identification and title of the system for which the exemption is claimed (see § 310.62 of this subpart);
(ii) The specific subsection of the Privacy Act under which exemptions for the system are claimed (for example, 5 U.S.C. 552a(j)(2), 5 U.S.C. 552a(k)(3); or 5 U.S.C. 552a(k)(7);
(iii) The specific provisions and subsections of the Privacy Act from which the system is to be exempted (for example, 5 U.S.C. 552a(c)(3), or 5 U.S.C. 552a(d)(1)-(5)) (see appendix D); and
(iv) The specific reasons why an exemption is being claimed from each subsection of the Act identified.
(2) Do not claim an exemption for classified material for individual systems of records, since the blanket exemption applies (see paragraph (c) of § 310.50 of subpart F).
(a)
(i) System identification (see paragraph (b) of this section).
(ii) System name (see paragraph (c) of this section).
(iii) System location (see paragraph (d) of this section).
(iv) Categories of individuals covered by the system (see paragraph (e) of this section).
(v) Categories of records in the system (see paragraph (f) of this section).
(vi) Authority for maintenance of the system (see paragraph (g) of this section).
(vii) Purpose(s) (see paragraph (h) of this section).
(viii) Routine uses of records maintained in the system, including categories of users, uses, and purposes of such uses (see paragraph (i) of this section).
(ix) Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system (see paragraph (j) of this section).
(x) Systems manager(s) and address (see paragraph (k) of this section).
(xi) Notification procedure (see paragraph (l) of this section).
(xii) Record access procedures (see paragraph (m) of this section).
(xiii) Contesting records procedures (see paragraph (n) of this section.)
(xiv) Record source categories (see paragraph (o) of this section).
(xv) Systems exempted from certain provision of the Act (see paragraph (p) of this section).
(2) The captions listed in paragraph (a)(1) of this section have been mandated by the Office of Federal Register and must be used exactly as presented.
(3) A sample system notice is shown in appendix E.
(b)
(c)
(2) Use acronyms only parenthetically following the title or any portion thereof, such as, “Joint Uniform Military Pay System (JUMPS).” Do not use acronyms that are not commonly known unless they are preceded by an explanation.
(3) The system name may not exceed 55 character positions including punctuation and spacing.
(d)
(2) For geographically or organizationally decentralized systems, specify each level of organization or element that maintains a segment of the system.
(3) For automated data systems with a central computer facility and input/output terminals at several geographically separated locations, list each location by category.
(4) When multiple locations are identified by type of organization, the system location may indicate that official mailing addresses are contained in an address directory published as an appendix to the Component system notices in the
(5) If no address directory is used or the addresses in the directory are incomplete, the address of each location where a segment of the record system is maintained must appear under the “System Location” caption.
(6) Classified addresses are not listed, but the fact that they are classified is indicated.
(7) Use the standard U.S. Postal Service two letter state abbreviation symbols and zip codes for all domestic addresses.
(e)
(2) Avoid the use of broad over-general descriptions, such as “all Army personnel” or “all military personnel” unless this actually reflects the category of individuals involved.
(f)
(2) Only documents actually retained in the system of records shall be described, not source documents that are used only to collect data and then destroyed.
(g)
(2) Include with citations for statutes the popular names, when appropriate (for example, Title 51, U.S. Code, section 2103, “Tea-Tasters Licensing Act”), and for Executive Orders, the official title (for example, Executive Order No. 9397, “Numbering System for Federal Accounts Relating to Individual Persons”).
(3) Cite the statute or Executive Order establishing the Component for administrative housekeeping records.
(4) If the Component is chartered by a DoD Directive, cite that Directive as well as the Secretary of Defense authority to issue the Directive. For example, “Pursuant to the authority contained in the National Security Act of 1947, as amended (10 U.S.C. 133d), the Secretary of Defense has issued DoD Directive 5105.21, the charter of the Defense Intelligence Agency (DIA) as a separate Agency of the Department of Defense under his control. Therein, the Director, DIA, is charged with the responsibility of maintaining all necessary and appropriate records.”
(h)
(2) Include the uses made of the information within the Component and the Department of Defense (so-called “internal routine uses”).
(i)
(2) For all other routine uses, when practical, list the specific activity to which the record may be released, to include any routine automated system interface (for example, “to the Department of Justice, Civil Rights Compliance Division,” “to the Veterans Administration, Office of Disability Benefits,” or “to state and local health agencies”).
(3) For each routine user identified, include a statement as to the purpose or purposes for which the record is to be released to that activity (see § 310.41(e) of subpart E). The routine uses should be compatible with the purpose for which the record was collected or obtained (see § 310.3(p), subpart A).
(4) Do not use general statements, such as, “to other federal agencies as required” or “to any other appropriate federal agency.”
(j)
(1)
(2)
(3)
(4)
(k)
(2) If the title of the specific official is unknown, such as for a local system, specify the local commander or office head as the systems manager.
(3) For geographically separated or organizationally decentralized activities for which individuals may deal directly with officials at each location in exercising their rights, list the position or duty title of each category of officials responsible for the system or a segment thereof.
(4) Do not include business or duty addresses if they are listed in the Component address directory.
(l)
(2) For all nonexempt systems, describe how an individual may determine if there are records pertaining to him or her in the system. The procedural rules may be cited, but include a brief procedural description of the needed data. Provide sufficient information in the notice to allow an individual to exercise his or her rights without referral to the formal rules.
(3) As a minimum, the caption shall include:
(i) The official title (normally the system manager) and official address to which the request is to be directed;
(ii) The specific information required to determine if there is a record of the individual in the system.
(iii) Identification of the offices through which the individual may obtain access; and
(iv) A description of any proof of identity required (see § 310.30(c)(1)).
(4) When appropriate, the individual may be referred to a Component official who shall provide this data to him or her.
(m)
(2) For all nonexempt records systems, describe the procedures under which individuals may obtain access to the records pertaining to them in the system.
(3) When appropriate, the individual may be referred to the system manager or Component official to obtain access procedures.
(4) Do not repeat the addresses listed in the Component address directory but refer the individual to that directory.
(n)
(2) For all nonexempt systems of records, state briefly how an individual may contest the content of a record pertaining to him or her in the system.
(3) The detailed procedures for contesting record accuracy, refusal of access or amendment, or initial review and appeal need not be included if they are readily available elsewhere and can be referred to by the public. (For example, “The Defense Mapping Agency rules for contesting contents and for appealing initial determinations are contained in DMA Instruction 5400.11 (32 CFR part 295c).”)
(4) The individual may also be referred to the system manager to determine these procedures.
(o)
(2) For all nonexempt systems of records, list the sources of the information in the system.
(3) Specific individuals or institutions need not be identified by name, particularly if these sources have been granted confidentiality (see § 310.52(b), subpart F).
(p)
(2) If there is an exemption claimed indicate specifically under which subsection of the Privacy Act (5 U.S.C. 552a) it is claimed.
(3) Cite the regulation and CFR section containing the exemption rule for the system. (For example, “Parts of this record system may be exempt under Title 5 U.S. Code, 552a(k)(2) and (5), as applicable. See exemption rules
(q)
(2) Coordinate with the Defense Privacy Office, ODASD(A) to ensure that all new systems are added to the master registry and all amendments and alterations are incorporated into the master registry.
(a)
(2) If a notice for a system of records has been canceled or deleted before reinstating or reusing the system, a new system notice must be published in the
(b)
(1) A significant increase or change in the number or type of individuals about whom records are maintained.
(i) Only changes that alter significantly the character and purpose of the record system are considered alterations.
(ii) Increases in numbers of individuals due to normal growth are not considered alterations unless they truly alter the character and purpose of the system;
(iii) Increases that change significantly the scope of population covered (for example, expansion of a system of records covering a single command's enlisted personnel to include all of the Component's enlisted personnel would be considered an alteration).
(iv) A reduction in the number of individuals covered is not an alteration, but only an amendment (see paragraph (a) of § 310.64 of this subpart).
(v) All changes that add new categories of individuals to system coverage require a change to the “Categories of individuals covered by the system” caption of the notice (§ 310.62(e)) and may require changes to the “Purpose(s)” caption (§ 310.62(h)).
(2) An expansion in the types or categories of information maintained.
(i) The addition of any new category of records not described under the “Categories of Records in System” caption is considered an alteration.
(ii) Adding a new data element which is clearly within the scope of the categories of records described in the existing notice is an amendment (see § 310.64(a) of this subpart).
(iii) All changes under this criterion require a change to the “Categories of Records in System” caption of the notice (see § 310.62(f) of this subpart).
(3) An alteration in the manner in which the records are organized or the manner in which the records are indexed and retrieved.
(i) The change must alter the nature of use or scope of the records involved (for example, combining records systems in a reorganization).
(ii) Any change under this criteria requires a change in the “Retrievability” caption of the system notice (see § 310.62(j)(2) of this subpart).
(iii) If the records are no longer retrieved by name or personal identifier cancel the system notice (see § 310.10(a) of subpart B).
(4) A change in the purpose for which the information in the system is used.
(i) The new purpose must not be compatible with the existing purposes for which the system is maintained or a use that would not reasonably be expected to be an alteration.
(ii) If the use is compatible and reasonably expected, there is no change in purpose and no alteration occurs.
(iii) Any change under this criterion requires a change in the “Purpose(s)” caption (see § 310.62(h) of this subpart) and may require a change in the “Authority for maintenance of the system” caption (see § 310.62(g) of this subpart).
(5) Changes that alter the computer environment (such as changes to equipment configuration, software, or procedures) so as to create the potential for greater or easier access.
(i) Increasing the number of offices with direct access is an alteration.
(ii) Software releases, such as operating systems and system utilities that
(iii) The addition of an on-line capability to a previously batch-oriented system is an alteration.
(iv) The addition of peripheral devices such as tape devices, disk devices, card readers, printers, and similar devices to an existing ADP system constitute an amendment if system security is preserved (see paragraph (a) of § 310.64 of this subpart).
(v) Changes to existing equipment configuration with on-line capability need not be considered alterations to the system if:
(A) The change does not alter the present security posture; or
(B) The addition of terminals does not extend the capacity of the current operating system and existing security is preserved;
(vi) The connecting of two or more formerly independent automated systems or networks together creating a potential for greater access is an alteration.
(vii) Any change under this caption requires a change to the “Storage” caption element of the systems notice (see § 310.62(j)(1) of this subpart).
(c)
(2) The Defense Privacy Office, ODASD(A) coordinates all reports of new and altered systems with the Office of the Assistant Secretary of Defense (Legislative Affairs) and the Office of the General Counsel, Department of Defense.
(3) The Defense Privacy Office prepares for the DASD(A)'s approval and signature the transmittal letters sent to OMB and Congress (see paragraph (e) of this section).
(d)
(i) 60 days must elapse before data collection forms or formal instructions pertaining to the system may be issued.
(ii) 60 days must elapse before the system may become operational; (that is, collecting, maintaining, using, or disseminating records from the system) (see also § 310.60(f) of this subpart).
(iii) 60 days must elapse before any public issuance of a Request for Proposal or Invitation to Bid for a new ADP or telecommunication system.
Requests for delegation of procurement authority may be submitted to the General Services Administration during the 60 days' waiting period, but these shall include language that the Privacy Act reporting criteria have been reviewed and that a system report is required for such procurement.
(iv) Normally 30 days must elapse before publication in the
(2) Do not operate a system of records until the waiting periods have expired (see § 310.103 of subpart K).
(e)
(f)
(g)
(2) When seeking such a waiver, include in the letter of transmittal to the Defense Privacy Office, ODASD(A) an explanation why a delay of 60 days in establishing the system of records would not be in the public interest. The transmittal must include:
(i) How the public interest will be affected adversely if the established time limits are followed; and
(ii) Why earlier notice was not provided.
(3) When appropriate, the Defense Privacy Office, ODASD(A) shall contact OMB and attempt to obtain the waiver.
(i) If a waiver is granted, the Defense Privacy Office, ODASD(A) shall notify the subcommittee and submit the new or altered system notice along with any applicable procedural or exemption rules for publication in the
(ii) If the waiver is disapproved, the Defense Privacy Office, ODASD(A) shall process the system the same as any other new or altered system and notify the subcommittee of the OMB decision.
(4) Under no circumstances shall the routine uses for new or altered system be implemented before 30 days have elapsed after publication of the system notice containing the routine uses in the
(a)
(2) Amendments do not require a report of an altered system (see § 310.63(c) of this subpart), but must be published in the
(b)
(1) The system identification and name (see paragraph (b) and (c) of § 310.62 of this subpart).
(2) A description of the nature and specific changes proposed.
(3) The full text of the system notice is not required if the master registry contains a current system notice for the system (see § 310.62(q) of this subpart).
(c)
(2) The notice of deletion shall include:
(i) The system identification and name.
(ii) The reason for the deletion.
(3) When the system is eliminated through combination or merger, identify the successor system or systems in the deletion notice.
(d)
(2) Include in the submission at least one original (not a reproduced copy) in proper
(3) Multiple deletions and amendments may be combined into a single submission.
The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires each agency to establish rules of conduct for all persons involved in the design, development, operation, and maintenance of any system of record and to train these persons with respect to these rules.
The OMB guidelines require all agencies additionally to:
(a) Instruct their personnel in their rules of conduct and other rules and procedures adopted in implementing the Act, and inform their personnel of the penalties for noncompliance.
(b) Incorporate training on the special requirements of the Act into both formal and informal (on-the-job) training programs.
(a) To meet these training requirements, establish three general levels of training for those persons who are involved in any way with the design, development, operation, or maintenance of any system of records. These are:
(1)
(2)
(3)
(b) Include Privacy Act training in courses of training when appropriate. Stress individual responsibilities and advise individuals of their rights and responsibilities under this part.
(a) Each DoD Component is responsible for the development of training procedures and methodology.
(b) The Defense Privacy Office, ODASD(A) will assist the Components in developing these training programs and may develop Privacy training programs for use by all DoD Components.
(c) All training programs shall be coordinated with the Defense Privacy Office, ODASD(A) to avoid duplication and to ensure maximum effectiveness.
Each DoD Component shall fund its own Privacy training program.
The Defense Privacy Office, ODASD(A) shall establish requirements for DoD Privacy Reports and DoD Components may be required to provide data.
The suspenses for submission of all reports shall be established by the Defense Privacy Office, ODASD(A).
Any report established by this subpart in support of the Defense Privacy Program shall be assigned Report Control Symbol DD-COMP(A)1379. Special one-time reporting requirements shall be licensed separately in accordance with DoD Directive 5000.19 “Policies for the Management and Control of Information Requirements” and DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program.”
During internal inspections, Component inspectors shall be alert for compliance with this part and for managerial, administrative, and operational problems associated with the implementation of the Defense Privacy Program.
(a) Document the findings of the inspectors in official reports that are furnished the responsible Component officials. These reports, when appropriate, shall reflect overall assets of the Component Privacy Program inspected, or portion thereof, identify deficiencies, irregularities, and significant problems. Also document remedial actions taken to correct problems identified.
(b) Retain inspections reports and later follow-up reports in accordance with established records disposition standards. These reports shall be made
Any individual who feels he or she has a legitimate complaint or grievance against the Department of Defense or any DoD employee concerning any right granted by this part shall be permitted to seek relief through appropriate administrative channels.
An individual may file a civil suit against a DoD Component or its employees if the individual feels certain provisions of the Act have been violated (see 5 U.S.C. 552a(g), of the Privacy Act.
In addition to specific remedial actions, subsection (g) of the Privacy Act (5 U.S.C. 552a) provides for the payment of damages, court cost, and attorney fees in some cases.
(a) The Act also provides for criminal penalties (see 5 U.S.C. 552a(i). Any official or employee may be found guilty of a misdemeanor and fined not more than $5,000 if he or she willfully:
(1) Discloses personal information to anyone not entitled to receive the information (see subpart E); or
(2) Maintains a system of records without publishing the required public notice in the
(b) A person who requests or obtains access to any record concerning another individual under false pretenses may be found guilty of misdemeanor and fined up to $5,000.
Whenever a complaint citing the Privacy Act is filed in a U.S. District Court against the Department of Defense, a DoD Component, or any DoD employee, the responsible system manager shall notify promptly the Defense Privacy Office, ODASD(A). The litigation status sheet at appendix H provides a standard format for this notification. The initial litigation status sheet forwarded shall, as a minimum, provide the information required by items 1 through 6. A revised litigation status sheet shall be provided at each stage of the litigation. When a court renders a formal opinion or judgment, copies of the judgment and opinion shall be provided to the Defense Privacy Office with the litigation status sheet reporting that judgment or opinion.
The OMB has issued special guidelines to be followed in programs that match the personal records in the computerized data bases of two or more federal agencies by computer (see appendix I). These guidelines are intended to strike a balance between the interest of the government in maintaining the integrity of federal programs and the need to protect individual privacy expectations. They do not authorize matching programs as such and each matching program must be justified individually in accordance with the OMB guidelines.
(a) Forward all requests for matching programs to include necessary routine use amendments (see § 310.62(i) of subpart G) and analysis and proposed matching program reports (see subsection E.6. of appendix I) to the Defense Privacy Office, ODASD(A).
(b) The Defense Privacy Office shall review each request and supporting material and forward the report and system notice amendments to the
(c) Changes to existing matching programs shall be processed in the same manner as a new matching program report.
(a) No time limits are set by the OMB guidelines. However, in order to establish a new routine use for a matching
(b) Submit the documentation required by § 310.111(a) of this subpart to the Defense Privacy Office at least 45 days before the proposed initiation date of the matching program.
(c) The Defense Privacy Office may grant waivers to the 45 days' deadline for good cause shown. Requests for waivers shall be in writing and fully justified.
(a) For the purpose of the OMB guidelines, the Department of Defense and all DoD Components are considered a single agency.
(b) Before initiating a matching program using only the records of two or more DoD Components, notify the Defense Privacy Office that the match is to occur. The Defense Privacy Office may request further information from the Component proposing the match.
(c) There is no need to notify the Defense Privacy Office of computer matches using only the records of a single Component.
The system manager shall review annually each system of records to determine if records from the system are being used in matching programs and whether the OMB Guidelines have been complied with.
1. The Automated Data Processing (ADP) environment subjects personal information to special hazards as to unauthorized compromise alteration, dissemination, and use. Therefore, special considerations must be given to safeguarding personal information in ADP systems.
2. Personal information must also be protected while it is being processed or accessed in computer environments outside the data processing installation (such as, remote job entry stations, terminal stations, minicomputers, microprocessors, and similar activities).
3. ADP facilities authorized to process classified material have adequate procedures and security for the purposes of this Regulation. However, all unclassified information subject to this Regulation must be processed following the procedures used to process and access information designated “For Official Use Only” (see “DoD Freedom of Information Act Program” (32 CFR part 286)).
1. Establish administrative, technical, and physical safeguards that are adequate to protect the information against unauthorized disclosure, access, or misuse (see Transmittal Memorandum No. 1 to OMB Circular A-71—Security of Federal Automated Information Systems).
2. Technical and physical safeguards alone will not protect against unintentional compromise due to errors, omissions, or poor procedures. Proper administrative controls generally provide cheaper and surer safeguards.
3. Tailor safeguards to the type of system, the nature of the information involved, and the specific threat to be countered.
The minimum safeguarding standards as set forth in paragraph (b) of § 310.13, subpart B apply to all personal data within any ADP system. In addition:
1. Consider the following when establishing ADP safeguards:
a. The sensitivity of the data being processed, stored and accessed;
b. The installation environment;
c. The risk of exposure;
d. The cost of the safeguard under consideration.
2. Label or designate output and storage media products (intermediate and final) containing personal information that do not contain classified material in such a manner as to alert those using or handling the information of the need for special protection. Designating products “For Official Use Only” in accordance with subpart E of 32 CFR part 286, “DoD Freedom of Information Act Program,” satisfies this requirement.
3. Mark and protect all computer products containing classified data in accordance with the DoD Information Security Program Regulation (32 CFR part 159) and the ADP Security Manual (DoD 5200.28-M).
4. Mark and protect all computer products containing “For Official Use Only” material in accordance with subpart E of 32 CFR part 286.
5. Ensure that safeguards for protected information stored at secondary sites are appropriate.
6. If there is a computer failure, restore all protected information being processed at the time of the failure using proper recovery procedures to ensure data integrity.
7. Train all ADP personnel involved in processing information subject to this part in proper safeguarding procedures.
1. For all unclassified facilities, areas, and devices that process information subject to this part, establish physical safeguards that protect the information against reasonably identifiable threats that could result in unauthorized access or alteration.
2. Develop access procedures for unclassified computer rooms, tape libraries, micrographic facilities, decollating shops, product distribution areas, or other direct support areas that process or contain personal information subject to this part that control adequately access to these areas.
3. Safeguard on-line devices directly coupled to ADP systems that contain or process information from systems of records to prevent unauthorized disclosure use or alteration.
4. Dispose of paper records following appropriate record destruction procedures.
1. The use of encryption devices solely for the purpose of protecting unclassified personal information transmitted over communication circuits or during processing in computer systems is normally discouraged. However, when a comprehensive risk assessment indicates that encryption is cost-effective it may be used.
2. Remove personal data stored on magnetic storage media by methods that preclude reconstruction of the data.
3. Ensure that personal information is not inadvertently disclosed as residue when transferring magnetic media between activities.
4. When it is necessary to provide dial-up remote access for the processing of personal information, control access by computer-verified passwords. Change passwords periodically or whenever compromise is known or suspected.
5. Normally the passwords shall give access only to those data elements (fields) required and not grant access to the entire data base.
6. Do not rely totally on proprietary software products to protect personnel data during processing or storage.
a. Notify the ADP manager whenever personal information subject to this Regulation is to be processed by an ADP facility.
b. Prepare and submit for publication all system notices and amendments and alterations thereto (see paragraph (f) of § 310.60 of subpart G).
c. Identify to the ADP manager those activities and individuals authorized access to the information and notify the manager of any changes to the access authorizations.
a. Permit only authorized individuals access to the information.
b. Adhere to the established information protection procedures and rules of conduct.
c. Notify the system manager and ADP manager whenever unauthorized personnel seek access to the information.
a. Maintain an inventory of all computer program applications used to process information subject to this part to include the identity of the systems of records involved.
b. Verify that requests for new programs or changes to existing programs have been published as required (see paragraphs (a) and (b) of § 310.63, subpart G).
c. Notify the system manager whenever changes to computer installations, communications networks, or any other changes in the ADP environment occur that require an altered system report be submitted (see paragraph (b) of § 310.63, subpart G).
1. Dispose of records subject to this part so as to prevent compromise (see paragraph (c) of § 310.13 of subpart B). Magnetic tapes or other magnetic medium, may be cleared by degaussing, overwriting, or erasing. Unclassified carbon ribbons are considered destroyed when placed in a trash receptacle.
2. Do not use respliced waste computer products containing personal data.
1. A separate risk assessment is not required for ADP installations that process classified material. A simple certification by the appropriate ADP official that the facility is cleared to process a given level of classified material (such as, Top Secret, Secret, or Confidential) and that the procedures followed in processing “For Official Use Only” material are to be followed in processing personal data subject to this Regulation is sufficient to meet the risk assessment requirement.
2. Prepare a formal risk assessment for each ADP installation (to include those activities with terminals and devices having access to ADP facilities) that processes personal information subject to this part and that do not process classified material.
3. Address the following in the risk assessment:
a. Identify the specific systems of records supported and determine their impact on the mission of the user.
b. Identify the threats (internal, external, and natural) to the data.
c. Determine the physical and operational (to include software) vulnerabilities.
d. Evaluate the relationships between vulnerabilities and threats.
e. Assess the impact of unauthorized disclosure or modification of the personal information.
f. Identify possible safeguards and their relationships to the threats to be countered.
g. Analyze the economic feasibility of adopting the identified safeguards.
h. Determine the safeguard to be used and develop implementation plans.
i. Discuss contingency plans including operational exercise plans.
j. Determine if procedures proposed are consistent with those identified in the system notices for system of records concerned.
k. Include a vulnerability assessment.
3. The risk assessment shall be reviewed by the appropriate Component officials.
4. Conduct a risk assessment at least every 5 years or when there is a change to the installation, its hardware, software, or administrative procedures that increase or decrease the likelihood of compromise or present new threats to the information.
5. Protect the risk assessment as it is a sensitive document.
6. Retain a copy of the risk assessment at the installation and make it available to appropriate inspectors and authorized personnel.
7. Include a summary of the current risk assessment with any report of new or altered system submitted in accordance with paragraph (c) of § 310.63, subpart G, for any system from which information will be processed.
8. Complete a formal risk assessment at the beginning of the design phase for each new unclassified ADP installation and before beginning the processing of personal data on a regular basis in existing ADP facility that do not process classified data.
1. Normally, word processing support is provided under two general concepts. They are:
a. Word processing centers (WPCs), and
b. Work groups or clusters.
2. A WPC generally provides support to one or more functional areas. Characteristically, the customer delivers (by written draft or dictation) the information to be processed to the WPC. The WPC process the information and returns it to the customer. There are generally two types of WPCs.
a. A WPC may operate independent of the customer's functon, providing service in much the same manner as a data processing installation provides ADP support, or a message center provides electronic message service, or
b. A WPC may work within a customer's function providing support to that function. The support being centralized in a WPC to take advantage of increased productivity.
3. A work group or cluster generally consists of one or more pieces of word processing equipment that are integrated into the functional office support system. The overall word processing and functional management may be one and the same. Depending on the size of the support job, there may be a work group or cluster manager. Normally, however, they will be located within or in close proximity to the functional area supported. Information flows in and out of the work group or cluster by normal office routine and the personnel are an integral part of the office staff.
1. Regardless of configuration (WPC or work group), all personal data processed using word processing equipment shall be afforded the standards of protection required by paragaph (b) of § 310.13, subpart B.
2. The remaining special considerations discussed in this appendix are primarily for WPCs operating independent of the customer's function. However, managers of other WPCs, work groups, and work clusters are encouraged to consider and adopt, when appropriate, the special considerations discussed herein.
3. WPCs that are not independent of a customer's function, work groups, and work clusters are not required to prepare formal written risk assessments (see section H., below).
1. In analyzing procedures required to safeguard adequately personal information in a WPC, the basic elements of WPC information flow and control must be considered. These are:
a. Information receipt.
b. Information processing.
c. Information return.
d. Information storage or filing.
2. WPCs do not control information acquisition or its ultimate use by the customers and, therefore, these are not addressed.
1. The word processing manager shall establish procedures.
a. That require each customer who requests that information subject to this part be processed to identify specifically that information to the WPC personnel. This may be done by:
(1) Providing a check-off type entry on the WPC work requests;
(2) Requiring that the WPC work requests be stamped with a special legend, or that a special notation be made on the work requests;
(3) Predesignating specifically a class of documents as coming within the provisions of this part (such as, all officer effectiveness reports, all recall rosters, and all medical protocols).
(4) Using a special cover sheet both to alert the WPC personnel as to the type information, and to protect the document during transmittal;
(5) Requiring an oral warning on all dictation; or
(6) Any other procedures that ensure the WPC personnel are alerted to the fact that personal data subject to this part is to be processed.
b. To ensure that the operators or other WPC personnel receiving data for processing that has not been identified to be under the provisions of this part but that appear to be personal promptly call the information to the attention of the WPC supervisor or the customer;
c. To ensure that any request for the processing of personal data that the customer has not identified as being in a system of records and that appears to meet the criteria set forth in paragraph (a) of § 310.10, subpart B is called to the attention of the appropriate supervisory personnel and system manager.
2. The WPC supervisor shall ensure that personal information is not inadvertently compromised within the WPC.
1. Each WPC supervisor shall establish internal safeguards that shall protect personal data from compromise while it is being processed.
2. Physical safeguards may include:
a. Controls on individual access to the center;
b. Machine configurations that reduce external access to the information being processed, or arrangements that alert the operator to the presence of others;
c. Using certain specific machines to process personal data;
d. Any other physical safeguards, to include special technical arrangements that will protect the data during processing.
3. Other safeguards may include:
a. Using only certain selected operators to process personal data;
b. Processing personal data only at certain times during the day without the WPC manager's specific authorization;
c. Using only certain tapes or diskettes to process and store personal data;
d. Using continuous tapes for dictation of personal data;
e. Requiring all WPC copies of documents to be marked specifically so as to prevent inadvertent compromise;
f. Returning extra copies and mistakes to the customer with the product;
g. Disposing of waste containing personal data in a special manner;
h. Any other local procedures that provide adequate protection to the data being processed.
1. The WPC shall protect the data until it is returned to the customer or placed into a formal distribution channel.
2. In conjunction with the appropriate administrative support personnel and the WPC customers, the WPC manager shall establish procedures that protect the information from the time word processing is completed until it is returned to the customer.
3. Safeguarding procedures may include:
a. Releasing products only to specifically identifiable individuals;
b. Using sealed envelopes to transmit products to the customer;
c. Using special cover sheets to protect products similar to the one discussed in subparagraph D.1.a.(4), above;
d. Handcarrying products to the customers;
e. Using special messengers to return the products;
f. Any other procedures that protect adequately products from compromise while they are awaiting return or being returned to the customer.
1. The WPC manager shall ensure that all personal data retained in the center for any purpose (including samples) are protected properly.
2. Safeguarding procedures may include:
a. Marking all hard copies retained with special legends or designators;
b. Storing media containing personal data in separate files or areas;
c. Marking the storage containers for media containing personal data with special legends or notations;
d. Restricting the reuse of media used to process personal data or erasing automatically the media before reuse;
e. Establishing special criteria for the WPC retention of media used to store and process personal data;
f. Returning the media to the customer for retention with the file copies of the finished products;
g. Discouraging, when practical, the long-term storage of personal data in any form within the WPC;
h. Any other filing or storage procedures that safeguard adequately any personal information retained or filed within the WPC.
1. Each WPC manager shall ensure that a formal, written risk assessment is prepared for each WPC that processes personal information subject to this part.
2. The assessment shall address the areas discussed in sections D., E., F., and G. of this appendix, as well as any special risks that the WPC location, configuration, or organization may present to the compromise or alteration of personal data being processed or stored.
3. A risk assessment shall be conducted at least every 5 years or whenever there is a change of equipment, equipment configuration, WPC location, WPC configuration or modification of the WPC facilities that either increases or decreases the likelihood of compromise of personal data.
4. Copies of the assessment shall be retained by the WPC manager and made available to appropriate inspectors, as well as to personnel studying equipment for facility upgrading or modification.
5. Every new WPC shall have a formal risk assessment completed before beginning the processing of personal data.
Procedures shall be established to ensure that all personnel involved in the design of WPCs or the acquisition of word processing equipment are aware of the special considerations required when processing personal data subject to this part.
If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
A record from a system of records maintained by a Component may be disclosed as a routine use to a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a Component decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
A record from a system of records maintained by a Component may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary tothe requesting agency's decision on the matter.
Disclosure from a system of records maintained by a Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.
Relevant information contained in all systems of records of the Department of Defense published on or before August 22, 1975, will be disclosed to the OMB in connection with the review of private relief legislation as set forth in OMB Circular A-19 (reference (u)) at
A record from a system of records maintained by a Component may be disclosed to foreign law enforcement, security, investigatory, or administrative authorities to comply with requirements imposed by, or to claim rights conferred in, international agreements and arrangements including those regulating the stationing and status in foreign countries of DoD military and civilian personnel.
Any information normally contained in Internal Revenue Service (IRS) Form W-2 which is maintained in a record from a system of records maintained by a Component may be disclosed to state and local taxing authorities with which the Secretary of the Treasury has entered into agreements under 5 U.S.C., sections 5516, 5517, and 5520 (reference (v)) and only to those state and local taxing authorities for which an employee or military member is or was subject to tax regardless of whether tax is or was withheld. This routine use is in accordance with Treasury Fiscal Requirements Manual Bulletin No. 76-07.
A record from a system of records subject to the Privacy Act and maintained by a Component may be disclosed to the Office of Personnel Management (OPM) concerning information on pay and leave, benefits, retirement deduction, and any other information necessary for the OPM to carry out its legally authorized government-wide personnel management functions and studies.
A record from a system of records maintained by this component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
Information as to current military addresses and assignments may be provided to military banking facilities who provide banking services overseas and who are reimbursed by the Government for certain checking and loan losses. For personnel separated, discharged, or retired from the Armed Forces, information as to last known residential or home of record address may be provided to the military banking facility upon certification by a banking facility officer that the facility has a returned or dishonored check negotiated by the individual or the individual has defaulted on a loan and that if restitution is not made by the individual, the U.S. Government will be liable for the losses the facility may incur.
A record from a system of records maintained by this component may be disclosed as a routine use to the General Services Administration (GSA) for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
A record from a system of records maintained by this component may be disclosed as a routine use to the National Archives and Records Administration (NARA) for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
A record from a system of records maintained by this component may be disclosed as a routine use to the Merit Systems Protection Board, including the Office of the Special Counsel for the purpose of litigation, including administrative proceedings, appeals, special studies of the civil service and other merit systems, review of OPM or component rules and regulations, investigation of alleged or possible prohibited personnel practices; including administrative proceedings involving any individual subject of a DoD investigation, and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.
A record from a system of records maintained by this component may be disclosed as a routine use outside the DoD or the U.S. Government for the purpose of counterintelligence activities authorized by U.S. Law or Executive Order or for the purpose of enforcing laws which protect the national security of the United States.
The Defense Nuclear Agency has submitted a new system report on March 27, 1982, for this system of records under the provisions of 5 U.S.C. 552a(o) of the Privacy Act.
Patricia H. Means,
OSD Federal Register Liaison Officer, Department of Defense.
Information is provided to the medical services of all the Military Departments to identify military and retired personnel who were exposed to ionizing radiator during testing.
To the National Research Council and Center for Disease Control to determine the effects of ionizing radiation for the limited purpose of conducting epidemiological studies of the atmospheric nuclear weapons tests on DoD participants in those tests.
To the Department of Energy (DoE) to identify DoE contractor personnel exposed to ionizing radiation during nuclear testing for the limited purpose of conducting epidemiological studies of radiation effects of individuals so identified.
To the Department of Transportation (DoT) for the limited purpose of identifying DoT and DoT-affiliated personnel exposed to ionizing radiation during nuclear testing.
To the Veterans Administration to make determinations on service-connected disability for the purpose of resolving claims.
The report on a new or altered system shall consist of a transmittal letter, a narrative statement, and include supporting documentation.
A.
B.
1.
2.
3.
4.
5.
6.
7.
8.
9.
C.
1. For a new system, an advance copy of the system notice which is proposed for publication. For an altered system (see paragraph (d) of § 310.64, subpart G) an advance copy of the notice reflecting the specific changes proposed.
2. An advance copy of any new rules or changes to the published Component rules to be issued for the new or altered system. If no change to existing rules is required, so state in the narrative.
3. An advance copy of any proposed exemption rule if the new or altered system is to be exempted in accordance with subpart F. If there is no exemption, so state in the narrative.
4. Any other supporting documentation that may be pertinent or helpful in understanding the need for the system or clarifying its intended use. While not required, such documentation, when available, is helpful in evaluating the new or altered system.
(Indicate none or not applicable, as appropriate.)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
1.
2.
3.
4.
5. Number of Individuals: Approximately 300,00 individuals will be affected by this new system, since the system includes all DoD and DoD-affiliated participants in the atmospheric nuclear tests program.
6.
7.
8.
a. Paper records before processing for computer storage are retained in locked filing cabinets located in limited access facilities at DNA Headquarters and the Armed Forces Radiobiology Research Institute.
b. Privacy data in the Headquarters, DNA, ADP facility is afforded the same protection as classified data in that the DNA computer system employs a File Security System (FSS) to protect classified and privacy data files from being accessed by unauthorized user.
9.
10.
Robert L. Brittigan
General Counsel
1. Advance copy of proposed system notice.
2. Copy of tasking memorandum from the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) to the Director, Defense Nuclear Agency, “DoD Personnel Participation in Atmosperic Nuclear Weapons Testing,” January 28, 1978.
Enclosures are not included in the sample, above.
The proposed amendments are not within the purview of the provisions of 5 U.S.C. 552a(o) which requires the submission of an altered system report.
Patricia H. Means,
OSD Federal Register Liaison Officer, Department of Defense.
“American National Red Cross. Information to local Red Cross offices for emergency assistance to military members, dependents, relatives, or other persons if conditions are compelling.”
“Drug Enforcement Administration” (added to those agencies listed under Department of Justice).
“Department of Labor: Bureau of Employees' Compensation—medical information for claims of civilian employees formerly in military service; Employment and Training Administration—verification of service-related information for unemployment compensation claims; Labor-Management Services Administration—for investigations of possible violations of labor laws and preemployment investigations; National Research Council—for medical research purposes; U.S. Soldiers' and Airmen's Home—service information to determine eligibility.”
Retention and disposal: Delete entry and substitute: “Records on airmen accepted for sensitive or high risk assignments are retained in the office files for 18 months, then destroyed. Records of nonselectees are retained in office files for 1 year, then destroyed. Destruction is by tearing into pieces, shredding, pulping, macerating, or burning.”
1. Case Number.
2. Requester.
3. Document Title or Description.
4. Litigation:
a. Date Complaint Filed.
b. Court.
c. Case File Number
5. Defendants (DoD Component and individual).
6. Remarks (brief explanation of what the case is about).
7. Court Action:
a. Court's Finding.
b. Disciplinary Action (as appropriate).
8. Appeal (as appropriate):
a. Date Complaint Filed.
b. Court.
c. Case File Number.
d. Court's Finding.
e. Disciplinary Action (as appropriate).
A.
B.
1. Performed by a federal agency, whether the personal records used in the match are federal or nonfederal.
2. For which a federal agency discloses any personal records for use in a matching program performed by any other federal agency or any nonfederal organization.
C.
D.
1.
2.
a. Matches that do not compare a substantial number of records, such as, comparison of the Department of Education's defaulted student loan data base with the Office of Personnel Management's federal employee data base would be covered; comparison of six individual student loan defaultees with the OPM file would not be covered.
b. Checks on specific individuals to verify data in an application for benefits done reasonably soon after the application is received.
c. Checks on specific individuals based on information which raises questions about an individual's eligibility for benefits or payments done reasonably soon after the information is received.
d. Matches done to produce aggregate statistical data without any personal identifiers.
e. Matches done to support any research or statistical project when the specific data are not to be used to make decisions about the rights, benefits, or privileges of specific individuals.
f. Matches done by an agency using its own records.
3.
4.
5.
E.
1.
a.
(1) Legal authority for the match;
(2) Purpose and description of the match;
(3) Description of the records to be matched;
(4) Whether the record subjects have consented to the match; or whether disclosure of records for the match would be compatible with the purpose for which the records were
(5) Description of additional information which may be subsequently disclosed in relation to “hits”;
(6) Subsequent actions expected of the source (for example, verification of the identity of the “hits” or follow-up with individuals who are “hits”);
(7) Safeguards to be afforded the records involved, including disposition.
b. If the agency is satisfied that disclosure of the records would not violate its responsibilities under the Privacy Act, it may proceed to make the disclosure to the matching agency. It should ensure that only the minimum information necessary to conduct the match is provided. If disclosure is to be made pursuant to a “routine use” (Section (b)(3) of the Privacy Act), it should ensure that the system of records contains such a use, or it should publish a routine use notice in the
c. To a nonfederal entity. Before disclosing records to a nonfederal entity for a matching program to be carried out by that entity, a source agency should, in addition to all of the consideration in paragraph E.1.a., above, also make reasonable efforts, pursuant to Section (e)(6) of the Privacy Act, to “assure that such records are accurate, complete, timely, and relevant for agency purposes.”
2.
3.
(b) Matching agencies should insure that they have appropriate systems of records including those containing “hits,” and that such systems and any routine uses have been appropriately noticed in the
4.
b. Records relating to hits will be kept only so long as an investigation, either criminal or administrative, is active, and will be disposed of in accordance with the requirements of the Privacy Act and the Federal Records Schedule.
5.
b. If the matching program will result in the creation of a new or the substantial alteration of an existing system of records, the agency involved should publish the appropriate
6.
(1) The legal authority under which the match is being conducted;
(2) A description of the matching program including whether the program is one time or continuing, the organizations involved, the purpose or purposes for which the program is being conducted, and the procedures to be used in matching and following up on the “hits”;
(3) A complete description of the personal records to be matched, including the source or sources, system of records identifying data, date or dates and page number of the most recent
(4) The projected start and ending dates of the program;
(5) The security safeguards to be used to protect against unauthorized access or disclosure of the personal records; and
(6) Plans for disposition of the source records and “hits.”
7. Agencies should send a copy of this notice to the Congress and to OMB at the same time it is sent to the
a. Agencies should report new or altered systems of records as described in paragraph E.5.b., above, as necessary.
b. Agencies should also be prepared to report on matching programs pursuant to the reporting requirements of either the Privacy Act or the Paperwork Reduction Act. Reports will be solicited by the Office of Information and Regulatory Affairs and will focus on both the protection of individual privacy and the government's effective use of information technology. Reporting instructions will be disseminated to the agencies as part
8.
a. The matching agency should, consistent with paragraph (m) of the Privacy Act, cause the requirements of that Act to be applied to the contractor's performance of the matching program. The contract should include the Privacy Act clause required by Federal Personnel Regulation Amendment 155 (41 CFR 1-1.337-5);
b. The terms of the contract should include appropriate privacy and security provisions consistent with policies, regulations, standards, and guidelines issued by OMB, GSA, and the Department of Commerce;
c. The terms of the contract should preclude the contractor from using, disclosing, copying, or retaining records associated with the matching program for the contractor's own use;
d. Contractor personnel involved in the matching program shall be made explicitly aware of their obligations under the Act and of these guidelines, agency rules, and any special safeguards in relation to each specific match performed.
e. Any disclosures of records by the agency to the contractor should be made pursuant to a “routine use” (5 U.S.C. 552a(b)(3)).
F.
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).
This part updates and implements basic policies and procedures outlined in 5 U.S.C. 552a, OMB Circular A-130,
This part:
(a) Applies to the OSD, the Chairman of the Joint Chiefs of Staff, Uniformed Services University of the Health Sciences (USUHS) and other activities assigned to OSD for administrative support hereafter referred to collectively as “OSD Components.”
(b) Covers record systems maintained by OSD Components and governs the maintenance, access, change, and release of information contained in OSD Component record systems, from which information about an individual is retrieved by a personal identifier.
(a) It is DoD policy to safeguard personal information contained in any system of records maintained by any DoD Component and to permit any individual to know what existing records pertain to him or her in any OSD Component covered by this part.
(b) Each office maintaining records and information about individuals shall ensure that their privacy is protected from unauthorized disclosure of personal information. These offices shall permit individuals to have access to, and to have a copy made of all, or any portion of records about them, except as provided in Chapters 3 and 5, DoD 5400.11-R, and to have an opportunity to request that such records be amended as provided by the Privacy Act of 1974 and Chapter 3 of DoD 5400.11-R. Individuals requesting access to their records shall receive concurrent consideration under 5 U.S.C. 552a and the Freedom of Information Act, as amended, if appropriate.
(c) Heads of OSD Components shall maintain any necessary record of a personal nature that is individually identifiable in a manner that complies with the law and DoD policy. Any information collected must be as accurate, relevant, timely, and complete as is reasonable to ensure fairness to the individual. Adequate safeguards must be provided to prevent misuse or unauthorized release of such information.
(a) The Director of Administration and Management, Office of the Secretary of Defense (DA&M, OSD) shall:
(1) Direct and administer the DoD Privacy Program for OSD Components.
(2) Establish standards and procedures to ensure implementation of and compliance with the Privacy Act of 1974, OMB Circular No. A-130, and DoD 5400.11-R.
(3) Designate the Director for Freedom of Information and Security Review as the point of contact for individuals requesting information of access to records and copies about themselves.
(4) Serve as the appellate authority within OSD when a requester appeals a denial for access to records under the Privacy Act.
(5) Serve as the appellate authority within OSD when a requester appeals a denial for amendment of a record or initiates legal action to correct a record.
(6) Evaluate and decide, in coordination with The General Counsel of the Department of Defense (GC, DoD), appeals resulting from denials of access or amendments to records by the OSD Components.
(7) Designate the Directives and Records Division, Correspondence and Directives Directorate, Washington Headquarters Services (WHS) as the office responsible for all aspects of the Privacy Act, except that portion about receiving and acting on public requests for personal records. As such, the Directives and Records Division shall:
(i) Exercise oversight and administrative control of the Privacy Act Program in OSD and those organizations assigned to OSD for administrative support.
(ii) Provide guidance and training to organizational entities as required by 5 U.S.C. 552a and OMB Circular A-130. Periodic training will be provided to public affairs officers and others who may be expected to deal with the news media or the public.
(iii) Collect and consolidate data from OSD Components, and submit an annual report to the Defense Privacy Office, as required by 5 U.S.C. 552a, OMB Circular A-130, and DoD -5400.11-R.
(iv) Coordinate and consolidate information for reporting all record systems, as well as changes to approved systems, to the OMB, the Congress, and the
(v) Collect information from OSD Components, and prepare consolidated reports required by 5 U.S.C. 552a and DoD 5400.11-R.
(b) The Director for Freedom of Information and Security Review shall:
(1) Forward requests for information or access to records to the appropriate
(2) Maintain deadlines to ensure that responses are made within the time limits prescribed in DoD 5400.7-R,
(3) Collect fees charged and assessed for reproducing requested materials.
(4) Refer all matters about amendments of records and general and specific exemptions under the 5 U.S.C. 552a to the proper OSD Components.
(c) The General Counsel of the Department of Defense shall:
(1) Coordinate all OSD final denials of appeals for amending records, and review actions to confirm denial of access to records, as appropriate.
(2) Provide advice and assistance to the DA&M, OSD in the discharge of appellate and review responsibilities, and to the DFOISR on all access matters.
(3) Provide advice and assistance to OSD Components on legal matters pertaining to the Privacy Act of 1974.
(d) The Heads of the OSD Components shall:
(1) Designate an individual as the point of contact for Privacy Act matters; designate an official to deny initial requests for access to an individual's records or changes to records; and advise both DA&M, OSD and DFOISR of names of officials so designated.
(2) Report any new record system, or changes to an existing system, to the Chief, Directives and Records Division, WHS, at least 90 days before the intended use of the system.
(3) Review all contracts that provide for maintaining records systems, by or on behalf of his or her office, to ensure within his or her authority, that language is included that provides that such systems shall be maintained in a manner consistent with 5 U.S.C. 552a.
(4) Revise procurement guidance to ensure that any contract providing for the maintenance of a records system, by or on behalf of his or her office, includes language that ensures that such system shall be maintained in accordance with 5 U.S.C. 552a.
(5) Revise computer and telecommunications procurement policies to ensure that agencies review all proposed contracts for equipment and services to comply with 5 U.S.C. 552a.
(6) Coordinate with Automatic Data Processing (ADP) and word processing managers providing services to ensure that an adequate risk analysis is conducted to comply with DoD 5400.11-R.
(7) Review all Directives that require forms or other methods used to collect information about individuals to ensure that they are in compliance with 5 U.S.C. 552a.
(8) Establish administrative systems in OSD Component organizations to comply with the procedures listed in this part and DoD 5400.11-R.
(9) Coordinate with the GC, DoD on all proposed denials of access to records.
(10) Provide justification to the DFOISR when access to a record is denied in whole or in part.
(11) Provide the record to the DFOISR when the initial denial of a request for access to such record has been appealed by the requester, or at the time of initial denial when appeal seems likely.
(12) Maintain an accurate account of the actions resulting in a denial for access to a record or for the correction of a record. This account should be maintained so that it can be readily certified as the complete record of proceedings if litigation occurs.
(13) Ensure that all personnel who either have access to the system of records, or who are engaged in developing or supervising procedures for handling records in the system, are aware of their responsibilities for protecting personal information as established in the Privacy Act and DoD 5400.11-R.
(14) Forward all requests for access to records received directly from an individual to the DFOISR for appropriate suspense control and recording.
(15) Provide DFOISR with a copy of the requested record when the request is granted.
(e) The requester who desires to submit a request is responsible for:
(1) Determining whether to submit the request in writing or in person. A requester who seeks access to records
(i) May make such a request in person to the custodian of the records. If the requester is not satisfied with the response, however, in order to invoke any provision of 5 U.S.C. 552a, DoD 5400.11-R, or this part, the requester must file a request in writing as provided in § 311.6(b)(10). The requester must provide proof of identify by showing drivers license or similar credentials.
(ii) Describing the record sought, and providing sufficient information to enable the material to be located (e.g., identification of system of records, approximate date it was initiated, originating organization, and type of document).
(iii) Complying with procedures provided in DoD 5400.11-R for inspecting and/or obtaining copies of requested records.
(iv) Submitting a written request to amend the record to the system manager or to the office designated in the system notice.
(a)
(2) Regarding new or revised records systems, each OSD Component shall provide the Chief, Directives and Records Division with 90 days advance notice of any anticipated new or revised system of records. This material shall be submitted to the OMB and to Congress at least 60 days before use and to the Federal Register at least 30 days before being put into use, to provide an opportunity for interested persons to submit written data, views, or arguments to the OSD Components. Instructions on content and preparation are outlined in DoD 5400.11-R.
(b)
(2) There is not requirement under 5 U.S.C. 552a that a record be created or that an individual be given access to records that are not in a group of records that meet this definition of a system of records in 5 U.S.C. 552a.
(3) Granting access to a record containing personal information shall not be conditioned upon any requirement that the individual state a reason or otherwise justify the need to gain access.
(4) No verification of identity shall be required of an individual seeking access to records that are otherwise available to the public.
(5) Individuals shall not be denied access to a record in a system of records about themselves because those records are exempted from disclosure under DoD 5400.7-R. Individuals may only be denied access to a record in a system of records about themselves when those records are exempted from the access provisions of the Privacy Act under DoD 5400.11-R, Chapter 5.
(6) Individuals shall not be denied access to their records for refusing to disclose their Social Security Numbers (SSNs), unless disclosure of the SSN is required by statute, by regulation adopted before January 1, 1975, or if the record's filing identifier and only means of retrieval is by SSN.
(7) Individuals may request access to their records, in person or by mail, in accordance with the procedures outlined in paragraph (b)(8) of this section.
(8) Information necessary to identify a record is: the individual's name, date of birth, place of birth, identification of the records system as listed in the
(9) If an individual wishes to be accompanied by a third party when seeking access to records or wishes to have the record released directly to a third party, the individual may be required to furnish a signed access authorization granting the third party access.
(10) Any individual submitting a request by mail for access to information shall address such request to the Directorate for Freedom of Information and Security Review, Pentagon, Room 2C757, Washington, DC 20301-1155. To verify the identity of the individual, the request shall include either a signed notarized statement or an unsworn declaration in the format specified by 28 U.S.C. 1746.
(11) The following procedures shall apply to requests for access to records or information complied for law enforcement purposes:
(i) Individuals requesting access to records or information about themselves and complied for law enforcement purposes are processed under DoD 5400.11-R and DoD 5400.7-R to give them the greater degree of access.
(ii) Individual requests for access to records or information about themselves and compiled for law enforcement purposes (and in the custody of law enforcement activities) that have been incorporated into the records system, exempted from the access provisions of 5 U.S.C. 552a, will be processed in accordance with subsection C1.5.13 and Chapter 5, DoD 5400.7-R. Individuals shall not be denied access to records solely because they are in the exempt system, but they will have the same access that they would receive under DoD 5400.7-R. (Also see subsection A.10., Chapter 3, DoD 5400.11-R).)
(iii) Requests by the individuals for access to records or information about themselves and compiled for law enforcement purposes that are in records systems exempted from access provisions will be processed under subsection C.1., Chapter 5 of DoD 5400.11-R or DoD 5400.7-R, depending upon which regulation gives the greater degree of access. (See also subsection A. 10., Chapter 3, DoD 5400.1-R)
(iv) Individual requests for access to records or information about themselves and complied for law enforcement purposes exempted from access under Section B, Chapter 5 of DoD 54.11-R, that are temporarily in the hands of a non-law enforcement element for adjudicative or personnal actions, shall be referred to the originating agency. The requester will be informed in writing of these referrals.
(12) The following procedures shall apply to requests for illegible, incomplete, or partially exempt records:
(i) An individual shall not be denied access to a record or a copy of a record solely because the physical condition or format of the record does not make it readily available (e.g., deteriorated state or on magnetic tape). The document will be prepared as an extract, or it will be exactly recopied.
(ii) If a portion of the record contains information that is exempt from access, an extract or summary containing all of the information in the record that is releasable shall be prepared.
(iii) When the physical condition to the record makes it necessary to prepare an extract for release, the extract shall be prepared so that the requester will understand it.
(iv) The requester shall be informed of all deletions or changes to records.
(13) Medical records shall be disclosed to the individual they pertain to, unless a determination is made in consultation with a medical doctor, that the disclosure could have adverse effects on the individual's physical or mental health. Such information may be transmitted to a medical doctor named by the individual concerned. If the named medical doctor declines to provide the record to the individual, the OSD Components shall take positive action to ensure that the requested records are provided the individual.
(14) The individual may be charged reproduction fees for copies or records as outlined in DoD 5400.11-R.
(c)
(2) The appropriate system manager shall mail a written acknowledgement to an individual's request to amend a record within 10 days after receipt, excluding Saturdays, Sundays, and legal public holidays. Such acknowledgement shall identify the request and may, if necessary, request any additional information needed to make a determination. No acknowledgment is necessary if the request can be reviewed, processed, and if the individual can be notified of compliance or denial within the 10-day period. Whenever practical, the decision shall be made within 30 working days. For requests presented in person, written acknowledgment may be provided at the time the request is presented.
(3) The Head of an OSD Component, or designated official, shall promptly take one of the following actions on requests to amend the records:
(i) If the OSD Component official agrees with any portion or all of an individual's request, he or she will proceed to amend the records in accordance with existing statutes, requlations, or administrative procedures, and inform the requester of the action taken. The OSD Component official shall also notify all previous holders of the record that the amendment has been made, and shall explain the substance of the correction.
(ii) If the OSD Component official disagrees with all or any portion of a request, the individual shall be informed promptly of the refusal to amend a record, the reason for the refusal, and the procedure established by OSD for an appeal as outlined in paragraph (c)(6) of this section.
(iii) If the request for an amendment pertains to a record controlled and maintained by another Federal Agency, the request shall be referred to the appropriate Agency, and the requester advised of this:
(4) The following procedures shall be used when reviewing records under dispute:
(i) In response to a request for an amendment to records, officials shall determine whether the requester has adequately supported their claim that the record is inaccurate, irrelevant, untimely, or incomplete.
(ii) The Head of an OSD Component, or designated official, shall limit the review of a record of those items of information that clearly bear on any determination to amend the records and shall ensure that all those elements are present before determination is made.
(5) If the Head of an OSD Component, or designated official, after an initial review of a request to amend a record, disagrees with all or any portion of a record, he or she shall:
(i) Advise the individual of the denial and the reason for it.
(ii) Inform the individual that he or she may appeal the denial.
(iii) Describe the procedures for appealing the denial including the name and address of the official to whom the appeal should be directed. The procedures should be as brief and simple as possible.
(iv) Furnish a copy of the justification of any denial to amend a record to the DA&M, OSD.
(6) If an individual disagrees with the initial OSD determination, he or she may file an appeal. The request should be sent to the Director of Administration and Management, Office of the Secretary of Defense (DA&M, OSD), 1950 Defense Pentagon, Washington, D.C. 20301-1950, if the record is created and maintained by an OSD Component.
(7) If, after review, the DA&M, OSD further refuses to amend the record as requested, he shall advise the individual:
(i) Of the refusal and the reason and authority for the denial.
(ii) Of his or her right to file a statement of the reason for disagreeing with the DA&M's decision.
(iii) Of the procedures for filing a statement of disagreements.
(iv) That the statement filed shall be made available to anyone the record is dislosed to, together with a brief statement, at the discretion of the OSD Component, summarizing its reasons for refusing to amend the records.
(v) That prior recipients of copies of disputed records by provided by a copy of any statement of dispute to the extent that an accounting of disclosure is maintained.
(vi) Of his or her right to seek judicial review of the DA&M's refusal to amend a record.
(8) If, after the review, the DA&M, OSD, determines that the record should be amended in accordance with the individual's request, the OSD Component shall amend the record, advise the individual, and inform previous recipients where an accounting of disclosure has been maintained.
(9) All appeals should be processed within 30 days (excluding Saturdays, Sundays, and legal public holidays) after receipt by the proper office. If the DA&M determines that a fair and equitable review cannot be made within that time, the individual shall be informed in writing of the reasons for the delay and of the approximate date the review is expected to be completed.
(d)
(i) This statement shall be maintained to permit ready retrieval whenever the disputed portion of the record is to be disclosed.
(ii) When information that is the subject of a statement of dispute is subsequently disclosed, the OSD Component's designated official shall note which information is disputed and provide a copy of the individual's statement.
(2) The OSD Component shall include a brief summary of its reasons for not making a correction when disclosing disputed information. Such statement shall normally be limited to the reasons given to the individual for not amending the record.
(3) Copies of the OSD Component's summary will be treated as part of the individual's record; however, it will not be subject to the amendment procedure outlined in paragraph (c)(3)(iii) of this section.
(e)
(A) Refusal to amend a record.
(B) Improper denial of the access to a record.
(C) Failure to maintain an accurate, relevant, timely, and complete record that is used to make determinations adverse to the individual.
(ii) An individual may also file a suit against the United States for failure to implement a provision of the Privacy Act when such failure leads to an adverse determination.
(iii) If the individual's suit is upheld, the court may direct the United States to pay the court costs and attorney's fees.
(2)
(ii) An OSD officer or employee may be fine up to $5,000 for a violation as outlined in paragraph (e)(2)(i) of this section.
(3)
(f)
The Defense Privacy Office shall establish requirements and deadlines for DoD privacy reports. These reports shall be licensed in accordance with DoD Directive 8910.1.
(a)
(b)
(1)
(i)
(ii)
(iii)
(2)
(i) 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, section (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); (e)(4)(G) and (e)(4)(H); (e)(5); (f)(1) through (f)(5); (g)(1) through (g)(5) of the Act.
(ii) Authority: 5 U.S.C. 552a(j)(2).
(iii) Reason: 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 USSOUTHCOM's criminal law enforcement.
(iv) For subsections (c)(4) and (d) because notification would alert a subject to the fact that an investigation of that individual is taking place, and might weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy.
(v) From subsections (e)(4) (G) and (H) because this system of records is exempt from the access provisions of subsection (d) pursuant to subsection (j).
(vi) 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 criminal 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.
(vii) For compatibility with the exemption claimed from subsection (f), the civil remedies provisions of subsection (g) must be suspended for this record system. Because of the nature of criminal investigations, standards of accuracy, relevance, timeliness and completeness cannot apply to this record system. Information gathered in criminal investigations is often fragmentary and leads relating to an individual in the context of one investigation may instead pertain to a second investigation.
(viii) From subsection (e)(1) because the nature of the criminal investigative function creates unique problems in prescribing a specific parameter in a particular case with respect to what information is relevant or necessary. Also, due to USSOUTHCOM's close liaison and working relationships with the other Federal, as well as state, local and foreign country law enforcement agencies, 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.
(ix) From subsection (e)(2) because collecting information to the greatest extent possible directly from the subject individual may or may not be practicable in a criminal investigation. The individual may choose not to provide information and the law enforcement process will rely upon significant information about the subject from witnesses and informants.
(x) 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 investigation. The effect would be somewhat inimical to established investigative methods and techniques.
(xi) From subsection (e)(5) because the requirement that records be maintained with attention to accuracy, relevance, timeliness, and completeness would unfairly hamper the criminal investigative process. It is the nature of criminal 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 significant as
(xii) From subsection (e)(8) because the notice requirements of this provision could present a serious impediment to criminal law enforcement by revealing investigative techniques, procedures, and existence of confidential investigations.
(c)
(1)
(i)
(ii)
(iii)
(2)
(i)
(ii)
(iii)
(3)
(i)
(ii)
(iii)
(4)
(i)
(ii)
(iii)
(5)
(i)
(ii)
(iii)
(6)
(i)
(ii)
(iii)
(7) System identifier and name: DGC 20, DoD Presidential Appointee Vetting File.
(i) Exemption: Investigatory 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 material would reveal the identity of a confidential source. Portions of this system of records that may be exempt pursuant to 5 U.S.C. 552a(k)(5) are subsections (d)(1) through (d)(5).
(ii) Authority: 5 U.S.C. 552a(k)(5).
(iii) Reason: From (d)(1) through (d)(5) because the agency is required to protect the confidentiality of sources who furnished information to the government under an expressed promise of confidentiality or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. This confidentiality is needed to maintain the Government's continued access to information from persons who otherwise might refuse to give it.
(8)
(i)
(ii)
(iii)
(9)
(i)
(ii)
(iii)
(10)
(i)
(ii)
(iii)
(11)
(i)
(ii)
(iii)
(12)
(i)
(ii)
(iii)
(13)
(i)
(ii)
(iii) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, to preserve the confidentiality and integrity of Federal testing materials, and to safeguard evaluation materials used for military promotions when furnished by a confidential source. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a.
(14) System identifier and name: DHRA 02, PERSEREC Research Files.
(i) Exemption: (A) Investigative material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal
(B) Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1).
(ii) Authority: 5 U.S.C. 552a(k)(5).
(iii) Reasons: (A) From subsection (c)(3) and (d) when access to accounting disclosures and access to or amendment of records would cause the identity of a confidential source to be revealed. Disclosure of the source's identity not only will result in the Department breaching the promise of confidentiality made to the source but it will impair the Department's future ability to compile investigatory material for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information. Unless sources can be assured that a promise of confidentiality will be honored, they will be less likely to provide information considered essential to the Department in making the required determinations.
(B) From (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. In some cases, it is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations.
(15) System identifier and name: DCIFA 01, CIFA Operational and Analytical Records.
(i) Exemptions: This system of records is a compilation of information from other Department of Defense and U.S. Government systems of records. To the extent that copies of exempt records from those ‘other' systems of records are entered into this system, OSD hereby claims the same exemptions for the records from those ‘other' systems that are entered into this system, as claimed for the original primary system of which they are a part.
(ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7).
(iii) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent (1) such provisions have been identified and an exemption claimed for the original record and (2) the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions are claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, and to preserve the confidentiality and integrity of Federal evaluation materials. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a.
At 70 FR 34657, June 15, 2005, § 311.8 was amended by adding paragraph (c)(15), effective July 15, 2005.
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Pursuant to the requirements of the Privacy Act of 1974 (5 U.S.C. 552a) and 32 CFR part 310—DoD Privacy Program, the following rules of procedures are established with respect to access and amendment of records maintained by the Office of the Inspector General (OIG) on individual subjects of these records.
(a) All terms used in this part which are defined in 5 U.S.C. 552a shall have the same meaning herein.
(b) As used in this part, the term “agency” means the Office of the Inspector General (OIG), Department of Defense.
Individuals should submit written inquiries regarding all OIG files to the Office of Communications and Congressional Liaison, ATTN: FOIA/PA Office, 400 Army Navy Drive, Arlington, VA 22202-4704. Individuals making a request in person must provide acceptable picture identification, such as a current driver's license.
Only upon proper identification will any individual be granted access to records which pertain to him/her. Identification is required both for accurate record identification and to avoid disclosing records to unauthorized individuals. Requesters must provide their full name and as much information as possible about the record being sought in order that a proper search for records can be accomplished. Inclusion of a telephone number for the requester is recommended to expedite certain matters. Requesters applying in person must provide an identification with photograph, such as a driver's license, military identification card, building pass, etc.
(a) No individual will be allowed access to any information compiled or maintained in reasonable anticipation of civil or criminal actions or proceedings or otherwise exempt under § 312.12. Requests for pending investigations will be denied and the requester instructed to forward another request giving adequate time for the investigation to be completed. Requesters shall be provided the telephone number so they can call and check on the status in order to know when to resubmit the request.
(b) Any individual may authorize the OIG to provide a copy of his/her records to a third part. This authorization must be in writing, must designate the recipient by name, must specify the records or portion to be provided to the recipient, and should accompany the initial request to the OIG.
Requesters will be charged only for the reproduction of requested documents and special postal methods, such as express mail, if applicable. There will be no charge for the first copy of a record provided to any individual. Thereafter, fees will be computed as set forth in appropriate DoD Directives and Regulations.
(a) Requests to correct or amend a file shall be addressed to the system manager in which the file is located. The request must reasonably describe the record to be amended, the items to be changed as specifically as possible, the type of amendment (e.g., deletion, correction, amendment), and the reason for amendment. Reasons should address at least one of the following categories: Accuracy, relevance, timeliness, completeness, fairness. The request should also include appropriate
(b) Requirements of identification as outlined in § 312.4 apply to requests to correct or amend a file.
(c) Incomplete requests shall not be honored, but the requester shall be contacted for the additional information needed to process the request.
(d) The amendment process is not intended to permit the alteration of evidence presented in the course of judicial or quasi-judicial proceedings. Any amendments or changes to these records normally are made through the specific procedures established for the amendment of such records.
(e) Nothing in the amendment process is intended or designed to permit a collateral attack upon what has already been the subject of a judicial or quasi-judicial determination. However, while the individual may not attack the accuracy of the judicial or quasi-judicial determination, he or she may challenge the accuracy of the recording of that action.
(a) A written acknowledgement of the receipt of a request for amendment of a record will be provided to the requester within 20 working days, unless final action regarding approval or denial will constitute acknowledgement.
(b) Where there is a determination to grant all or a portion of a request to amend a record, the record shall be promptly amended and the requesting individual notified. Individuals, agencies or DoD components shown by disclosure accounting records to have received copies of the record, or to whom disclosure has been made, will be notified of the amendment by the responsible OIG official.
(c) Where there is a determination to deny all or a portion of a request to amend a record, OIG will promptly advise the requesting individual of the specifics of the refusal and the reasons; and inform the individual that he/she may request a review of the denial(s) from the OIG designated official.
(a) All appeals on an initial amendment decision should be addressed to the Office of Communications and Congressional Liaison, ATTN: FOIA/PA Office, 400 Army Navy Drive, Arlington, VA 22202-4704. The appeal should be concise and should specify the reasons the requester believes that the initial amendment action by the OIG was not satisfactory. Upon receipt of the appeal, the designated official will review the request and make a determination to approve or deny the appeal.
(b) If the OIG designated official decides to amend the record, the requester and all previous recipients of the disputed information will be notified of the amendment. If the appeal is denied, the designated official will notify the requester of the reason of the denial, of the requester's right to file a statement of dispute disagreeing with the denial, that such statement of dispute will be retained in the file, that the statement will be provided to all future users of the file, and that the requester may file suit in a federal district court to contest the OIG decision not to amend the record.
(c) The OIG designated official will respond to all appeals within 30 working days or will notify the requester of an estimated date of completion if the 30 day limit cannot be met.
No record containing personally identifiable information within a OIG system of records shall be disclosed by any means to any person or agency outside the Department of Defense, except with the written consent of the individual subject of the record or as provided for in the Act and DoD 5400.11-R (32 CFR part 286a).
(a) An individual may bring a civil action against the OIG to correct or amend the record, or where there is a refusal to comply with an individual request or failure to maintain any records with accuracy, relevance, timeliness and completeness, so as to guarantee fairness, or failure to comply with any other provision of the Privacy Act. The court may order correction or amendment of records. The court may enjoin the OIG from withholding the records and order the production of the record.
(b) Where it is determined that the action was willful or intentional with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United States shall be liable for the actual damages sustained, but in no case less than the sum of $1,000 and the costs of the action with attorney fees.
(c) Criminal penalties may be imposed against an officer or employee of the OIG who discloses material, which he/she knows is prohibited from disclosure, or who willfully maintains a system of records without compliance with the notice requirements.
(d) Criminal penalties may be imposed against any person who knowingly and willfully requests or obtains any record concerning another individual from an agency under false pretenses.
(e) All of these offenses are misdemeanors with a fine not to exceed $5,000.
(a)
(b) The Inspector General of the Department of Defense claims an exemption for the following record systems under the provisions of 5 U.S.C. 552a(j) and (k)(1)-(k)(7) from certain indicated subsections of the Privacy Act of 1974. The exemptions may be invoked and exercised on a case-by-case basis by the Deputy Inspector General for Investigations or the Director, Communications and Congressional Liaison Office, and the Chief, Freedom of Information/Privacy Act Office, which serve as the Systems Program Managers. Exemptions will be exercised only when necessary for a specific, significant and legitimate reason connected with the purpose of the records system.
(c) No personal records releasable under the provisions of The Freedom of Information Act (5 U.S.C. 552) will be withheld from the subject individual based on these exemptions.
(d)
(1)
(2)
(3)
(4)
(5) 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-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy.
(6) 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, due to OIG's close liaison and working relationships with other Federal, state, local and foreign country law enforcement agencies, 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.
(7) 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.
(8) 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.
(9) From subsection (e)(4) (G) through (I) because this system of records is exempt from the access provisions of subsection (d).
(10) 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.
(11) 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.
(12) 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.
(13) For comparability with the exemption claimed from subsection (f), the civil remedies provisions of subsection (g) must be suspended for this record system. Because of the nature of criminal investigations, standards of accuracy, relevance, timeliness, and completeness cannot apply to this record system. Information gathered in an investigation is often fragmentary and leads relating to an individual in the context of one investigation may instead pertain to a second investigation.
(e)
(1)
(2)
(3)
(4)
(5) From subsection (c)(4) and (d), because notification would alert a subject to the fact that an open investigation
(6) 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, due to OIG's close liaison and working relationships with other Federal, state, local and foreign country law enforcement agencies, 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.
(7) 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.
(8) 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.
(9) From subsection (e)(4) (G) through (I) because this system of records is exempt from the access provisions of subsection (d).
(10) 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.
(11) 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.
(12) 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.
(13) For comparability with the exemption claimed from subsection (f), the civil remedies provisions of subsection (g) must be suspended for this record system. Because of the nature of criminal investigations, standards of accuracy, relevance, timeliness, and completeness cannot apply to this record system. Information gathered in an investigation is often fragmentary and leads relating to an individual in the context of one investigation may instead pertain to a second investigation.
(f)
(1)
(2)
(3)
(4)
(5) From subsection (d) because disclosures from this system could interfere with the just thorough and timely resolution of the compliant or inquiry, and possibly enable individuals to conceal their wrongdoing or mislead the course of the investigation by concealing, destroying or fabricating evidence or documents. Disclosures could also subject sources and witnesses to harassment or intimidation which jeopardize the safety and well-being of themselves and their families.
(6) From subsection (e)(1) because the nature of the investigation function creates unique problems in prescribing specific parameters in a particular case as to what information is relevant or necessary. Due to close liaison and working relationships with other Federal, state, local and foreign country law enforcement agencies, information may be received which may relate to a case under the investigative jurisdiction of another government agency. It is necessary to maintain this information in order to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of other cooperating agencies.
(7) From subsection (e)(4) (G) through (H) because this system of records is exempt from the access provisions of subsection (d).
(8) 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.
(g)
(1)
(2)
(3)
(4)
(5) From subsection (d) because disclosures from this system could interfere with the just, thorough and timely resolution of the complaint or inquiry, and possibly enable individuals to conceal their wrongdoing or mislead the course of the investigation by concealing, destroying or fabricating evidence or documents. Disclosures could also subject sources and witnesses to harassment or intimidation which jeopardize the safety and well-being of themselves and their families.
(6) From subsection (e)(1) because the nature of the investigation functions creates unique problems in prescribing specific parameters in a particular case as to what information is relevant or necessary. Due to close liaison and working relationships with other Federal, state, local, and foreign country law enforcement agencies, information may be received which may relate to a case under the investigative jurisdiction of another government agency. It is necessary to maintain this information in order to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of other cooperating agencies.
(7) From subsection (e)(4)(G) through (H) because this system of records is exempt from the access provisions of subsection (d).
(8) 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.
(h)
(1)
(2)
(3)
(4)
(i) System Identifier: CIG-21
(1) System name: Congressional Correspondence Tracking System.
(2) Exemption: During the processing of a Congressional inquiry, exempt materials from other systems of records may in turn become part of the case record in this system. To the extent that copies of exempt records from those “other” systems of records are entered into this system, the Inspector General, DoD, claims the same exemptions for the records from those “other” systems that are entered into this system, as claimed for the original primary system of which they are a part.
(3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7)
(4) Reasons: Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, to preserve the confidentiality and integrity of Federal testing materials, and to safeguard evaluation materials used for military promotions when furnished by a confidential source. The exemption rule for the
(a) Criminal and or civil investigative reports shall not be retained by DoD recipient organizations. Such reports are the property of OIG and are on loan to the recipient organization for the purpose for which requested or provided. All copies of such reports shall be destroyed within 180 days after the completion of the final action by the requesting organization.
(b) Investigative reports which require longer periods of retention may be retained only with the specific written approval of OIG.
An OIG system of records may contain records other DoD Components or Federal agencies originated, and who may have claimed exemptions for them under the Privacy Act of 1974. When any action is initiated on a portion of any several records from another agency which may be exempt, consultation with the originating agency or component will be affected. Documents located within OIG system of records coming under the cognizance of another agency will be referred to that agency for review and direct response to the requester.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
The Office of the Joint Chiefs of Staff is governed by the Privacy Act implementation regulations of the Office of the Secretary of Defense, 32 CFR part 311.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
The Defense Advanced Research Projects Agency is governed by the Privacy Act implementation regulations of the Office of the Secretary of Defense, 32 CFR part 311.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
The Uniformed Services University of the Health Sciences, is governed by the Privacy Act implementation regulations of the Office of the Secretary of Defense, 32 CFR part 311.
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).
This part delineates responsibility and provides guidance for the implementation of Pub. L. 93-579 (Privacy Act of 1974).
This part applies to Headquarters, Defense Information Systems Agency (DISA) and DISA field activities.
This part is published in accordance with the authority contained in 32 CFR part 310, August 1975.
Add to the definitions contained in 32 CFR 310.6 the following:
System Manager: The DISA official who is responsible for policies and procedures governing a DISA System of Record. His title and duty address will be found in the paragraph entitled Sysmanager in DISA's Record System Notices which are published in the
It is the policy of DISA:
(a) To preserve the personal privacy of individuals, to permit an individual to know what records exist pertaining to him in the DISA, and to have access to and have a copy made of all or any portion of such records and to correct or amend such records.
(b) To collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(a) The Counsel, DISA, is hereby designated the Privacy Act Officer for DISA and is responsible for insuring that an internal DISA Privacy Program is established and maintained. He will also insure that all echelons of DISA effectively comply with and implement 32 CFR part 310.
(b) The Civilian Assistant to the Chief of Staff will be responsible for the annual reporting requirements contained in 32 CFR 310.5.
(c) DISA System Managers and other appropriate DISA officials will:
(1) Insure compliance with the provisions of 32 CFR 310.9.
(2) Comply with the provisions of 32 CFR 286a.11. In this area the Assistant to the Director for Administration will provide assistance.
(3) Adhere to the following:
(i) Within DISA, the System Manager of any record system will assure that records pertaining to an individual will be disclosed, upon request, to the individual to whom the record pertains. The individual need not state a reason or otherwise justify the need to gain access. A person of the individual's choosing may accompany the individual when the record is disclosed. The System Manager may require the individual to furnish a written statement authorizing discussion of the individual's records in the presence of the accompanying person. If requested, the System Manager will have a copy made of all or any portion of the record pertaining to the individual in a form comprehensible to the requester.
(ii) The System Manager may release records to the individual's representative who has the written consent of the individual. The System Manager will require reasonable identification of individuals to assure that rec-ords are disclosed to the proper person. No verification of identity will be required of an individual seeking access to records which are otherwise available to any member of the public under the
(iii) The System Manager will not deny access to a record or a copy thereof to an individual solely because its physical presence is not readily available (i.e. on magnetic tape) or because the context of the record may disclose sensitive information about another individual. To protect the personal privacy of other individuals who may be identified in a record, the System Manager shall prepare an extract to delete only that information which would not be releasable to the requesting individual under the Freedom of Information Act.
(iv) When the System Manager is of the opinion that the disclosure of medical information could have an adverse effect upon the individual to whom it pertains, the System Manager will promptly request the individual to submit the name and address of a doctor who will determine whether the medical record may be disclosed directly to the individual. The System Manager will then request the opinion of the doctor named by the individual on whether a medical record may be disclosed to the individual. The System Manager shall disclose the medical record to the individual to whom it pertains unless, in the judgment of the doctor, access to the record could have an adverse effect upon the individual's physical or mental health. In this event the System Manager will transmit the record to the doctor and immediately inform the individual.
(v) The fees to be charged, if any, to an individual for making copies of his record, excluding the cost of any search for and review of the record, will be in accordance with the “Schedule of Fees” as set forth in 32 CFR 286.5 and 286.10.
(vi) The System Manager of the record will permit an individual to request amendment of a record pertaining to the individual. Requests to amend records shall be in person or in writing and shall be submitted to the System Manager who maintains the records. Such requests should contain as a minimum, identifying information needed to locate the record, a brief description of the item or items of information to be amended, and the reason for the requested change.
(vii) The System Manager will provide a written acknowledgment of the receipt of a request to amend a record to the individual who requested the amendment within 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request. Such an acknowledgment may, if necessary, request any additional information needed to make a determination. No acknowledgment is required if the request can be reviewed and processed and the individual notified of compliance or denial within the 10 day period.
(viii) The System Manager will promptly take one of the following actions on requests to amend records:
(A) Refer the request to the agency or office that has control of and maintains the record in those instances where the record requested remains the property of the controlling office or agency.
(B) In accordance with existing statute, regulation, or administrative procedure, make any correction of any portion thereof which the individual believes is not accurate, relevant, timely or complete, or
(C) Inform the individual of the System Manager's refusal to amend the record in accordance with the individual's request, the reason for the refusal, and the individual's right to request a review of the refusal by the Director, DISA, through the DISA Privacy Act Board.
(ix) The DISA Privacy Act Board will be comprised of the DISA Counsel, as Chairman; the Assistant to the Director for Administration, and the Assistant to the Director for Personnel; or in their absence, their authorized representatives. The individual who disagrees with the refusal of the System Manager to amend his record may request a review of this refusal by the DISA Privacy Act Board. The request for the review may be made orally or in writing and shall be made to the System Manager. The System Manager will promptly forward the request for review to the Chairman of the Board to make a proper review. The Board will promptly review the matter. If, after review, the Board is unanimous in its decision that the record be amended in accordance with the request of the individual then the Chairman of the Board shall so notify the System Manager. The System Manager will immediately make the necessary corrections to the record and will promptly notify the individual. The System Manager will, if an accounting of disclosure of the record has been made, advise all previous recipients of the record, which was corrected, of the correction and its substance. This will be done in all instances when a record is amended. If, after review, the Board decides that the request for amendment should be denied, it will promptly forward its recommendation to the Director, DCA. A majority vote of the members of the Board will constitute a recommendation to the Director.
(x) The Director, DISA, upon receipt of the Board's recommendation, will complete the review and make a final determination.
(xi) If the Director, DISA, after his review, agrees with the individual's request to amend the record, he will, through the DISA Counsel, so advise the individual in writing. The System Manager will receive a copy of the Director's decision and will assure that the record is corrected accordingly and that if an accounting of disclosure of the record has been made, advise all previous recipients of the record which was corrected of the correction and its substance.
(xii) If, after his review, the Director refuses to amend the records as the individual requested, he will, through the DISA Counsel, advise the individual of his refusal and the reasons for it; of the individual's right to file a concise statement setting forth the reasons for the individual's disagreement with the decision of the Director, DISA; that the statement which is filed will be made available to anyone to whom the record is subsequently disclosed together with, at the discretion of the Agency, a brief statement by the Agency summarizing its reasons for refusing to amend the record; that prior recipients of the disputed record will be provided a copy of any statement of dispute to the extent that an accounting of disclosures was maintained; and of the individual's right to seek judicial review of the Agency's refusal to amend a record.
(xiii) The Director's final determination on the individual's request for a review of the System Manager's initial refusal to amend the record must be concluded within 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requested such review unless the Director determines that a fair and equitable review cannot be made within that time. If additional time is required, the individual will be informed in writing of reasons for the delay and of the approximate date on which the review is expected to be completed.
(xiv) After the Director, DISA has refused to amend a record and the individual has filed a statement setting forth the reasons for the individual's disagreement with the decision of the Director, the System Manager will clearly note any portion of the record which is disputed. The System Manager's notation should make clear that the record is disputed and this should be apparent to anyone who may subsequently have access to, use, or disclose the record. When the System Manager has previously disclosed or will subsequently disclose that portion of the
(xv) Nothing herein shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
(xvi) Any requests by an individual for access to or copies of his records shall be processed in accordance with this part and 32 CFR part 310.
(d) DISA System Managers will be:
(1) Responsible for complying with the provisions contained in 32 CFR 310.8 relating to the disclosure to others of personal records, obtaining the written consent of individuals to whom the record pertains, and for keeping an accurate accounting of each disclosure of a record.
(2) Responsible for providing to the Civilian Assistant to the Chief of Staff the information requested in 32 CFR 310.5. However, the information will be reported on a quarterly basis with the first report due to the Civilian Assistant to the Chief of Staff by 31 December 1975.
(e) The Assistant to the Director for Administration, Headquarters, DCA will:
(1) Be responsible for furnishing written guidelines to assist System Managers and other DISA officials in evaluating and implementing paperwork management procedures required under the Privacy Act of 1974. In this regard it should be noted that the Act establishes a number of requirements. Among these are the requirements:
(i) To disclose records contained in a system of records only under conditions specified in the law,
(ii) To maintain an accounting of such disclosures,
(iii) To establish procedures for the disclosure to an individual of his record or information pertaining to him,
(iv) For reviewing a request concerning the amendment of such record, and
(v) For permitting individuals to file a statement of disagreement which will be forwarded with subsequent disclosures.
(2) Be responsible for providing the “Forms” which are required to comply with 32 CFR 310.9(b).
(f) The Assistant to the Director for Personnel, Headquarters, DISA will:
(1) Be responsible for development, within DISA, of an appropriate training program for all DISA personnel whose duties involve responsibilities for systems of records affected by the Privacy Act.
(2) Assure that DISA personnel involved in the design, development, operation, or maintenance of any system of records, as defined in 32 CFR 310.6 are informed of all requirements to protect the privacy of the individuals who are subjects of the records. The criminal penalties and civil suit aspects of the Privacy Act will be emphasized.
(3) Assure that within DISA administrative and physical safeguards are established to protect information from unauthorized or unintentional access, disclosure, modification or destruction and to insure that all persons whose official duties require access to or processing and maintenance of personal information are trained in the proper safeguarding and use of such information.
Questions on both the substance and procedure of the Privacy Act and the DISA implementation thereof should be addressed to the DISA Counsel by the most expeditious means possible, including telephone calls.
Section 5 U.S.C. 552a (3)(j) and (3)(k) authorize an agency head to exempt certain systems of records or parts of certain systems of records from some of the requirements of the act. This part reserves to the Director, DISA, as head of an agency, the right to create exemptions pursuant to the exemption provisions of the act. All systems of records maintained by DISA shall be exempt from the requirements of 5 U.S.C. 552a (d) pursuant to 5 U.S.C. 552a(3)(k)(1) to the extent that the system contains any information properly classified under Executive Order 11652, “Classification and Declassification of National Security Information and Material,” dated March 8, 1972 (37 FR 10053, May 19, 1972) and which is required by the executive order to be kept secret in the interest of national defense or foreign policy. This exemption, which may be applicable to parts of all systems of records, is necessary because certain record systems not otherwise specifically designated for exemptions may contain isolated information which has been properly classified.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
This part provides policies and procedures for the Defense Contract Audit Agency's implementation of the Privacy Act of 1974 (DCAA Regulation 5410.10,
(a) This part applies to all DCAA organizational elements and takes precedence over all regional regulatory issuances that supplement the DCAA Privacy Program.
(b) This part shall be made applicable by contract or other legally binding action to contractors whenever a DCAA contract provides for the operation of a system of records or portion of a system of records to accomplish an Agency function.
(a) It is DCAA policy that personnel will comply with the DCAA Privacy Program; the Privacy Act of 1974; and the DoD Privacy Program (32 CFR part 310). Strict adherence is necessary to ensure uniformity in the implementation of the DCAA Privacy Program and create conditions that will foster public trust. It is also Agency policy to safeguard personal information contained in any system of records maintained by DCAA organizational elements and to make that information available to the individual to whom it pertains to the maximum extent practicable.
(b) DCAA policy specifically requires that DCAA organizational elements:
(1) Collect, maintain, use, and disseminate personal information only when it is relevant and necessary to achieve a purpose required by statute or Executive Order.
(2) Collect personal information directly from the individuals to whom it
(3) Inform individuals who are asked to supply personal information for inclusion in any system of records:
(i) The authority for the solicitation.
(ii) Whether furnishing the information is mandatory or voluntary.
(iii) The intended uses of the information.
(iv) The routine disclosures of the information that may be made outside of DoD.
(v) The effect on the individual of not providing all or any part of the requested information.
(4) Ensure that records used in making determinations about individuals and those containing personal information are accurate, relevant, timely, and complete for the purposes for which they are being maintained before making them available to any recipients outside of DoD, other than a Federal agency, unless the disclosure is made under DCAA Regulation 5410.8, DCAA Freedom of Information Act Program.
(5) Keep no record that describes how individuals exercise their rights guaranteed by the First Amendment to the U.S. Constitution, unless expressly authorized by statute or by the individual to whom the records pertain or is pertinent to and within the scope of an authorized law enforcement activity.
(6) Notify individuals whenever records pertaining to them are made available under compulsory legal processes, if such process is a matter of public record.
(7) Establish safeguards to ensure the security of personal information and to protect this information from threats or hazards that might result in substantial harm, embarrassment, inconvenience, or unfairness to the individual.
(8) Establish rules of conduct for DCAA personnel involved in the design, development, operation, or maintenance of any system of records and train them in these rules of conduct.
(9) Assist individuals in determining what records pertaining to them are being collected, maintained, used, or disseminated.
(10) Permit individual access to the information pertaining to them maintained in any system of records, and to correct or amend that information, unless an exemption for the system has been properly established for an important public purpose.
(11) Provide, on request, an accounting of all disclosures of the information pertaining to them except when disclosures are made:
(i) To DoD personnel in the course of their official duties.
(ii) Under DCAA Regulation 5410.8, DCAA Freedom of Information Act Program.
(iii) To another agency or to an instrumentality of any governmental jurisdiction within or under control of the United States conducting law enforcement activities authorized by law.
(12) Advise individuals on their rights to appeal any refusal to grant access to or amend any record pertaining to them, and file a statement of disagreement with the record in the event amendment is refused.
(a) The Assistant Director, Resources has overall responsibility for the DCAA Privacy Act Program and will serve as the sole appellate authority for appeals to decisions of respective initial denial authorities.
(b) The Chief, Administrative Management Division under the direction of the Assistant Director, Resources, shall:
(1) Establish, issue, and update policies for the DCAA Privacy Act Program; monitor compliance with this part; and provide policy guidance for the DCAA Privacy Act Program.
(2) Resolve conflicts that may arise regarding implementation of DCAA Privacy Act policy.
(3) Designate an Agency Privacy Act Advisor, as a single point of contact, to coordinate on matters concerning Privacy Act policy.
(4) Make the initial determination to deny an individual's written Privacy Act request for access to or amendment of documents filed in Privacy Act systems of records. This authority cannot be delegated.
(c) The DCAA Privacy Act Advisor under the supervision of the Chief, Administrative Management Division shall:
(1) Manage the DCAA Privacy Act Program in accordance with this part and applicable DCAA policies, as well as DoD and Federal regulations.
(2) Provide guidelines for managing, administering, and implementing the DCAA Privacy Act Program.
(3) Implement and administer the Privacy Act program at the Headquarters.
(4) Ensure that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a manner that assures that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(5) Maintain and publish DCAA Pamphlet 5410.13, DCAA Compilation of Privacy Act System Notices.
(6) Prepare promptly any required new, amended, or altered system notices for systems of records subject to the Privacy Act and submit them to the Defense Privacy Office for subsequent publication in the
(7) Prepare the annual Privacy Act Report as required by DoD 5400.11-5, DoD Privacy program.
(8) Conduct training on the Privacy Act program for Agency personnel.
(d) Heads of Principal Staff Elements are responsible for:
(1) Reviewing all regulations or other policy and guidance issuances for which they are the proponent to ensure consistency with the provisions of this part.
(2) Ensuring that the provisions of this part are followed in processing requests for records.
(3) Forwarding to the DCAA Privacy Act Advisor, any Privacy Act requests received directly from a member of the public, so that the request may be administratively controlled and processed.
(4) Ensuring the prompt review of all Privacy Act requests, and when required, coordinating those requests with other organizational elements.
(5) Providing recommendations to the DCAA Privacy Act Advisor regarding the releasability of DCAA records to members of the public, along with the responsive documents.
(6) Providing the appropriate documents, along with a written justification for any denial, in whole or in part, of a request for records to the DCAA Privacy Act Advisor. Those portions to be excised should be bracketed in red pencil, and the specific exemption or exemptions cites which provide the basis for denying the requested records.
(e) The General Counsel is responsible for:
(1) Ensuring uniformity is maintained in the legal position, and the interpretation of the Privacy Act; 32 CFR part 310; and this part.
(2) Consulting with DoD General Counsel on final denials that are inconsistent with decisions of other DoD components, involve issues not previously resolved, or raise new or significant legal issues of potential significance to other Government agencies.
(3) Providing advice and assistance to the Assistant Director, Resources; Regional Directors; and the Regional Privacy Act Officer, through the DCAA Privacy Act Advisor, as required, in the discharge of their responsibilities.
(4) Coordinating Privacy Act litigation with the Department of Justice.
(5) Coordinating on Headquarters denials of initial requests.
(f) Each Regional Director is responsible for the overall management of the Privacy Act program within their respective regions. Under his/her direction, the Regional Resources Manager is responsible for the management and staff supervision of the program and for designating a Regional Privacy Act Officer. Regional Directors will, as designee of the Director, make the initial determination to deny an individual's written Privacy Act request for access to or amendment of documents filed in Privacy Act systems of records. This authority cannot be delegated.
(g) Regional Privacy Act Officers will:
(1) Implement and administer the Privacy Act program throughout the region.
(2) Ensure that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a DCAAR 5410.10 manner that assures that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(3) Prepare input for the annual Privacy Act Report when requested by the DCAA Information and Privacy Advisor.
(4) Conduct training on the Privacy Act program for regional and FAO personnel.
(5) Provide recommendations to the Regional Director through the Regional Resources Manager regarding the releasability of DCAA records to members of the public.
(h) Managers, Field Audit Offices (FAOs) will:
(1) Ensure that the provisions of this part are followed in processing requests for records.
(2) Forward to the Regional Privacy Act Officer, any Privacy Act requests received directly from a member of the public, so that the request may be administratively controlled and processed.
(3) Ensure the prompt review of all Privacy Act requests, and when required, coordinating those requests with other organizational elements.
(4) Provide recommendation to the Regional Privacy Act Officer regarding the releasability of DCAA records to members of the public, along with the responsive documents.
(5) Provide the appropriate documents, along with a written justification for any denial, in whole or in part, of a request for records to the Regional Privacy Act Officer. Those portions to be excised should be bracketed in red pencil, and the specific exemption or exemptions cited which provide the basis for denying the requested records.
(i) DCAA Employees will:
(1) Not disclose any personal information contained in any system of records, except as authorized by this part.
(2) Not maintain any official files which are retrieved by name or other personal identifier without first ensuring that a notice for the system has been published in the
(3) Report any disclosures of personal information from a system of records or the maintenance of any system of records that are not authorized by this part to the appropriate Privacy Act officials for their action.
The Report Control Symbol. Unless otherwise directed, any report concerning implementation of the Privacy Program shall be assigned Report Control Symbol DD-DA&M(A)1379.
Procedures for processing material in accordance with the Privacy Act of 1974 are outlined in DoD 5400.11-R, DoD Privacy Program (32 CFR part 310).
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
(a) This part updates the policies, responsibilities, and procedures of the DTRA Privacy Program under the Privacy Act of 1974, as amended (5 U.S.C. 552a), OMB Circular A-130,
(b) This rule establishes procedures whereby individuals can:
(1) Request notification of whether Defense Threat Reduction Agency (DTRA) maintains or has disclosed a record pertaining to them in any nonexempt system of records;
(2) Request a copy or other access to such a record or to an accounting of its disclosure;
(3) Request that the record be amended; and
(4) Appeal any initial adverse determination of any such request.
(c) Specifies those system of records which the Director, Defense Threat Reduction Agency has determined to be exempt from the procedures established by this rule and by certain provisions of the Privacy Act.
(d) DTRA policy encompasses the safeguarding of individual privacy from any misuse of DTRA records and the provides the fullest access practicable by individuals to DTRA records concerning them.
(a) This part applies to all members of the Armed Forces and Department of Defense civilians assigned to the DTRA at any of its duty locations.
(b) This part shall be made applicable to DoD contractors who are operating a system of records on behalf of DTRA, to include any of the activities, such as collecting and disseminating records, associated with maintaining a system of records.
(a) It is DTRA policy that:
(1) The personal privacy of an individual shall be respected and protected. Personal information shall be collected, maintained, used, or disclosed to insure that:
(2) It shall be relevant and necessary to accomplish a lawful DTRA purpose required to be accomplished by Federal statute or Executive order;
(3) It shall be collected to the greatest extent practicable directly from the individual;
(4) The individual shall be informed as to why the information is being collected, the authority for collection, what uses will be made of it, whether disclosure is mandatory or voluntary, and the consequences of not providing the information;
(5) It shall be relevant, timely, complete and accurate for its intended use; and
(6) Appropriate administrative, technical, and physical safeguards shall be established, based on the media (e.g., paper, electronic, etc.) involved, to ensure the security of the records and to prevent compromise or misuse during storage or transfer.
(b) No record shall be maintained on how an individual exercises rights guaranteed by the First Amendment to
(c) Notices shall be published in the
(d) Individuals shall be permitted, to the extent authorized by this part:
(1) To determine what records pertaining to them are contained in a system of records;
(2) Gain access to such records and obtain a copy of those records or a part thereof;
(3) Correct or amend such records on a showing the records are not accurate, relevant, timely, or complete.
(4) Appeal a denial of access or a request for amendment.
(e) Disclosure of records pertaining to an individual from a system of records shall be prohibited except with the consent of the individual or as otherwise authorized by 5 U.S.C. 552a and 32 CFR part 286. When disclosures are made, the individual shall be permitted, to the extent authorized by 5 U.S.C. 552a and 32 CFR part 310, to seek an accounting of such disclosures from DTRA.
(f) Computer matching programs between DTRA and Federal, State, or local governmental agencies shall be conducted in accordance with the requirements of 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(g) DTRA personnel and Systems Managers shall conduct themselves, pursuant to established rules of conduct, so that personal information to be stored in a system of records shall only be collected, maintained, used, and disseminated as authorized by this part.
(a) The Director, DTRA shall:
(1) Provide adequate funding and personnel to establish and support an effective Privacy Program.
(2) Appoint a senior official to serve as the Agency Privacy Act Officer.
(3) Serve as the Agency Appellate Authority.
(b) The Privacy Act Officer shall:
(1) Implement the Agency's Privacy Program in accordance with the specific requirements set forth in this part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(2) Establish procedures, as well as rules of conduct, necessary to implement this part so as to ensure compliance with the requirements of 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(3) Ensure that the DTRA Privacy Program periodically shall be reviewed by the DTRA Inspectors General or other officials, who shall have specialized knowledge of the DoD Privacy Program.
(4) Serve as the Agency Initial Denial Authority.
(c)
(1) Manage activities in support of the DTRA Programoversight in accordance with part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(2) Provide operational support, guidance and assistance to Systems Managers for responding to requests for access/amendment of records.
(3) Direct the day-by-day activities of the DTRA Privacy Program.
(4) Provide guidance and assistance to DTRA elements in their implementation and execution of the DTRA Privacy Program.
(5) Prepare and submit proposed new, altered, andamended systems of records, to include submission of required notices for publication in the Federal Register consistent with this part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(6) Prepare and submit proposed DTRA privacy rulemaking, to include documentation for submission of the proposed rule to the Office of the Federal Register for publication. Additionally, provide required documentation
(7) Provide advice and support to DTRA elements to ensure that:
(i) All information requirements developed to collect and/or maintain personal data conform to DoD Privacy Act Program standards;
(ii) Appropriate procedures and safeguards shall be developed, implemented, and maintained to protect personal information when it is stored in either a manual and/or automated system of records or transferred by electronic or non-electronic means; and
(iii) Specific procedures and safeguards shall be developed and implemented when personal data is collected and maintained for research purposes.
(8) Conduct reviews, and prepare and submit reports consistent with the requirements in this part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310, or as otherwise directed by the Defense Privacy Office.
(9) Conduct training for all assigned and employed DTRA personnel and for those individuals having primary responsibility for DTRA Privacy Act Record Systems consistent with requirements of this part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(10) Serve as the principal points of contact for coordination of privacy and related matters.
(d)
(1) Recognize and support the DTRA Privacy Act Program.
(2) Appoint an individual to serve as Privacy Act Point of Contact within their purview.
(3) Initiate prompt, constructive management actions on agreed-upon actions identified in agency Privacy Act reports.
(e)
(1) Ensure that all personnel who have access to information from an automated system of records during processing or who are engaged in developing procedures for processing such information are aware of the provisions of this Instruction.
(2) Promptly notify automated system managers and the Privacy Act Officer whenever they are changes to Agency Information Technology that may require the submission of an amended system notice for any system of records.
(3) Establish rules of conduct for Agency personnel involved in the design, development, operation, or maintenance of any automated system of records and train them in these rules of conduct.
(f) Agency System Managers shall exercise the Rules of Conduct as specified in 32 CFR part 310.
(g) Agency personnel shall exercise the Rules of Conduct as specified in 32 CFR part 310.
(a) An individual seeking notification of whether a system of records, maintained by the Defense Threat Reduction Agency, contains a record pertaining to himself/herself and who desires to review, have copies made of such records, or to be provided an accounting of disclosures from such records, shall submit his or her request in writing. Requesters are encourage to review the systems of records notices published by the Agency so as to specifically identify the particular record system(s) of interest to be accessed.
(b) In addition to meeting the requirements set forth in this section 318.6, the individual seeking notification, review or copies, and an accounting of disclosures will provide in writing his or her full name, address, Social Security Number, and a telephone number where the requester can be contacted should questions arise concerning the request. This information will be used only for the purpose of identifying relevant records in response to an individual's inquiry. It is further recommended that individuals indicate any present or past relationship or affiliations, if any, with the Agency and the appropriate dates in order to facilitate a more thorough search. A notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746 may also be required.
(c) An individual who wishes to be accompanied by another individual when reviewing his or her records, must provide the Agency with written consent authorizing the Agency to disclose or discuss such records in the presence of the accompanying individual.
(d) Individuals should mail their written request to the FOIA/Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation Drive, Dulles, VA 20166-7517 and indicate clearly on the outer envelope “Privacy Act Request.”
(a) The Defense Threat Reduction Agency, upon receiving a request for notification of the existence of a record or for access to a record, shall acknowledge receipt of the request within 10 working days.
(b) Determine whether or not such record exists.
(c) Determine whether or not such request for access is available under the Privacy Act.
(d) Notify requester of determinations within 30 working days after receipt of such request.
(e) Provide access to information pertaining to that person which has been determined to be available within 30 working days.
(f) Notify the individual if fees will be assessed for reproducing copies of the records. Fee schedule and rules for assessing fees are contained in § 318.11.
(a) An individual may request that the Defense Threat Reduction Agency correct, amend, or expunge any record, or portions thereof, pertaining to the requester that he/she believe to be inaccurate, irrelevant, untimely, or incomplete.
(b) Such requests shall specify the particular portions of the records in question, be in writing and should be mailed to the FOIA/Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation Drive, Dulles, VA 20166-7517.
(c) The requester shall provide sufficient information to identify the record and furnish material to substantiate the reasons for requesting corrections, amendments, or expurgation.
(a) The Agency will acknowledge a request for correction or amendment within 10 working days of receipt. The acknowledgment will be in writing and will indicate the date by which the Agency expects to make its initial determination.
(b) The Agency shall complete its consideration of requests to correct or amend records within 30 working days, and inform the requester of its initial determination.
(c) If it is determined that records should be corrected or amended in whole or in part, the Agency shall advise the requester in writing of its determination; and correct or amend the records accordingly. The Agency shall then advise prior recipients of the records of the fact that a correction or amendment was made and provide the substance of the change.
(d) If the Agency determines that a record should not be corrected or amended, in whole or in part, as requested by the individual, the Agency shall advise the requester in writing of its refusal to correct or amend the records and the reasons therefor. The notification will inform the requester that the refusal may be appealed administratively and will advise theindividual of the procedures for such appeals.
(a) An individual who disagrees with the denial or partial denial of his or her request for access, correction, or amendment of Agency records pertaining the himself/herself, may file a request for administrative review of such refusal within 30 days after the date of notification of the denial or partial denial.
(b) Such requests shall be made in writing and mailed to the FOIA/Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation Drive, Dulles, VA 20166-7517.
(c) The requester shall provide a brief written statement setting for the reasons for his or her disagreement with the initial determination and provide such additional supporting material as the individual feels necessary to justify the appeal.
(d) Within 30 working days of receipt of the request for review, the Agency shall advise the individual of the final disposition of the request.
(e) In those cases where the initial determination is reversed, the individual will be so informed and the Agency will take appropriate action.
(f) In those cases where the initial determination is sustained, the individual shall be advised:
(1) In the case of a request for access to a record, of theindividual's right to seek judicial review of the Agency refusal for access.
(2) In the case of a request to correct or amend the record:
(i) Of the individual's right to file a concise statement of his or her reasons for disagreeing with the Agency's decision in the record,
(ii) Of the procedures for filing a statement of the disagreement, and
(iii) Of the individual's right to seek judicial review of the Agency's refusal to correct or amend a record.
(a) General. No record contained in a system of records maintained by DTRA shall be disclosed by any means to any person or agency within or outside the Department of Defense without the request or consent of the subject of the record, except as described in 32 CFR 310.41, Appendix C to part 310, and/or a Defense Threat Reduction Agency system of records notice.
(b) Accounting of disclosures. Except for disclosures made to members of the DoD in connection with their official duties, anddisclosures required by the Freedom of Information Act, an accounting will be kept of all disclosures of records maintained in DTRA system of records.
(1) Accounting entries will normally be kept on a DTRA form, which will be maintained in the record file jacket, or in a document that is part of the record.
(2) Accounting entries will record the date, nature and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made.
(3) Accounting records will be maintained for at least 5 years after the last disclosure, of for the life of the record, whichever is longer.
(4) Subjects of DTRA records will be given access to associated accounting records upon request, except for those disclosures made to law enforcement activities when the law enforcement activity has requested that the disclosure not be made, and/or as exempted under § 318.16.
Individuals may request copies for retention of any documents to which they are granted access in DTRA records pertaining to them. Requesters will not be charged for the first copy of any records provided; however, duplicate copies will require a charge to cover costs of reproduction. Such charges will be computed in accordance with 32 CFR part 310.
Procedures and sanctions are set forth in 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(a) DTRA personnel shall:
(1) Take such actions, as considered appropriate, to ensure that personal information contained in a system of records, to which they have access or are using incident to the conduct of official business, shall be protected so that the security and confidentiality of the information shall be preserved.
(2) Not disclose any personal information contained in any system of records except as authorized by 32 CFR part 310 or other applicable law or regulation. Personnel willfully making such a disclosure when knowing the disclosure is prohibited are subject to possible criminal penalties and/or administrative sanctions.
(3) Report any unauthorized disclosure of personal information from a system of records or the maintenance of any system of records that are not authorized by the Instruction to the DTRA Privacy Act Officer.
(b) DTRA system managers for each system of records shall:
(1) Ensure that all personnel who either have access to the system of records or who shall develop or supervise procedures for the handling of records in the system of records shall be aware of their responsibilities for protecting personnel information being collected and maintained under the DTRA Privacy Program.
(2) Promptly notify the Privacy Act Officer of any required new, amended, or altered system notices for the system of records.
(3) Not maintain any official files on individuals, which are retrieved by name or other personal identifier without first ensuring that a notice for the system of records shall have been published in the “Federal Register.” Any official who willfully maintains a system of records without meeting the publication requirements, as prescribed by 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310, is subject to possible criminal penalties and/or administrative sanctions.
(a)
(b)
(1) Exemption: Portions of this system of records may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), (e)(4)(G), (H), (I), and (f).
(2) Authority: 5 U.S.C. 552a(k)(5).
(3) Reasons: (i) From subsection (c)(3) because it will enable DTRA to safeguard certain investigations and relay law enforcement information without compromise of the information, and protect the identities of confidential sources who might not otherwise come forward and who have furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise.)
(ii) From subsection (d)(1) through (d)(4) and (f) because providing access to records of a civil investigation 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 security investigations. 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; 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.
(iii) From subsection (e)(1), (e)(4)(G), (H), (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information; under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise.)
(c)
(1) Exemption: Portions of this system of records may be exempt from the provisions of 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
(2) Authority: 5 U.S.C. 552a(k)(2).
(3) Reasons: (i) From subsection (c)(3) because it will enable DTRA to conduct certain investigations and relay law enforcement information without compromise of the information, protection of investigative techniques and efforts employed, and identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise.)
(ii) From subsection (d)(1) through (d)(4) and (f) because providing access to records of a civil investigation 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; and result in the secreting of or other disposition of assets that would make
(iii) From subsection (e)(1), (e)(4)(G), (H), and (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Pursuant to the requirements of section 553 of Title 5 of the United States Code, the Defense Intelligence Agency promulgates its rules for the implementation of the Privacy Act of 1974, Pub. L. 93-579, 5 U.S.C. 552a (f) and (k).
(a) To promulgate rules providing procedures by which individuals may exercise their rights granted by the act to:
(1) Determine whether a Defense Intelligence Agency system of records contains a record pertaining to themselves;
(2) Be granted access to all or portions thereof;
(3) Request administrative correction or amendment of such records;
(4) Request an accounting of disclosures from such records; and
(5) Appeal any adverse determination for access or correction/amendment of records.
(b) To set forth Agency policy and fee schedule for cost of duplication.
(c) To identify records subject to the provisions of these rules.
(d) To specify those systems of records for which the Director, Defense Intelligence Agency, claims an exemption.
(a) Any individual who is a citizen of the United States or an alien lawfully admitted for permanent residence in the United States may submit an inquiry to the Defense Intelligence Agency.
(b) These rules apply to those systems of records:
(1) Maintained by the Defense Intelligence Agency;
(2) For which the Defense Intelligence Agency prescribes the content and disposition pursuant to statute or executive order of the President, which may be in the physical custody of another Federal agency;
(3) Not exempted from certain provisions of the act by the Director, Defense Intelligence Agency.
(c) The Defense Intelligence Agency may have physical custody of the official records of another Federal agency which exercises dominion and control over the records, their content, and access thereto. In such cases, the Defense Intelligence Agency maintenance of the records is considered subject to the rules of the other Federal agency. Except for a request for a determination of the existence of the record, when the Defense Intelligence Agency receives
(d) Records subject to provisions of the Act which are transferred to the Washington National Records Center for storage shall be considered to be maintained by the Defense Intelligence Agency. Disclosure from such records—to other than an element of the Defense Intelligence Agency—can only be made with the prior approval of the Defense Intelligence Agency.
(e) Records subject to provisions of the act which are transferred to the National Archives shall be considered to be maintained by the National Archives and are no longer records of the Agency.
(a) All terms used in this part which are defined in 5 U.S.C. 552a shall have the same meaning herein.
(b) As used in this part:
(1) The term
(2) The term
(a) An individual seeking notification of whether a system of records, maintained by the Defense Intelligence Agency, contains a record pertaining to himself/herself and who desires to review, have copies made of such records, or to be provided an accounting of disclosures from such records, shall submit his or her request in writing. Requesters are encouraged to review the systems of records notices published by the Agency so as to specifically identify the particular record system(s) of interest to be accessed.
(b) In addition to meeting the requirements set forth in § 319.5 of this part, the individual seeking notification, review or copies, and an accounting of disclosures will provide in writing his or her full name, address, social security account number or date of birth and a telephone number where the requester can be contacted should questions arise concerning his or her request. This information will be used only for the purpose of identifying relevant records in response to an individual's inquiry. It is further recommended that individuals indicate any present or past relationship or affiliations, if any, with the Agency and the appropriate dates in order to facilitate a more thorough search of the record system specified and any other system which may contain information concerning the individual. A signed notarized statement may also be required.
(c) An individual who wishes to be accompanied by another individual when reviewing his or her records, must provide the Agency with written consent authorizing the Agency to disclose or discuss such records in the presence of the accompanying individual.
(d) A request for medical records must be submitted as set forth in § 319.7, of this part.
(e) Individuals should mail their written request to the Defense Intelligence Agency, DSP-1A, Washington, DC 20340-3299 and indicate clearly on the outer envelope “Privacy Act Request”.
(f) An individual who makes a request on behalf of a minor or legal incompetent shall provide a signed notarized statement affirming the relationship.
(g) When an individual wishes to authorize another person access to his or her records, the individual shall provide a signed notarized statement authorizing and consenting to access by the designated person.
(h) Except as provided by section 552a(b) of the act, 5 U.S.C. 552a(b), the written request or prior written consent of the individual to whom a record pertains shall be required before such record is disclosed to any person or to another agency outside the Department of Defense.
(i) Any person who knowingly and willfully requests or obtains any record concerning an individual from this Agency under false pretenses shall be
The Defense Intelligence Agency, upon receiving a request for notification of the existence of a record or for access to a record, shall:
(a) Determine whether such record exists;
(b) Determine whether access is available under the Privacy Act;
(c) Notify the requester of those determinations within 10 days (excluding Saturday, Sunday and legal public holidays); and
(d) Provide access to information pertaining to that person which has been determined to be available.
Medical records, requested pursuant to § 319.5 of this part, will be disclosed to the requester unless the disclosure of such records directly to the requester could, in the judgment of a physician, have an adverse effect on the physical or mental health or safety and welfare of the requester or other persons with whom he may have contact. In such an instance, the information will be transmitted to a physician named by the requester or to a person qualified to make a psychiatric or medical determination.
(a) An individual may request that the Defense Intelligence Agency correct, amend, or expunge any record, or portions thereof, pertaining to the requester that he believes to be inaccurate, irrelevant, untimely, or incomplete.
(b) Such requests shall be in writing and may be mailed to DSP-1A as indicated in § 319.5.
(c) The requester shall provide sufficient information to identify the record and furnish material to substantiate the reasons for requesting corrections, amendments or expurgation.
(a) The Agency will acknowledge a request for correction or amendment of a record within 10 days (excluding Saturday, Sunday, and legal public holidays) of receipt. The acknowledgment will be in writing and will indicate the date by which the Agency expects to make its initial determination.
(b) The Agency shall complete its consideration of requests to correct or amend records within 30 days (excluding Saturday, Sunday, and legal holidays) and inform the requester of its initial determination.
(c) If it is determined that records should be corrected or amended in whole or in part, the Agency shall advise the requester in writing of its determination; and correct or amend the records accordingly. The Agency shall then advise prior recipients of the records of the fact that a correction or amendment was made and provide the substance of the change.
(d) If the Agency determines that a record should not be corrected or amended, in whole or in part, as requested by the individual, the Agency shall advise the requester in writing of its refusal to correct or amend the records and the reasons therefor. The notification will inform the requester that the refusal may be appealed administratively and will advise the individual of the procedures for such appeals.
(a) An individual who disagrees with the denial or partial denial of his or her request for access, correction, or amendment of Agency records pertaining to himself/herself, may file a request for administrative review of such refusal within 30 days after the
(b) Such requests should be in writing and may be mailed to RTS-1 as indicated in § 319.5.
(c) The requester shall provide a brief written statement setting forth the reasons for his or her disagreement with the initial determination and provide such additional supporting material as the individual feels necessary to justify his or her appeal.
(d) Within 30 days (excluding Saturday, Sunday, and legal public holidays) of the receipt of request for review, the Agency shall advise the individual of the final disposition of his or her request.
(e) In those cases where the initial determination is reversed, the individual will be so informed and the Agency will take appropriate action.
(f) In those cases where the initial determinations are sustained, the individual shall be advised:
(1) In the case of a request for access to a record, of the individual's right to seek judicial review of the Agency refusal for access.
(2) In the case of a request to correct or amend the record:
(i) Of the individual's right to file with record in question a concise statement of his or her reasons for disagreeing with the Agency's decision,
(ii) Of the procedures for filing a statement of disagreement, and
(iii) Of the individual's right to seek judicial review of the Agency's refusal to correct or amend a record.
(a) The schedule of fees chargeable is contained at § 286.60
(b) Current employees of the Agency will not be charged for the first copy of a record provided by the Agency.
(c) In the absence of an agreement to pay required anticipated costs, the time for responding to a request begins on resolution of this agreement to pay.
(d) The fees may be paid by check, draft or postal money order payable to the Treasurer of the United States. Remittance will be forwarded to the office designated in § 319.5(e).
(a) All systems of records maintained by the Director Intelligence Agency shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive order to be kept secret in the interest of national defense or foreign policy. This exemption, which may be applicable to parts of all systems of records, is necessary because certain record systems not specifically designated for exemption may contain isolated information which has been properly classified.
(b) The Director, Defense Intelligence Agency, designated the systems of records listed below for exemptions under the specified provisions of the Privacy Act of 1974, as amended (Pub. L. 93-579):
(c)
(1)
(2)
(3)
(d)
(1)
(2)
(3)
(e)
(1)
(2)
(3)
(f)
(1)
(2)
(3)
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).
Nomenclature changes to part 320 appear at 69 FR 2066, Jan. 14, 2004.
(a) This part is published pursuant to the Privacy Act of 1974, as amended (5 U.S.C. 552a), (hereinafter the “Privacy Act”). This part:
(1) Establishes or advises of the procedures whereby an individual can:
(i) Request notification of whether the National Geospatial-Intelligence Agency (NGA) maintains or has disclosed a record pertaining to him in any nonexempt system of records,
(ii) Request a copy or other access to such a record or to an accounting of its disclosure,
(iii) Request that the record be amended and
(iv) Appeal any initial adverse determination of any such request;
(2) Specifies those systems of records which the Director, Headquarters NGA has determined to be exempt from the procedures established by this regulation and from certain provisions of the Privacy Act. NGA policy encompasses the safeguarding of individual privacy from any misuse of NGA records and the provision of the fullest access practicable to individuals to NGA records concerning them.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(a) Director of NGA:
(1) Implements the NGA privacy program.
(2) Designates the Director of the Public Affairs Office as the NGA Initial Denial Authority;
(3) Designates the Chief of Staff as the Appellate Authority.
(4) Designates the General Counsel as the NGA Privacy Act Officer and the principal point of contact for matters involving the NGA privacy program.
(b) NIMA General Counsel:
(1) Oversees systems of records maintained throughout NIMA, administered
(2) Coordinates all denials of requests for access to or amendment of records.
(3) Assesses and collects fees for costs associated with processing Privacy Act requests and approves or denies requests for fee waivers. Fees collected are forwarded through Financial Management Directorate to the U.S. Treasury.
(4) Prepares the annual report to the Defense Privacy Office.
(5) Oversees investigations of allegations of unauthorized maintenance, disclosure, or destruction of records.
(6) Conducts or coordinates Privacy Act training for NGA personnel as needed, including training for public affairs officers and others who deal with the public and news media.
(c) NIMA System Managers:
(1) Ensure that all personnel who either have access to a system of records or who are engaged in developing or supervising procedures for handling records in a system of records are aware of their responsibilities for protecting personal information.
(2) Prepare notices of new systems of records and changes to existing systems for publication in the
(3) Ensure that no records subject to this part are maintained for which a systems notice has not been published.
(4) Respond to requests by individuals for access, correction, or amendment to records maintained pursuant to the NGA privacy program.
(5) Provide recommendations to General Counsel for responses to requests from individuals for access, correction, or amendment to records.
(6) Safeguard records to ensure that they are protected from unauthorized alteration or disclosure.
(7) Dispose of records in accordance with accepted records management practices to prevent inadvertent compromise. Disposal methods such as tearing, burning, melting, chemical decomposition, pulping, pulverizing, shredding, or mutilation are considered adequate if the personal data is rendered unrecognizable or beyond reconstruction.
(a) Upon request in person or by mail, any individual, as defined in § 320.2, shall be informed whether or not any NGA system of records contains a record pertaining to him.
(b) Any individual requesting such information in person may appear at NGA General Counsel Office (refer to the NGA address list at paragraph (e) of this section) or at the NGA office thought to maintain the record in question and shall provide:
(1) Information sufficient to identify the record, e.g., the individual's own name, date of birth, place of birth, and, if possible, an indication of the type of record believed to contain information concerning the individual, and
(2) Acceptable identification to verify the individual's identity, e.g., driver's license, employee identification card or Medicare card.
(c) Any individual requesting such information by mail shall address the request to the Office of General Counsel (refer to paragraph (e) of this section) or NGA office thought to maintain the record in question and shall include in such request the following:
(1) Information sufficient to identify the record, e.g., the individual's own name, date of birth, place of birth, and, if possible, an indication of the type of record believed to contain information concerning the individual, and
(2) A notarized statement or unsworn declaration in accordance with 28 U.S.C. 1746 to verify the individual's identity, if, in the opinion of the NGA system manager, the sensitivity of the material involved warrants.
(d) NGA procedures on requests for information. Upon receipt of a request for information made in accordance with these regulations, notice of the existence or nonexistence of any records described in such requests will be furnished to the requesting party within ten working days of receipt.
(e) Written requests for access to records should be sent to NGA Bethesda, ATTN: NGA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003.
(f) Requests for information made under the Freedom of Information Act are processed in accordance with “DoD Freedom of Information Act Program Regulation” (32 CFR part 286).
(g) Requests for personal information from the Government Accounting Office (GAO) are processed in accordance with DoD Directive 7650.1
(a) Upon request by an individual made in accordance with the procedures set forth in this section, such individual shall be granted access to any pertinent record which is contained in a nonexempt NGA system of records. However, nothing in this section shall allow an individual access to any information compiled by NGA in reasonable anticipation of a civil or criminal action or proceeding.
(b) Procedures for requests for access to records. Any individual may request access to a pertinent NGA record in person or by mail.
(1) Any individual making such request in person shall appear at Office of General Counsel, NGA Bethesda, ATTN: NGA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003, and shall provide identification to verify the individuals' identity, e.g., driver's license, employee identification card, or Medicare card.
(2) Any individual making a request for access to records by mail shall address such request to the Office of General Counsel, NIMA Bethesda, ATTN: NGA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003; and shall include therein a signed, notarized statement, or an unsworn statement or declaration in accordance with 28 U.S.C. 1746, to verify identity.
(3) Any individual requesting access to records under this section in person may be accompanied by a person of the individual's own choosing while reviewing the record requested. If an individual elects to be so accompanied, said individual shall give notice of such election in the request and shall provide a written statement authorizing disclosure of the record in the presence of the accompanying person. Failure to so notify NGA in a request for access shall be deemed to be a decision by the individual not to be accompanied.
(c) NGA determination of requests for access.
(1) Upon receipt of a request made in accordance with this section, the NGA Office of General Counsel or NGA office having responsibility for maintenance of the record in question shall release the record, or refer it to an Initial Denial Authority, who shall:
(i) Determine whether such request shall be granted.
(ii) Make such determination and provide notification within 30 working days after receipt of such request.
(iii) Notify the individual that fees for reproducing copies of records will be assessed and should be remitted before the copies may be delivered. Fee schedule and rules for assessing fees are contained in § 320.9.
(iv) Requests for access to personal records may be denied only by an agency official authorized to act as an Initial Denial Authority or Final Denial Authority, after coordination with the Office of General Counsel.
(2) If access to a record is denied because such information has been compiled by NGA in reasonable anticipation of a civil or criminal action or proceeding, the individual will be notified of such determination and his right to judicial appeal under 5 U.S.C. 552a(g).
(d) Manner of providing access.
(1) If access is granted, the individual making the request shall notify NGA whether the records requested are to be copied and mailed.
(2) If the records are to be made available for personal inspection the individual shall arrange for a mutually agreeable time and place for inspection of the record. NIMA reserves the right to require the presence of a NIMA officer or employee during personal inspection of any record pursuant to this section and to request of the individual that a signed acknowledgment of the fact be provided that access to the record in question was granted by NIMA.
(a) Any individual may request amendment of a record pertaining to said individual.
(b) After inspection of a pertinent record, the individual may file a request in writing with the NGA Office of General Counsel for amendment. Such requests shall specify the particular portions of the record to be amended, the desired amendments and the reasons, supported by documentary proof, if available.
(a) Not later than 10 working days after receipt of a request to amend a record, in whole or in part, the NGA Office of General Counsel, or NGA office having responsibility for maintenance of the record in question, shall correct any portion of the record which the individual demonstrates is not accurate, relevant, timely or complete, and thereafter either inform the individual of such correction or process the request for denial.
(b) Denials of requests for amendment of a record will be made only by an agency official authorized to act as an Initial Denial Authority, after coordination with the Office of General Counsel. The denial letter will inform the individual of the denial to amend the record setting forth the reasons therefor and notifying the individual of his right to appeal the decision to NGA.
(c) Any person or other agency to whom the record has been previously disclosed shall be informed of any correction or notation of dispute with respect to such records.
(d) These provisions for amending records are not intended to permit the alteration of evidence previously presented during any administrative or quasi-judicial proceeding, such as an employee grievance case. Any changes in such records should be made only through the established procedures for such cases. Further, these provisions are not designed to permit collateral attack upon what has already been the subject of an administrative or quasi-judicial action. For example, an individual may not use this procedure to challenge the final decision on a grievance, but the individual would be able to challenge the fact that such action has been incorrectly recorded in his file.
(a) An individual whose request for amendment of a record pertaining to him may further request a review of such determination in accordance with this section.
(b) Not later than 30 working days following receipt of notification of denial to amend, an individual may file an appeal of such decision with NGA. The appeal shall be in writing, mailed or delivered to NGA, ATTN: Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003. The appeal must identify the records involved, indicate the dates of the request and adverse determination, and indicate the express basis for that determination. In addition, the letter of appeal shall state briefly and succinctly the reasons why the adverse determination should be reversed.
(c) Upon appeal from a denial to amend a record the NGA Appellate Authority or designee shall make a determination whether to amend the record and must notify the individual of that determination by mail, not later than 10 working days after receipt of such appeal, unless extended pursuant to paragraph (d) of this section.
(1) The Appellate Authority or designee shall also notify the individual of the provisions of the Privacy Act of 1974 regarding judicial review of the NGA Appellate Authority's determination.
(2) If on appeal the denial to amend the record is upheld, the individual shall be permitted to file a statement setting forth the reasons for disagreement with the Appellate Authority's determination and such statement shall be appended to the record in question.
(d) The Appellate Authority or designee may extend up to 30 days the time period in which to make a determination on an appeal from denial to amend a record for the reason that a fair and equitable review cannot be
(a) No officer or employee of NGA will disclose any record which is contained in a system of records, by any means of communication to any person or agency within or outside the Department of Defense without the request or consent of the individual to whom the record pertains, except as described in to 32 CFR 310.41; Appendix C to part 310 of this chapter; and/or a NGA Privacy Act system of records notice.
(b) Any such record may be disclosed to any person or other agency only upon written request, of the individual to whom the record pertains.
(c) In the absence of a written consent from the individual to whom the record pertains, such record may be disclosed only provided such disclosure is:
(1) To those officers and employees of the DoD who have a need for the record in the performance of their duties.
(2) Required under the Freedom of Information Act (32 CFR part 286).
(3) For a routine use established within the system of records notice.
(4) To the Bureau of Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13.
(5) To a recipient who has provided the NGA with adequate advance written assurance that the record will be used solely as a statistical research or reporting record and the record is transferred in a form that is not individually identifiable and will not be used to make any decisions about the rights, benefits or entitlements of an individual.
(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government or for evaluation by the Administrator of the General Services Administration or his designee to determine whether the record has such value.
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the U.S. for a civil or criminal law enforcement activity authorized by law, provided the head of the agency or instrumentality has made a prior written request to the Director, NGA specifying the particular record and the law enforcement activity for which it is sought.
(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, if upon such disclosure notification is transmitted to the last known address of such individual.
(9) To either house of Congress, and, to the extent of the matter within its jurisdiction, any committee or subcommittee or joint committee of Congress.
(10) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the GAO.
(11) Under an order of a court of competent jurisdiction.
(12) To a consumer reporting agency in accordance with section 3711(f) of title 31.
(d) Except for disclosures made pursuant to paragraphs (c)(1) and (2) of this section, an accurate accounting will be kept of the data, nature and purpose of each disclosure of a record to any person or agency, and the name and address of the person or agency to whom the disclosure was made. The accounting of disclosures will be made available for review by the subject of a record at his request except for disclosures made pursuant to paragraph (c)(7) of this section. If an accounting of disclosure has been made, any person or agency contained therein will be informed of any correction or notation of dispute made pursuant to section 320.6 of this part.
Individuals may request copies for retention of any documents to which they are granted access to NGA records pertaining to them. Requesters will not be charged for the first copy of any records provided; however, duplicate copies will require a charge to cover costs of reproduction. Such charges will be computed in accordance with 32 CFR part 310.
The Privacy Act of 1974 (5 U.S.C. 552a(i)(3)) makes it a misdemeanor subject to a maximum fine of $5,000, to knowingly and willfully request or obtain any record concerning an individual under false pretenses. The Act also establishes similar penalties for violations by NGA employees of the Act or regulations established thereunder.
(a)
(b)
(1)
(ii) 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(2)
(3)
(ii) 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) 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).
(v) 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. NGA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, NGA will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NGA'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 in this paragraph. The decisions to release information from these systems will be made on a case-by-case basis.
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
(a) This part establishes rules, policies and procedures for the disclosure of personal records in the custody of the Defense Security Service (DSS) to the individual subjects, the handling of requests for amendment or correction of such records, appeal and review of DSS decisions on these matters, and the application of general and specific exemptions, under the provisions of the Privacy Act of 1974. It also prescribes other policies and procedures to effect compliance with the Privacy Act of 1974 and DoD Directive 5400.11
(b) The procedures set forth in this part do not apply to DSS personnel seeking access to records pertaining to themselves which previously have been available. DSS personnel will continue to be granted ready access to their personnel, security, and other records by making arrangements directly with the maintaining office. DSS personnel should contact the Office of Freedom of Information and Privacy, DSSHQ, for access to investigatory records pertaining to themselves or any assistance in obtaining access to other records pertaining to themselves, and may follow the procedures outlined in these rules in any case.
(a) All terms used in this part which are defined in 5 U.S.C. 552a shall have the same meaning herein.
(b) As used in this part, the term agency means the Defense Security Service.
(a)
(1) Paragraphs (b) and (c) of this section give information that will assist an individual in determining in what systems of DSS records (if any) he may be the subject. This information is presented as a convenience to the individual in that he may avoid consulting the lengthy systems notices elsewhere in the Federal Register.
(2) Paragraph (d) of this section details the procedure an individual should use to contact DSS and request notification. It will be helpful if the individual states what his connection with DSS has or may have been, and about what record system(s) he is inquiring. Such information is not required, but its absence may cause some delay.
(b)
(c)
(2) If an individual has ever made a formal request to DSS under the Freedom of Information Act or the Privacy Act of 1974, a record pertaining to that request under the name of the requester, or subject matter, will be in system V1-01.
(3) Persons of Counterintelligence interest who have solicited from industrial contractors/DoD installations information which may appear to be sensitive in nature may have a record in system V5-04.
(4) Individuals who have been applicants for employment with DSS, or nominees for assignment to DSS, but who have not completed their DSS affiliation, may be subjects in systems V4-04, V5-01, V5-02, V5-03, or V6-01.
(5) Any individual who is a subject, victim or cross-referenced personally in an investigation by an investigative element of any DoD component, may be referenced in the Defense Clearance and Investigations Index, system V5-02, in an index to the location, file number, and custodian of the case record.
(6) Individuals who have ever presented a complaint to or have been connected with a DSS Inspector General inquiry may be subjects of records in system V2-01.
(7) If an individual has ever attended the Defense Industrial Security Institute or completed training with the DSS Training Office he should be subject of a record in V7-01.
(8) If an individual has ever been a guest speaker or instructor at the Defense Industrial Security Institute, he should be the subject of a record in V7-01.
(9) If an individual is an employee or major stockholder of a government contractor or other DoD-affiliated company or agency and has been issued, now possesses or has been processed for a security clearance, he may be subject to a record in V5-03.
(d)
(1) Individuals should submit inquiries in person or by mail to the Defense Security Service, Office of FOI and Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651. Inquiries by personal appearance should be made Monday through Friday from 8:30 to 11:30 a.m. and 1:00 to 4:00 p.m. The information requested in Sec. 321.4 must be provided if records are to be accurately identified. Telephonic requests for records will not be honored. In a case where the system of records is not specified in the request, only systems that would reasonably contain records of the individual will be checked, as described in paragraph (b) of this section.
(2) Only the Director or Chief, Office of FOI and Privacy may authorize exemptions to notification of individuals in accordance with § 321.13.
(a)
(b)
(1) Where reply by mail is requested, a mailing address is required, and a telephone number is recommended to expedite certain matters. For military requesters residing in the United States, home address or P.O. Box number is preferred in lieu of duty assignment address.
(2) Signatures must be notarized on requests received by mail. Exceptions may be made when the requester is well known to releasing officials. For requests made in person, a photo identification card, such as military ID, driver's license or building pass, must be presented.
(3) While it is not required as a condition of receiving notification, in many cases the SSN may be necessary to obtain an accurate search of DCII (V5-02) records.
(c) A DSS Form 30 (Request for Notification of/Access to Personal Records) will be provided to any individual inquiring about records pertaining to himself whose mailed request was not notarized. This form is also available at the DSS Office of FOI and Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651, for those who make their requests in person.
(a)
(2) A request for a pending personnel security investigation will be held in abeyance until completion of the investigation and the requester will be so notified.
(b)
(2) Any individual who makes a request for access in person shall:
(i) Provide identification as specified in Sec. 321.4.
(ii) Complete and sign a request form.
(3) Any individual making a request for access to records by mail shall include a signed and notarized statement to verify his identity, which may be the DSS request form if he has received one.
(4) Any individual requesting access to records in person may be accompanied by an identified person of his own choosing while reviewing the record. If the individual elects to be accompanied, he shall make this known in his written request, and include a statement authorizing disclosure of the record contents to the accompanying person. Without written authorization of the subject individual, records will not be disclosed to third parties accompanying the subject.
(5) During the course of official business, members of DSS field elements may be given access to records maintained by the field elements/Operations Center without referral to the Office of FOI and Privacy. An account of such access will be kept for reporting purposes.
(6) In all requests for access, the requester must state whether he or she desires access in person or mailed copies of records. During personal access, where copies are made for retention, a fee for reproduction and postage may be assessed as provided in Sec. 321.11. Where copies are mailed because personal appearance is impractical, there will be no fee.
(7) All individuals who are not affiliates of DSS will be given access to records, if authorized, in the Office of FOI and Privacy, or by means of mailed copies.
(a)
(b)
(1) Description of the record. Requesters should specify the number of pages and documents, the titles of the documents, form numbers if there are any, dates on the documents and names of individuals who signed them. Any reasonable description of the document is acceptable.
(2) Description of the items to be amended. The description of the passages, pages or documents to be amended should be as clear and specific as possible.
(i) Page, line and paragraph numbers should be cited where they exist.
(ii) A direct quotation of all or a portion of the passage may be made if it isn't otherwise easily identifiable. If the passage is long, a quotation of its beginning and end will suffice.
(iii) In appropriate cases, a simple substantive request may be appropriate, e.g., `delete all references to my alleged arrest in July 1970.'
(iv) If the requester has received a copy of the record, he may submit an annotated copy of documents he wishes amended.
(3) Type of amendment. The requester must clearly state the type of amendment he is requesting.
(i) Deletion or expungement, i.e., a complete removal from the record of data, sentences, passages, paragraphs or documents.
(ii) Correction of the information in the record to make it more accurate, e.g., rectify mistaken identities, dates, data pertaining to the individual, etc.
(iii) Additions to make the record more relevant, accurate or timely may be requested.
(iv) Other changes may be requested; they must be specifically and clearly described.
(4) Reason for amendment. Requests for amendment must be based on specific reasons, included in writing. Categories of reasons are as follows:
(i) Accuracy. Amendment may be requested where matters of fact are believed incorrectly recorded, e.g., dates, names, addresses, identification numbers, or any other information concerning the individual. The request, whenever possible, should contain the accurate information, copies of verifying documents, or indication of how the information can be verified.
(ii) Relevance. Amendment may be requested when information in a record is believed not to be relevant or necessary to the purposes of the record system.
(iii) Timeliness. Amendment may be requested when information is thought to be so old as to no longer be pertinent to the stated purposes of the records system. It may also be requested when there is recent information of a pertinent type that is not included in the record.
(iv) Completeness. Amendment may be requested where information in a record is incomplete with respect to its purpose. The data thought to have been omitted should be included or identified with the request.
(v) Fairness. Amendment may be requested when a record is thought to be unfair concerning the subject, in terms of the stated purposes of the record. In such cases, a source of additional information to increase the fairness of the record should be identified where possible.
(vi) Other reasons. Reasons for requesting amendment are not limited to those cited above. The content of the records is authorized in terms of their stated purposes which should be the basis for evaluating them. However, any matter believed appropriate may be submitted as a basis of an amendment request.
(vii) Court orders and statutes may require amendment of a file. While they do not require a Privacy Act request for execution, such may be brought to the attention of DSS by these procedures.
(c)
(d) This section does not permit the alteration of evidence presented to courts, boards and other official proceedings.
(a)
(1) A written acknowledgment of the receipt of a request for amendment of a record will be provided to the individual within 10 working days, unless final action regarding approval or denial can be accomplished within that time. In that case, the notification of approval or denial will constitute adequate acknowledgment.
(2) Where there is a determination to grant all or a portion of a request to amend a record, the record shall be promptly amended and the requesting individual notified. Individuals, agencies or components shown by accounting records to have received copies of the record, or to whom disclosure has been made, will be notified, if necessary, of the amendment by the responsible official. Where a DoD recipient of an investigative record cannot be located, the notification, if necessary, will be sent to the personnel security element of the parent Component.
(3) Where there is a determination to deny all or a portion of a request to amend a record, the office will promptly:
(i) Advise the requesting individual of the specifics of the refusal and the reasons;
(ii) Inform the individual that he may request a review of the denial(s) from `Director, Defense Security Service, 1340 Braddock Place, Alexandria, VA 22314-1651.' The request should be brief, in writing, and enclose a copy of the denial correspondence.
(b) DSS determination to approve or deny. Determination to approve or deny and request to amend a record or portion thereof may necessitate additional investigation or inquiry be made to verify assertions of individuals requesting amendment. Coordination will be made with the Director for Investigations and the Director of the Personnel Investigations Center in such instances.
(a)
(1) Review the record, request for amendment, DSS action on the request and the denial, and direct such additional inquiry or investigation as is deemed necessary to make a fair and equitable determination.
(2) Recommend to the Director whether to approve or deny the appeal.
(3) If the determination is made to amend a record, advise the individual and previous recipients (or an appropriate office) where an accounting of disclosures has been made.
(4) Where the decision has been made to deny the individual's appeal to amend a record, notify the individual:
(i) Of the denial and the reason;
(ii) Of his right to file a concise statement of reasons for disagreeing
(iii) That such statement may be sent to the Defense Security Service, Office of FOI and Privacy, (GCF), 1340 Braddock Place, Alexandria, VA 22314-1651, and that it will be disclosed to users of the disputed record;
(iv) That prior recipients of the disputed record will be provided a copy of the statement of disagreement, or if they cannot be reached (e.g., through deactivation) the personnel security element of their DoD component;
(v) And, that he may file a suit in a Federal District Court to contest DSS's decision not to amend the disputed record.
(b)
(a)
(1) To those officials and employees of the Department of Defense who have a need for the record in the performance of their duties, when the use is compatible with the stated purposes for which the record is maintained.
(2) Required to be disclosed by the Freedom of Information Act.
(3) For a routine use as described in DoD Directive 5400.11.
(4) To the Census Bureau, National Archives, the U.S. Congress, the Comptroller General or General Accounting Office under the conditions specified in DoD Directive 5400.11.
(5) At the written request of the head of an agency outside DoD for a law enforcement activity as authorized by DoD Directive 5400.11.
(6) For statistical purposes, in response to a court order, or for compelling circumstances affecting the health or safety of an individual as described in DoD Directive 5400.11.
(7) Legal guardians recognized by the Act.
(b)
(1) Accounting entries will normally be kept on a DSS form, which will be maintained in the record file jacket, or in a document that is part of the record.
(2) Accounting entries will record the date, nature and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made.
(3) An accounting of disclosures made to agencies outside the DoD of records in the Defense Clearance and Investigations Index (V5-02) will be kept as prescribed by the Director of Systems, DSS.
(4) Accounting records will be maintained for at least 5 years after the last disclosure, or for the life of the record, whichever is longer.
(5) Subjects of DSS records will be given access to associated accounting records upon request, except as exempted under § 321.13.
Individuals may request copies for retention of any documents to which they are granted access in DSS records pertaining to them. Requestors will not be charged for the first copy of any records provided; however, duplicate copies will require a charge to cover costs of reproduction. Such charges will be computed in accordance with DoD Directive 5400.11.
(a) An individual may bring a civil action against the DSS to correct or amend the record, or where there is a refusal to comply with an individual request or failure to maintain any
(b) Where it is determined that the action was willful or intentional with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United States shall be liable for the actual damages sustained, but in no case less than the sum of $1,000 and the costs of the action with attorney fees.
(c) Criminal penalties may be imposed against an officer or employee of the DSS who fully discloses material, which he knows is prohibited from disclosure, or who willfully maintains a system of records without the notice requirements; or against any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses. These offenses shall be misdemeanors with a fine not to exceed $5,000.
(a)
(b) All systems of records maintained by DSS shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive Order 12958 and which is required by the Executive Order to be withheld in the interest of national defense of foreign policy. This exemption, which may be applicable to parts of all systems of records, is necessary because certain record systems not otherwise specifically designated for exemptions herein may contain items of information that have been properly classified.
(c)
(1) System name: Privacy and Freedom of Information Request Records.
(2) Exemptions: (i) 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 such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
(ii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iii) Investigatory 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 material would reveal the identity of a confidential source.
(iv) Any portion of this system that falls under the provisions of 5 U.S.C. 552a(k)(2), (k)(3), (k)(5) may be exempt from the following subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I); and (f).
(3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), (k)(5).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS to conduct certain investigations and relay law enforcement information without compromise of the information, protection of investigative techniques and efforts employed, and identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise);
(iii) From subsections (d) and (f) because requiring DSS to grant access to records and agency rules for access and amendment of records would unfairly impede the agency's investigation of allegations of unlawful activities. To require DSS to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.
(d)
(1) System name: Investigative Files System
(2) Exemption: (i) 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 such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
(ii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iii) Investigatory 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 material would reveal the identity of a confidential source.
(iv) Any portion of this system that falls under the provisions of 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5) may be exempt from the following subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f).
(3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS to conduct certain investigations and relay law enforcement information without compromise of the information, protection of investigative techniques and efforts employed, and identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant access to records and agency rules for access and amendment of records would unfairly impede the agency's investigation of allegations of unlawful activities. To require DSS to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency
(e)
(1) System name: Defense Clearance and Investigations Index (DCII).
(2) 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 such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source. Any portion of this system that falls under the provisions of 5 U.S.C. 552a(k)(2) may be exempt from the following subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I), and (f).
(3) Authority: 5 U.S.C. 552a(k)(2).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS to conduct certain investigations and relay law enforcement information without compromise of the information, protection of investigative techniques and efforts employed, and identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant access to records and agency rules for access and amendment of records would unfairly impede the agency's investigation of allegations of unlawful activities. To require DSS to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.
(f)
(1) System name: Case Control Management System (CCMS).
(2) Exemption: (i) 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 such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
(ii) Investigatory 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 material would reveal the identity of a confidential source. Any portion of this system that falls under the provisions of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the following subsections of 5 U.S.C. 552a: (c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f).
(3) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
(4) Reasons. (i) From subsection (c)(3) because it will enable DSS to conduct certain investigations and relay law enforcement information without compromise of the information, protection of investigative techniques and efforts employed, and identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will provide protection against notification of investigatory material including certain reciprocal investigations and counterintelligence information, which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence (or prior to the effective date of the Act, under an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant access to records and agency rules for access and amendment of records would unfairly impede the agency's investigation of allegations of unlawful activities. To require DSS to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.
(g)
(1) System name: Counterintelligence Issues Database (CII-DB).
(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
(ii) 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 such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
(iii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iv) Investigatory 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 material would reveal the identity of a confidential source.
(v) Any portion of this system that falls within the provisions of 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5) may be exempt from the following subsections (c)(3); (d)(1) through (d)(5); (e)(1); (e)(4)(G), (H), and (I); and (f).
(3) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5).
(4) Reasons. (i) From subsection (c)(3) because giving the individual access to the disclosure accounting could alert the subject of an investigation to the existence and nature of the investigation and reveal investigative or prosecutive interest by other agencies, particularly in a joint-investigation situation. This would seriously impede or compromise the investigation and case preparation by prematurely revealing its existence and nature; compromise or interfere with witnesses or make witnesses reluctant to cooperate with the investigators; lead to suppression, alteration, fabrication, or destruction of evidence; and endanger the physical safety of confidential sources, witnesses, law enforcement personnel and their families.
(ii) From subsection (d) because the application of these provisions could impede or compromise an investigation or prosecution if the subject of an investigation had access to the records or were able to use such rules to learn of the existence of an investigation before it would be completed. In addition, the mere notice of the fact of an investigation could inform the subject and others that their activities are under or may become the subject of an investigation and could enable the subjects to avoid detection or apprehension, to influence witnesses improperly, to destroy evidence, or to fabricate testimony.
(iii) From subsection (e)(1) because during an investigation it is not always
(iv) From subsections (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) because this system is exempt from subsection (d) of the Act, concerning access to records. These requirements are inapplicable to the extent that these records will be exempt from these subsections. However, DSS has published information concerning its notification and access procedures, and the records source categories because under certain circumstances, DSS could decide it is appropriate for an individual to have access to all or a portion of his/her records in this system of records.
(h)
(1) System name: Joint Personnel Adjudication System (JPAS).
(2) Exemption: (i) Investigatory 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 material would reveal the identity of a confidential source.
(ii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1).
(3) Authority: 5 U.S.C. 552a(k)(5).
(4) Reasons: (i) From subsections (c)(3) and (d) when access to accounting disclosures and access to or amendment of records would cause the identity of a confidential source to be revealed. Disclosure of the source's identity not only will result in the Department breaching the promise of confidentiality made to the source but it will impair the Department's future ability to compile investigatory material for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information. Unless sources can be assured that a promise of confidentiality will be honored, they will be less likely to provide information considered essential to the Department in making the required determinations.
(ii) From subsection (e)(1) because in the collection of information for investigatory purpose, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. It is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations.
(a)
(b)
(c)
(d)
(2) Prior to dissemination to an individual or agency outside DoD of any record about an individual (except for a Freedom of Information Act action or access by a subject individual under these rules) the disclosing DSS official will by review, make a reasonable effort to assure that such record is accurate, complete, timely, fair and relevant to the purpose for which they are maintained.
(e)
(f)
(2) All sources may be advised that the subject of an investigative record may be given access to it, but that the
(g)
(1) Identification information at doorways, building directories, desks, lockers, name tags, etc.
(2) Identification in telephone directories, locator cards and rosters.
(3) Geographical or agency contact cards.
(4) Property receipts and control logs for building passes, credentials, vehicles, weapons, etc.
(5) Temporary personal working notes kept solely by and at the initiative of individual members of DSS to facilitate their duties.
(h)
(i)
(j)
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
(a) This part implements the Privacy Act of 1974 (5 U.S.C. 552a), as amended and the Department of Defense Privacy Program (32 CFR part 310) within the National Security Agency/Central Security Service (NSA/CSS); establishes policy for the collection and disclosure
(b) This part applies to all NSA/CSS elements, field activities and personnel and governs the release or denial of any information under the terms of the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
(a) The National Security Agency/Central Security Service shall maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the Agency, and that is required or authorized to be maintained by statute or Executive Order. Information about an individual shall, to the greatest extent practicable, be collected directly from the individual if the information may result in adverse determinations about the individual's rights, benefits, and privileges under any Federal program. Records used by this Agency in making adverse determinations about an individual shall be maintained with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual. The Agency shall protect the privacy of individuals identified in its records, and shall permit an individual to request access to personal information in records on himself/herself and to request correction or amendment of factual information contained in such records. These policies are consistent with the spirit and intent of the PA, and are subject to exemptions under the Act, as defined in § 322.7, and legal requirements to protect sensitive NSA information such as the intelligence sources and methods the Agency employs to fulfill its mission.
(b) Pursuant to written requests submitted in accordance with the PA, the NSA/CSS shall make records available consistent with the Act and the need to protect government interests pursuant to subsections (d) and (k) of the Privacy Act. Oral requests for information shall not be accepted. Before the Agency responds to a request, the request must comply with the provisions of this part.
(c) In order that members of the public have timely access to unclassified information regarding NSA activities, requests for information that would not be withheld if requested under the FOIA or the PA may be honored through appropriate means without requiring the requester to invoke the FOIA or the PA. Although a record may require minimal redaction before its release, this fact alone shall not require the Agency to direct the requester to submit a formal FOIA or PA request for the record.
(a) The Director's Chief of Staff (DC) is responsible for overseeing the administration of the PA. The Director of Policy (DC3), or the Deputy Director of Policy, if so designated, shall carry out this responsibility on behalf of the Chief of Staff and shall:
(1) Provide policy guidance to NSA/CSS on PA issues.
(2) Provide policy guidance to PA coordinators for processing PA requests from NSA/CSS employees who will be using the records within NSA/CSS spaces.
(3) Provide training of NSA/CSS employees and contractors in the requirements of the PA. Specialized training is provided to special investigators and employees who deal with the news media or the public.
(4) Receive, process, and respond to PA requests from individuals and employees who require the information for use outside of NSA/CSS spaces.
(i) Conduct the appropriate search for and review of records.
(ii) Provide the requester with copies of all releasable material.
(iii) Notify the requester of any adverse determination, including his/her right to appeal an adverse determination to the NSA/CSS Appeal Authority.
(iv) Assure the timeliness of responses.
(5) Receive, process and respond to PA amendment requests to include:
(i) Obtain comments and supporting documentation from the organization originating the record.
(ii) Conduct a review of all documentation relevant to the request.
(iii) Advise the requester of the Agency's decision.
(iv) Notify the requester of any adverse determination, including his/her right to appeal the adverse determination to the NSA/CSS Appeal Authority.
(v) Direct the appropriate Agency organization to amend a record and advise other record holders to amend the record when a decision is made in favor of a requester.
(vi) Assure the timeliness of responses.
(6) Ensure that Agency employees (internal requesters) that have access to NSA/CSS spaces are given access to all or part of a PA record to which the employee was denied by the record holder when, after a review of the circumstances by the Director of Policy, it is determined that access should be granted. For those individuals who do not have access to NSA/CSS spaces see § 322.6 of this part.
(7) Conduct Agency reviews in accordance with OMB Circular A-130
(8) Deposit in the U.S. Treasury all fees collected as a result of charges levied for the duplication of records provided under the PA and maintain the necessary accounting records for such fees.
(b) The NSA/CSS Privacy Act Appeal Authority is designated as the reviewing authority for requests for review of denials by the Director of Policy to provide access to a record and/or to amend a record. The PA Appeal Authority is the Deputy Director, NSA. In the absence of the Deputy Director, the Director's Chief of Staff serves as the Appeal Authority.
(c) The General Counsel (GC) or his designee shall:
(1) Advise on all legal matters concerning the PA.
(2) Advise the Director of Policy and other NSA/CSS organizations, as appropriate, of legal decisions including rulings by the Justice Department and actions by the DoD Privacy Board involving the PA.
(3) Review proposed responses to PA requests to ensure legal sufficiency, as appropriate.
(4) Provide a legal review of proposed Privacy Act notices and amendments for submission to the Defense Privacy Office.
(5) Assist, as required, in the preparation of PA reports for the Department of Defense and other authorities.
(6) Review proposals to collect PA information for legal sufficiency, assist in the development of PA statements and warning statements when required and approve prior to use.
(7) Represent the Agency in all judicial actions related to the PA by providing support to the Department of Justice and by keeping the DoD Office of General Counsel apprised of pending PA litigation. A litigation status sheet will be provided to the Defense Privacy Office.
(8) Assist in the education of new and current employees, including contractors, to the requirements of the PA.
(9) Review PA and PA Amendment appeals, prepare responses, and submit them to the NSA/CSS Appeal Authority for final decision.
(10) Notify the Director of Policy of the outcome of all appeals.
(d) The Associate Director for Human Resources Services or designee shall:
(1) Establish the physical security requirements for the protection of personal information and ensure that such requirements are maintained.
(2) Establish and ensure compliance with procedures governing the pledging of confidentiality to sources of information interviewed in connection with inquiries to determine suitability, eligibility or qualifications for Federal employment, Federal contracts, or access to classified information.
(3) Retain copies of records processed pursuant to the PA. The retention schedule is six years from the date records were provided to the requester if deletions were made and two years if records were provided in their entirety.
(4) Ensure the prompt delivery of all PA requests to the Director of Policy.
(5) Ensure the prompt delivery of all Privacy Act appeals of an adverse determination to the NSA/CSS PA Appeal Authority staff.
(6) Ensure that forms used to collect PA information meet the requirements of the PA.
(7) Compile, when required, estimates of cost incurred in the preparation or modification of forms requiring PA Statements.
(8) Assist in the development of training courses to educate new and current Agency employees, including contractors, of the provisions of the PA.
(9) Respond to PA requests for access to records, as appropriate.
(10) Establish procedures for the protection of personal information and ensure compliance with the procedures.
(e) The Inspector General (IG) shall: (1) Be alert to Privacy Act compliance and to managerial administrative, and operational problems associated with the implementation of this part and document any such problems and remedial actions, if any, in official reports to responsible Agency officials, when appropriate.
(2) Respond, as appropriate, to PA requests.
(3) Establish procedures for the protection of personal records under the control or in the possession of OIG and ensure compliance with the procedures.
(f) Chiefs of Directorates, Associate Directorates, and Field Elements shall: (1) Ensure that no systems or subsets of Systems of Records other than those published in the
(2) Establish rules of conduct for persons who design, use or maintain Systems of Records within their components or field elements and ensure compliance with these rules.
(3) Establish, in consultation with the Associate Director of Human Resources or designee, the physical security requirements for the protection of personal information and ensure that such requirements are maintained.
(4) Ensure that no records are maintained within their components or field elements which describe how any individual exercises rights guaranteed by the First Amendment to the Constitution of the United States unless expressly authorized by statute, or by the individual about whom the record is maintained, or unless pertinent to, and within the scope of, an authorized law enforcement activity.
(5) Ensure that records contained in the Systems of Records within their components or field elements are not disclosed to anyone other than in conformance with the Privacy Act, to include the routine uses for such records published in the
(6) Maintain only such information about an individual as is relevant and necessary to accomplish a purpose of the Agency required to be accomplished by statute and Executive Order.
(7) Maintain all records which are used by the Agency in making any determination about any individual with such accuracy, relevancy, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in any determination.
(8) Establish procedures for protecting the confidentiality of personal records maintained or processed by computer systems and ensure compliance with the procedures.
(9) Designate a primary and alternate PA coordinator to be responsible for PA matters and inform the Office of Policy of the designations. Subordinate PA coordinators may be appointed at office level.
(10) Ensure that the Privacy Act coordinators acquire the necessary training in the theory and administration of the Privacy Act.
(11) Ensure that the Privacy Act coordinators conduct, to the extent practicable, on-the-job PA training of supervisors and records handlers in their organizations.
(12) Respond to PA requests to review records, as appropriate.
(13) Establish procedures for the protection of personal records and ensure compliance with the procedures.
(14) Establish procedures to ensure that requests for copies of PA records needed for external use, outside of NSA/CSS, shall be delivered to the Director of Policy immediately upon receipt once the request is identified as a
(15) Publish, as necessary, internal PA procedures which are consistent with the Privacy Act and this part.
(16) Maintain an accounting of disclosures of records as described in § 322.5 of this part.
(17) Coordinate with the Office of the General Counsel any proposed new record systems or changes (either alterations or amendments) to existing systems. Notice of new record systems or alterations to existing systems must be published in the
(18) Collect and forward to the Director of Policy information necessary to prepare reports, as requested.
(19) Respond promptly to the Director of Policy and the PA Appeal Authority decisions concerning the granting access to records, amending records, or filing statements of disagreements.
(20) Ensure that forms (paper or electronic) used to collect PA information meet the requirements of the PA.
(21) Establish procedures to ensure that requests to conduct computer matching are forwarded to the Director of Policy.
(g) Each field element shall designate a Privacy Act (PA) Coordinator to ensure compliance with this part and to receive and, where appropriate, process PA requests. Section 322.6 of this part describes the procedure for individuals to gain access to records and the responsibilities of the PA Coordinators. Consistent with the provisions of 32 CFR parts 285 and 286 and 32 CFR part 310 special procedures apply to the disclosure of certain medical records and psychological records. Field elements should consult the PA Coordinator of the Office of Occupational Health, Environment and Safety Services before disclosing such information. (
(h) All NSA/CSS organizations and field elements responsible for electronic/paper forms or other methods used to collect personal information from individuals shall determine, with General Counsel's concurrence, which of those forms or methods require Privacy Act Statements and shall prepare the required statements. The Office of Policy requires all organizations or elements using such forms or methods shall ensure that respondents read, understand, and sign the statements before supplying the requested information. In addition, organizations must obtain the Director of Policy and the Office of General Counsel approval prior to the collection of personal information in electronic format.
(a) The Director of Policy, or the Deputy Director of Policy, if so designated, shall provide guidance to Privacy Act Coordinators for processing requests and releasing NSA/CSS information within the confines of the NSA/CSS. If any organization or element believes a request to review a PA record should be denied, it shall advise the requester of the procedures for requesting a review of the circumstances of the case by the Director of Policy.
(b) Persons Authorized Access to NSA/CSS Facilities: (1) Requests from NSA/CSS affiliates with authorized access to NSA/CSS facilities to review and/or obtain a copy of PA records in a Systems of Records for use within NSA/CSS spaces or for the inspection of an accounting of disclosures of the record shall be in writing, using the Privacy Act Information Request form. Requests shall normally be submitted directly to the Privacy Act Coordinator in the office holding the record. In the case of requests for access to records maintained in the individual's own organization, the Privacy Act Coordinator for that organization shall direct the requester to the person or office holding the record. A Privacy Act Information Request form shall be submitted to the holder of each record desired. The Privacy Act Coordinator shall assist supervisors and record handlers in processing the request and shall maintain an accounting for reporting purposes. Individuals shall not be permitted to review or obtain an internal copy of IG, OGC and/or certain security records. The Personnel File, which was available upon request prior to the implementation of the Privacy Act, shall continue to be available for
(2) Requests to obtain a copy of PA records for use outside of NSA/CSS shall be forwarded to the Director of Policy, FOIA/PA Services (DC321) using the Privacy Act Information Request form or in any written format and must contain the individual's full name, signature, social security number, description of the records sought and a work or home phone number. Requests shall be processed pursuant to the Privacy Act and the FOIA.
(c) Persons Not Authorized Access to NSA/CSS Facilities: (1) Requests from individuals who do not have authorized access to NSA/CSS facilities must be in writing, contain the individual's full name, current address, signature, social security number and a description of the records sought. The mailing address for the FOIA/PA office is: National Security Agency, ATTN: FOIA/PA Services (DC321), 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248.
(2) FOIA/PA Services may, at its discretion, require an unsworn declaration or a notarized statement of identity. In accordance with 28 U.S.C. 1746, the language for an unsworn declaration is as follows:
(i) If executed without the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
(ii) If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
(d) General provisions regarding access and processing procedures: (1) The requester need not state a reason or otherwise justify the request. If the requester wishes to be accompanied by another person, the individual may be required to furnish a statement authorizing discussion or disclosure of the records in the presence of the other individual. If the requester wishes another person to obtain the records on his/her behalf, the requester shall provide a written statement appointing that person as his/her representative, authorizing that individual access to the records and affirming that such access shall not constitute an invasion of the requester's privacy or a violation of his/her rights under the Privacy Act. In addition, requests from parents or legal guardians for records on a minor may be accepted providing the individual is acting on behalf of the minor and evidence is provided to support his or her parentage (birth certificate showing requester as a parent) or guardianship (a court order establishing guardianship).
(2) The Director of Policy and FOIA/PA Services (DC321) shall endeavor to respond to a direct request to the NSA/CSS within 20 working days of receipt. In the event the FOIA/PA Services cannot respond within 20 working days due to unusual circumstances, the requester shall be advised of the reason for the delay and negotiate a completion date with the requester. Direct requests to NSA/CSS shall be processed in the order in which they are received. Requests referred to NSA/CSS by other government agencies shall be placed in the processing queue according to the date the requester's letter was received by the referring agency, if that date is known. If it is not known, it shall be placed in the appropriate processing queue according to the date of the requester's letter.
(3) FOIA/PA requests for copies of records shall be worked in chronological order within six queues (“super easy,” “sensitive/personal easy,” “non-personal easy,” “sensitive/personal voluminous,” “non-personal complex,” and “expedite”). The processing queues are defined as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4) Requesters shall be informed immediately if no responsive records are located. Following a search for and retrieval of responsive material, the initial processing team shall determine which queue in which to place the material, based on the criteria above, and shall so advise the requester. If the material requires minimal specialized review (super easy), the initial processing team shall review, redact if required, and provide the non-exempt responsive material to the requester immediately. The appropriate specialized processing team on a first in, first out basis within its queue shall process all other material. These procedures are followed so that a requester will not be required to wait a long period of time to learn that the Agency has no records responsive to his request or to obtain records that require minimal review.
(5) Requests for expeditious processing must include justification and a statement certifying that the information is true and correct to the best of the requester's knowledge. Expedited processing shall be granted if the requester demonstrates a compelling need for the information. Compelling need is defined as the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or there would be an imminent loss of substantial due process rights.
(6) A request for expedited handling shall be responded to within 10 calendar days of receipt. The requester shall be notified whether his/her request meets the criteria for expedited processing within that time frame. If a request for expedited processing has been granted, a substantive response shall be provided within 20 working days of the date of the expedited decision. If a substantive response cannot be provided within 20 working days, a response shall be provided as soon as practicable and the chief of FOIA/PA Services shall attempt to negotiate an acceptable completion date with the requester, taking into account the number of cases preceding it in the expedite queue and the volume or complexity of the responsive material.
(7) Upon receipt of a request, FOIA/PA Services (DC321) shall review the request and direct the appropriate PA coordinator to search for responsive records. If the search locates the requested records, the PA coordinator shall furnish copies of the responsive documents to the FOIA/PA office that in turn shall make a determination as to the releasability of the records. All releasable records, or portions thereof, shall be provided to the requester. However, if information is exempt pursuant to the FOIA and PA, the requester shall be advised of the statutory basis for the denial of the information and the procedure for filing an
(8) The requester shall not be charged a fee for the making of a comprehensible copy to satisfy the request for a copy of the documents. The requester may be charged for duplicate copies of the documents. However, if the direct cost of the duplicate copy is less than $25.00, the fee shall be waived. Duplicating fees shall be assessed according to the following schedule: Office Copy $.15 per page, Microfiche $.25 per page, and Printed Material $.02 per page. All payments shall be made by certified check or money order made payable to the Treasurer of the United States.
(9) A medical/psychological record shall normally be disclosed to the individual to whom it pertains. However, and consistent with 5 U.S.C. 552a(f)(3) of the Privacy Act, if in the judgment of an authorized Agency physician, the release of such information could have an adverse effect on the individual, the individual shall be advised that it is in his best interest to receive the records through a physician of the requester's choice or, in the case of psychological records, through a licensed Psychiatrist or licensed Clinical Psychologist of the requester's choice. NSA/CSS may require certification that the individual is licensed to practice the appropriate specialty. Although the requester shall pay any fees charged by the physician or psychologist, NSA/CSS encourages individuals to take advantage of receiving their records through this means. If, however, the individual wishes to waive receiving the records through this means, the records shall be sent directly to the individual.
(10) Recipients of requests from NSA/CSS employees and affiliates for access to records within the confines of the NSA/CSS campus shall acknowledge the request within 10 working days of receipt, and access should be provided within 20 working days. If, for good cause, access cannot be provided within that time, the requester shall be advised in writing as to the reason and shall be given a date by which it is expected that access can be provided. If an office denies a request for access to a record, or any portion thereof, it shall notify the requester of its refusal and the reasons for it and shall advise the individual of the procedures for requesting a review of the circumstances by the Director of Policy. If the Director of Policy denies a request for access to a record or any portion thereof, the requester shall be notified of the refusal and the reasons the information was denied. The Director of Policy shall also advise the requester of the procedure for appealing to the NSA/CSS Privacy Act Appeal Authority. (
(11) Although classified portions of NSA/CSS records are exempt from disclosure pursuant to exemption (k)(1) of the Privacy Act and exemption (b)(1) of the FOIA, NSA, in its sole discretion, may choose to provide an NSA affiliate access to the classified portions of records about the affiliate if the affiliate possesses the requisite security clearance, special access approvals, and appropriate need-to-know for the classified information at issue. Classified records may only be accessed by fully cleared personnel in NSA/CSS spaces. Disclosure of classified records under this provision shall not operate as a waiver of PA exemption (k)(1), FOIA exemption (b)(1), or of any other exemption or privilege that would otherwise authorize the Agency to withhold the classified records from disclosure. NSA's determination regarding an affiliate's need-to-know is not subject to appeal under this or any other authority. All copies of classified records made available to an NSA affiliate under the procedures of this Part shall carry the following statement: “This classified material is provided to you under the provisions of the Privacy Act of 1974. Furnishing you this material
(12) The procedures described in this part do not entitle an individual to have access to any information compiled in reasonable anticipation of a civil action or proceeding, nor do they require that a record be created.
(13) Requesting or obtaining access to records under false pretenses is a violation of the Privacy Act and is subject to criminal penalties.
(e) Appeal of Denial of an Adverse Determination:(1) Any individual advised of an adverse determination shall be notified of the right to appeal the initial decision within 60 calendar days of the date of the response letter and that the appeal must be addressed to the NSA/CSS FOIA/PA Appeal Authority, National Security Agency, 9800 Savage Road, Suite 6248, Fort George G. Meade, MD 20755-6248. The following actions are considered adverse determinations:
(i) Denial of records or portions of records.
(ii) Inability of NSA/CSS to locate responsive records.
(iii) Denial of a request for expeditious treatment.
(iv) Non-agreement regarding completion date of request.
(v) The appeal shall reference the initial denial of access and shall contain, in sufficient detail and particularity, the grounds upon which the requester believes the appeal should be granted.
(2) The GC or his/her designee shall process appeals and make a recommendation to the Appeal Authority:
(i) Upon receipt of an appeal regarding the denial of information or the inability of the Agency to locate records on an individual, the GC or his/her designee shall provide a legal review of the denial and/or the adequacy of the search for responsive material, and make other recommendations as appropriate.
(ii) If the Appeal Authority determines that additional information may be released, the information shall be made available to the requester within 20 working days from receipt of the appeal. The conditions for responding to an appeal for which expedited treatment is sought by the requester are the same as those for expedited treatment on the initial processing of a request.
(iii) If the Appeal Authority determines that the denial was proper, the requester must be advised 20 days after receipt of the appeal that the appeal is denied. The requester likewise shall be advised of the basis for the denial and the provisions for judicial review of the Agency's appellate determination.
(iv) If a new search for records is conducted and produces additional records, the additional material shall be forwarded to the Director of Policy, as the initial denial authority (IDA), for review. Following review, the Director of Policy shall return the material to the GC with its recommendation for release or withholding. The GC will provide a legal review of the material, and the Appeal Authority shall make the release determination. Upon denial or release of additional information, the Appeal Authority shall advise the requester that more material was located and that the IDA and the Appeal Authority each conducted an independent review of the documents. In the case of denial, the requester shall be advised of the basis of the denial and the right to seek judicial review of the Agency's action.
(v) When a requester appeals the absence of a response to a request within the statutory time limits, the GC shall process the absence of a response as it would denial of access to records. The Appeal authority shall advise the requester of the right to seek judicial review.
(vi) Appeals shall be processed using the same multi-track system as initial requests. If an appeal cannot be responded to within 20 days, the requirement to obtain an extension from the requester is the same as with initial requests. The time to respond to an appeal, however, may be extended by the number of working days (not to exceed 10) that were not used as additional time for responding to the initial request. That is, if the initial request is processed within 20 days so that the
(f) Amendment of Records:
(1) Minor factual errors may be corrected without resort to the Privacy Act or the provisions of this part, provided the requester and record holder agree to that procedure. Whenever possible, a copy of the corrected record should be provided to the requester.
(2) Requests for substantive changes to include deletions, removal of records, and amendment of significant factual information, because the information is incorrect or incomplete, shall be processed under the Privacy Act and the provisions of this part. The PA amendment process is limited to correcting records that are not accurate (factually correct), relevant, timely or complete.
(3) The amendment process is not intended to replace other existing NSA/CSS Agency procedures such as those for registering grievances or appealing performance appraisal ratings. Also, since the amendment process is limited to correcting factual information, it may not be used to challenge official judgments, such as performance ratings, promotion potential, and performance appraisals as well as subjective judgments made by supervisors, which reflect his/her observations and evaluations.
(4) Requests for amendments must be in writing, include the individual's name, signature, a copy of the record under dispute or sufficient identifying particulars to permit timely retrieval of the affected record, a description of the information under dispute and evidence to support the amendment request. The mailing address for the FOIA/PA office is National Security Agency, ATTN: FOIA/PA Services (DC321), 9800 Savage Road, Suite 6248, Fort George G. Meade, MD 20755-6248. Individuals who have access to NSA/CSS spaces may send their request through the internal mail system to DC321.
(5) FOIA/PA Services (DC321) shall acknowledge the amendment request within 10 working days of receipt and respond within 30 working days. The organization/individual who originated the information under dispute shall be given 10 working days to comment. On receipt of a response, FOIA/PA Services (DC321) shall review all documentation and determine if the amendment request shall be granted. If FOIA/PA Services (DC321) agrees with the request, it shall notify the requester and the office holding the record. The latter shall promptly amend the record and notify all holders and recipients of the records of the correction. If the amendment request is denied, the requester shall be advised of the reasons for the denial and the procedures for filing an appeal.
(g) Appeal of Refusals To Amend Records—
(1) If the Director of Policy, as the Initial Denial Authority, refuses to amend any part of a record it shall notify the requester of its refusal, the reasons for the denial and the procedures for requesting a review of the decision by the NSA/CSS Appeal Authority. The Appeal Authority shall render a final decision within 30 working days, except when circumstances necessitate an extension. If an extension is necessary, the requester shall be informed, in writing, of the reasons for the delay and of the approximate date on which the review is expected to be completed. If the NSA/CSS Appeal Authority determines that the record should be amended, the requester, FOIA/PA Services, and the office holding the record will be advised. The latter shall promptly amend the record and notify all recipients.
(2) If the NSA/CSS Privacy Act Appeal Authority denies any part of the request for amendment, the requester shall be advised of the reasons for denial, his or her right to file a concise statement of reasons for disputing the information contained in the record, and his or her right to seek judicial review of the Agency's refusal to amend the record. Statements of disagreement and related notifications and summaries of the Agency's reasons for refusing to amend the record shall be processed in the manner prescribed by 32 CFR part 310.
(h) Disclosures and Accounting of Disclosures.
(1) No record contained in a System of Records maintained within the Department of Defense shall be disclosed by any means of communication to any person, or to any agency outside the Department of Defense, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record will be:
(i) To those officials and employees of the Agency who have a need for the record in the performance of their duties and the use is compatible with the purpose for which the record is maintained.
(ii) Required to be disclosed under the Freedom of Information Act, as amended.
(iii) For a routine use as described in NSA/CSS systems of records notices. The DoD “Blanket Routine Uses” may also apply to NSA/CSS systems of records. (
(iv) To the Bureau of the Census for the purpose of planning or carrying out a census or survey or related activity authorized by law.
(v) To a recipient who has provided the Department of Defense or the Agency with advance, adequate written assurance that:
(A) The record will be used solely as a statistical research or reporting record;
(B) The record is to be transferred in a form that is not individually identifiable (
(C) The record will not be used to make any decisions about the rights, benefits, or entitlements of an individual.
(vi) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value. A record transferred to a Federal records center for safekeeping or storage does not fall within this category since Federal records center personnel act on behalf of the Department of Defense in this instance and the records remain under the control of the NSA/CSS. No disclosure accounting record of the transfer of records to Federal records center need be maintained.
(vii) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the NSA/CSS specifying the particular portion and the law enforcement activity for which the record is sought. Blanket requests for all records pertaining to an individual will not be accepted. A record may also be disclosed to a law enforcement agency at the initiative of the NSA/CSS when criminal conduct is suspected, provided that such disclosure has been established in advance as a “routine use.”
(viii) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of the individual to whom the record pertains.
(ix) To Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, or any joint committee of Congress or subcommittee of any such joint committee. This does not authorize the disclosure of any record subject to this part to members of Congress acting in their individual capacities or on behalf of their constituents, unless the individual consents.
(x) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office.
(xi) Pursuant to an order of a court of competent jurisdiction.
(A) When a record is disclosed under compulsory legal process and when the issuance of that order or subpoena is made public by the court that issued it, efforts shall be made to notify the individual to whom the record pertains. This may be accomplished by notifying the individual by mail at his most recent address as contained in the Component's records.
(B) Upon being served with an order to disclose a record, the General Counsel shall endeavor to determine whether the issuance of the order is a matter of public record and, if it is not, seek to be advised when it becomes public. An accounting of the disclosure shall be made at the time the NSA/CSS complies with the order or subpoena.
(xii) To a consumer reporting agency in accordance with section 3711(f) of Title 31.
(2) Except for disclosures made in accordance with paragraphs (h)(1)(i) and (ii) of this section, an accurate accounting of disclosures shall be kept by the record holder in consultation with the Privacy Act Coordinator.
(i) The accounting shall include the date, nature, and purpose of each disclosure of a record to any person or to another agency; and the name and address of the person or agency to whom the disclosure is made. There need not be a notation on a single document of every disclosure of a particular record, provided the record holder can construct from its System the required accounting information:
(A) When required by the individual;
(B) When necessary to inform previous recipients of any amended records, or
(C) When providing a cross reference to the justification or basis upon which the disclosure was made (including any written documentation as required in the case of the release of records for statistical or law enforcement purposes).
(ii) The accounting shall be retained for at least five years after the last disclosure, or for the life of the record, whichever is longer. No record of the disclosure of this accounting need be maintained.
(iii) Except for disclosures made under paragraph (h)(1)(vii) of this section, the accounting of disclosures shall be made available to the individual to whom the record pertains. The individual shall submit a Privacy Act Information Request form to the Privacy Act Coordinator in the office keeping the accounting of disclosures.
(3) Disclosures made under circumstances not delineated in paragraphs (h)(1)(i) through (xii) of this section shall only be made after written permission of the individual involved has been obtained. Written permission shall be recorded on or appended to the document transmitting the personal information to the other agency, in which case no separate accounting of the disclosure need be made. Written permission is required in each separate case;
(4) An individual's name and address may not be sold or rented unless such action is specifically authorized by law. This provision shall not be construed to require withholding of names and addresses otherwise permitted to be made public. Lists or compilations of names and home addresses, or single home addresses will not be disclosed, without the consent of the individual involved, to the public, including, but not limited to individual Congressmen, creditors, and commercial and financial institutions. Requests for home addresses may be referred to the last known address of the individual for reply at his discretion and the requester will be notified accordingly.
(a) Neither general nor specific exemptions are established automatically for any system of records. The head of the DoD Component maintaining the system of records must make a determination whether the system is one for which an exemption properly may be claimed and then propose and establish an exemption rule for the system. No system of records within the Department of Defense shall be considered exempted until the head of the Component has approved the exemption and an exemption rule has been published as a final rule in the
(b) No system of records within NSA/CSS shall be considered exempt under subsection (j) or (k) of the Privacy Act until the exemption rule for the system of records has been published as a final rule in the
(c) An individual is not entitled to have access to any information compiled in reasonable anticipation of a civil action or proceeding (5 U.S.C. 552a(d)(5)).
(d) Proposals to exempt a system of records will be forwarded to the Defense Privacy Office, consistent with the requirements of 32 CFR part 310, for review and action.
(e) Consistent with the legislative purpose of the Privacy Act of 1974, NSA/CSS will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NSA/CSS'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.
(f) Do not use an exemption to deny an individual access to any record to which he or she would have access under the Freedom of Information Act (5 U.S.C. 552).
(g) Disclosure of records pertaining to personnel, or the functions and activities of the National Security Agency shall be prohibited to the extent authorized by Pub. L. No. 86-36 (1959) and 10 U.S.C. 424.
(h) Exemptions NSA/CSS may claim.
(1)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(a) All systems of records maintained by the NSA/CSS and its components shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive Order 12958 and that is required by Executive Order to be kept secret in the interest of national defense or foreign policy. This exemption is applicable to parts of all systems of records including those not otherwise specifically designated for exemptions herein, which contain isolated items of properly classified information.
(b) GNSA 01.
(1)
(2)
(ii) Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1).
(3)
(4)
(ii) From (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. In some cases, it is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations.
(c) GNSA 02.
(1)
(2)
(ii) Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1).
(3)
(4)
(ii) From (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity
(d) GNSA 03.
(1)
(2)
(ii) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).
(iii) Investigatory 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 material would reveal the identity of a confidential source.
(iv) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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
(e) GNSA 04.
(1)
(2)
(ii) Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1).
(3)
(4)
(ii) From (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. In some cases, it is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations.
(f) GNSA 05.
(1)
(2)
(ii) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).
(iii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2) and (k)(4) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(g) GNSA 06.
(1)
(2)
(ii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
(iii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(h) GNSA 08.
(1)
(2)
(ii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(i) GNSA 09.
(1)
(2)
(ii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
(iii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(j) GNSA 10.
(1)
(2)
(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment,
(iii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
(iv) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2), (k)(5), and (k)(6) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(k) GNSA 12.
(1)
(2)
(ii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
(iii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(l) GNSA 13.
(1)
(2)
(ii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(4) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the early stages of an investigation. In some cases, it is only
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(m) GNSA 14.
(1)
(2)
(ii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(4) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(n) GNSA 15.
(1)
(2)
(ii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(o) GNSA 17.
(1)
(2)
(ii) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).
(iii) Investigatory material compiled solely for the purpose of determining
(iv) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(p) GNSA 18.
(1)
(2)
(ii) Investigatory 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 material would reveal the identity of a confidential source.
(iii) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the provisions of 5 U.S.C.
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments and corrections to the information in the system.
(v) 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. NSA will, nevertheless, continue to publish such a notice in broad generic terms, as is its current practice.
(q) GNSA 20.
(1)
(2)
(ii) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).
(iii) Investigatory 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 material would reveal the identity of a confidential source.
(iv) All portions of this system of records which fall within the scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) 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).
(v) 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.
Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 U.S.C. 552a).
This part 323 implements the Privacy Act of 1974 (5 U.S.C. 552a) and DoD Directive and DoD Regulation 5400.11, Department of Defense Privacy Program (32 CFR part 286a). It applies to Headquarters, Defense Logistics Agency (HQ DLA) and all DLA field activities.
It is the policy of DLA to safeguard personal information contained in any system of records maintained by DLA activities and to make that information available to the individual to whom it pertains to the maximum extent practicable. DLA policy specifically requires that DLA activities:
(a) Collect, maintain, use, and disseminate personal information only when it is relevant and necessary to achieve a purpose required by statute or Executive Order.
(b) Collect personal information directly from the individuals to whom it pertains to the greatest extent practical.
(c) Inform individuals who are asked to supply personal information for inclusion in any system of records:
(1) The authority for the solicitation.
(2) Whether furnishing the information is mandatory or voluntary.
(3) The intended uses of the information.
(4) The routine disclosures of the information that may be made outside DoD.
(5) The effect on the individual of not providing all of any part of the requested information.
(d) Ensure that all records used in making determinations about individuals are accurate, relevant, timely, and complete.
(e) Make reasonable efforts to ensure that records containing personal information are accurate, relevant, timely, and complete for the purposes for which they are being maintained before making them available to any recipients outside DoD, other than a Federal agency, unless the disclosure is made under DLAR 5400.14, DLA Freedom of Information Act Program (32 CFR part 1285).
(f) Keep no record that describes how individuals exercise their rights guaranteed by the First Amendment of the U.S. Constitution, unless expressly authorized by statute or by the individual to whom the records pertain or is pertinent to and within the scope of an authorized law enforcement activity.
(g) Make reasonable efforts, when appropriate, to notify individuals whenever records pertaining to them are made available under compulsory legal process, if such process is a matter of public record.
(h) Establish safeguards to ensure the security of personal information and to protect this information from threats or hazards that might result in substantial harm, embarrassment, inconvenience, or unfairness to the individual.
(i) Establish rules of conduct for DoD personnel involved in the design, development, operation, or maintenance of any system of records and train them in these rules of conduct.
(j) Assist individuals in determining what records pertaining to them are being collected, maintained, used, or disseminated.
(k) Permit individual access to the information pertaining to them maintained in any system of records, and to correct or amend that information, unless an exemption for the system has been properly established for an important public purpose.
(l) Provide, on request, an accounting of all disclosures of the information pertaining to them except when disclosures are made:
(1) To DoD personnel in the course of their official duties.
(2) Under 32 CFR part 1285 (DLAR 5400.14).
(m) Advise individuals on their rights to appeal any refusal to grant access to or amend any record pertaining to them, and to file a statement of disagreement with the record in the event amendment is refused.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(a) Headquarters Defense Logistics Agency.
(1) The Staff Director, Corporate Communications, DLA Support Services (DSS-C) will:
(i) Formulate policies, procedures, and standards necessary for uniform compliance with the Privacy Act by DLA activities.
(ii) Serve as the DLA Privacy Act Officer and DLA representative on the Defense Privacy Board.
(iii) Maintain a master registry of system notices published by DLA.
(iv) Develop or compile the rules, notices, and reports required under this part.
(v) Establish training programs for all individuals with public affairs duties, and all other personnel whose duties require access to or contact with systems of records affected by the Privacy Act. Initial training will be given to new employees and military members upon assignment. Refresher training will be provided annually or more frequently if conditions warrant.
(2) The General Counsel, DLA (DLA-GC) will:
(i) Serve as the appellate authority for denials of individual access and amendment of records.
(ii) Provide representation to the Defense Privacy Board Legal Committee.
(iii) Advise the Defense Privacy Office on the status of DLA privacy litigation.
(3) The DLA Chief Information Office (J-6) will formulate and implement protective standards for personal information maintained in automated data processing systems and facilities.
(b) The Heads of DLA Primary Level Field Activities (PLFAs) will:
(1) Ensure that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a manner that assures that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(2) Designate a Privacy Act Officer to serve as the principal point of contact on privacy matters.
(3) Ensure the internal operating procedures provide for effective compliance with the Privacy Act.
(4) Establish training programs for all individuals with public affairs duties, and all other personnel whose duties require access to or contact with systems of records affected by the Privacy Act. Initial training will be given to new employees and military members upon assignment. Refresher training will be provided annually or more frequently if conditions warrant.
(a)
(2) Individuals will address requests for access to personal information about themselves in a system of records to the system manager or to the office designated in the system notice. Before being granted access to personal data, an individual may be required to provide reasonable verification of his or her identity. Identity verification procedures will be simple so as not to discourage individuals from seeking access to information about themselves; or be required of an individual seeking access to records which normally would be available under 32 CFR part 1285 (DLAR 5400.14).
(i) Normally, when individuals seek personal access to records pertaining to themselves, identification will be made from documents that normally are readily available, such as employee and military identification cards, driver's license, other licenses, permits, or passes used for routine identification purposes.
(ii) When access is requested by mail, identity verification may consist of the individual providing certain minimum identifying data, such as full name, date and place of birth, or such other personal information necessary to locate the record sought. If the information sought is sensitive, additional identifying data may be required. If notarization of requests is required, procedures will be established for an alternate method of verification for individuals who do not have access to notary services, such as military members overseas.
(3) If an individual wishes to be accompanied by a third party when seeking access to his or her records or to have the records released directly to a third party, the individual may be required to furnish a signed access authorization granting the third party access. An individual will not be refused access to his or her record solely for failure to divulge his or her social security number (SSN) unless it is the only method by which retrieval can be made. The individual is not required to explain or justify his or her need for access to any record under this part.
(4) Disclose medical records to the individual to whom they pertain, even if a minor, unless a judgment is made that access to such records could have an adverse effect on the mental or physical health of the individual. Normally, this determination will be made in consultation with a medical doctor. If it is determined that the release of the medical information may be harmful to the mental or physical health of
(5) Requests by individuals for access to investigatory records pertaining to themselves and compiled for law enforcement purposes are processed under this part or 32 CFR part 1285 depending on which part gives them the greatest degree of access.
(6) Certain documents under the physical control of DoD personnel and used to assist them in performing official functions, are not considered “agency records” within the meaning of this part. Uncirculated personal notes and records that are not disseminated or circulated to any person or organization (for example, personal telephone lists or memory aids) that are retained or discarded at the author's discretion and over which DLA exercises no direct control, are not considered agency records. However, if personnel are officially directed or encouraged, either in writing or orally, to maintain such records, they may become “agency records,” and may be subject to the Privacy Act of 1974 (5 U.S.C. 552a) and this part.
(7) Acknowledge requests for access within 10 working days after receipt and provide access within 30 working days.
(b)
(2) An individual may be refused access if the record is not described well enough to enable it to be located with a reasonable amount of effort on the part of an employee familiar with the file; or access is sought by an individual who fails or refuses to comply with the established procedural requirements, including refusing to name a physician to receive medical records when required or to pay fees. Always explain to the individual the specific reason access has been refused and how he or she may obtain access.
(3) Formal denials of access must be in writing and include as a minimum:
(i) The name, title or position, and signature of the appropriate Head of the HQ DLA principal staff element or primary level field activity.
(ii) The date of the denial.
(iii) The specific reason for the denial, including specific citation to the appropriate sections of the Privacy Act of 1974 (5 U.S.C. 552a) or other statutes, this part, or DLAR 5400.21 authorizing the denial.
(iv) Notice to the individual of his or her right to appeal the denial within 60 calendar days of the date of the denial letter and to file any such appeal with the HQ DLA Privacy Act Officer, Defense Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
(4) DLA will process all appeals within 30 days of receipt unless a fair an equitable review cannot be made within that period. The written appeal notification granting or denying access is the final DLA action on access.
(5) The records in all systems of records maintained in accordance with the Office of Personnel Management (OPM) Government-wide system notices are technically only in the temporary custody of DLA. All requests for access to these records must be processed in accordance with the Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) as well as this part. DLA-GC is responsible for the appellate review of denial of access to such records.
(c)
(2) The applicant must adequately support his or her claim and may be required to provide identification to ensure that they are indeed seeking to amend a record pertaining to themselves and not, inadvertently or intentionally, the record of others. Consider the following factors when evaluating the sufficiency of a request to amend:
(i) The accuracy of the information itself.
(ii) The relevancy, timeliness, completeness, and necessity of the recorded information for accomplishing an assigned mission or purpose.
(3) Provide written acknowledgement of a request to amend within 10 working days of its receipt by the appropriate systems manager. There is no need to acknowledge a request if the action is completed within 10 working days and the individual is so informed. The letter of acknowledgement shall clearly identify the request and advise the individual when he or she may expect to be notified of the completed action. Only under the most exceptional circumstances will more than 30 days be required to reach a decision on a request to amend.
(4) If the decision is made to grant all or part of the request for amendment, amend the record accordingly and notify the requester. Notify all previous recipients of the information, as reflected in the disclosure accounting records, that an amendment has been made and the substance of the amendment. Recipients who are known to be no longer retaining the information need not be advised of the amendment. All DoD Components and Federal agencies known to be retaining the record or information, even if not reflected in disclosure records, will be notified of the amendment. Advise the requester of these notifications, and honor all requests by the requester to notify specific Federal agencies of the amendment action.
(5) If the request for amendment is denied in whole or in part, promptly advise the individual in writing of the decision to include:
(i) The specific reason and authority for not amending.
(ii) Notification that he or she may seek further independent review of the decision by filing an appeal with the HQ DLA Privacy Act Officer, Defense Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221, and including all supporting materials.
(6) DLA will process all appeals within 30 days unless a fair review cannot be made within this time limit.
(i) If the appeal is granted, DLA will promptly notify the requester and system manager of the decision. The system manager will amend the record(s) as directed and ensure that all prior known recipients of the records who are known to be retaining the record are notified of the decision and the specific nature of the amendment and that the requester is notified as to which DoD Components and Federal agencies have been told of the amendment.
(ii) If the appeal is denied completely or in part, the individual is notified in writing by the reviewing official that:
(A) The appeal has been denied and the specific reason and authority for the denial.
(B) The individual may file a statement of disagreement with the appropriate authority and the procedures for filing this statement.
(C) If filed properly, the statement of disagreement shall be included in the records, furnished to all future recipients of the records, and provided to all prior recipients of the disputed records who are known to hold the record.
(D) The individual may seek a judicial review of the decision not to amend.
(7) The records in all systems of records controlled by the Office of Personnel Management (OPM) Government-wide system notices are technically only temporarily in the custody of DLA. All requests for amendment of these records must be processed in accordance with the Federal Personnel Manual (FPM). A DLA denial authority may deny a request. However, the appeal process for all such denials must include a review by the Assistant Director for Agency Compliance and Evaluation, Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415. When an appeal is received from a DLA denial of amendment of the OPM controlled record, process the appeal in accordance with the FPM and notify the OPM appeal authority listed above. The individual may appeal any DLA decision not to amend the OPM records directly to OPM. OPM is the final review authority for any appeal from a denial to amend the OPM records.
(8) If the reviewing authority refuses to amend the record as requested, the individual may submit a concise statement of disagreement setting forth his or her reasons for disagreeing with the decision not to amend.
(i) If an individual chooses to file a statement of disagreement, annotate the record to indicate that the statement has been filed. Furnish copies of the statement of disagreement to all DoD Components and Federal agencies that have been provided copies of the disputed information and who may be maintaining the information.
(ii) When possible, incorporate the statement of disagreement into the record. If the statement cannot be made a part of the record, establish procedures to ensure that it is apparent from the records that a statement of disagreement has been filed and maintain the statement so that it can be obtained readily when the disputed information is used or disclosed. Automated record systems that are not programmed to accept statements of disagreement shall be annotated or coded so that they clearly indicate that a statement of disagreement is on file, and clearly identify the statement with the disputed information in the system. Provide a copy of the statement of disagreement whenever the disputed information is disclosed for any purpose.
(9) A summary of reasons for refusing to amend may be included with any record for which a statement of disagreement is filed. Include in this summary only the reasons furnished to the individual for not amending the record. Do not include comments on the statement of disagreement. Normally, the summary and statement of disagreement are filed together. When disclosing information for which a summary has been filed, a copy of the summary may be included in the release, if desired.
(d)
(1) The following items relating to an amendment request may be included in the disputed record system:
(i) Copies of the amended record.
(ii) Copies of the individual's statement of disagreement.
(iii) Copies of activity summaries.
(iv) Supporting documentation submitted by the individual.
(2) The following items relating to an access request may be included in the basic records system:
(i) Copies of the request.
(ii) Copies of the activity action granting total access. (Note: A separate Privacy Case File need not be created in such cases.)
(iii) Copies of the activity action denying access.
(iv) Copies of any appeals filed.
(v) Copies of the reply to the appeal.
(e)
(1) Copying is performed for the convenience of the Government or is the only means to make the record available to the individual.
(2) The record may be obtained without charge under any other part, directive, or statute.
(3) Providing documents to members of Congress for copying records furnished even when the records are requested under the Privacy Act on behalf of a constituent.
(f)
(2) Except for releases made in accordance with DLAR 5400.14, (32 CFR part 1285) before disclosing any personal information to any recipient outside DoD other than a Federal agency or the individual to whom it pertains;
(i) Ensure that the records are accurate, timely, complete, and relevant for agency purposes.
(ii) Contact the individual, if reasonably available, to verify the accuracy, timeliness, completeness, and relevancy of the information, if this cannot be determined from the record.
(iii) If the information is not current and the individual is not reasonably available, advise the recipient that the information is believed accurate as of a specific date and any other known factors bearing on its accuracy and relevancy.
(3) All records must be disclosed if their release is required by the Freedom of Information Act. DLAR 5400.14, (32 CFR part 1285) requires that records be made available to the public unless exempted from disclosure by one of the nine exemptions found in the Freedom of Information Act. The standard for exempting most personal records, such as personnel records, medical records, and similar records, is found in DLAR 5400.14 (32 CFR part 1285). Under the exemption, release of personal information can only be denied when its release would be a `clearly unwarranted invasion of personal privacy.'
(i) All disclosures of personal information regarding Federal civilian employees will be made in accordance with the Federal Personnel Manual. Some examples of personal information regarding DoD civilian employees that normally may be released without a clearly unwarranted invasion of personal privacy include:
(A) Name.
(B) Present and past position titles.
(C) Present and past grades.
(D) Present and past salaries.
(E) Present and past duty stations.
(F) Office and duty telephone numbers.
(ii) All release of personal information regarding military members shall be made in accordance with the standards established by DLAR 5400.14, (32 CFR part 1285). While it is not possible to identify categorically information that must be released or withheld from military personnel records in every instance, the following items of personal
(A) Full name.
(B) Rank.
(C) Date of rank.
(D) Gross salary.
(E) Past duty assignments.
(F) Present duty assignment.
(G) Future assignments that are officially established.
(H) Office or duty telephone numbers.
(I) Source of commission.
(J) Promotion sequence number.
(K) Awards and decorations.
(L) Attendance at professional military schools.
(M) Duty status at any given time.
(iii) All releases of personal information regarding civilian personnel not subject to the FPM shall be made in accordance with the standards established by DLAR 5400.14 (32 CFR part 1285). While it is not possible to identify categorically those items of personal information that must be released regarding civilian employees not subject to the FPM, such as nonappropriated fund employees, normally the following items may be released without a clearly unwarranted invasion of personal privacy:
(A) Full name.
(B) Grade or position.
(C) Date of grade.
(D) Gross salary.
(E) Present and past assignments.
(F) Future assignments, if officially established.
(G) Office or duty telephone numbers.
(4) A request for a home address or telephone number may be referred to the last known address of the individual for a direct reply by him or her to the requester. In such cases the requester will be notified of the referral. The release of home addresses and home telephone numbers normally is considered a clearly unwarranted invasion of personal privacy and is prohibited. However, these may be released without prior specific consent of the individual if:
(i) The individual has indicated previously that he or she has no objection to their release.
(ii) The source of the information to be released is a public document such as commercial telephone directory or other public listing.
(iii) The release is required by Federal statute (for example, pursuant to Federally-funded state programs to locate parents who have defaulted on child support payments (42 U.S.C. section 653).)
(iv) The releasing official releases the information under the provisions of DLAR 5400.14, (32 CFR part 1285).
(5) Records may be disclosed outside DoD without consent of the individual to whom they pertain for an established routine use. Routine uses may be established, discontinued, or amended without the consent of the individuals involved. However, new or changed routine uses must be published in the
(6) Records in DLA systems of records may be disclosed without the consent of the individuals to whom they pertain to the Bureau of the Census for purposes of planning or carrying out a census survey or related activities.
(7) Records may be disclosed for statistical research and reporting without the consent of the individuals to whom they pertain. Before such disclosures, the recipient must provide advance written assurance that the records will be used as statistical research or reporting records; the records will only be transferred in a form that is not individually identifiable; and the records will not be used, in whole or in part, to make any determination about the rights, benefits, or entitlements of specific individuals. A disclosure accounting is not required.
(8) Records may be disclosed without the consent of the individual to whom they pertain to the National Archives and Records Administration (NARA) if they have historical or other value to warrant continued preservation; or for evaluation by NARA to determine if a record has such historical or other value. Records transferred to a Federal Record Center (FRC) for safekeeping and storage do not fall within this category. These remain under the control of the transferring activity, and the FRC personnel are considered agents of the activity which retain control over the records. No disclosure accounting is required for the transfer of records to FRCs.
(9) Records may be disclosed without the consent of the individual to whom they pertain to another agency or an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity, provided the civil or criminal law enforcement activity is authorized by law; the head of the law enforcement acitivity or a designee has made a written request specifying the particular records desired and the law enforcement purpose (such as criminal investigations, enforcement of civil law, or a similar propose) for which the record is sought; and there is no Federal statute that prohibits the disclosure of the records. Normally, blanket requests for access to any and all records pertaining to an individual are not honored. When a record is released to a law enforcement activity, maintain a disclosure accounting. This disclosure accounting will not be made available to the individual to whom the record pertains if the law enforcement activity requests that the disclosure not be released.
(10) Records may be disclosed without the consent of the individual to whom they pertain if disclosure is made under compelling circumstances affecting the health or safety of any individual. The affected individual need not be the subject of the record disclosed. When such a disclosure is made, notify the individual who is the subject of the record. Notification sent to the last known address of the individual as reflected in the records is sufficient.
(11) Records may be disclosed without the consent of the individual to whom they pertain to either House of the Congress or to any committee, joint committee or subcommittee of Congress if the release pertains to a matter within the jurisdiction of the committee. Records may also be disclosed to the General Accounting Office (GAO) in the course of the activities of GAO.
(12) Records may be disclosed without the consent of the person to whom they pertain under a court order signed by a judge of a court of competent jurisdiction. Releases may also be made under the compulsory legal process of Federal or state bodies having authority to issue such process.
(i) When a record is disclosed under this provision, make reasonable efforts to notify the individual to whom the record pertains, if the legal process is a matter of public record.
(ii) If the process is not a matter of public record at the time it is issued, seek to be advised when the process is made public and make reasonable efforts to notify the individual at that time.
(iii) Notification sent to the last known address of the individual as reflected in the records is considered reasonable effort to notify. Make a disclosure accounting each time a record is disclosed under a court order or compulsory legal process.
(13) Certain personal information may be disclosed to consumer reporting agencies as defined by the Federal Claims Collection Act. Information which may be disclosed to a consumer reporting agency includes:
(i) Name, address, taxpayer identification number (SSN), and other information necessary to establish the identity of the individual.
(ii) The amount, status, and history of the claim.
(iii) The agency or program under which the claim arose.
(g)
(2) Use any system of disclosure accounting that will provide the necessary disclosure information. As a minimum, disclosure accounting will contain the date of the disclosure, a description of the information released, the purpose of the disclosure, the name and address of the person or agency to whom the disclosure was made. When numerous similar records are released (such as transmittal of payroll checks to a bank), identify the category of records disclosed and include the data required in some form that can be used to construct an accounting disclosure record for individual records if required. Retain disclosure accounting records for 5 years after the disclosure or the life of the record, whichever is longer.
(3) Make available to the individual to whom the record pertains all disclosure accountings except when the disclosure has been made to a law enforcement activity and the law enforcement activity has requested that disclosure not be made, or the system of records has been exempted from the requirement to furnish the disclosure accounting. If disclosure accountings are not maintained with the record and the individual requests access to the accounting, prepare a listing of all disclosures and provide this to the individual upon request.
(h)
(2) When an individual is requested to furnish personal information about himself or herself for inclusion in a system of records, a Privacy Act Statement is required regardless of the medium used to collect the information (forms, personal interviews, stylized formats, telephonic interviews, or other methods). The statement enables the individual to make an informed decision whether to provide the information requested. If the personal information solicited is not to be incorporated into a system of records, the statement need not be given. The Privacy Act Statement shall be concise, current, and easily understood. It must include:
(i) The specific Federal statute or Executive Order that authorizes collection of the requested information.
(ii) The principal purpose or purposes for which the information is to be used.
(iii) The routine uses that will be made of the information.
(iv) Whether providing the information is voluntary or mandatory.
(v) The effects on the individual if he or she chooses not to provide the requested information.
(3) The Privacy Act Statement may appear as a public notice (sign or poster), conspicuously displayed in the area where the information is collected, such as at check-cashing facilities or identification photograph facilities. The individual normally is not required to sign the Privacy Act Statement. Provide the individual a written copy of the Privacy Act Statement upon request. This must be done regardless of the method chosen to furnish the initial advisement.
(4) Include in the Privacy Act Statement specifically whether furnishing the requested personal data is mandatory or voluntary. A requirement to furnish personal data is mandatory only when a Federal statute, Executive order, regulation, or other lawful order specifically imposes a duty on the individual to provide the information sought, and the individual is subject to a penalty if he or she fails to provide the requested information. If providing the information is only a condition of a prerequisite to granting a benefit or privilege and the individual has the option of requesting the benefit or privilege, providing the information is always voluntary. However, the loss or denial of the privilege, benefit, or entitlement sought may be listed as a consequence of not furnishing the requested information.
(5) It is unlawful for any Federal, state, or local government agency to deny an individual any right, benefit, or privilege provided by law because the individual refuses to provide his or
(i) When an individual is requested to provide his or her SSN, he or she must be told:
(A) The uses that will be made of the SSN.
(B) The statute, regulation, or rule authorizing the solicitation of the SSN.
(C) Whether providing the SSN is voluntary or mandatory.
(ii) Include in any systems notice for any system of records that contains SSNs a statement indicating the authority for maintaining the SSN and the source of the SSNs in the system. If the SSN is obtained directly from the individual indicate whether this is voluntary or mandatory.
(iii) Upon entrance into Military Service of civilian employment with DoD, individuals are asked to provide their SSNs. The SSN becomes the service or employment number for the individual and is used to establish personnel, financial, medical, and other official records. After an individual has provided his or her SSN for the purpose of establishing a record, a Privacy Act Statement is not required if the individual is only requested to furnish or verify the SSNs for identification purposes in connection with the normal use of his or her records. However, if the SSN is to be written down and retained for any purpose by the requesting official, the individual must be provided a Privacy Act Statement.
(6) DLAI 5530.1, Publications, Forms, Printing, Duplicating, Micropublishing, Office Copying, and Automated Information Management Programs,
(i)
(2) Retain in a system of records only that personal information which is relevant and necessary to accomplish a purpose required by a Federal statute or an Executive Order. The existence of a statute or Executive order mandating that maintenance of a system of records does not abrogate the responsibility to ensure that the information in the system of records is relevant and necessary.
(3) Do not maintain any records describing how an individual exercises his or her rights guaranteed by the First Amendment of the U.S. Constitution unless expressly authorized by Federal statute or the individual. First Amendment rights include, but are not limited to, freedom of religion, freedom of political beliefs, freedom of speech, freedom of the press, the right to assemble, and the right to petition.
(4) Maintain all personal information used to make any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure
(5) Establish appropriate administrative, technical and physical safeguards to ensure that the records in every system of records are protected from unauthorized alteration or disclosure and that their confidentiality is protected. Protect the records against reasonably anticipated threats or hazards. Tailor safeguards specifically to the vulnerabilities of the system and the type of records in the system, the sensitivity of the personal information stored, the storage medium used and, to a degree, the number of records maintained.
(i) Treat all unclassified records that contain personal information that normally would be withheld from the public as if they were designated “For Official Use Only” and safeguard them in accordance with the standards established by DLAR 5400.14 (32 CFR part 1285) even if they are not marked “For Official Use Only.”
(ii) Special administrative, physical, and technical procedures are required to protect data that are stored or being processed temporarily in an automated data processing (ADP) system or in a word processing activity to protect it against threats unique to those environments (see DLAR 5200.17, Security Requirements for Automated Information and Telecommunications Systems,
(6) Dispose of records containing personal data so as to prevent inadvertent compromise. Disposal methods such as tearing, burning, melting, chemical decomposition, pulping, pulverizing, shredding, or mutilation are considered adequate if the personal data is rendered unrecognizable or beyond reconstruction.
(i) The transfer of large quantities of records containing personal data (for example, computer cards and printouts) in bulk to a disposal activity, such as the Defense Property Disposal Office, is not a release of personal information under this part. The sheer volume of such transfers makes it difficult or impossible to identify readily specific individual records.
(ii) When disposing of or destroying large quantities of records containing personal information, care must be exercised to ensure that the bulk of the records is maintained so as prevent specific records from being readily identified. If bulk is maintained, no special procedures are required.
(7) When DLA contracts for the operation or maintenance of a system of records or a portion of a system of records by a contractor, the record system or the portion of the record system affected are considered to be maintained by DLA and are subject to this part. The activity concerned is responsible for applying the requirements of this part to the contractor. The contractor and its employees are to be considered employees of DLA for purposes of the sanction provisions of the Privacy Act during the performance of the contract. See the Federal Acquisition Regulation (FAR), section 24.000 (48 CFR chapter 1).
(j)
(i) The system notice describes the contents of the record system and the routine uses for which the information in the system may be released.
(ii) The public be given 30 days to comment on any proposed routine uses before implementation.
(iii) The notice contains the date on which the system will become effective.
(2) Appendix A of this part discusses the specific elements required in a system notice. DLAH 5400.1
(3) In addition to system notices, reports are required for new and altered systems of records. The criteria of these reports are outlined in appendixes B and C of this part. No report is required for amendments to existing systems which do not meet the criteria for altered record systems.
(4) System managers shall evaluate the information to be included in each new system before establishing the system and evaluate periodically the information contained in each existing system of records for relevancy and necessity. Such a review will also occur when a system notice amendment or alteration is prepared. Consider the following:
(i) The relationship of each item of information retained and collected to the purpose for which the system is maintained.
(ii) The specific impact on the purpose or mission of not collecting each category of information contained in the system.
(iii) The possibility of meeting the informational requirements through use of information not individually identifiable or through other techniques, such as sampling.
(iv) The length of time each item of personal information must be retained.
(v) The cost of maintaining the information.
(vi) The necessity and relevancy of the information to the purpose for which it was collected.
(5) Systems notices and reports of new and altered systems will be submitted to DLA Support Services (DSS-CA) as required.
(k)
(1)
(i) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and containing only identifying data and notations or arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole, and probation status.
(ii) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual.
(iii) Reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
(2)
(i) Specifically authorized under criteria established by an Executive Order to be kept classified in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order.
(ii) Investigatory material compiled for law enforcement purposes other than material covered under a general exemption. However, an individual will not be denied access to information which has been used to deny him/her a right or privilege unless disclosure would reveal a source who furnished information to the Government under a promise that the identity of the source would be held in confidence. For investigations made after September 27, 1975, the identity of the source may be treated as confidential only if based on
(iii) Maintained in connection with providing protective services to the President of the United States or other individuals protected pursuant to 18 U.S.C. 3056.
(iv) Used only to generate aggregate statistical data or for other similarly evaluative or analytic purposes, and which are not used to make decisions on the rights, benefits, or entitlements of individuals except for the disclosure of a census record permitted by 13 U.S.C. 8.
(v) Investigatory 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, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the source would be held in confidence, or prior to September 27 1975, under an implied promise that the identity of the source would be held in confidence.
(vi) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or elimination process.
(vii) Evaluation material used to determine potential for promotion in the Military Services, but only the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. System managers will specify those categories of individuals for whom pledges of confidentiality may be made when obtaining information on an individual's suitability for promotion.
(viii) Exemption rules for DLA systems of records are published in appendix H of this part.
(l)
(1) Forward all requests for matching programs to include necessary routine use amendments and analysis and proposed matching program reports to DLA Support Services. Changes to existing matching programs shall be processed in the same manner as a new matching program report.
(2) No time limits are set by the OMB guidelines. However, in order to establish a new routine use for a matching program, the amended system notice must have been published in the
(3) For the purpose of the OMB guidelines, DoD and all DoD Components are considered a single agency. Before initiating a matching program using only the records of two or more DoD activities, notify DLA Support Services (DSS-CA) that the match is to occur. Further information may be requested from the activity proposing the match.
(4) System managers shall review annually each system of records to determine if records from the system are being used in matching programs and whether the OMB Guidelines have been complied with.
DLA activities may be required to provide data under reporting requirements established by the Defense Privacy Office and DLA Support Services (DSS-CA). Any report established shall be assigned Report Control Symbol DD-DA&M(A)1379.
A.
B.
C.
2. When multiple locations are identified by type of organization, the system location may indicate that official mailing addresses are contained in an address directory published as an appendix to DLAH 5400.1.
3. If no address directory is used or the addresses in the directory are incomplete, the address of each location where a segment of the record system is maintained must appear under the “System Location” caption. Classified addresses are not listed, but the fact that they are classified is indicated. Use the standard U.S. Postal Service two letter state abbreviation symbols and zip codes for all domestic addresses.
D.
E.
F.
2. For administrative housekeeping records, cite the directive establishing DLA as well as the Secretary of Defense authority to issue the directive. For example, `Pursuant to the authority contained in the National Security Act of 1947, as amended (10 U.S.C. 133d), the Secretary of Defense has issued DoD Directive 5105.22 (32 CFR part 398), Defense Logistics Agency (DLA), the charter of the Defense Logistics Agency (DLA) as a separate agency of the Department of Defense under this control. Therein, the Director, DLA, is charged with the responsibility of maintaining all necessary and appropriate records.'
G.
H.
2. For each routine use identified, include a statement as to the purpose or purposes for which the record is to be released to the activity. Do not use general statements, such as, “to other Federal agencies as required”
I.
1.
2.
3.
4. Retention and disposal. Indicate how long the record is retained. When appropriate, state the length of time the records are maintained by the activity, when they are transferred to a Federal Records Center, length of retention at the Records Center and when they are transferred to the National Archives or are destroyed. A reference to DLAI 5015.1,
J.
2. For geographically separated or ogranizationally decentralized activities for which individuals may deal directly with officials at each location in exercising their rights, list the position or duty title of each category of officials responsible for the system or a segment thereof.
3. Do not include business or duty addresses if they are listed in DLAH 5400.1.
K.
2. For all nonexempt systems, describe how an individual may determine if there are records pertaining to him or her in the system. The procedural rules may be cited, but include a brief procedural description of the needed data. Provide sufficient information in the notice to allow an individual to exercise his or her rights without referrals to this part.
3. As a minimum, the caption will include:
a. The official title (normally the system manager) and official address to which request is to be directed.
b. The specific information required to determine if there is a record of the individual in the system.
c. Identification of the offices through which the individual may obtain access.
d. A description of any proof of identity required.
4. When appropriate, the individual may be referred to an activity official who shall provide this data to him or her.
L.
2. For all nonexempt record systems, describe the procedures under which individuals may obtain access to the record pertaining to them in the system. When appropriate, the individual may be referred to the system manager or activity official to obtain access procedures. Do not repeat the addresses listed in DLAH 5400.1, but refer the individual to that directory.
M.
2. For all nonexempt systems of records, state briefly how an individual may contest the content of a record pertaining to him or her in the system. The detailed procedures for contesting record accuracy, refusal of access or amendment, or initial review and appeal need not be included if they are readily available elsewhere and can be referred to by the public. (For example, “The Defense Logistics Agency rules for contesting contents and for appealing initial determinations are contained in 32 CFR part.”) (DLAR 5400.21).
3. The individual may also be referred to the system manager to determine these procedures.
N.
2. For all nonexempt systems of records, list the sources of the information in the system. Specific individuals or institutions need not be identified by name, particularly if these sources have been granted confidentiality.
O.
2. If there is an exemption claimed, indicate specifically under which subsection of
A.
B.
1. A significant increase or change in the number or type of indiviudals about whom records are maintained.
a. Only changes that alter significantly the character and purpose of the records system are considered alterations.
b. Increases in numbers of individuals due to normal growth are not considered alterations unless they truly alter the character and purpose of the system.
c. Increases that change significantly the scope of population covered (for example, expansion of a system of records covering a single PLFA's enlisted personnel to include all of DLA enlisted personnel would be considered an alteration).
d. A reduction in the number of individual covered is not an alteration, but only an amendment.
e. All changes that add new categories of individuals to system coverage require a change to the “Categories of individuals covered by the system” caption of the notice and may require changes to the “Purpose(s)” caption.
2. An expansion in the types or categories of information maintained.
a. The addition of any new category of records not described under the “Categories of Records in System” caption is considered an alteration.
b. Adding a new data element which is clearly within the scope of the categories of records described in the existing notice is an amendment.
c. All changes under this criterion require a change to the “Categories of Records in System” caption of the notice.
3. An alteration in the manner in which the records are organized or the manner in which the records are indexed and retrieved.
a. The change must alter the nature of use or scope of the records involved (for example, combining records systems in a reorganization).
b. Any change under this critera requires a change in the “Retrievability” caption of the system notice.
c. If the records are no longer retrieved by name or personal identifier, cancel the system notice.
4. A change in the purpose for which the information in the system is used.
a. The new purpose must not be compatible with the existing purposes for which the system is maintained or a use that would not reasonably be expected to be an alteration.
b. If the use is compatible and reasonably expected, there is no change in purpose and no alteration occurs.
c. Any change under this criterion requires a change in the “Purpose(s)” caption and may require a change in the “Authority for maintenance of the system” caption.
5. Changes that alter the computer environment (such as changes to equipment configuration, software, or procedures) so as to create the potential for greater or easier access.
a. Increasing the number of offices with direct access is an alteration.
b. Software releases, such as operating systems and system utilities that provide for easier access are considered alterations.
c. The addition of an on-line capability to a previously batch-oriented system is an alteration.
d. The addition of peripheral devices such as tape devices, disk devices, card readers, printers, and similar devices to an existing ADP system constitute an amendment if system security is preserved.
e. Changes to existing equipment configuration with on-line capability need not be considered alterations to the system if:
(1) The change does not alter the present security posture.
(2) The addition of terminals does not extend the capacity of the current operating system and existing security is preserved.
f. The connecting of two or more formerly independent automated systems or networks together creating a potential for greater access is an alteration.
g. Any change under this caption requires a change to the “Storage” caption element of the systems notice.
C. Reports of new and altered systems. Submit a report of a new or altered system to DLA Support Services (DSS-CA) before collecting information and for using a new system or altering an existing system.
D.
a. Sixty days must elapse before collection forms or fomal instructions pertaining to the system may be issued.
b. Sixty days must elapse before the system may become operational.
c. Sixty days must elapse before any public issuance of a Request for Proposal or Invitation to Bid for a new ADP or telecommunication system.
Requests for delegation of procurement authority may be submitted to the General Services Administration during the 60 days' waiting period, but these will include language that the Privacy Act reporting criteria have been reviewed and that a system report is required for such procurement.
d. Normally 30 days must elapse before publication in the
2. Do not operate a system of records until the waiting periods have expired.
E.
F.
a. How the public interest will be affected adversely if the established time limits are followed.
b. Why earlier notice was not provided.
2. Under no circumstances will the routine uses for a new or altered system be implemented before 30 days have elapsed after publication of the system notice containing the routine uses in the
The report on a new or altered system will consist of a transmittal letter, a narrative statement, and include supporting documentation.
A.
B.
1.
2.
3.
4.
5.
6.
7.
8.
9.
C.
1. For a new system, an advance copy of the system notice which is proposed for publication; for an altered system an advance copy of the notice reflecting the specific changes proposed.
2. An advance copy of any proposed exemption rule if the new or altered system is to be exempted. If there is no exemption, so state in the narrative.
3. Any other supporting documentation that may be pertinent or helpful in understanding the need for the system or clarifying its intended use. While not required, such documentation, when available, is helpful in evaluating the new or altered system.
A.
B.
C.
a. That require each customer who requests that information subject to this DLAR be processed to identify specifically that information to the WPC personnel. This may be done by:
(1) Providing a check-off type entry on the WPC work requests.
(2) Requiring that the WPC work requests be stamped with a special legend, or that a special notation be made on the work requests.
(3) Predesignating specifically a class of documents as coming within the provisions of this DLAR (such as, all officer effectiveness reports, all recall rosters, and all medical protocols).
(4) Using a special cover sheet both to alert the WPC personnel as to the type information, and to protect the document during transmittal.
(5) Requiring an oral warning on all dictation.
(6) Any other procedures that ensure the WPC personnel are alerted to the fact that personal data subject to this DLAR is to be processed.
b. To ensure that the operators or other WPC personnel who receive data for processing not identified as being under the provisions of this DLAR, but that appear to be personal, promptly call the information to the attention of the WPC supervisor or the customer.
c. To ensure that any request for the processing of personal data which the customer has not identified as being in a system of record, and that appears to meet the criteria set forth in this regulation, is called to the attention of the appropriate supervisory personnel and system manager.
2. The WPC supervisor will ensure that personal information is not inadvertently compromised within the WPC.
D.
2. Physical safeguards may include:
a. Controls on individual access to the center.
b. Machine configurations that reduce external access to the information being processed, or arrangements that alert the operator to the presence of others.
c. Using certain specific machines to process personnal data.
d. Any other physical safeguards, to include special technical arrangements that will protect the data during processing.
3. Other safeguards may include:
a. Using only certain selected operators to process personal data.
b. Processing personal data only at certain times during the day without the WPC manager's specific authorization.
c. Using only certain tapes or diskettes to process and store personal data.
d. Using continuous tapes for dictation of personal data.
e. Requiring all WPC copies of documents to be marked specifically so as to prevent inadvertent compromise.
f. Returing extra copies and mistakes to the customer with the product.
g. Disposing of waste containing personal data in a special manner.
h. Any other local procedures that provide adequate protection to the data being processed.
E.
1. Releasing products only to specifically identified individuals.
2. Using sealed envelopes to transmit products to the customer.
3. Using special cover sheets to protect products similar to the one discussed in above.
4. Hand-carrying products to the customers.
5. Using special messengers to return the products.
6. Any other procedures that adequately protect products from compromise while they are awaiting return or being returned to the customer.
F.
1. Marking will hard copies retained with special legends or designators.
2. Storing media containing personal data in separate files or areas.
3. Marking the storage containers for media containing personal data with special legends or notations.
4. Restricting the reuse of media used to process personal data or erasing the media before reuse.
5. Establishing special criteria for the WPC retention of media used to store and process personal data.
6. Returning the media to the customer for retention with the file copies of the finished products.
7. Discouraging, when practical, the long-term storage of personnal data in any form within the WPC.
8. Any other filing or storage procedures that safeguard adequately any personal information retained or filed within the WPC.
G.
2. A risk assessment will be conducted at least every 5 years or whenever there is a change of equipment, equipment configuration, WPC location, WPC configuration or modification of the WPC facilities that either increases or decreases the likelihood or compromise of personal data.
3. Copies of the risk assessment will be retained by the WPC manager and made available to appropriate inspectors, as well as to personnel studying equipment for facility upgrading of personal data.
H.
A.
B.
1. Performed by a Federal agency, whether the personal records used in the match are Federal or nonfederal.
2. For which a Federal agency discloses any personal records for use in a matching program performed by any other Federal agency or any nonfederal organization.
C.
D.
1.
2.
a. Matches which compare a substantial number of records, such as, comparison of the Department of Education's defaulted student loan data base with the Office of Personnel Management's Federal employee data base would be covered; comparison of six individual student loan defaultees with the OPM file would not be covered.
b. Checks on specific individuals to verify data in an application for benefits done reasonably soon after the application is received.
c. Checks on specific individuals based on information which raises questions about an individual's eligibility for benefits or payments done reasonably soon after the information is received.
d. Matches done to produce aggregate statistical data without any personal identifiers.
e. Matches done to support any research or statistical project when the specfic data are not to be used to make decisions about the rights, benefits, or privileges of specific individuals.
f. Matches done by an agency using its own records.
3.
4.
5.
E.
1.
a.
(1) Legal authority for the match.
(2) Purpose and description of the match.
(3) Description of the records to be matched.
(4) Whether the record subjects have consented to the match; or whether disclosure of records for the match would be compatible with the purpose for which the records were originally collected; that is, whether disclosure under a “routine use” would be appropriate; whether the soliciting agency is seeking the records for a legitimate law enforcement activity—whichever is appropriate; or any other provision of the Privacy Act under which disclosure may be made.
(5) Description of additional information which may be subsequently disclosed in relation to “hits.”
(6) Subsequent actions expected of the source (for example, verification of the identity of the “hits” or followup with individuals who are “hits”).
(7) Safeguards to be afforded the records involved, including disposition.
b. If the agency is satisfied that disclosure of the records would not violate its responsibilities under the Privacy Act, it may proceed to make the disclosure to the matching agency. It should ensure that only the minimum information necessary to conduct the match is provided. If disclosure is to be made pursuant to a “routine use” (Section b.3. of the Privacy Act), it should ensure that the system of records contains such a use, or it should publish a routine use notice in the
c.
2.
3.
a. Matching agencies should maintain reasonable administrative, technical, and physical security safeguards on all files involved in the matching program.
b. Matching agencies should ensure that they have appropriate systems of records including those containing “hits,” and that such systems and any routine uses have been appropriately notices in the
4.
a. Matching agencies will return or destroy source matching files (by mutual agreement) immediately after the match.
b. Records relating to this will be kept only so long as an investigation, either criminal or administrative, is active, and will be disposed of in accordance with the requirements of the Privacy Act and the Federal Records Act.
5.
a. Agencies, before disclosing records outside the agency, will publish appropriate “routine use” notices in the
b. If the matching program will result in the creation of a new or the substantial alteration of an existing system of records, the agency involved should publish the appropriate
6.
a. As close to the initiation of the matching program as possible, matching agencies will publish in the
1. The legal authority under which the match is being conducted.
2. A description of the matching program including whether the program is one time or continuing, the organizations involved, the purpose or purposes for which the program is being conducted, and the procedures to be used in matching and following up on the “hits.”
3. A complete description of the personal records to be matched, including the source or sources, system of records identifying data, date or dates and page number of the most recent
4. The projected start and ending dates of the program.
5. The security safeguards to be used to protect against unauthorized access or disclosure of the personal records.
6. Plans for disposition of the source records and “hits.”
7. Agencies should send a copy of this notice to the Congress and to OMB at the same time it is sent to the
a. Agencies should report new or altered systems of records as described in subparagraph 5b, above, as necessary.
b. Agencies should also be prepared to report on matching programs pursuant to the reporting requirements of either the Privacy Act or the Paperwork Reduction Act. Reports will be solicited by the Office of Information and Regulatory Affairs and will focus on both the protection of individual privacy and Government's effective use of information technology. Reporting instructions will be disseminated to the agencies as part of either the reports required by paragraph (p) of the Privacy Act, or section 3514 of Pub. L. 96-511.
8.
a. The matching agency should, consistent with paragraph (m) of the Privacy Act, cause the requirements of that Privacy Act to be applied to the contractor's performance of the matching program. The contract should include the Privacy Act clause required by Federal Personnel Regulation Amendment 155 (41 CFR 1-1.337-5).
b. The terms of the contract should include appropriate privacy and security provisions consistent with policies, regulations, standards, and guidelines issued by OMB, GSA, and the Department of Commerce.
c. The terms of the contract should preclude the contractor from using, disclosing, copying, or retaining records associated with the matching program for the contractor's own use.
d. Contractor personnel involved in the matching program shall be made explicitly aware of their obligations under the Privacy Act and of these guidelines, agency rules, and any special safegurds in relation to each specific match performed.
e. Any disclosures of records by the agency to the contractor should be made pursuant to a “routine use” (5 U.S.C. 552a(b)(3)).
F.
1. Case Number.
2. Requester.
3. Document Title or Description.
4. Litigation.
a. Date Complaint Filed.
b. Court.
c. Case File Number.
5. Defendants (DoD Component and individual).
6. Remarks (brief explanation of what the case is about).
7. Court Action.
a. Court's Finding.
b. Disciplinary Action (as appropriate).
8. Appeal (as appropriate).
a. Date Complaint File.
b. Court.
c. Case File Number.
d. Court's Finding.
e. Disciplinary Action (as appropriate).
A.
B.
C.
D.
1. The Privacy Act also provides for criminal penalties (see 5 U.S.C. 552a(1).) Any official or employee may be found guilty of a misdemeanor and fined not more than $5,000 if he or she willfully discloses personal information to anyone not entitled to receive the information, or maintains a system of records without publishing the required public notice in the
2. A person who requests or obtains access to any record concerning another individual under false pretenses may be found guilty of a misdemeanor and fined up to $5,000.
1.
2.
3.
4.
1.
2.
3.
4.
1.
2.
3.
4.
From subsections (d)(1) through (d)(4) and (f) because providing access to records of a civil investigation 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; 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.
From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.
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. DLA will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
1.
2.
3.
4.
From subsections (d)(1) through (d)(4), and (f) because providing access to records of a civil investigation 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; 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.
From subsection (e)(1), because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
From subsections (e)(4)(G) and (e)(4)(H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system. However, DLA will continue to publish such a notice in broad generic terms as is its current practice.
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. DLA will, nevertheless, continue to publish such a notice in
e.
1.
2.
(ii) Investigatory 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 material would reveal the identity of a confidential source.
3.
4.
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for law enforcement purposes and is exempt from the access provisions of subsections (d) and (f).
(v) 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. DLA will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
f.
1.
2.
(ii) Investigatory 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 material would reveal the identity of a confidential source.
3.
4.
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to records of a civil or administrative investigation and the right to contest the contents of those
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for law enforcement purposes and is exempt from the access provisions of subsections (d) and (f).
(v) 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. DLA will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
The Defense Finance and Accounting Service fully implements the policy and procedures of the Privacy Act and the DoD 5400.11-R
This regulation applies to all DFAS, Headquarters, DFAS Centers, the Financial System Organization (FSO), and other organizational components. It applies to contractor personnel who have entered a contractual agreement with DFAS. Prospective contractors will be advised of their responsibilities under the Privacy Act Program.
DFAS personnel will comply with the Privacy Act of 1974, the DoD Privacy Program and the DFAS Privacy Act Program. Strict adherence is required to ensure uniformity in the implementation of the DFAS Privacy Act Program and to create conditions that will
(a)
(2) The Director, DFAS, will be the Final Denial Appellate Authority. This authority may be delegated to the Director for Resource Management.
(3) Appoints the Director for External Affairs and Administrative Support, or a designated replacement, as the DFAS Headquarters Privacy Act Officer.
(b)
(2) Consults with DoD General Counsel on final denials that are inconsistent with other final decisions within DoD. Responsible to raise new legal issues of potential significance to other Government agencies.
(3) Provides advice and assistance to the DFAS Director, Center Directors, and the FSO as required, in the discharge of their responsibilities pertaining to the Privacy Act.
(4) Acts as the DFAS focal point on Privacy Act litigation with the Department of Justice.
(5) Reviews Headquarters' denials of initial requests and appeals.
(c)
(2) Serves as the DFAS Center Initial Denial Authority for requests made as a result of denying release of requested information at locations within DFAS Center authority. Initial denial authority may not be redelegated. Initial denial appeals will be forwarded to the appropriate DFAS Center marked to the attention of the DFAS Center Initial Denial Authority.
(d)
(2) Serves as the FSO Initial Denial Authority for requests made as a result of denying release of requested information at locations within FSO authority. FSO Initial denial authority may not be redelegated.
(3) Appoints a Privacy Act Officer for the FSO and each Financial System Activity (FSA).
(e)
(2) Serves as the DFAS single point of contact with the Department of Defense Privacy Office. This duty may be delegated.
(3) Ensures that the collection, maintenance, use and/or dissemination of records of identifiable personal information is for a necessary and lawful purpose, that the information is current and accurate for the intended use and that adequate security safeguards are provided.
(4) Monitors system notices for agency systems of records. Ensures that new, amended, or altered notices are promptly prepared and published. Reviews all notices submitted by the DFAS Privacy Act Officers for correctness and submits same to the Department of Defense Privacy Office for publication in the
(5) Establishes DFAS Privacy Act reporting requirement due dates. Compiles all Agency reports and submits the completed annual report to the Defense Privacy Office. DFAS reporting requirements are provided in appendix A to this part.
(6) Conducts annual Privacy Act Program training for DFAS Headquarters
(f)
(g)
(2) Provides advice and assistance to the DFAS Center Director and the FSA in the discharge of his/her responsibilities pertaining to the Privacy Act.
(3) Coordinates on DFAS Center and the FSA denials of initial requests.
(h)
(2) Ensures that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a manner that assures that such action is for a necessary and lawful purpose; the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information. Advises the Program Manager that systems notices must be published in the
(3) Administratively controls and processes Privacy Act requests. Ensures that the provisions of this regulation and the DoD Privacy Act Program are followed in processing requests for records. Ensures all Privacy Act requests are promptly reviewed. Coordinates the reply with other organizational elements as required.
(4) Prepares denials and partial denials for the Center Director's signature and obtain required coordination with the assistant General Counsel. Responses will include written justification citing a specific exemption or exemptions.
(5) Prepares input for the annual Privacy Act Report as required using the guidelines provided in appendix A to this part.
(6) Conducts training on the DFAS Privacy Act Program for Center personnel.
(i)
(2) Ensures that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a manner that assures that such action is for a necessary and lawful purpose; the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information. Advises the Program Manager that systems notices must be published in the
(3) Administratively controls and processes Privacy Act requests. Ensures that the provisions of this regulation and the DoD Privacy Act Program are followed in processing requests for records. Ensure all Privacy Act requests are promptly reviewed. Coordinate the reply with other organizational elements as required.
(4) Prepares denials and partial denials for signature by the Director, FSO and obtains required coordination with the assistant General Counsel. Responses will include written justification citing a specific exemption or exemptions.
(5) Prepares input for the annual Privacy Act Report (RCS: DD DA&M(A)1379) as required using the guidelines provided in appendix A to this part.
(6) Conducts training on the DFAS Privacy Act Program for FSO personnel.
(j)
(2) Will not maintain any official files which are retrieved by name or other personal identifier without first ensuring that a system notice has been published in the
(3) Reports any disclosures of personal information from a system of records or the maintenance of any system of records not authorized by this regulation to the appropriate Privacy Act Officer for action.
(k)
(2) Ensures that all personnel who have access to the system of records or are engaged in developing or supervising procedures for handling records are totally aware of their responsibilities to protect personal information established by the DFAS Privacy Act Program.
(3) Evaluates each new proposed system of records during the planning stage. The following factors should be considered:
(i) Relationship of data to be collected and retained to the purpose for which the system is maintained. All information must be relevant to the purpose.
(ii) The impact on the purpose or mission if categories of information are not collected. All data fields must be necessary to accomplish a lawful purpose or mission.
(iii) Whether informational needs can be met without using personal identifiers.
(iv) The disposition schedule for information.
(v) The method of disposal.
(vi) Cost of maintaining the information.
(4) Complies with the publication requirements of DoD 5400.11-R, `Department of Defense Privacy Program' (see 32 CFR part 310). Submits final publication requirements to the appropriate DFAS Privacy Act Officer.
(l)
(m)
(1)
(2)
(i) Informs prospective contractors of their responsibilities under the DFAS Privacy Act Program.
(ii) Establishes an internal system for reviewing contractor performance to ensure compliance with the DFAS Privacy Act Program.
(3)
(i) Established and maintained solely to assist the contractor in making internal contractor management decisions, such as records maintained by the contractor for use in managing the contract.
(ii) Maintained as internal contractor employee records, even when used in
(4)
(5)
(a) The provisions of DoD 5400.11-R, `Department of Defense Privacy Program' (see 32 CFR part 310) apply to all DFAS systems of records. DFAS Privacy Act Program Procedural Rules, DFAS Exemption Rules and System of Record Notices are the three types of documents relating to the Privacy Act Program that must be published in the
(b) A system of records used to retrieve records by a name or some other personal identifier of an individual must be under DFAS control for consideration under this regulation. DFAS will maintain only those Systems of Records that have been described through notices published in the
(1)
(2)
(3)
(4)
DFAS procedural rules (regulations having a substantial and direct impact on the public) must be published in the
(a)
(b)
(c)
(1)
(2)
The provisions of DoD 5400.11-R, `Department of Defense Privacy Program' (see 32 CFR part 310) apply to all DFAS personnel about whom records are maintained in systems of records. All information that can be released consistent with applicable laws and regulations should be made available to the subject of record.
All DFAS Privacy Act Officers shall establish procedures for notifying an individual, in response to a request, if the system of records contains a record pertaining to him/her.
Individuals shall address requests for access to records to the appropriate Privacy Act Officer by mail or in person. Requests for access should be acknowledged within 10 working days after receipt and provided access within 30 working days. Every effort will be made to provide access rapidly; however, records cannot usually be made available for review on the day of request. Requests must provide information needed to locate and identify the record, such as individual identifiers required by a particular system, to include the requester's full name and social security number.
Only a designated denial authority may deny access. The denial must be in writing.
(a) The individual should be granted access to the original record (or exact copy) without any changes or deletions. A record that has been amended is considered the original.
(b) The DFAS component that maintains control of the records will provide an area where the records can be reviewed. The hours for review will be set by each DFAS location.
(c) The custodian will require presentation of identification prior to providing access to records. Acceptable identification forms include military or government civilian identification cards, driver's license, or other similar photo identification documents.
(d) Individuals may be accompanied by a person of their own choosing when reviewing the record; however, the custodian will not discuss the record in the presence of the third person without written authorization.
(e) On request, copies of the record will be provided at a cost of $.15 per page. Fees will not be assessed if the cost is less that $30.00. Individuals requesting copies of their official personnel records are entitled to one free copy and then a charge will be assessed for additional copies.
Individual access to medical and psychological records should be provided, even if the individual is a minor, unless it is determined that access could have an adverse effect on the mental or
Access requests that specifically state or reasonably imply that they are made under FOIA, are processed pursuant to the DFAS Freedom of Information Act Regulation. Access requests that specifically state or reasonably imply that they are made under the PA are processed pursuant to this regulation. Access requests that cite both the FOIA and the PA are processed under the Act that provides the greater degree of access. Individual access should not be denied to records otherwise releasable under the PA or the FOIA solely because the request does not cite the appropriate statute. The requester should be informed which Act was used in granting or denying access.
By February 1, of each calendar year, DFAS Centers and Financial Systems Organizations will provide the DFAS Headquarters Privacy Act Officer with the following information:
1. Total Number of Requests for Access:
a. Number granted in whole:
b. Number granted in part:
c. Number wholly denied:
d. Number for which no record was found:
2. Total Number of Requests to Amend Records in the System:
a. Number granted in whole:
b. Number granted in part:
c. Number wholly denied:
3. The results of reviews undertaken in response to paragraph 3a of Appendix I to OMB Circular A-130
The following data captions are required for each system of records notice published in the
1.
2.
3.
4.
5.
b. For a geographically or organizationally decentralized system, describe each level of organization or element that maintains a portion of the system of records.
c. For an automated data system with a central computer facility and input or output terminals at geographically separate locations, list each location by category.
d. If multiple locations are identified by type of organization, the system location may indicate that official mailing addresses are published as an appendix to the agency's compilation of systems of records notices in the
e. Classified addresses shall not be listed but the fact that they are classified shall be indicated.
f. The U.S. Postal Service two-letter state abbreviation and the nine-digit zip code shall be used for all domestic addresses.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
This part implements the basic policies and procedures outlined in the Privacy Act of 1974, as amended (5 U.S.C. 552a), and 32 CFR part 310; and establishes the National Reconnaissance Office Privacy Program (NRO) by setting policies and procedures for the collection and disclosure of information maintained in records on individuals, the handling of requests for amendment or correction of such records, appeal and review of NRO decisions on these matters, and the application of exemptions.
Obligations under this part apply to all employees detailed, attached, or assigned to or authorized to act as agents of the National Reconnaissance Office. The provisions of this part shall be made applicable by contract or other legally binding action to government contractors whenever a contract is let for the operation of a system of records or a portion of a system of records.
(a)
(1)
(i)
(ii)
(2)
(3)
(4)
(b)
(1) Relationship of each item of information to the statutory purpose for which the system is maintained;
(2) Specific adverse consequences of not collecting each category of information; and
(3) Techniques for purging parts of the records.
(c)
(1) To those employees of the NRO who have an official need for the record in the performance of their duties.
(2) Required to be disclosed to a member of the public under the Freedom of Information Act, as amended.
(3) For a routine use as defined in the Privacy Act.
(4) To the Census Bureau for the purpose of conducting a census or survey or related activity authorized by law.
(5) To a recipient who has provided the NRO with advance, adequate written assurance that the record will be used solely as statistical research and that the record is to be transferred in a form in which the individual is not identifiable.
(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U. S. Government.
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the U.S. for a civil or criminal law enforcement activity if such activity is authorized by law and if the head of the agency or governmental entity has made a written request to the NRO specifying the particular portion of the record and the law enforcement activity for which the record is sought (blanket requests will not be accepted); a record may also be disclosed to a law enforcement agency at the initiative of the NRO pursuant to the blanket routine use for law enforcement when criminal conduct is indicated in the record.
(8) To a person showing compelling circumstances affecting the health or safety of an individual if, upon such disclosure, notification is sent to the last known address of the individual to whom the record pertains (emergency medical information may be released by telephone).
(9) To Congress or any committee, joint committee, or subcommittee of Congress with respect to a matter under its jurisdiction. This provision does not authorize the disclosure of a record to members of Congress acting in their individual capacities or on behalf of their constituents making third party requests. However, such releases may be made pursuant to the blanket routine use for Congressional inquiries when a constituent has sought the assistance of his Congressman forthe constituent's individual record(s).
(10) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office.
(11) Pursuant to an order of a court of competent jurisdiction. When the record is disclosed under compulsory legal process and when the issuance of that order or subpoena is made public by the court which issued it, the NRO will make reasonable efforts to notify the individual to whom the record pertains by mail at the most recent address contained in NRO records.
(12) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).
(d)
(e)
(f)
(g)
(1) When required by the individual to whom the record pertains, or
(2) When necessary to inform previous recipients of any amended records. The accounting shall be retained for at least five years or for the life of the record, whichever is longer, to be available for review by the subject of the record at his request except for disclosures made under paragraph (c)(7) of this section.
(h)
(i)
(j)
(1) Identification information at doorways, building directories, desks, lockers, name tags, etc.
(2) Geographical or agency contact cards.
(3) Property receipts and control logs for building passes, credentials, vehicles, etc.
(4) Personal working notes of employees that are merely an extension of the author's memory, if maintained properly, do not come under the Privacy Act. Personal notes are not considered official NRO records if they meet the following requirements:
(i) Keeping or discarding notes must be at the sole discretion of the author. Any requirement by supervising authority, whether by oral or written directive, regulation, policy, or memo to maintain such notes, likely would cause the notes to become official agency records.
(ii) Such notes must be restricted to the author's personal use as memory aids, and only the author may have access to them. Passing them to a successor or showing them to other personnel (including supporting staff such as secretaries) would likely cause them to become agency records.
(5) Rosters. The NRO has no restriction against rosters that contain only corporate information such as name, work telephone number, and position. Good recordkeeping practices dictate that only rosters that are relevant and necessary to the NRO's operations may be maintained, and therefore convenience rosters, which by definition do not satisfy the test, may not be maintained.
(a) The Director, NRO (DNRO):
(1) Supervises the execution of the Privacy Act and this part within the NRO.
(2) Appoints:
(i) The Chief, Information Access and Release Center as the NRO Privacy Act Coordinator.
(ii) The Director of Security, the Director of Policy, and the NRO General Counsel as the NRO Appeals Panel; and
(iii) The Chief of Staff as the Senior Official for Privacy Policy and the Privacy Act Appeal Authority.
(b) The Privacy Act Coordinator, NRO:
(1) Establishes, issues, and updates policy for the NRO Privacy Act Program, monitors compliance, and serves as the principal NRO point of contact on all Privacy Act matters.
(2) Receives, processes, and responds to all PrivacyAct requests received by the NRO, including:
(i) Granting, granting in part, or denying an initial Privacy Act request for access or amendment to a record, and notifying a requester of such actions taken in regard to that request.
(ii) Granting a requester access to all or part ofa record under dispute when, after a review, a decision is made in favor of a requester.
(iii) Directing the appropriate NRO component to amend a record and advising other record holders to amend a record when a decision is made in favor of a requester.
(iv) Notifying a requester, if a request is denied, of the reasons for denial and the procedures for appeal to the Privacy Act Appeal Authority.
(v) Notifying a requester of his right to file a concise statement of his reasons for disagreement with the NRO's refusal to amend a record.
(vi) Directing that a requester's statement of reasons for the request to amend, his concise statement of disagreement with the NRO's refusal to amend a record, and the NRO's letter of denial be included in the file containing the disputed record.
(vii) Referring all appeals to the Privacy Act Appeals Panel and Appeal Authority.
(viii) Notifying a requester of any required fees and delivering such collected fees to the Comptroller.
(ix) Obtaining supplemental information from the requester when required.
(3) Serves as the NRO point of contact with the Defense Privacy Office.
(4) Reviews NRO use of records, and at least 40 calendar days prior to establishing a new agency system of records, ensures that new or amended notices are prepared and published in the
(5) Coordinates with forms managers to ensure that a Privacy Act Statement is on all forms or in all other methods used to collect personal information for inclusion in any NRO records system;
(6) Prepares the NRO Privacy Act report for submission to the DoD Privacy Office and to other authorities, as required by 32 CFR part 310.
(7) Reviews all procedures, including forms, which require an individual to furnish information for conformity with the Privacy Act.
(8) Retains the accounting of disclosures for at least five years or for the life of the record, whichever is longer, to be available for review by the subject of the record at his request except for disclosures made under paragraph (c)(7) of § 326.4; and
(9) Develops and oversees Privacy Act Program training for NRO personnel.
(c) The Privacy Act Appeals Panel, NRO:
(1) Meets and reviews all denials appealed by means of the NRO internal appeals process; and
(2) Recommends a finding to the Privacy Act Appeal Authority by a majority vote of those present at the meeting and based on the written record and the panel's deliberations.
(d) The Privacy Act Appeal Authority, NRO:
(1) Determines all NRO Privacy Act appeals.
(2) Reports the determination to the PA Coordinator.
(3) Signs the final appeal letter to the requester.
(e) General Counsel, NRO:
(1) Ensures uniformity in NRO legal positions concerning the Privacy Act and reviews proposed responses to Privacy Act requests to ensure legal sufficiency, as appropriate.
(2) Consults with DoD General Counsel on final denials that may be inconsistent with other final decisions within DoD; raises new legal issues of potential significance to other government agencies.
(3) Provides advice and assistance to the DNRO, the PA Coordinator, and component Directors, as required, in the discharge of their responsibilities pertaining to the Privacy Act.
(4) Advises on all legal matters concerning the Privacy Act, including legal decisions, rulings by the Department of Justice, and actions by DoD and other commissions on the Privacy Act.
(5) Approves all Privacy Act Statements prior to their reproduction and distribution.
(6) Acts as the NRO focal point for Privacy Act litigation with the Department of Justice.
(7) Provides a status report to the Defense Privacy Office, consistent with the requirements of 32 CFR part 310, whenever an individual brings suit under subsection (g) of the Privacy Act against NRO.
(f) Chief Information Officer (CIO), NRO:
(1) Ensures that NRO systems of records databases have procedures to protect the confidentiality of personal records maintained or processed by means of automatic data processing (ADP) systems and ensures that ADP systems contain appropriate safeguards for the privacy of personnel.
(2) Coordinates with the PA Coordinator before developing or modifying CIO-sponsored ADP supported files subject to the provisions of this part.
(g) Directorate and Office Managers, NRO:
(1) Ensure that records contained in their directorate or office systems of records are disclosed only to those NRO officials or employees who require the records for official purposes.
(2) Review their own directorate and office systems of records to ensure and certify that no systems of records other than those listed in the
(3) Maintain only such information about an individual as is relevant and necessary to accomplish a purpose which is required by statute or Executive Order and identify the specific provision of law or Executive Order which provides authority for the maintenance of information in each system of records.
(h) System Managers, NRO:
(1) Ensure that adequate safeguards have been established and are enforced to prevent the misuse, unauthorized disclosure, alteration, or destruction of personal information contained in system records.
(2) Ensure that all personnel who have access tothe system of records, or are engaged in developing or supervising procedures for handling records, are aware of their responsibilities established by the NRO Privacy Act Program.
(3) Evaluate each system of records during the planning stage and at regular intervals. The following factors should be considered:
(i) Relationship of data to be collected and retained to the purposes for which the system is maintained (all information must be relevant and necessary to the purpose for which it is collected).
(ii) The specific impact on the purpose or mission if categories of information are not collected (all data fields must be necessary to accomplish a lawful purpose or mission).
(iii) Whether informational needs can be met without using personal identifiers.
(iv) The cost of maintaining and disposing of records within the systems of records and the length of time each item of information must be retained according to the NRO Records Control Schedule as approved by the National Archives and Records Administration.
(4) Review system alterations or amendments to evaluate for relevancy and necessity.
(i) Forms and Information Managers. All NRO individualsresponsible for forms or methods used to collect personal information from individuals will:
(1) Ensure that Privacy Act Statements are on appropriate forms and that new forms have the required Privacy Act Statement.
(2) Determine, with General Counsel's concurrence, which forms require Privacy Act Statements and will prepare such statements.
(3) Assist the initiators in determining whether a form, format, questionnaire, or report requires a Privacy Act Statement. Privacy Act Statements must be complete, specific, written in plain English, and approved by the Office of General Counsel.
(j) Employees, NRO:
(1) Will be familiar with the provisions of this part regarding the maintenance of systems of records, authorized access, and authorized disclosure;
(2) Will collect, maintain, use, and/or disseminate records containing identifiable personal information only for lawful purposes; will keep the information current, complete, relevant, and accurate for its intended use; and will safeguard the records in a system and keep them the minimum time required;
(3) Will not disclose any personal information contained in any system of records, except as authorized by the Privacy Act and this part;
(4) Will maintain no system of records concerning individuals except those authorized, and will maintain no other information concerning individuals except as necessary for the conduct of business at the NRO;
(5) Will provide individuals a Privacy Act Statement when asking them to provide information about themselves. The Privacy Act Statement will include the authority under which the information is being requested, whether disclosure of the information is mandatory or voluntary, the purposes for which it is being requested, the uses to which it will be put, and the consequences of not providing the information;
(6) May not deny an individual any right or privilege provided by law because of that individual's failure to disclose his SSN unless such information is required by federal statute or disclosure was required by statute or regulations adopted prior to January 1, 1975. If disclosure of the SSN is not required, NRO directorates and offices are not precluded from requesting it from individuals; however, the Privacy Act Statement must make clear that the disclosure of the SSN is voluntary and, if the individual refuses to disclose it, must be prepared to identify him by alternate means.
(7) Will collect personal information directly from the subject whenever possible; employees may collect information from third parties when that information must be verified, opinions or evaluations are required, the subject cannot be contacted, or the subject requests it.
(8) Will keep paper and electronic records which contain personal information and are retrieved by name or personal identifier only in approved systems published in the Federal Register.
(9) Will amend and correct records when directed by the PA Coordinator.
(10) Will report to the PA Coordinator any disclosures of personal information from a system of records, or the maintenance of any system of records, not authorized by this part.
(11) Will participate in specialized Privacy Act training should their duties require dealing with special investigators, the news media, or the public.
(a) An individual's written request for access to records about himself which does not specify the Act under which the request is made will be processed under both the Freedom of Information Act (FOIA) and the Privacy Act and the applicable regulations. Such requests will be processed under both Acts regardless of whether the requester cites one Act, both, or neither in the request in order to ensure the maximum possible disclosure to the requester. Individuals may not be denied access to a record pertaining to themselves merely because those records are exempt from disclosure under the FOIA.
(b) A Privacy Act request that neither specifies the system(s) of records to be searched nor identifies the substantive nature of the information sought will be processed by searching
(c) A Privacy Act request that does not designate the system(s) of records to be searched but does identify the substantive nature of the information sought will be processed by searching those systems of records likely to have information similar to that sought by the requester.
(d) The NRO will not disclose any record to any person or government agency except by written request or prior written consent of the subject of the record unless the disclosure is required by law or is within the exceptions of the Privacy Act. If a requester authorizes another individual to obtain the requested records on his behalf, the requester shall provide a written, signed, notarized statement appointing that individual as his representative and certifying that the individual appointed may have access to the requester's records and that such access shall not constitute an invasion of his privacy nor a violation of his rights under the Privacy Act. In lieu of a notarized statement, the NRO will accept a declaration in accordance with 28 U.S.C. 1746.
(e) Upon receipt of a written request, the Privacy Act Coordinator (PA Coordinator) will release to the requester those records which are releasable and applicable to the individual making the request. Records about individuals include data stored electronically or in electronic media. Documentary material qualifies as a record if the record is maintained in a system of records.
(f) Initial availability, potential for release, and cost determination will usually be made within ten working days of the date on which a written request for any identifiable record is received by the NRO (and acknowledgement is sent to the individual). If additional time is needed due to unusual circumstances, a written notification of the delay will be forwarded to the requester within the ten working day period. This notification will briefly explain the circumstances for the delay and indicate the anticipated date for a substantive response.
(g) All requests will be handled in the order received on a `first-in, first-out' basis. Requests will be considered for expedited processing only if the NRO determines that there is a genuine health, humanitarian, or due process reason involving possible deprivation of life or liberty which creates an exceptional and urgent need, that there is no alternative forum for the records sought, and that substantive records relevantto the stated needs may exist and be releasable.
(h) Records provided or originated by another agency or containing other agency information will not be released prior to coordination with the other agency involved.
(i) Requesting or obtaining access to records under false pretenses is a violation of the Privacy Act and is subject to criminal penalties.
(a) To the maximum extent practical, personal information about an individual will be obtained directly from that individual.
(b) Whenever an individual is asked to provide personal information, including Social Security Number (SSN) or a personal identifier, about himself, a Privacy Act Statement will be furnished that will advise him of the authority (whether by statute or by Executive Order) under which the information is requested, whether disclosure of the information is voluntaryor mandatory, the purposes for which it is requested, the uses to which it will be put, and the consequences of not providing the information.
(c) When asking third parties to provide information about other individuals, NRO employees will advise them:
(1) Of the purpose of the request, and
(2) That their identities and the information they are furnishing may be released to the individual unless they expressly request confidentiality. All persons interviewed must be informed of their rights and offered confidentiality.
(a)
(1)
(i) In addition, an alien lawfully admitted for permanent residence shall provide his Alien Registration Number and the date that status was acquired.
(ii) The parent or guardian of a minor or of a person judicially determined to be incompetent, or an attorney retained to represent an individual, in addition to establishing the identity of the minor or person represented as required in this part, shall provide evidence of his own identity as required in this part and evidence of such parentage, guardianship, or representation by submitting a certified copyof the minor's birth certificate, the court order establishing such guardianship, or the representation agreement which establishes the relationship.
(2)
(3)
(b)
(a) The PA Coordinator shall acknowledge receipt of the request in writing within ten working days.
(b) Upon receipt of a request, the PA Coordinator shall refer the request to those components most likely to possess responsive records. The components shall search all relevant record systems within their cognizance and shall:
(1) Determine whether a responsive record exists in a system of records.
(2) Determine whether access must be denied and on what legal basis. An individual may be denied access to his records under the Privacy Act only if an exemption has been properly claimed for all or part of the records or information requested; or if the information was compiled in reasonable anticipation of a civil action or proceeding.
(3) Approve the disclosure of records for which they are the originator.
(4) Forward to the PA Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party as well as notification of the specific determination for any denial.
(c) When all records have been collected, the PA Coordinator shall notify
(d) When an original record is illegible, incomplete, or partially exempt from release, the PA Coordinator shall explain in terms understood by the requester the portions of a record that are unclear.
(e) If access to requested records, or any portion thereof, is denied, the PA Coordinator shall inform the requester in writing of the specific reason(s) for denial, including the specific citation to appropriate sections of the Privacy Act or other statutes, this and other NRO regulations, or the Code of Federal Regulations authorizing denial, and the right to appeal this determination through the NRO appeal procedure within 60 calendar days. The denial shall include the date of denial, the name and title/position of the denial authority, and the address of the NRO Appeal Authority. Access may be refused when the records are exempt by the Privacy Act. Usually an individual will not be denied access to the entire record, but only to those portions to which the denial of access furthers the purpose for which an exemption was claimed.
(a) Any individual whose request for access is denied may request a review of the initial decision within 60 calendar days of the date of the notification of denial of access by appealing within the NRO internal appeals process. If a requester elects to request NRO review, the request shall be sent in writing to the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715, briefly identifying the particular record which is the subject of the request and setting forth the reasons for the appeal. The request should enclose a copy of the denial correspondence. The following procedures apply to appeals within the NRO:
(1) The PA Coordinator, after acknowledging receipt of the appeal, shall promptly refer the appeal to the record-holding components, informing them of the date of receipt of the appeal and requesting that the component head or his designee review the appeal.
(2) The record-holding components shall review the initial denial of access to the requested records and shall inform the PA Coordinator of their review determination.
(3) The PA Coordinator shall consolidate the component responses, review the record, direct such additional inquiry or investigation as is deemed necessary to make a fair and equitable determination, and make a recommendation to the NRO Appeals Panel, which makes a recommendation to the Appeal Authority.
(4) The Appeal Authority shall notify the PA Coordinator of the result of the determination on the appeal, who shall notify the individual of the determination in writing.
(5) If the determination reverses the initial denial, the PA Coordinator shall provide a copy of the records requested. If the determination upholds the initial denial, the PA Coordinator shall inform the requester of his right to judicial review in U.S. District Court and shall include the exact reasons for denial with specific citations to the provisions of the Privacy Act, other statutes, NRO regulations, or the Code of Federal Regulations upon which the determination is based.
(b) The Appeal Authority shall act on the appeal or provide a notice of extension within 30 working days.
When requested medical and psychological records are not exempt from disclosure, the PA Coordinator may determine which non-exempt medical or psychological records should not be sent directly to the requester because of possible harm or adverse impact to the requester or another person. In that event, the information may be disclosed to a physician named by the requester. The appointment of the physician will be in the same notarized form or declaration as described in § 326.8 and will certify that the physician is licensed to practice in the appropriate specialty (medicine, psychology, or psychiatry). Upon designation,
(a) An individual may request amendment or correction of a record pertaining to him/her by addressing such request in writing, to the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715. Incomplete or inaccurate requests will not be rejected categorically; instead, the requester will be asked to clarify the request as needed. A request will not be rejected or require resubmission unless additional information is essential to process the request. Usually, amendments under this part are limited to correcting factual errors and not matters of official judgment, such as promotion ratings and job performance appraisals. The requester must adequately support his claim and must identify:
(1) The particular record he wishes to amend or correct, specifying the number of pages and documents, the titles of the documents, form numbers if any, dates on documents, and individuals who signed them. Any reasonable description of the documents is acceptable. A clear and specific description of passages, pages, or documents to be amended will expedite processing the request.
(2) The desired amending language. The requester should specify the type of amendment, including complete removal of data, passages, or documents from record or correction of information to make it accurate, more timely, complete, or relevant.
(3) A justification for such amendment or correctionto include any documentary evidence supporting the request.
(b) Individuals will be required to provide verification of identity as in § 326.8. to ensure that the requester is seeking to amend records pertaining to himself and not, inadvertently or intentionally, the records of another individual.
(c) Minor factual errors in an individual's personal record may be corrected routinely upon request without resort to the Privacy Act or the provisions of this part, if the requester and the record holder agree to that procedure and the requester receives a copy of the corrected record whenever possible. A written request is not required when individuals indicate amendments during routine annual review and updating of records programs conducted by the NRO for civilian personnel and the Services for military personnel. Requests for deletion, removal of records, and amendment of substantive factual information will be processed according to the Privacy Act and the provisions of this part.
(d) The PA Coordinator shall acknowledge receipt of the request in writing within ten working days. No separate acknowledgement of receipt is necessary if the request can be either approved or denied and the requester advised within the ten-day period. For written requests presented in person, written acknowledgement may be provided at the time the request is presented.
(e) The PA Coordinator shall refer such request to the record-holder components, shall advise those components of the date of receipt, and shall request that those components make a prompt determination on such request.
(f) The record-holder components shall promptly:
(1) Make any amendment or correction to any portion of the record which the individual believes is not accurate, relevant, timely, or complete and notify the PA Coordinator and all holders and recipients of such records and their amendments that the correction was made; or
(2) Set forth the reasons for the refusal, if they determine that the requested amendment or correction will not be made or if they decline to make the requested amendment but instead augment the official record, and so inform the PA Coordinator.
(g) The Privacy Act Coordinator shall:
(1) Inform the requester of the agency's determination to make the amendment or correction as requested and notify all prior recipients of the change to the disputed records for which an accounting had been required; or
(2) Inform the requester of the specific reasons and legal authorities for the agency's refusal and the procedures established for him to request a review of that refusal.
(h) The amendment procedure is not intended to replace other existing procedures such as those for registering grievances or appealing performance appraisal reports. In such cases the requester will be apprised of the appropriate procedures for such actions.
(i) This part does not permit the alteration of evidence presented to courts, boards, or other official proceedings.
(a) Any individual whose request for amendment or correction is denied may request a review of the initial decision within 60 calendar days of the date of the notification of denial by appealing within the NRO internal appeals process. If a requester elects to request NRO review, the request shall be sent in writing to the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715, briefly identifying the particular record which is the subject of the request and setting forth the reasons for the appeal. The request should enclose a copy of the denial correspondence. The following procedures apply to appeals within the NRO:
(1) The PA Coordinator, after acknowledging receipt of the appeal, shall promptly refer the appeal to the record-holding components, informing them of the date of receipt of the appeal and requesting that the component head or his designee review the appeal.
(2) The record-holding components shall review the initial denial of access to the requested records and shall inform the PA Coordinator of their review determination.
(3) The PA Coordinator shall act as secretary of the Appeals Panel. He shall:
(i) Consolidate the component responses and reasons for the initial denial.
(ii) Provide all supporting materials both furnished to and by the requester and the record-holding component.
(iii) Review the record.
(iv) Direct such additional inquiry or investigation as is deemed necessary to make a fair and equitable determination.
(v) Prepare the record and schedule the appeal for the next meeting of the Appeals Panel. The Appeals Panel shall recommend a finding to the Appeal Authority by a majority vote of those present at the meeting based on the written record and the Panel's deliberations. No personal appearances shall be permitted without the express permission of the Panel.
(4) The Appeal Authority shall notify the PA Coordinator of the result of the determination on the appeal who shall notify the individual of the determination in writing.
(5) The Appeal Authority will notify the PA Coordinator if the determination is that the record should be amended. The PA Coordinator will promptly advise the requester and the office holding the record to amend the record and to notify all prior recipients of the records for which an accounting was required of the change.
(6) If the determination upholds the initial denial, in whole or in part, the PA Coordinator shall inform the requester:
(i) Of the denial and the reason.
(ii) Of his right to file in NRO records within 60 calendar days a concise statement of the reasons for disputing the information contained in the record. If the requester elects to file a statement of disagreement, the PA Coordinator will be responsible for clearly noting any portion of the record that is disputed and for appending into the file
(iii) Of his right to judicial review in U.S. District Court.
(7) The Appeal Authority shall act on the appeal or provide a notice of extension within 30 working days.
(a) Personal records contained in a Privacy Act system of records maintained by NRO shall not be disclosed by any means to any person or agency outside the NRO except with the written consent of the individual subject of the record, unless as provided in this part.
(b) Except for disclosure made to members of the NRO in connection with their official duties and disclosures required by the Freedom of Information Act, an accounting will be kept of all disclosures of records maintained in NRO systems of records and of all disclosures of investigative information. Accounting entries will record the date, kind of information, purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made. Accounting records will be maintained for at least five years after the last disclosure or for the life of the record, whichever is longer. Subjects of NRO records will be given access to associated accounting records upon request except for disclosures made pursuant to § 326.4, or where an exemption has been properly claimed for the system of records.
Individuals requesting copies of their official personnel records are entitled to one free copy; a charge will be assessed for additional copies. There is a cost of $.15 per page. Fees will not be assessed if the cost is less than $30.00. Fees should be paid by check or postal money order payable to the Treasurer of the United States and forwarded to the Privacy Act Coordinator, NRO, at the time the copy of the record is delivered. In some instances, fees will be due in advance.
Each request shall be treated as a certification by the requester that he is the individual named in the request. The Privacy Act provides criminal penalties for any person who knowingly and willfully requests or obtains any information concerning an individual under false pretenses.
(a) All systems of records maintained by the NRO shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive Order 12958 and which is required by the Executive Order to be withheld in the interest of national defense of foreign policy. This exemption, which may be applicable to parts of all systems of records, is necessary because certain record systems not otherwise specifically designated for exemptions herein may contain items of information that have been properly classified.
(b) No system of records within the NRO shall be considered exempt under subsection (j) or (k) of the Privacy Act until the exemption and the exemption rule for the system of records has been published as a final rule in the
(c) An individual is not entitled to have access to any information compiled in reasonable anticipation of a civil action or proceeding (5 U.S.C. 552a(d)(5)).
(d) Proposals to exempt a system of records will be forwarded to the Defense Privacy Office, consistent with the requirements of 32 CFR part 310, for review and action.
(e) QNRO-23.
(1)
(2)
(ii) Investigatory 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(3)
(4)
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for law enforcement purposes and is exempt from the access provisions of subsections (d) and (f).
(v) 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. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO'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
(f)
(2)
(3)
(ii) 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-going investigation, reveal investigative techniques, and place confidential informants in jeopardy.
(iii) 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, due to NRO IG's close liaison and working relationships with other Federal, state, local and foreign country law enforcement agencies, 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.
(iv) 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.
(v) 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.
(vi) From subsection (e)(4) (G) through (I) because this system of records is exempt from the access provisions of subsection (d).
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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.
(4)
(ii) 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(5)
(6)
(ii) 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) 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).
(v) 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. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO'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
(g) QNRO-15, Facility Security Files.
(1)
(ii) 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(2)
(3)
(ii) From subsections (d)(1) through (d)(4), 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) 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).
(v) 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. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt
(h) QNRO-19.
(1)
(2)
(ii) Investigatory 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(3)
(4)
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to investigatory 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for investigatory purposes and is exempt from the access provisions of subsections (d) and (f).
(v) 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
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO'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 in this paragraph. The decisions to release information from these systems will be made on a case-by-case basis.
(i) NRO-21.
(1)
(2)
(ii) Investigatory 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 material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(3)
(4)
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to records of a civil or administrative investigation 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.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the 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.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for law enforcement purposes and is exempt from the access provisions of subsections (d) and (f).
(v) 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. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO'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.
(j) QNRO-4.
(1)
(2)
(3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7).
(4) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, and to preserve the confidentiality and integrity of Federal evaluation materials. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 522a).
This part implements the basic policies and procedures for the implementation of the Privacy Act of 1974, as amended (5 U.S.C. 552a); OMB Circular A-130;
This part applies to Headquarters, Field Operating Activities (FOA), Regions, Zones, Central Distribution Centers (CDC), Commissaries of DeCA, and contractors during the performance of a contract with DeCA. All personnel are expected to comply with the procedures established herein.
(a)
(2) Appoints:
(i) The Executive Director for Support as the DeCA Initial Denial Authority for the DeCA Privacy Act Program.
(ii) The Records Manager, Office of Safety, Security, and Administration as the DeCA Privacy Act Officer.
(b)
(2) Provides guidance, assistance and training.
(3) Controls and monitors all requests received and prepares documentation to the office of primary responsibility (OPR) for response.
(4) Prepares response to requester based on information provided by the OPR.
(5) Signs all response requests for releasable information to the requester after coordination through the General Counsel. Ensures that all denied requests for information are released by the DeCA Initial Denial Authority.
(6) Publishes instructions to contractors that:
(i) Provide DeCA Privacy program guidance to their personnel who solicit, award, or administer government contracts;
(ii) Inform prospective contractors of their responsibilities regarding the DeCA Privacy Program; and
(iii) Establish an internal system of contractor performance review to ensure compliance with DeCA's Privacy program.
(iv) Prepare and submit System Notices to the Defense Privacy Office for publication in the
(7) Maintain Privacy Case files and records of disclosure accounting.
(8) Submit the DeCa Annual Privacy Act Report (RCS: DD-DA&M(A)1379) to the Defense Privacy Office.
(c)
(2) In the event the information is to be denied release, the requested information and rationale for denial will be forwarded to the PA Officer for denial determination.
(d)
(e)
(2) Collect all information available and forward to the DeCA PA Officer. If the requested information is not available, provide the DeCA PA Officer the rationale to respond to the requester.
(f)
(2) Collect all information available and forward it to the Region Coordinator for submission to DeCA PA Officer. If requested information is not available, provide the Region Coordinator the rationale so they can prepare a response to the DeCA PA Officer. If
(a)
(1) Consist of “records” that are retrieved by the name of an individual or some other personal identifier, and
(2) Be under the control of DeCA.
(b)
(c)
(d)
(1) DeCA will not maintain any records describing how an individual exercises his or her rights guaranteed by the First Amendment of the U.S. Constitution.
(2) These rights include, but are not limited to, freedom of religion, freedom of political beliefs, freedom of speech, freedom of the press, the right to assemble, and the right to petition.
(e)
(1) The relationship of each item of information retained and collected to the purpose for which the system is maintained.
(2) The specific impact on the purpose or mission of not collecting each category of information contained in the system.
(3) The possibility of meeting the informational requirements through use of information not individually identifiable or through other techniques, such as sampling.
(4) The length of time each item of personal information must be retained.
(5) The cost of maintaining the information.
(6) The necessity and relevancy of the information to the purpose for which it was collected.
(f)
(2) Disposition of these records will be provided by the DeCA PA Officer in accordance with the DeCA Filing System.
(g)
(2) If the contractor must use or have access to individually identifiable information subject to this part to perform any part of a contract, and the information would have been collected and maintained by DeCA but for the award of the contract, these contractor activities are subject to this part.
(3) The restrictions in paragraphs (g)(1) and (g)(2) of this section do not apply to records:
(i) Established and maintained to assist in making internal contractor management decisions such as those maintained for use in managing the contract.
(ii) Those maintained as internal contractor employee records even when used in conjunction with providing goods and services to DeCA.
(4) Disclosure of records to contractors. Disclosure of personal records to a contractor for the use in the performance of any DeCA contract is considered a disclosure within the Department of Defense (DoD). The contractor is considered the agent of DeCA and is to be maintaining and receiving the records for DeCA.
(h)
(1) Supervisor/Manager paper records maintained by DeCA personnel will be treated as `For Official Use Only' (FOUO) documents and secured in locked file cabinets, desks or bookcases during non-duty hours. During normal working hours, these records will be out-of-sight if the working area is accessible to non-government personnel.
(2) Personnel records maintained by DeCA computer room or stand alone systems, will be safeguarded at all
(3) Adherence to paragraphs (h)(1) and (h)(2) of this section, fulfills the requirements of 32 CFR part 285.
(i)
(2) The transfer of large quantities of DeCA records containing personal data to disposal activities is not considered a release of personal information under this part. The volume of such transfers makes it difficult or impossible to identify easily specific individual records. Care must be exercised to ensure that the bulk is maintained so as to prevent specific records from becoming readily identifiable. If the bulk is amintained, no special procedures are required. if the bulk cannot be maintained, dispose of the records by shredding or tearing to render the record unrecognizable or beyond reconstruction.
(a)
(b)
(1) Verification of information through third party sources for security or employment suitability determinations;
(2) Seeking third party opinions such as supervisory comments as to job knowledge, duty performance, or other opinion-type evaluations;
(3) When obtaining the needed information directly from the individual is exceptionally difficult or may result in unreasonable costs; or
(4) Contacting a third party at the request of the individual to furnish certain information such as exact periods of employment, termination dates, copies of records, or similar information.
(c)
(2) When an individual is requested to provide their SSN, they must be told:
(i) the uses that will be made of the SSN;
(ii) The statute, regulation or rule authorizing the solicitation of the SSN; and
(iii) Whether providingthe SSN is voluntary or mandatory.
(3) Once the SSN has been furnished for the purpose of establishing a record, the notification in paragraph (c)(2) of this section is not required if the individual is only requested to furnish or verify the SSNs for identification purposes in connection with the normal use of his or her records.
(d)
(1)
(i) The specific Federal statute or Executive Order that authorized collection of the requested information;
(ii) The principal purpose or purposes for which the information is to be used;
(iii) The routine uses that will be made of the information;
(iv) Whether providing the information is voluntary or mandatory; and
(v) The effects on the individual if he or she chooses not to provide the requested information.
(2)
(i) Below the title of the form and positioned so the individual will be advised of the requested information,
(ii) Within the body of the form with a notation of its location below the title of the form,
(iii) On the reverse of the form with a notation of its location below the title of the form,
(iv) Attached to the form as a tear-off sheet, or
(v) Issued as a separate supplement to the form.
(3)
(a)
(1)
(ii) If an individual wishes to be accompanied by a third party when seeking access to his or her records or to have the records released directly to the third party, a signed access authorization granting the third party access is required.
(iii) A DeCA individual will not be denied access to his or her records because he or she refuses to provide his or her SSN unless the SSN is the only way retrieval can be made.
(2)
(ii) DeCA personnel may be denied access to information compiled in reasonable anticipation of a civil action or proceeding. The term “civil proceeding” is intended to include quasi-judicial and pretrial judicial proceedings. Information prepared in conjunction with the quasi-judicial, pretrial and trial proceedings to include those prepared by DeCA legal and non-legal officials of the possible consequences of a given course of action are protected from access.
(iii) Requests by DeCA personnel for access to investigatory records pertaining to themselves, compiled for law enforcement purposes, are processed under this part and that of 32 CFR part 310. Those requests by DeCA personnel for investigatory records pertaining to themselves that are in records systems exempt from access provisions shall be processed under this part or 32 CFR part 285, depending upon which provides the greatest degree of access.
(3)
(ii) Personal uncirculate handwritten notes of team leaders, office supervisors, or military supervisory personnel concerning subordinates are not a system of records within the meaning of this part. Such notes are an extension of the individual's memory. These notes, however, must be maintained and discarded at the discretion of the individual supervisor and not circulated to others. Any established requirement to maintain such notes (written or oral directives, regulation or command policy) make these notes “AGENCY RECORDS.” If the notes are circulated, they must be made a part of the system of records. Any action that gives personal notes the appearance of official agency records is prohibited unless they have been incorporated into a DeCA system of records.
(b)
(2) Request from DeCA individuals or access to a record pertaining to themselves are processed under this part and 32 CFR part 310.
(3) Requests from DeCA individuals for access to records about themselves that cite both Acts or the DeCA implementing directives for both Acts are processed under this part except:
(i) When the access provisions of the FOIA provide a greater degree of access process under the FOIA, or
(ii) When access to the information sought is controlled by another Federal statute process access procedures under the controlling statute.
(4) Requests from DeCA individuals for access to information about themselves in a system of records that do not cite either Act or DeCA implementing directive are processed under the procedures established by this part.
(5) DeCA requesters will not be denied access to personal information concerning themselves that would be releasable to them under either Act because they fail to cite either Act or the wrong Act. The Act or procedures used in granting or denying access will be explained to requesters.,
(6) DeCA requesters should receive access to their records within 30 days.
(7) Records in all DeCA systems maintained in accordance with the Government-wide systems notices are in temporary custody of DeCA, and all requests or amend these records will be processed in accordance with this part.
(c)
(i) Was compiled in reasonable anticipation of civil action.
(ii) Is in a system of records that has been exempt from access provisions of this part.
(iii) All systems of records maintained by the Defense Commissary Agency shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive Order 12958 and which is required by the Executive Order to be withheld in the interest of national defense or foreign policy. This exemption, which may be applicable to parts of all systems of records, is necessary because certain record systems not otherwise specifically designated for exemptions herein may contain items of information that have been properly classified.
(iv) Is contained in a system of records for which access may be denied under some other Federal statute.
(v) All systems of records maintained by the DeCA shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent
(2) DeCA individuals will only be denied access to those portions of the records from which the denial of access serves some legitimate governmental purpose.
(3) Other reasons to refuse DeCA individuals are:
(i) The request is not described well enough to locate it within a reasonable amount of effort by the PA Officer or PA Coordinator; or
(ii) An individual fails to comply with the established requirements including refusing to name a physician to receive medical records when required or to pay fees.
(4) Only the DeCA IDA can deny access. This denial must be in writing and contain:
(i) The date of the denial, name, title of position, and signature of the DeCA Initial Denial Authority.
(ii) The specific reasons for the denial, including specific reference to the appropriate sections of the PA, other statutes, this part or the Code of Federal Regulations (CFR);
(iii) Information providing the right to appeal the denial through the DeCa appeal procedure within 60 days, and the title, position and address of the DeCA PA Appellate Authority.
(5)
(i) Assign a control number and process the appeal to the Director, DeCA or the designee appointed by the Director.
(ii) Provide formal written notification to the individual by the appeal authority explaining whether the denial is sustained totally or in part and the exact reasons for the denial to include provisions of the Act, other statute, this part or the CFR whichever the determination is based, or
(iii) Provide the individual access to the material if the appeal is granted.
(iv) Process all appeals within 30 days of receipt unless the appeal authority determines the review cannot be made within that period and provide notification to the individual the reasons for the delay and when an answer may be expected.
(d)
(i) A description of the item or items to be amended.
(ii) The specific reason for the amendment.
(iii) The type of amendment action such as deletion, correction or addition.
(iv) Copies of evidence supporting the request.
(v) DeCA employees may be required to provide identification to make sure that they are indeed seeking to amend a record pertaining to themselves.
(2) The amendment process is not intended to permit the alteration of evidence presented in the course of judicial or quasi-judicial proceedings. Amendments to these records are made through specific procedures established for the amendment of these records.
(i) Written notification will be provided to the requester within 10 working days of its receipt by the DeCA PA Officer. No notification will be provided to the requester if the action completed within the 10 days. Only under exceptional circumstances will more than 30 days be required to reach the decision to amend a request. If the decision is to grant all or in part of the request for amendment, the record will be amended and the requester informed and all other offices/personnel known to be keeping the information.
(ii) If the request for amendment is denied in whole or in part, The PA Officer will notify the individual in writing and provide the specific reasons and the procedures for appealing the decision.
(iii) All appeals are to be processed within 30 days. If additional time is required, the requester will be informed and provided when a final decision may be expected.
(e)
(i) Copying is performed for the convenience of the Government or is the only means to make the record available for the individual.
(ii) No reading room is available for the individual to review the record or a copy is made to keep the original in DeCA files.
(iii) The information may be obtained without charge under any other regulation, directive, or statute.
(2) No fees will be collected for search, retrieval, and review of records to determine releasability, copying of records when the individual has not requested a copy, transportation of records and personnel, or normal postage.
(a)
(2) For the purposes of disclosure and disclosure accounting, the Department of Defense is considered a single agency.
(3) Personal information from DeCA systems of records will not be disclosed outside the DoD unless:
(i) The record has been requested by the individual to whom it pertains,
(ii) Written consent has been given by the individual to whom the record pertains for release to the requesting agency, activity, or individual, or
(iii) The release is pursuant to one of the specific nonconsensual purposes set forth in the Act.
(4) Records may be disclosed without the consent of a DeCA individual to any DoD official who has need for the record in the performance of their assigned duties. Rank, position, or title alone does not authorize this access. An official need for this information must exist.
(5) DeCA records must be disclosed if their release is required by 32 CFR part 285, which is implemented by DeCA Directive 30-12.
(b)
(1) Civilian employees:
(i) Name,
(ii) Present and past position titles,
(iii) Present and past grades,
(iv) Present and past salaries,
(v) Present and past duty stations,
(vi) Office or duty telephone numbers,
(2) Military members:
(i) Full name,
(ii) Rank,
(iii) Date of rank,
(iv) Gross salary,
(v) Past duty assignments,
(vi) Present duty assignments,
(vii) Future assignments that are officially established,
(viii) Office or duty telephone numbers,
(ix) Source of commission,
(x) Promotion sequence number,
(xi) Awards and decorations,
(xii) Attendance at professional military schools,
(xiii) Duty status at any given time.
(3) All disclosures of personal information on civilian employees shall be made in accordance with the Office of Personnel Management (OPM) and all disclosures of personal information on military members shall be made in accordance with the standards established by 32 CFR part 285.
(4) The release of DeCA employees' home addresses and home telephone numbers is considered a clearly unwarranted invasion of personal privacy and is prohibited; however, these may be released without prior consent of the employee if:
(i) The employee has indicated previously that he or she consents to their release,
(ii) The releasing official was requested to release the information under the provisions of 32 CFR part 285.
(5) Before listing home addresses and home telephone numbers in any DeCA telephone directory, give the individuals the opportunity to refuse such a listing.
(c)
(2) A routine use shall:
(i) Be compatible with the purpose for which the record was collected;
(ii) Indicate to whom the record may be released;
(iii) Indicate the uses to which the information may be put by the receiving agency; and
(iv) Have been published previously in the
(3) A routine use will be established for each user of the information outside DeCA who need official access to the records. This use may be discontinued or amended without the consent of the individual/s involved. Any routine use that is new or changed is published in the
(d)
(1) The civil or criminal law enforcement activity is authorized by law (Federal, State, or local); and
(2) The head of the agency or instrumentality (or designee) has made a written request to the Component specifying the particular record or portion desired and the law enforcement activity for which it is sought.
(3) Blanket requests for any and all records pertaining to an individual shall not be honored. The requesting agency or instrumentality must specify each record or portion desired and how each relates to the authorized law enforcement activity.
(4) This disclosure provision applies when the law enforcement agency or instrumentality request the record, If the DoD Component discloses a record outside the DoD for law enforcement purposes without the individual's consent and without an adequate written request, the disclosure must be pursuant to an established routine use, such as the blanket routine use for law enforcement.
(e)
(i) Personal information concerning the patient that is provided in § 327.8 and under provisions of 32 CFR part 285.
(ii) The medical condition such as the date of admission or disposition and the present medical assessment of the individual's condition in the following terms if the medical doctor has volunteered the information:
(A) The individual's condition is presently (stable) (good) (fair) (serious) or (critical), and
(B) Whether the patient is conscious, semi-conscious or unconscious.
(2) Detailed medical and other personal information may be released on a DeCA employee only if the employee has given consent to the release. If the employee is not conscious or competent, no personal information, except that required by 32 CFR part 285, will be released until there has been enough improvement in the patient's condition for them to give informed consent.
(3) Any item of personal information may be released on a DeCA patient if the patient has given consent to its release.
(4) This part does not limit the disclosure of personal medical information for other government agencies' use in determining eligibility for special assistance or other benefits provided disclosure in pursuant to a routine use.
Dear Mrs. Employee: This responds to your Privacy Act request dated (enter date of request), in which you requested (describe requested records).
Your request has been referred to our headquarters for further processing. They will respond directly to you. Any questions concerning your request may be made telephonically (enter Privacy Officer's telephone number) or in writing to the following address:
Defense Commissary Agency, Safety, Security, and Administration, Attention: FOIA/PA Officer, Fort Lee, VA 23801-1800.
I trust this information is responsive to your needs.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) Risk: If prescribed policies, procedures and responsibilities of the Privacy Act Program are not adhered to, sensitive private information on individuals can be given out to individuals.
(2) Control Objectives: The prescribed policies, procedures and responsibilities contained in 5 U.S.C. 552a are followed to protect individual privacy and information release.
(3) Control Techniques: 32 CFR part 310 and DeCA Directive 30-13,
(i) Ensure that a PA program is established and implemented.
(ii) Appoint an individual with PA responsibilities and ensure the designation of appropriate staff to assist.
(4) Test Questions: Explain rationale for YES responses or provide cross-references where rationale can be found. For NO responses, cross-reference to where corrective action plans can be found. If response is NA, explain rationale.
(i) Is a PA program established and implemented in DeCA to encompass procedures for subordinate activities? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(ii) Is an individual appointed PA responsibilities? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(iii) Are the current names and office telephone numbers furnished OSD, Private Act Office of the PA Officer and the IDA? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:
(iv) Is the annual PA report prepared and forwarded to OSD, Defense Privacy Office? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:
(v) Is PA awareness training/orientation provided? Is in-depth training provided for personnel involved in the establishment, development, custody, maintenance and use of a system of records? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
(vi) Is the PA Officer consulted by information systems developers for privacy requirements which need to be included as part of the life cycle management of information consideration in information systems design? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
(vii) Is each system of records maintained by DeCA supported by a Privacy Act System Notice and has the systems notice been published in the
(i)
(1) Risk: Failure to process PA requests correctly could result in privacy information being released which subjects the Department of Defense, DeCA or individuals to criminal penalties.
(2) Control Objective: PA requests are processed correctly.
(3) Control Technique:
(i) Ensure PA requests are logged into a formal control system.
(ii) Ensure PA requests are answered promptly and correctly.
(iii) Ensure DeCA records are only withheld when they fall under the general and specific exemptions of 5 U.S.C. 552a and one or more of the nine exemptions under DeCA Directive 30-12,
(iv) Ensure all requests are coordinated through the General Counsel.
(v) Ensure all requests are denied by the DeCA IDA.
(vi) Ensure all appeals are forwarded to the Director DeCA or his designee.
(4) Test Questions:
(i) Are PA requests logged into a formal control system? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(ii) Are individual requests for access acknowledged within 10 working days after receipt? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(iii) when more than 10 working days are required to respond to a PA request, is the requester informed, explaining the circumstances for the delay and provided an approximate date for completion? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(iv) Are DeCA records withheld only when they fall under one or more of the general or specific exemptions of the PA or one or more of the nine exemptions of the FOIA? (DeCA HQ/SA, Region IM). Response: Yes / No / NA. Remarks:
(v) Do denial letters contain the name and title or position of the official who made the determination, cite the exemption(s) on which the denial is based and advise the PA requester of their right to appeal the denial to the Director DeCA or designee? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:
(vi) Are PA requests denied only by the HQ DeCA IDA? (All). Response: Yes / No / NA. Remarks:
(vii) Is coordination met with the General Counsel prior to forwarding a PA request to the IDA? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:
(j)
(1) Risk: Obtaining personal information resulting in a violation of the PA.
(2) Control Objective: Establish a system before data collection and storage to ensure no violation of the privacy of individuals.
(3) Control Technique: Ensure Privacy Act Statement to obtain personal information is furnished to individuals before data collection.
(4) Test Questions:
(i) Are all forms used to collect information about individuals which will be part of a system of records staffed with the PA Officer for correctness of the Privacy Act Statement? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
(ii) Are Privacy Statements prepared and issued for all forms, formats and questionnaires that are subject to the PA, coordinated with the DeCA forms manager? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
(iii) Do Privacy Act Statements furnished to individuals provide the following:
(A) The authority for the request.
(B) The principal purpose for which the information will be used.
(C) Any routine uses.
(D) The consequences of failing to provide the requested information. Yes / No / NA. Remarks:
(k)
(1) Risk: Unprotected records allowing individuals without a need to know access to privacy information.
(2) Control Objective: PA records are properly maintained throughout their life cycle.
(3) Control Technique: Ensure the prescribed policies and procedures are followed during the life cycle of information.
(4) Test Questions:
(i) Are file cabinets/containers that house PA records locked at all times to prevent unauthorized access? (All). Response: Yes / No / NA. Remarks:
(ii) Are personnel with job requirement (need to know) only allowed access to PA information? (All). Response: Yes / No / NA. Remarks:
(iii) Are privacy act records treated as unclassified records and designated `For Official Use Only'? (All). Response: Yes / No / NA. Remarks:
(iv) Are computer printouts that contain privacy act information as well as disks, tapes and other media marked `For Official Use Only'? (All). Response: Yes / No / NA. Remarks:
(v) Is a Systems Manager appointed for each automated/manual PA systems of records? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
(vi) Are PA records maintained and disposed of in accordance with DeCA Directive
(1) I attest that the above listed internal controls provide reasonable assurance that DeCA resources are adequately safeguarded. I am satisfied that if the above controls are fully operational, the internal controls for this sub-task throughout DeCA are adequate.
Safety, Security and Administration.
FUNCTIONAL PROPONENT.
I have reviewed this sub-task within my organization and have supplemented the prescribed internal control review checklist when warranted by unique environmental circumstances. The controls prescribed in this checklist, as amended, are in place and operational for my organization (except for the weaknesses described in the attached plan, which includes schedules for correcting the weaknesses).
ASSESSABLE UNIT MANAGER (Signature).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
10 U.S.C. 125.
This part:
(a) Establishes a policy and procedure by which the Department of Defense will invite the comments of the public on those of its proposed regulations and other types of rulemaking as described hereafter which originate within the Department of Defense as a requirement of general applicability and future effect designed to implement, interpret, or prescribe law or policy, or practice or procedure requirements of a component. This requirement applies to those regulations which constitute the authority for actions having a substantial and direct impact on the public when consistent with other responsibilities of the Department for the efficient and responsible conduct of public business.
(b) Implements the provisions of 5 U.S.C. 552 relating to the kinds of regulations that must be published in the
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, and the Defense Agencies (hereinafter referred to singularly as a “DoD component” or collectively as “DoD components”).
(b) These provisions are applicable to those directives, instructions, regulations, policy memoranda, manuals, and other forms of rulemaking (hereinafter referred to as “regulations”) that have a substantial and direct impact on the public. Only a regulation which must be published in the
(c) The determination by the component originating a regulation shall be final and conclusive in determining whether a regulation or a proposed regulation comes within the purview of this part. Consideration shall be given, however, to the definition of “rulemaking” found in 5 U.S.C. 551 as it relates to the requirements of 5 U.S.C. 553 in making this determination.
(d) The requirement for inviting public comment on a proposed regulation shall not be deemed applicable to any proposed regulation coming within one or more of the following exemptions or exceptions to the rulemaking procedures set forth in 5 U.S.C. 553.
(1) Any matter pertaining to a military or foreign affairs function of the United States which has been determined under the criteria of an Executive Order or statute to require a security classification in the interests of national defense or foreign policy.
(2) Any matter relating to (i) agency management, (ii) agency personnel, or (iii) public contracts (e.g., the Armed Services Procurement Regulation), including nonappropriated fund contracts.
(3) Any matter involving (i) interpretative rules, (ii) general statements of
(4) Any situation in which the DoD Component for good cause finds that inviting public comment on a proposed regulation is (i) impracticable, (ii) unnecessary, or (iii) contrary to the public interest, and incorporates in the adopted regulation that determination and its basis.
(e) Exceptions to the requirement in 5 U.S.C. 552 for publication in the
(a) It is the policy of the Department of Defense to encourage the maximum practicable participation of the public in the formulation of regulations having a substantial and direct impact on the public, and to inform the public fully through publication in the
(b) A proposed regulation which would originate a Department of Defense policy having a substantial and direct impact on the public should be published, along with a notice of purpose and authority, in the
(c) After their adoption, all regulations for the guidance of the public shall be published in the
(a) The general notice of a proposed regulation shall be published in the
(b) The notice shall include:
(1) A statement of the purpose and objective of the proposed regulation;
(2) Reference to the legal authority under which the regulation is proposed; and
(3) The terms or substance of the proposed regulation.
(c) Whenever the originating DoD Component finds that notice and prepublication of a proposed regulation for public comment are impracticable, unnecessary, or contrary to the public interest, it shall incorporate that finding and a brief statement of its reasons in the adopted regulation, or it may adopt and publish in the
(d) Following the publication of notice and the proposed regulation in the
Subject to the exemptions set forth in 32 CFR 286.6:
(a) Each DoD Component shall publish in the
(b) Information to be published in the
(1) Descriptions of the central and field organization of the component concerned, and the established places at which, the employees or members of the armed forces from whom, and the methods whereby the public may secure information, make submittals or requests, or obtain decisions.
(2) The procedures by which a DoD Component conducts its business with the public, both formally and informally.
(3) The rules of procedure which must be followed, the description of forms which must be completed, or the source from which forms may be obtained, and instructions on the scope and content of papers, reports, examinations required to be submitted pursuant to such rules of procedures, as adopted by the component.
(4) Directives, instructions, regulations, manuals, policy memorandums, statements of general policy, or interpretation of general applicability adopted by the agency, and other substantive rules of general applicability affecting the public.
(c) With the approval of the Director of the Federal Register, the requirement for publication in the
(1) In order to be eligible for incorporation by reference, the matter must be in the nature of published data, criteria, standards, specifications, techniques, illustrations, or other published information reasonably available to members of class affected thereby.
(2) Incorporation by reference is not acceptable as a complete substitute for promulgating in full text material required to be published by 5 U.S.C. 552.
(3) Incorporation by reference is acceptable as a means of avoiding unnecessary repetition within the promulgated document of published information already reasonably available to the class affected. Examples include:
(i) Construction standards promulgated by a professional association or architects, engineers, or builders.
(ii) Code of ethics promulgated by professional organizations.
(iii) Forms and formats publicly or privately published and readily available to the persons required to use them.
(d) It is incumbent upon each component to review all information of the type described in paragraph (b) of this section, to insure that it is published on an up-to-date basis in the
Each component shall accord any interested person the right to petition for the issuance, amendment, or repeal of a regulation that originates or would originate, for the Department of Defense or that component, a policy, requirement, or procedure coming within the scope of § 336.4. Any such petition shall be given full and prompt consideration by the component charged with the responsibility for issuing such a regulation. The petitioner shall be advised in writing of the disposition, and the reason for the disposition, of any written petition for the issuance, amendment, or repeal of a regulation. The official responsibility for disposition of the petition may at his absolute discretion, grant the petitioner a right to appear for the purpose of supporting his petition if this is compatible with the orderly conduct of public business.
This part becomes effective on February 1, 1975, but is applicable only to the regulations promulgated under the authority of a component after April 1, 1975. Two copies of implementing regulations shall be forwarded to the General Counsel of the Department of Defense on or before April 1, 1975.
10 U.S.C. 133, 31 U.S.C. 483a.
DoD Directives, DoD Instructions, and changes published in Chapter 2—Number Index section of DoD 5025.1-I, “DoD Directives System Annual Index” (except those issuances identified as classified) are available to the public and Government Agencies, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, telephone 703-487-4650.
DoD publications and changes published in Chapter 3—Publications section of DoD 5025.1-l, “DoD Directives System Annual Index” are available from the various sources that are identified in the Availability Column. Addresses for forwarding written requests to the various sources are listed at the beginning of chapter 3. A fee will be charged for DoD Publications ordered from the National Technical Information Service.
10 U.S.C. 133, 5 U.S.C. 552.
(a) The DNA issuances published in the DNA indexes are published under the following subject groups:
(b) Copies of DNA indexes and instructions may be ordered by telephone or letter. The commercial telephone number is (703) 325-7095. Include personal or company name, street address or post office box, city, state, country (if applicable) and zip code when submitting requests. Submit written requests to: Defense Nuclear Agency, Public Affairs Office, Washington, DC 20305-1000.
(c) This service is provided to the public and to federal agencies other than the Department of Defense. DNA does not charge for requests for an index and one instruction; however, fees for larger orders are determined on a case-by-case basis.
10 U.S.C. 136.
Under the authority vested in the Secretary of Defense by 10 U.S.C. 113 and 136, this part establishes the position of USD(P&R), with the responsibilities, functions, relationships, and authorities as prescribed herein. The functions previously assigned to the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) by DoD Directive 5124.2,
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(a)
(b)
The Under Secretary of Defense for Personnel and Readiness is the principal staff assistant and advisor to the Secretary and Deputy Secretary of Defense for Total Force management as it relates to readiness; National Guard and Reserve component affairs; health affairs; training; and personnel requirements and management, including equal opportunity, morale, welfare, and quality of life matters. In this capacity, the USD(P&R) shall:
(a) Develop policies, plans, and programs for:
(1) Total force personnel and their allocation among DoD Components and between the active and reserve components to ensure efficient and effective support of wartime and peacetime operations, contingency planning, and preparedness.
(2) Reserve component affairs to promote the effective integration of Reserve component capabilities into a cohesive total force.
(3) Health and medical affairs sufficient to provide, and maintain readiness to provide, medical services and support to members of the Armed Forces during military operations, and to provide medical services and support to members of the Armed Forces, their dependents, and others entitled to DoD medical care.
(4) Recruitment, training, equal opportunity, compensation, recognition, discipline, and separation of all DoD
(5) The quality of life of DoD personnel and their dependents, including family support, allowances, transition assistance, community services, and dependent education.
(6) DoD morale, welfare, and recreation programs and supporting non-appropriated fund revenue-generating programs including commissaries and exchanges.
(7) Interagency and intergovernmental activities, special projects, or external requests that create a demand for DoD personnel resources.
(b) Serve as OSD focal point for readiness issues; develop policies, management structures, and administrative processes to ensure forces have sufficient readiness to execute the National Military Strategy; oversee Total Force personnel and medical readiness; and coordinate with other Principal Staff Assistants and cognizant officials in the Office of the Chairman of the Joint Chiefs of Staff and in the Services on other aspects of readiness.
(c) Analyze the total force structure as related to quantitative and qualitative military and civilian personnel requirements, utilization, readiness and support. Administer and implement controls on military and civilian personnel strengths for Military Departments, Defense Agencies, and other DoD Components.
(d) Review and evaluate the requirements of the Defense Acquisition Board's major defense acquisition programs and proposed weapon systems for personnel, training, and readiness implications, and the implications of weapon systems maintainability for qualitative and quantitative personnel requirements and for readiness.
(e) Formulate policy for and ensure coordination of DoD Noncombatant Evacuation Operations (NEO).
(f) Participate in those planning, programming, and budgeting activities that relate to assigned areas of responsibility.
(g) Serve on boards, committees, and other groups pertaining to assigned functional areas and represent the Secretary of Defense on personnel, readiness, Reserve component, health, and compensation matters outside of the Department.
(h) Perform such other functions as the Secretary of Defense may prescribe.
(a) In the performance of assigned functions and responsibilities, the USD(P&R) shall:
(1) Report directly to the Secretary and Deputy Secretary of Defense.
(2) Exercise authority, direction, and control over:
(i) The Assistant Secretary of Defense for Health Affairs.
(ii) The Assistant Secretary of Defense for Reserve Affairs.
(iii) The Director, Defense Commissary Agency.
(iv) The Director, DoD Education Activity.
(v) The Director, Defense Manpower Data Center.
(vi) The Director, DoD Civilian Personnel Management Service.
(vii) The Director, Defense Institute for Training Resources Analysis.
(viii) The Commandant of the Defense Equal Opportunity Management Institute.
(ix) The Director, Defense Medical Programs Activity, through the Assistant Secretary of Defense for Health Affairs (ASD(HA)).
(x) The Director, Office of Civilian Health and Medical Programs of the Uniformed Services, through the ASD(HA).
(xi) The President, Uniformed Services University of the Health Sciences (USUHS), through the ASD(HA), pursuant to the authority vested in the Secretary of Defense by 10 U.S.C. chapter 104, except that the authority to appoint the President, USUHS, is reserved to the Secretary of Defense.
(xii) such other subordinate officials as may be assigned.
(3) Provide policy guidance and management supervision for the DoD Office of the Actuary, DoD Office of Special Events, U.S. Military Entrance Processing Command, Defense Activity for Non-Traditional Education Support, and the Armed Forces Professional Entertainment Program.
(4) Coordinate and exchange information with other OSD officials, Heads of
(5) Use existing facilities and services of the Department of Defense and other Federal Agencies, whenever practicable, to avoid duplication and to achieve maximum efficiency and economy.
(b) Other OSD officials and the Heads of the DoD Components shall coordinate with the USD(P&R) on all matters related to the responsibilities and functions cited in § 343.4.
(a) The USD(P&R) is hereby delegated authority to:
(1) Establish and allocate civilian personnel authorizations of the DoD Components and review and approve military and civilian personnel authorization changes during program execution.
(2) Issue DoD Instructions, DoD publications, and one-time directive-type memoranda, consistent with DoD 5025.1-M,
(3) Obtain reports, information, advice, and assistance, consistent with DoD Directive 8910.1,
(4) Communicate directly with the Heads of DoD Components. Communications to the Commanders of the Unified Combatant Commands shall be transmitted through the Chairman of the Joint Chiefs of Staff.
(5) Communicate with other Government officials, representatives of the legislative branch, members of the public, and representatives of foreign governments, as appropriate, in carrying out assigned functions.
(b) Other authorities specifically delegated by the Secretary of Defense are in appendix A to this part.
Pursuant to the authority vested in the Secretary of Defense, and subject to the authority, direction, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the USD(P&R) is hereby delegated authority to:
(a) Act for the Secretary of Defense in conducting a review of the military compensation system.
(b) Issue DoD issuances pertaining to the management of commissioned officers that are required to be issued by the Secretary of Defense under pertinent sections of 10 U.S.C., including those added by Public Law 96-513, “Defense Officer Personnel Management Act,” December 12, 1980, as amended by Public Law 77-22, “Defense Office Personnel Management Act Technical Corrections Act,” July 10, 1981, except when such delegation is specifically prohibited.
(c) Act for the Secretary of Defense to approve or disapprove recommendations for the Secretary of Defense Award for Productivity Excellence.
(d) Act for the Secretary of Defense to review and approve procedures established by the Secretaries of the Military Departments for the correction of military records under the authority of 10 U.S.C. 1552.
10 U.S.C. 136.
Under the authority vested in the Secretary of Defense by 10 U.S.C. 113 and 138, this part updates the responsibilities, functions, relationships, and
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(a)
(b)
The Assistant Secretary of Defense for Reserve Affairs is the principal staff assistant and advisor to the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) and the Secretary and Deputy Secretary of Defense for Reserve component matters in the Department of Defense. The ASD(RA) is responsible for overall supervision of all Reserve component affairs in the Department of Defense. In this capacity, the ASD(RA) shall:
(a) Develop policies, conduct analyses, provide advice, and make recommendations to the USD(P&R) and the Secretary of Defense, and issue guidance to the DoD Components on matters pertaining to the Reserve components.
(b) Develop systems and standards for the administration and management of approved DoD Reserve component plans and programs.
(c) Develop and promulgate plans, programs, actions, and taskings to ensure adherence to DoD policies and national security objectives to promote the effective integration of Reserve component capabilities into a cohesive total force.
(d) Review and evaluate programs of the DoD Components that impact on the reserve components; monitor the activities of reserve component organizations, training facilities, and associations; and undertake other management oversight activities as may be required to ensure that policies, plans, programs, and actions pertaining to the reserve components:
(1) Adhere to approved DoD policies and standards.
(2) Are compatible and support total force objectives and requirements.
(3) Enhance the readiness and capabilities of reserve component units and personnel.
(4) Promote the integration of reserve components with active duty forces.
(5) Make the most effective use of reserve components within the total force.
(e) Participate in planning, programming, and budgeting activities that relate to assigned areas of responsibility.
(f) Promote, with respect to the reserve components, coordination, cooperation, and mutual understanding within the Department of Defense and among the Department of Defense and other federal agencies, state and local governments, the civilian community at large, and the employers of Reserve component personnel.
(g) Promote family support plans, policies, and programs in line with the reserve component mission.
(h) Serve on boards, committees, and other groups pertaining to assigned functional areas and represent the Secretary of Defense on reserve component matters outside the Department.
(i) Consistent with 10 U.S.C. 675, coordinate issues and positions of the Reserve Force Policy Board (RFPB) and review reports of the RFPB prior to forwarding to the USD(P&R) and the Secretary of Defense. Provide administrative staff support to the RFPB.
(j) Serve as the vice chairman of the Conventional Forces Readiness Committee.
(k) Perform such other functions as the USD(P&R) and the Secretary of Defense may prescribe.
(a) In the performance of assigned functions and responsibilities, the ASD(RA) shall serve under the authority, direction, and control of the USD(P&R) and shall:
(1) Report directly to the USD(P&R).
(2) Exercise authority, direction, and control over the National Committee for Employer Support of the Guard and Reserve.
(3) Coordinate and exchange information with the OSD officials, Head of the DoD components, and Federal officials having collateral or related functions.
(4) Use existing facilities and services of the Department of Defense or other Federal Agencies, whenever practicable, to avoid duplication and to achieve maximum efficiency and economy.
(b) Other OSD officials and the Heads of the DoD components shall coordinate with the ASD(RA) on all matters related to the responsibilities and functions cited in § 344.4.
The ASD(RA) is hereby delegated authority to:
(a) Act for the Secretary of Defense, in accordance with section 411 of Pub. L. 103-160 and future authorization acts that contain this provision, to increase the authorized end strength for Reserve personnel by not more than 2 percent of the prescribed Reserve personnel end strength, or such other percentage as shall be authorized by statute, when the increase is in the national interest.
(b) Issue DoD Instructions, DoD publications, and one-time directive-type memoranda, consistent with DoD 5025.1-M,
(c) Obtain reports, information, advice, and assistance, consistent with DoD Directive 8910.1,
(d) Communicate directly with Heads of the DoD Components. Communications to the Unified Combatant Commands shall be transmitted through the Chairman of the Joint Chiefs of Staff.
(e) Communicate with other Government officials, representatives of the legislative branch, members of the public, and representatives of foreign governments, as appropriate, in carrying out assigned functions.
20 U.S.C. 2362.
This part, pursuant to the authority vested in the Secretary of Defense under 20 U.S.C. 2362, establishes the Department of Defense (DoD) section 6 Schools with the mission, organization, responsibilities, functions, relationships, and authorities as prescribed herein.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Defense Agencies,
(b) The schools (pre-kindergarten through grade 12) operated by the Department of Defense within the Continental United States (CONUS), Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands.
The mission of the DoD section 6 Schools is to provide a free public education of high quality from pre-kindergarten through grade twelve for eligible dependent children of U.S. military personnel and federally employed civilian personnel, when those children are eligible for an education in DoD section 6 Schools under 20 U.S.C. 2362, 20 U.S.C. 241 note, 32 CFR part 68, and 20 U.S.C. 1400 et. seq., to provide a free, appropriate education for dependents with disabilities, ages 3 through 21.
The DoD section 6 Schools Office is established as an organizational element of the DoD Education Activity (DoDEA), a DoD Field Activity operating under the direction, authority, and control of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). It shall consist of a Director and such subordinate organizational structures and activities as shall be established by the Director, DoD section 6 Schools, with the resources authorized by the ASD(FM&P).
(a) The Director, DoD section 6 Schools, shall perform all of the duties necessary to organize, manage, fund, direct, and supervise the complete operation of the DoD section 6 Schools. These duties include, but are not limited to, the following:
(1) Serve as the principal advisor and staff assistant to the ASD(FM&P) on matters relating to the DoD section 6 Schools.
(2) Ensure the development of policies and procedures for the operation, management, budgeting (in accordance with guidance provided by the Comptroller, Department of Defense), construction, and financing of DoD section 6 Schools and for DoD section 6 Special Arrangements (as defined in 32 CFR part 68 for eligible dependent children in CONUS, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands, under 20 U.S.C. 2362, 20 U.S.C. 241 note, and 32 CFR part 68.
(3) Ensure the establishment of elected school boards in DoD section 6 School Arrangements operating under 20 U.S.C. 2362 and 20 U.S.C. 241 note. The functions of such school boards shall be to oversee school expenditures and operations, subject to audit procedures established by the Director, section 6 Schools and consistent with 20 U.S.C. 2362, 20 U.S.C. 241 note, and this part.
(4) Ensure that the free public education being provided under this part is, to the maximum extent practicable, comparable to that being provided by comparable public school districts in the State in which the DoD section 6 School Arrangement or DoD section 6 Special Arrangement (as defined in 32 CFR part 68) is located or, if outside of CONUS, Alaska, and Hawaii, as the being provided by the District of Columbia Public Schools.
(5) Ensure the establishment of audit procedures for reviewing funding of DoD section 6 School Arrangements and DoD section 6 Special Arrangements.
(6) Ensure timely and accurate preparation of budget execution reports and full compliance with accounting requirements in accordance with DoD 7220.9-M.
(7) Ensure that nonappropriated funds and related activities of DoD section 6 School Arrangements are reviewed under DoD Directive 7600.6.
(8) Establish guidance for student eligibility for DoD section 6 School Arrangements.
(9) Negotiate interservice support agreements with the Military Departments in accordance with DoD Directive 4000.19.
(10) Perform other functions as may be assigned by the ASD(FM&P).
(b) The Assistant Secretary of Defense (Force Management and Personnel) shall:
(1) Recommend policies and resources for the administration of the DoD section 6 Schools to the Secretary of Defense.
(2) Exercise direction, authority, and control over the Director, DoD section 6 Schools, through the Director of Education, in accordance with 32 CFR part 346.
(3) Issue, as necessary, DoD instructions, publications, and other guidance implementing this part.
(c) The Comptroller of the Department of Defense shall provide technical advice and assistance to the Director, DoD section 6 Schools, on budget and financial management activities of the DoD section 6 Schools.
(d) The General Counsel of the Department of Defense shall:
(1) Coordinate on guidance established by the Director, DoD section 6 Schools, for student eligibility for DoD section 6 School Arrangements.
(2) Provide legal advice on the implementation of this part.
(e) The Secretaries of the Military Departments shall provide such facilities, logistics, and administrative support as are required for the effective operation of the DoD section 6 Schools program. Reimbursements for goods and services shall be made in accordance with DoD Directive 4000.19 and DoD Directive 1400.16.
(a) In the performance of assigned duties, the Director, DoD section 6 Schools, shall:
(1) Exchange information and advice and coordinate actions with DoD Components having collateral or related functions.
(2) Use established facilities and services in the Department of Defense and other Government Agencies, whenever practicable, to achieve maximum efficiency and economy of operations.
(3) Consult and coordinate with other governmental and nongovernmental agencies on matters related to the mission of the DoD section 6 Schools.
(b) All DoD Components shall coordinate with the Director, DoD section 6 Schools, as appropriate, on all matters relating to the operation of the DoD section 6 Schools.
The Director, DoD section 6 Schools, is specifically delegated authority to:
(a) Execute the responsibilities and functions described in § 345.5.
(b) Obtain reports, information, advice, and assistance, consistent with the policies and criteria of DoD Directive 7750.5,
(c) Communicate directly with appropriate representatives of the DoD Components and other governmental and nongovernmental agencies on matters related to the DoD section 6 Schools.
(d) Exercise the operational and administrative authorities contained in appendix A to this part.
(a) The Director, DoD section 6 Schools, shall be a civilian selected by the ASD(FM&P).
(b) Administrative support for Headquarters, DoD section 6 Schools, and DoD section 6 Schools field elements shall be provided by the DoD Components.
(c) The DoD section 6 Schools Office shall be authorized such personnel, facilities, funds, and other resources as the Secretary of Defense deems necessary.
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) or, in the absence of the ASD(FM&P), the person acting for the ASD(FM&P), is hereby delegated authority, as required in administration and operation of the DoD section 6 Schools, to:
1. Make determinations with respect to recruiting, selecting, removing, disciplining, and taking other actions involving civilian employees of the DoD section 6 Schools.
2. In accordance with 5 U.S.C. 7532; E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 200; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166; and DoD Directive 5200.2,
a. Designate any position in the DoD section 6 Schools as a “sensitive” position.
b. Authorize, in case of an emergency, the appointment of a person to a sensitive position in the DoD section 6 Schools for a limited period of time and for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of a DoD section 6 Schools employee in the interest of national security.
3. Authorize and approve:
a. Travel for DoD section 6 Schools civilian employees, in accordance with Volume II, Joint Travel Regulations.
b. Invitational travel to non-DoD personnel whose consultative, advisory, or other highly specialized technical services are required in a capacity that is directly related to, or in connection with, DoD section 6 Schools activities, in accordance with Volume II, Joint Travel Regulations.
c. Overtime work for DoD section 6 Schools civilian employees in accordance with chapter 55, subpart V, of 5 U.S.C. and applicable OPM regulations.
4. Develop, establish, and maintain an active and continuing Records Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2,
5. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, and other public periodicals, as required for the effective administration of the DoD section 6 Schools consistent with 44 U.S.C. 3702.
6. Establish and maintain, for the functions assigned, an appropriate publications system for the promulgation of common supply and service regulations, instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M,
7. Enter into support and service agreements with other DoD Components, including the Military Departments, as required for the effective performance of responsibilities and functions assigned to the DoD section 6 Schools.
8. Enter into and administer contracts directly or through a Military Department, a DoD contract administration services component, or other Government Department or Agency, as appropriate, for supplies, equipment, and services required to accomplish the mission of the DoD section 6 Schools. To the extent that any law or Executive order specifically limits the exercise of such authority to persons at the Secretarial level of a Military Department, such authority shall be exercised by the appropriate Under Secretary or Assistant Secretary of Defense.
The ASD(FM&P) may redelegate these authorities, as appropriate, and in writing, except as otherwise specifically indicated above, or as otherwise provided by law or regulation.
10 U.S.C. 131(b).
Pursuant to the authority vested in the Secretary of Defense under 10 U.S.C. 131(b), this part establishes the DoDEA with responsibilities, functions, authorities, and relationships as outlined.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Commands; the Office of the Inspector General, Department of Defense; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as the “DoD Components.”) The term “ Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
The mission of the DoDEA is to:
(a) Advise and act for the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) on all matters relative to the DoD Dependents Schools (DoDDS), section 6 Schools, and Continuing and Post-Secondary Education (CAPSE) programs.
(b) Formulate and develop policies, guidelines, and standards for the management of defense education activities and programs.
(c) Plan, direct, coordinate, and manage the education programs for eligible dependents of U.S. military personnel and civilian personnel of the Department of Defense stationed overseas in accordance with 32 CFR part 347.
(d) Plan, direct, coordinate, and manage the education programs for eligible dependents of U.S. military and civilian personnel stationed in areas prescribed in 20 U.S.C. 2362; in accordance with 20 U.S.C. 241 note; and 32 CFR part 68.
(e) Plan, direct, coordinate, and oversee the programs and services for continuing adult and post-secondary education for U.S. military personnel.
The DoDEA is established as a DoD Field Activity under the authority, direction, and control of the ASD(FM&P). It shall consist of:
(a) A Director, who shall be known as the Director of Education.
(b) The DoDDS which, under 32 CFR part 347, provides a free public education of high quality from pre-kindergarten through grade twelve for eligible minor dependents of U.S. military and civilian personnel of the Department of Defense stationed overseas; a free, appropriate education for such minor dependents with disabilities, ages 3 through 21; and a community college program for eligible students in Panama.
(c) The DoD section 6 Schools Office which, under 32 CFR part 345, provides a free public education for dependent children of U.S. military personnel and federally employed civilian personnel when those children are eligible for an education in DoD section 6 Schools under 20 U.S.C. 2362, 20 U.S.C. 241 note, and 32 CFR part 68. Such free public education arrangements shall be made by the Secretary of Defense either with a local educational agency or with the head of a Federal Department or Agency, consistent with 20 U.S.C. 2362.
(d) The Office of CAPSE which, under DoD Directive 1322.8,
(e) Other subordinate elements as are established by the Director, within the resources assigned by the ASD(FM&P).
(a) The Director of Education shall:
(1) Serve as the principal staff advisor to the ASD(FM&P) on the DoDDS, section 6 Schools, and CAPSE programs.
(2) Organize, manage, and direct the DoDEA, its subordinate elements, and all assigned resources.
(3) Establish subordinate offices necessary to fulfill assigned missions.
(4) Supervise, administer, implement, and evaluate the policies and procedures for the DoDDS, the section 6 Schools, and the CAPSE programs.
(5) Enter into agreements with the Military Services or other U.S. Government entities, as required, for the effective performance of the responsibilities assigned in this part.
(6) Supervise and administer DoDEA financial management activities.
(7) Develop, for issuance by the ASD(FM&P), such policy or technical guidance, regulations, and instructions as are required to effectively administer and manage the education programs established under this part.
(8) Provide DoDEA representation at meetings and deliberations of educational panels and advisory groups.
(9) Perform other functions as may be assigned by the ASD(FM&P).
(b) The Assistant Secretary of Defense (Force Management and Personnel) shall:
(1) Recommend to the Secretary of Defense policies and resources for the administration of the DoDDS, section 6 Schools, and CAPSE programs.
(2) Exercise direction, authority, and control over the DoDEA.
(c) The Comptroller of the Department of Defense shall provide technical advice and support to the Director for Education on budget and financial management activities to the DoDEA.
(d) The General Counsel of the Department of Defense shall provide legal advice on the implementation of this part.
(e) The Secretaries of the Military Departments shall provide such facilities, logistic, and administrative support as are required for the effective operation of the DoDDS, section 6 Schools, and CAPSE programs. Reimbursements for goods and services shall be made in accordance with DoD Instruction 4000.19
(a) In the performance of assigned duties, the Director of Education shall:
(1) Exchange information and advice and coordinate actions with DoD Components having collateral or related functions.
(2) Use established facilities and services in the Department of Defense and other Government Agencies, whenever practical, to achieve maximum efficiency and economy of operations.
(3) Consult and coordinate with other government and nongovernmental agencies on matters related to the mission of the DoDEA.
(b) All DoD Components shall coordinate with the Director of Education, as appropriate, on matters affecting the mission and operation of the DoDEA.
The Director of Education is specifically delegated authority to:
(a) Execute the responsibilities and functions described in § 346.5.
(b) Obtain reports, information, advice, and assistance, consistent with the policies and criteria of DoD Directive 7750.5,
(c) Communicate directly with appropriate representatives of the DoD Components and other governmental and nongovernmental agencies on matters related to the DoDDS, section 6 Schools, and CAPSE programs.
(a) The Director of Education shall be a civilian selected by the ASD(FM&P).
(b) Administrative support to the DoDEA shall be provided by DoD Components.
(c) The DoDEA shall be authorized such personnel, facilities, funds, and other resources as the Secretary of Defense deems necessary.
10 U.S.C. 131(b).
This part:
(a) Updates the organization, responsibilities, functions, relationships, and authorities for the administration of the DoDDS, which operates schools in overseas areas.
(b) Under 10 U.S.C. 131(b), establishes, pursuant to the authority vested in the Secretary of Defense, the DoDDS, with the mission, organization, responsibilities, functions, relationships, and authorities as prescribed herein.
(c) Under 20 U.S.C. 2701 et. seq. and 20 U.S.C. 1400 et. seq., establishes the Advisory Council on Dependents' Education (ACDE) and the Overseas Dependents' Schools National Advisory Panel on the Education of Disabled Dependents (NAP); establishes the Dependents Education Council (DEC); and, under DoD Instruction 1342.15,
(d) Continues to authorize publication of DoD 1342.6-M
This part applies to:
(a) The Office of the Secretary of Defense; the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Commands; the Office of the Inspector General, Department of Defense; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
(b) Members appointed to serve on the ACDE, the NAP, the DEC, and other EACs established under authority of 20 U.S.C. 2701 et seq., and DoD Instruction 1342.15.
The mission of the DoDDS is to provide, pursuant to 20 U.S.C. 2701 et. seq. and DoD Directive 1342.13,
(a) The DoDDS shall also provide programs designed to meet the special needs of:
(1) The disabled.
(2) Individuals in need of compensatory education.
(3) Individuals with an interest in vocational education.
(4) Gifted and talented individuals.
(5) Individuals of limited English-speaking ability.
(6) A developmental preschool program for eligible dependents who are of preschool age.
(b) The DoDDS may also provide, to the extent funds are available:
(1) Extracurricular and co-curricular programs and activities to enrich the school environment and experience.
(2) Student travel to compete in interscholastic programs and competitions.
(a) The DoDDS is established as an organizational element of the DoD Education Activity (DoDEA), a DoD Field Activity operating under the direction, authority, and control of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). It shall consist of:
(1) A Director.
(2) The Office of Dependents' Education, which is the headquarters element of the DoDDS.
(3) A subordinate organizational structure and such subordinate activities as shall be established by the Director, DoDDS, within resources authorized by the ASD(FM&P).
(b) An ACDE shall be established, in accordance with 20 U.S.C. et. seq., and DoD Directive 5105.4,
(c) A DEC shall be established to provide a consultative relationship between the ASD(FM&P) and the Director, DoDDS, and the Commanders of Unified Combatant Commands and major Service Commands to consider questions of educational policy, and matters related to facilities, logistics, and administrative support provided to the DoDDS by the Military Services.
(d) An Overseas Dependents' Schools National Advisory Panel on the Education of Disabled Dependents shall be established to advise the Director, DoDDS, regarding the needs and requirements for the education of disabled children, as well as the rules and standards that should be developed and maintained for the operation of the system.
(e) Other EACs shall be established to ensure effective communication between school administrators at all levels of administration within the DoDDS and the total school community. The operation of the EACs shall be in accordance with DoD Directive 1342.15.
(a) The Director, DoD Dependents Schools, shall perform all duties necessary to organize, manage, fund, direct, and supervise the complete operation of the DoDDS. These duties include, but are not limited to, the following duties:
(1) Serve as the principal advisor and staff assistant to the ASD(FM&P) on matters relating to overseas dependents education.
(2) As required for the DoDDS to perform its mission effectively, develop policies and systems; conduct research, analysis, and evaluation; and issue guidance and regulations.
(3) Keep abreast of developments in the elementary, secondary, and higher education field to ensure appropriate assimilation of new programs and technologies in the overseas dependents schools.
(4) Enter into agreements with or through the DoD Components and other U.S. Government entities, and form such agreements as may be required for the effective performance of the DoDDS program.
(5) Establish subordinate offices and schools necessary to fulfill the mission when practical and/or cost-beneficial.
(6) Provide recommendations and support to the ASD(FM&P) in the development and justification of school construction, modification, and/or repair projects included in annual military construction programs.
(7) Develop, publish, interpret, and maintain:
(i) DoD 1342.6-M to implement this part and other policy decisions of the Secretary of Defense.
(ii) Eligibility policy and procedures for enrollment in an overseas dependents school.
(iii) Policy and procedures for the operation and management of the ACDE, the DEC, the Overseas Dependents' Schools National Advisory Panel on the Education of Disabled Dependents, the installation and local advisory committees, and other EACs.
(iv) Policy and procedures for the delivery of education and related services for children with disabilities.
(8) Engage in collective bargaining and enter into collective bargaining agreements.
(9) Ensure that the DoDDS are operated in accordance with governing law and regulation and with appropriate internal controls.
(10) Enter into agreements with such domestic and foreign national school entities as are necessary to ensure the delivery of educational services under 20 U.S.C. 2701 et. seq., when no overseas dependent school operated by the Department of Defense is determined by DoDDS to be reasonably available.
(11) Accept gratuitous services offered in support of DoDDS programs and mission.
(12) Ensure timely and accurate preparation of budget execution reports and full compliance with accounting requirements in accordance with DoD 7220.9-M.
(13) Establish and operate a nonappropriated fund for the support of student activities that are not supported from appropriated funds.
(14) Establish membership in, and maintain liaison with, such professional educational associations or organizations as are necessary to maintain currency in educational developments and technologies, ensure the proper accreditation of the schools, and promote the advancement of educational goals and objectives.
(15) Serve as the Executive Secretary of the DEC.
(16) Serve as the Executive Secretary of the ACDE in accordance with 20 U.S.C. 2701 et seq.
(17) Perform other functions as may be assigned by the ASD(FM&P).
(b) The Assistant Secretary of Defense (Force Management and Personnel) shall:
(1) Recommend policies and resources for the administration of the DoDDS to the Secretary of Defense.
(2) Exercise direction, authority, and control over the Director, DoDDS, through the Director of Education, in accordance with 32 CFR part 346.
(c) The Advisory Council on Dependents' Education shall meet periodically to:
(1) Recommend to the Director, DoDDS, general policies for operation of the defense dependents' education system with respect to curriculum selection, administration, and operation of the system.
(2) Facilitate the exchange of information between the Director, DoDDS, and other Federal Agencies regarding educational practices and programs that are relevant to the DoDDS.
(3) Perform such other tasks as may be assigned by the ASD(FM&P).
(d) The Dependents Education Council shall meet periodically to:
(1) Consider questions of policy relating to the DoDDS.
(2) Facilitate exchange of information between the DoDDS and the Military Services.
(3) Provide advice to the ASD(FM&P) on matters pertaining to the DoDDS.
(e) The Overseas Dependents' Schools National Advisory Panel on the Education of Disabled Dependents shall meet periodically to:
(1) Recommend to the Director, DoDDS, general policies for operation of the defense dependents' education system with respect to education of individuals with disabilities.
(2) Facilitate the exchange of information between the Director, DoDDS, and officials of other Federal Agencies regarding practices and programs that are relevant to education of individuals with disabilities.
(3) Perform such other tasks as may be assigned by the ASD(FM&P).
(f) The Comptroller of the Department of Defense shall provide technical advice and assistance to the Director, DoDDS, on budget and financial management activities of the DoDDS.
(g) The General Counsel of the Department of Defense shall provide legal advice on the implementation of this part.
(h) The Secretaries of the Military Departments, upon request, shall provide such facilities, logistics, and administrative support as are required for the effective operation of DoDDS activities and the operation of the DEC and other educational advisory committees and councils, including travel and per diem expenses of participant members. Reimbursements for goods and services shall be made in accordance with DoD Instruction 4000.19
(a) In the performance of assigned duties, the Director, DoDDS, shall:
(1) Exchange information and advice and coordinate actions with DoD Components having collateral or related functions.
(2) Use established facilities and services in the Department of Defense and
(3) Consult and coordinate with other governmental and nongovernmental agencies on matters related to the mission of the DoDDS.
(b) All DoD Components shall coordinate with the Director, DoDDS, as appropriate, on matters affecting the mission and operation of the DoDDS.
The Director, DoDDS, is specifically delegated authority to:
(a) Execute the responsibilities and functions described in § 347.5.
(b) Obtain reports, information, advice, and assistance, consistent with the policies and criteria of DoD Directive 7750.5,
(c) Communicate directly with appropriate representatives of the DoD Components and other governmental and nongovernmental agencies on matters related to the DoDDS.
(d) Exercise the operational and administrative authorities in appendix A to this part when delegated by the ASD(FM&P).
(a) The Director, DoDDS, shall be a civilian selected by the ASD(FM&P).
(b) The DoDDS shall be authorized such personnel, facilities, funds, and other resources as the Secretary of Defense deems necessary.
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the Assistant Secretary of Defense (Force Management and Personnel) ASD(FM&P)), or in the absence of the ASD(FM&P), the person acting for the ASD(FM&P), is hereby delegated authority as required in the administration and operation of the DoDDS to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C. 301, 302, and 3101 on the employment, direction, and general administration of DoDDS civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates established under the Coordinated Federal Wage System. In fixing such rates, the ASD(FM&P) shall follow the wage schedule established by the DoD Wage Fixing Authority.
3. Establish advisory committees and employ temporary or intermittent experts or consultants, as approved by the Secretary of Defense, for the performance of DoDDS functions consistent with 10 U.S.C. 173, 5 U.S.C. 3109(b), DoD Directive 5105.4, and the agreement between the Department of Defense and the Office of Personnel Management (OPM) on employment of experts and consultants, June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive Branch of the Federal Government or any other oath required by law in connection with employment therein, in accordance with 5 U.S.C. 2903, and designate in writing, as may be necessary, officers and employees of the DoDDS to perform this function.
5. Establish a DoDDS Incentive Awards Board and authorize cash awards to, and incur necessary expenses for, the honorary recognition of civilian employees of the Government whose suggestions, inventions, superior accomplishments, or other personal efforts, including special acts or services, benefit or affect the DoDDS or its subordinate activities, in accordance with 5 U.S.C. 4503, applicable OPM regulations, and DoD Directive 5120.15.
6. In accordance with 5 U.S.C. 7532; E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 200; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166; and DoD Directive 5200.2,
a. Designate any position in the DoDDS as a “sensitive” position.
b. Authorize, in case of an emergency, the appointment of a person to a sensitive position in the DoDDS for a limited period of time and for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of a DoDDS employee in the interest of national security.
7. Authorize and approve:
a. Travel for DoDDS civilian employees in accordance with Volume II, Joint Travel Regulations.
b. Invitational travel to non-DoD personnel whose consultative, advisory, or other highly specialized technical services are required in a capacity that is directly related to, or in connection with, DoDDS activities,
c. Overtime work for DoDDS civilian employees in accordance with chapter 55, subchapter V, of 5 U.S.C. and applicable OPM regulations.
8. Develop, establish, and maintain an active and continuing Records Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2.
9. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals as required for the effective administration and operation of the DoDDS, consistent with 44 U.S.C. 3702.
10. Establish and maintain, for the functions assigned, an appropriate publications system for the promulgation of common supply and service regulations, instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M.
11. Enter into support and service agreements with the Military Departments, other DoD Components, or other Government Agencies, as required, for the effective performance of DoDDS functions and responsibilities.
12. Enter into and administer contracts, directly or through a Military Department, a DoD contract administration services component, or other Federal Agency, as appropriate, for supplies, equipment, and services required to accomplish the mission of the DoDDS. To the extent that any law or Executive order specifically limits the exercise of such authority to persons at the Secretarial level of a Military Department, such authority shall be exercised by the appropriate Under Secretary or Assistant Secretary of Defense.
13. Approve waivers of indebtedness for DoDDS employees in accordance with 5 U.S.C. 5584.
The ASD(FM&P) may redelegate these authorities, as appropriate, and in writing, except as otherwise provided by law or regulation.
These delegations of authority are October 13, 1992.
10 U.S.C. 113.
Pursuant to the authority vested in the Secretary of Defense under provisions of title 10, United States Code, this part establishes the Defense Finance and Accounting Service (DFAS) as an Agency of the Department of Defense with responsibilities, functions, authorities, and relationships.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments; the Chairman, Joint Chiefs of Staff and Joint Staff; the Unified and Specified Commands; the Inspector General of the Department of Defense (IG, DoD); the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”)
(a) The DFAS is established as an Agency of the Department of Defense under the direction, authority, and control of the Comptroller of the Department of Defense (C, DoD).
(b) The DFAS shall consist of a Director, selected by the Secretary of Defense, and such subordinate organizational elements as are established by the Director within resources authorized by the Secretary of Defense.
(c) Military personnel shall be assigned to the DFAS in accordance with approved authorizations and procedures for assignment to joint duty.
(a) The Director, Defense Finance and Accounting Service (DFAS), is the principal DoD executive for finance and accounting requirements, systems, and functions identified in DoD Directive 5118.3,
(1) Organize, direct, and manage the DFAS and all assigned resources.
(2) Direct finance and accounting requirements, systems, and functions for all appropriated, nonappropriated, working capital, revolving, and trust fund activities, including security assistance.
(3) Establish and enforce requirements, principles, standards, systems, procedures, and practices necessary to comply with finance and accounting statutory and regulatory requirements applicable to the Department of Defense.
(4) Provide finance and accounting services for DoD Components and other Federal activities, as designated by the C, DoD.
(5) Direct the consolidation, standardization, and integration of finance and accounting requirements, functions, procedures, operations, and systems within the Department of Defense and ensure their proper relationship with other DoD functional areas (e.g., budget, personnel, logistics, acquisition, civil engineering, etc.).
(6) Execute statutory and regulatory financial reporting requirements and render financial statements.
(7) Serve as the proponent for civilian professional development in finance and accounting disciplines, and act as approval authority for competency standards and training requirements for appropriate military positions within the DFAS.
(8) Provide advice and recommendations to the C, DoD, on finance and accounting matters.
(9) Approve the establishment or maintenance of all finance and accounting activities independent of the DFAS.
(10) Develop, issue, and maintain DoD 7220.9-M,
(11) Perform other functions as the Secretary of Defense, Deputy Secretary of Defense, or the C, DoD, may prescribe.
(b) The Comptroller of the Department of Defense (C, DoD) shall provide guidance and direction to the Director, DFAS, on policies and procedures related to the development and operation of DFAS programs and systems.
(c) The Heads of DoD Components shall:
(1) Comply with the requirements, principles, standards, procedures, and practices issued pursuant to § 352a.4(a).
(2) Obtain finance and accounting services from the DFAS.
(3) Provide facilities, personnel, and other support and assistance required to accomplish DFAS objectives, consistent with this Directive and the responsibilities and functions in § 352a.4(a) and the authorities in § 352a.6.
(d) Operational commanders shall continue to be responsible for the control, location, and safety of deployed accounting and finance personnel and resources.
(a) In the performance of assigned responsibilities and functions, the Director, DFAS, shall:
(1) Maintain liaison with DoD Components, other Government Agencies, foreign governments, and private sector organizations for the exchange of information concerning assigned programs, activities, and responsibilities.
(2) Use established facilities and services of the Department of Defense and other Federal Agencies, whenever practicable, to avoid duplication and to achieve modernization, efficiency, economy, and user satisfaction.
(b) The heads of DoD Components shall coordinate with the Director, DFAS, on all matters related to the responsibilities and functions listed in § 352a.4(a).
The Director, DFAS, is specifically delegated authority to:
(a) Represent the C, DoD, on finance and accounting matters.
(b) Have free and direct access to, and communicate with, DoD Components and other Executive Departments and Agencies concerning finance and accounting activities, as necessary.
(c) Enter into agreements with DoD Components and other Government or Non-Government entities for the effective performance of the DFAS mission and programs.
(d) Establish DFAS facilities if needed facilities or services of other DoD Components are not available. Establishment of new facilities and services will be accomplished during normal program and budget processes.
(e) Obtain reports, information, advice, and assistance from DoD Components, consistent with the policies and criteria of DoD Directive 7750.5.
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the Director, Defense Finance and Accounting Service (DFAS), or in the absence of the Director, the person acting for the Director, is hereby delegated authority as required in the administration and operation of the DFAS to:
1. Establish advisory committees and employ part-time advisors, as approved by the Secretary of Defense, in support of assigned DFAS functions pursuant to 10 U.S.C. 173; Pub. L. 92-463, “Federal Advisory Committe Act”; and DoD Directive 5105.4
2. Designate any position in the DFAS as a “sensitive” position, in accordance with 5 U.S.C. 7532; Executive Order 10450, as amended; and DoD Directive 5200.2
a. Authorize, in case of an emergency, the appointment to a sensitive position, for a limited period of time, of a person for whom a full field investigiation or other appropriate investigation, including the National Agency Check, has not been completed.
b. Authorize the suspension, but not terminate the service, of the employee in the interest of national security.
3. Authorize and approve overtime work for assigned civilian personnel in accordance with 5 U.S.C. chapter 55, subchapter V, and applicable Office of Personnel Management (OPM) regulations.
4. Authorize and approve:
a. Travel for assigned personnel, in accordance with Joint Travel Regulations.
b. Invitational travel to persons serving without compensation whose consultative, advisory, or other services are required for assigned activities and responsibilities pursuant to 5 U.S.C. 5703.
5. Approve the expenditure of funds available for travel by assigned or detailed military personnel for expenses regarding attendance at meetings of technical, scientific, professional, or other similar organizations in such instances when the approval of the Secretary of Defense, or designee, is required by law (37 U.S.C. 412 and 5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
6. Develop, establish, and maintain an active and continuing Records Management Program and DoD Directive 5015.2
7. Establish and use imprest funds for making small purchases of material and services, other than personal services, when it is determined more advantageous and consistent with the best interests of the Government, in accordance with DoD Directive 7360.10
8. Authorize the publication of advertisements, notices, or proposals, in newspapers, magazines, or other public periodicals as required for the effective administration and operation of assigned responsibilities, consistent with 44 U.S.C. 3702.
9. Establish and maintain appropriate property accounts, appoint Boards of Survey, approve reports of survey, relieve personal liability, and remove accountability for Agency property contained in the authorized property accounts that has been lost, damaged, stolen, destroyed, or otherwise rendered unserviceable, in accordance with applicable laws and regulations.
10. Promulgate the necessary security regulations for the protection of property placed under the jurisdiction of the Director, pursuant to DoD Directive 5200.8
11. Establish and maintain a publications system for the promulgation of common accounting and finance regulations, instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M
12. Exercise the powers vested in the Secretary of Defense by 5 U.S.C. 310, 302(b), and 3101 of the employment, direction, and general administration of assigned employees.
13. Administer oaths of office to those entering the Executive branch of the Federal Government or any other oath required by law in connection with employment therein, in accordance with 5 U.S.C. 2903, and designate in writing, as may be necessary, officers and employees of the DFAS to perform this function.
14. Establish a DFAS Incentive Awards Board, and pay cash awards to, and incur necessary expenses for the honorary recognition of, civilian employees of the Government whose suggestions, inventions, superior accomplishments, or other personal efforts, including special acts or services, benefit or affect the DFAS or its subordinate activities, in accordance with 5 U.S.C. 4503, OPM regulations, and DoD Directive 5120.15
15. Act as an agent for the collection and payment of employment taxes imposed by Chapter 21 of the Internal Revenue Code of 1954, as amended; and, as such agent, make all determinations and certification required or provided for under the Internal Revenue Code of 1954, as amended (26 U.S.C. 3122), and the Social Security Act (42 U.S.C. 405(p)(1) and (2)), as amended, on assigned employees.
16. Enter into and administer contracts directly or through a Military Department, a DoD contracting administration service component, or other Government Department or Agency, as appropriate, for supplies, equipment, and services required to accomplish the DFAS mission.
17. Oversee disbursing officials and operations in accordance with the procedures of 31 U.S.C., as follows:
a. Manage the approval and appointment process for disbursing and certifying officials pursuant to 31 U.S.C. 3321 and 3325.
b. Make determinations and recommendations with respect to the granting of relief to disbursing officials pursuant to the authority contained in 31 U.S.C. 3527.
c. Approve requests to hold cash at personal risk for authorized purposes, including imprest funds, and to redelegate such authority as appropriate in the administration and control of DoD funds, consistent with the Treasury Financial Manual (TFM) and under the authority of 31 U.S.C. 3321 and 3342.
d. Approve DoD Component disbursing regulations developed to implement the TFM and to grant waivers when delegated by the Secretary of the Treasury to heads of Executive Departments and Agencies.
10 U.S.C. 193.
This part changes the name of the Defense Communications Agency (DCA) to the Defense Information Systems Agency (DISA) and revises the responsibilities, functions, relationships, and authorities of the DISA. For the purposes of 10 U.S.C. 193, any other law or regulation, or for any other purpose, DISA will perform the functions of the Defense Communications Agency.
(a)
(2) The DCS includes fixed, transportable, and mobile facilities. It consists of:
(i) Switching and/or relay facilities to include associated software of the general purpose (common user) networks, such as Defense Switched Network (DSN), Automatic Digital Network (AUTODIN), Defense Data Network (DDN), and Secure Voice System.
(ii) Transmission media and/or circuits that provide user and/or subscriber connection into the DCS networks, or which interconnect the switching and/or relay facilities and/or the user and/or subscriber terminals in use by the DCS. This includes the assets of the Defense Satellite Communications System, except those portions that are specifically excluded from the DCS.
(3) Although the DISA specifies the interconnection and interface standards when operated with DCS networks, the DCS does not include:
(i) Mobile and/or transportable communications facilities and assets organic to Army, Navy, Air Force, and Fleet Marine forces, unless specifically designated as components of the DCS.
(ii) Ship and/or ship, ship and/or shore, air and/or air, air and/or ground, and other tactical telecommunications.
(iii) Post, camp, base, and station user and/or subscriber facilities and terminals.
(iv) On-site telecommunications facilities associated with or integral to weapons systems and to missile launch complexes, including those required for countdown, command, control, weapons destruct, and range safety.
(v) Consoles and display devices integral to the Unified and Specified Command Centers, their DoD Component Headquarters, and the Military Services' operations centers.
(b)
(c)
(d) Military Departments' Operations and Maintenance Commands. The Army Information Systems Command, Air Force Communications Command, and the Naval Computers and Telecommunications Command.
(e) Military Satellite Communications (MILSATCOM) Systems. The totality of existing and planned DoD satellite communications capability consisting of the space, ground, and control segments. MILSATCOM systems include the interfaces between satellite systems and ground segments, and the interfaces with other communications systems.
(f)
(2) The mission of the NCS is to assist the President, the National Security Council, the Director of the Office of Science and Technology Policy, and the Director of the Office of Management and Budget in:
(i) The exercise of the telecommunications functions and responsibilities assigned in E.O. 12472.
(ii) The coordination of the planning for, and provision of, national security emergency preparedness communications for the Federal Government under all circumstances, including crisis or emergency, attack, recovery, and reconstitution.
(g)
(h)
(i)
(1) The form or format in which information is to be exchanged.
(2) The prescribed information exchange language, syntax, and vocabulary to be used in the information exchange.
(3) Interface operating procedures that govern the information exchange.
(j)
(k)
The DISA is responsible for planning, developing, and supporting command, control, communications (C3), and information systems that serve the needs of the National Command Authorities (NCA) under all conditions of peace and war. It provides guidance and support on technical and operational C3 and information systems issues affecting the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). It ensures the interoperability of the Worldwide Military Command and Control System (WWMCCS), the Defense Communications System (DCS), theater and tactical command and control systems, North Atlantic Treaty Organization and/or allied C3 systems, and those national and/or international commercial systems that affect the DISA mission. It supports national security emergency preparedness telecommunications functions of the National Communications System (NCS), as prescribed by E.O. 12472.
The DISA is established as a Combat Support Agency of the Department of Defense, and shall be under the direction, authority, and control of the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)). It shall consist of a Director and such subordinate organizational elements as are established by the Director within the resources authorized by the Secretary of Defense.
(a) The Director, Defense Information Systems Agency, shall:
(1) Organize, direct, and manage the DISA and all assigned resources consistent with this part.
(2) Provide technical and management advice, and perform planning, support systems engineering, and test and/or evaluation support through the
(3) Perform systems engineering for the DCS and ensure that the DCS is planned, improved, operated, maintained, and managed effectively and efficiently. Ensure that end-to-end interoperability and architecture are adequate to meet mission needs. Exercise program management responsibility with management control over the activities of the DoD Components that directly support the establishment and improvement of the DCS.
(4) In consultation with the Chairman of the Joint Chiefs of Staff, formulate the DoD-wide Military Satellite Communications (MILSATCOM) architecture. Analyze user requirements and maintain the user data base. Define system performance criteria for MILSATCOM systems. Establish, in coordination with the DoD Components, overall goals and long-term system plans and transitions for MILSATCOM systems. Perform general systems engineering to promote end-to-end interoperability and performance to meet mission needs. Analyze, on a continuing basis, Military Service programs, plans, budgets, and MILSATCOM systems performance deficiencies, and recommend corrective action, as appropriate. Manage, operate, and support the MILSATCOM systems office to perform functions specified in DoD Directive 5105.44.
(5) Ensure the end-to-end interoperability of strategic and tactical C3 and information systems used by the NCA and the DoD Components for joint and combined operations. Develop and maintain joint architectures, technical and procedural interface standards, specifications, protocols, and definitions; and test and/or verify the interoperability of hardware and procedures for strategic and tactical C3 and information systems. Recommend certification for these systems and their equipment interfaces. With respect to tactical command, control, communications, and intelligence (C3I) systems, DoD Directive 4630.5
(6) Provide automated information systems, analytical, and other technical support for Chairman of the Joint Chiefs of Staff- and OSD-managed programs. Manage, design, develop, maintain, test, and evaluate standard operating systems and applications software for the WWMCCS, as directed. Assist in implementing configuration control over evolving information systems.
(7) Develop systems architectures and provide systems engineering support. Ensure the evolution of integrated C3 and information systems supporting the NCA's and DoD Components' capability to effectively employ weapon systems and forces. Identify and implement technical improvements and assist the Chairman of the Joint Chiefs of Staff and the Commanders of the Unified and Specified Commands in identifying C3 systems' deficiencies.
(8) Manage nationally sensitive special C3 programs, as directed by higher authority.
(9) Acquire commercial communications services (e.g., long-haul telecommunications circuits, facilities, networks, and associated equipment) for the Department of Defense and
(10) Execute tasks as manager of the NCS as may be assigned by law or directed by the Secretary of Defense in the Secretary's capacity as Executive Agent of the NCS.
(11) Review Military Department programs and budgets related to the DISA mission, and recommend actions, through the ASD(C3I), to the Secretary of Defense.
(12) Provide DoD representation and/or participation in selected national and international C3 activities.
(13) Assist OSD and Chairman of the Joint Chiefs of Staff activities by assessing technology; recommend and conduct a program of research, development, test, and evaluation (RDT&E) necessary to ensure that C3 systems remain capable of performing their assigned functions in threatened environments. Monitor and coordinate, as appropriate, DoD Component C3 RDT&E programs.
(14) Exercise operational direction and management control of the DCS through the DISA Operations Control Complex and the Military Departments' operations and maintenance commands. Perform circuit engineering and allocation, and direct restoral for the DCS, in coordination with the NCS's National Coordinating Center.
(15) Establish and maintain a major field independent operational test capability, as an Operational test agency (OTA) under the director, and conduct operational test and evaluation (OT&E) in accordance with DoD Directive 5000.1.
(16) Serve as Executive Agent and authority for the Joint Interoperability of Tactical Command and Control Systems Program and the Tactical C3I Interoperability Improvement Program.
(17) Provide administrative support to the White House Communications Agency and to the Office of Emergency Operations.
(18) Serve on the Military Communications Electronics Board.
(19) Provide liaison with, and communications support for, the United States Secret Service in accordance with DoD Directive 3025.13.
(20) Develop and maintain databases of developmental and existing interoperability standards.
(21) Coordinate information system security (communications security and computer security) interoperability requirements with cognizant DoD Components.
(22) Review tactical C3 Fielding Plans and define interface specifications, develop and maintain a joint tactical C3 architecture defining joint tactical communications systems (including nonstrategic nuclear forces C3) required to ensure interoperability and information flow among command and control (C2) systems.
(23) Develop, test, and maintain technical and procedural interface standards to be used by tactical C3 systems in joint or combined military operations, in accordance with guidance provided by the Chairman of the Joint Chiefs of Staff, and verify that such systems have implemented the approved interface standards.
(24) Monitor and coordinate strategic and/or tactical C3 programs for which the DISA has responsibility, but which are included in the programs of other DoD Components and Government Agencies, and monitor other programs that may affect tactical C3 interoperability.
(25) Provide source documents from which the DoD Components can develop training materials to facilitate implementation of the tactical C3 architecture.
(26) Develop and maintain databases of tactical C3 developmental and existing interoperability standards.
(27) Coordinate secure tactical C3 communications interoperability requirements with the National Security Agency (NSA)/Central Security Service (CSS), the Defense Intelligence Agency, the Military Departments, and the Chairman of the Joint Chiefs of Staff.
(28) In coordination with NSA/CSS and the Military Departments, and in accordance with DoD Directive C-5200.5,
(29) Provide technical support to the ASD(C3I) in the implementation of the Defense information management program and the Defense corporate information management initiative, to include administrative and technical support as directed by the ASD(C3I).
(30) Support the technical implementation of the Defense information management program and the Defense corporate information management initiative DoD-wide, to include the development and use of process, data, performance and economic models, and related tools; assisting in the development, coordination and execution of the DoD data administration program; providing, as tasked, information services to include operation and design activities and data processing centers; and assisting in the assessment of DoD information services' efficiency and effectiveness.
(31) Perform such other functions as may be assigned by the ASD(C3I)
(b) [Reserved]
(a) In performing assigned functions, the Director, DISA, shall:
(1) Subject to the direction, authority, and control of the ASD(C3I), be responsible to the Chairman of the Joint Chiefs of Staff for operational matters as well as requirements associated with the joint planning process. For these purposes, the Chairman of the Joint Chiefs of Staff is authorized to communicate directly with the Director, DISA, and may task the Director, DISA to the extent authorized by the ASD(C3I).
(2) Coordinate actions, as appropriate, with other DoD Components and those Departments and Agencies of Government having related functions.
(3) Maintain liaison with other DoD Components and other Agencies of the Executive Branch for the exchange of information on programs and activities in the field of assigned responsibility.
(4) Use established facilities and services in the Department of Defense or other Government Agencies, whenever practicable, to achieve maximum efficiency and economy.
(b) The Secretaries of the Military Departments and the Directors of the Defense Agencies shall:
(1) Provide support to include planning, programming, and budgeting; test and evaluation; operations and maintenance; and integrated logistics support for programs, projects, and systems for which the DISA is responsible.
(2) Advise the Director, DISA, of funding shortfalls that would prevent effective operations and maintenance of existing systems, or prevent or delay scheduled implementation of new subsystems or projects.
(3) Coordinate with the Director, DISA, on all programs and activities that include, or are related to, C3 and information systems for which the DISA has a primary or collateral responsibility. Provide to the DISA, for review and approval before execution, technical specifications, statements of work, and proposed contract changes impacting on configuration, cost, performance, or schedules of all systems for which the DISA is responsible. Obtain the DISA's concurrence on draft acquisition plans and request DISA representation on source selection advisory councils and source selection evaluation boards for C3 and information systems, subsystems, and projects.
(4) Submit C3 and information systems requirements to the DISA, as appropriate.
(5) Submit copies of all requirements involving development, acquisition, or modification of all tactical C3 systems or equipment, copies of all Test and Evaluation Master Plans for such materials, Fielding Plans, and such other reports, as required by DoD Directive 4630.5, to the Director, Joint Tactical Command, Control, and Communications Agency.
(6) Periodically review the efficiency, economy, and effectiveness of the DISA.
(c) The Chairman of the Joint Chiefs of Staff shall:
(1) Review DCS planning and programming documents, and assess their responsiveness to operational, developmental, and training requirements.
(2) Periodically (not less than every 2 years), submit to the Secretary of Defense a report on DISA's responsiveness and readiness to support operating forces in the event of war or threat to national security, and other recommendations as appropriate.
(3) Advise the Secretary of Defense on C3 and information systems requirements and priorities.
(4) Develop and issue jointly with the ASD(C3I) guidance to the DISA and the Unified and Specified Commands that will serve as the basis for interrelationships between these organizations.
(5) Provide for the participation of DISA in joint training exercises and monitor performance.
The Director, DISA, is specifically delegated authority to:
(a) Communicate directly with heads of the DoD Components and other Executive Departments and Agencies, as necessary, to carry out DISA's responsibilities and functions. Communications to the Commanders in Chief of the Unified and Specified Commands shall be coordinated as appropriate with the Chairman of the Joint Chiefs of Staff.
(b) Obtain reports, information, advice, and assistance consistent with the policies and criteria of DoD Directives 4630.5 and 7750.5,
(c) Exercise the administrative authorities in appendix A to part 362 when delegated by the ASD(C3I).
(a) The Director and the Deputy Director, DISA, shall be appointed by the Secretary of Defense.
(b) The Military Departments shall assign military personnel to the DISA in accordance with approved authorizations and procedures for assignment to joint duty. The Chairman of the Joint Chiefs of Staff shall review and provide recommendations on the DISA joint manpower program to the ASD(C3I), as appropriate, for those functions where DISA is responsive to the Chairman of the Joint Chiefs of Staff.
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, Instructions, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)), or in the absence of the ASD(C3I), the person acting for the ASD(C3I), is hereby delegated authority as required in the administration and operation of the DISA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C. 301, 302(b), and 3101 on the employment, direction, and general administration of DISA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates established under the Coordinated Federal Wage System. In fixing such rates, the ASD(C3I), shall follow the wage schedule established by the DoD Wage Fixing Authority.
3. Establish advisory committees and employ temporary or intermittent experts or consultants, as approved by the Secretary of Defense, for the performance of DISA functions consistent with the 10 U.S.C. 173; 5 U.S.C. 3109(b); DoD Directive 5105.4,
4. Administer oaths of office incident to entrance into the Executive Branch of the Federal Government or any other oath required by law in connection with employment therein, in accordance with 5 U.S.C. 2903, and designate in writing, as may be necessary, officers and employees of the DISA to perform this function.
5. Establish a DISA Incentive Awards Board and authorize cash awards to, and incur necessary expenses for, the honorary recognition of civilian employees of the Government whose suggestions, inventions, superior accomplishments, or other personal efforts, including special acts or services, benefit or affect the DISA or its subordinate
6. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, and 12356; and DoD Directive 5200.2,
a. Designate any position in the DISA as a “sensitive” position.
b. Authorize, in case of an emergency, the appointment of a person to a sensitive position in the DISA for a limited period of time and for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of a DISA employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and, if necessary, in the interest of national security, suspend, revoke, or deny a security clearance for personnel assigned, detailed to, or employed by the DISA. Any action to deny or revoke a security clearance shall be taken in accordance with procedures prescribed in DoD 5200.2-R,
7. Act as agent for the collection and payment of employment taxes imposed by chapter 21 of the Internal Revenue Code of 1954, as amended; and, as such agent, make all determinations and certifications required or provided for under section 3122 of the Internal Revenue Code of 1954, as amended, and section 205(p) (1) and (2) of 42 U.S.C. (Social Security Act), as amended, with respect to DISA employees.
8. Authorize and approve:
a. Temporary duty travel for military personnel assigned or detailed to the DISA in accordance with Volume I, Joint Federal Travel Regulations.
b. Travel for DISA civilian officers and employees in accordance with Volume II, Joint Travel Regulations.
c. Invitational travel to non-DoD employees whose consultative, advisory, or other highly specialized technical services are required in a capacity that is directly related to, or in connection with, DISA activities, in accordance with Volume II, Joint Travel Regulations.
d. Overtime work for DISA civilian employees in accordance with chapter 55, subpart V, of 5 U.S.C. and applicable OPM regulations.
9. Approve the expenditure of funds available for travel by military personnel assigned or detailed to the DISA for expenses incident to attendance at meetings of technical, scientific, professional, or other similar organizations in such instances where the approval of the Secretary of Defense, or designee, is required by 37 U.S.C. 412, and 5 U.S.C. 4110 and 4111.
10. Develop, establish, and maintain an active and continuing Records Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2,
11. Establish and use imprest funds for making small purchases of material and services, other than personal services, for the DISA, when it is determined more advantageous and consistent with the best interests of the Government, in accordance with DoD Directive 7360.10,
12. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals as required for the effective administration and operation of the DISA consistent with 44 U.S.C. 3702.
13. Establish and maintain appropriate property accounts for the DISA, and appoint Boards of Survey, approve reports of survey, relieve personal liability, and drop accountability for DISA property in the authorized property accounts that has been lost, damaged, stolen, destroyed, or otherwise rendered unserviceable, in accordance with applicable laws and regulations.
14. Promulgate the necessary security regulations for the protection of property and places under the jurisdiction of the Director, DISA, pursuant to DoD Directive 5200.8,
15. Establish and maintain, for the functions assigned, an appropriate publications system for the promulgation of common supply and service regulations, instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M,
16. Enter into support and service agreements with the Military Departments, other DoD Components, or other Government Agencies, as required, for the effective performance of DISA functions and responsibilities.
17. Exercise the authority delegated to the Secretary of Defense by the Administrator of General Services on the disposal of surplus personal property.
18. Enter into and administer contracts, directly or through a Military Department, a DoD contract administration services component, or other Federal Agency, as appropriate, for supplies, equipment, and services required to accomplish the mission of the DISA. To the extent that any law or Executive order specifically limits the exercise of such authority to persons at the Secretarial level of a Military Department, such authority shall be exercised by the appropriate Under Secretary or Assistant Secretary of Defense.
19. Award contracts for the lease of commercial C3 capabilities as delegated in DoD Directive 5134.1,
20. Lease property under the control of the DISA under terms that will promote the national defense or that will be in the public interest, pursuant to 10 U.S.C. 2667.
The ASD(C3I) may redelegate these authorities, as appropriate, and in writing, except as otherwise provided by law or regulation.
These delegations of authority are effective June 25, 1991.
10 U.S.C. 113 and 138.
Pursuant to the authority vested in the Secretary of Defense by 10 U.S.C. 113 and 138, this part updates the responsibilities, functions, relationships, and authorities of the ASD(HA), as prescribed herein.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
The Assistant Secretary of Defense for Health Affairs, as the principal staff assistant and advisor to the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) and the Secretary and Deputy Secretary of Defense for all DoD health policies, programs, and activities, shall effectively execute the Department's medical mission, which is to provide, and to maintain readiness to provide, medical services and support to members of the Armed Forces during military operations, and to provide medical services and support to members of the Armed Forces, their dependents, and others entitled to DoD medical care.
(a) In carrying out these responsibilities, the ASD(HA) shall exercise authority, direction, and control over the medical personnel, facilities, programs, funding, and other resources within the Department of Defense, including, but not limited to:
(1) Establishing policies, procedures, and standards that shall govern DoD medical programs.
(2) Serving as program manager for all DoD health and medical resources. Preparing and submitting in the Department's planning, programming, and budgeting system (PPBS) a unified medical program and budget to provide resources for all medical activities within the Department of Defense. Consistent with applicable law, all funding for the DoD medical program, including operation and maintenance, procurement, and the Civilian Health and Medical Program of the Uniformed Services, but excluding funds for active and reserve medical military personnel, shall be accounted for in a single defense medical appropriations account. Funds for medical facility military construction shall be in a separate, single appropriations account.
(3) Presenting and justifying the unified medical program and budget throughout the PPBS process, including representations before the Congress.
(4) Co-chairing with the Director, Defense Research and Engineering, the Armed Services Biomedical Research Evaluation and Management Committee, which facilities consideration of DoD biomedical research.
(5) Performing such other functions as the USD(P&R) and the Secretary of Defense may prescribe.
(b) The ASD(HA) may not direct a change in the structure of the chain of command within a Military Department with respect to medical personnel and may not direct a change in the structure of the chain of command with respect to medical personnel assigned to that command.
(a) In the performance of assigned responsibilities and functions, the ASD(HA) shall serve under the authority, direction, and control of the USD(P&R) and shall:
(1) Report directly to the USD(P&R).
(2) Exercise authority, direction, and control over:
(i) The Director, Office of Civilian Health and Medical Program of the Uniformed Services.
(ii) The Director, Defense Medical Programs Activity.
(iii) The Director, Armed Forces Institute of Pathology.
(iv) The President, Uniformed Services University of the Health Sciences (USUHS), pursuant to the authority vested in the Secretary of Defense by 10 U.S.C. chapter 104, except that the authority to appoint the President of the USUHS is reserved to the Secretary of Defense.
(v) Such other subordinate officials as may be assigned.
(3) Consult, as appropriate, with the Comptroller of the Department of Defense (C, DoD) and the Director, Program Analysis and Evaluation, to ensure that medical planning, programming, and budgeting activities are integrated with the DoD PPBS. The C, DoD, shall allocate and reallocate the funds in the Defense Health Program account and the medical facility military construction account among the DoD Components in accordance with ASD(HA) instructions, as coordinated with the USD(P&R), and applicable law.
(4) Obtain through the Chairman of the Joint Chiefs of Staff, submissions of the operational and other needs of the Commanders of the Unified Combatant Commands, and obtain submissions from the Secretaries of the Military Departments of their proposed elements of the medical unified program and budget, and integrate those submissions as appropriate.
(5) Coordinate and exchange information with other OSD officials and the Heads of DoD Components having collateral or related functions.
(6) Use existing facilities and services of the Department of Defense and other Federal and non-Federal Agencies, whenever practicable, to achieve maximum efficiency and economy.
(b) Other OSD officials and the Heads of the DoD Components shall coordinate with the ASD(HA) on all matters related to the responsibilities and functions in § 367.3.
The ASD(HA) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time directive-type memoranda, consistent with DoD 5025.1-M
(b) Obtain reports, information, advice, and assistance, consistent with DoD Directive 8910.1
(c) Communicate directly with the Heads of the DoD Components. Communications to the Commanders of the Unified Combatant Commands shall be coordinated through the Chairman of the Joint Chiefs of Staff.
(d) Make determinations on the uniform implementation of laws on separation from the Military Departments
(e) Develop, issue, and maintain regulations, with the coordination of the Military Departments, as necessary and appropriate to fulfill the Secretary of Defense's responsibility to administer 10 U.S.C. chapter 55.
(f) Establish arrangements for DoD participation in nondefense governmental programs for which the ASD(HA) has been assigned primary cognizance.
(g) Communicate with other Government officials, representatives of the legislative branch, members of the public, and representatives of foreign governments, as appropriate, in carrying out assigned functions.
10 U.S.C. 113 and 191.
Under the authority vested in the Secretary of Defense by 10 U.S.C. 113 and 191, this part establishes the DPMO within the Department of Defense, with the mission, organization, responsibilities, functions, relationships, and authorities prescribed herein.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Combatant Commands; the Inspector General of the Department of Defense; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
The DPMO provides centralized management of prisoner of war/missing in action (POW/MIA) affairs within the Department of Defense.
The DPMO is hereby established as a DoD Field Activity under the authority, direction, and control of the Assistant Secretary of Defense for Regional Security Affairs (ASD(RSA)). The DPMO shall consist of a Director and such subordinate elements as the Director establishes, within the resources authorized by the Secretary of Defense.
(a) The
(1) Organize, direct, and manage the DPMO and all assigned resources.
(2) Advise and assist the Under Secretary of Defense for Policy (USD(P)) and the ASD(RSA) within assigned mission, responsibilities, and functions.
(3) Support the USD(P) and the ASD(RSA) in the execution of their responsibilities to develop, coordinate, and oversee the implementation of POW/MIA policy.
(4) Serve as the DoD focal point for POW/MIA matters.
(5) Provide DoD participation in the conduct of negotiations with officials of foreign governments in efforts to achieve the fullest possible accounting of missing American service members.
(6) Assemble and analyze information on U.S. military and civilian personnel who are, or were, prisoners of war or missing in action.
(7) Maintain data bases on U.S. military and civilian personnel who are, or were, prisoners of war or missing in action.
(8) Declassify DoD documents for disclosure and release in accordance with section 1082 of Public Law 102-190 and Executive Order 12812, 57 FR 32879, 3 CFR, 1992 Comp., p. 311.
(9) Maintain open channels of communication on POW/MIA matters between the Department of Defense and the Congress, POW/MIA families, and
(10) Provide appropriate representation to established POW/MIA-related interagency fora.
(11) Provide a statement of intelligence collection requirements to the Defense Intelligence Agency, for which the DPMO identifies a need.
(12) Perform such other functions as the ASD(RSA) may prescribe.
(b) The
(1) Exercise authority, direction, and control over the DPMO.
(2) Recommend policies and resources for the administration of the DPMO to the Under Secretary of Defense for Policy.
(a) In the performance of assigned responsibilities and functions, the Director, DPMO, shall:
(1) Report directly to the ASD(RSA).
(2) Coordinate and exchange information with other OSD officials, heads of the DoD Components, and other Federal officials having collateral or related functions.
(3) Use existing facilities and services of the Department of Defense and other Federal Agencies, when practicable, to avoid duplication and to achieve maximum efficiency and economy.
(b) Other OSD officials and heads of the DoD Components shall coordinate with the Director, DPMO, on all matters related to the responsibilities and functions of the DPMO.
The Director, DPMO, is hereby delegated authority to:
(a) Obtain reports, information, advice, and assistance, consistent with the policies and criteria of DoD Directive 8910.1,
(b) Communicate directly with the heads of the DoD Components. Communications to the Commanders of Unified and Specified Combatant Commands shall be transmitted through the Chairman of the Joint Chiefs of Staff.
(c) Communicate with other Government officials, representatives of the legislative branch, members of the public, and representatives of foreign governments, as appropriate, in carrying out assigned functions.
(a) The DPMO shall be authorized such personnel, facilities, funds, and other resources as the Secretary of Defense deems necessary.
(b) The Military Departments shall assign military personnel to the DPMO in accordance with approved authorizations and established procedures for assignment to joint duty.
(c) Administrative support required for the DPMO shall be provided by the Director, Washington Headquarters Services.
10 U.S.C. 113.
Under the authority vested in the Secretary of Defense by 10 U.S.C. 113, this part updates the responsibilities, functions, relationships, and authorities of the ATSD(IO), as prescribed herein.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
The Assistant to the Secretary of Defense for Intelligence Oversight shall be responsible for the independent oversight of all intelligence activities in the Department of Defense. In this capacity, the ATSD(IO) shall ensure that all activities performed by intelligence units and all intelligence activities performed by non-intelligence units, are conducted in compliance with Federal law and other laws as appropriate, Executive orders and Presidential Directives, and DoD Directives System issuances. In the exercise of this responsibility, the ATSD(IO) shall:
(a) Develop intelligence oversight policy and, in coordination with the General Counsel of the Department of Defense (GC, DoD), issue intelligence oversight guidance to the DoD intelligence components, including regulatory guidance implementing intelligence oversight aspects of E.O. 12333.
(b) Review, in consultation with the GC, DoD, all allegations that raise questions of the legality or propriety of intelligence activities in the Department of Defense.
(c) Investigate intelligence activities that raise questions of legality or propriety.
(d) Conduct vigorous and independent inspections of the DoD Components that engage in intelligence activities for the purpose of verifying that personnel are familiar and in compliance with E.O. 12333 and its DoD implementing documents. At the request of senior leadership of the Department, and as practicable, the ATSD(IO) will assess and evaluate the performance of DoD's intelligence activities during the course of scheduled inspections and site visits. Reports in these areas of special interest will be provided to the requesting official and the Secretary of Defense for information.
(e) Monitor investigations and inspections conducted by the DoD Components related to intelligence activities, evaluate the findings and, if appropriate, submit recommendations for corrective action to the Secretary and Deputy Secretary of Defense.
(f) Report the following to the Secretary and Deputy Secretary of Defense, and the Intelligence Oversight Board of the President's Foreign Intelligence Advisory Board, established under E.O. 12863, 3 CFR, 1993 Comp., p. 632, at least quarterly, in consultation with the GC, DoD:
(1) Any significant oversight activities undertaken; and
(2) Any DoD intelligence activities of questionable legality or propriety, the investigative action on them, an evaluation of completed investigations, and the action taken on completed investigations.
(g) Participate as a member of the Defense Counterintelligence Board (DoD Directive 5240.2
(h) Pursuant to DoD Directive 5240.12
(i) Review DoD clandestine intelligence activities to ensure compliance with special constraints and controls.
(j) Evaluate the effectiveness of the DoD intelligence components' efforts to protect HUMINT sources, in accordance with DoD Directive S-5205.1
(k) Participate in the Sensitive Reconnaissance Operations approval process.
(l) Conduct liaison with Federal intelligence and law enforcement agencies (e.g., Central Intelligence Agency, Federal Bureau of Investigation, and Drug Enforcement Administration) at the national level and field locations, as required, to ensure DoD intelligence activities and DoD intelligence support
(m) Review the DoD sensitive support provided to the DoD Components and other Federal Agencies, pursuant to DoD Directive S-5210.36
(n) Coordinate, as appropriate, with the DoD Inspector General (DoD IG) on matters relating to the DoD IG's area of responsibility in accordance with DoD Directive 5106.1
(o) Perform such other functions as the Secretary of Defense may prescribe.
(a) In the performance of assigned responsibilities and functions, the ATSD(IO) shall serve under the authority, direction, and control of the Secretary of Defense, and shall:
(1) Report directly to the Secretary and Deputy Secretary of Defense.
(2) Coordinate and exchange information with other OSD officials, heads of the DoD Components, and other Federal officials having collateral or related functions.
(3) Use existing facilities and services of the Department of Defense and other Federal Agencies, when practicable, to avoid duplication and to achieve maximum efficiency and economy.
(b) Other OSD officials and heads of the DoD Components shall coordinate with the ATSD(IO) on all matters related to the responsibilities and functions cited in § 378.4.
The ATSD(IO) is hereby delegated authority to:
(a) Obtain reports, information, advice, and assistance, consistent with DoD Directive 8910.1
(b) Communicate directly with the heads of the DoD Components and, with notification to the Chairman of the Joint Chiefs of Staff, to the Commanders of the Unified Combatant Commands, as necessary, in carrying out assigned functions.
(c) Request such temporary assistance from the DoD Components as may be required for the conduct of inspections or investigations, to include personnel, facilities, and other services. Requests for needed support shall be made in accordance with established procedures.
(d) Communicate directly with the Intelligence Oversight Board of the President's Foreign Intelligence Advisory Board, the Director of Central Intelligence, other Federal officials, representatives of the legislative branch, members of the public, and representatives of foreign governments, as appropriate, in carrying out assigned functions.
(e) Have complete and unrestricted access to all available intelligence-related information, regardless of classification or compartmentation, from all DoD Components and personnel, as required, in carrying out assigned functions. This includes specifically the authority to:
(1) Require an Inspector General or other cognizant investigative official of a DoD Component to report allegations of improprieties or illegalities of intelligence activities by, or within, a DoD Component; and
(2) Obtain information on the status, proceedings, and findings or to obtain copies of reports of investigations of such allegations.
(f) Deal directly with the head of the element inspected or investigated, conduct interviews, take depositions, and examine records incident to an inspection or investigation of any DoD Component, as required, in carrying out assigned functions.
10 U.S.C. 136.
Pursuant to the authority vested in the Secretary of Defense under title 10, United States Code, this part establishes the Defense Commissary Agency (DeCA) and the Defense Commissary Board (DCB), with responsibilities, functions, and authorities as prescribed herein.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments; the Chairman, Joint Chiefs of Staff and Joint Staff; the Unified and Specified Commands; the Inspector General of the Department of Defense (IG, DoD); the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(a) The mission of the DeCA is to:
(1) Provide an efficient and effective worldwide system of commissaries for the resale of groceries and household supplies at the lowest practical price (consistent with quality) to members of the Military Services, their families, and other authorized patrons, while maintaining high standards for quality, facilities, products, and service.
(2) Provide a peacetime training environment for food supply logisticians needed in wartime and, as circumstances dictate, troop issue subsistence support to military dining facilities consistent with Service needs.
(b) The mission of the DCB is to serve as a forum for the discussion of issues about the commissary services provided by the DeCA and to make related policy recommendations to the Assistant Secretary of Defense (Production and Logistics) (ASD(P&L)).
(a) The DeCA is established as an Agency of the Department of Defense under the direction, authority, and control of the ASD(P&L). It shall consist of a Director of such subordinate organizational elements as are established by the Director.
(b) The DCB is established as a committee reporting to the ASD (P&L). Its membership shall consist of the following:
(1) The Director, DeCA, who shall serve as Chair.
(2) A representative of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)).
(3) A representative of the Chairman, Joint Chiefs of Staff (CJCS).
(4) One military officer and one enlisted representative from each of the Military Services appointed by the Secretaries of the Military Departments.
(5) The Director, DeCA, may invite other representatives to attend DCB meetings, as appropriate.
(c) The Director shall designate an Executive Secretary for the Board.
(a) The Director, Defense Commissary Agency (DeCA), shall:
(1) Organize, direct, and manage the DeCA and all assigned resources; procure assigned items; and administer, supervise, and control all programs and activities assigned to the DeCA.
(2) Plan, program, budget, design, manage, and ensure the execution of the commissary facilities' construction, modification, and repair programs.
(3) Provide and operate facilities under standards consistent with those used for commercial food stores.
(4) Develop and administer plans and programs to provide peacetime training for military personnel, as appropriate.
(5) Develop and administer plans and programs to provide troop issue subsistence support to appropriate dining facilities, tactical field exchanges for deployed mission support, and management of subsistence war readiness materiel in peacetime and wartime, as required.
(6) Provide advice to the ASD(P&L) on DoD policies about the operation of commissaries and related matters.
(7) Plan and direct use of commissary stocks to support mobilization, as required.
(8) Establish and administer a civilian career management program to include referral services and development programs for commissary management personnel.
(9) Perform such other functions as the ASD(P&L) may direct.
(b) The Defense Commissary Board (DCB) shall meet periodically, and not less than annually. For the purpose of providing advice, it shall:
(1) Consider issues about DeCA operations, services, and resources and make recommendations about DeCA practices, problems, policies, and programs.
(2) Facilities the exchange of information among the Director, DeCA, and the Military Departments.
(3) Make recommendations on the integration and prioritization of the commissary construction program.
(4) Perform such other advisory functions as ASD(P&L) may direct.
(c) The Assistant Secretary of Defense (Production and Logistics) (ASD(P&L)) shall:
(1) Recommend to the Secretary and the Deputy Secretary of Defense and the USD(A) policies and resources for the administration of the DeCA and its programs.
(2) Provide policy guidance and management direction to the Director, DeCA.
(3) Establish standards and issue guidelines for military commissary operations, including, but not limited to, the following areas:
(i) Funding.
(ii) Commissary establishment/disestablishment.
(iii) Pricing and surcharges.
(iv) Categories of items.
(v) Reporting requirements and preparation of “The DoD Commissary Operations Report” (RCS DD-FMP(A)1187).
(4) In coordination with CJCS, make arrangements for Commanders of Unified Commands to assume temporary operational control of commissaries in wartime or periods of heightened alert.
(d) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall be responsible for advising the ASD(P&L) on commissary policy to ensure that it is consistent with policies on recruitment and retention.
(e) The Comptroller of the Department of Defense (C, DoD) shall advise the ASD(P&L) on accounting, budgeting, funding, cash management, debt management, and pricing and surcharge policy for the DeCA.
(f) The Secretaries of the Military Departments shall provide such facilities, physical security, logistics, and administrative support as required for effective operation of the military commissary program as agreed to by the DeCA and cognizant component Commands under inter-Service support and servicing agreements.
(a) In the performance of assigned responsibilities and functions, the Director, DeCA, shall:
(1) Have free and direct access to, and communicate with, the DoD Components and other Executive Departments and Agencies concerning commissary activities, as necessary.
(2) Maintain appropriate liaison with other DoD Components, Agencies of the Executive branch, forcing governments, and private sector organizations for the exchange of information on programs and activities in the field of assigned responsibilities.
(3) Use established facilities and services of the Department of Defense and other Federal Agencies, whenever practicable, to avoid duplication and to achieve an appropriate balance of modernization, efficiency, economy, and customer support.
(4) Consult and coordinate with other governmental and nongovernmental agencies on matters related to the mission assigned to the DeCA.
(b) The Secretaries of the Military Departments and Heads of other DoD Components shall:
(1) Provide assistance to the Director, DeCA, in carrying out the responsibilities and functions relating to military commissaries.
(2) Coordinate with the Director, DeCA, on programs and activities that include or are related to military commissaries.
The Director, DeCA is hereby delegated authority to:
(a) Enter into and administer contracts, directly or through a Military Department, a DoD contract administration services component, or other Government Department or Agency, in accordance with applicable laws, DoD regulations, the FAR and the DFARS for supplies, equipment, and services required to accomplish the mission of the DeCA.
(b) Prescribe procedures, standards, and practices for the Department of Defense governing he execution of assigned responsibilities and functions.
(c) Enter into agreements with the Military Departments or other Government entities, as required for the effective performance of the military commissary program.
(d) Obtain reports, information, advice, and assistance from other DoD Components consistent with the policies and criteria of DoD Directive 7750.5
(e) Establish new DeCA facilities or use existing facilities of the Military Departments, as deemed necessary, for improved effectiveness and economy.
(f) Exercise the operational and administrative authorities contained in the appendix to this part.
(a) The Director and Deputy Director(s) of the DeCA shall be appointed by the Secretary of Defense.
(b) The DeCA shall be authorized such personnel, facilities, funds, and other administrative support as the Secretary of Defense deems necessary.
(c) The Military Departments shall assign military personnel to the DeCA in accordance with approved authorizations and procedures for assignment to joint duty.
(d) Programming, budgeting, funding, procuring, auditing, accounting, pricing, and reporting activities of the DeCA shall be in accordance with established DoD policies and procedures.
(e) Appropriated funds shall be used to finance the operating costs of the DeCA with the exception of operating costs authorized for payment from trust revolving funds. A stock fund will be used to finance all inventories procured for resale.
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the Director, DeCA is hereby delegated authority as required in the administration and operation of the DeCA to:
1. Establish advisory committees and employ part-time advisers, as approved by the Secretary of Defense, for the performance of DeCA functions pursuant to 10 U.S.C. 173 Public Law 92-463, “Federal Advisory Committee Act”; and DoD Directive 5105.4
2. Designate any position in the DeCA as a “sensitive” position, in accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, and 12356; and DoD Directive 5200.2
3. Authorize and approve overtime work for DeCA civilian personnel in accordance with 5 U.S.C. chapter 55, subchapter V, and applicable OPM regulations.
4. Authorize and approve:
a. Travel of DeCA civilian personnel in accordance with Joint Travel Regulations, Volume 2, “DoD Civilian Personnel.”
b. Temporary duty travel for military personnel assigned or detailed to the DeCA in accordance with Joint Federal Travel Regulations, Volume 1, “Uniformed Service Members.”
c. Invitational travel to persons serving without compensation whose consultative, advisory, or other highly specialized technical services are required in a capacity that is directly related to or in connection with, DeCA activities, pursuant to 5 U.S.C. 5703.
5. Approve the expenditure of funds available for travel by military personnel assigned or detailed to the DeCA for expenses regarding attendance at meetings of technical, scientific, professional, or other similar organizations in such instances when the
6. Develop, establish, and maintain in active and continuing Records Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2
7. Establish and use imprest funds for making small purchases of material and services, other than personal services, for the DeCA when it is determined more advantageous and consistent with the best interests of the Government, in accordance with DoD Directive 7360.104
8. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals, as required for the effective administration and operation of the DeCA, consistent with 44 U.S.C. 3702.
9. Establish and maintain appropriate property accounts for the DeCA and appoint Boards of Survey, approve reports of survey, relieve personal liability, and drop accountability for DeCA property contained in the authorized property accounts that has been lost, damaged, stolen, destroyed, or otherwise rendered unserviceable, in accordance with applicable laws and regulations.
10. Promulgate the necessary security regulations for the protection of property and places under the jurisdiction of the Director, DeCA, pursuant to DoD Directive 5200.8
11. Establish and maintain, for the functions assigned, a publications system for the promulgation of common supply and service regulations, instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M
12. Enter into support and service agreements with the Military Departments, other DoD Components, Government Agencies, and foreign governments, as required for the effective performance of DeCA functions and responsibilities.
13. Lease property under the control of the DeCA, under terms that will promote the national defense or that will be in the public interest, pursuant to 10 U.S.C. 2667.
14. Exercise the powers vested in the Secretary of Defense by 5 U.S.C. 301, 302(b), 3101, and 5107 on the employment, direction, and general administration of DeCA civilian personnel.
15. Fix rates of pay of wage-rate employees exempted from the Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates established under the Combined Federal Wage System. In fixing such rates, the Director, DeCA, shall follow the wage schedule established by the DoD Wage Fixing Authority.
16. Administer oaths of office to those entering the Executive branch of the Federal Government or any other oath required by law in connection with employment therein, in accordance with 5 U.S.C. 2903, and designate in writing, as may be necessary, officers and employees of the DeCA to perform this function.
17. Establish a DeCA Incentive Awards Board, and pay cash awards to, and incur necessary expenses for the honorary recognition of, civilian employees of the Government whose suggestions, inventions, superior accomplishments, or other personal efforts, including special acts or services, benefit or affect the DeCA, in accordance with 5 U.S.C. 4503, OPM regulations, and DoD Directive 5120.15
18. Maintain an official seal and attest to the authenticity of official DeCA records under that seal.
The Director, DeCA may redelegate these authorities as appropriate, and in writing, except as otherwise specifically indicated above or as otherwise provided by law or regulation.
10 U.S.C. 113.
Under the authority vested in the Secretary of Defense by 10 U.S.C. 113, this part establishes the BMDO as an
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(a) BMDO shall manage, direct, and execute the Ballistic Missile Defense Program (BMDP) to achieve the following objectives:
(1) Enable deployment of an effective and rapidly relocatable advanced theater missile defense capability to protect forward-deployed and expeditionary elements of the Armed Forces of the United States as well as friends and allies of the United States;
(2) Develop options for, and deploy when directed, an antiballistic missile (ABM) system that is capable of providing effective defense of the U.S. homeland against limited attacks of ballistic missiles, including accidental, unauthorized launches or deliberate attacks;
(3) Demonstrate advanced technologies—as options for enhancing initial BMD systems—such as space-based defenses and their associated sensors that could provide an overlay to ground-based interceptors; and
(4) Continue programs of basic and applied research to develop follow-on technologies for both near-term and future technology insertion options and new system options to sustain a highly effective missile defense capability.
(b) The BMDP shall provide the basis for informed decisions regarding development, production, and deployment milestones, and shall be carried out in full consultation and, where appropriate, with participation of our allies. The program shall be conducted in compliance with all existing international agreements and treaty obligations and shall utilize nonnuclear weapon technologies to achieve the deployments in paragraphs (a)(1) and (a)(2) of this section. The BMDP shall focus on the development, acquisition, and integration of theater missile defenses and strategic defenses against ballistic missile threats to the United States.
(a) BMDO shall consist of a Director and such subordinate organizational elements as are established by the Director within resources authorized by the Secretary of Defense. The Director, BMDO, shall serve also as the BMD Acquisition Executive (BMDAE) for BMDO-funded programs and/or projects.
(b) The Under Secretary of Defense for Acquisition and Technology (USD(A&T)), as the Defense Acquisition Executive (DAE), shall provide DoD oversight and guidance for the BMD acquisition program, and shall conduct formal reviews, including Defense Acquisition Board milestone reviews, for BMDPs. All such reviews shall emphasize streamlined acquisition strategies. The USD(A&T) shall provide oversight for the BMD technology base activities contained in the BMDP.
(c) A BMD Acquisition Review Council (BMDARC) may be established by the BMDAE to assist the BMDAE to:
(1) Review BMDP progress in preparation for acquisition milestone decisions;
(2) Resolve critical programmatic and technical issues; and
(3) Determine specific program directions.
(4) The Service Acquisition Executives (SAEs) and Vice Chiefs of Staff of the Services shall provide representatives to the BMDARC. Membership shall also include representatives of the Vice Chairman of the Joint Chiefs of Staff and Commanders of the Unified Combatant Commands, as necessary.
The Director, BMDO, is responsible for BMD programmatic policy, requirements, priorities, systems, resources, and programs, and is responsible and accountable for the research, development, and transition of BMD systems
(a) Organize, direct, and manage BMDO and all assigned resources and activities; provide for the procurement and fielding of assigned systems; and administer and supervise all programs, services, and items under the BMDP to include but not be limited to:
(1) Theater missile defense systems;
(2) The U.S. ballistic missile defense systems; and
(3) Other antiballistic missile systems or upgrades as may be assigned by the USD(A&T).
(b) Develop programmatic policies and issue program guidance and direction to the DoD Components consistent with U.S. national security policy.
(c) Establish the BMD management network including BMDO, the Services, and other Agencies to execute all program activities; and delegate appropriate authority to key individuals to ensure successful program execution and integration.
(d) Establish the systems and procedures necessary to coordinate integration into the overall BMDP of the major BMD acquisition programs and other acquisition programs that directly relate to the BMDP's objectives for development and deployment.
(e) Develop systems' standards and procedures for the administration and management of approved BMD plans and programs; establish program goals and objectives; set priorities; and evaluate BMDP activities of DoD Components and, as appropriate, those of other Federal Agencies.
(f) Prepare the BMDP objectives memoranda and budget submissions in coordination with appropriate DoD Components; make determinations regarding priorities and resources; provide recommendations on program budget decisions to the USD(A&T), Comptroller of the Department of Defense, and Director, Program Analysis and Evaluation, for incorporation into the planning, programming, and budgeting system process; and initiate and implement congressional reprogramming actions.
(g) Make such determinations regarding priorities and resources in coordination with appropriate DoD Components to include the Joint Requirements Oversight Council, as may be required to achieve approved program objectives and to enable the incremental development and deployment of BMD systems for U.S. Forces, the United States, and allies.
(h) In coordination with the USD(A&T) and appropriate DoD officials, identify Military Department, Defense Agency, and BMDO responsibilities for program execution, and in such cases where source-selection is not delegated to the Military Departments and Defense Agencies, retain that authority within BMDO.
(i) Develop mechanisms for coordinating BMDPs with other DoD research, development, test, and evaluation efforts.
(j) Oversee, in coordination with appropriate DoD Components, the participation of U.S. allies and friends in the BMD technical cooperation programs.
(k) Provide periodic program reviews and milestone decision information to the DAE, as well as to the BMDARC.
(l) Serve as principal DoD official responsible for presenting the BMDP budget to the Congress.
(m) Ensure that jointly funded programs have been reviewed by appropriate SAEs prior to initiating programmatic discussions with the USD(A&T).
(n) Serve as principal public spokesperson for the BMDP.
(o) Promote coordination, cooperation, and mutual understanding within the Department of Defense and between the Department of Defense and other Federal Agencies, and the civilian community with respect to BMD matters.
(p) Serve on boards, committees, and other groups pertaining to BMD activities, functions, and responsibilities.
(q) Establish internal procedures for compliance with the ABM Treaty and other Arms Control Agreements, pursuant to DoD Directive 2060.1.
(r) Perform such other duties as the USD(A&T) may prescribe.
(a) In the performance of assigned functions, the Director, BMDO, shall:
(1) Serve under the authority, direction, and control of them USD(A&T).
(2) Serve as a member of the Defense Planning and Resources Board, when BMD matters are under consideration, and Chairman of the BMDARC.
(3) Consult with the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, and Under Secretary of Defense for Policy when addressing issues under their respective purview, to include the strategy and policy implications of defensive capabilities.
(4) Operate within the DoD Acquisition System, as defined in DoD Directive 5000.1
(5) Establish, in consultation with the USD(A&T), mechanisms for coordination of BMDPs with other DoD technical efforts; and coordinate and exchange information with other DoD officials having collateral or related functions.
(6) Establish procedures for streamlined communication with each Military Department and Defense Agency involved in the BMDP.
(7) Maintain active liaison for the exchange of information and advice in the field of assigned responsibility with all the DoD Components, other U.S. Government activities, and non-DoD research institutions (including private business entities and educational institutions).
(8) Through the USD(A&T), keep the Secretary of Defense, the Deputy Secretary of Defense, the DoD Components, and non-DoD U.S. Government Agencies informed, as appropriate, on schedules, status, and significant new developments, breakthroughs, and technological advances within assigned projects.
(9) Use existing facilities and services of the Department of Defense and other Federal Agencies, whenever practicable, to avoid duplication and to achieve maximum efficiency and economy.
(b) The Heads of the DoD Components shall:
(1) Provide support within their respective fields of responsibilities, to the Director, BMDO, as required, to carry out the responsibilities and functions assigned to BMDO.
(2) Provide information, as necessary, to the Director, BMDO, on all programs and activities that include, or are related to, BMD research, technology, and the BMDP.
(c) The Secretaries of the Military Departments and Directors of Defense Agencies shall:
(1) Execute BMD element programs and BMD technology development efforts as recommended by the Director, BMDO, and approved by the Secretary of Defense.
(2) Provide the personnel (to include a BMD Program Executive Officer and Element Program Managers) and the infrastructure necessary to support all Service BMD activities.
(3) Provide program recommendations and advice to the Director, BMDO on budgeting, resources, and program execution.
(4) Provide advice on BMD activities, including readiness for advancing through the acquisition process, technical and programmatic issues, and general program guidance.
(5) Submit program documentation and reports required by the Director, BMDO, in support of DAE reviews and milestone decisions.
The Director, BMDO, is hereby delegated authority to:
(a) Communicate directly and enter into agreements with heads of DoD Components, as necessary, in carrying out assigned responsibilities. Communications with the Commanders of the Unified Combatant Commands shall be communicated through the Chairman of the Joint Chiefs of Staff.
(b) Recommend to the USD(A&T) revisions or exceptions to Military Department and/or Defense Agency regulations, directives, procedures, or instructions for, or related to, system acquisition for individual or a class of BMD requirements as determined necessary to accomplish the BMD objectives.
(c) Enter into and administer contracts, directly or through a Military Department, as appropriate, for supplies, equipment, and services required to accomplish the mission of the BMDO.
(d) Serve as the head of an Agency and Contracting Activity, and act as the Senior Procurement Executive, within the meaning of and subject to the limitations of 48 CFR 202.101 and 48 CFR 2.1, for the BMDO.
(e) Authorize the allocation and/or sub-allocation of funds made available to BMDO for assigned research, development, test, and acquisition projects.
(f) Acquire or construct, through a Military Department or other Government Agency, such research, development, and test facilities and equipment required to carry out assignments that may be approved by the Secretary of Defense or Deputy Secretary of Defense as recommended by the USD(A&T), in accordance with applicable statutes.
(g) Negotiate agreements, as necessary, with other U.S. Agencies and organizations to ensure proper coordination and execution of the BMDP.
(h) Negotiate agreements, as necessary, with foreign governments to execute allied participation in the BMDP. These agreements shall be subject to approval by duly appointed DoD authorities, in accordance with DoD Directive 5530.3.
(i) Establish, in coordination with appropriate DoD Components, special security procedures for sensitive BMDPs.
(j) Exercise original classification authority over BMDO funded technology development and acquisition programs. In general, where another DoD Component has been designated for program execution, original classification authority will be delegated to that Component as part of a program management agreement with BMDO. All original classification decisions must be made in coordination with the BMDO, Military Departments, and other appropriate DoD organizations.
(k) Exercise foreign disclosure authority over BMDO funded technology development and acquisition programs. In general, where another DoD Component has been designated for program execution, foreign disclosure authority will be delegated to that Component as part of a program management agreement with BMDO. All foreign disclosure decisions must be made in accordance with National Disclosure Policy and applicable DoD procedures, and be coordinated with the BMDO, Military Departments, and other appropriate DoD organizations.
(l) Carry out the functions and exercise the responsibilities of the Theater Missile Defense Initiative Office, as established by section 231 of the National Defense Authorization Act for Fiscal Year 1993.
(m) Exercise the administrative authorities contained in appendix A to this part.
(a) The Director, BMDO, shall be appointed by the Secretary of Defense, upon recommendation from the USD(A&T).
(b) The Military Departments shall assign personnel to BMDO, in accordance with approved authorizations and procedures for joint duty assignment and the Defense Acquisition Workforce Improvement Act.
(c) Administrative support required for BMDO shall be provided by the other DoD Components, as appropriate.
(d) The Director, BMDO, shall consult on all key military and civilian personnel assignments within the BMD management network.
Pursuant to the authority vested in the Secretary of Defense, and in accordance with DoD policies, Directives, and Instructions, the Director, BMDO, or, in the absence of the Director, the person acting for the Director, is hereby delegated authority, in the administration and operation of the BMDO, to:
1. Perform the following functions in accordance with the provisions of 5 U.S.C. 7532; Executive Order 10450, 3 CFR, 1949-1953 Comp., p. 936 and 32 CFR part 154.
a. Designate and position in the BMDO as a “sensitive” position.
b. Authorize, in case of an emergency, the appointment of a person to a sensitive position in the BMDO, for a limited period of time, for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed.
c. Authorize the suspension, but not the termination, of the services of a BMDO employee in the interest of national security.
2. Authorize and approve:
a. Travel for BMDO civilian employees, in accordance with Joint Travel Regulations,
b. Temporary duty travel only for military personnel assigned or detailed to BMDO, in accordance with Joint Travel Regulations, Volume I.
c. Invitational travel to persons serving without compensation whose consultative, advisory, or other specialized technical services are required in a capacity directly related to, or in connection with, BMDO activities.
3. Approve the expenditure of funds available for travel by military personnel assigned or detailed to BMDO for expenses incident to attendance at meetings of technical, scientific, professional, or other similar organizations in such instances where the approval of the Secretary of Defense or designee is required by law (37 U.S.C. 412).
4. Develop, establish, and maintain an active and continuing Records Management Program under DoD Directive 5015.2;
5. Establish and use imprest funds for making small purchases of material and services, other than personal, for the BMDO when it is determined more advantageous and consistent with the best interests of the Government, in accordance with DoD Directive 7360.10
6. Authorize and approve overtime work for civilian personnel in BMDO, in accordance with provisions of the Federal Personnel Manual Supplement
7. Establish and maintain appropriate property accounts for BMDO and appoint boards of survey, approve reports of survey, relieve personal liability, and drop accountability for BMDO property contained in the authorized property accounts that have been lost, damaged, stolen, destroyed, or otherwise rendered unserviceable, in accordance with applicable laws and regulations.
8. Establish and maintain for the functions assigned an appropriate publications system for the promulgation of regulations, Instructions, and reference documents, and changes thereto, pursuant to the policies and procedures prescribed in DoD 5025.1-M.
9. Issue the necessary security regulations for protection of property and places under the jurisdiction of the BMDO, under DoD Directive 5200.8.
10. Exercise original TOP SECRET classification authority.
11. Establish security classification guidance and review policy.
12. Enter into inter-service support agreements with the Military Departments, other DoD Components, or other Government Agencies, as required, for the effective performance of responsibilities and functions assigned to the BMDO.
13. Establish advisory committees pursuant to the provisions of the Federal Advisory Committee Act of 1972 (Pub. L. 92-463) and DoD Directive 5105.18.
14. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals as required for the effective administration and operation of BMDO (44 U.S.C. 3702).
15. Request specific Military Departments and Defense Agencies to serve as contracting activities for the BMDO, as necessary.
10 U.S.C. 133.
This part is issued to update and clarify the responsibilities and functions of the Armed Forces Radiobiology Research Institute (AFRRI). It sets forth the organizational relationships and establishes the management and administrative procedures for AFRRI, in accordance with 32 CFR part 381 and provides for the establishment of a Board of Governors.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (NJCS), and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
It is DoD Policy that:
(a) AFRRI is designated a subordinate command of the Defense Nuclear Agency (DNA) established under the authority vested in the Secretary of Defense.
(b) AFRRI shall serve as the principal ionizing radiation radiobiology research laboratory for the Department of Defense and shall support defense research requirements identified by the DoD Components. AFRRI may provide services and perform cooperative research with other Federal and civilian agencies and institutions with the approval of the Director, DNA.
(c) The mission of AFRRI shall be to conduct research in the field of radiobiology and related matters essential to the operational and medical support of the Department of Defense and the Military Services.
(d) For purposes of cognizance by the Under Secretary of Defense for Acquisition (USD(A)), the AFRRI program shall be considered an integral part of the medical and life sciences research, development, test, and evaluation program.
(a) The
(1) Manage the AFRRI, as provided by 32 CFR part 381.
(2) Provide adequate support for the operation and maintenance of AFRRI within the limits of resources available to the DNA for such purposes.
(3) Chair the AFRRI Board of Governors, which shall consist of the Surgeons General of the Army, Navy, and Air Force; the Deputy Chiefs of Staff for Operations of the Army, Navy, and Air Force, or their designated representatives; and representatives of the (USD(A)) and the Assistant Secretary of Defense for Health Affairs (ASD(HA)). The Board of Governors shall:
(i) Meet at least annually and at the call of the Chair.
(ii) Invite advisors to these meetings.
(iii) Make periodic visits to AFRRI.
(iv) Advise the Director, DNA, and the Director, AFRRI, on AFRRI's performance by doing the following:
(A) Review the AFRRI research program and scientific findings.
(B) Provide advice on the long term direction of AFRRI's research program.
(C) Facilitate the communication of Service requirements and the dissemination of AFRRI research findings.
(D) Review Service nominations for Director, AFRRI, and provide a prioritized list of nominees to the Director, DNA.
(b) The
(1) Execute the approved day-to-day research program.
(2) Prepare the AFRRI long-range research program; annual planning, programming, and budgeting system submission; and facilities master plans for approval by the Director, DNA.
(3) Plan, program, and budget for funds to include in the DNA program. This does not prevent AFRRI's participation in reimbursable activities, subject to the approval by the Director, DNA.
AFRRI shall consist of a Director, a Scientific Director, and a supporting staff:
(a) The Director, AFRRI, shall be a military officer (in grade O-6) who holds an earned doctoral degree in one
(b) The Scientific Director shall be a civilian with professional qualifications acceptable to the Board of Governors and the Director, AFRRI.
(c) The professional, technical, and supporting staff shall consist of military and civilian personnel authorized by a Joint Table of Distribution (JTD), developed by the Director, AFRRI, with approval of Director, DNA, and approved by the Joint Chiefs of Staff (JCS). Insofar as possible, the military members of the staff shall be provided equally by the Military Departments.
(d) The Military Departments shall assign military personnel to AFRRI in accordance with approved authorizations. Procedures for such assignments shall be as agreed between the Director, DNA, and the individual Military Departments.
(e) The pay, allowances (including subsistence), and permanent change-of-station costs of military personnel assigned to AFRRI shall be budgeted for and paid by the Military Department concerned. Additionally, these and other costs that are caused by or benefiting AFRRI, regardless of financing, shall be allocated to AFRRI in accordance with DoD Instruction 7220.24
Under established DoD policies, AFRRI shall:
(a) Operate research facilities for the study of radiobiology and ionizing radiation bioeffects, and disseminate the results.
(1) The scope of this research shall reflect requirements identified by DoD Components in support of military operational planning and employment (current and future), and shall give special emphasis to individual and organizational performances under nuclear combat conditions in realistc operational scenarios.
(2) The AFRRI program shall consider the present and projected threats, Service operational concepts and weapons, and defense systems developments.
(b) Provide analysis, study, and consultation on the impact of the biological effects of ionizing radiation on the organizational efficiency of the Military Services and their members.
(c) Conduct cooperative research with the Military Medical Departments in those aspects of military operational and medical support considerations related to nuclear weapons effects and the radio biological hazards of space operations.
(d) Conduct advanced training in the field of radiobiology and the biological effects of nuclear weapons to meet the internal requirements of AFRRI, the Military Services, and other DoD Components and organizations.
(e) Perform such other functions as may be assigned.
32 CFR part 381 applies to the Director, DNA, for exercising head-quarters management of AFRRI and fulfilling the functional responsibilities implicit in this part.
This part is effective November 25, 1987. Forward two copies of implementing documents to the Under Secretary of Defense of Acquisition within 120 days.
10 U.S.C. 133
This part:
(a) Implements 15 U.S.C. 644(k) that establishes the position of Director of Small and Disadvantaged Business Utilization (Director, SADBU) under the direction, authority, and control of the Under Secretary of Defense (Acquisition) (USD(A)).
(b) Assigns responsibilities, functions, relationships, and authorities, as prescribed herein, to the Director, SADBU, pursuant to the authority vested in the Secretary of Defense under section 10 U.S.C. 113.
The
(a) Implement and execute the functions and duties assigned by 15 U.S.C. 636 and 644, as they relate to the Department of Defense.
(b) Conduct analyses, develop policies, provide advice, make recommendations, and issue guidance on DoD plans, programs, and requirements.
(c) Develop plans, programs, procedures, goals, and objectives, and initiate actions and taskings to ensure adherence to DoD policies.
(d) Develop systems and standards for the administration of approved policies, plans, and programs.
(e) Conduct reviews (including compliance reviews of DoD Components and major prime contractors) and evaluate programs to ensure adherence to approved policies and standards.
(f) Participate in the Planning, Programming, and Budgeting System (PPBS) and the Defense Acquisition System, and in development of the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS).
(g) Keep appropriate organizations and officials informed of significant trends or initiatives.
(h) Promote coordination, cooperation, and mutual understanding within the Department of Defense and between the Department of Defense, congressional committees, other Government Agencies, and the public.
(i) Serve on boards, committees, and other groups and represent the Secretary of Defense and USD(A) outside the Department of Defense.
(j) Perform other duties as the Secretary of Defense and the USD(A) may prescribe.
The Director, SADBU, shall carry out the responsibilities in § 392.3 for the following functional areas:
(a) Prime contracts, subcontracts, and research and development contracts for small, small disadvantaged, and women-owned small businesses.
(b) Labor Surplus Area Program.
(c) Historically Black Colleges and Universities and Minority Institutions.
(d) Small and Disadvantaged Business Subcontracting Program.
(e) Small Business Research and Development Program, to include the Small Business Innovation Research Program.
(f) Blind and Other Severely Handicapped Program.
(g) Procurement Technical Assistance Program.
(h) Small Business Set Aside Program.
(i) Small Disadvantaged Business Development Program.
(j) DoD procurement outreach publications.
(k) Programs in support of Area Small Business Councils; Federal procurement conferences sponsored by members of Congress in their constituencies; economic development entities of States, counties, and municipalities; and industry trade associations promoting the growth of small businesses, small disadvantaged businesses, and women-owned small businesses.
(a) In the performance of the above functions, the Director, SADBU, shall:
(1) Coordinate and exchange information with officials of other DoD Components having collateral or related functions.
(2) Use existing systems, facilities, and services of the Department of Defense and other Federal Agencies, whenever practicable, to achieve maximum efficiency and economy.
(3) Operate a Central Procurement Information Office for the Department of Defense.
(b) Other OSD officials and the Heads of DoD Components shall coordinate with the Director, SADBU, on all matters related to the functions in § 392.4.
The Director, SADBU, is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time directive-type memoranda, consistent with DoD 5025.1-M, that implement policies approved by the Secretary of Defense in the functions assigned to the Director, SADBU. Instructions to the Military Departments shall be issued through the Secretaries of those Departments, or their designees. Instructions to Unified and Specified Commands shall be issued through the Chairman, JCS (CJCS).
(b) As authorized by Section 15 U.S.C. 644(k)(4), exercise supervisory authority over DoD personnel to the extent that their functions and duties relate to the functions and duties assigned to the Director, SADBU, by 15 U.S.C. Sections 637 and 644.
(c) Assign small business technical advisers to the DoD Components in accordance with 15 U.S.C. Section 644(k)(6).
(d) Obtain reports, information, advice, and assistance, consistent with DoD Directive 7750.5, as necessary, in carrying out assigned functions.
(e) Communicate directly with the Heads of the DoD Components. Communication to Commanders of the Unified and Specified Commands shall be coordinated with the CJCS.
(f) Establish arrangements for DoD participation in non-Defense governmental programs for which the Director, SADBU, is assigned primary staff cognizance.
(g) Communicate with other Government Agencies, representatives of the legislative branch, and members of the public, as appropriate, in carrying out assigned functions.
10 U.S.C. 133.
This part, pursuant to the authority vested in the Secretary of Defense under title 10, United States Code, updates the Defense Legal Services Agency (DLSA) charter with functions, responsibilities, relationships, and authorities as outlined herein.
(a) The DLSA is established as a separate agency of the Department of Defense under the direction, authority,
(b) Budgeting, management of ceiling spaces, personnel services, and other administrative support for DLSA personnel shall be the responsibility of the Defense Agency or Field Activity to which those personnel are assigned.
(c) The GC, DoD, shall serve as the Director, DLSA.
The
(a) Organize, direct, and manage the DLSA and all resources assigned to the DLSA.
(b) Provide legal advice and services for the Defense Agencies, DoD Field Activities, and other assigned organizations.
(c) Provide technical support and assistance for development of the DoD Legislative Program.
(d) Coordinate DoD positions on legislation and Presidential Executive orders.
(e) Provide a centralized legislative document reference and distribution point for the Department of Defense, and maintain the Department's historical legislative files.
(f) Develop DoD policy for standards of conduct and administer the Standards of Conduct Program for the OSD and other assigned organizations.
(g) Administer the Defense Industrial Security Clearance Review Program.
(h) Perform such other duties as the Secretary or Deputy Secretary of Defense may prescribe.
(a) In performance of assigned responsibilities and functions, the Director, DLSA, shall:
(1) Coordinate actions and exchange information with other DoD organizations having collateral or related functions.
(2) Promote coordination, cooperation, and mutual understanding of matters pertaining to assigned functions within the Department of Defense and between the Department of Defense, other Government Agencies, and the public.
(3) Serve on boards, committees, and other groups concerned with matters pertaining to assigned functions, and represent the Secretary of Defense on assigned functions outside the Department of Defense.
(4) Use existing facilities and services, whenever practicable, to achieve maximum efficiency and economy.
(5) Provide professional supervision for DLSA attorneys serving in Defense Agencies, DoD Field Activities, and other organizations to which such attorneys are assigned. This includes, in consultation with the DoD Component head concerned, evaluation of their performance and/or other action that may be necessary based on professional performance.
(b) All DoD Components shall coordinate with the Director, DLSA, on matters related to the functions in § 395.4.
The Director, DLSA, is delegated authority to:
(a) Obtain reports, information, advice, and assistance from other DoD Components, consistent with DoD Directive 7750.5
(b) Communicate directly with the heads of the DoD Components. Communications to the Commanders of Unified and Specified Commands shall be coordinated through the Chairman, Joint Chiefs of Staff (CJCS).
(c) Communicate with other Government Agencies, representatives of the legislative branch, and members of the public, as appropriate, in carrying out assigned functions.
Pursuant to the authority vested in the Secretary of Defense, and subject to his direction, authority, and control, and in accordance with DoD policies, Directives, and
1. In accordance with 5 U.S.C. 7532, Executive Order 10450, as amended, and DoD Directive 5200.2:
a. Designate positions as “sensitive”;
b. Authorize, in case of an emergency, the appointment to a sensitive position, for a limited period of time, of a person for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed; and
c. Authorize the suspension, but not terminate the service, of an employee in the interest of national security.
2. Authorize and approve overtime work for civilian officers and employees in accordance with subchapter V, chapter 55, title 5, U.S.C., and applicable Civil Service Regulations.
3. Develop, establish, and maintain an active and continuing Records Management Program, pursuant to 44 U.S.C. 3102.
4. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals, consistent with 44 U.S.C. 3702.
5. Comply with the policies and procedures prescribed in DoD 5025.1-M.
10 U.S.C. 191-193.
Pursuant to authority vested in the Secretary of Defense under title 10, this part revises 32 CFR part 398 to update the responsibilities, functions, relationships, and authorities of the Defense Logistics Agency (DLA).
The DLA shall function as an integral element of the military logistics system of the Department of Defense to provide effective and efficient world-wide logistics support to the Military Departments and the Unified and Specified Commands under conditions of peace and war, as well as to other DoD Components, Federal Agencies, foreign governments, or international organizations, as assigned. This support shall include:
(a) The provision of material commodities and items of supply that have been determined, through the application of approved criteria, to be appropriate for integrated management by a single agency on behalf of all DoD Components, of that has been otherwise specifically assigned by appropriate authority.
(b) The performance of logistics services directly associated with furnishing material commodities and items of supply (hereafter referred to as “Items”).
(c) The administration of Department-wide supply and logistics management systems, programs, and activities, as assigned, including the provision of technical assistance, support services, and information.
DLA is established as a Combat Support Agency of the Department of Defense under the overall supervision of the Under Secretary of Defense for Acquisition (USD(A)) and, with the exception of those responsibilities, functions and relationships assigned to the Chairman, Joint Chiefs of Staff (CJCS), by this part, is under the direction, authority, and control of the USD(A) pursuant to 32 CFR part 382. It shall consist of a Director and such subordinate organizational elements as are established by the Director or specifically assigned to the Agency by the Secretary of Defense.
(a) The
(1) Organize, direct, and manage the DLA and all assigned resources; procure assigned items; and administer, supervise, and control all programs, services, and items assigned to DLA.
(2) Provide staff advice and assistance on supply and logistics matters to the Office of the Secretary of Defense (OSD), the Military Departments, other DoD Components, and other designated organizations, as appropriate.
(3) Maintain a wholesale distribution system for assigned items and accomplish all material management functions required to ensure responsive support to the associated supply and logistics requirements determination, supply control, procurement, quality and reliability assurance, industrial responsiveness and mobilization planning, receipt, storage, inventory accountability and distribution control, transportation, repair, maintenance and manufacture, shelf-life control, provisioning, technical logistic data and information, engineering support, value engineering, standardization, reutilization and marketing, and other related supply and logistics management functions, as appropriate.
(4) Provide contract administration services in support of the Military Departments and other DoD Components, the National Aeronautics and Space Administration, and other designated Federal and State Agencies, foreign governments, and international organizations.
(5) Operate centralized management information and technical report data banks in DLA; oversee the management of contractor-operated DoD Information Analysis Centers in selected fields of science and technology; and provide scientific and technical information to DoD Components, individuals, businesses, educational institutions, government laboratories, government contractors, and others consistent with policy guidance provided by the Under Secretary of Defense for Research and Engineering.
(6) Perform systems analysis and design, procedural development, and maintenance for supply and service systems and other logistics matters assigned by the Secretary of Defense.
(7) Administer, manage, and operate the DoD-wide programs and systems listed in enclosure 1, and recommend periodic revisions to this list, as appropriate.
(8) Develop, monitor, and maintain effective supply relationships with the General Services Administration (GSA) in order to ensure the timely availability of GSA items required by DoD Components.
(9) Support the Commanders of Unified Commands, and through overseas elements of DLA, provide coordinated and responsive logistics support; develop policies; plans, and procedures; develop resources requirements; ensure security compliance by DLA personnel; and provide for the management and direction of DLA overseas activities.
(10) Perform such other functions as may be assigned by the Secretary of Defense or USD(A).
(b) The
(1) Provide guidance and direction to DLA on operational policies and procedures related to the development and operation of defense logistics programs and systems.
(2) Consult with the CJCS on such areas as critical logistics war fighting deficiencies and military requirements for defense acquisition programs.
(3) Obtain recommendations from the CJCS relative to DLA's contribution to war fighting readiness and sustainment of the Unified Commands.
(c) The
(1) Provide advice and recommendations to the USD(A) regarding the mission, functions, and responsibilities of DLA.
(2) Provide advice on matters pertaining to the policies, planning, design, maintenance, testing, and evaluation of logistics systems.
(3) Obtain advice and recommendations from the USD(A) and from the Director, DLA, on matters within the areas of responsibility assigned to DLA.
(4) Review DLA planning and programming documents, assess their responsiveness to operational requirements, and provide direction to the Director, DLA.
(5) Periodically submit (not less than every 2 years) to the Secretary of Defense a report with respect to DLA's responsiveness and readiness to support operating forces in the event of war or threat to national security and other recommendations that the Chairman deems appropriate.
(6) Provide for the participation of DLA in joint training exercises and assess performance.
(7) Provide tasking related to defense readiness to the Director, DLA.
(8) Develop and submit JCS logistics requirements and priorities to the Director, DLA.
(d) The
(1) Following approval from the Director, DLA, or the CJCS, and within the Commander's geographic area, direct DLA elements to ensure effective operations.
(2) In a major emergency, assume temporary operational control of all DLA elements in the Commander's area of responsibility, with notification immediately following to the CJCS, the appropriate operational commander, and the Director, DLA.
(e)
(1) Exercise such responsibilities and authorities pertinent to DLA elements as may be assigned or delegated to them by the Commander of their Unified Command.
(2) Provide for the physical security and administrative and logistic support of DLA elements as agreed to by DLA and Component Commands concerned under inter-Service support agreements.
(f) Within their areas of responsibility, the CJCS, the CINCs, the Secretaries of the Military Departments, and the heads of other DoD Components shall provide to the Director, DLA, support and logistical planning information, including information on funding shortfalls that impact the responsibilities and functions assigned to DLA.
The Director, DLA, is specifically delegated authority to:
(a) Meet the needs of the Military Departments and other authorized customers by conducting, directing, supervising, or controlling all procurement activities regarding property, supplies, and services assigned to DLA for procurement in accordance with applicable laws, DoD Regulations, the FAR and the DFARS. To the extent that any law or Executive order specifically limits the exercise of such authority to persons at the Secretarial level, such authority shall be exercised by the USD(A).
(b) Prescribe procedures, standards, and practices for the Department of Defense governing the execution of assigned responsibilities and functions.
(c) Obtain such reports, information, advice, and assistance from other DoD Components consistent with the policies and criteria of DoD Directive 7750.5
(d) Establish new DLA facilities or recommend to the USD(A) the reassignment to DLA or use of existing facilities of the Military Departments by DLA, as deemed necessary for improved effectiveness and economy.
(e) Provide membership on the Defense Acquisition Regulatory Council (DAR Council), participate with the Secretaries of the Military Departments and Federal Agencies in developing and publishing the FAR and participate with the Secretaries of the Military Departments in developing and publishing the DFARS.
(f) Exercise the administrative authorities contained in the appendix B to this part.
(a) In performing assigned functions, the Director, DLA, shall:
(1) Have free and direct access to, and communicate with, all elements of the
(2) Maintain appropriate liaison with other DoD Components, Agencies of the Executive branch, foreign governments, and international organizations for the exchange of information on programs and activities in the field of assigned responsibilities.
(3) Maintain close working relationships with weapon systems managers of the Military Departments to ensure integration of effort and exchange of technical programs and reference data.
(4) Use established facilities and services of the Department of Defense and other Federal Agencies, whenever practicable, to avoid duplication and to achieve an appropriate balance among modernization, readiness, sustain ability, efficiency, and economy.
(a) The Director shall be an active duty, commissioned officer of General or Flag rank, appointed by the Secretary of Defense based on the recommendation of the CJCS as approved by the USD(A).
(b) The Deputy Director shall be an active duty, commissioned officer of General or Flag rank, approved by the USD(A) based on the recommendation of the CJCS and Director, DLA.
(c) DLA shall be authorized such personnel, facilities, funds, and other administrative support as the Secretary of Defense deems necessary.
(d) The Military Departments shall assign military personnel to DLA in accordance with approved authorizations and procedures for assignment to joint duty.
(e) Programming, budgeting, funding, auditing, accounting, pricing, and reporting activities of DLA shall be in accordance with established DoD policy and procedures. DLA shall use appropriated funds to finance the operating costs of the Agency; a stock fund to finance all inventories procured for resale; a transaction fund to finance the purchase of needed stockpile materials; and, when appropriate, an industrial fund for financing industrial-commercial type operations.
The following DoD programs and/or systems or aspects of these programs and/or systems are assigned to DLA to administer, manage, and/or operate:
Pursuant to the authority vested in the Secretary of Defense, and subject to the direction, authority, and control of the Secretary of Defense, and in accordance with DoD Policies, Directives, and Instructions, the Director, DLA, or in the absence of the Director, the person acting for the Director, is hereby delegated authority as required in the administration and operation of DLA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C. 301, 302(b), and 3101 pertaining to the employment, direction and general administration of DLA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates established under the Combined Federal Wage System. In fixing such rates, the Director, DLA, shall follow the wage schedule established by the DoD Wage Fixing Authority.
3. Establish advisory committees and employ part-time advisors as approved by the Secretary of Defense for the Performance of DLA functions pursuant to the provisions of 10 U.S.C. 173, 5 U.S.C. 3109(b), and the agreement between the Department of Defense and the Office of Personnel Management (OPM) on employment of experts and consultants, dated June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive Branch of the Federal Government or any other oath required by law in connection with employment therein, in accordance with the provisions of 5 U.S.C. 2903, and designate in writing, as may be necessary, officers and employees of DLA to perform this function.
5. Establish a DLA Incentive Awards Board and pay cash awards to, and incur necessary expenses for the honorary recognition of, civilian employees of the Government whose suggestions, inventions, superior accomplishments, or other personal efforts, including special acts or services, benefit or affect DLA or its subordinate activities, in accordance with the provisions of 5 U.S.C. 4503 and OPM regulations.
6. In accordance with the provisions of 5 U.S.C. 7532; Executive Orders 10450, 12333, and 12356; and DoD Directive 5200.2, “DoD Personnel Security Program,” December 20, 1979:
a. Designate the security sensitivity of positions within DLA.
b. Authorize, in case of an emergency, the appointment of a person to a sensitive position in DLA for a limited period of time for whom a full field investigation or other appropriate investigation, including the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services of a DLA employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and, if necessary, in the interest of national security, suspend, revoke, or deny a security clearance for personnel assigned or detailed to, or employed by DLA. Any action to deny or revoke a security clearance shall be taken in accordance with procedures prescribed in DoD 5200.2-R, “DoD Personnel Security Program,” January 1987.
7. Act as agent for the collection and payment of employment taxes imposed by chapter 21 of the Internal Revenue Code of 1954, as amended; and, as such agent, make all determinations and certifications required or provided for under the Internal Revenue Code of 1954, as amended (26 U.S.C. 3122), and the Social Security Act, as amended (42 U.S.C. 405(p) (1) and (2)), with respect to DLA employees.
8. Authorize and approve overtime work for DLA civilian personnel in accordance with 5 U.S.C. chapter 55, subchapter V, and applicable OPM regulations.
9. Authorize and approve:
a. Travel for DLA civilian personnel in accordance with Joint Travel Regulations, Volume 2, “DoD Civilian Personnel.”
b. Temporary duty travel for military personnel assigned or detailed to DLA in accordance with Joint Travel Regulations, Volume 1, “Members of Uniformed Services.”
c. Invitational travel to persons serving without compensation whose consultative, advisory, or other highly specialized technical services are required in a capacity that is directly related to, or in connection with, DLA activities, pursuant to 5 U.S.C. 5703.
10. Approve the expenditure of funds available for travel by military personnel assigned or detailed to DLA for expenses regarding attendance at meetings of technical, scientific, professional, or other similar organizations in such instances when the approval of the Secretary of Defense, or designee, is required by law (37 U.S.C. 412 and 5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
11. Develop, establish, and maintain an active and continuing Records Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2, “Records Management Program,” September 17, 1980.
12. Establish and use imprest funds for making small purchases of material and services, other than personal services, for DLA when it is determined more advantageous and consistent with the best interests of the Government, in accordance with DoD Instruction 5100.71, “Delegation of Authority and Regulations Relating to Cash Held at Personal Risk Including Imprest Funds,” March 5, 1973.
13. Authorize the publication of advertisements, notices, or proposals in newspapers, magazines, or other public periodicals as required for the effective administration and operation of DLA, consistent with 44 U.S.C. 3702.
14. Establish and maintain appropriate property accounts for DLA and appoint Boards of Survey, approve reports of survey, relieve personal liability, and drop accountability for DLA property contained in the authorized property accounts that has been lost, damaged, stolen, destroyed, or otherwise rendered unserviceable, in accordance with applicable laws and regulations.
15. Promulgate the necessary security regulations for the protection of property and places under the jurisdiction of the Director, DLA, pursuant to DoD Directive 5200.8, “Security of Military Installations and Resources,” July 29, 1980.
16. Establish and maintain, for the functions assigned, a publications system for the promulgation of common supply and service regulations, instructions, and reference documents, and changes thereto, pursuant to
17. Enter into support and service agreements with the Military Departments, other DoD Components, Government Agencies, and foreign governments, as required for the effective performance of DLA functions and responsibilities.
18. Exercise the authority delegated to the Secretary of Defense by the Administrator of the General Services Administration (GSA) on the disposal of surplus personal property.
19. Exercise the authority and responsibility of the Secretary of Defense as delegated to the Director, DLA, for the National Industrial Equipment Reserve established by the National Industrial Equipment Reserve Act of 1948, as amended (50 U.S.C. 451
20. Designate an officer or employee of DLA to serve as the Competition Advocate of the Agency, pursuant to 10 U.S.C. 2318.
21. Maintain an official seal and attest to the authenticity of official DLA records under that seal.
The Director, DLA, may redelegate these authorities as appropriate, and in writing, except as otherwise specifically indicated above or as otherwise provided by law or regulation.